j^-^ S. Hrg. 105-205, Pt. 2
CONHRMATION HEARINGS
ON FEDERAL APPOINTMENTS
Y 4. J 89/2; S. HRG. 105-205/
PT.2
Confirnation Hearinjs on Federal Ap. . .
k
HEAKINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
ON
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
SEPTEMBER 5, 30; OCTOBER 28, 29; NOVEMBER 12, 1997
Part 2
Serial No. J-105-4
Printed for the use of the Committee on the Judiciary
W/IK^
S. Hrg. 105-205, Pt. 2
CONHRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
ON
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
SEPTEMBER 5, 30; OCTOBER 28, 29; NOVEMBER 12, 1997
Part 2
Serial No. J-105-4
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-056254-6
COMMITTEE ON THE JUDICIARY
ORRIN G.
STROM THURMOND, South CaroUna
CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania
FRED THOMPSON, Tennessee
JON KYL, Arizona
MIKE DeWINE, Ohio
JOHN ASHCROFT, Missouri
SPENCER ABRAHAM, Michigan
JEFF SESSIONS, Alabama
HATCH, Utah, Chairman
PATRICK J. LEAHY, Vermont
EDWARD M. KENNEDY, Massachusetts
JOSEPH R. BIDEN, Jr., Delaware
HERBERT KOHL, Wisconsin
DIANNE FEINSTEIN, CaUfornia
RUSSELL D. FEINGOLD, Wisconsin
RICHARD J. DURBIN, Illinois
ROBERT G. TORRICEi^LI, New Jersey
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(II)
CONTENTS
HEARING DATES
Page
Friday, Septembers, 1997 1
Tuesday, September 30, 1997 339
Tuesday, October 28, 1997 665
Wednesday, October 29, 1997 919
Wednesday, November 12, 1997 1359
FRIDAY, SEPTEMBER 5, 1997
Statements of Committee Members
Specter, Hon. Arlen 1
Leahy, Hon. Patrick J. (prepared statement) 3
Introduction of Nominees
Graham, Hon. Bob 4
Prepared statement 5
Mack, Hon. Connie 7
Prepared statement 8
Santorum, Hon. Rick (prepared statement) 22
Testimony of Nominees
Marjorie O. Rendell, of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 9
Questioning by:
Senator Specter 10
Senator Kohl 12
Senator Sessions 13
Senator Biden 13
Bruce W. Kauffman, of Pennsylvania, to be U.S. District Judge for the East-
ern District of Pennsylvania 15
Questioning by:
Senator Specter 15
Senator Kohl 17
Senator Biden 17
Richard A. Lazzara, of Florida, to be U.S. District Judge for the Middle
District of Florida 19
Questioning by:
Senator Specter 18
A. Richard Caputo, of Pennsylvania, to be U.S. District Judge for the Middle
District of Pennsylvania 20
Questioning by:
Senator Specter 21
Senator Kohl 22
Alphabetical List and Materl\l Submitted
Caputo, A. Richard:
Testimony 20
Questionnaire 225
(III)
IV
Page
Graham, Hon. Bob:
"Lazzara Deserves Federal Appointment," newspaper article from the
Tampa Tribune, Jan. 7, 1997 6
Kauffman, Bruce W.:
Testimony 15
Questionnaire 86
Lazzara, Richard A.:
Testimony 19
Questionnaire 159
Rendell, Marjorie O.:
Testimony 9
Questionnaire 25
Specter, Hon. Arlen:
Letter to Senator Orrin G. Hatch, chairman. Senate Judiciary Committee,
Washington, DC, Sept. 4, 1997 2
Letter from Senator Orrin G. Hatch, chairman, Senate Judiciary Commit-
tee, Washington, DC, Sept. 4, 1997 2
TUESDAY, SEPTEMBER 30, 1997
Statements of Committee Members
DeWine, Hon. Mike 339
Leahy, Hon. Patrick J. (prepared statement) 351
Radio address of the President to the Nation 352
Introduction of Nominees
Hatch, Hon. Orrin G 339
Bennett, Hon. Robert F 340
Glenn, Hon. John 341
D'Amato, Hon. Alfonse M 343
Prepared statements 346
Moynihan, Hon. Daniel Patrick (prepared statements) 344
Thompson, Hon. Fred 348
Frist, Hon. Bill 350
Ford, Hon. Harold E 350
Testimony of Nominees
Ronald Lee Oilman, of Tennessee, to be U.S. Circuit Judge for the Sixth
Circuit 353
Questioning by:
Senator DeWine 353
Senator Thurmond 355
Senator Sessions 356
Senator Ashcroft 359
Sonia Sotomayor, of New York, to be U.S. Circuit Judge for the Second
Circuit 355
Questioning by:
Senator Thurmond 354
Senator Sessions 356
Senator Ashcroft 359
Senator DeWine 362
Charles J. Siragusa, of New York, to be U.S. District Judge for the Western
District of New York 367
Questioning by:
Senator DeWine 367
Algenon L. Marbley, of Ohio, to be U.S. District Judge for the Southern
District of Ohio 368
Questioning by:
Senator DeWine 368
Dale A. Kimball, of Utah, to be U.S. District Judge for the District of Utah 368
Questioning by:
Senator DeWine 368
James S. Gwin, of Ohio, to be U.S. District Judge for the Northern District
of Ohio 369
James S. Gwin, of Ohio, to be U.S. District Judge for the Northern District
of Ohio — Continued
Questioning by:
Senator DeWine 369
Richard Conway Casey, of New York, to be U.S. District Judge for the
Southern District cf New York 369
Questioning by:
Senator DeWine 369
Alphabetical List and Material Submitted
Casey, Richard Conway:
Testimony 369
Questionnaire 627
Oilman, Ronald Lee:
Testimony 353
Questionnaire 376
Gwin, James S.:
Testimony 369
Questionnaire 599
Kimball, Dale A.:
Testimony 368
Questionnaire 574
Marbley, Algenon L.:
Testimony 368
Questionnaire 538
Siragusa^ Charles J.:
Testimony 367
Questionnaire 500
Sotomayor, Sonia:
Testimony 355
Questionnaire 459
TUESDAY, OCTOBER 28, 1997
Statements of Committee Members
Hatch, Hon. Orrin G 665
Leahy, Hon. Patrick J. (prepared statement) 683
Introduction of Nominees
Wyden, Hon. Ron 666
Prepared statement 667
Smith, Hon. Gordon 668
Prepared statement 668
Mack, Hon. Connie 669
Graham, Hon. Bob 670
Prepared statement 671
Robb, Hon. Charles S 673
Prepared statement 674
Warner, Hon. John W 675
Prepared statement 676
Bond, Hon. Christopher S 677
Prepared statement 678
Ashcroft, Hon. John 679
Testimony of Nominees
Stanley Marcus, of Florida, to be U.S. Circuit Judge for the Eleventh
Circuit 680
Questioning by:
Senator Ashcroft 680
Senator Durbin 682
Rodney W. Sippel, of Missouri, to be U.S. District Judge for the Eastern
and Western Districts of Missouri 684
Questioning by:
Senator Durbin 684
VI
Page
Rodney W. Sippel, of Missouri, to be U.S. District Judge for the Eastern
and Western Districts of Missouri — Continued
Questioning by — Continued
Senator Ashcroft 691
Norman K. Moon, of Virginia, to be U.S. District Judge for the Western
District of Virginia 686
Questioning by:
Senator Durbin 686
Senator Ashcroft 691
Ann L. Aiken, of Oregon, to be U.S. District Judge for the District of Oregon .. 687
Questioning by:
Senator Ashcroft 687
Senator Durbin 689
Jerome B. Friedman, of Virginia, to be U.S. District Judge for the Eastern
District of Virginia 687
Questioning by:
Senator Ashcroft 687
Senator Durbin 690
Alphabetical List and Material Submitted
Aiken, Ann L.:
Testimony 687
Questionnaire 856
Friedman, Jerome B.:
Testimony 687
Questionnaire 887
Marcus, Stanley:
Testimony 680
Questionnaire 693
Moon, Norman K.:
Testimony 686
Questionnaire 811
Sippel, Rodney W.:
Testimony 684
Questionnaire 775
WEDNESDAY, OCTOBER 29, 1997
Statements of Committee Members
Kyi, Hon. Jon 919
Leahy, Hon. Patrick J. (prepared statement) 1017
Introduction of Nominees
Kohl, Hon. Herbert 920
Feingold, Hon. Russell D 922
Prepared statement 923
Durbin, Hon. Richard J 951
Evans, Hon. Lane 952
Moseley-Braun, Hon. Carol 953
LaHood, Hon. Ray (prepared statement) 954
Feinstein, Hon. Dianne 955
Condit, Hon. Gary A. (prepared statement) 999
Boxer, Hon. Barbara 1000
Santorum, Hon. Rick 1001
Foglietta, Hon. Thomas M 1002
Specter, Hon. Arlen 1003
Fattah, Hon. Chaka 1006
Testimony of Nominees
James S. Ware, of California, to be U.S. Circuit Judge for the Ninth Circuit ... 1007
Questioning by:
Senator Kyi 1007
Lynn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern
District of Wisconsin 1011
VII
Page
Lynn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern
District of Wisconsin — Continued
Questioning by:
Senator Kohl 1011
Senator Feingold 1013
Senator Kyi 1015
Charles R. Breyer, of California, to be U.S. District Judge for the Northern
District of California 1011
Questioning by:
Senator Kyi 1016
Frank C. Damrell, Jr., of California, to be U.S. District Judge for the Eastern
District of California 1011
Questioning by:
Senator Kyi 1016
Martin J. Jenkins, of California, to be U.S. District Judge for the Northern
District of California 1012
Questioning by:
Senator Kyi 1016
Michael P. McCuskey, of Illinois, to be U.S. District Judge for the Central
District of Illinois 1012
Questioning by:
Senator Durbin 1013
G. Patrick Murphy, of Illinois, to be U.S. District Judge for the Southern
District of Illinois 1013
Questioning by:
Senator Durbin 1014
Frederica A. Massiah-Jackson, of Pennsylvania, to be U.S. District Judge
for the Eastern District of Pennsylvania 1019
Questioning by:
Senator Kyi 1019
Senator Sessions 1021
Senator Durbin 1026
Senator Specter 1037
Alphabetical List and Material Submitted
Adelman, Lynn S.:
Testimony 1011
Questionnaire 1096
Breyer, Charles R.:
Testimony 1011
Questionnaire 1124
Damrell, Frank C, Jr.:
Testimony 1011
Questionnaire 1197
Feingold, Hon. Russell D.:
Letters supporting the nomination of Lynn S. Adelman from:
John W. Reynolds, judge, U.S. District Court, Eastern District of
Wisconsin, Milwaukee, WI, Jan. 9, 1997 925
James E. Doyle, attorney general, State of Wisconsin, Department
of Justice, Madison, WI, Jan. 13, 1997 926
Mary Lauby, executive director, Wisconsin Coalition Against Domes-
tic Violence, Madison, WI, Jan. 17, 1997 927
David E. Schultz, associate dean, professor of law, University of
Wisconsin, Madison, WI, Feb. 25, 1997 928
Bradley DeBraska, president, Local #21, lUPA, AFL-CIO, Milwaukee
Pohce Association, Milwaukee, WI, Mar. 17, 1997 929
Karen M. Ordinans, chairman, Milwaukee County Board of Super-
visors, Milwaukee, WI, Mar. 25, 1997 930
Leverett F. Baldwin, sheriff, Milwaukee County, Milwaukee, WI,
Mar. 26, 1997 931
Patrick T. Sheedy, chief judge. First Judicial District, Milwaukee
County Courthouse, Milwaukee, WI, Mar. 27, 1997 932
Ben Brancel, assembly speaker. State Capitol, Madison, WI, Apr.
2, 1997 933
Margaret A. Farrow, State Senator, Republican Caucus Chair, Madi-
son, WI, Apr. 3, 1997 934
VIII
Page
Feingold, Hon. Russell D. — Continued
Letters supporting the nomination of Lynn S. Adelman from — Continued
Brian D. Rude, State Senator, Wisconsin Senate Assistant Repub-
lican Leader, Madison, WI, Apr. 4, 1997 935
Jan Steinbergs, executive director, Wisconsin Troopers' Association,
Inc., East Troy, WI, Apr. 7, 1997 936
Michael G. Ellis, Senate Republican Leader, Wisconsin State Senate,
Madison, WI, Apr. 8, 1997 937
Alberta Darling, Wisconsin State Senator, 8th Senate District, Madi-
son, WI, Apr. 8, 1997 938
Steve Foti, Wisconsin State Representative, assembly majority lead-
er, State Capitol, Madison, WI, Apr. 8, 1997 939
Daniel M. Finley, county executive, Waukesha County, Office of
County Executive, Waukesha, WI, Apr. 8, 1997 940
Scott L. Klug, Member of Congress, House of Representatives, Wash-
ington, DC, Apr. 9, 1997 941
Lee Sherman Dreyfus, Governor, Waukesha, WI, Apr. 9, 1997 942
Thomas E. Petri, Member of Congress, House of Representatives,
Washington, DC, Apr. 14, 1997 944
John E. Charewicz, president, Wisconsin Professional Police Associa-
tion, Madison, WI, Apr. 16, 1997 945
Mark D. Zeier, State president, Professional Fire Fighters of Wiscon-
sin, Inc., Madison, WI, Apr. 17, 1997 946
Peggy Rosenzweig, State Senator, 5th Senate District, Madison, WI,
Apr. 28, 1997 947
Fred Risser, president, Wisconsin State Senate, 26th Senate District,
Madison, WI, May 1, 1997 948
Jean M. Jacobson, county executive, County of Racine, Racine, WI,
May 1, 1997 949
Scott McCallum, Lieutenant Governor, State of Wisconsin, State Cap-
itol, Madison, WI, May 5, 1997 950
Feinstein, Hon. Dianne:
Letters supporting the nomination of Frank C. Damrell, Jr., from:
Ann M. Veneman, secretary. Department of Food and Agriculture,
State of California, Sacramento, CA, Jan. 17, 1997 958
Attachment: "A dream believer," reprint from the Modesto Bee,
Dec. 15, 1996 959
Ernest Gallo, office of the chairman, E. & J. Gallo Winery, Modesto,
CA, Jan. 17, 1997 962
Gary A. Condit, Anna G. Eshoo, Sam Farr, Nancy Pelosi, Howard
L. Berman, and George Miller, Members of Congress, House of
Representatives, Washington, DC, Jan. 21, 1997 963
John Garamendi, Deputy Secretary, U.S. Department of the Interior,
Washington, DC, Jan. 21, 1997 965
Kathleen Brown, senior vice president and managing director. Bank
of America, Los Angeles, CA, Jan. 21, 1997 966
William T. Bagley, law offices of Nossaman, Guthner, Knox & Elliott,
LLP, San Francisco, CA, Jan. 22, 1997 967
Curriculum vitae of Frank C. Damrell, Jr 968
Carol G. Whiteside, director. Intergovernmental Affairs, Governor's
Office, State of California, Sacramento, CA, Jan. 23, 1997 970
John C. Danforth, Bryan Cave, LLP, St. Louis, MO, Jan. 23, 1997 971
Nancy Pelosi, Member of Congress, House of Representatives, Wash-
ington, DC, Jan. 28, 1997 972
Patrick Johnston, Fifth Senate District, Senate California Legisla-
ture, San Francisco, CA, Jan. 28, 1997 973
Anna G. Eshoo, Member of Congress, House of Representatives,
Washington, DC, Feb. 4, 1997 975
Paul Locatelli, S.J., president, Santa Clara University, Santa Clara,
CA, Feb. 6, 1997 976
Carmen A. Policy, president, San Francisco 49ers, Santa Clara, CA,
Feb. 7, 1997 977
James C. Brazelton, district attorney. Court House, Modesto, CA,
Feb. 14, 1997 978
Les Weidman, sheriff"-coroner. Sheriffs Department, Stanislaus
County, Modesto, CA, Feb. 14, 1997 979
IX
Page
Feinstein, Hon. Dianne — Continued
Letters supporting the nomination of Frank C. Damrell, Jr., from — Con-
tinued
Dianne Feinstein, U.S. Senator, U.S. Senate, Washington, DC, Feb.
26, 1997 980
Leon E. Panetta, Carmei Valley, CA, Apr. 15, 1997 982
James R. Dignan, C.P.A., Modesto, CA, Apr. 17, 1997 983
Everett J. (Skip) Mohatt, Amador Valley High School, Pleasanton,
CA, Apr. 21, 1997 984
Marc B. Poche, associate justice, Court of Appeal, San Francisco,
CA, Apr. 23, 1997 985
Ray Simon, supervisor, fourth district, Stanislaus County, Board of
Supervisors, Modesto, CA, Apr. 24, 1997 986
Hugh Rose III, presiding judge. Superior Court of the State of Cali-
fornia, County of Stanislaus, Apr. 25, 1997 987
George E. Leonard, law offices of Shughart Thomson & Kilroy, Kan-
sas City, MO, Apr. 25, 1997 988
Richard A. Lang, mayor. City of Medesto, Modesto, CA, Apr. 30.
1997 989
Elaine Watters, judge, Superior Court, State of California, County
of Sonoma, Santa Rosa. CA, May 1, 1997 990
Patrick J. Frawley, Jr., Agoura, CA, June 11, 1997 991
Richard Hagerty, RD, Modesto, CA, Aug. 29, 1997 992
Gary A. Condit, Member of Congress, House of Representatives,
Washington, DC, Sept. 2, 1997 993
Cosignatories: Ray Simon, Stanislaus County Board of Super-
visors; Richard Monteith, California State Senator; Dennis
Cardoza, George House, California State Assemblymen; Rich-
ard Lang, mayor, city of Modesto; Les Weidman, Stanislaus
County Sheriff; Jim Brazelton, Stanislaus County District At-
torney; Tom Mayfield, chairman, Nick Blom, Paul Caruso, Pat
Paul, Stanislaus County supervisors.
Richard Lyng, Modesto, CA, Sept. 15, 1997 995
David L. Moore, president. Western Growers Association, Newport
Beach, CA, Oct. 22, 1997 996
L. Stephen Endsley, M.D., Valley Heart Associates, Modesto, CA 997
Additional remarks and a newspaper article from the Washington Post,
Nov. 7, 1997: "U.S. Judge Admits Lie, Withdraws as Nominee" 998
Jenkins, Martin J.:
Testimony 1012
Questionnaire 1224
Kohl, Hon. Herbert:
Letter from Tommy G. Thompson, Governor, State of Wisconsin, Mar.
21, 1997 921
Massiah-Jackson, Frederica A.:
Testimony 1019
Questionnaire 1327
McCuskey, Michael P.:
Testimony 1012
Questionnaire 1264
Murphy, G. Patrick:
Testimony 1013
Questionnaire 1302
Specter, Hon. Arlen:
Letter to Hon. Orrin G. Hatch, chairman, Senate Committee on the
Judiciary, Washington, DC, Oct. 8, 1997 1005
Brief filed in the Superior Court of Pennsylvania, Aug. 1, 1988: Common-
wealth of Pennsylvania v. Robert Hicks 1027
Judgment 1035
Extract of a memorandum 1045
Letter to Hon. Orrin G. Hatch, chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC, Oct. 8, 1997 1005
Ware, James S.:
Testimony 1007
Questionnaire 1051
WEDNESDAY, NOVEMBER 12, 1997
Statement of Committee Member
Hatch, Hon. Orrin G 1359
Introduction of Nominees
Kyi, Hon. Jon (prepared statement) 1359
Cleland, Hon. Max 1360
Feinstein, Hon. Dianne 1362
Testimony of Nominees
Barry G. Silverman, of Arizona, to be U.S. Circuit Judge for the Ninth
Circuit 1364
Questioning by:
Chairman Hatch 1365
Senator Feinstein 1368
Senator Grassley 1369
Carlos R. Moreno, of California, to be U.S. District Judge for the Central
District of California 1364
Questioning by:
Chairman Hatch 1365
Senator Feinstein 1368
Senator Grassley 1369
Richard W. Story, of Georgia, to be U.S. District Judge for the Northern
District of Georgia 1364
Questioning by:
Chairman Hatch 1365
Senator Feinstein 1368
Senator Grassley 1369
Christine O.C. Miller, of the District of Columbia, to be a Judge of the
U.S. Court of Federal Claims 1365
Questioning by:
Chairman Hatch 1365
Senator Feinstein 1368
Senator Grassley 1369
Alphabetical List and Material Submitted
Feinstein, Hon. Dianne:
Letter to Hon. Orrin G. Hatch, chairman. Senate Committee on the
Judiciary, Washington, DC, from Governor George Deukmejian, 35th
Governor of California, Los Angeles, CA, Oct. 6, 1997 1363
Miller, Christine O.C:
Testimony 1365
Questionnaire 1476
Moreno, Carlos R.:
Testimony 1364
Questionnaire 1417
Silverman, Barry G.:
Testimony 1364
Questionnaire 1376
Story, Richard W.:
Testimony 1364
Questionnaire 1442
XI
Page
ALPHABETICAL LIST OF NOMINEES
FOR FEDERAL APPOINTMENTS
Page
Adelman, Lynn S., of Wisconsin, to be U.S. District Judge for the Eastern
District of Wisconsin 1011
Aiken, Ann L., of Oregon, to be U.S. District Judge for the District
of Oregon 687
Breyer, Charles R., of Cahfomia, to be U.S. District Judge for the Northern
District of Cahfomia 1011
Caputo, A. Richard, of Pennsylvania, to be U.S. District Judge for the Middle
District of Pennsylvania 20
Casey, Richard Conway, of New York, to be U.S. District Judge for the
Southern District of New York 369
Damrell, Frank C, Jr., of California, to be U.S. District Judge for the Eastern
District of California 1011
Friedman, Jerome B., of Virginia, to be U.S. District Judge for the Eastern
District of Virginia 687
Gwin, James S., of Ohio, to be U.S. District Judge for the Northern District
of Ohio 369
Jenkins, Martin J., of California, to be U.S. District Judge for the Northern
District of California 1012
Kauffman, Bruce C, of Pennsylvania, to be U.S. District Judge for the East-
ern District of Pennsylvania 15
Kimball, Dale A., of Utah, to be U.S. District Judge for the District of
Utah 368
Lazzara, Richard A., of Florida, to be U.S. District Judge for the Middle
District of Florida 19
Marbley, Algenon L., of Ohio, to be U.S. District Judge for the Southern
District of Ohio 368
Marcus, Stanley, of Florida, to be U.S. Circuit Judge for the Eleventh
Circuit 680
Massiah-Jackson, Frederica A., of Pennsylvania, to be U.S. District Judge
for the Eastern District of Pennsylvania 1019
McCuskey, Michael P., of Illinois, to be U.S. District Judge for the Central
District of Illinois 1012
Miller, Christine O.C., of the District of Columbia, to be a Judge of the
U.S. Court of Federal Claims 1365
Moon, Norman K., of Virginia, to be U.S. District Judge for the Western
District of Virginia 686
Moreno, Carlos R., of California, to be U.S. District Judge for the Central
District of California 1364
Murphy, G. Patrick, of Illinois, to be U.S. District Judge for the Southern
District of Illinois 1013
Rendell, Marjorie O., of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 9
Silverman, Barry G., of Arizona, to be U.S. Circuit Judge for the Ninth
Circuit 1364
Sippel, Rodney W., of Missouri, to be U.S. District Judge for the Eastern
and Western Districts of Missouri 684
Siragusa, Charles J., of New York, to be U.S. District Judge for the Western
District of New York 367
Sotomayor, Sonia, of New York, to be U.S. Circuit Judge for the Second
Circuit 355
Story, Richard W., of Georgia, to be U.S. District Judge for the Northern
District of Georgia 1364
Ware, James S., of California, to be U.S. Circuit Judge for the Ninth Circuit .. 1007
NOMINATIONS OF MARJORIE O. RENDELL
(U.S. CIRCUIT JUDGE); BRUCE W.
KAUFFMAN, RICHARD A. LAZZARA, AND A.
RICHARD CAPUTO (U.S. DISTRICT JUDGES)
FRIDAY, SEPTEMBER 5, 1997
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 9:02 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Arlen Specter pre-
siding.
Also present: Senators Sessions, Biden, and Kohl.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Good morning, ladies and gentlemen. We will
begin the confirmation hearings this morning. We are pleased to
have with us four very distinguished nominees — Judge Marjorie
Rendell, now a judge of the U.S. District Court for the Eastern Dis-
trict of Pennsylvania, for confirmation for circuit court of appeals.
We have former Justice Bruce Kauffman, justice of the Supreme
Court of Pennsylvania, for the U.S. District Court for the Eastern
District. We have Mr. A. Richard Caputo for the U.S. District Court
for the Middle District, and Judge Richard A. Lazzara for the Mid-
dle District of Florida.
We had hoped to have hearings this morning for Judge Frederica
Massiah-Jackson, and also for Mr. Bingler. I will put in the record
an exchange of letters which I had with Senator Hatch yesterday
asking about Judge Massiah-Jackson for her hearing today, and
Senator Hatch's reply saying that the committee could not process
Judge Massiah-Jackson in time for this hearing.
Senator Hatch says:
At your request, the Judiciary Committee has undertaken an effort to promptly
review and process all pending Pennsylvania judicial nominees. I appreciate your
concern about Judge Massiah-Jackson not being included. As you know, the commit-
tee conducts its own review of nominees' writings, judicial opinions, and background
materials. This review is, as a matter of course, thorough and time-consuming. Un-
fortunately, Judge Massiah-Jackson did not provide the committee with her commit-
tee questionnaire until August 15, more than a week after the other Pennsylvania
district court nominees.
While the committee has endeavored to complete its review of her nomination, we
have to date been unable to do so. It is my hope that, assuming all paperwork is
complete and fully reviewed, her nomination will be ready for consideration at the
next Judiciary Committee judicial nominations hearings presently slated for later
this month.
(1)
[The letters referred to follow:]
U.S. Senate,
Committee on the Judiciary,
Washington, DC, September 4, 1997.
Senator Orrin Hatch,
Chairman, Senate Judiciary Committee,
Russell Senate Office Building, Washington, DC.
Dear Orrin: As you know, I had hoped that Judge Frederica A. Massiah-Jackson,
a nominee to be a judge on the District Court for the Eastern District of Pennsyl-
vania, would be able to testify at the judicial nominations hearing we are holding
tomorrow morning. I think that Judge Massiah-Jackson would make a fine addition
to the bench and I would like to see her nomination move forward.
To my disappointment, I have learned that Judge Massiah-Jackson is not on the
witness list for tomorrow's hearing.
I would appreciate it if you could let me know the reason why Judge Massiah-
Jackson was not invited to testify at tomorrow's hearing.
Sincerely,
Arlen Specter.
U.S. Senate,
Committee on the Judiciary,
Washington, DC, September 4, 1997.
Hon. Arlen Specter,
Hart Senate Office Building,
Washington, DC.
Dear Arlen: Thank you for your letter of September 4, 1997. At your request,
the Judiciary has undertaken an effort to promptly review and process all pending
Pennsylvania judicial nominees. I appreciate your expression of concern about Judge
Frederica Massiah-Jackson's not being included on this week's nominations hearing
agenda.
As you know, the Committee conducts its own review of nominees' writings, judi-
cial opinions, and background materials. This review is, as a matter of course, thor-
ough and time-consuming.
Unfortunately, Judge Massiah-Jackson did not provide the Committee with her
Committee Questionnaire until August 15, 1997, more than a week after the other
Pennsylvania District Court nominees. While the Committee has endeavored to com-
plete its review of her nomination, we have to date been unable to do so.
It is my hope that, assuming all paperwork is complete and fully reviewed, her
nomination will be ready for consideration at the next Judiciary Committee judicial
nominations hearing, presently slated for later this month.
Thank you for your patience.
Sincerely,
Orrin G. Hatch, Chairman.
Senator Specter. I have discussed this matter with Senator
Hatch and it is my hope we could have Judge Massiah-Jackson on
a week after next, perhaps as early as September 16.
As to Mr. Bingler, whose name has been submitted for the west-
ern district, we are continuing to work on that, and we shall con-
tinue to do so. It is my hope we will be able to ultimately bring
him forward for confirmation.
We have with us this morning two of my distinguished col-
leagues, Senator Connie Mack of Florida and Senator Bob Graham
of Florida. If you gentlemen would step forward, the committee,
after deferring to my ranking member. Senator Kohl, would be glad
to hear from you.
Senator Kohl. Thank you, Mr. Chairman. I do not have a state-
ment today, but I would like to thank you for chairing this hearing
and I would like to put a statement into the record by Senator
Le^hy. Senator Leahy is concerned about the pace of judicial nomi-
nations. We currently have more than 100 judicial vacancies, and
I am concerned, as he is, and so, as I would imagine, are you, Mr.
Chairman.
I ask unanimous consent that Senator Leahy's statement be
made a part of the record.
Senator SPECTER. Without objection, it will be made a part of the
record.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the State
OF Vermont
This year the Senate has confirmed only 11 federal judges, during a period in
which we have seen 112 vacancies. We have two nominees from the June 25 hear-
ings who still need to be considered and reported by the Judiciary Committee and
nominees pending on the Senate Executive calendar from as long ago as June 12.
This is only the fifth confirmation hearing for judicial nominees that this Commit-
tee has held all year. From the first days of this session of Congress, this Committee
has never had pending before it fewer than 20 judicial nominees for hearings. This
Committee's backlog has now doubled and is more than 40. Many of these nomina-
tions, pending for longer than a year, have been re-nominated by the President after
having been held up during the stall last year. Some of those pending before the
Comimittee had had hearings or were reported favorably by the Committee last Con-
gress but have been passed over so far this year as the vacancies for which they
were nominated more than two years ago persist. The President has sent us 61 judi-
cial nominations so far this year and is sending more each week.
While 1 commend Senator Specter for chairing this hearing and including nomi-
nees to the Third Circuit and District Courts in the Eastern and Middle District
of Pennsylvania, I remain concerned for those nominees, vacancies and litigants who
are not from a Circuit or District with an active Republican member on the Judici-
ary Committee. Even Senator Specter was unable to have included the two other
nominees for judgeships in the Eastern and Western Districts of Pennsylvania at
this hearing. And while 1 am delighted to see the Committee moving forward
promptly on nominations received at the end of July, that does not excuse us for
having passed over and not held hearings on dozens of other nominees throughout
the year. The Committee has 12 nominations that have been pending for more than
a year, including seven nominations that have been pending since 1995. I am al-
ways pleased when the Committee moves promptly on nominees, but that does not
excuse the Committee's delay in the consideration of nominees like Professor Fletch-
er, Judge Beaty, Judge Paez, Ms. McKeown, Ms. Aiken, Ms. MoUway and the oth-
ers.
We continue to fall farther and farther behind the pace established by Senator
Hatch in the last Congress. By this time two years ago. Senator Hatch has held
eight confirmation hearings involving 36 judicial nominees and the Senate had pro-
ceeded to confirm 35 federal judges.
1 have spoken often about the crisis being created by the 101 vacancies that are
being perpetuated on the federal courts around the country. At the rate that we are
currently going this year, more and more vacancies are continuing to mount over
longer and longer times to the detriment of greater numbers of Americans and the
national cause of prompt justice. We are not even keeping up with attrition.
Chief Justice Rehnquist has repeatedly acknowledged the crisis being inflicted
upon the federal judiciary and, I believe, upon all Americans. The Chief Justice has
called the rising number of vacancies "the most immediate problem we face in the
federal judiciary." The Courts Subcommittee heard testimony just yesterday from
judges from the Second and Eighth Circuits about the adverse impact of vacancies
on the ability of the Federal courts to do justice. The effect is seen in extended delay
in the hearing and determination of cases and the frustration that litigants are
forced to endure. The crushing caseload will force federal courts to rely more and
more on senior judges, visiting judges and court staff.
The Attorney General spoke recently about the "vacancy crisis that has left so
many Americans waiting for justice" and noted that vacancies, filings, caseloads,
and backlogs are all increasing and that we are experiencing an "unprecedented
slowdown in the confirmation process" that has "very real and very detrimental im-
pacts on all parts of our justice system." She spoke about the hundreds of appellate
arguments being canceled and federal judges who endure entire years without hear-
ing a single civil case. She said: "Quite simply without enough judges, our laws will
become empty promises and 'swift justice' will become an oxymoron, and without the
independence they need to uphold those laws, our judges will become hostages to
politics instead of being the guardians of our principles."
Today we will hear from a few of the highly-qualified nominees pending before
the Committee, including one who was first nominated more than 16 months ago.
I look forward to prompt and favorable action on each of them.
As we enter the last weeks of this session of Congress, I urge the Republican ma-
jority to reconsider its strategy and proceed to consider and confirm the nominees
who are before us.
Senator Specter. I share Senator Leahy's concern. Of course,
there could be no complaints about this processing. These nomina-
tions were submitted in late July and for some magical reason they
have appeared out of turn today; at least the Pennsylvania ones
were. I would have to ask the Senators from Florida about their
timing.
Welcome, Senator Graham and Senator Mack. As our custom is
on seniority, we turn first to Senator Graham.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator Graham. Thank you, Mr. Chairman and Senator Kohl.
I appreciate this hearing this morning for an outstanding Floridian
who has been nominated by the President for the Middle Judicial
District of Florida.
I have a full statement which I would like to ask to be submitted
for the record.
Senator Specter. Without objection, it will be made a part of the
record.
Senator Graham. In deference to the heavy schedule that you
have, I will summarize.
Mr. Chairman, it is a tremendous honor to introduce to this com-
mittee Judge Richard Lazzara for your consideration as the nomi-
nee for the Middle Judicial District of Florida. Before I begin, I
would like to welcome Judge Lazzara and his son, Damon, who
joins him today.
Judge and Damon, if you would please stand up?
[The persons stood.]
Senator Graham. I am pleased to be joined today by my good
friend and colleague. Senator Mack, whose tireless efforts on behalf
of Judge Lazzara have made this hearing today possible, for which
I extend my deep appreciation.
Mr. Chairman, you and Senator Kohl are well aware of the criti-
cal responsibility that we share as Members of the U.S. Senate in
the review of those individuals who have been nominated to serve
in lifetime positions in our Federal court system. It is vital that
these appointments command our closest attention and scrutiny,
which I know has been the tradition of this committee. I am cer-
tain that in applying that scrutiny, you will be as impressed as we
are with the qualifications of Judge Lazzara for this important po-
sition.
Let me just take a moment to talk about the Middle District of
Florida. The Middle District of Florida is geographically an ex-
tremely large judicial district, stretching some 400 miles, including
cities such as Jacksonville, Orlando, Tampa, St. Petersburg, and
Senator Mack's hometown of Ft. Myers. This district is projected to
grow by more than 1.5 million citizens in the next 10 years. That
growth is larger than the current population of 13 of our Slates
and the District of Columbia.
It is also a district which has had a major caseload. The criminal
defendants per judge in the middle district, as an example, are ap-
proximately 50 percent higher than the national average. At the
end of 1996, there were over 1,500 criminal cases pending in the
Middle District of Florida. Therefore, your holding this hearing
today and adding Judge Lazzara to the bench, which will bring this
bench to a full complement, is extremely important.
Mr. Chairman, just briefly to review the distinguished career of
Judge Lazzara, a graduate of the University of Florida Law School,
he has served with distinction in a number of professional and
community positions, as well as a long and distinguished career on
the State judiciary. He was nominated by both Republican and
Democratic Governors for increasing positions of responsibility in
the State judiciary, now serving as a member of the Third District
Court of Appeals, which is the intermediate appellate position in
our State system.
His performance at every level of the judiciary has met with
overwhelming praise. He received the highest approval rating of
any of Hillsborough County judges when he serv'^ed in that position
in 1987, of any 13th Judicial Circuit judge when he was in that po-
sition in 1993, and now of those colleagues with whom he serves
as a Second District appellate judge in 1995, was selected with the
highest approval rating. He has received many awards for his serv-
ice.
Mr. Chairman, I recommend in the highest form Judge Lazzara
for his preparation, his experience, his judicial demeanor, his intel-
ligence, his understanding of what it means to be a jurist. He will
bring distinction to the Federal judiciary. I urge your earliest con-
sideration of this nomination.
Senator Specter. Thank you very much. Senator Graham. We
appreciate your being here.
[The prepared statement of Senator Graham and a newspaper
article follows:]
Prepared Statement of Senator Bob Graham
Chairman Hatch, Senator Leahy, members of the Judiciary Committee, it is a tre-
mendous honor to introduce Richard Lazzara for your consideration as the next
judge in the Middle Judicial District of Florida.
Before I begin, I want to welcome Judge Lazzara and his son Damon to Washing-
ton. I had the privilege of meeting with both of them in my office before this morn-
ing's hearing. Mr. Chairman, Judge Lazzara has primarily earned this nomination
through his diligent service and distinguished legal and judicial record. But I think
that the real measure of accomplishment in any individual's life is his or her chil-
dren. And in this case. Judge Lazzara has been very successful.
I also want to thank my good friend and fellow Floridian Connie Mack for his tire-
less efforts on behalf of this nomination and his presence here today. For nearly a
decade, I have been extremely privileged to work closely with Senator Mack. I have
also had the good fortune of living across the street from him.
Mr. Chairman, perhaps our most critical responsibility as a legislative body is the
review of those individuals who are selected to ser\'e at all levels of our federal court
system. It is vital that these appointments command our closest attention and scru-
tiny, and I want to commend you and Senator Leahy for your faithful dedication
to this task. In the last year alone, your leadership has led to the confirmation of
three new federal judges in Florida — Robert Hinkle in the Northern District, and
Alan Gold and Don Middlebrooks on the Southern District.
I am hopeful that this hearing will be the first step toward the confirmation of
Richard Lazzra as the newest judge in Florida's large and rapidly growing Middle
District, which stretches 400 miles and includes the major cities of Jacksonville, Or-
lando, Tampa, St. Petersburg, and Senator Mack's hometown of Fort Myers. It is
projected to have more than 1.5 million new residents in the next ten years — a num-
ber greater than the population in thirteen states.
While not a permanent solution. Judge Lazzara's addition to the federal bench
would be a welcome relief to the overburdened judges in one of the most under-
served judicial districts in the nation. Criminal defendants per judge in the Middle
District are approximately 50% higher than the national average. In fact, at the end
of 1996, right before Judge Lazzara was nominated, over 1500 criminal cases were
pending.
Just as the confirmation of judicial appointees deserves our best efforts, the Amer-
ican people served by those jurists have a right to expect judges who bring unques-
tioned competence, strong integrity, devotion to duty, and diversity of experience
with them to the federal bench.
Throughout his career — as a student at the University of Florida Law School, a
Hillsborough County attorney and prosecutor, a distinguished member of the Tampa
Bay area legal community, and an outstanding jurist at the county, circuit, and ap-
pellate levels — Richard Lazzara has met — and exceeded — this standard of excellence
time and time again.
Floridians began relying on Richard Lazzara's judgment more than twenty-five
years ago. His record of exemplary yet humble service to others at the University
of Florida Law School, where he bravely complemented his studies with perhaps the
most challenging assignment of his career — the often thankless but always impor-
tant job of dormitory resident adviser.
Almost without hesitation. Judge Lazzara's graduation from law school was fol-
lowed by three years of public service. He worked in the Office of the Hillsborough
County Solicitor and then as an Assistant State Attorney. This prosecutorial experi-
ence turned into nearly fifteen years of respected work in private practice.
In 1987, when he was elected a Hillsborough County Judge, Richard Lazzara en-
tered the phase of his career that would earn him the most distinction.
In ten years as a judge, his intelligence, competence, and fairness has earned him
near-universal respect and bipartisan attention. In 1988, then-Governor Bob Mar-
tinez, a Republican, appointed Judge Lazzara to a seat on Florida's Thirteenth Judi-
cial Circuit. Five years later, Democratic Governor Lawton Chiles elevated him to
the state's Second District Court of Appeal.
His performance at every level of the state judiciary has been met with over-
whelming praise. Judge Lazzara received the highest approval rating of any
Hillsborough County Judge in 1987; of any Thirteenth Judicial Circuit Judge in
1993; and of any Second District Appellate Judge in 1995. The Young Lawyers Sec-
tion of the Hillsborough County Bar Association named him their "Outstanding Ju-
rist of 1991-1992." And in 1990, he received the highest rating possible in sentenc-
ing habitual offenders.
Throughout his career, Richard Lazzara has been respected by his peers, hailed
for his outstanding service to the people of Florida, and praised for his skill and
competence in the legal arena. I have no doubt that this pattern of distinction will
continue once he is invested as federal judge in the Middle District of Florida.
Mr. Chairman, perhaps the best way for me to conclude is to express my unre-
served agreement with an editorial that was published in the Tampa Tribune on
January 7, 1997. I hope that the members of this Committee will share in its astute
observation: "Richard Lazzara is just the type of federal judge the country needs."
I agree, and urge his speedy confirmation.
Thank you, I ask that the full text of the Tampa Tribune editorial entitled
"Lazzara Deserves Federal Appointment" be printed in the Record following my re-
marks.
[From the Tampa Tribune, Jan. 7, 1997]
Lazzara Deserves Federal Appointment
Ask any lawyer in West Central Florida to name the best judges in the area and
Judge Richard Lazzara's name is invariably on the list.
The former circuit judge, now on the state's 2nd District Court of Appeal, is
known for his keen legal mind, his calm demeanor and his efficiently handling of
Lawyers are often awed by Lazzara's agile intellect and knowledge of the law, yet
he is a modest man without a shred of the arrogance that sometimes afflicts those
who put on judges' robes. An example of Lazzara's character and his devotion to the
law was found last spring when he took time from his lofty appeals court position
to fill in for a county judge.
So when Sen. Bob Graham recommended Lazzara for a federal judgeship last
year, it was hailed by judges and lawyers as an inspired choice. President Bill Clin-
ton, upon Graham's advice, make the nomination.
Unfortunately, the Senate did not approve the nomination during the presidential
election year. Now President Clinton must renominate Lazzara and the Senate must
approve the appointment.
We don't blame the Senate for being cautious about judicial nominations. The
country doesn't need any more liberal judges who try to set social policy from the
bench. But Lazzara, who is known for being apolitical, is not of that stripe. His ap-
proach to the law is conservative. He is interested in interpreting the law as it is,
not as he might like it to be.
Scholarly, hard-working, not given to theatrics or self-aggrandizement, Lazzara is
just the type of federal judge the country needs.
We urge President Clinton to renominate Lazzara to the federal bench and the
Senate to approve the appointment of this estimable jurist.
Senator SPECTER. Senator Mack.
STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator Mack. Senator Specter, Senator Kohl, again I thank you
for holding this hearing. I, too, am delighted to be here today to
recommend Judge Richard Lazzara for confirmation to the position
of U.S. district judge for the Middle District of Florida.
This appointment comes at a crucial time for this district. I am
going to take a moment, too, to talk a little bit about the Middle
District of Florida because it is unique, with compelling demands.
It stretches from Jacksonville to Ft. Myers and contains 7.8 million
people, more than half of the State's population. These dynamics
and the rate of growth in the State have contributed to a situation
of crisis proportions for the district.
The middle district currently has the Nation's eighth heaviest
caseload, and the chief U.S. district judge, Elizabeth Kovachevich,
has told me on numerous occasions that the current backlog is
growing at an alarming proportion, and it is for that reason that
Senator Graham and I are committed to addressing these prob-
lems.
In the meantime, the middle district is doing what it can to alle-
viate the situation. The district recently announced an intention to
hold an unprecedented accelerated civil trial calendar in June,
July, and August 1998, in which judges from the Jacksonville and
Orlando divisions will join the U.S. district judges in Tampa to as-
sist the Tampa-Ft. Myers division with their emergency case back-
log. It is clear that Judge Lazzara will be a welcome addition to
the Federal bench there.
I have heard from many people in the Florida legal community
about Judge Lazzara's fitness for the Federal bench. He is highly
respected in the Tampa area, where he is currently on the State
appellate bench. The Tampa Tribune had these positive comments
on Judge Lazzara's nomination, and I quote, "The country doesn't
need any more liberal judges who try to set social policy from the
bench. But Lazzara, who is known for being apolitical, is not of the
stripe. His approach to the law is conservative." He is also viewed
by those who know him as a warm and decent man.
8
I, too, believe that he has shown himself to be a conservative ju-
rist, interpreting statutes and precedents in a strict fashion even
in situations where the outcome is not to his liking or the public's
liking. With the current and appropriate emphasis we are placing
on opposing judicial activism, Judge Lazzara appears to be the
kind of jurist we should enthusiastically confirm. I would also like
to note that back in 1992, my own judicial advisory commission
recommended Judge Lazzara for nomination to the Federal bench.
I want to thank the committee for providing me with the oppor-
tunity to introduce Judge Lazzara. I know that Senator Graham
and I both appreciate the timely consideration which has been
given to other Florida judicial nominees in this Congress, and ask
that in light of the compelling demands upon the Middle District
of Florida, Judge Lazzara be confirmed swiftly by the committee
and the full Senate.
I thank you, Mr. Chairman.
Senator Specter. Well, thank you very much. Senator Mack.
[The prepared statement of Senator Mack follows:]
Prepared Statement of Senator Connie Mack
Mr. Chairman, I am delighted to be here today to recommend Judge Richard
Lazzara for confirmation to the position of United States District Judge for the Mid-
dle District of Florida. This appointment comes at a critical time for this district.
The Middle District of Florida is a unique one with compelling demands. It
stretches from Jacksonville to Ft. Myers and contains 7.8 million people — more than
half of the state's population. These dynamics and the rate of growth in the state
have contributed to a situation of crisis proportions for this district. The Middle Dis-
trict currently has the nation's eighth heaviest caseload, and Chief U.S. District
Judge Elizabeth Kovachevich has told me on numerous occasions that the current
backlog is growing at an alarming proportion. It is a problem Senator Graham and
I are committed to addressing.
In the meantime, the Middle District is doing what it can to alleviate the situa-
tion. The District recently announced an intention to hold an unprecedented acceler-
ated civil trial calendar in June, July and August of 1998 in which judges from the
Jacksonville and Orlando divisions will join the U.S. District judges in Tampa to
assist the Tampa/Ft. Myers division with their emergency case backlog. It is clear
that Judge Lazzara will be a welcome addition to the federal bench there.
I have heard from many people in the Florida legal community about Judge
Lazzara's fitness for the federal bench. He is highly respected in the Tampa area
where he is currently on the state appellate bench. The Tampa Tribune had these
positive comments on Judge Lazzara's nomination: "The country doesn't need any
more liberal judges who try to set social policy from the bench. But Lazzara, who
is known for being apolitical, is not of that stripe. His approach to the law is con-
servative." He is also viewed by those who know him as a warm and decent man.
I, too, believe that he has shown himself to be a conservative jurist — interpreting
statutes and precedents in a strict fashion even in situations where the outcome is
not to his liking or the public's liking. With the current, and appropriate, emphasis
we are placing upon opposing judicial activism. Judge Lazzara appears to be the
kind of jurist we should enthusiastically confirm.
I would also like to note that back in 1992 my own Judicial Advisory Commission
recommended Judge Lazzara for nomination to the federal bench. I want to thank
the Committee for providing me the opportunity to introduce Judge Lazzara. I know
that Senator Graham and I both appreciate the timely consideration which has been
given to other Florida judicial nominees by this Congress, and ask that, in light of
the compelling demands upon the Middle District of Florida, Judge Lazzara be con-
firmed swiftly by this Committee and the full Senate. Thank you.
Senator Specter. We will move as expeditiously as possible. I
have a very high regard for the work of the Federal judiciary. I
have been a practicing lawyer all my life; I consider that up to the
moment. I know how important that processing is and we will work
to accomplish that.
I want to note the presence of Staff Director Manus Cooney today
and I want to thank him personally for expediting the process.
When the nominations came in as to the — thank you very much,
Senator Mack and Senator Graham. I know Senator Mack is
straining at the starting point for the next race and I know how
busy you are, so we appreciate your being here.
Senator Mack. Thank you.
Senator Specter. I was saying I want to thank Mr. Cooney espe-
cially. After the nominations were submitted, he and I talked on
a number of occasions in the month of August and it has not been
easy to have these set up during the first week back from recess.
So we thank you, Mr. Cooney.
Senator Santorum had wanted to be here, but is in Pittsburgh
today on family business and he sends his regrets. I know that he
is very supportive of the Pennsylvania nominees who are here.
At this time, I would like to ask Judge Rendell to step forward,
please.
While you are standing, judge, will you raise your right hand? Do
you solemnly swear that the testimony you are about to give in this
proceeding will be the truth, the whole truth and nothing but the
truth, so help you God?
Judge Rendell. I do.
Senator Specter. It is a pleasure to welcome you here. Judge
Rendell. You have an outstanding record as a district court judge,
in the practice of law, and an outstanding academic record, grad-
uating from the Villanova Law School in 1973 and Phi Beta Kappa
from the University of Pennsylvania in 1969.
On a personal note, so that my own bias will be known, I have
known Judge Rendell since she was a college student and she
dated Ed Rendell, who then had the lofty position of assistant dis-
trict attorney in Philadelphia and now is the mayor of Philadel-
phia, America's mayor as well.
Judge Rendell, we welcome you here.
TESTIMONY OF MARJORIE O. RENDELL, OF FENNSYLVANLV,
TO BE U.S. CIRCUIT JUDGE FOR THE THIRD CIRCUIT
Judge Rendell. Thank you, Senator.
Senator Specter. Would you care to make any opening state-
ment?
Judge Rendell. I would like to have the record reflect those
members of my family who are present with me.
Senator Specter. If you would introduce them, we would appre-
ciate it.
Judge Rendell. Yes. My immediate family — my husband, Ed
Rendell, is on his way. The vagaries of the Metroliner probably
have affected his being here, but I know he was on the 7 a.m. or
whatever.
From my immediate family, our son Jesse, who was here the last
time I had a hearing, is in his second day of his senior year in high
school, so he is tending to his educational duties.
I am pleased to have my chambers family here; my secretary,
Beth Cummings, who has been with me for 15 years; my past,
former law clerk, Cheryl Solomon, who is now with a law firm here
in Washington; and my current law clerks, Adam Levin, who grad-
10
uated from NYU Law School, as well as Alison Conn, a graduate
of Yale Law School. They have just started their tenure with me,
so I am very pleased to have them.
Senator Specter. If you would all stand, we would appreciate it.
[The persons stood.]
Senator Specter. Thank you all very much.
Judge Rendell. Thank you. Senator, and in addition to that, I
would just like to say I am extremely pleased and honored to be
here and am thankful to the committee for having this hearing.
Senator Specter. I should say. Judge Rendell, that your nomina-
tion has been pending for some time, unlike the district court nomi-
nees, and we will not burden the record with the reasons why. We
are just glad to have you here today and move the process.
Judge Rendell. Thank you.
QUESTIONING BY SENATOR SPECTER
Senator Specter. We are on a tight time schedule, which is cus-
tomary around here. We have a vote scheduled at 9:50 this morn-
ing, and the Governmental Affairs Committee is going to start
hearings at 10 and I am on that committee and early up on a
round of questioning. But I know we have sufficient time to com-
plete our work, but we will move expeditiously.
Judge Rendell, are you committed to faithfully following the Su-
preme Court precedent and the rulings of other superior courts in
your legal decisions?
Judge Rendell. Yes, I am, Senator.
Senator Specter. If you are presented with a case of first im-
pression, what principles will guide you or what methods will you
employ in deciding that case?
Judge Rendell. If the case involves an issue of statutory inter-
pretation, I would look first to the statute and to its plain meaning.
Obviously, statutes are presumed to be constitutional in the first
instance. And if the meaning were not plain, if there were ambigu-
ity, I would look then to the legislative history to try to divine the
legislative intent, knowing full well, however, that sometimes that
can be misleading. So, that would involve some careful scrutiny.
If the matter were a matter of interpreting the Constitution, I
would look again to the text of the Constitution and to the histori-
cal perspective and background of it. And in all instances, I would
look at other precedent, or if not precedent, other cases, analogous
cases decided by the Supreme Court or fellow circuit courts for
guidance in how to make the determination.
Senator Specter. Could you cite any Supreme Court opinion
which you think is particularly well reasoned?
Judge Rendell. I think the Dalbert case that has to do with ex-
pert evidence is very well reasoned and has been of great help to
the trial courts in helping us determine the reliability of expert
opinion which I think is becoming increasingly important. And
Dalbert is well reasoned in that it lays out tests clearly for us to
follow, so I would cite that case.
Senator Specter. Can you point to any case or specific areas of
constitutional law where you think the Supreme Court improperly
departed from the principles of the Constitution?
11
Judge Rendell. Well, I guess I would make the judgment of that
kind of case where the Supreme Court itself has made a judgment
that it has erred rather than myself presuming to say they were
wrong and, for instance, Plessy v. Ferguson would be a case that
I would say fits that description.
Senator SPECTER. Judge Rendell, if you believed the Supreme
Court had seriously erred in rendering a decision, how would you
handle that in applying that law to a case pending before you?
Judge Rendell. I would apply the Supreme Court precedent.
That is the law of the land.
Senator Specter. What is your judgment on the constitutionality
of the death penalty?
Judge Rendell. The Supreme Court has held it constitutional
and I will follow that in my decisionmaking.
Senator Specter. Have you had any death penalty cases come
before you as a district court judge?
Judge Rendell. I have had the trial of a case that was being
prosecuted as a death penalty case under the crime bill, and I con-
vened a jury and we were in the midst of a trial when the matter
was pled, a guilty plea. So I was embarking upon, in fact, the first
death penalty case in our district. That was last fall.
Senator Specter. Do you have any conscientious scruples which
would inhibit or prevent you from imposing or upholding the death
penalty?
Judge Rendell. No, I do not. Senator.
Senator Specter. Do you believe it is appropriate for the Amer-
ican Bar Association to take stands on political issues such as abor-
tion, affirmative action, gun control?
Judge Rendell. I guess the appropriateness of the activities of
any group would depend upon its mission. I am not personally fa-
miliar with the mission of the ABA.
Senator Specter. Have you been a member of the ABA?
Judge Rendell. I have in the past. I am not currently. When I
was in practice, in commercial practice, I found it helpful to receive
their publications, but I have never been active. I think it is dif-
ficult, if they are purporting to speak on behalf of all of the bar,
for them to be taking positions on one side or the other of an issue.
Senator Specter. I am not sure about the appropriateness of
that question, but it is part of the boilerplate.
Judge Rendell. Yes.
Senator Specter. Since you are a friend and since I am presid-
ing, I am going to ask you all the boilerplate questions.
Judge Rendell. I didn't address it from the standpoint of ethics
and obviously these are — I don't have any such cases before me.
This hasn't come before me.
Senator SPECTER. I have a lot of views on the ABA, but I don't
know that they would qualify or disqualify me for anything.
On the subject of judicial activism, we always take up this ques-
tion, and with all the preparation, I don't know that it is possible
for a nominee to give an inappropriate answer. Would you care to
comment about the doctrine of judicial activism?
Judge Rendell. I believe that a judge should decide the case be-
fore him or her, the issues before him or her, and not stray from
that. And I think my record on the district court shows that that
12
is what I do do. I believe it is inappropriate for a judge to go be-
yond that, in Hght of the separation of powers. Our duty is to en-
force and interpret the law and not to legislate. I happen to believe
that and try to act accordingly.
Senator Specter. In one of my early sessions on the Judiciary
Committee, Senator Thurmond, then chairman, asked a nominee a
question: if you are confirmed, do you promise to be courteous? And
I was amazed at the question because what was a nominee to say
except yes. There were two nominees from Pennsylvania, Judge
Mansman, who is now on the circuit court, and Judge Caldwell,
and they both said yes.
Senator Thurmond said, the more power a person has, the more
courteous the person should be. And as I reflected on that, that is
as wise a comment as I have heard in this room. The competition
hasn't been too heavy for wise comments in this room. But that is
really important, and I say it only once to the nominees who are
here on the importance of courtesy.
I have seen in my experience in the courtroom, and I have had
a fair amount of it, a tremendous amount of conduct which is ex-
cessive by judges once they put on the robes — just really, really ex-
cessive. Once you are a judge, you are there. Some of us think a
constitutional amendment might be in order to have Federal judges
run every 6 years and, of course, to have Senators serve for life.
[Laughter.!
But I say with great seriousness the import of Senator Thur-
mond's admonition that you really ought to keep in mind when liti-
gants and parties are before you that you ought to consider your-
self as if they are really before the public and almost up for elec-
tion, to have your comments judged and your demeanor regarded
as if that were on the line.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Senator SPECTER. We have been joined, obviously, here by our
very distinguished colleague, former chairman of this committee,
former ranking member of this committee.
Senator BiDEN. Former everything, but go right ahead. Senator.
Senator Specter. And current guru of this committee.
Senator Kohl.
QUESTIONING BY SENATOR KOHL
Senator Kohl. I will be brief. Judge Rendell. In your opinion,
what are the most important decisions of the Supreme Court in the
20th century — the most important three decisions, and why?
Judge Rendell. I believe that in terms of changing the law and
setting precedent that will guide us — in the criminal area, I would
have to say Miranda is one which is important in terms of chang-
ing the thinking or the balance, if you will, in criminal law in a
way unlike it was the first half of this century.
Brown v. Board of Education obviously made a radical change in
our thinking at a time when the Supreme Court felt it was called
for. And the third area — I am trying to think of different areas of
the law — again, I get back to Dalbert and the way we conduct our
civil cases. So often, civil cases come before us with experts or pre-
sumed experts, and I think Dalbert will make a big change in the
13
law in terms of cases that do and do not proceed to trial based
upon the reliability of experts.
Senator Kohl. Thank you. Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Kohl.
Senator Sessions.
QUESTIONING BY SENATOR SESSIONS
Senator SESSIONS. Mr. Chairman, I think Pennsylvania and the
three nominees that we are seeing here from the State appear to
have exceptional qualifications and appear to be the kind of nomi-
nees that will do an outstanding job as Federal judges.
I congratulate you and Senator Santorum and the President for
nominees that appear to be skilled and capable with good experi-
ence. You are to be congratulated. I knov/ you have worked hard
in trying to have the kind of judges that we need in America.
Good-quality judging is important. I take it very seriously. My
staff and I look at nominees and give it some thought. It is a life-
time appointment. Courtesy, fidelity to the law, hard work, and
case management are the cornerstones of a good Federal judge. I
have practiced full time before Federal judges for 15 years, and a
good judge makes it a pleasure to be in court and a bad judge can
make it a nightmare, or give you nightmares worrying about what
is going to happen the next day.
I think these nominees appear to be the kind of nominees that
will serve the Nation well. I do have another committee hearing to
attend. I also think the nominee from Florida, Mr. Lazzara — both
Senator Graham and Connie Mack are confident in his abilities,
and his background appears to be excellent, too.
So I think it is a good group of nominees and I expect to support
them.
Senator Specter. Thank you very much. Senator Sessions.
We have been joined by Mayor Rendell this morning. I under-
stand he is here. Welcome, Mayor Rendell.
Senator BiDEN. Good thing he is not the nominee. [Laughter.]
Senator Specter. Do you think the cross might be a little more
extensive?
I am pleased to call on now our distinguished colleague. Senator
Biden.
QUESTIONING BY SENATOR BIDEN
Senator Biden. Mr. Chairman, I am completely objective in this
nomination. The fact that the judge is bright, well educated, hon-
est, balanced, and conscientious, has nothing to do with the fact
that I have known her since I have been in high school. She is ex-
tremely qualified for this job. She will be a great addition to the
third circuit, which has one of the most distinguished reputations
of all the circuits in the history of the United States of America.
Some truly great jurists have served on that court.
Midge, as a judge, you will be taking a place where others have
sat who have literally changed the face of America for the better,
and I think you deserve to be there. I should ask you questions and
pretend I am interested in your answers. I know you too well. I
have too much respect for you, and I am completely confident in
14
your ability to not only be a sound jurist, but to be a truly great
one.
My one regret and I am sure it is yours, too, is that your dad
is not here. He would be, and is, extremely, extremely proud of you.
Judge Rendell. Thank you.
Senator BiDEN. I still can't figure out why you married a guy
fi-om New York, but I guess in time we will work that one out. I
welcome the mayor as well. I think, quite frankly, judge, you have
the better job. Clearly, the job security is better, and I think the
decisions, although difficult, may be even easier to make.
I am excited about your nomination.
Judge Rendell. Thank you. Senator.
Senator BiDEN. And I compliment you, Senator Specter, for push-
ing the nomination. You know, everybody thinks that bipartisan-
ship is dead in this country. In a lot of places, it is not.
I must say, Mr. Chairman, you have also recommended to the
President three other nominees. I am very regretful that one is not
here today for the western district. I hope it is not petulance that
is keeping that from occurring because he is as qualified as the oth-
ers that are here today.
With the exception of the circuit judge, I must tell you, Mr.
Chairman, and tell the other judges, including Mr. Kauffman,
whom I know and think is a great appointment as well, that a lot
is going to depend, from this Senator's standpoint, on what hap-
pens to the judge from the Western District as to how — at any rate,
that is for another time and another fight and it is unrelated to you
directly and unrelated to Judge Rendell.
I am excited about it. Midge, and I tell you I think it is wonder-
ful. Congratulations. I look forward to watching from afar your con-
tinued distinguished career.
Judge Rendell. Thank you, Senator. I am honored and humbled
by your remarks. Thank you.
Senator Specter. Thank you very much. Senator Biden. I had
commented about Mr. Bingler earlier, John Bingler, and had said
that he had been nominated and hoped that we would have him
before this committee soon and that that was in process. I did not
give any further explanation, but
Senator BiDEN. By the way, I want to make it clear for the
record that ever3^hing in my experience, knowing you for a couple
of decades now — everything you have ever said, you have done, and
I have absolute, complete confidence that you are trying your best
to make sure Mr. Bingler gets before this committee. I appreciate
that very much and I will pursue that with you.
Senator Specter. Thank you very much, and the reason that
Judge Rendell married a New Yorker was because he had a very
important position. He was assistant district attorney in Philadel-
phia.
Judge Rendell. For one Arlen Specter, who was then the district
attorney, I might add.
Senator Specter. We have had a lot of fun over the years.
Thank you very much, Judge Rendell. I think that your con-
firmation is as close to being assured as anything can be. Thank
you for coming.
15
Judge Rendell. Thank you, Senator, and thank you again for
convening this hearing.
Senator Specter. Thank you.
We will now call the district court nominees together to speed
the process just a little. If you would all step forward, Justice
Kauffman, Judge Lazzara, and Mr. Caputo, and raise your right
hands, do you solemnly swear that the testimony you will give in
this proceeding will be the truth, the whole truth and nothing but
the truth, so help you God?
Mr. Kauffman. I do.
Judge Lazzara. I do.
Mr. Caputo. I do.
Senator BiDEN. Mr. Chairman, before you begin, may I clarify
the record? I referred to a circuit court nominee. I want the record
to show that I have known her since high school. We go back all
the way to high school; we have been friends for years. Thank you
very much, Mr. Chairman.
QUESTIONING BY SENATOR SPECTER
Senator Specter. Thank you very much, Senator Biden.
Let us begin with former justice Kauffman, who brings to this
position an outstanding record, having served on the Supreme
Court of Pennsylvania; an outstanding record as a litigator; an out-
standing academic record from the University of Pennsylvania and
Yale Law School. He couldn't have made two better selections be-
cause they are the same as mine.
Mr. Kauffman, are you committed to faithfully following Su-
preme Court precedents and the court of appeals for your district?
TESTIMONY OF BRUCE W. KAUFFMAN, OF PENNSYLVANIA, TO
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
Mr. Kauffman. Yes, Senator, I am.
Senator Specter. If you are presented with a case of first im-
pression, what principles will guide you in deciding the case?
Mr. Kauffman. The principles of recognizing that a statute is
presumed to be constitutional; that it is the role of the courts not
to legislate, but to enforce the law, and therefore we search for
precedents that will help us interpret an ambiguous, if a statute
were to be ambiguous. And, finally, we look at legislative history,
if need be, but I repeat what was said earlier today that legislative
history sometimes can be very dangerous because it may be only
the opinion of one Member of the Congress, and therefore you have
to carefully scrutinize legislative history. Hopefully, the presum^p-
tion of constitutionality of the statute will
Senator Specter. Can you cite any specific Supreme Court opin-
ion which you think is particularly well reasoned?
Mr. Kauffman. Yes; I think that the Adarand decision is a very
well reasoned decision.
Senator Specter. Can you cite any situation or case where you
think the Supreme Court has improperly departed from the prin-
ciples of the Constitution?
Mr. Kauffman. Yes; I think I agree with what Judge Rendell
said that you look at cases that the Supreme Court decided that
16
were improperly decided, such as Dred Scott and Plessy v. Fer-
guson.
Senator Specter. What would you do if you believed the Su-
preme Court or the court of appeals had seriously erred in render-
ing a decision? What would you do with respect to applying it to
the case before you?
Mr. Kauffman. As a Federal district judge, a trial judge, I would
be bound by the precedent of the higher courts.
Senator Specter. As to the death penalty, had you sat on death
penalty cases when you were on the Supreme Court of Pennsyl-
vania?
Mr. Kauffman. Yes; I did. Senator.
Senator Specter. Do you have any moral compunction against
the imposition of the death penalty?
Mr. Kauffman. I have no moral compunction that would prevent
me from enforcing the law.
Senator Specter. Had you been a part of the majority of the
court upholding the death penalty in cases where you sat on the
Supreme Court of Pennsylvania?
Mr. Kauffman. I don't think that the opportunity came while I
was there to actually enforce a death penalty, but there were cases
where the principle came up and I had no moral compunction
against voting to enforce the law.
Senator Specter. Well, as you say that, I reflect we didn't have
the death penalty in Pennsylvania from 1972 for a long time, but
we had had a lot of cases come up where it was imposed but wasn't
carried out.
Mr. Kauffman. Correct.
Senator Specter. We are going to skip the American Bar Asso-
ciation question in this round.
What is your view on judicial activism?
Mr. Kauffman. Senator, I believe that the tripartite system of
government that we have is excellent. It has worked. Checks and
balances are important. The job of a Federal court is not to make
the law, but to interpret the law. The job of the legislature, the
Congress, is to make the law, and I think it is very important that
Federal judges understand that and conduct themselves accord-
ingly.
Senator Specter. Justice Kauffman, you have had a very distin-
guished career and done a lot of hard work. You have had a lot of
lofty positions educationally, professionally, supreme court. You are
a big wheel. Can you make a commitment now to all those lawyers
and all those litigants come before you that you are going to keep
your temper all the time and you are going to be courteous to them
all the time?
Mr. Kauffman. Senator, yes, indeed. This is something I have
wanted to
Senator Specter. OK, because I know you pretty well and it is
not an easy commitment to keep, and I am going to ask you to
think about this when they are before you and some lawyer is ram-
bling, some litigant is not too directed, and all the temptation is
there and you have had a bad morning. Think about Senator Thur-
mond.
17
I had commented, Senator Biden, earlier about Senator Thur-
mond's comment to always be courteous.
Mr. Kauffman. I promise you, Senator, I will never forget that.
Senator BiBEN. He is a man who has never lost his temper, I can
assure you. [Laughter.]
Senator Specter. Senator Kohl.
QUESTIONING BY SENATOR KOHL
Senator Kohl. Thank you, Mr. Chairman. I will ask just one
question.
Since their inception, the Federal sentencing guidelines have
been the subject of debate. In fact, at least one district court judge
resigned because, according to press accounts, he felt that the man-
datory guidelines were too harsh and too rigid. Some appellate
judges, like Judge Easterbrook of the seventh circuit, have been
criticized for their unwillingness to allow district court judges to
depart from the sentencing guidelines, even for upward departures.
Is that a concern of yours generally, and is this an issue in the
third circuit?
Mr. Kauffman. Senator Kohl, I believe that a Federal district
judge, no matter what his personal opinion may be of sentencing
guidelines, has no choice but to follow what the law is. The Con-
gress decides that issue, and I promise you that I will very vigor-
ously enforce the laws as passed by Congress and I will not let my
personal opinion of whether sentencing guidelines are good or bad
interfere with my administration of them.
Senator KOHL. Thank you. Thank you, Mr. Chairman.
Senator Specter. Senator Biden.
questioning by senator biden
Senator BiDEN. I have one question that is going to sound like
I am not being serious at first blush. Justice Kauffman, but I am
very serious. Considering your stature and success in the law in
one of the Nation's largest cities, in a town renowned for very high-
powered lawyers, why do you want to be a district court judge?
Mr. Kauffman. Senator, this is something that I have wanted to
do all of my life. I grew up in a family where my dad was a lawyer
and a judge. Our family has always been devoted to public service.
I view this as the pinnacle of the profession and an unusual oppor-
tunity to serve the public for the rest of my life. It is something
that I want to do very much, and I have had to answer the same
question to my wife and some others, too, and believe me. Senator,
I have thought about that.
But I feel that I have been very lucky in life and that every law-
yer, and me in particular, has the obligation to give back to this
country that has been so good to all of us. And I know this sounds
like platitudes, but I sincerely mean that I feel an obligation to de-
vote the rest of my life to public service and that is what I hope,
if confirmed, I will be permitted to do.
Senator BiDEN. Well, I believe you do. I can't think of a better
reason why one should want to be a Federal judge. Thank you.
Mr. Kauffman. Thank you, Senator.
Senator Specter. Thank you, Senator Biden.
18
Justice Kauffman, would you introduce your family and friends?
I did not have a chance earlier to greet all of your friends — I didn't
see him there — but I will later.
Mr. Kauffman. Thank you, Senator. I first want to say I am
very honored, sincerely honored and grateful to be here this morn-
ing, and I do have my family and friends, both in person and by
representation.
My 89-year-old father who is in Florida is here in spirit and will
be watching this on CNN. This is something very important to him
in his life, too, and I am so happy that he is alive to see this.
My best friend and my wife is here, Carol Jackson Kauffman.
Senator Specter. Would you stand, Carol, please?
[Mrs. Kauffman stood.]
Senator Specter. Thank you.
Mr. Kauffman. My son, one of my sons, Robert Andrew
Kauffman, who is a former assistant U.S. attorney in Philadelphia,
and now a lawyer, a trial lawyer, in the distinguished firm of
Reese, Smith, Shaw, McLean in Pennsylvania — he is here rep-
resenting himself, of course, but also his brother. Brad, his sister,
Margie, and his sister, Laurie, and his sister, Christine, and my
brother, Alan, who practices law in Florida, and my grandchildren,
Stephanie and Sara. So I am very happy that Robert could be here
today, for a variety of reasons. My other children and brother and
grandchildren are not here.
Senator BiDEN. Bob, are you billing by the hour for that rep-
resentation? [Laughter.]
Mr. R. Kauffman. No, Senator.
Mr. Kauffman. I have some very — I am a lucky man. I have
some very dear friends.
Senator Specter. Justice Kauffman, may I ask you to expedite
this because we are going to have to conclude this hearing?
Mr. Kauffman. Yes; here today are some wonderful friends of
mine — Leonard Sylk, of Philadelphia; Jerome Richter, Esq., of
Philadelphia; Ken Tepper, Esq., of Philadelphia; and my partner
representing not only himself, but the firm of Dilworth, Paxson,
Kalish & Kauffman, Thomas Groshens.
I also have — and I saved him for last; he should have been first —
a marvelous friend of mine here. Congressman Robert Andrews, of
New Jersey. Well, he was here just a few moments ago.
In any event, thank you. Senator. I appreciate it very much.
Senator Specter. Thank you very much. Justice Kauffman.
One final note about Justice Kauffman's extraordinary service
with his law firm, the Dilworth firm, in representing many of us
in the navy yard litigation on base closures; I think a really re-
markable contribution.
questioning by senator specter
Senator Specter. Judge Lazzara, welcome. You bring to this
hearing a very outstanding record academically, professionally, and
as a Florida State judge. Let me begin with a central question
which has been inquired into by the committee, and that is with
respect to a murder case which you presided over where you did
not impose the death penalty after that was recommended by the
jury. That has been inquired into in detail by staff, which has
19
found your explanation satisfactory, but I think it is important for
our record here that you state your reasons for departing from the
jury's recommendation in that case.
TESTIMONY OF RICHARD A. LAZZARA, OF FLORIDA, TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Lazzara. Well, as you know, Senator, in connection with
those inquiries I have furnished a complete copy of the sentencing
transcript which reflects in detail my legal reasons for not doing so.
In Florida, the jury's recommendation as to whether to impose or
not to impose a death penalty is not binding on the trial judge.
That awesome responsibility falls on the trial judge. After review-
ing exhaustively the law of the State of Florida relating to whether
the death penalty should or should not be imposed, and after strict-
ly applying that law as it should be applied to the objective facts
that I found in the record, it was my determination that the death
penalty was not an appropriate sanction in that case. And therefore
I exercised what I believed to be and what I still believe to be good
judgment in sentencing Mr. Bailey to life imprisonment.
That was not the only case that I have had the occasion to con-
sider whether the death penalty should be imposed. There were
two others which I have noted, I believe, in my response. In those
cases, I followed the exact same approach that I followed in Mr.
Bailey's case. I strictly applied the death penalty law, as I under-
stood it, to the objective facts appearing in the record. Using that
same process in those other two cases, it was my determination
that the death penalty was the appropriate sanction.
Senator Specter. And you imposed that sentence?
Judge Lazzara. And I imposed that sentence in both cases.
Senator Specter. Do you have any conscientious scruple against
imposition of the death penalty?
Judge Lazzara. No, sir.
Senator Specter. Judge Lazzara, give us your views on judicial
activism. What is the appropriate role of a judge in that respect?
Judge Lazzara. As I understand it, a judicial activist is one who,
for their own personal reasons, consciously ignores the law and the
facts in resolving a dispute. I have never been that type of judge,
I think, as my record reflects. I don't intend to be that type of judge
as a U.S. district court judge, if I am fortunate enough to be con-
firmed. And in my view, any judge who takes that approach should
hang up the robe. If they want to legislate, they should run for the
legislature and should not be in the judicial branch of government.
Senator Specter. What would you do if you found a case from
the Supreme Court or court of appeals particularly disturbing and
sharply disagreed with it? How would you handle that in your
court?
Judge Lazzara. If it was the law of the land, binding precedent
under the basic principles of stare decisis which brings continuity
and finality to our judicial system, I must follow them. I would dis-
agree if I felt appropriate, but I would have to follow them.
Senator Specter. Can you point to any case where you think the
Supreme Court made an erroneous decision?
20
Judge Lazzara. I think Judge Rendell and former Justice
Kauffman have pretty well covered the ballpark in that area.
Plessy V. Ferguson
Senator Specter. They left out a few cases.
Judge Lazzara. Yes; Plessy v. Ferguson, of course, comes to
mind.
Senator Specter. Do you have members of your family here,
Judge Lazzara? If so, we would be pleased to have you introduce
them.
Judge Lazzara. Yes. I am pleased to have here my son, Damon
Lazzara, and his good friend and my second son, really, Mr. Daniel
Simitovich. And my wife sends her regrets for not being able to be
here.
Senator Specter. We have been joined now by Representative
Andrews. Would you stand?
[Mr. Andrews stood.]
Senator Specter. Congressman Andrews met his wife in the
course of the navy yard litigation and was a party to that, a very
distinguished legislator and public servant.
Senator Kohl.
Senator KOHL. I have no questions, Mr. Chairman.
Senator SPECTER. Senator Biden.
Senator BiDEN. I have no questions.
Senator Specter. Thank you.
Anything further you would care to say?
Judge Lazzara. I just wanted to express my appreciation to Sen-
ator Graham and Senator Mack for taking time from their busy
schedules to be here and to present me to the committee, and I ap-
preciate the committee having me here, sir.
Senator Specter. Thank you very much, judge.
We now turn to A. Richard Caputo, who also brings a very distin-
guished record to this hearing, a graduate of Brown University and
the University of Pennsylvania Law School, 1963; a JAG officer in
the Air Force; extensive public service, community activities.
Judge Caputo, welcome. Is there any opening statement you
would care to make?
TESTIMONY OF A. RICHARD CAPUTO, OF PENNSYLVANIA, TO
BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
Mr. Caputo. No, sir. I would like to introduce members of my
family.
Senator SPECTER. Please do that, yes.
Mr. Caputo. My wife, Rosemary.
Senator Specter. Would you stand, Mrs. Caputo?
[Mrs. Caputo stood.]
Mr. Caputo. My daughter, Lisa, and my son, Richard. And my
daughter, Christina, lives in Florida and was unable to make it,
and, of course, her husband, Jerry, and my son Richard's wife, Lau-
rie, and my grandson, Richard III.
Senator SPECTER. Thank you very much. It is a very beautiful
family which you have, so that I can put that on the record to be
along with Senator Biden. [Laughter.]
21
QUESTIONING BY SENATOR SPECTER
Senator SPECTER. Mr. Caputo, I am presuming twice now, but I
don't think it is an unreasonable presumption. Are you committed
to faithfully following Supreme Court precedents and the rulings of
the third circuit?
Mr. Caputo. Yes; I am, Senator.
Senator Specter. What are your views on judicial activism?
Mr. Caputo. Well, my views on judicial activism are that judges
are appointed to interpret the law, to decide controversies and
cases, and resolve grievances, not make policy and legislate. I also
would note that Federal courts are courts of limited jurisdiction
and Federal judges certainly should be mindful of that particular
facet of their function.
Senator Specter. If you had a case where you thought — well,
what Supreme Court decision would you point to, if any, that you
thought was improperly decided?
Mr. Caputo. Well, I know everyone has so far mentioned Plessy
and Dred Scott. I suppose I could add the Lochner v. New York case
involving
Senator Specter. What were the facts in that case. Justice
Kauffman?
Mr. Caputo. Well, I don't really — you asked Mr.
Senator Specter. The facts in Lochner?
Mr. Kauffman. The facts in Lochner? That was where the —
Senator Specter. You don't have to answer that. [Laughter.]
Senator BiDEN. You are not required to answer the question.
Senator Specter. I just wanted to know if you were listening. Mr.
Caputo was starting to answer it for you.
Do you have any compunction against the death penalty, Mr.
Caputo?
Mr. Caputo. No, sir, I do not.
Senator Specter. What kind of cases have you handled generally
in the practice of law?
Mr. Caputo. I have handled most — all kinds of cases. My prac-
tice has been fairly general.
Senator Specter. Have you had some criminal cases?
Mr. Caputo. I have, not many.
Senator Specter. Ever represented a defendant in a capital
case?
Mr. Caputo. No, I have not.
Senator SPECTER. Why do you want to be a Federal judge?
Mr. Caputo. I think in many respects, as Judge Kauffman said,
it is something I have wanted to do all my life. I feel like I have
trained for it my entire career, and I think I have reached the point
of experience and temperament that qualifies me at this point in
my life to do it. I think it is one of the highest callings we can have
in our profession, and I feel as though I am ready and I would like
to do some public service at this point in my life.
I enjoy a reputation for competence and integrity. I am willing
to work hard and I am a good listener, and I think that is what
a judge has to do, listen and decide, and I am prepared to do that.
22
Senator Specter. You heard my question to Justice Kauffman,
and you also, Judge Lazzara, about being courteous at all times.
Are you ready to make that commitment to this committee?
Mr. Caputo. Absolutely, I am, sir.
Senator Specter. Senator Kohl.
QUESTIONING BY SENATOR KOHL
Senator KOHL. Just one question. I noticed that no one this
morning mentioned among the most important Supreme Court de-
cisions Roe V. Wade. Do you have a comment on that?
Mr. Caputo. I really can't comment on that in any way except
that it is the law and, if called upon, I would follow it.
Senator KOHL. Thank you.
Senator Specter. Senator Biden.
Senator Biden. I want a commitment, judge, that you will be
particularly mindful of litigants from Scranton, PA. That is my
hometown. Scranton doesn't get paid attention to enough. I just
want you to know that.
Mr. Caputo. Yes, sir. You have my commitment.
Senator Biden. All right, good. Just so long as they are treated
fairly, I have no question.
I suspect the reason why none of you mentioned Roe, although
all of you probably in your hearts know it is probably one of the
most significant decisions, whether you agreed with it or not, is be-
cause you have all been attuned to make sure not to mention Roe
because you know that is a flash point, the one thing that will get
everyone's interest. I kind of wish one of you had, but I think that
is the reason. You have all had significant legal experience, and so
I am sure your good judgment and wisdom prevailed upon you not
to suggest Roe as one of the decisions. At any rate, a wise decision,
I might add.
I thank you very much, Mr. Chairman.
Senator Specter. Thank you. Senator Biden.
Thank you all.
At this point we will place into the record a statement submitted
by Senator Santorum.
[The prepared statement of Senator Santorum follows:]
Prepared Statement of Hon. Rick Santorum, a U.S. Senator From the State
OF Pennsylvania
Mr. Chairman, thank you for accepting this testimony in strong support of the
nominations of Judge Marjorie Rendell, Justice Bruce Kauffman, and Mr. Richard
Caputo, who are appearing before you today.
I regret that I will be unable to appear before the Committee today. A family com-
mitment in Pittsburgh will keep me in Pennsylvania throughout the day. Nonethe-
less, I wish to provide for the record this statement as a means of expressing my
support for these nominees.
Judge Rendell has an impressive record of service on the bench of the U.S. Dis-
trict Court for the Eastern District of Pennsylvania. Having had the opportunity to
review many of her rulings, I am confident that the Third Circuit will benefit from
her skills and experience. Further, her rulings reflect a well grounded, common
sense understanding of the law and the adjudicatory role of judges. For instance,
in United States v. Roberson, 1995 WL 314714 (E.D. Pa., May 17, 1995), Judge
Rendell rightly held that evidence of drug dealing was admissible because the police
had probable cause to stop the defendant after receiving a call regarding the defend-
ant selling drugs.
The Committee should also take note of Judge Rendell's active involvement in
many charitable and nonprofit organizations throughout southeastern Pennsylvania.
23
Whether it is the University of Pennsylvania, the Visiting Nurse Association, or
Philadelphia's Avenue of the Arts, her volunteer efforts have contributed to the
quality of life in our Commonwealth for over twenty years. I believe this work re-
flects her deep commitment to the people whom her decisions on the bench will af-
fect.
Justice Kauffman has practiced law in Philadelphia for over thirty-five years. He
has provided the committee with extensive information on his rich and varied expe-
riences before numerous courts in the Commonwealth of Pennsylvania. In reviewing
his background, I noted his determination and effective representation of the City
of Philadelphia and others in attempting to keep the Philadelphia Naval Shipyard
open. Such pro bono work indicates Justice Kauffman's dedication to the law and
interest in the well being of the people of southeastern Pennsylvania.
As you know, Justice Kauffman has also served as a Justice on the Supreme
Court of Pennsylvania. I have had the opportunity to review many of his rulings.
His work clearly reflects a deep understanding of the many demands faced by one
serving on a judicial bench. I am confident that the Committee will agree that the
Eastern District of Pennsylvania will greatly benefit from Justice Kauffman's intel-
lect, character, and experience.
As with the other nominees, Mr. Richaird Caputo will bring a wealth of experience
to the federal bench. For over thirty years, Mr. Caputo has practiced law in a wide
range of fields, including Special Courts-martial in the Air Force, state and federal
criminal trials, and extensive civil litigation. I believe the Committee should take
special note of Mr. Caputo's contributions as a public servant. I include in this de-
scription both his service in the United States Air Force and his work as a public
defender for Luzerne County, Pennsylvania. His interest in returning to such serv-
ice as a judge for the U.S. District Court for the Eastern District of Pennsylvania
reflects his deep commitment to the people of our Commonwealth.
Mr. Caputo's experiences have shaped a career uniquely suited for future work
on the federal bench. For instance, in Commonwealth of PA v. Chas. S. Grucella,
Criminal No. 1343 of 1967, (Luzerne County Court of Common Pleas), 58 Luz. L.Reg.
137, 59 D&C 2d 610 (1967), Mr. Caputo argued that former Public Defenders who
later worked for the District Attorney should be precluded from prosecuting defend-
ants who were former clients. I believe this experience provided Mr. Caputo with
a deep appreciation for prosecutorial powers, the balance of powers, the appearance
of conflict of interest, and the public interest as a whole. Bringing this appreciation
to the federal bench will enhance the already high reputation of the Middle District
of Pennsylvania.
Mr. Chairman, thank you again for accepting this statement. I look forward to
aiding the Committee as it reviews these nominations, and I expect to ultimately
see these nominations pass overwhelmingly before the full Senate.
Senator Specter. These hearings are not as elongated as people
might suppose. I know when nominees come, they are concerned,
as is obvious. There has been a very thorough investigation. Sen-
ator Santorum and I have a judicial nominating commission which
has gone over the records in detail, and then there is an American
Bar Association review and there is an FBI review. There has been
a lot of examination.
Unless it is a Supreme Court nomination or a contested nomina-
tion for some reason, these hearings do not draw many of the Sen-
ators. And we try not to have them pro forma, but you have al-
ready submitted answers to many, many questions which have
been reviewed in great detail. So it ought to be said briefly that
there has been a very thorough examination of your records and
qualifications.
You undertake an enormously important job, and my view is that
the third branch of Government — ^you are article III in the Con-
stitution, but the Federal judiciary changed that in Marbury v.
Madison and you are now No. 1. You are independent, you are in-
defatigable, and you render decisions which have really been the
pillar of America, in my opinion.
We are constrained here and at the White House by many, many
considerations. You take up these cases, and you take them up one
24
by one and give a kind of hearing and airing. The Federal judiciary
is the cornerstone of our society, in my opinion. You have a very,
very heavy responsibiUty, and be courteous.
Thank you. That concludes our hearing.
[Whereupon, at 9:57 a.m., the committee was adjourned.]
[Submissions for the record follow:]
25
SUBMISSIONS FOR THE RECORD
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name: (include any former names used) .
Marjorie 0. Rendell (nee Marjorie May Osterlund)
2. Address : List current place of residence and office
address (es) .
Chambers: United States District Court
601 Market Street, Room 3114
Philadelphia, PA 19106
3 . Date and place of birth.
December 20, 1947
Wilmington, DE
4. Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Spouse: Hon. Edward G. Rendell
Mayor, City of Philadelphia
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 (9/65 - 5/69)
B.A., 1969
Dean's List
Graduated cum laude
Georgetown University Law Center (9/70 - 5/71)
1970-71 (transferred to Villanova upon marriage)
Invited to join Law Journal and Criminal Law
Review; declined due to transfer to Villanova
Villanova School of Law (9/71 - 5/73)
J.D., 1973
26
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.
Employment
1969-1970 University of Pennsylvania
3451 Walnut Street
Philadelphia, PA 19104
Annual Giving - Development Department
(Fundraising)
1972-1994 Duane, Morris & Heckscher
Summer 1972 - Summer clerk
1972-1973 - Part-time
1973-1981 - Full-time associate
1981-1994 - Partner
1994 -present United States District Court
601 Market Street, Room 3114
Philadelphia, PA 19106
Other (Boards)
1973-1978
Philadelphia Bar Association
Board of Directors, Young Lawyers
Section
Late 1970s-
1994
1978-1994
University of Pennsylvania
(various advisory boards)
Visiting Nurse Association
of Greater Philadelphia
Visiting Nurse Society
Late 1980s-
1994
1992-1994
East Falls Advisory Board of
Chestnut Hill National Bank
Pennsylvania's Campaign for Choice
Academy of Vocal Arts
Market Street East Improvement Association
Philadelphia Bar Foundation
Philadelphia Friends of Outward Bound
1992-Present Avenue of the Arts, Inc. (Vice-Chair)
SomU Judidary
27
1995-Present University of Pennsylvania
{Board of Trustees)
University of Pennsylvania College of
Arts and Sciences
(Board of Overseers)
♦NOTE: I resigned from most of the above boards upon assuming
the bench. I presently serve only on the boards of
trustees of Avenue of the Arts, Inc. and the University
of Pennsylvania, and on the Board of Overseers of the
College of Arts and Sciences.
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.
No 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.
Phi Beta Kappa
Philadelphia College of Textile and Science
Doctor of Laws - Honorary Degree awarded in May 1992
Fellow, American College of Bankruptcy, 1996
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 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, 1992-94)*
Alternative Dispute Resolution Committee
of the Eastern District Bankruptcy Conference
Mediation Division*
The Historical Society of the United States District
Court for the Eastern District of Pennsylvania
Federal Judges Association
American Judicature Society
National Association of Women Judges
American College of Bankruptcy
* formerly
ScnHte JudklHf7 - 3 -
28
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 organizations:
Board Memberships
Avenue of the Arts, Inc. (Vice-Chair)
University of ' Pennsylvania
Board of Trustees
Board of Overseers
of College of Arts and Sciences
Women's Associations
International Women's Forum
University of Pennsylvania
Trustees' Council of Penn Women
Other
Vesper New Years Association - Vesper Club (eating club) ;
copy of by-laws provided herewith.
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 Pennsylvania (11/15/73)
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)
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.
Published Writings:
Contributing author of seminar materials published in
connection with above-mentioned annual seminar
presentations; drafted sections on Secured Creditor
29
claims and Adequate Protection in all editions. The most
recent editions are:
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 Law: 1989; A 1990 Annual (Eighth Annual
Seminar) (249 pps.)
Duane, Morris & Heckscher
Copyright 1990 Aspen Publishers, Inc.
Developments in Reorganization and Commercial
Finance Law -- 1988 and 1989 (Seventh Annual
Seminar) (181 pps.)
Duane, Morris & Heckscher
Reorganization and Finance Section
Copyright 1989 Duane, Morris & Heckscher
Speeches on issues involving constitutional law or legal
policy
11/29/95 - Villanova University School of Law
Nineteenth Annual Donald A. Giannella Memorial
Lecture. Published in Villanova Law Review-.
Honorable Marjorie 0. Rendell, "What is the Role of
the Judge in Our Litigious Society?," 40 Vill. L.
Rev. 1115 (1995) .
Copies of each of the foregoing published writings have been
provided herewith.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent; 12/15/95.
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.
Judge, United States District Court
for the Eastern District of Pennsylvania
Appointed by President Clinton on February 11, 1994
Jurisdiction: Complete original federal civil and
criminal jurisdiction.
30
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) See attached Exhibit A.
(2) My decision in United States v. Roberson. 1995 WL
314714 (E.D. Pa., May 17, 1995), rev'd 90 F.3d 75
(3d Cir. 1996) , was reversed by the United States
Court of Appeals for the Third Circuit. I had
refused to suppress evidence obtained by the police
as a result of a call radioed to the police
regarding an individual selling drugs at a certain
location. The Third Circuit reversed the
conviction, finding that the informant lacked
reliability, detracting from the probable cause
necessary for a stop of the defendant.
(3) U.S. V. Tidwell (94-CR-353); 12/22/95.
Copy of opinion provided herewith.
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.
Committeewoman for the Republican Party,
30th Ward, 20th Division, from 1972-1976.
Elected position.
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 clerkship.
2. whether you practiced alone, and if so, the
addresses and dates;
No solo practice.
■^
31
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;
I began at the law firm of Duane, Morris &
Heckscher as a summer clerk in 1972; upon
graduation I became an associate, and in 1981, a
partner. I left Duane, Morris & Heckscher to
assume my current position as judge of the U.S.
District Court. The firm's address is:
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396
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?
I spent 20 years litigating and negotiating
financial and legal interests in the area of
creditors' rights and commercial litigation in and
out of state courts, federal district courts, and
especially in the various United States bankruptcy
courts .
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My clients included individual debtors and
creditors, small to medium-size corporations and
partnerships, and banks and insurance companies of
local and national stature, with the subject matter
ranging from a chapter 13 restructuring of an
individual wage earner to complex restructuring of
major companies. In the course of representing
these clients, I litigated many issues, many of
which were adversary proceedings in bankruptcy
court or contract claims in state or federal trial
courts. While my practice was varied, I
specialized in representing secured creditors,
primarily banks and insurance companies, whose
borrowers found themselves in financial distress.
As a result, I specialized in, and litigated, all
areas of secured creditors' rights, including but
not limited to: perfection of security interests,
exercise of remedies in satisfaction of judgments,
rights of secured creditors under bankruptcy and
chapter 11 provisions, including rights under, and
treatment under, plans of reorganization, lender
liability, as well as preference and fraudulent
conveyance issues. Other significant legal
-7
32
activities included extensive negotiation of rights
of various parties in contract disputes and in
formal creditor workouts and chapter H
proceedings, including negotiation of complex
restructurings on behalf of bank groups and
subordinated debenture holders .
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 the records of my practice since
1988, I found that the number of court
appearances changed radically in 1992 and
1993. My husband became Mayor of the City of
Philadelphia in January of 1992, and I
delegated many of the court appearances on my
cases 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 in
indebtedness; the firm 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 Section) delegated much of
the commercial litigation to a special group
of attorneys in our Litigation Department who
routinely did 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 amy given year
on matters in which the firm represented the
major secured creditor of a con^euiy 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 the firm 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 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
33
appeared in court very regularly, perhaps as
many as two to three days per week.
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 you tried to verdict
or judgment (rather than settled) in courts of
record, indicating whether you were sole
counsel, chief counsel, or associate counsel.
My experience prior to assuming the bench was
primarily in the bankruptcy courts in which a
chapter 11 case was pending. Many contested
matters and adversary proceedings are brought
before the court by way of complaint or
motion, heard by the court without a jury,
following the Federal Rules of Civil Procedure
(made applicable by the Federal Rules of
Bankruptcy Procedure) , as well as the Federal
Rules of Evidence, usually in hearings lasting
from one to three days. It is difficult to
state "cases" that were "tried to verdict or
judgment" because, in each instance, the
matters involved hearings on fraudulent
conveyances, relief from stay, preference
ScnHte Judiciary
34
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 handled my own
cases and, except in a few instances in which
I was assisted by an associate, I have been
the sole and chief counsel in matters I have
handled. I have appeared in and litigated
more than 35 bankruptcy matters.
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 name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other
parties .
See attached Exhibit B.
19. Legal Activities: Describe the most sicpiificant 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 1975 I joined with a then-partner, David Sykes,
to form a bankruptcy practice of two attorneys in
our firm (then approximately 50 attorneys) , and
started working for a new bank client. At the time
that I left the firm, that client was one of the
firm's major clients (perhaps second or third in
overall annual billings) . I was active in
representing that bank, primarily as a secured
10-
35
creditor in workout and bankruptcy matters, for 18
years in matters involving anywhere from $300,000
to $80,000,000 in debt. During that time the firm
grew to 205 attorneys, the reorganization section
to 22 attorneys, and the client grew from a small
bank in a community outside of Philadelphia to a
major banking force in Philadelphia. I consulted
actively with this client on complex strategic
matters involving potential lender liability claims
and commercial litigation, and I was one of their
primary attorneys of choice on difficult issues
which required special legal and perceptive skills
in situations involving borrowers, participating
banks, or parties with whom they have sophisticated
commercial relationships.
At the same time, I represented other single-entity clients,
banks, insurance companies, debtors, etc., in bankruptcy
matters and commercial litigation.
From about 1985, my practice expanded to include
representation of debtors, large creditors or classes of
creditors in major national restructurings or chapter
proceedings in, for example, Indianapolis, Denver, Pittsburgh,
Boston, and St. Louis. Many of these matters involved intense
negotiations over claims and issues relating thereto,
including fraudulent conveyances, issues of absolute priority,
rights to payments under a plan, and plan confirmation. Many
of these matters have been in, or in the context of, a chapter
11 case but resulted in amicable resolution of the claims or
the matter generally. Such matters include:
Sudbury, Inc. (subordinated debt holders)
Allegheny International (subordinated debt holder)
Early & Daniel, Inc. (railcar lessors)
The Carlson Group, Inc. (debtor)
Apex Oil, Inc. (single creditor)
Frontier Airlines (aircraft lessor)
I worked on such matters either as lead partner or, in the
larger matters, alternating with another partner on the case.
In all of the above instances, my representation involved
analysis of the client's legal position and its relationship
to the positions of others, identification of issues which
enhanced or detracted from each position, plotting a course --
whether litigation or negotiation or a combination of both --
to accomplish the client's goals, and pursuing that course,
while making any necessary adjustments based on changing
circumstances. My approach has been active rather than
reactive. The major "activity" outside of litigation has been
effectively communicating -- usually orally --to clients and
adversaries the relative positions of the parties, negotiating
- 11
36
to achieve goals, and documenting the result, whether a loan
restructure, a stipulation, an agreement or a consensual plan.
From 1973 to 1978 I served on the board of the Young Lawyers'
Section of the Philadelphia Bar Association. For about two
years prior to my assuming the bench, I was an active member
of the board of the Philadelphia Bar Foundation (the
charitable arm of the Philadelphia Bar Association which funds
several programs providing legal aid to the indigent) . In
addition, I served as a Mediator for the U.S. District Court
for the Eastern District of Pennsylvania, and was a member of
the Bar Alternative Dispute Resolution Committee developing a
mediation process for the U.S. Bankruptcy Court for the
Eastern District of Pennsylvania.
As a district court judge I have served on our court's
Bankruptcy Committee and Arbitration Committee, and have been
active in the Federal Judges Association Congressional Liaison
Committee, serving as coordinator for our Circuit.
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
interests .
None. When I left my former firm to assume the bench,
all pension funds were rolled over; I have no assets in
the firm's plans or funds. I have ongoing interests in
IRAs and pension funds reflected as part of assets listed
on the attached Net Worth Statement .
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.
I will continue to recuse myself from any cases
involving: Duane, Morris & Heckscher (my former law
firm); Meridian Bancorp, Inc. (former client); First
Fidelity Bank (former client) ; the Visiting Nurse
Association of Greater Philadelphia (I am a former board
member); University of Pennsylvania (I am an alumna and
board member); City of Philadelphia (my spouse's
employer); and any entity in which I have a "financial
interest" pursuant to 28 U.S.C. § 455. I have adopted a
12-
37
standing Order and waiver of disqualification procedure
regarding parties and counsel who contributed to the 1994
mayoral campaign in which my husband was the successful
candidate. I will follow the dictates of 28 U.S.C. § 455
as to disqualification due to a conflict regarding any
other matters or interest.
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 here.)
See attached Financial Disclosure Report (Exhibit C) .
5. Please complete the attached financial net worth statement in
detail (add schedules as called for) .
See attached Exhibit D.
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.
Prior to my nomination in November of 1993 for my current
judgeship on the U.S. District Court for the Eastern
District of Pennsylvania, I made public appearances with
or for my husband during various campaigns in which he
was a candidate for public office: for Philadelphia
District Attorney in 1977 and 1981; a primary campaign
for Governor of Pennsylvania in 1986; a primary campaign
for Mayor of Philadelphia; and a primary and general
election for Mayor in 1991. I had no title or
responsibility. Since my nomination and induction, I
have scrupulously avoided all political activities.
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
.Senate Judidary - 1 3 -
38
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
My efforts on behalf of the disadvantaged have been
through my service to several charitable organizations,
on whose boards I served until my judgeship appointment
was confirmed. My primary efforts on behalf of the
disadvantaged were through the Visiting Nurse Association
of Greater Philadelphia; I served on its board and headed
many of its committees for approximately 15 years. The
VNA is the only non-profit home care entity which
provides services to the indigent in the Philadelphia
area, and in working with VNA, I was personally involved
in fundraising and other efforts for the poor and
indigent of Philadelphia. I dedicated an average of
10-15 hours per month to VNA-related activities. For two
years prior to assuming the bench I was also an active
member of the board of the Philadelphia Bar Foundation,
the charitable arm of the Philadelphia Bar Association.
I also dedicated considerable time, generally an
additional 15 hours per month, to active service on the
boards of civic and cultural organizations such as the
Market Street East Improvement Association, and Avenue of
the Arts, Inc., and the University of Pennsylvania.
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 you belonged, to any organization
which discriminaces -- 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?
No.
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) .
Not applicable; there is no such commission for Court of
Appeals positions. I did, however, have several
discussions with representatives of the White House
Counsel's office, the Department of Justice, the ABA, and
the FBI.
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
- 14
39
interpreted as asking how your 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 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 .
I believe that the role of the judiciary is to be the
interpreter and enforcer of existing law. In the process
of such interpretation and enforcement, the judiciary
should call upon judicial precedent, as well as examine
the intention of those drafting relevant legislation, in
determining the scope and bounds of its decision-making
authority. While it is tempting for the judiciary to
read expansions into the law, rather than await action of
the legislative branch to do so, this temptation should
be resisted by the judiciary in fulfilling its proper
role.
Some of the characteristics of this "judicial activism" have
been said to include:
With respect to the "characteristics" noted, I would
comment :
a. A tendency by the judiciary toward problem- solution
rather than grievance -resolution ,-
A judge should resolve the matter before him or
her, addressing only issues at hand. While it may
be the case that the resolution of the issue at
hand does, and will, have broader implications for
society at large, the judge should not attempt to
solve problems or seek solutions broader than
necessary to resolve the instant matter.
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 .
- 15-
40
Again, a judge should provide only the relief
necessary to address the claims of litigants before
him or her. The judiciary should not seek out
controversies, nor address controversies not
immediately presented.
A tendency by the judiciary to impose broad, affirmative
duties upon governments and society;
In certain limited instances, whether pursuant to
mandamus or injunctive powers, the judiciary is
called upon to impose affirmative duties upon
governments and society where the wrong
specifically to be remedied (that is, the issue
before the court) requires it. However, such power
should be exercised with great caution, and the
imposition of duties in such instances should be
narrowly drawn to address the issue at hand,
leaving the actual application and implementation
to other branches, to the extent possible. Also,
in order to resolve conflicts in such situations,
orders entered imposing such duties must be clearly
and narrowly stated so as to avoid further
litigation with respect to the nature and extent of
the power of the judiciary.
A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness ; and
Jurisdictional requirements have been set by law
and interpreted by courts. To the extent that case
precedent adjusts jurisdictional standards and is
controlling, it must be adhered to. As a district
court judge, I have no authority or ability to
loosen such requirements, and I believe that the
appellate courts' actions in doing so must be based
strictly upon legislation and its intent, informed
by the requirements of the Constitution.
A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
I believe that the judiciary is limited in its role
as indicated above. The judiciary is not a
panacea, an interpreter of society, or an overseer
in any sense of the word. I believe it is
inappropriate for the judiciary to conduct
continuing oversight except in those limited
circumstances where such relief is both required to
.Saiale Judidnry - 1 6 -
41
address the harm suffered and permitted by existina
precedent . ^
- 17
42
INDEX OF EXHIBITS
Exhibit A - Ten Most Significant Opinions
Exhibit B - Ten Most Significant Litigated Matters
Exhibit C - 1995 Financial Disclosure Report
Exhibit D - Financial Net Worth Statement
43
updated 12/18/96
EXHIBIT A
TEN MOST SIGNIFICANT OPINIONS
U.S.D.C.
Date Case No. Case
09/15/94 92-CV-3310 Resolution Trust Corp. v. Farmer
Cite: 865 F. Supp. 1143 (E.D. Pa.
1994)
11/08/94 93-CV-4547 Britamco Underwriters, Inc. v.
George Giouzelis, Inc.
Cite: 1994 WL 622109 (E.D. Pa.,
Nov. 8, 1994), aff 'd. 65 F.3d 161
(3d Cir. 1995)
12/29/94 93-CV-7027 Mallenbaum v. Adelphia Comm. Corp.
Cite: 1994 WL 724981 (E.D. Pa.,
Dec. 29, 1994), aff 'd, 74 F.3d 465
(3d Cir. 1996)
08/16/95 93-CV-6729 LeJeune v. Bliss-Salem, Inc.
Cite: 1995 WL 491253 (E.D. Pa.,
Aug. 16, 1995), aff 'd, 85 F.3d 1069
(3d. Cir. 1996)
08/18/95 94-CV-1422 Surace v. Caterpillar, Inc.
Cite: 1995 WL 495123 (E.D. Pa.,
Aug. 18, 1995)
10/05/95 93-CV-3701 Taylor v. Sterling Winthrop
Cite: 1995 WL 590160 (E.D. Pa.,
Oct. 5, 1995)
12/22/95 94-CR-0353 United States v. Tidwell
Cite: 1995 WL 764077 (E.D. Pa.,
Dec. 22, 1995)
3/22/96 94-CV-6906 Simmerman v. Hardee's Food Systems,
Inc.
Cite: 1996 WL 131948 (E.D. Pa.,
Mar. 22, 1996)
44
U.S.D.C.
Date Case No . Case
4/1/96 94-CV-1818 Stecyk, et al . v. Bell Helicopter
Textron, Inc., et al .
Cite: 1996 WL 153555 (E.D. Pa.,
Apr. 1, 1996)
9/9/96 94-CV-3991 Doby, et al . v. Decrescenzo, et al .
Cite: 1996 WL 510095 (E.D. Pa.,
Sept. 9, 1996)
In September 1995, I sat by designation on an appellate panel of
the United States Court of Appeals for the Third Circuit . The
members of the panel were Chief Judge Dolores K. Sloviter, Circuit
Judge Samuel A. Alito, Jr., and District Judge Marjorie O. Rendell
(sitting by designation) . I authored the Third Circuit opinion in
United States v. Brannan. 74 F.3d 448 (3d Cir. 1996).
45
Index to Exhibit B
TEN MOST SIGNIFICANT LITIGATED MATTERS
1. Bartholomew, et al . v. Northampton National Bank
2. In re Winslow Center Associates
3. In re Reading Tube Corporation
4. In re Dominica V. Civitella
5 . In re Ram Manufacturing
6. In re Center for the Blind
7. In re Philadelphia Athletic Club
8. In re Bates Energy Corp.
9 . In re Marta Group
10. Schweibert v. Schweibert
46
EXHIBIT B
SIGNIFICANT LITIGATED MATTERS
My trial experience was gained primarily, though not
exclusively, in the bankruptcy court system, in which the "case" is
a reorganization proceeding, and adversary matters, sometimes
involving actual trials, are heard by the court. I litigated
matters in the bankruptcy courts locally and throughout the country
in at least 35 cases. The following are examples from ten cases in
which matters raised by the motion or complaint were litigated by
me, as sole trial counsel, except as noted, several of which
resulted in reported decisions.
1 . Bartholomew, et al . v. Northampton National Bank, et al .
Court and docket: U.S.D.C, E.D. Pa., No. 74-2948
Cite: 584 F.2d 1288 (3d Cir. 1978)
Summarv
Suit by purchaser of a vacation lot against banks who financed
purchase on basis of Truth- in-Lending, Interstate Land Sales Full
Disclosure Act, and usury law violations.
Client
One of the defendants, American Bank and Trust Co. of Pa. (now
Meridian Bank) .
Issues 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 liable for
violations of the Interstate Land 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. I, together with
counsel for Merchants National Bank, directed the litigation and
strategy on behalf of the banks and was responsible for the
pleadings and briefs in the matter, especially on appeal to the
Third Circuit .
(continued)
Exhibit B - Litigated Matters - page 1
47
Significance of Issues
The court decided against the plaintiff and in favor of the
banks. Issues involved the interpretation of two relatively new
statutes and were of great significance to banks and other entities
that financed lot sales in vacation home developments.
Judge
Hon. John P. Fullam, Judge, United States District Court for
the Eastern District of Pennsylvania. (1975)
Hon. James Hunter, III, Judge, United States Court of Appeals
for the Third Circuit. (1978)
Other Counsel
Counsel for plaintiffs:
Edward C. Toole, Jr., Esquire
(215) 241-18184
Michael J. Glasheen, Esquire
(215) 241-1821
Clark, Ladner, Fortenbaugh & Young
2005 Market Street, 21st Floor
Philadelphia, PA 19103
Counsel for defendeint 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 Northampton National Bank of Easton:
Bernard S. Bergman, Esquire
(current address unknown)
Counsel for William E. Brock, III:
E. Parry Warner, Esquire
Obermayer, Rebmann, Maxwell &. Hippel
Packard Building, 14th Floor -i':.'
15th and Chestnut Streets
Philadelphia, PA 19102-2188 "■ - ''
(215) 665-3226 -' -'
Exhibit B - Litigated Matters - page 2
48
2 . In re Winslow Center Associates
Court and Docket: U.S. B.C., E.D. Pa., No. 82-00020G
Cite: 32 B.R. 685 (Bankr. E.D. Pa. 1983)
50 B.R. 679 (Bankr. E.D. Pa. 1985)
57 B.R. 317 (Bankr. E.D. Pa. 1986)
Summary
Chapter 11 proceeding of New Jersey partnership which owned a
shopping center.
Client
Provident Mutual Life Insurance Company, the mortgagee.
Issues Litigated
(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 recjuest to pay attorneys' fees from
cash collateral assets subject to mortgagee's lien. 57 B.R. 317
(Bankr. E.D. Pa. 1986); payment of fees denied.
Significance of Issues
This case, relating to the extent of the interest of the
mortgagee in post-petition rents as cash collateral, resulted in
one of the first decisions on this issue. This issue thereafter
became the sxibject 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
subsequently addressed by U.S. District Court Judge Bartle in In re
SeSide Co. . Ltd. , 152 B.R. 878 (E.D. Pa. 1993). Also, the decision
has often been cited for its holding that debtors may only charge
attorneys' fees against a secured creditor's collateral if the fees
benefitted the secured creditor.
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
(continued)
Exhibit B - Litigated Matters - page 3
49
other Counsel
Counsel for Committee of Equity Holders:
Leonard Goldberger, Esquire
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
15th and Chestnut Streets
Philadelphia, PA 19102-2678
(215) 977-2578
Debtor ' s Counsel :
David Fishbone, Esquire
Formerly with
Ciardi, Fishbone & DiDonato, PC (current address unknown)
1900 Spruce Street
Philadelphia, PA 19103
(215) 546-4370
Counsel for Trustee :
Robert H. Levin, Esquire
Adelman Lavine Gold & Levin, PC
1900 Two Penn Center Plaza
Philadelphia, PA 19102-1799
(215) 568-7515
Exhibit B - Litigated Matters - page 4
50
3 . In re Reading Tube Corporation
Court and Docket : U.S. B.C., E.D. Pa., Nos . 87-0429T, 87-0430T
Cite: 72 B.R. 329 (Bankr. E.D. Pa. 1987)
73 B.R. 99 (Bankr. E.D. Pa. 1987)
Summary
Chapter 11 proceeding of copper tube manufacturer.
Client
Meridian Bank, primary secured creditor, as well as the
government agencies participating in its loan.
Issues 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 Issues
The Motion for Appointment of a Trustee became a trial of
issues of alleged fraud and 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 alleged 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)
Exhibit B - Litigated Matters - page 5
51
Debtor's Bankruptcy Counsel:
Bruce Frankel, Esquire
Angel & Frankel
4 60 Park Avenue, 8th Floor
New York, NY 10017-3191
(212) 752-8000
Counsel for Creditors Committee:
Charles Phillips, Esquire
Baskin Leisawitz Heller Abramowitch, P.C.
2201 Ridgewood Road, Suite 400
Wyomissing, PA 19610
(215) 372-8427
Exhibit B - Litigated Matters - page 6
52
4 . In re Dominica V. Civitella
Court and Docket: U.S. B.C., E.D. Pa., No. 80-01083K
Cite: 14 B.R. 151 (Bankr. E.D. Pa. 1981)
15 B.R. 206 (Bankr. E.D. Pa. 1981)
Summary
Chapter 11 proceeding of apartment complex.
Client
The debtor.
Issues Litigated
Rebuffed constant attempts of three secured creditors to cause
case to be dismissed, converted, or to file their own 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 Issues
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 100% plan --a rare
result in a bankruptcy case. I handled all of the litigation and
negotiations in order to achieve this result.
Judge
Hon. William King, Judge, United States Bankruptcy Court for
the Eastern District of Pennsylvania.
Other Counsel
(Each of the following represented a secured creditor)
Rush T. Haines, Esquire
Drinker, Biddle & Reath
1100 P^fB Building
Broad and Chestnut Streets
Philadelphia, PA 19107
(215) 988-2944
(continued)
Exhibit B - Litigated Matters - page 7
53
Neal B. 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
BlanJc, Rome, Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
Exhibit B - Litigated Matters - page 8
45-964 98 - ^
54
5 . In re Ram Manufacturing
Court and Docket: U.S. B.C., E.D. Pa., No. 83-OlOlG, 83-0102G
Cite: 32 B.R. 969 (Bankr. E.D. Pa. 1983)
36 B.R. 822 (Bankr. E.D. Pa. 1984)
Summary
Chapter 11 proceeding of electronics manufacturer.
Client
Meridian Bank, secured creditor.
Issues Litigated
Whether Meridian was entitled to relief from the automatic
stay due to lack of adequate protection. Relief from stay granted
at 32 B.R. 969 (Bankr. E.D. Pa. 1983) ; reconsideration denied 36
B.R. 822 (Bankr. E.D. Pa. 1984) .
Significance of Issues
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.
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
Other Counsel
Counsel for Debtor:
Thomas B. Rutter, Esquire
Rutter, Solomon & DiPiero
The Curtis Center, Suite 750
Philadelphia, PA 19106
(215) 925-9200
Counsel for Trustee:
Donald M. Collins, Esquire (retired)
Formerly with
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103-7098
(215) 564-8080
Exhibit B - Litigated Matters - page 9
55
6 . In re Center for the Blind
Court and Docket: U.S. B.C., E.D. Pa., No. 79-8 18 -EG
Cite: (none)
Summary
Chapter 11 proceeding of non-profit corporation serving the
blind.
Client
The debtor.
Issues Litigated/Significance of Issues
This case was not adversarial, but it was unique in that the
debtor confirmed a plan providing for the transfer and continuation
of the Center's endowment intact for the benefit of the intended
beneficiaries, i.e., the blind, and payment to unsecured creditors
of approximately fifteen cents on the dollar. Given the competing
interests of creditors versus the blind community, this case
required social and political skills as well as the negotiation and
litigation skills normally required in a standard Chapter 11 case.
[Chapter 11 was commenced in 1979 and concluded in 1983.]
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
Other Counsel
Counsel for Rudolphy Residence:
Christopher H. Gadsden, Esquire
Drinker, Biddle & Heath
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)
Counsel for Unsecured Creditors:
Lawrence Lichtenstein, Esquire
Buchanan Ingersoll
Professional Corporation
12 00 Two Logan Square
18th Sc Arch Streets
Philadelphia, PA 19103-6933
(215) 665-3923
Exhibit B - Litigated Matters - page 10
56
7 . In re Philadelphia Athletic Club
Court and docket: U.S. B.C., E.D. Pa., No. 80-02028G
Cite: 17 B.R. 345 (Bankr. E.D. Pa. 1982)
20 B.R. 325 (Bankr. E.D. Pa. 1982)
Summary
Chapter 11 proceeding of athletic club facility in Center City
Philadelphia.
Client
Trustees of Central States, Southeast and Southwest Areas
Pension Funds, Victor Palmieri & Co. as Investment Manager, primary
secured creditor.
Issues 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 defaulted,
then contested such automatic relief in an injunction proceeding.
The bankruptcy court upheld the stipulation providing that relief
from the stay was automatically enforceable. 17 B.R. 345 (Bankr.
E.D. Pa. 1982). Subsequent stipulation approved at 20 B.R. 325
(Bankr. E.D. Pa. 1982) .
Sicmif icance of Issues
The court ' s opinion is often cited as authority for
enforcement of court -approved stipulations, especially relating to
relief from stay for secured creditors who are otherwise
forestalled from executing on property which constitutes their
collateral .
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
Other Counsel
Debtor ' s Counsel :
Pace Reich, Esquire
Clark, Ladner, Fortenbaugh &. Young
2005 Market Street, 21st Floor
Philadelphia, PA 19103
(215) 241-1330
(continued)
Exhibit B - Litigated Matters - page 11
57
Counsel for Partners of Owner of Debtor:
Stuart H. Savett, Esquire
Savett, Frutkin, Pidell & Ryan, PC
320 Walnut Street, Suite 508
Philadelphia, PA 19106
(215) 923-5400
Counsel for Trustee:
Melvin Lashner & Lashner
1604 Locust Street
Second floor
Philadelphia, PA 19103
(215) 732-9229
Exhibit B - Litigated Matters - page 12
58
8 . In re Bates Energy Corp.
Court and Docket: U.S. B.C., N.D. Ohio, No. B-86-476-Y
Cite: (none)
Summary
Objection of creditor, the Bethlehem Corporation, to the
proposed sale of assets of Bates Energy Corp. in Chapter 11
proceedings .
Client
Bethlehem Corporation, a major unsecured creditor.
Issues 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 evidence
during four days of hearings to demonstrate insider dealings and
preferences, sham transactions, undercapitalization, and detriment
to creditors. The court approved the sale over objection.
Significance of Issues
Bankruptcy courts are to scrutinize transactions involving
insiders . Court approval of a sale of assets of a debtor company
presents a difficult predicament for a bankruptcy judge where 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 of insider dealing on a few days' notice,
without the opportunity for any discovery. Notwithstanding the
fact that I was not successful, I believe I raised serious doubts
about the sale that should have been sufficient to warrant its not
being approved.
Judge
Hon. William T. Bodoh, United States Bankruptcy Court for the
Northern District of Ohio; Case No. B-86-476-Y. (Court's opinion
not reported. )
Other Counsel
Our local counsel :
Jeffrey Baddeley, Esquire (current address unknown)
Formerly with
Squire, Sanders & Dempsey
4900 Society Center
127 Public Square
Cleveland, OH 44114-1304
(216) 479-8500
(continued)
Exhibit B - Litigated Matters - page 13
59
Debtor's Counsel:
David J. Naftzinger, Esquire
Thompson, Hine & Flory
3900 Society Center
127 Public Square
Cleveland, OH 44114-1216
(216) 566-5500
Counsel for Mellon Bank (secured creditor)
Eric A. Schaffer, Esquire
Reed, Smith, Shaw iSc McClay
James H. Reed Building
435 Sixth Avenue
Pittsburgh, PA 15219-1886
(412) 288-3131
Exhibit B - Litigated Matters - page 14
60
9 . In re Marta Group
Court and Docket: U.S. B.C., E.D. Pa., No. 83-01276G
33 B.R. 634 (Bankr. E.D. Pa. 1983)
Summary
Chapter 11 debtor of appliance wholesale cooperative.
Client
Emerson Quiet Kool Corporation, secured creditor,
seller/ consignor of appliances to the debtor.
Issues Litigated
The validity of consignment and/or secured creditor
relationship as between Emerson Quiet Kool and the debtor.
Significance of Issues
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 Emerson, 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, the court concluded that 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)
Exhibit B - Litigated Matters - page 15
61
Counsel for Creditors Committee:
David S. Hope, Esquire
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103-7098
(215) 564-8168
Counsel for other secured creditor:
Howard T. Glassman, Esquire
Blank, Rome, Comisky &. McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
(215) 569-5568
Exhibit B - Litigated Matters - page 16
62
10 . Schweibert v. Schweibert
Court and Docket: Phila. C.C.P., Sept. Term 1975, No. 4769
Cite: (none)
Summary
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.
Client
Husband.
Issues 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 Issues
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 to the client of any other
matter I have worked on .
Hon. Calvin Wilson, Judge of the Court of Common Pleas for the
County of Philadelphia.
Docket number not obtainable.
Other Counsel
Jerome Charen, Esquire
(current address unknown)
Exhibit B - Litigated Matters - page 17
63
AFFIDAVIT
I, MARJORIE O. RENDELL, do swear that the information provided in
this statement is, to the best of my knowledge, true and accurate.
Sworn to and subscribed
this 7th day of January, 1997
NOTARY PUBLIC
V NOTABAL SEAL
SUZANNE R. WHTTE Notary Public
Crty o( Philadelphia. Phila. County
My Commissiofi Expires Dec. 11. 1998
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1995
Report Heqnlrntl bv the Ethics
Rflform Act ot 1*>H9, Pub
10 I - l')H . Ntivnmbar JO, 19
(S use App f>. 101-1131
RENDELL, MARJORIE 0.
J Court or Org.mUat Ion
U.S.D.C. (E.D. Pa.)
) Data of Report
05/13/96
(cev. 8/14/96)
t. TltU l/MtlcU m )u.1<i«. ln,licat« ..cclv, oc
.■*fnioc scatufl. Haijlacraco ludqas IndLcace
r»U- or parc-clma)
DISTRICT COURT JUDGE (ACTIVE)
S Report Type Icheck jpproprlJtn typel
Nomination. Date / /
6. Reporting Purlod
Ol/Ol/OS - l2/n/95
[nitUl J(. Annual Final
T. Oumbers oc Office Address
UNITED STATES DISTRICT COURT
SOI MARKET STREET, ROOM 3114
PHILADELPHIA, PA 19106
a. On the basia of the information contained in this Report and
any modifications pertaining thereto, it Is, In my opinion,
in compliance with applicable laws and regulations
Reviewing Officer Date
IMPORTANT NOTES: The inscrucCLona accompanying chia form muse be followed- Complece 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. 9-13 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE {No reportable positionsi
Director and Vice-Chair
Co-Trustee
Continued after Section VIII
Avenue of the Arts, Inc.
T/U/W of Mary B. Osterlund (Mother)
U. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.)
DATE PARTIES AND TERMS
n
NONE (Wo reportable «greemenC3l
n. NON-E*fVESTMENT INCOME. (Reporting individual and spouse; see pp U-2S of In
DATE SOURCE AND TYPE
I]
NONE (No reportable
1995 City of Philadelphia (spouse salary - amount n/a) $ 0 .DC
$ .
65
FINANCIAL DISCLOSURE REPORT
RENDELL, MARJORIE 0.
05/13/96
IV. REIMBURSEMENTS and GIFTS -. transports ion. lo.l.,lng. tood. ,nt,rc..ln™nc
Hn.rUi.l.?* thoan to ■poiis« *nd dependent chUdr«n, ua« cha p^renchMC ICAls "(Si- ^nd "iDCI" to In.lLcita reportabLa
calmbursemonts and glCts race Ivod by spouao and depondanc children, roBpectW»*W Sno pp afi-ai of InscrMctlona
SOURCE DESCRIPTION
I NONE INo ,uch reporcbla roLmbura.n,e„t3 or .jUtsl
Academy Ball - Dinner & Concert 1/28/95
Penna .Society reception&dinner 12/8/95
Trip to All Star Game 7/9-11/95 (Dallas)
Coooerstown Baseball Hall of Fame 7/29-30/95
$282 toward air fare (spouse speaking tour)
$500 toward lodging (spouse speaking tour)
Phi
ladelphia
Orchestra
PNC
Bank
Phi
ladelphia
Phillies
Phi
ladelphia
Phillies
s
Penn Club Fl
orida Gold
Coast
°Phi
la. Club
of Palm Beach
See
Section
VIII
D
OTixER GU" IS. (Includea chose Co spouse and dependenc children.- use Che parenchecicals '(S)' and *{DC)" Co
indicate other gifts received by spouse and dependenc children, respectively. See pp. 30-33 of Inscrucci*
SOURCE DESCRIPTION Vf
NONE (No such reportable jlCcsl
Chelsea House Publishers Justices of the Supreme Court
Please see Section VIII
s
150.0
s
0.0
s
s
/T. LIABLLlTrEo. (includes chose of spouse «nd dependenc ctiildren; indlcace where Applicable, person responalble
for liabilicy by using che parencheclcal ' (S) ' Cor separate llablllcy of che spouae, '(J)' for joinc liability of
reporting individixal and spouse, and '(DC)' for llabilicy of a dependenc child. See pp. 34-36 of Inatnicclons . )
CREDITOR DESCRIPTION VALUE CODE
D
NONE (No reporcable li
United Savings Bank 1/2 mortgage on vacation duplex
(one rental prop.; one personal use
<j • iidii.cim ■'ii.'.om.
66
FINANCIAL DISCLOSURE REPORT
RENDELL, MARJORIE 0.
0AC4 Of Report
05/13/96
'(LIU. 0/14/00)
Vlt. PaKC I INVESTMENTS and TRUSTS
^lul .lopaiuLitic clilldi>»n Ssa pp J7-SJ
A.
Oeaci-tpcion of Aaaats
(including cmsc jsseca)
[ndlcate where ippUcable, owner oC
thff asset by using the p.irenthetlcal
"(Jl- Cor (oint ownership ot report-
ing indlvidujL and spouse, "(S)^ Cor
separotd ownership by spouse. - (DCl "
foe ownership by dependent child.
Place -1X1- after each asset
exempt (rom prior disclosure.
B
Income
during
reporting
period
C.
Crcaa value
.>t end of
reporting
period
0
Tranaactiona during reporting period
(1)
Amt-l
Code
(A-H)
(2)
Type
^I^ni'or
Int.)
(L)
Value:
Code
(J-P)
(2)
Value
Metl>od3
Code
.O-n)
(1)
Type
bSy' iell.
merger,
redemo-
IC not exempt from diacloauro
(2)
Date:
Month
Day
(!)
Value2
Code
(J-P)
Calm
Code
(A-H)
(SI
tdenclcy of
buyer/seller
(If private
transaction)
NONE (No reportable
1
1 Schwab Money Market Fund (IRA
rollover) (includes lHi2 FDR95I
S
Dividend
K
T
3 Vanguard Intermediate Treasury
(IrX rollover)
"
Dividend
sale
11/06
L
D
' T^Voidcur" '"" ""^
0
Dividend
L
T
4 Berger 101 {IRA rollover)
A
Dividend
■ale
07/10
K
B
colloverl
a
Dividend
sale
09/28
r
A
6 Server 100 IIRA rolloverl
*
Dividend
sale
07/10
L
0
7 Brandyvtne Fund (IRA rollover)
D
Dividend
L
T
8 Oa)cmarlc Fund (IRA rollover)
B
Oividend
X
t
A
Dividend
K
T
sale/pt
07/10
J
C
" VziSi SKov^if" '"-"""
»
Dividend
sale
07/10
«
D
11 Scudder Global Fund (IRA
rollover)
*
Dividend
K
T
12 SOidder Global Snail Co. (IRA
rollover)
A
Dividend
sale
09/26
J
B
13 20ch Century Int'l (IRA
Rollover)
A
Dividend
«
T
14 Schwab (4oney Market IIRA
concrlb)
A
Dividend
J
T
Contrib )
*
Dividend
sale
09/26
J
A
U Kjuttman F.ind (IRA Contrtb)
A
None
^
T
17 Sch»»b Money Market ( (RA
-
Dividend
^
T
l» Pl.lellt/ OaUnce.l Fund IIRA
UoUover) (.•!)
A
niv(„„„„
eale
09/26
J
A
' !Sr2^?''3ir5J) ^:l\^2^L
'lua n.5l
001 to 32.500 C-52,501 to SS.OOO D-SS.OOl to SIS. 000 1
' TlircSr-?! 4 0,) i:i^^^r^.^^^„.„.o 5:?iS<,";ii(^?o'5?:^33.ooo^:2^?,°?iar,?y§l!o°23o -"o— o „oo.ooo
, -3.u,^M.n^,o.,„, ..A^r.,,,,.__ -;---—""- s:;:;Tr;:5 T-c..,.M,.rk,t
67
FINANCIAL DISCLOSURE REPORT
RENDELL, MARJORIE 0.
M-, of Rcporr.
05/13/9S
(luu. 0/1-4/96-
VII. P;«Ko 2 INVESTMENTS and TRUSTS . uco.
.«n,l .l.iioii.Ui.t chlUlren. Sea pp )7.s< o( In.
Description oC Asaeta
(including truHt .issats)
indlc.ice where applicable, owner ot
the Asset by using the parenthetical
"(J)' Cor loint ownership of report-
liw indLViiiu.xl .»nd spouse. MSl'^for
aeparace ownership by spouse. MOC) •
Cor ownership by dependenc child.
PUca '4X1" 4fter each asaet
exempt Croa prior disclosure.
a.
tncome
during
C
Crosii value
reporting
p«>rlod
Trana.iCtions during reporting period
III
Amt 1
Code
121
^iSTor
int.!
111
V»lue2
Code
IJ-Pl
Vjlue
Hethodl
Code
lO-wl
buy. sell,
merger.
"ion?
te not exempt from disclosure |
(21
Date;
Day
(11
Value2
Code
(J-PI
Oalnl
Code
(A-Hl
(51
Identity of
buyer/seller
(if private
transaction!
NONE (No reportable
transactions!
19 Schwab ^toney Market (IRA
Contribl {Si
*
Dividend
J
T
20 eerqer 100 (IRA Contrib) (S)
A
»one
sale
07/10
«
C
" xjsnj?;,^siiisii^j.-i,"""'
D
Rent
"
"
A
None
J
T
»/d
5/ IS
J
23 Public Service Enterprise Crp
A
Dividend
J
T
» T,ur.^i^.i.f.r" " '^'
A
Dividend
J
T
Pr . Ret .
09/15
J
2S Hunl Inv Tnuc Series 13 (Jl
(19941 lime 1 of 31
A
Dividend
J
T
Pr.Rec.
08/15
J
2S Muni Inv Trust Series 13 (Jl
lline J o£ Jl
Pr.Rec.
12/15
J
J7 Prince Geos Cty 0% 12/17/97
IJ)
*
Interest
J
T
" iia;5f siss'^f tSTiitSe i »« 3.
B
Dividend
I
T
buy
05/94
L
" ?5rii!nf 5'5^-;r™ ^« "=
sale
4/10
I.
» ^rixi";!?"??— •—
buy
11/07
K
31 Schvsb T»x E«e«jic Honey Marlcet
(Jl
e
Dividend
J
T
buy
05/94
«
" f5nj?nr?'Sf^!r-"—
B
Dividend
J
T
buy
05/94
L
31 Strong Short Term etc lline 2
of 31
sell
4/10
<
14 Strong Short Term etc. (line 1
of 11
sell
11/06
K
" ?jsT'i5?(T;si r^fST- --^
c
Dividend
1.
T
buy
5/74
"
1« Vannuerd Muni ..t; (line 2 of
snll
4/10
>-
^
' !!i5r?^?"Si=rsji s:!ics3i''fo'5?;, ^:i^:^z^?^]^o., g:^;o3°Jortrirs„o,o„„ ^:^^i>:^ z['oS3°„„o
' ^3ircSr;i . o>. i:in^^rL^y^..... S:?i3.^Sii^?o'5?:SS2.noo t:2S2;°2i.S%!?3So°33o -— - " ""-"^
■ ^3irc37-c^,-'" ^i&i-i^iL ;s;;"-' '-- -- 3:s:nrt^s
68
FINANCIAL DISCLOSURE REPORT
Nama oC Pnnon Rnportinq
RENDELL, MARJORIE 0.
Utrt oC Alport
05/13/96
VII. Payc 3 INVESTMENTS and TRUSTS - i„c<»,
and JepanJenC children. See pp. ]7-S4 of tns
(cev. 8/14/9
Dodcrlpcton at Adapts
(Including tiTHC .naetill
tndlote -h.!.n ..ppUc.ihU. o»ner o(
Mi^ _.!ia»r. hy uj ui-^d'^i^t)' ''" = "« 'CJ I
ii'iq i..iUviiu.i'l"^jnj' 'yoJil?,''- ISl'^'^toc
dop.-irAC« o«ntfrship by spou*o. "(DC)"
eoc ownorsnip by Jependanr child.
Pljca "(Xl- *£ter each aaaec
axampc erom prior diaclosuce.
t ncome
during
reporting
period
Ci-oea value
.ic end of
report Inq
period
0
Tranaactiona during reporting period
Amt.l
Code
(2)
Type
d!v^ •
(I)
Valuei
Code
(J-P)
Value
MethodJ
Code
lO-W)
(I)
buy. sell,
merger,
redemp-
Clonl
It not exempt from dlacloaura
(21
Datei
Day
(J)
Value2
Code
H)
Oalnl
Code
(S)
Identity of
buyer/seller
(!( private
NONE INo rtpoctabla
n BeneeiclJl - CO IDCl
»
incereac
J
T
19 DuPont IDCl
A
Dividend
J
T
39 Huffy Corp IDCl
*
Dividend
J
T
40 Meridian Bancorp (DC)
A
Dividend
J
T
41 Toya R Oa (OCl
A
Dividend
J
T
42 Ctt Accel Tray Sn 0% 11/99
(DCI
A
incereac
J
T
43 Schwab Money Marlcec Fd (DC)
A
Dividend
J
T
44 Pederated 2-S hr. Oovt. (IRA
*
Dividend
K
T
buy
11/07
K
A
Dividend
.c
T
buy
07/11
K
" Olne I Sl"2f'"^'' "" "'°'
B
Dividend
K
T
buy
07/12
K
47 Dodge t Cox acoe)c (IRA R/0)
(line 2 of 2)
buy
09/29
J
49 Oreyfua S . I Oovc . (IRA R/0)
*
Dividend
L
T
buy
09/27
«
49 Dreyfus S.I. Govt. (IRA R/0)
buy
11/07
L
SO FAM Value (IRA R/0)
*
Dividend
K
T
buy
07/11
K
SL Janua Fund (IRA R/0)
S
Jividend
K
T
buy
07/11
K
52 PA. Mutual IIIIA R/OI
0
Dividend
J
T
buy
07/11
J
5) MAS Equlf/IIBA «/OI
c
OlvLrlnnd
K
T
buy
07/12
K
„ S,C,n incrnatloo^l ( (,M R/0)
A
Oi-/i<l.»n<J
K
T
buy
„,/27
K
' !3;r?^?"3i<^rs3, i^[^zrL^^.... in^i^ik^tJi^o.., mWo^wi^r...... sisirrinis jt^srooc
' T^ircSr-i V o„ i:i&/!^ri.^^...„,. 5:?i3."^ii^?o'5!:S3S,o,. i:i^^l!^^,l]ii^^. — ■°"' " »—
, v.,,.,^M,u,;.o,.,„„ 0:a,..j..u;.;.,
'i'S,','
.rU-.,(
'" i:^:"'^
te.i
-'■
~mmti/M.tcktz
69
FINANCIAL DISCLOSURE REPORT
RENDELL, MARJORIE 0.
OS/13/96
VII. Pago 4 INVESTMENTS and TRUSTS
^n.t .iepandanc chlUlran. S*,n pp JT-s-*
(rev. 8/14/96)
( [ncludoH choaa of spouan
Oe;ii:i'tpc ton o( Aaaets
liiioluJlnq tiMOt a«>ot«l
tn.llc.it- »h»r« dp(>Hcabl«. o«ner o(
cne j.»« 6y uslnq ;ho p.irenchetlc«I
•IJ)" for lolnc o«n<sr«hlp ol ceporc-
Inq inJivu^i.,U .nJ jpou.e, •ISl'^ (or
Sfparjte o«ner9hlp by spouje. 'IOC)*
for ownersnip by dependonc child.
PUco -(Xl- Jtcer each «sec
exetnpc (rom prior dtacloauce.
0
durinq
report inq
period
c.
Cross value
.It end o(
report log
period
Tranajcciona during raporcmg parLod
(11
Amc.l
Code
(A-H)
(2)
Type
(e.q..
dl«' .
Value:
Code
IJ-PI
C)
Value
Mechod]
Code
(Q-U)
buy; aell,
merger,
redemp.
tlonl
t( not axempt (rom diacloaura ]
(2)
Date:
Month
Day
(1)
Value2
Code
(J-P)
(4)
Calnl
Code
(SI
Identity o(
buyer/siller
(i( private
NONE INo reportable
income, taseta, or
SS soCen Intemacion*! (IS) (IRA
Contribi
'^
Dividend
J
T
buy
OS/27
J
5S SoCen Incemaclonal (S)
A
Dividend
J
T
buy
09/27
J
S7 mllum BUir Crowch (SI
*
Dividend
K
T
buy
07/11
«
51 ATkT (J)
*
Dividend
J
T
Inherit
06/01
J
S9 Abboce Laboracories (J)
A
Dividend
^
T
Inherlc
06/01
J
eo Coca Cola (J)
*
Dividend
J
T
Inherit
06/01
It
61 Olebold (Jl
*
Dividend
J
T
inherit
06/Cl
J
62 Wale Oianey Co. (J)
*
Dividend
J
T
Inherit
06/01
J
fi3 Federal Nac'l Morcqage Assoc.
*
Dividend
J
T
Inherit
06/01
X
64 Cannecc (J)
*
Dividend
^
T
inherit
06/01
-
6S General Eleccrlc (J)
A
Dividend
J
T
inherit
06/01
K
66 Cillecce Co. (J)
*
Dividend
J
T
Inherit
06/01
K
67 Household Incemaclonal (J)
A
Dividend
J
T
Inherit
06/01
J
A
Dividend
J
T
inherit
06/01
«
67 McDonalds Corp. tj)
A
Dividend
J
T
inherit
06/01
«
A
Ol/ldend
.
T
inherit
06/01
J
71 p-palco Inc. (J)
A
Dlvlrttn.l
J
T
inherit
06/01
J
7. -.U.«r. S..or„. inc. U,
A
Oivl.ltin'l
.-
inherit
06/01
^
' in^rc;;?'s.rs;) i:l[^2rl^^.....„ ?:i^.^!i^^-?iSs%„o ^^k,^^^Uo.o ^:i^^i>^i\^^..o
' Tsrcsr-ji . p„ i:i\^:;!zri:^i..n..„ ^:i^ii;;!i^^t^n:^...o ^:2J?,°"U^?!3^6°sSo -^^ "- " ""•""■
, V.U,^-,ch^ -:,... ^..,,r....,^ .., .,n.„ J-Aja^n. ..,:,ah...r.,r
70
FINANCIAL DISCLOSURE REPORT
N.^m« of Pnraon Roporclnq
RENDELL, MARJORIE O.
D.ICI1 oC (tupocc
05/13/96
(im;. O/H/90
VII. rage S INVESTMENTS and TRUSTS - uco™. v.iu,. t
and dopondont cntldron Sao pp. 17.54 ot [natructlon.. I
D«acrlpclon at Aaanti
1 including tnmc a««ta)
Indlcata «hera appUcabla, o*mer oC
the .»«aot by uatmj the parenthetical
•IJI" Coc lolnt o«nerihlp of raporc-
Inq IndLvlJuAl ^nd spouae. '(S)^ Cor
aep.iraca o-norahlp by apouaa, • (DC) "
eor ownership by dependant child.
PUca -(X)" after each aaaat
exempt <ro« prior diacloaure.
B
Income
durlnq
reporting
period
C
Croas value
reporting
pirlod
0
Tranaactlona during reporting period
(11
Code
(31
, Type
^Irni'or
(11
ValueJ
Code
(J-P)
131
Value
Method!
Code
(O-ai
1^1.
buy: sell,
merger,
redemo-
tC not exempt from disclosure
(21
Date:
Month
Day
(11
Ualuo2
Code
IJ-Pl
(«1
Oalnl
Code
(A-HI
(SI
NOME (No reportable
71 Well* Fargo k Co (J>
»
Dividend
J
T
inherit
06/01
K
74 Xerox Corp. (J)
k.
Dividend
J
T
Inherit
06/01
J
75 Schwab US Treaaury MonWct . (J)
Intereat
J
T
buy
12/27
L
7S US T-Noce S.825% 8/97 (Jl (J)
K
Interest
J
T
buy
08/n
K
77 US T-Hoce «.«2S% S/95 (J)
»
Interest
J
T
matured
OS/IS
J
A
78 OS T-Moce 1.5* l2/9« (J)
*
Interest
J
T
buy
06/30
K
79 SaathJCIlne Seechan Corp.
0
Dividend
«
T
Trust
•0 Atlantic Energy
*
Dividend
^
T
Truat
tl Oresaer Indujcriea
A
Dividend
J
T
Trust
82 E.I. du Pone de Nemouri
A
Dividend
K
T
Trust
81 Allergan, Inc
A
Dividend
K
T
Trust
84 Tremont Corp.
*
Dividend
a
T
Trust
A
Dividend
J
T
Trust
86 Mobil Corp.
A
Dividend
K
T
Trust
C
Dividend
l.
T
Trust
•a ML Induscrlas
"
Dividend
J
T
Trust
A
Dividend
.
T
Truat
•JO
' !sr?i?-Si'^r's:i i:][ariJ2^..,.. ^n^^iii^t^ii^o.. ^^i^J^^';Uo.o ^^^^i^ ]\^iX.u,.
' TlircSr?! . o„ i:i\Ur..''L^r.'.o.n.o ^]^,^ii^to'Vl:^...o !c:ia;,^2iaS^I'3:!o"3;!o '-™ " ""■"-
' v^rcTr.'i,''-'- 3:i;s;ri2^i, i:^^i-^ — -'" s:S""r?Sd — ./«..r...
71
FINANCIAL DISCLOSURE REPORT
RENDELL, MARJORIE O.
05/13/96
(nju. 0/H/9t
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. nm.Lc«. p.rt o( R.porc i
r. All duties as Co-Executor oE Che Eacace oE Emma RendeLL (mv late
mother-in-law) listed in the 1994 Report have been discharged. Due to the
death oE mv Eather in January 1996, duties as Co-Trustee u/w of Mary B.
Osterlund have been discharged as well. .
IV. REIMBURSEMENTS AND GIFTS: All gifts received bv virtue of husband's
position as Mayor of the City of Philadelphia. The trip to Dallas (line 3)
was due to Philadelphia's being site of 1996 All-Star Game. Hall of Fame
(line 4) was due to two Philadelphia Phillies inductees. The trio in February
1995 (lines 5 & 6) was a three-day trio to Florida. As wife of the Mayor. I
accompany my soouse to ceremonial and other gala events at which meals may be
served and/or which include entertainment. The value of the dinners, event
tickets, etc. attributable to my attendance at those events listed in Section
IV hereof may exceed $250. As to spouse, see attached page from his ethics
report as Mayor (Exhibit A-2 to Statement of Financial Interest filed with The
State Ethics Commission of the Commonwealth of Pennsylvania) . I believe all
jifts are exempt due to provisions of Reas. of Judicial Conference section
5(b) . set forth at Appendix (iv) .
r. OTHER GIFTS: (1) As wife of the Mayor. I had the use of ticltets for
;eating in the Mayor's Box for sports events.
2) It is my practice, and that of mv spouse, not to accept honoraria Eor
:peaking or Eor performing wedding ceremonies.
3) In attending or speaking at functions as wiEe oE the Mayor. I have
ccasionallv received token gifts, such as a plaaue or vase; I believ? ^-hat
72
FINANCIAL DISCLOSURE REPORT
N.tm« of Person dflporclnq
RENDELL, MARJORIE O.
OAta oC Raport
05/13/96
(com B/lH/Bt
Vm. ADDITIONAL INFORMATION or EXPLANATIONS. (tndic.t. p.« ». R.port ,
the value o£ any such ai£t3 was wsll under SIOO. Ag to sPouse. see attachet^
□age from his ethics report as Maypr.
VII. INVESTMENTS AND TRUSTS: Please note that last year's report reflected
entries for Schwab at lines Nos . I and 2: these were duplicate entries and ar?
combined on this report as No . 1.
Item 9 reflects a partial sale, items 28-30 a partial return of principal.
Items Nos. 23. 24. 26. 27. 31. 32 and 34 reflect certain 1994 transactions
which were inadvertently omitted from mv 1994 report.
Items Nos. 85 through 95 are listed pursuant to the instruction on page 40
that if as Co-Trustee I had control over the disposition of the asset, it
should be reported: I. together with mv father, had such control over these
assets that were in the T/U/W of mv mother, Mary B. Osterlund.
I. POSITIONS (Cont'd.)
POSITION NAME OF ORGANIZATION/ENTITY
-o-Exec. (all duties discharged Est, of E.Rendell(mother-in-law) (since 3/15/95)
Member. Board of Overseers Coll. of Arts&Sciences-Univ. Penn (since 4/27/95)
rrustee Bd. of Trustees. Univ. of Pa. (since 1/1/95)
73
FINANCIAL DISCLOSURE REPORT
H^ata o( Ptraon Rflporcln<j
RENDELL, MARJORIE O.
OMta o( Rttport
05/13/96
(i«v. a/iii/ye
IX. CERTIFICATION.
In compliance wich Che provisions of 28 U.S.C. 455 and of Advisory Opinior
No. 57 of Che Advisory Commiccee on Judicial AcCivicies, and Co Che besc of my
knowledge ac Che Cime afcer reasonable inquiry, I did noc perform any
adjudicacory funccion in any licigacion during Che period covered by Chis repc
in which I, my spouse, or my minor or dependenc children had a financial
inceresc, as defined in Canon 3C(3)(c), in Che ouCcome of such licigacion.
I cercify chac all Che informacion given above (including informacion
perCaining Co my spouse and minor or dependenc children, if any) is accuraCe,
Crue, and complece Co Che besc of my knowledge and belief, and Chac any
informacion noc reporced was wichheld because ic meC applicable scacucory
provisions permiccing non-disclosure.
I furcher cercify Chac earned income from ouCside employmenc and honoraria
and Che accepcance of gifcs which have been reporCed are in compliance wich Ch
provisions of 5 U.S.pi^ app- 7, seccion 501 ec. seq., 5 U.S.C. 7353 and Judicia
Conference regulacic
SignaCure
Dace a■lrJng^ Mi, IQQfi
NOTE: ANY INDIVIDUAL M^JQ/ KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. S,
SECTION 104) .
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
74
FINANCIAL DISCLOSURE REPORT
NOMINATION
Report Required by the tthica
Refers Act ot 1989. Pub. L
101-194. Hovenber }0, lie
(S U.S.C. App. t, 101-1131
1. Pereon Reporting (Leat lune. flrat. alddie Initial)
RENDELL, MARJORIE 0.
3. Court or Organisation
U.S.D.C. (E.D. Pa.)
3 . Date of Report
01/07/97
«. Title (Article III judqea Indicate active or
aenlor atatua; Naglatrate judgea Indicate
full- or part-tlaa) ^
DISTRICT COURT JUDGE (ACTIVE)
S. Report Type (check appropriate type)
X Moalnetion. Data 01/07/97
Initial Annual Pinal
C. Reporting Period
01/01/0« - 13/I6/9C
7. Oiaiiibera or Office Addreaa
UNITED STATES DISTRICT COURT
601 MARKET STREET, ROOM 3H4
PHILADELPHIA, PA 19106
8. On Che baaia of the in£or«ation contained in thla Report and
any aodificationa pertaining thereto, ic ia. in ay opinion,
in coMpliance with applicable law* and regulatlone.
Raviawing Officer Date
IHPORTAirr HOTBSi The InatrucUona accoeqianylng chla fona auat be follomd. Qxmlete aU part*,
checking the MOMB box for each aectlon where you have no reportable Information. Sign on laat page.
I. POSITIONS. (Reporting individual only; aee pp. 9-13 of Xnatructlona. )
PQglTIQN NAME OF ORGANIZATION /ENTITY
NONE (Ho reportable poaltlonal
Director and Vice-Chair
Avenue of the Arts. Inc.
Member. Board of Overseera College of Arts&Sciences-Univ. of Pennsylvania
Trustee Board of Trustees. University of Pennsylvania
U. AGREENlENTS* (Reporting Individual only; aea pp. 14-17 of Xnatructlona.)
DATE PARTIES AND TERMS
I I NONE (No reportable agreenenta)
HI. NON-INVESTMENT INCOME. (Reporting Individual and apouae; aee pp. 11-35 of Inatructlona.
DATE SOURCE AND TYPE
NONE (No reportable non-lnveatment Income)
□
1996 City of Philadelphia (spouse salary - amount n/a) $ JLj
$
$
$
$
75
FINANCIAL DISCLOSORE REPORT
Name of Person Reporting
RENDELL, MARJORIE O.
Date of Report
01/07/97
IV. REIMBURSEMENTS and GIFTS tran,port.tlon. lodging, food, ,ncert.ln™.nt
( Includes those to spouse and dependent children; use the parencheClcals "(S)" and •(DC)" to indicace reporCabl
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 36-29 of Instruction
SOURCE DESCRIPTION
f NONE
(No 8uch reportable reifflbursenenta
glfta
EXEMPT
n
OTBKR Gil? is. ■.(Includes those to spouse and dependent children: use the parentheticals " (SI " and '(DC)' to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of XnstrucCions
SOURCE
NONE
DESCRIPTION
VALI
(Ho such reportable gifts)
VI.
n
LiIaoJULII ]Jco> (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical " (S) " for separate liability of the spouse, " (J» • for joint liability of
reporting individual and spouse, and " (DCl ' for liability of a dependent child. See pp. 34-3$ of Instructions.)
CREDITOR DESCRIPTION VALUE COl
NONE
(No reportable liabilities)
United Savinaa Bank
1/2 mortgage on vacation duplex
(one rental prop.: one personal use
VALOE CODBS
I J • SIS.OSO or Isea It • SIS. 001 - $SO,000
If • 9}S0,001 - $500,000 0 • iSOO.OOl - $1,000,0
L • $90,001 • SlCrO.OOO
P - More than SI. 000. 000
H • $100,001
76
FINANCIAL DISCLOSURE REPORT
HAme of Paraon Reporting
RENDELL, MARJORIE O.
Data oC Raporc
01/07/97
VU. Page 1 I^fVESTMENTS and TRUSTS mco
and (topendttnc children- See pp. 37-S4 oC In
alue.
ions (Includes those of spouse
A.
Description of Aasttts
(InoludlnQ crust asaats)
Indicate where applicable, owner of
the asset by using the parenthetical
'(J)* Cor lolnc ownership of report-
ing Indlvldusl and apouse. *{S}* for
separate ownership by spouse, ■ (DCJ ■
for ownership by Sependent child.
PUce •<X)- after each asset
exeopt frooi prior disclosure.
Incooe
during
reporting
period
C.
arose value
at end of
D.
Transactions during reporting period
(11
SSL'
(A-HI
(21
Type
i!v^-
(11
Value2
Code
(J-PI
(2)
Value
Method}
Code
(Q-m
111
buy; sail,
■srgec,
redenp-
tionl
tt not axe^t (torn disclosure
Month.
Day
13)
Value2
Code
(J-PI
(41
Oalnl
Code
(A-HI
(5)
Identity of
transaction)
NONE (No reportable
Incooe, assets, or
transactiona)
I Schwab Money Market Fund (IRA
rolloverl
B
Dividend
T
3 Vanguard P/I Short Ten Corp.
(IRA rollover)
C
Dividend
T
} Brandywlne (IRA rolloverl
C
Dividend
T
4 Oakmark Fund (IKA rolloverl
C
Dividend
T
5 Kauffman Fund (IRA rolloverl
*
Dividend
T
< Scudder Global Fund (IRA
rolloverl
»
Dividend
T
7 20ch Century Int'l (IRA
Rolloverl
A
Dividend
T
• Federated 2-S yr. Oovt. (IRA
R/OI
B
Dividend
T
» Cowen Opportunity (IRA R/OI
B
Dividend
T
10 Dodge 4 Cox atock (IRA R/OI
A
Dividend
T
11 Dreyfus S.I. Oovt. (IRA R/OI
C
Dividend
T
U PAH Value (IRA R/OI
»
Dividend
T
13 Janus Fund (IRA R/OI
*
Dividend
T
1« PA. Mutual (IRA R/OI
c
Dividend
T
IS HAS BquitydRA R/OI
D
Dividend
T
16 SoGen International (IRA R/OI
A
Dividend
T
17 Schwab Honey Mkt (IRA contrtbl
A
Dividend
T
18 Kaufmann (IRA concribi
A
Dividend
^
T
1 Incooe/Oain Codes: A-S1,000 or less 8-Sl,001 to )3,S00 C-S},S01 to SS.OOO O-tS.OOl to $15,000
(See Col Bl k D<l E-$15,001 to SSO,000 F-is6,001 Co $100,000 O-ll00,001 Co $1,000,000 H-Hore Chan $1,000,000
2 Value Codaa. J-SIS.OOO or leea K.SIS.OOI Co S50.000 L.S50,001 Co SIOO.OOO M.$100,001 Co $250,000
(See Col. CI t 031 1I-S2S6,001 CO $500,000 0-SSo6,001 to $1,000,000 P>Hore than $1,000,000
1 Value Method Codsei O-Apprslsal R>Casc(rssl estate onlyl S-Assesoent T-Cash/Harksc
(See Col. ai B-Book Value V>0ther H.Bstiisated
77
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
RENDELL, MARJORIE O.
3ate of Report
01/07/97
VII. Page 2 I>fVESTMENTS and TRUSTS
and dependent children. See pp 37-S<
(Includes those of apouae
Oeacrlptlon of Aaseta
(including truat aaaeca)
Indicate where applicable, owner of
the aiaet by uaing Che parenthetical
•(J)" for lolnc ownerahlp of report-
ing individual and apouae, '(S)* for
aeparace ownerahip by apouae, • (DC) ■
for ownership by dependent child.
Place '(X)* after each asaet
exeunt from prior diaclosure.
during
reporting
period
C.
Groaa value
at end of
reporting
period
Tranaactiona during reporting period
(11
«inc.l
Code
lA-Hl
€-or
(11
Value:
Code
IJ-Pl
(21
Value
Method]
Code
(Q-Wl
(1)
Type
(e.g. ,
buy; aell,
merger.
"ion?
tf not exempt from diacloaure
(2)
Date:
Month
Day
(3)
Value2
Code
(J-PI
(41
Gainl
Code
(A- HI
(51
Identity of
buyer/aeller
(If private
tranaactionl
NONE (No reportable
income, asaets, or
transact iona)
19 SoG«n Int'l (IRA contrib)
A
Dividend
J
T
20 Schwab Money Market (IRA R/01
*
Dividend
J
T
21 SoGen Int'l (IRA R/0) (S)
A
Dividend
J
T
22 Schwab Honey Market (IRA
contrib) (Si
*
Dividend
J
T
23 Hilliam Blair Growth (IRA
contrib) (S)
»
Dividend
K
T
24 ATtT (J)
A
Dividend
^
T
25 Abbott Laboratories (J)
A
Dividend
J
T
26 Allergan (J)
A
Dividend
-
T
27 Atlantic Energy (J)
A
Dividend
J
T
» «i».i= «ic«i,M ,a,
B
Dividend
L
T
A
Dividend
J
T
30 Coc« Col« (J)
*
Dividend
^
T
31 Disbold Inc. (Jl
A
Dividend
J
T
32 Oreaaer Induacrles (J)
A
Dividend
J
T
33 DuPont E I DeNemouT IJl
A
Dividend
L
T
A
Dividend
^
T
A
Dividend
J
T
36 Federal N»fl Mortgage *»aoc
A
Dividend
K
T
1 Incooie/Oaln Codee : ^-Sl.OOO or leea B-Sl.OOl Co S2,500 C-SZ.SOl Co SS.OOO D-55.001 to 315,000
(See col, Bl i Ml E.|l4.001 to SiO.OOO P-lsO. 001 to SlOO, 000 G-llio. 001 to h, 000, 000 H-Hor. than ll, 6oO, 000
2 Value Codes, J-SIS.OOO or leaa K.S15,001 to S50.000 L.S50,001 to S100,000 M-SlOCOOl to S250,000
(Sa. col, CI 4 D3I N.|2S6,001 to $500,000 O-lsOO.OOl to 31.000.000 P-More than SI, 000. 000
3 Value Kethod Codoa. Q.»ppralaal R-Coac(real eatate onlyl S-Asaeament T-Caeh/Market
(See Col C3) a.SSSx Value v-other H-Batlmated
78
FIHAMCXAL DISCLOSURE REPORT
Name o£ Person Reporting
RENDELL, MARJORIE O.
Date of Report
VII. Page 3 INVESTMENTS and TRUSTS -- income.
and dependent children. See pp. 37-54 of Instn
A.
Deacrlption of Assets
(including trust assets)
Indicate where appllcabla. owner of
the asset by using the parenthetical
•(J)" for loint ownership of report-
ing individual and apouae, "(S)* for
separate ownership by apouae, "(DC)'
for ownership by dependent child.
Place -(X)' after each asset
exempt from prior disclosure -
Income
during
reporting
period
C.
Gross value
at end of
reporting
period
D.
Transactions during reporting period
(1)
Code
(A-HI
(2)
Type
t'ent or
Inc.l
(11
Value2
Code
(J-Pl
(21
Value
MethodJ
Code
(Q-W)
Typ^''
(e.g. .
buy, sell,
merger,
red amp-
If not exempt from disclosure
(2)
Month-
Day
(3)
Value2
Code
(J-PI
(41
Oainl
Code
(A-H)
(SI
Identity of
buyer/seller
(If private
transaction)
KONE (Ho reportable
37 (Sannett (J)
*
Dividend
J
T
3B General Electric IJ)
*
Dividend
K
T
39 Gillette Co. (J)
A
Dividend
«
T
40 Household International (J)
A
Dividend
J
T
41 Loews International (J)
»
Dividend
K
T
42 Lucent Technologies (Jl
A
Dividend
J
^
43 McDonalds Corp. (J)
*
Dividend
-
T
44 Mobil (J)
A
Dividend
«
T
45 Motorola Inc. (J)
A
Dividend
J
T
4fi NL Industries (J)
A
Dividend
J
T
47 Pepsico Inc. {J)
A
Dividend
J
T
46 Public Service Enterprise Grp.
A
Dividend
^
T
49 SmithKllne Beecham ADR (J)
A
Dividend
"
T
50 Sprint Corporation (J)
A
Dividend
K
T
51 3£0 Cotnnunicationa Co. (J)
A
Dividend
J
T
52 Tremonc Corp. (J)
A
Dividend
^
T
S3 Vulcan Materials (J)
A
Dividend
J
T
54 Wal-Mart Stores, Inc. (Jl
A
Dividend
^
T
' iSSrsif^g.^fSJi S:|h°Sg.°L^I?5.oco l:y6°§5i^?o'ii!?%oo l-.\\-.f.lo\\l\VU...o l:l&:l''\^%\\Ml%oo
' ^lircSr'?i . 03, 2:|H6?SSx'Eo^llSo,ooo S:|l^6»§ii^?„'l?:§§S,ooo^:Si;;°?LS°.!!2S6"22o "-'-."o-o «so.ooo
' 'fsircSt'-g.^-^-^ 8:jggE'i:!i. ;:g?Ki-^ """ """" S:j;?j:^s5 T.c«./H.r..t
79
FINANCIAL DISCLOSURE REPORT
Name of Parson Reporting
RENDELL, MARJORIE O.
Date of Report
01/07/97
VII. Page 4 INVESTMENTS and TRUSTS ■- i„co
and dependent children. See pp. 37-54 uC In
lona (Includes those of spouse
A.
Description of Assets
(Including trust assets)
Indicate whore applicable, owner of
the asset by using the parenthetical
"(J)" Cor lolnt ownership of report-
ing Individual and spouse, *(S]^ for
separate ownership by spouse, "(DC)"
for ownership by dependent child.
Place -(X)- after each asset
exein)t from prior disclosure.
B.
Income
during
reporting
period
C.
Gross value
at end of
reporting
period
D.
Transactions during reporting period
Amt.l
Code
(A-H)
Type
111
Value2
Code
(J-Pl
(21
value
Method]
Code
lo-m
111
Type
le g.,
buy; sell,
merger,
redemp-
tlonT
it not exeapt froa dlacloaure
(21
Date:
Month-
Day
131
Vmlue2
Code
IJ-PI
141
^^
(A-U)
(5>
Identity of
buyer/seller
(If private
transaction)
NONE (No reportable
income, assets, or
S5 Wells Pargo & Co. (J)
*
Dividend
K
T
Sfi Xerox Corp. (J)
*
Dividend
«
T
S7 OS T-Note S.62S% 8/97 (J)
A
Interest
-
T
58 OS T-Note 7.5* 12/98 (J)
K
Interest
.<
T
59 Huni Inv Tr\ist Series 14 (J)
A
Dividend
J
T
60 Muni Inv Trust Series 13 (J)
*
Dividend
J
T
€1 Dreyfus Shcrt/Incerm Tax
Exempt Bond Fund (J)
C
Dividend
I
T
62 Schwab Tax Cxempt r*4 (J)
C
Dividend
H
T
'
6 3 Vangxiard Muni Short Tern Bond
Fund (J)
B
Dividend
^
T
64 Allergan, Inc. (DC)
A
Dividend
^
T
65 Atlantic Energy (DC)
*
Dividend
J
T
66 Atlantic Richfield (DC]
*
Dividend
J
T
67 BeOanan Instruments (DC)
*
Dividend
J
T
68 Dresser Industries (DC)
A
Dividend
^
T
69 DuPont <0C)
A
Dividend
J
T
10 Huffy Corp. (DC)
»
Dividend
J
T
71 Mobil (DC)
A
Dividend
^
T
72 NL Industries (DC)
A
Dividend
J
T
1 Income/Gain Codes: A-Sl,000 or less B-fil,001 to 32,500 C-S2,S0l to $5,000 D>$S,001 to S15,000
(See Col. 81 & D4) B-$1S,0QI to $50,000 P«$50,001 to $100,000 G-$I0O.00I to $1,000,000 H**tor« than 91,000,000
2 Value Codas: J-SlS.OOO or leas K-SIS,001 to 550,000 L-S50,00l to $100,000 M-$100,001 Co 5250.000
(See Col. CI fc D3) N-S2S6,001 to 5500,000 O-S500,00l to $1,000,000 P-More thin Sl,0o6,000
3 Value Method Codes; Q-Appralsal R«Cost(resl estate only) S-Assasment T«C«sh/Karkat
(See Col. C3] U-Book Value v.othar W-Bseimaced
80
FIHANCIAI. DISCLOSURE REPORT
HaiDtt of Person Reporting
RENDELL, MARJORIE O.
[late of Report
01/07/97
VII. Page 5 INVESTMENTS and TRUSTS ■ i„co«.. v.i
and dependent children. See pp. 37-54 of Inatructl
(Includes those of spouse
Description of Assets
(including trust Assets)
Indlcace where applicable, owner of
the asset by using the parenthetic*!
•(J)" for loinc ownership of report-
ing individual and spouse, "(S)* for
separate ownership by spouse, * (DC) "
Cor ownership by dependent child .
Place "(Z)" after each asset
exeeipt froa prior disclosure.
B.
Incoeie
durlna
reporting
period
C.
Oroaa value
at end at
reporting
period
D.
Tranaactiona during reporting period
<ll
»mt.l
Code
(A-HI
111
, Type
^Ht'or
Int.l
(11
(J-PI
(2)
Value
Methods
Code
(Q-HI
Type
(e.g. ,
buy: aell.
merger.
If not exempt from disclosure
Month-
Day
131
Value2
Code
(J-PI
(«l
Gainl
Code
(A-HI
(5>
Identity of
buyer/aeller
(If private
transaction}
NONE (No reportable
income, assets, or
transactions)
73 SmithKline Beecham ADR (DC)
*
Dividend
«
T
74 Toys R Us (DC)
Dividend
J
T
75 Ctf Accrl Trsy Srm Ot 11/98
(DC)
»
Intereat
J
T
7« Schwab Honey siarkt PD (DC)
A
Dividend
K
T
"
7«
7»
•0
• 1
• 3
1
1
e]
•4
as
•c
• 7
•a
•>
90
1 IncoM/Oaln Oodaa: A-Sl.OOO or Usa B-Sl.OOl to 5J.500 CSJ.SOl to S5.000 o-»S.0Ol to SIS.OOO
ISM Col. Bl t Ml g-JlS.OOl to SSO.OOO P-lsO.OOl to $100,000 O-SIOO.OOI to SI. 000. 000 H-Mor« than }1, 000,000
] Value Codea: J.StS.OOO or leaa IC.SIS.OOI to SSO.OOO L-SSO.OOl to $100,000 M-JlOO.OOl to S3S0.000
(Sae Col. CI 4 031 K-SJSO.OOl to 3500,000 0-3So6.00l to SI. 000. 000 P-Moro thin SI. 000. 000
) Value Method Codea 1 O-Appralaal R-Coat (real aetata onlyl S-Aaaeeieent fCaah/Herket
(See Col. C3I O-Book Value v.other K-Betlmated
81
FINANCIAL DISCLOSURE REPORT
Name of P«raon Reporting
RENDELL, MARJORIE O.
Date of Report
01/07/97
Vni. ADDITIONAL INFORMATION or EXPLANATIONS. (moict. p.r<: ot ».port i
NOTE: INFORMATION PROVIDED IN SECTION VII IS AS OF 12/18/96.
82
FINANCIAL DISCLOSURE REPORT
ttane of Pttraon Reporting
RENDELL, MARJORIE O.
D«c« of Report
01/07/97
K. 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 at the time after reasonable inquiry, I did not perform any
adjudicatory function in any litigation during the period covered by this repc
in which I, my spouse, or my minor or dependent children had a financial
interest, as defined in Canon 3C(3) (c) , m the outcome of such litigation.
I certify that all the 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, amd 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 emd honoraria
and the acceptance of gifts which have been reported are in compliance with th
provisions of 5 U.S.C^-app. 7, section 501 et. seq., 5 U.S.C. 7353 and Judicia
Conference regulations.
Signature
NOTE: ANY INDIVIDUAL
THIS REPORT MAY BE SUBJE
SECTION 104) .
0(g_>^^
'nn-i
OWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE
O CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. 6,
PILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosiure
Administrative Office of the United States Courts
Onoe Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
MARJORIE O. RENDELL
83
NHT WORTH (as of December 18,1996)
Provide a complete, current rinwicioJ net aonh suiement which itemizes in detji]
ill iiseii (Iflcludiflg binJc accounis, real esuic, jecuriDcs, crusu, invesanenti. ind other fLninciii
holdings) iU liabilides (including debts, mortgiges, loins, tnd other nninciil obligadons) of
yourseU', your spouse, and other imrnediaie memben of your household.
1 ASSETS
LuaaxrtEs j
1 Cuh 00 Nmd uid in b>nb
3
300
NaU4 p4y»blc u b4Aki-««air«d
! 1
U.S. Co<tusffl<oi Mcuriaei->^
Khaduli
No(£i p«>-kbk to b4Al:j-uiVi«cvffcd
Uiud .ceanoci-«<U wioduU (attached)
1,681
705
**
Noui ptytbic u reluiva
Unluu^ luiniics-tiid icAeduU
Noiu piyihlc to od«n
Accocj^u md no'xt nt£<iviblc:
.\ccounu uid bilU due (misc)
2
000
Du< tnm rUuv« iM frScndi
10,
XX)
Unpaid income lu
D««fainm*«Bi father's estate
5,
300
Olbcr unp4id lu and inicrut
Doub<Ail
Rul uuu nonfifei pijribU-idd
'<*>«"«1« attached
278
000
RuJ utait oim«d-.rl4 •<*«^*Attached
605,
XX)
Quad awnmes ind other lieni pty-
XttJ nuu moil|itei rauivibU
Micr debu-ituniu:
AaM and e6cr penoul prapeny
50,
XX)
Cub vtluc-Uft ifuuruice
Ovhe uica-iu3iizt;
Money market - Schwab*
244,
)42
.
Tool liibOidet
280,
000
-
Net Worth :
,320,
047
TeUl AjwU
2.600.
147
Totil Uibilitiw ind net wonb ;
,600,
047
CONTP.CE.ST U.^IUnES
GENERAL D.t6rMATI0N
Aj cadorscr, oooulicr or |ui.iiiior
none
An any uku pledfed? (Add Khcd-
aJe.) no
Oa ku4i or eonneo
none
An yvu defcsdant B any loiti or le|aj
aclaoalT no
Lt(kl Gauiu
none
H«»e ynu jvct taluo bintov;«ry? no
Pro«iiion Tm FadcrtJ lftco(n< Tu
none
1
Oihc; ipecitJ 4<b<
none
____
Inoludaa :
$187,952
34,617
21,835
118
$244,542
- joint account
- IRA pension (M.O. Randall)
- cuatodlan (for J.T. Randall)
- IRA (B.a. Randall)
Includes all
securities
In IRAs and
pension funds
84
/
^^<^-c.J>-(-( >f?A:. ^0
1973. Ma villxam tbfriR oaotrTH.SHS
Ua.TlS COCEN INTERMATXOfML EMNO
14.9000
37. MOO
„,.*03.44
I16.00#-«0
(III', VocU'.J^ y .k^^ ' C^Jl'.^l
i
46a
8o28
ALLEROAN Xl
■ 4TIC E
STIC -
ERGV INC
BECkMAN XH^ThS -
LERa
J&. -,
Rl INDUSTRIE:
SMITMkLTNE BCl
1 AM REP 5 CL A
INT 11.75X14
cis.Bti.r
11. 141. 1
85
Marjorie O. Rendell
SCHEDULE ■? - pp^y
Property
3425 Warden Drive
Philadelphia, PA
5032-34 Asbury Avenue
Ocean City, NJ
61^35. QUO
11370. OtiO
Mortgage
$ 130,000
$ 148,000
Both mortgages held by:
United Savings Bank
P. O. Box 25087
Philadelphia, PA 19147
A'^.Qf^A oe A
86
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any fonner names used.)
Bruce William Kauffman
2. Address: List current olace of residence and offlce address(es).
Office Address:
Dilworth, Paxson, Kalish
& Kauf&nan LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
3. Date and place of birth.
December 1, 1934
Atlantic City, New Jersey
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 Carol Jackson Kauffman.
Occupation: Marketing
Employer: Lawyers' Travel Service
4000 Beli Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
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
Degree Awarded: LL.B (1959)
Dates Attended: Sept., 1956 - May, 1959
87
University of Pennsylvania
Degree Awarded; Bachelor of Arts (1956)
Dates Attended: Sept.. 1953 -- June, 1956
Duke University: Sept., 1952 -- June, 1953
EiiiDlo>TneDt Record: List (by year) all business or professioDal
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.
1982 - present: Chairman -- Dil worth. Paxson. Kalish & Kaufftnan LLP
1965 - 1980 Partner - Dilworth, Paxson, Kalish & Kauffman
1960 -- 1965 Associate - Dilworth, Paxson, Kalish & Kauffman
1995 -- present: Adjunct Professor ~ University of Pennsylvania
School of Law
1995 - present: USABancShares, Inc. - Chairman, Board of Directors
1980 - 1982: Justice of the Supreme Court of Pennsylvania
1959 -- 1960: Clerk to the Honorable Vincent S. Haneman of the
Superior Court of New Jersey, Appellate Division
1956 - 1958: City of Ventnor. New Jersey - Lifeguard
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.
Honors and Awards: List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
University of Pennsylvania -• Phi Beta Kappa (1955)
Yale Law School -- Order of the Coif (1959)
Jewish National Fund Tree of Life Award (1996)
Community Legal Services Champion Award (1995)
Philadelphia Police "Assist Officer Award" (1989)
88
Judge Learned Hand Human Relations Award (1988)
Anti-Defamation League Torch of Libert>' Award (1983)
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 Law Insiitute
Fellow, American College of Trial Lawyers (1975- ) (Chairman
of Subcommittee of the Federal Judiciary Committee on Judicial
Compensation) (1994- )
Fellow, International Academy of Trial Lawyers
Fellow, American Bar Foundation
Fellow, Pennsylvania Bar Foundation
American Bar Association
Pennsylvania Bar Association
Member - House of Delegates (1987)
Philadelphia Bar Association
Philadelphia Bar Foundation. President (1982 - 1984)
Committee of Censors — United States District Court for the
Eastern District of Pennsylvania, (1976 - 1980)
Pennsylvania Judicial Inquiry
and Review Board (1984 - 1988), Chairman (1988)
Pennsylvania Bar Association Judicial
Selection Reform Committee (1983 - 1984)
The Juristic Society
The Federalist Society (1989 - 1992)
The American Judicature Society
Lawyers' Club
89
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 the following organizations, none of which, to my knowledge,
engage in lobbying before public bodies:
Yale Law School Association. Vice President (1984 -- 1986)
Yale Law School Association of the
Philadelphia Area, Past President (1965 -- 1966)
The Yale Club (1959- )
Navy League of the United States, Life Member (1986)
The Pennsylvama Society (1970- )
Fellow, Phi Beta Kappa Associates (1978- )
Phi Beta Kappa Association of the Delaware Valley
Supreme Court Historical Society
The Union League of Philadelphia (1979- )
United States Coast Guard Auxiliary (Retired Status)
Overbrook Italian-American Club (1975- )
Atlantic City Country Club (1991- )
Vesper Club (1984- )
11. Court Admission: List all courts in which you have be«n 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 (1965)
United States Courts of Appeals:
United States Court of Appeals for the District
of Columbia Circuit (1988)
United States Court of Appeals for the First Circuit (1973)
United States Court of Appeals for the Third Circuit (1961)
United States Court of Appeals for the Fourth Circuit (1977)
4
90
United States Court of Appeals for the Fifth Circuit (1983)
United States Court of Appeals for the Eighth Circuit (1989)
United States Court of Appeals for the Ninth Circuit (1970)
United States District Courts:
United States District Court for the Eastern
District of Pennsylvania (1960)
United States District Court for the District of New Jersey (1960)
United States District Court for the District
of the District of Columbia (1988)
State Courts:
Supreme Court of the Commonwealth of Pennsylvania (1961)
Supreme Court of the State of New Jersey (1960)
Court of Appeals for the District of Columbia (1982)
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.
• Judicial Selection in Pennsylvania: A Proposal, 27 Villanova L. Rev.
1163 (1982) (supporting merit selection of judges)
• Civil RICO Litigation Involving Banks: The Developing Case Law, 9
Delaware J of Corp. Law 1 (1984)
• The Philadelphia Special Investigation Commission: Dissenting
Statement of Commissioner Bruce W. Kauffman, 59 Temple L.
Quarterly 411 (1986)
• The Philadelphia Police Advisory Commission: Dissenting Statement of
Commission Member Bruce W. Kauffman: In re Molses Dejesus
• The National Law Journal, April 10, 1995, "A Conservative Plea to
Save LSC
91
13. Health: What is the present state of your health? List the date of your last
physical examination.
My health is excellent. I received my most recent general physical examination
in December, 1996.
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.
On February 26, 1980, I was appointed by Governor Dick Thornburg to fill an
unexpired term as a Justice of the Supreme Court of Pennsylvania. Upon the
expiration of my term in January, 1982, 1 chose not to run as a partisan
political candidate.
The Pennsylvania Supreme Court is the Commonwealth's highest appellate
court, with plenary jurisdiction of all appeals from the Permsylvania Superior
and Commonwealth Courts.
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 afTirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for significant opinions
on federal or statf 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) Significant Opinions on Federal and State Constitutional Issues:
• Commonwealth v. Hayes. 489 Pa. 419, ..
414 A. 2d 318 (1980) (concurring opinion) '^
- Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (1981)
- Commonwealth v. Wadzinski, 492 Pa. 35. 422 A. 2d 124 (1980)
92
.Commonwealth v. Virtu, 495 Pa 59, 432 A. 2d 198 (1981)
• Commonwealth v. McElligott, 495 Pa. 75, 432 A. 2d 587 (1981)
• Commonwealth v. Robinson, 497 Pa. 49,
438 A, 2d 964 (1981) (dissenting opinion)
- Commonwealth v. Scott. 496 Pa. 78, 436 A. 2d 161 (1981)
. CommorM-ealth v. Stamps, 493 Pa. 530, 427 A. 2d 141 (1981)
2) Reversals:
None of my Pennsylvania Supreme Court opinions were reversed by the
United States Supreme Court.
3) Other Significant Opinions:
- In re Albert Compolongo, 495 Pa. 627. 435 A. 2d 581 (1981)
- Pennsyhania Industries for the Blind & Handicapped v. Larson,
Secretary of Transportation. Comm , 496 Pa. 1, 436 A. 2d 122 (1981)
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 1967 I was elected as a Delegate to the Pennsylvania Constitutional
Convention, and scrsxd until the Convention concluded in 1968 In 1973 and
1974 I served as an elected member and Chairman of the Montgomery County
Government Study Commission In 1966 I ran unsuccessfully in the primary
election for the Pennsylvania State Legislature. In 1978 I ran unsuccessfully in
the primary election for the Pennsylvania Supreme Court.
I have also served on the following public commissions and investigative
bodies:
• Member of the Philadelphia Police
Advisory Commission (1994- )
(appointed by Mayor Edward Rendcll)
' Co-Chairman of the Philadelphia
Election Reform Task Force (1994- )
(appointed by Mayor Edward Rendcll)
93
- Chairman (1988), Pennsylvania Judicial Inquir>' and Review
Board (1984 - 1988)
(appointed by Governor Dick Thomburg)
• Chairman of the Mayor's CommissioD on Minority
Employment in the Philadelphia Police Department (1982)
(appointed by Mayor William Green)
• Member, Philadelphia Special Investigation
Commission ("MOVE Commission") (1985 -- 1986)
(appointed by Mayor Wilson Goode)
. Chairman of Civil Service Commission,
Lower Merion Township (1982 - 1988)
(appointed by Commissioners of Lower Merion Township)
17a. Legal Career: 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;
During 1959 and 1960, I clerked for the Honorable Vincent S.
Haneman of the Superior Court of New Jersey, Appellate Division.
2) whether you practiced alone, and if so, the addresses and dates;
Since concluding my clerkship with Judge Haneman, my exclusive
affiliation has been with the Dilworth Firm, excepting only my service
between 1980 and 1982 as a Jusucc of the Pennsylvania Supreme Court.
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;
• Dilworth, Paxson, Kaljsb
& KaufTman LLP
3200 The Mellon Bank Center
1735 Market Su-eet
Philadelphia. Pennsylvania 19103
Chairman (1982- )
Chairman of Litigation Department (1975 -- 1980; 1992- )
Partner (1965-- )
8
94
Associate (1960 -- 1965)
• UNIVERSITV OF PENNSYLVANIA
SCHOOL OF LAW
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Adjunct Professor (1995- )
17b 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 individual practice has foc.used on complex conunercia] litigation.
Although my practice has expanded into many areas over my thirty-
seven years as a lawyer, its principal focus has always been civil
litigation .
2) Describe your typical former clients, and mention the areas, if any,
in which you have specialized.
I have had the opportunity to represent hundreds of corporate and
individual clients during my practice, including Linon Industries,
Occidental Petroleum Corporation, Dr. Armand Hammer, Excel
Communications, Spectro Industries, Inc., Frank Sinatra, the Barnes
Foundation, Donald Trump, Montgomery County (Pennsylvania), the
School District of the City of Philadelphia, The Philadelphia Electric
Company ("PECO"), as well as a coalition of four United States
Senators, five members of the House of Representatives and three
Governors before the United States Supreme Court challenging the
closure of the Philadelphia Naval Shipyard.
My areas of specialty include antitrust law, civil rights law, contract
law, statutory interpretation, constitutional law, commercial fraud,
environmental law, regulatory law, and the law of defamation and libel.
17c. 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.
Throughout my thirty-seven year legal career, I appeared in both federal
and state courts on a frequent basis
95
2) What percentage of these appearances was in:
(a) federal courts: 75%
(b) state courts of record ; 25 7c
(c) other courts; 0%
3) What percentage of your litigation was:
(a) civil: 95%
(b) criminal: 5%
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 would estimate that, as chief counsel, I have tried approximately
twenty cases to a verdict or judgment. During my thirty-seven years of
practice, I also have served as associate counsel in numerous other
cases that were tried to verdict or judgment.
5) What percentage of these trials was:
(a) jury: 5%
(b) non-jury: 95^
10
96
IS. 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 fmal 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.
1. Pia77a V Major League Baseball.
Reported Decisions:
Piazza V. Major League Baseball,
836 F. Supp. 269 (ED. Pa. 1993)
Piazza V. Major League Baseball,
831 F Supp. 420 (ED. Pa. 1993)
Summary: For the first time since the Supreme Court's 1922 decision
declaring the "business of baseball " to be exempt from antitrust regulation, a federal court
held that such antitrust immunity was narrowly limited to conduct involving baseball's reserve
clause, which wai not at issue in the case.
As lead counsel. I represented the plaintiffs, who had been excluded from a
group attempting to purchase the San Francisco Giants Baseball Club (as a result of
defamatory statements made by representatives of Major League Baseball concerning the
background of one client). In a landmark antitrust decision, the District Court held that Major
League Ba.seball's 70 year old judicially created exemption from federal antitrust laws did not
immunize Baseball's conduct in excluding plaintiffs. After extensive discovery and
immediately before jury selection, I negotiated a favorable financial settlement on behalf of
the plaintiffs, and obtained on their behalf a formal apology from Major League Baseball. As
lead counsel for plaintiffs, I presented all oral arguments, deposed the central witnesses, and
directed the trial team in all phases of the litigation.
Parties Represented: Vincent M. Piazza and Vincent N. Tirendi
Dates: 1992 - 1994
11
97
Court: United States District Court for the Eastern District of Pennsylvania,
before The Honorable John R Padova.
Co-Counsel:
Mark J. Levin, Esq.'
Ballard Spahr Andrews & Ingersoll
1733 Market Street, 51st Floor
Philadelphia, Peiuisylvania 19103
(215) 864-8200
Counsel for Defendants:
Arthur Makadon, Esq.
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
(215) 864-8200
Robert J. Khccl, Esq.
Willkie, Fan- & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4669
(212) 821-8234
2. Specter v. John H. Dalton. Secretary of the XaY>'.
Reported Decisions:
Dalton V. Specter, 114 S. Ct. 1719 (1994)
Specter V. Garrett, 971 F.2d 936 (3d Cir. 1992)
Specter v. Garrett. Ill F. Supp. 1226 (E.D. Pa 1991)
Suoimary: During the 1993 round of military base closures, the Base Closure
Commission recommended that the Philadelphia Naval Shipyard be shut down, which would
result in the loss of thousands of jobs and have a devastating impact on regional businesses
that served the Shipyard. I served as lead counsel in a bipartisan pro bono effort to keep the
Shipyard open. After extensive discovery, it became clear that the Commission had failed to
comply with the express mandates of Congress. Although my argument was twice successful
in the United Sutes Court of Appeals for the Third Circuit, the Supreme Coun ultimately
Mr. Levin was a parmer at the Dilworth Firm through 1996.
12
98
decided that the federal courts lacked jurisdiction to review base closure decisions. As lead
counsel for plaintifts, I supervised all phases of the litigation, deposed the critical witnesses,
and presented the oral arguments before the district court and the court of appeals.
Parties Represented; United States Senators Arlcn Specter, Harris Wofford,
Bill Bradley and Frank R Lautenberg; United States Representatives Robert E. Andrews,
Curt Weldon, Marjorie Margolies-Mczvinsky, James C. Greenwood and Robert A. Borski;
the Commonwealth of Pennsylvania and its Governor Robert P. Casey and Attorney General
Ernest D. Preate, Jr.; the State of New Jersey and its Governor James J. Florio and Attorney
General Fred DeVesa; the State of Delaware and its Governor Thomas R. Carper; the City of
Philadelphia, the International Federation of Professional and Technical Engineers, Local 3;
the Metal Trades Council, Local 687 Machinists; Planners Estimators Progressmcn &
Schedulers Union, Local No. 2; and Union representatives William F. Reil, Howard J.
Landry and Ronald Warrington.
Dates: 1991 -- 1994
Courts: United States Supreme Court; United States Court of Appeals for the
Third Circuit, before The Honorable Walter K. Stapleton, The Honorable Anthony J. Scirica,
and The Honorable Samuel A. Alito, Jr.; United States District Court for the Eastern District
of Pennsylvania, before The Honorable Ronald L. Buckwaltcr.
Co-Counsel:
Senator Arlen Specter
Green Federal Bldg., Room 9400
Sixth and .Arch Streets
Philadelphia, Pcnnsylvama 19106
(215) 597-3580
Counse] for Defendants:
Drew S. Days (former U.S. Solicitor General)
Yale Law School
P.O. Box 208215
New Haven, Connecticut 06520-8215
(203) 432-4948
Scott R. Mcintosh, Esq.
Department of Justice
Civil Division. Appellate Staff
950 Pennsylvania Avenue, N.W.
Washington, DC. 20004
(202) 514-1201
13
99
Stuart M. Gerson, Esq.
Epstein, Becker & Green, PC.
1227 25lh Street, N.W.. Suite 700
Washington, DC. 20037
(202) 861-0900
3. Philadelphia Newspapers. Inc. v Borough of Swarthmore.
Reported decisions:
Philadelphia Newspapers, Inc. v Borough of Swarthmore,
381 F. Supp. 228 (E.D Pa. 1974)
Summary: In a case of first impression in the federal courts, the district court
held that a borough ordinance totally prohibiting the placement of newspaper honor boxes on
public sidewalks violated the First and Fourteenth Amendments to the Federal Constitution.
In so holding, Judge Fogel concluded that the First Amendment guaranteed publishers the
right to distribute newspapers by means of honor boxes or other vending devices placed on
public sidewalks, subject only to reasonable, narrowly tailored regulation as to the place and
maimer of distribution. The borough's blanket prohibition of newspaper honor boxes,
concluded the district court, could not be squared with the Supreme Court's long recognition
of "the imporunce of the right of access to public streets for the free dissemination of
mformation." As lead counsel, I obtained a preliminary injunction restraining the borough's
enforcement of the ordinance and, following a two day trial, .succeeded in obtaining
permanent injunctive and declaratory relief against the borough.
Parties Represented: Philadelphia Newspapers, Inc.
Date: 1974
Court: United Sutes District Court for the Eastern District of Pennsylvania,
before The Honorable Herbert A. Fogel.
Co-Counsel:
Richard L. Bazelon, Esq.
Bazelon & Less
1515 Market Street
7th Floor
Philadelphia, Pennsylvania 19102
(215) 568-1155
14
100
Counsel for Defendants:
G. Gu> Smith. Esq.
Harris & Smith
211 West State Street
Media, Pennsylvania 19063
(610) 565-5300
4. In re the Barnes Foundation.
Reported Decisions:
In re ihe Barnes Foundation. 453 Pa Super. 243, 683 A. 2d 894 (1996)
In re the Barnes Foundation. 449 Pa. Super. 81, 672 A. 2d 1364 (1996)
In re the Barnes Foundation. 14 Fiduc.Rep.2d 92, appeal dis.,
661 A. 2d 889 (Pa. Super. 1995)
In re the Barnes Foundation. 12 Fiduc.Rep 2d 349 (1992),
aff'd. 430 Pa Super 655, 630 A. 2d 468, appeal denied. 535 Pa 628,
631 A. 2d 1002 (1993)
Summary: The preservation of a world class, priceless art collection was
threatened by provisions of the eccentric, seventy- year old Trust Indenture of Dr. Albert C.
Barnes, which prohibited even the temporary removal of any part of the collection from the
walls of a rapidly deteriorating facility. Before the Montgomery County Court of Common
Pleas. Orphan.s' Court Division, I successfully overcame determmed opposition and won
approval of the Barnes Foundation's requests to permit a one-time micmational exhibition
tour of approximately eighty works of art from the Foundation's preeminent collection of
Impressionist and Post-Impressionist paintings. The international tour raised more than $16
million and generated good will for the Foundation. The funds raised from the tour enabled
this public charity, whose endowment was being depleted, to undertake a critically needed
restoration project to modernize the Foundation's deteriorating systems and to install a statc-
of-the art security system to monitor the entire collection, 1 served as lead trial counsel and
presented all appellate arguments before the Superior Court.
Parties Represented: The Barnes Foundation and its Trustees (Richard H.
Glanton, Esq., Shirley A. Jackson, Ph.D., Niara Sudarkasa, Ph.D., Charles A. Frank, HI,
and Cuyler H. Walker).
Dates: 1992 to present; court proceedings in 1992, 1993 and 1995.
15
101
Courts: Pennsylvania Supreme Coun; Pennsylvania Superior Court, before
The Honorable James R Cavanaugh, The Honorable John T. J. Kelly. Jr., and The
Honorable Peter Paul Olszewski, and before The Honorable Patrick R. Tamilia. The
Honorable James E. Rowley, and The Honorable Thomas G Say lor. Court of Common Pleas
of Montgomery County, Pennsylvania, Orphans Court Division, from 1992 to 1994, before
The Honorable Louis D. Stefan; from 1992 to the present, before The Honorable Stanley R.
Ott.
Co-Counsel:
Mason Avrigian, Esq.
Wislcr, Pearlstine, Talone, Craig,
Garrity & Potash
484 Norristown Road
Blue Bell, Pennsylvania 19422
(610) 825-8400
Counsel for Other Parties:
S. Gordon Elkins, Esq.
Jeffrey A. Lutsky, Esq.
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, Pennsylvania 19103-7098
(215) 564-8013
Marvin Garfinkel. Esq.
Mesirov, Gelman, Jaffe, Cramer & Jamieson
1735 Market Street
Philadelphia, Pennsylvania 19103
(215) 994-1450
Lawrence BarUh, Esq. - Assistant Anomey General
21 S. 12th Street
3rd Floor
Philadelphia, Pennsylvania 19107
(215) 560-2402
J. Brooke Aker. Esq
60 East Perm Street
P.O Box 150
Norristown, Pennsylvania 19404
(610) 275-8200
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102
Arthur L, Jenkins, Jr., Esq.
325 DeKalb Street
P.O. Box 710
Norristown, Pennsylvania 19404
(610) 275-8222
S. American Bearing Co. v. Litton Industries. Inc..
Reported Decision:
American Bearing Co. v. Litton Industries, Inc. ,
729 F 2d 943 (3d Cir. 1984)
Summary: I represented defendant Litton Industries in an action brought by
American Bearing alleging Uiar Litton had attempted to monopolize the market for certain
bearing components of industrial air pollution control devices. In a successful effort to
remedy a miscarriage of justice and unfortunate antitrust precedent, I led the team effort to
obtain a new trial and then served as lead trial counsel following remand to the district court.
Following an initial two week jury trial resulting in a verdict for plaintift, the district court
granted defendant's motion for a new trial (I did not participate in the original trial). On
retrial, the district court granted my motion for a directed verdict. The Third Circuit
affirmed I participated in and supervised the briefmg on appeal and presented the successful
oral argument
Parties Represented: Litton Industries, Inc.
Dates: 1982 -- 1984
Courts: United States Court of Appeals for the Third Circuit, before The
Honorable Arlin M. Adams, The Honorable Edward R. Becker, and The Honorable Francis
L Van Dusen, United States District Court for the Eastern District of Pennsylvania, before
The Honorable Raymond J. Broderick.
Co-Counsel:
David H. Pinmsky, Esq.
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 864-8117
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Counsel for Plaintiff:
Gary Wynkoop, Esq. (deceased)
Blank Rome Comisky &. McCauley
Four Penn Center Plaza
Philadelphia, Pennsylvania 19103
(215) 569-5500
6. Pennwalt Corp. v. Centaur Partners.
Reported Decision:
Pennwalt Corp. v. Ceniaur Parinen,,
710 F. Supp. Ill (E.D. Pa. 1989)
Sununary: In a case of first impression under Pennsylvania's newly enacted
anti-takeover statute, I served as lead counsel in challenging the statute's constitutionality My
client. Cenuur Partners, a major Pennwalt shareholder, attempted to call a shareholders
meeting to vote on removing obstacles to a possible acquisition of Permwalt by Centaur or a
third party. Pennwalt's board of directors brought an action in federal court seeking to block
the shareholders meeting. Centaur opposed the restraining order, arguing that the anti-
takeover statute, upon which Pennwalt's board was relying, violated the Coiruncrce Clause of
the Federal Constitution. While the district coun initially rejected Pennwalt's various
abstention arguments, it ultimately concluded that there was no direct conflict between the
anti-takeover statute and federal law. While the case was on apf)eal. a third-party offered to
purchase Pennwalt's shares at a price approximately 30% above that which Centaur was
offering, and the board accepted the bid.
Parties Represented CenUur Partners
Date: 1989
Courts: The United States District Court for the Eastern District of
Permsylvania. before The Honorable Robert S. Gawthrop, III.
Co-Counsel:
David H. Pittinsky, Esq.
Ballard Spahr Andrews & Ingcrsoll
1735 Market Street. 5 1st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 864-8117
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Counsel for PlaintifT:
Matthew J Brodcrick, Esq.
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
(215) 994-2652
7. Township of Phmouth v. County of Montgomery
Reported Decisions:
Township of Ptymouth v. County of Montgomery ,
121 Pa. Conunw. 303, 550 A.2d 1033 (1988)
Township of Plymouth v. Montgomery County,
109 Pa.Commw. 200, 531 A.2d 49 (1987)
Sununary: The Commissioners of Montgomery County, Pennsylvania
determined that a trash-to-stcam facility was necessary to protect the environment of the entire
County and to resolve the County's growing refuse disposal crisis. Although everyone
recognized that such a facility was needed, residents of Plymouth Township (in which the
facility was to be located) believed that it should be built in someone else's township.
Reflecting the "not in my back yard" theme, Plymouth Township brought suit against
Montgomery County seeking a declaration that the County's trash-to-steam facility violated
recently enacted Township zoning laws. Despite exceptionally bitter opposition, I obuined a
judicial declaration that the Township's zoning laws were invalid, and defeated the
Township's prolonged legal challenges to block the critically needed facility. As lead counsel
for the County, I presented all arguments and supervised all aspects of the litigation team's
efforts.
Parties Represented : County of Montgomery
Dates: 1986 - 1988
Courts: The Commonwealth Court of Pennsylvania, before The Honorable
David W. Craig, The Honorable Bernard L. McGinley, The Honorable James Crumlish, Jr.,
The Honorable John A. MacPhail, The Honorable Joseph T. Doyle and The Honorable
Francis A Barry; Court of Common Pleas of Montgomery County, before The Honorable
Wilson Bucher. on Special Assignment from the Court of Common Pleas of Lancaster
County.
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Co-Counsel;
Shcryl L. Auerbach, Esq.
Dilworth, Paxson, Kalish & Kauffman, LLP
3200 The Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
(215) 575-7124
Counsel for PlaintifT:
Arthur W. Lcfkoe, Esq (retired)
Wisler, Pearlstein, Talone, Craig,
Garrity & Potash
484 Norristown Road
Blue Bell, Pennsylvania 19422
(610) 825-8400
8. Robert Bruce. Inc. v. Sears. Roebuck & Co..
Reported Decision:
Robert Bruce, Inc v Sears, Roebuck & Co. ,
343 F. Supp. 1333 (ED. Pa. 1972)
Summary: In a case pitting a "modem merchandising monolith" against a
much smaller clothing manufacturer, I succeeded in defending the enormously valuable
trademark rights of my client, Robert Bruce, Inc., which had spent years developing and
marketing its highly successful "Grubb" line of clothing. At the lime this trademark
infringement action was brought, the "Grubb" line represented 50% of Robert Brucc's total
clothing sales In 1971 Sears Roebuck began selling jeans under the "Neets n Grubs"
trademark, and refused the demand of Robert Bruce to cease and desist from the infringing
conduct. After a two week trial in which I served as lead counsel, the district court held that
the "Grubb" mark was "arbitrary and fanciful." rather than descriptive, and was thus entitled
to protection without proof of secondary meaning. The district court further held that the
'Neets D Grubs ' mark created a likelihood of consumer confusion, and thus enjoined Sears
from further use of the mark.
Parties represented: Robert Bruce, Inc.
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Co-Counsel:
Arthur H. Seidel, Esq.
Scidel, Gonda, Lavorgna & Monaco, PC.
Two Pcnn Center, Suite 1800
Philadelphia, Pennsylvania 19102
(215) 368-8383
Dates: 1971 -- 1972
Court: United States District Court for the Eastern District of Pennsylvania,
before The Honorable Edward R. Becker.
Counsel for Defendaot:
Burton Y. Weitzenfeld, Esq.
120 South Riverside Plaza
Chicago, Illinois 60606
(312) 876-7100
Charles M. Allen. Esq.
Howsen & Howsen
P.O. Box 457
Spring House, Pennsylvania 19477
(215) 540-9200
9. Molinari v. Commonwealth of Pennsylvania. Department of Transportation.
Commonwealth Court of Pennsylvania, No. 453 M.D. 199 (1993)
Summary: In this bid contest case, I represented Envirotesi Partners, one of
the largest African-.^merican owned and managed companies in the nation Following a
comprehensive evaluation of proposals submitted in response to the Commonwealth's Request
for Proposals ("RFP"), the Commonwealth awarded Envirotest the contract to implement and
operate an enhanced centralized vehicle emission insf>ection program required to bring
Pennsylvania into compliance with the Federal Clean Air Act Amendments of 1990. A
disappointed bidder sought to enjoin the contract award, alleging, inter alia, that the RFP
points awarded to Envirotest as a Socially/Economically Restricted Business ("SERB") had
been improperly calculated by the SERB evaluation comminec In effect the disappointed
bidder was challcngmg the administration of the entire SERB program. Following a six day
trial during which I served as lead counsel for Envirotest, the Commonwealth Court held that
Envirotest 's SERB points had been properly calculated and upheld the Commonwealth's
selection of Envirotest to implement the emissions testing program.
Parlies Represented: Envirotesi Partners
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Dates: 1993
Court: Commonwealth Coim of Pennsylvania, before The Honorable James R.
Kelley.
Co-Counsei:
John L. Heaion, Esq.
(then Chief Counsel of Pa. Dept. of Transporuiion)
Weiss, Weiss & Weiss
802 Walnut Street
P.O. Box 838
Lebanon, Pennsylvania 17042
(717) 273-1661
Counsel for Plaintiffs:
Michael D. Reed, Esq.
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg. Pennsylvania 17110
(717) 232-5000
10. Bethlehem Steel Corp. v. Litton Industrie.s. Inc.
Reported Decision:
Bethlehem Sreel Corp. v. Litton Industries, Inc.. 321 Pa. Super. 357, 468 A 2d
748 (1983), aff'd, 507 Pa. 88, 488 A.2d 581 (1984)
Summary: As lead counsel, I defended Litton and its Lake Erie shipbuilding
division in a $95 million breach of contract claim brought by Bethlehem Steel. In 1968,
Bethlehem Steel purchased a 1000 foot, state-of-the-art, self-unloading iron ore carrier from
Litton for transporting ore between Michigan mines and Pennsylvania steel mills. At the end
of 1968, Betlilehem and Litton executed a two page "option" letter under which Linon
offered to construct up to five similar ships for Bethlehem within the next five years. In the
ensuing years, however, Bethlehem repeatedly told Litton that it did not intend to order any
additional ships, and Litton began dismantling its Lake Erie shipbuilding facilities.
In 1973, Bethlehem reversed course and purported to order three new 1000
foot self-unloading iron ore carriers. After the parties were unable to reach agreement on
critical contract terms, particularly with respect to inflation indexing, Bethlehem broke off
negotiations and filed a $95 million breach of contract claim in the Allegheny County
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Common Picas Court. Following a nine month trial, the court held that the two page option
letter, executed by two of the nations largest corporations, could not have been intended by
the parties to constitute an enforceable option coDtract. Following en banc review by three
judges of the Common Pleas Court, the decision was affirmed by both the Pennsylvania
Superior and Supreme Courts. I served as Litton's lead counsel for both the trial and the
ap(>eals in this case.
Party Represented: Litton Industries. Inc.
Court: Pennsylvania Supreme Court, before The Honorable John P Flaherty,
The Honorable William D. Hutchinson, The Honorable Rolf Larscn, and The Honorable
Stephen A. Zappala; Superior Court of Pennsylvania, before The Honorable William F.
Cercone, The Honorable John P. Hester, The Honorable James R Cavanaugh, The
Honorable Richard B Wickersham, The Honorable James E. Rowley, The Honorable Donald
E Wieand. and The Honorable T Sidney' Hoffman; Court of Common Pleas of .Allegheny
County, before The Honorable Maurice Louik.
Co-Counsel:
Carl H. Hanzelik, Esq.
Diiworth, Paxson, Kalish & Kauffinan, LLP
3200 The Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
(215) 575-7150
Counsel for Plaintiff:
William B. Mallin, Esq.
Eckert Seamans Cherin & Mcllott
600 Grant Street
Pittsburgh, Pennsylvania 15219
(412) 566-6027
Hon. Robert L. Byer
Kirkpatrick & Lockhart, LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
(412) 355-6500
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Curtis H. Barnette, Esq.
President &. CEO
Bethlehem Steel Corp.
8lh & Eaton Avenues
Bethlehem, Pennsylvania 19180
(216) 694-2424
I have had contact with the following judges and attorneys within the last five
years:
The Honorable Edward R. Becker
United Sutes Court of Appeals for the Third Circuit
601 Market Street, Room 19613
Philadelphia, Pennsylvania 19106
(215) 597-9642
The Honorable Raymond J. Broderick
United States District Court for the
Eastern District of Pennsylvania
601 Market Street, Room 10613
Philadelphia, Pennsylvania 19106
(215) 597-7500
The Honorable Robert S Gawthrop, III
United States District Court for the
Eastern Distnct of Pennsylvania
601 Market Street, Room 7613
Philadelphia, Pennsylvama 19106
(215) 597-6143
The Honorable John R. Padova
Umted States District Court for the
Eastern District of Pennsylvania
601 Market Street, Room 7614
Philadelphia, Pennsylvania 19106
(215) 597-1178
The Honorable Louis H. Pollack
United States District Court for the
Eastern District of Pennsylvania
601 Market Street, Room 16613
Philadelphia, Pennsylvania 19106
(215) 597-9590
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The Honorable Arlin M. Adams
Schnader, Hainson, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103-7286
(215) 751-2072
Richard H. Glanton. Esq.
Reed, Smith, Shaw & McClay
2500 One Liberty Place
Philadelphia, Pennsylvania 19103-7301
(215) 851-8120
Anhur G. Rayncs, Esq.
Rayne.';, McCarty, Binder, Ross & Mundy
1845 Walnut Street
Suite 2000
Philadelphia, Pennsylvania 19103
(215) 568-6190
David Berger, Esq.
Berger & Montague, PC
1622 Locust Street
Philadelphia, Pennsylvania 19103-6365
(215) 875-3030
Jerome J Shestack. Esq.
Wolf, Block. Schorr & Solis-Cohen
12th Floor, Packard Building
15th & Chestnut Streets
Philadelphia, Penn.<;ylvania 19102-2678
(215) 977-2290
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19. Legal Activities: Describe the most significant legal actiyities 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.)
• MeiloD Bank. N.A. v. Richard I. Rubin. Inc.: In a series of lawsuits in the
Court of Common Pleas of Philadelphia County, before the Honorable Sandra
M. Moss, Mellon Bank sued my clients, Richard I. Rubin & Co., Inc., Ronald
Rubin and related entities, on account of Rubin's refusal to close on the
purchase of the Two Mellon Building. Mellon sought injunctive relief to force
Rubin to close the transaction. Subsequent to the Court's denial of Mellon's
motion for the injimction, a disastrous fire destroyed the adjacent building. One
Meridian, reducing the market value of Two Mellon by 90%, and Mellon
claimed damages exceeding S42 million After extensive discovery and
numerous court appearances, the parties entered into a settlement agreement
favorable to Rubin
• Chair — Commission to Preserve Legal Funding for All: I led the fight to
restore over $2 million in state funding for legal services to those in need but
unable to afford a lawyer.
• Pennsylvania Judicial Inquiry and Review Board: While serving on this
Board between 1984 and 1988, the final year as Chairman, I reviewed
complaints brought against members of the judiciary and, where appropriate,
recommended disciplinary action to the Pennsylvania Supreme Court.
• Philadelphia Special Investigation Commission: During its two year
investigation, I served on the MOVE Commission, appointed by Mayor Wilson
Goodc to investigate the causes of a police action resulting in the deaths of a
number of children and adults and the destruction of an entire city block. Our
Commission focused not only on the causes of this tragedy, but on finding
ways to ensure that it would never be repeated,
• Pardon of Dr. Armand Hammer: Dr. Armand Hammer pled guilty to
making an illegal campaign contribution to President Nixon's 1972 Reelection
Campaign. As lead counsel in seeking a Presidential pardon for Dr Hammer, I
reviewed the guilty plea and filed briefs with the Pardon Attorney of the
Department of Justice. Dr. Hammer's pardon was granted by President Bush in
1989.
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II. FLNANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, aiaounts and dates of all anticipated receipts from deferred
iDcome 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.
Under my original agreement with the Dilworth Firm, in accordance with its
standard ten year retirement program, I was to receive $200,000 annually
during my first five years of judicial service, and $100,000 annually for each
of the following five years. To minimize any potential for the appearance of
conflict, however, the Firm has agreed to pay for the five annual $100,000
installments through a fully paid up ahnuity funded by the Firm during the first
five years of my judicial service. Payments under this annuity shall be
administered by an independent third party. I intend to recuse myself in any
case in which the Dilworth Firm is involved during the entire ten year period
in which I am to receive payments under my retirement program. A copy of
my agreement with the Firm is included as Attachment "A."
In 1995, USABancShares granted me options to purchase up to 30,000 shares
of the Company's common stock.
Explain how you will resolve any potential conflict of interest, including
the procedure you will follow in determioins 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.
I will resolve any potential conflict of interest through adherence to the Rules
of Judicial Conduct. More specifically, if my appointment to the federal
judiciary is confirmed, I intend to recuse myself in any case in which the
Dilworth Firm is counsel of record. I will also recuse myself from any case in
which a former client or a business entity in which I have an interest is a
party, in which USABancShares is party, or in which the University of
Pennsylvania is a party.
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.
If my appointment to the federal judiciary is confirmed, I will resign as
Chairman of the Board of Directors of USABancShares, Inc.
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During the past two fall semesters, I served as an Adjunct Professor of Law at
the University of Pennsylvania's School of Law and would hope to continue
doing so if confirmed. If I do continue teaching at Pcnn, I would, of course,
recuse myself in any lawsuit in which the University is a party.
4. List sources and amounts of aU 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 Atuchmcnt "B" (Form AO-10)
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See Attachment "C" (Financial Net Worth Statement)
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.
In 1991, I served in Ronald D. Castille's campaign in the Philadelphia mayoral
race. The campaign ended in June, 1991, when Mr. CastiUe, who is now a
Justice of the Supreme Court of Pennsylvania, was defeated in the Republican
primary election, I also served in Justice Castille's successful campaign for
election to the Supreme Court of Pennsylvania.
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III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's
Code of Professional Responsibilit)' called 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 speciHc instances and the amount of
time devoted to each.
- Chair - Commission to Preserve Legal Funding for All: I led the fight to
restore over S2 million in state funding for legal services to those in need but
unable to afford a lawyer. Between meetings in Philadelphia, Harrisburg, and
Washington, I spent several hundred hours in this effort.
• Philadelphia Navy Yard Litigation: I represented a bipartisan coalition of
elected officials and Shipyard workers in a three year legal effort to prevent the
Shipyard's unlawful closure. During the course of litigation that ended in the
Supreme Court, the Dilworth Firm expwnded over $1 million in legal time on a
pro bono basis.
• Philadelphia Police Advisor^' Commission: Esublished by Mayor Rendell in
1994, the Police Advisory Commission has been given the vital task of
monitoring and improving the relationship between the Philadelphia Police
Department and the communities and citizens the Department serves. From the
Commission's inception, I have participated in all phases of its work,
reviewmg not only individual allegations of abuse, but broader issues of police
policy and procedures. I spend several hours per month on Commission related
activities.
• Mayor's Task Force on Minority Employment in the Philadelphia Police
Department: At the request of Mayor William Green, I chaired a commission
that studied and issued a unanimous report on measures to remedy the low
minority representation in the Philadelphia Police Department. I devoted
approximately one hundred hours to Task Force meetings and in preparing the
Final Report.
• Philadelphia Special Investigation Commission: During its two year
investigation, I served on the MOVE Commission, appointed by Mayor Wilson
Goode to investigate the causes of a police action resulting in the deaths of a
number of children and adults and the destruction of an entire city block. Our
Commission focused not only on the causes of this tragedy, but on finding
ways to ensure that it would never be repeated. Televised hearings took place
over several weeks, and I estimate that I devoted five hundred hours of time to
MOVE Commission work.
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115
. Philadelphia Bar Foundation - President: The Foundation raised substantial
funds for distribution to many worthy charities. During the year in which I was
President of the Foundation, I devoted several hours per week to Foundation
related activities.
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 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 dune to try to change
these policies?
To the best of my knowledge, none of the organizations to which I belong
(disclosed in response to Question I-IO, supra) discriminates on the basis of
race, sex. or religion. The Union League of Philadelphia, to which I have
belonged since 1979, first accepted women as fiill members in 1983.
3. Is there a selection commission in your jurisdiction to reconmiend
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).
I have appeared twice before the Federal Judicial Nominating Commission of
Pennsylvania, most recently on June 12, 1997, and previously, in early 1996.
In conjunction with my June 12, 1997 interview, I submitted a revised personal
data questionnaire to the Commission. I also interviewed with representatives
of the Department of Justice, the FBI, and the American Bar Association.
Although I have not received formal notice, I presume that the Commission
recommended my Nomination to the federal judiciary.
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."
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116
The role of the Federal judiciar> within the Federal government, and
within society generally, has become the subject of increasing controrersy
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, afTirmative 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 the Constitudon's framework of divided powers, the role
assigned to the judiciary is not to construct the law from the policy
choices ot mdividual judges, but to interpret and apply that law which
the elected members of our legislative branch have enacted As
Hamilton rccogmzed in Federalist No. 78, the judiciary was the "least
dangerous branch" precisely because it had neither "Force nor Will, but
merely judgment " The courts must not be transformed into a laboratory
of social engineering, but should limit their role to that of applying the
law to the cases and controversies brought before them. In short, it is
the obligation of judges not to make the law, but to interpret the law
made by those elected to do so.
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rv. CONFroENTIAL
1 . FuU name (include aay former names used.)
Bruce William Kauffman
2. Address: List current place of residence and office address(es). List all
office and home telephone numbers where you may be reached.
Current Residence:
1820 Rinenhouse Square
No. 601
Philadelphia, Pennsylvania 19103
(215)735-2111
Office Address:
Dilworth, Paxson, Kalish
& Kauf&nan LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
(215) 575-7001
3. Have you ever been discharged from employment for any reason or have
you ever resigned after being informed that your employer intended to
discharge you?
No.
4. Have you and your spouse Hied and paid all taxes (federal, state and local)
as of the date of yoiu- nomination? Please indicate if you filed "married
filing separately." Did you make any back tax payments prior to your
nominations? If so, give full details.
As of the date of my nomination, my wife Carol and 1 have paid all federal,
state, and local taxes owed as of thiit date. Since our marriage, Carol and I
have filed joint returns. For tax year 1996, we filed a timely request for
extension, under which we received an extension until August 15, 1997 to file
our 1996 federal income tax return. As of July 2, 1997, all presently calculable
federal income tax liability for 1996 was paid in full. On July 14, 1997, we
made an estimated payment for tax year 1997 of $15,000.
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Has a tax lien or other collection procedure (to include receipt of connputer
balance due noticed, ever been instituted against you by federal, state, or
local authorities? If so, give full details.
I have always filed my tax returns and/or requests for extensions in a timcl>
fashion With the exception of tax year 1995, I have obtained the abatement of
late payment penalties for each tax year in which, due to the cash flow
problems described below, I was unable to pay my full tax liability by April
15th. I did not seek an abatement of the late payment penalty for tax year 1995
because it was approximately $600.00, and thus it was less expensive to pay
the penalty than to go through the abatement process. I have received "balance
due" notices from the IRS for ux years 1992 through 1995, and anticipate
receiving a balance due notice for 1996. All "balance due" notices have been
paid in full.
The following sets forth my total federal iiKome ux liability for tax years 1992
through 1996, as well as the date and the amount of my final payment for each
tax year:
Amount of
Tax Year Tax Liability Pate Paid in Full Final Payment
1996 $177,410 (est.) 7/2/97 $11,003
1995 $118,854 11/26/96 $54
1994 $206,956 7/15/96 $14,517
1993 $120,298 6/19/95 510,000
1992 $138,312 12/28/93 $78,926
As explained in my successful requests for abatement of late payment penalties,
in early 1992 the Dilworth Firm lost almost 50% of its parmers, and following
this restructuring, suffered a similar percentage decline in its annual revenues.
During the late 1980's the Firm had also incurred a substantial debt which,
when combined with this drastic revenue reduction, threatened the Firm's
viability.
Through the sacrifices of its partners and a conservative fiscal policy, the Firm
has survived and prospered. In that process, however, my own annual salary
has been cut almost in half from its levels in the late 1980 s. When combined
with my divorce settlement, my own cash flow has been insufficient to pay my
full income tax liability when due I have also worked out a payment schedule
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119
with the City of Philadelphia with respect to my real estate ux liabilities, to
which I have adhered.
I always tiled my returns or requests for filing extensions in a timely fashion
As of the date of my nomination, I have paid all federal, state, and local
income taxes that were due.
6. Have you or your spouse ever been the subject of any audit, investigation,
or inquir> for either federal, state, or local taxes? If so, give full details.
No.
7. Have you or your spouse ever declared bankruptcy? If so, give particulars.
No
8. Have you to your knowledge ever been under federal, state, or local
investigation for a possible violation of either a civil or criminal statute or
administrative agency regulation? If so, give full details. Has any
organization of which you were an officer, director, or active participant
ever been the subject of such an investigation with respect to activities
within your responsibility? If so, give full details.
No
9. Have you ever been the subject of a complaint to any court, administrative
agency, bar association, disciplinary' committee, or other profes.<;ional
group for a breach of ethics, unprofessional conduct or a violation of any
rule of practice? If so, give particulars.
No
10. Have you ever been a party (whether plaintiff, defendant or in any other
capacity) to any litigation?
I have been a party in two divorce proceedings. In addition, other than in my
official or representative capacity as a Justice of the Supreme Court of
Pennsylvania, or of the various commissions and/or governmental bodies
disclosed herein, I am aware of three suits filed against the Firm in which I,
together with other partners in the Firm, were individually named. In one suit.
123 South Broad Street Corp. v. Cushman & Wakefield. Inc . et al.. Coun of
Common Pleas. Philadelphia County. Civil Action No. 88-12-5304, brought by
a previous landlord of the Dilworth Firm, I was originally named a party but
34
120
quickJy dropped, and the dispute was subsequently resolved. The name, current
address, and telephone number of counsel for plaintiff in that lawsuit is:
Richard M. Squire, Esq.
Astor. Weiss, Kaplan «S: Rosenbaum
The Bellevue
Broad & Walnut Streets
Philadelphia, Pennsylvania 19102
(215) 790-0100
I was also named individually, along with certain other members of the Firm's
Executive Committee, in two suits brought by former partners of the Firm
seeking, inter alia, the return of their capital accounts. Both of those matters
have been settled. The following reflects docket numbers, and the current
addresses and telephone numbers of opposing counsel in the lawsuits brought
by the former partners:
Edwin Goldsmith v. Dilworth. Paxson. Kalish Sc Kauffman. ct al.. Court of
Conunon Pleas, Philadelphia County, Civil Action No. 93-04-02165
Counsel for Plaintiff:
Alan S. Fellheimer, Esq.
Fellheimer, Eichen, Braverman & Kasky
One Liberty Place, 21st Floor
1650 Market Street
Philadelphia. Pennsylvania 19103-7334
(215) 575-3900
Neil E. Jokelson, Esq.
Neil E. Jokelson & Associates, PC
230 South Broad Street
Philadelphia, Pennsylvania 19102
(215) 735-7556
Daniel Evans v. Dilworth. Piixson. Kalish & Kauffman. et al . Court of
Common Pleas, Philadelphia County, Civil Action No. 94-01-02786
35
121
CouTT-el for Plaintiff.
Richard P. Myers, Esq.
Paul, Reich & Myers, PC
1411 Walnut St, Suite 500
Philadelphia, Pennsylvania 19102
(215) 972-7090
II. Plestse advise the Coininittee of any unfavorable information that may
affect your nomination.
I am not aware of any unfavorable informaiioii tliat may affect my nomination.
36
122
AFFIDAVIT
I, Bruce W. Kauffman, do swear that the information provided in this statement is,
to the best of my knowledge, true and accurate.
DATED: August 7, 1997
123
nNANCUL DISCLOSURE REPORT
FOR CALENDAR YEAR 1995
kIK!
ira Act of I9li. rub. L. He.
Kauffman, Bruce W.
Dilvrorth Paxson Kalish & Kauffnan
8/4/97
Oiairman
«ppropri«ct CVMI
Cn«rn£«ri or offict Addr«ia
Dilworth Paxson Kalish & Kauffman,
3200 Mellon Bank Center
1735 Market Street
c. Raporting P«rio4
1 'l'97-6 ' 30 97
pltcula'
K«viawin9 Qftn
ptiiiditeipiua. PA — t^tm
IMPORTANT NOTES: The imlnictioiu accompanying iliis form must be followed. Complete all parts,
checking the NONE box for each seclion where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.)
n
POSITION
NONE (No reportable positions)
Chainnan of the Board
Trustee (DC)
NAME OF ORGANIZATION/ENTITY
Current Ehploynient
Dilworth Paxson Kalish & Kauffman, LLP - Exhibit 1
USA BancShares Inc. - Exhibit 2
Lauri Ann Kauffman Trust UA/8/7/95
II. AGREEMENTS. (Rcportingindividualonly, see pp. 14-17 of Instructions.)
Q&I£ PARTIES AND TERMS
n
NONE (No reportable agreements)
Dilvrorth Paxson Kcilish & Kauffman
Judicial Bctixonnnt Program
1997
USA BanrSlvirpg . Tnr. (wniild resign)
Dilworth Paxson Kalish & Kauf firan
Botironpnt Plan and '101 (k)
See Part VII
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DAIE " - SgypCS AW TYPE
n
w^^fAi"^?.
NONE (No reponable non-inveslnent income)
The Lawyers Travel Service
Sole Proprietor-Advertising Services
Peoples Thrift Savings Bank
Dilvrorth Paxson Kalish & Kauffman
S 6.000
S433.500
S
124
FINkNCIAI. DISCLOSURE RIPORT
N«*« Of Mr«ofl Itcpomng
Kauffnan, Bruce W.
8 / 4/97
n
REIMBURSEMENTS and GIFTS -- irauponatioD. lodging, food, entenainmeiu.
(Includes those to spouse and dependent diildren; use the parentbeticab '(S)' and '(DC)' to indicate rcponable
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Inslnictions.)
SOURCE DESCRIPTION
NONS (No such reponable reimbursements or gifts)
E^cenpt
n
OTHER GIFTS. (Includes (hose to spouse and dependent children; use the parentheticals '(S)' and '(DC)' lo
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE DESCRIPTION
NOtn (Nosuch reportable gifts)
VALUE
Exenpt
n
LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical '(S)' for separate liability of the spouse. '(J)' for joint liability of
reporting individual and spouse, and '(DC)' Cor liability of a dependent child See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE
NONB (No reportable liabilities)
Great Lakes Higher Education Corp.
Jefferson Bank
Student Loan Financing
K
Includes Residence
Vanniic mnrfyirjcg anH rmrmoT-r-i a1
VALUE CODES:
SIS. 001 • 550.00
125
PUONCIAL DISCL0SUR8 RKPORT
Mmh or Mrsen ftapontiif
Kauffman, Bruce W.
Data ot Rapert
8 / 4/ 97
VII. Page I INTVESTMENTS and
and dependent children. See pp.
TRUSTS - income, value, transactions
37-54 of Insiructiou.)
(Includes those of spouse
D««erlpclon*et Aa««u
tinelujling crujt «■••»}
ladlcjcc wh«r« appllcajil*. e«Bar o(
cba aaaac by ujlng tfta puanuutteal
•(JJ- lot Joint oSnaranlTol taport-
Lnq Individual and apcuja. •($)* for
■ apanca owoarahlD by tpouaa. • IDC] '
Placa ■ (X) * aitar aacb aaaot
axa«pc froa prior dlaeloauro.
S-
"K'lod'ir
TTmnaaetlolia during rnportlng parlod
ss.;
(SI
(J-H
(Q-til
111
I« not axvnpt fro« dlKlo«ur« 1
buy? Jail.
valuas
coda
Coda
Idantlty 01
buyor/aallar
lit prlvaca
cranaactlon)
NONE ixo taponabla
incoaa. aaaata, or
tranaaetiona)
' Black Horse Pike Ltd 1984
D
Int.
M
T
' Prudential U.S. Treas. NW
A
Div.
K
T
' Insured Income Prud.
A
Int.
J
T
'
' Avenham Assoc. (Lim. Ptr)
B
Rent
J
W
1
' Galeria Assos. (Lim. Ptr)
B
Rent
K
W
1
' Tof trees Assoc. (Lim. Ptr)
B
Rent
J
w
Huntington Assoc. (Liju. Ptr)
A
Rent
K
w
* IRA Rollover 12-30-85
B
Div.
M
T
(see exhibit 3
Dilworth Paxson Retr Plan
E
Div.
M
T
( see exhibit 4 )
Dilworth Paxson Retr Plan
E
Div.
N
T
(see exhibit 5)
iiLauri Ann Kauffiten Tr (DC)
B
Int.
K
T
(see exhibit 6)
"oilworth Paxson 401 (k)
D
Div.
L
T
(see exhibit 7)
M
1 IneoM/OlU Codaa: k.Il.OOe or lau ••{1,001 u l],500 C-}}.SC1 co SS.OOO D.SS.001 CO SIS. 900
ISM Col. Bl k Ml Ctli.OOl to ISO.OOO P.lsi.OOl CO SIOO.OOO a>!l00.001 to il. 000. 000 H.iUra than il.OOO.OOO
a vaiua cod«a: J*sis,ooo or laat x-fis,ooi to sso.ooo usso.ooi CO SIOO.OOO M-sioo.ool to saso.ooo
(So Ool. CI < oil Il.hs6.001 to SSOO.OOO O-SSod.OOl to Sl.OOO.OOO P-Mora than SI. 000. 000
, . - XMMtmmMBL
T rB>h/Marka«
IS«« Col Cil 0>>oo> vaiua
v.«
h«r
K-laeiMCtd
126
rOIMtCIXL DISOOSURS REPORT
Hm of ptraon Raportuig
vm. ADDITIONAL ESFCXUVUTION or EXPLANATIONS. (ladicatc pan of Rcpon.)
DC CERimCATION.
In cotnpliance with the provisions of 28 U.S.C. § 4SS and of Advisory Opinion No. SI of the Advisory Cbmrunee on Judicial Aaivities.
and to the best of my knowledge a the time after reasonable inquiry, I did no) perform any adjudicatory finxion in any l:<igaiion dunng the
period covered by this report in whidi I. my spouse, or my minor or dependent children had a finanaal inerest, as defined m Canon 3C(3Xc).
In the oucome of such litigsbon.
I certify that all information givtn above (including informaticn pertaining to my spouse and minor or dependent children, if any) is accurate,
true, and corrplete lo the best of my knowledge and belief and that any information not reported was withheld because it met applicable
stanxory provisions permitting non-disclostie.
I firther certify thai earned income from outside employment and honoraria and the acceptance of gifb which have been reported ae ir
compliance with die provisiors of 5 U.SCA m^?. | SOI el seq., 5 U.SC § 73S3 and Judicial Conference regulations.
^^
M$/^^
SignBtuT
NOTE; ANY INDIVIDUAL \WK) KNOVklRxY AND WILFUU-Y FALSIRES OR FAILS TO RLE THIS flEPORT MAY BE SUBJECT
TOCTVILANDCRIMINALSANCnONS(5U.&CA. APP. 6,§ 104.)
FIUNG INSTRUCTIONS:
Mail sipad origiml aid 3 adftianti copies to:
Commitiee on rmanul DisclosiR
Adninistmvc Office of the
United Staes Couts
Ot« ColiitixB Orde, N.E., Suite 2-301
Washii«tan, DC 20S44
127
Exhibit 1
JXTOICIAL RETIREMENT PROGRAM
BRUCE W. KAUFFMAN
In the event that Bruce W. Kauffman is appointed to a federal
or state judicial office prior to December 31, 1997, the Executive
Committee seeks the authority of the partnership to enter into a
retirement program, the essential economic terms of which are as
follows:
1. Payment from the firm of $200,000 a year for the first
five (5) years and a fully paid annuity providing for an
additional $100,000 a year for an additional five (5)
years (paid $3,846 per week by the law firm for the first
five years, and $1,923.08 per week (unless the parties
otherwise agree) paid by the annuity company during the
second five years) , commencing the first calendar month
following confirmation and appointment to Judicial
office. The payments to be made by the firm in years 1
to 5 include his capital account as of December 31,
1994.^ Assuming no further payment of undistributed
1992, 1993 and 1994 income, 91.7962% of each payment
shall represent a retirement payment and 8.2038% shall
represent return of capital. The capital portion of such
payments shall decrease and the retirement portion
increase if additional 1992, 1993 or 1994 payments are
made to Bruce W. Kauffman before retirement. For income
tax purposes only, any negative tax capital shall be
reflected as income at the end of the last year in which
the firm makes any payment or, if earlier, the year of
dissolution.
2. The retirement income portion of the payments will
reflect certain characteristics embodied in a retirement
plan to be adopted soon for certain other partners,
including:
(i) no personal liability for any partner in
respect of these payments;
(ii) in the event of dissolution, the retirement
income portion of the obligation of the firm
to Bruce W. Kauffman is subordinated to all
^ The books and records of the firm reflect the following
capital accounts as of December 31, 1994, after consideration of
1995 and September 1996 distributions of 1994 income and the
provisions of paragraph 5 below regarding the $60,000 debt:
Book Capital Account $82,037.91
Tax Capital Account ($35,995.58)
128
outside creditors, financial institutions,
accrued compensation due any partners, and
partners' capital accounts; and
(iii) for the initial 5-year period, $110,000 of the
retirement income portion of the payments
shall be subject to an annual limitation on
the amount paid all retired partners
(including the above) in the amount of 5% of
the Distributable Net Income of the
partnership for the prior fiscal year or
similar benchmark amount in the event the firm
is operating as a professional corporation.
To the extent there is a shortfall in payments
on account of this provision, the shortfall
shall be added to the following year's target
number. Any shortfall remaining at the end of
5 years shall be paid at such time to Bruce W.
Kauf fman.
Contemporaneously, with the effectiveness of this
Judicial Retirement Program, the law firm will enter into
an annuity contract with a nationally recognized
insurance company or similar financial institution, that
when fully funded after 5 years, will provide an annuity
for $100,000 a year annual payments to Bruce W. Kauf fman
for years 6 through 10. An independent third party will
be appointed to enforce the payment provisions of the
annuity which are further described below. Bruce W.
Kauffman shall approve the annuity company and the third
party or trustee to be appointed. The firm shall pay all
costs and expenses associated with the annuity. All
payments due pursuant to the terms of the annuity to
Bruce W. Kauffman shall be made directly to him, his
estate and/or surviving spouse, as the case may be.
In a dissolution or liquidation, any undistributed
capital remaining owed to Bruce W. Kauffman shall have
the same priority in payment as the capital account of
other partners. No partner shall have personal liability
for payments of capital accounts of other partners.
All additional undistributed 1995, 1996 or 1997 profits
or capital due to Bruce W. Kauffman shall be paid to him
at the rate of 2.778% of such total per month with the
balance due, if any, at the end of the third year. The
current balance of 1995 and 1996 undistributed profits or
capital is $61,883.
The annual payments, annuity and post-1994 capital
account payments will constitute the entire obligation to
Bruce W. Kauffman for his capital account, severance
129
payment or otherwise, and the firm agrees to satisfy his
indebtedness owed to the firm in an amount not in excess
of $60,000 by way of a reduction to his capital account
as of 12-31-94.
7. The firm will assign all life insurance policies to Bruce
W. Kauffman who will assume all premium payments thereon.
8. The firm will move expeditiously to obtain all necessary
Bank consents to the above transactions, which are ar-
precondition to its implementation.
9. Should Bruce W. Kauffman die during the term of this
agreement, or during the term of the annuity, and if he
is survived by his spouse, the payments (except for those
due under paragraph 5 above, which shall continue to be
paid without diminution) shall continue at one-half of
the previous sum, with any reduction in payment applied
to the retirement income portion of the payment. Any
annuity payment not made to Bruce W. Kauffman or his
spouse shall be made to the law firm.
10. In the event that at any time during the ten years
following his retirement, Bruce W. Kauffman resigns his
judicial appointment and resumes the practice of law in
competition with the law firm within a radius of 150
miles from the firm's principal office in Philadelphia,
then this retirement program shall terminate and no
further retirement income payments shall be due or
payable hereunder or under the annuity. Any remaining
annuity payments shall be made to the law firm.
11. It is the intent of the parties that Bruce W. Kauffman
not recognize any taxable income on account of the
annuity unless and until he receives payments in years 6
through 10 and that the law firm not currently deduct any
payments to fund the annuity. Should Bruce W. Kauffman
be taxed currently on said amounts or on the value of
the annuity prior to the time it is paid, the firm shall
hold him harmless from such tax consequences by loaning
him the tax, and paying to him the interest and addition
to tax, if any, due from him (appropriately grossed up
for tax consequences) , with the loan to be recovered (up
to the amount of the tax saved as the annuity payments
are received) by the firm from the remaining annuity
payments on a pro rata basis or from any tax refunds that
may be due to Bruce W. Kauffman from taxes paid on
receipt of annuity proceeds, or such other appropriate
arrangement as the parties agree. Bruce W. Kauffman
shall notify the firm if any such tax claim is made and
the firm shall have the option to participate in the
resolution of the issue at its expense.
130
Exhibit 2
ADVISORY AGREEMENT
THIS AGREEMENT is made on Sg jUt^'^'yV- 1 9 9 S , between
BRUCE W. KAUFFMAN ( "Kauf fman" ) ; USABARCSHARES , INC . , a
corporation orgamized under the laws of the Commonwealth of
Pennsylvania (the "Company"); and PEOPLES THRIFT SAVINGS BANK, a
state-chartered savings bank organized under the laws of
Pennsylvania ("the Bank") . The Bank and the Company are referred
to collectively as the "Companies".
BACKGROUND
A. The Company is a registered bank holding company,
and the Bank is a wholly-owned subsidiary of the Company.
B. Upon the completion of first closing of the
initial public offering of Common Shares of the Company described
in the Prospectus dated July 20, 1995 (the "Closing"), the Bank
became the successor by merger to Peoples Thrift Interim Bank.
C. Kauf fman is the Chairman of the Board of the
Company and the Chairman of the Board of the Bank, and after
completion of the Closing will continue to be the Chairmam of the
Board of the successor by merger to the Bank.
0. Kauf fman has substantial experience in the fields
in which the Companies expect to operate. The Companies desire
to compensate Kauffman for his advice and service as Chairman of
the Board and for certain of his expenses in connection with such
service, and Kauffman is willing to serve as Chairman of the
Board under the terms and conditions set forth below.
NOW THEREFORE, the parties agree as follows, intending
to be legally bound:
1. Effective Date. This Agreement shall become
effective upon completion of the Closing (the "Effective Date").
2. Services. The Companies and Kauffman agree that
Kauffman will- serve the Companies as Chairman of the Board during
the period from the Effective Date until the day immediately
preceding the second amniversaury of the Effective Date.
3. Compensation. As compensation for serving as
Chairman of the Boaurd as required by this Agreement, Kauffman
shall be entitled to the following:
(a) Base Fee. The Companies shall pay to
Kauffman a fee of One Thousamd Dollars ($1,000.00) each month
131
during his service as Chairman of the Board, and a proraced
amount for each partial month.
(b) Options. At the Closing the Company shall
issue to Kauffman options (the "Options") to purchase up to
Thirty Thousand (30,000) Common Shares under the CSA BancShares,
Inc. Stock Option Plan (the "Stoc)t Option Plan") . The Ontions
shall be exercisable at a price of $10.00 per Common Share, and
shall be exercisable for a period of ten (10) years from the date
the Options are granted under the Stock Option Plan.
4. Expenses. The Companies shall reimburse Kauffman
promptly for reasonable out-of-pocket expenses incurred in
connection with his providing consulting services hereunder, upon
receipt of appropriate documentation therefor, up to a total of
Twelve Thousand Dollars ($12,000.00) for the first twelve months
of the term of this Agreement and Twelve Thousand Dollars
($12,000.00) for the second twelve months of the term of this
Agreement .
5. Taxes . Kauffman is responsible for paying any and
all federal, state and local income taxes assessed with respect
to all money, benefits and other consideration he receives from
the Companies under this Agreement, to the extent not already
withheld by the Companies; and the Companies are entitled to
withhold any tax payments from amounts otherwise due Kauffman to
the extent required by applicable statutes, rulings or
regulations.
6. Miscellaneous.
(a) Definitions . As used throughout this
Agreement, the term "Companies" includes USA BancShares, Inc.,
Peoples Thrift Savings Bank and their respective Affiliates and
all of their respective successors and assigns.
(b) Qovemina Law. This Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvamia.
(c) Modification. This Agreement may not be
modified orally but only by written agreement signed by Kauffman
and the Chief Executive Officer or Vice Chairman of both of the
Companies .
(d) Notices ■ All notices euid other
comir.unications required or permitted under this Agreement shall
be in writing and shall be deemed to have been duly given, made
and received when delivered (personally, by courier service such
as Federal Express, or by messenger) or when deposited in the
-2-
132
United States mails, registered or certified mail, postage pre-
paid, return receipt requested, addressed as set forth below:
If to the Bank:
Peoples Thrift Savings Bank
8 03 E. aermantown Pike
Norristown, PA 19401
If to the Company:
USABancShares , Inc .
One Penn Square
3 0 South 15th Street, Fourth Floor
Philadelphia, PA 19102
Attention: Chairman of the Board
If to Kauffman:
Dilwcrch, Paxson Kalish & Kauffman
3200 Mellon Building
1735 Market Street
Philadelphia, PA 19103
Any party may alter the address to which
communications or copies are to be sent by giving notice of such
change of address in conformity with the provision of this
Section for the giving of notice.
(e) aindir.o Nature of Agreement. This Agreement
shall be binding upon, and shall inure to the benefit cf the
Bank, the Company and their respective successors,
representatives, and assigns and shall be binding upon Kauffman,
his heirs, executors and legal representatives.
(f) Savings and Seoarabilitv. If any provision
of this Agreement is deemed unlawful or unenforceable by a court
of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
-3-
133
(g) Section Haadinae . The aection headings in
this Agreement are for convenience only; they form no p*rt of
thie Agreement and shall not affect its interpretation.
IM WITNESS WHEREOF, the underaigned have executed this
Agreement the day and year first above written.
Date
Wi
SAVINGS BANK
'^^'■■^^^y^*.^ 4-CtO
USABANCSKARS^ INC.
Brace w. Kaurimaiv ^^ J^
Date: ftjrv4»4r>^
134
Exhibit 3
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154
RNANCIAL STATEMENT
NET WORTH 6/30/97
Provide a complete, current financial net worth statement which itemizes in detail ail
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
LIABIUTIES
Cash OD band and in banks
^7
y-^tf
Notes payable to banks-secured
/
/O^
i>oo
U.S. Government securities - add
schedule
Notes payable to banks-unsecured
JLff
set
Listed secuhties-add schedule
Notes payable to relatives
UnUsted securities-add schedule
/<lLf
c c e
Notes payable to others
^-t
^eo
Accounts and notes receivable:
Accounts and bills due
Due from relatives and frieods
Unpaid income tax
Due from others
Other unpaid tax and interest
Doubtful
Real estate mortgages payable -
add schedule
Real estate owned— add schedule
7 SO
o oa
Chattel mortgages and other hens
payable
Real estate mortgages receivable
Other debts-itemize:
Autos and other personal property
/I i,
^oo
Estimated '97 Income Tax
/OC
aoo
Cash value-hfe insurance
^7
o 0 e
1997 Phila. Real Est. Taj
¥
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Other assets-itemize:
Present Value DPK&K R^^e-
/
o9i
iee
Limited Partnership Int.
37
B eo
Retirement Accounts
«7 X.
J+-00
Total liabilities
-i
3S-i,
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USA BancShares Cations
-
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Net Worth
('^S
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Total Assets
3
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Total habilities and net worth
^
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CONTINGENT LL-LBtLITIES
GENERAL INEORMATION
As endorser, comaker or guarantor
Are any assets pledged? (Add
schedule.) 1820 Rittenhous<
On Leases or contracts
Are you defendant for any suits
or legal actions? No
Legal Qaims Legal P.V.
4¥z
foo
Have you ever taken bankruptcy? f^
Provision for Federal Income Tax
3^A
Sao
Other special debt
155
cash in Banks
Jefferson BanX $ 11,500
Prudential Securities Money Market 15.900
$ 27,400
Unlisted Securities
Black Horse Pike Ltd. 1984
formerly New Jersey Economic Development Bond $ 120,000
Real Estate Owned
1820 Rittenhouse Square $ 750,000
Auto and Other Personal Property
1990 Jaguar $ 16,500
Art, Furnishings and Personal Effects 100.000
$ 116,500
Life Insurance
American United Life Insurance Company $ 27,000
156
Present Value-Dilworth Paxson Kalish & Kauffman Retirement/Buy Out
Agreement
1995. 1996. 1997 Capital Account Due
The law firm of Dilworth Paxson Kalish & Kauffman has established
a Judicial Retirement Program for Bruce W. Kauffman. The firm has
agreed to pay $200,000 per year for five years and purchase a third
party annuity which will pay $100,000 per year for an additional
five years.
In addition to the above payments, the firm is also responsible for
paying 1995, 1996 and 1997 undistributed profits or capital
presently in the amount of $61,900. (See paragraph 5 of the
Judicial Retirement Program for Bruce W. Kauffman.)
The present value of this income stream, assuming an interest rate
of 10%, amounts to approximately $1,091,900.
Limited Partnership Interests
Avenham Associates 36-3066147 $ 1,000
Galeria Associates 36-3159827 1,000
Toftrees Associates-25% 23-2389106 15,000
Huntington Associates 36-3102841 20. 000
$ 37,000
The above Partnerships are substantially involved in the business
of Real Estate. The equity and value of these Partnerships has been
estimated.
157
Retirement Accounts
IRA Rollover Account dated 12/30/85 $ 140,700
Dilworth Paxson Retirement Plan 13 6,000
Dilworth Paxson Retirement Plan 543,100
Dilworth Paxson 401 (k) Plan 52.600
$ 872,400
USA BancShares. Inc.
BWK owns 30,000 Options to purchase
shares of stock in the Company. The
Options may be exercised at a price
of $10.00 per share for a period of
ten years beginning 11/8/95.
Provision for Income Tax
Retirement Accounts $ 342,800
Legal Claims
Divorce Settlement
Monthly Payment Payment Total Present Value
Child Support $ 2,083.33 $ 22,917 $ 21,800
Alimony 3,664.00 408,536 271,700
Property Settlement 1,833.33 251.165 149.300
Total $ 442,800
The interest rate used was 10% to determine the present value of
the payment stream.
158
Notes Payable to Banks-Secured
Jefferson Bank ^__iii°lli°°
yotes Payable to Banks-Unsecured
Jefferson Bank $ 262,500
Great Lakes Higher Education Corporation 36,800
$ 299,300
Notes Pavable-Others
American United Life Insurance Company 9 27,000
Dilworth Paxson Kalish & Kauffman
Retirement Plan ?5,^0Q
$ 62,600
159
SENATE QUESTIONNAIRE FOR JUDICIAL NOMINEE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Full Name
Richard Alan Lazzara
Address: List current place of residence and office
address (es) .
Office Address
Second District Court of Appeal
800 East Twiggs Street
Suite 600
Tampa, Florida 33602
3. Date and place of birth.
Date of Birth
December 17, 1945
Place of Birth
Tampa, Florida
4. Marital Status (include maiden name of wife, or
husband's name). List spouse's occupation, employer's
name and business address (es).
Name of Spouse
Celeste Lindler Lazzara.
Spouse's Occupation
Admissions Counselor
Spouse's Employer and Business Address
Office of Admissions
University of South Florida
4202 East Fowler Avenue
Tampa, Florida 33620
5. Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degree were granted.
160
College Attended
Loyola University of the South
New Orleans, Louisiana
Dates of Attendance
September, 1963 - May, 1967 (inclusive)
Degree Awarded
Bachelor of Arts in History
Date Degree Granted
May 30, 1967
Law School Attended
University of Florida College of Law
Gainesville, Florida
Dates of Attendance
September, 1967 - June, 1970 (inclusive)
Degree Awarded
Juris Doctor
Date Degree Granted
June 13, 197 0
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 .
1967:
Lazzara Oil Company (family company)
St. Petersburg, Florida
General laborer
June - August
1968:
University of Florida
Division of Housing
Gainesville, Florida
Dormitory Resident Assistant
January - June
-2-
161
Gibbons, Tucker, McEwen, Smith, Cofer, and
Taub, P. A.
Tampa, Florida
Law Clerk
June - August
University of Florida
Division of Housing
Gainesville, Florida
Dormitory Resident Assistant
September - December
1969:
University of Florida
Division of Housing
Gainesville, Florida
Dormitory Resident Assistant
January - June
1970:
Office of the Hillsborough County
Solicitor
Tampa, Florida
Law Clerk
June - November
Office of the Hillsborough County
Solicitor
Tampa, Florida
Assistant County Solicitor
November - December
1971 - 1972:
Office of the Hillsborough County
Solicitor
Tampa, Florida
Assistant County Solicitor
1973:
Office of the Hillsborough County
State Attorney
Tampa, Florida
Assistant State Attorney
January - April
-3-
162
Levine, Freedman, and Hirsch, P. A.
Tampa, Florida
Associate Attorney
April - December
1974:
Levine, Freedman, and Hirsch, P. A.
Tampa, Florida
Associate Attorney
1975:
Levine, Freedman, and Hirsch, P. A.
Tampa, Florida
Associate Attorney
January - April
Law Offices of Richard A. Lazzara
Tampa, Florida
Sole Practitioner
April - December
1976 - 1986:
Law Offices of Richard A. Lazzara
Tampa, Florida
Sole Practitioner
1987:
State of Florida
County Judge - Hillsborough County
Tampa, Florida
1988 - 1992:
State of Florida
Circuit Judge - Thirteenth Judicial Circuit
Tampa, Florida
1993:
State of Florida
Circuit Judge - Thirteenth Judicial Circuit
Tampa, Florida
January - November
-4-
163
state of Florida
Appellate Judge - Second District Court of
Appeal
Tampa, Florida
December
1994 - Present:
State of Florida
Appellate Judge - Second District Court of
Appeal
Tampa, 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.
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
Loyola University:
1) Recipient of a full two-year academic
scholarship for junior and senior years
2) President of the College of Arts and
Sciences in senior year
3) Alpha Sigma Nu Honor Society
4) Delta Epsilon Sigma National Honor Society
5) Who's Who in American Colleges and
Universities for 1966-1967
6) National Blue Key Honor Fraternity
7) Graduated magna cum laude
University of Florida College of Law:
1) Recipient of the book, American
Jurisprudence. 2d. Corporations, awarded to
the law student who attains the highest grade
in the course on corporations
2) Attorney General and Chancellor of the
Honor Court
3) Florida Blue Key Honor Fraternity
4) Omicron Delta Kappa National Honor
Fraternity
Judicial Honors:
1) Highest approval rating of Hillsborough
-5-
164
County judicial candidates in a poll
conducted by the Hillsborough County Bar
Association in 1986 (Source - The Tampa
Tribune, August 22, 1986)
2) Highest approval rating of
Hillsborough County county court judges in a
poll conducted by the Hillsborough County Bar
Association in 1987 (Source - The Tampa
Tribune, June 29, 1987)
3) Highest approval rating of Hillsborough
County circuit court judges in a poll
conducted by the Hillsborough County Bar
Association in 1993 (Sources - The Tampa
Tribune, October 9, 1993, and The St.
Petersburg Times, October 9, 1993)
4) Highest approval rating of Second District
Court of Appeal judges in a poll conducted by
Hillsborough County Bar Association in 1995
(Sources - Warfield's Tampa Bay Review,
September 29, 1995, and La Gaceta trilingual
newspaper, October 13, 1995)
5) Recipient of the Robert S. Patton Award
for most outstanding jurist for the year
1991-1992 awarded by the Young Lawyers
Section of the Hillsborough County Bar
Association
6) Recipient of the Ybor City Optimist Club's
1993 "Respect for the Law" award
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.
1) American Bar Association
2) The Florida Bar; Member of Thirteenth
Judicial Circuit Grievance Committee 13-D
(1985-1986)
3) Hillsborough County Bar Association
^) American Judicature Society
5) Ferguson-White Inn of Court; President
(1995-1996)
6) Conference of County Court Judges
7) Conference of Circuit Court Judges
8) Conference of Appellate Court Judges;
Member of Education Committee (1994)
165
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.
Lobbying Organizations
None
Other Organizations
Order, Sons of Italy
Unita Lodge 2015
Tampa, Florida
By-laws attached
11. Court Admissions: 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.
When admitted to The Florida Bar on November
13, 1970, I was authorized to practice in all
of the trial and appellate courts of the
State of Florida - County Courts, Circuit
Courts, District Courts of Appeal, and the
Florida Supreme Court.
United States District Court, Middle District
of Florida - admitted January, 1973
United States Court of Appeals for the Fifth
Circuit - admitted January, 1974.
United States Court of Appeals for the
Eleventh Circuit - admitted March, 1983
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.
-7-
166
Published Writings:
1) Preparation and Education: The Cardinal
Rules of the Trial Lawyer. This article was
published in the August/September, 1990
edition of The Bulletin of the Hillsborough
County Bar Association. A copy is attached.
2) DUI Manslaughter Trial - A Trial Judge's
Perspective. This material was published for
use in connection with an advanced continuing
legal education seminar presented by the
Academy of Florida Trial Lawyers on October
22, 1991, in Orlando, Florida. A copy is
attached.
3) Legal Writing From a Trial Judge's
Perspective . This material was published for
use in connection with a continuing legal
education seminar presented by the
Hillsborough County Bar Association on
October 22, 1992, in Tampa, Florida. A copy
is attached.
4) Motions to Suppress: The Riaht Wav. This
material was published for use in connection
with a continuing legal education seminar
presented by the Pinellas County Criminal
Defense Lawyers Association on October 22-23,
1993, in St. Petersburg Beach, Florida. It
was later republished for use in connection
with a continuing legal education seminar
presented by Stetson College of Law on
September 29, 1995, in Tampa, Florida. A
copy is attached.
Speeches:
Although I have given speeches regarding the
legal system before various groups, all of
them were of an informal nature and did not
relate to issues of constitutional law or
legal policy. Furthermore, I did not speak
from a written text, and any notes I may have
used were discarded. Finally, to my
knowledge, none of these speaking events were
reported by the news media.
167
13, Health: What is the present state of your health?
List the date of your last physical examination.
State of Health
Excellent
Date of Last Physical Examination
January 30, 1996
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.
1) Current Judicial Office
a) Court
Second District Court of Appeal of State of
Florida; Appellate Judge
b) Elected or Appointed
Appointed by Florida Governor Lawton Chiles
in November of 1993; retained by the voters
residing within the second district court of
appeal for a six-year term commencing January
7, 1997 at the general election held on
November 5, 1996.
c) Periods of Service
December 1, 1993 to present
d) Jurisdiction
Primary jurisdiction involves resolving civil
and criminal cases appealed from the circuit
courts of the fourteen counties located
within the Second District. The court also
possesses an "All Writs" jurisdiction.
2) Prior Judicial Offices
a) Court
Circuit Court of Thirteenth Judicial Circuit
of State of Florida; Circuit Judge
b) Elected or Appointed
Appointed by Florida Governor Bob Martinez in
November of 1987; stood for election without
-9-
168
opposition for a six-year term in September
of 1988.
c) Periods of Service
January 1, 1988 through November 30, 1993
d) Jurisdiction
As a circuit judge, I sat for three and one-
half years in a criminal division presiding
over felony cases and two and one-half years
in a civil division presiding over civil
cases involving mortgage foreclosures,
medical and legal malpractice claims,
personal injury and products liability cases,
and contractual and commercial disputes. I
also had jurisdiction over general civil
cases in which the amount in controversy
exceeded $15,000. My jurisdiction also
included resolving civil and criminal appeals
from the county court, as well as issuing
writs of certiorari and mandamus to
governmental boards and agencies.
a) Couct
County Court of Hillsborough County, Florida;
County Judge
b) Elected or Appointed
In September of 1986, I was elected in a
county-wide, non-partisan election to a four
year term.
c) Periods of Service
January 1, 1987 through December 31, 1987
d) Jurisdiction
As a county court judge, I sat for six months
in a criminal division where my jurisdiction
was limited to presiding over misdemeanor and
criminal traffic offenses and six months in a
civil division where my jurisdiction was
limited to presiding over civil disputes in
which the amount in controversy did not
exceed $5,000, landlord-tenant disputes and
civil traffic cases.
-10-
169
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:
1. Berry v. State. 636 So. 2d 555 (Fla. 2d
DCA) , approved in part, disapproved in part.
647 So. 2d 830 (Fla. 1994) .
2. Bader v. Bader. 639 So. 2d 122 (Fla. 2d
DCA) (en banc), review denied. 649 So. 2d 232
(Fla. 1994) .
3. Stephenson v. State. 640 So. 2d 117 (Fla.
2d DCA 1994), approved. 655 So. 2d 86 (Fla.
1995) .
4. Kazakoff v. State. 642 So. 2d 596 (Fla. 2d
DCA 1994) (en banc) .
5. Hamilton v. State. 645 So. 2d 555 (Fla. 2d
DCA 1994), aff'd in part, rev'd in part. 660
So. 2d 1038 (Fla. 1995) .
6. Snyder v. Douglas. 647 So. 2d 275 (Fla. 2d DCA
1994) .
7. Haines City Development v. Diggs. 647 So.
2d 855 (Fla. 2d DCA 1994), approved. 658 So.
2d 523 (Fla, 1995) .
8. State Farm Mutual Automobile Insurance
Company v. Hassen. 650 So. 2d 128 (Fla. 2d
DCA 1995), approved. 674 So. 2d 106 (Fla.
1996) .
9. Humana of Florida. Inc. v. McKauahan. 652
So. 2d 852 (Fla. 2d DCA 1995), approved. 668
So. 2d 974 (Fla. 1996) .
-11-
170
10. Bentley v. Walker. 660 So. 2d 313 (Fla.
2d DCA 1995), approved. 678 So. 2d 1265 (Fla.
1996) .
(2) Citations of Reversals and Affirmances
with Criticism:
1. Boffo V. State. 543 So. 2d 435 (Fla. 2d
DCA 1989) .
Although my judgment revoking the defendant's
violation of probation was affirmed, the
sentence I imposed was reversed and the case
was remanded for imposition of a sentence
under the youthful offender statute.
2. Parsley v. State. 553 So. 2d 730 (Fla. 2d DCA
1989) .
My denial of a motion to dismiss the charge
of racketeering was reversed and the judgment
as to this charge was vacated.
3. Knight v. State. 556 So. 2d 801 (Fla. 2d DCA
1990) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded for
resentencing.
4. Phelps V. State. 561 So. 2d 32 (Fla. 2d DCA
1990) .
My denial of the defendant's motion to
correct an illegal sentence based on an award
of improper jail credit was reversed and the
case was remanded for further consideration.
5. Harris v. State. 565 So. 2d 897 (Fla. 2d DCA
1990) .
My denial of the defendant's motion for
additional jail credit was reversed and the
case was remanded for further consideration.
-12-
171
6. Way V. Duaqer. 568 So. 2d 1263 (Fla. 1990),
My denial of the defendant's motion to vacate
his death sentence was reversed and the case
was remanded for another penalty phase
hearing. In all other respects I was
affirmed.
7. Helmick v. State. 569 So. 2d 869 (Fia. 2d DCA
1990) .
Although the defendant's convictions were
affirmed, the court reversed the sentences
imposed and remanded for resentencing.
8. Parlcer v. State. 570 So. 2d 1115 (Fla. 2d DCA
1990) .
My imposition of a minimum mandatory sentence
as to one offense was vacated. In all other
respects I was affirmed.
9. Edwards v. State. 570 So. 2d 1116 (Fla. 2d DCA
1990) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
stricken.
10. Nichols V. State. 571 So. 2d 121 (Fla. 2d DCA
1990) .
My denial of the defendant's motion for post
conviction relief was reversed and the case
was remanded for further proceedings.
11. Walker v. State. 572 So. 2d 1028 (Fla. 2d DCA
1991) .
My denial of the defendant's motion for post
conviction relief was reversed and the case
was remanded for further proceedings.
12. Martinez v. State. 575 So. 2d 1376 (Fla. 2d
DCA 1991) .
My denial of the defendant's motion for post
conviction relief was reversed and the case
was remanded for further proceedings.
-13-
172
Following remand another appeal was taken and
my ruling was affirmed. Martinez v. State>
583 So.2d 680 (Fla. 2d DCA 1991).
13. City of Tampa v. Redner. 576 So. 2d 339
(Fla. 2d DCA 1991) .
The court reversed my ruling and directed
that I reconsider the case using the correct
municipal ordinance of the City of Tampa.
Following remand another appeal was taken and
the court affirmed my second ruling. City of
Tampa v. Redner. 597 So. 2d 305 (Fla. 2d DCA
1991) .
14. Johnson v. State. 577 So. 2d 725 (Fla. 2d DCA
1991) .
My denial of the defendant's motion to
mitigate his sentence was reversed and the
case was remanded for further proceedings .
15. Matthews v. State. 578 So. 2d 51 (Fla. 2d DCA
1991) .
My written sentences were reversed and
remanded to conform to my oral pronouncements
at time of sentencing. In all other respects
the defendant's convictions were affirmed.
16. Busier v. State. 578 So. 2d 872 (Fla. 2d DCA
1991) .
The court reversed my order denying the
defendant's motion to suppress evidence
deciding that there was no founded suspicion
to justify the police officer's stop of the
defendant .
17. Morgan v. State. 580 So. 2d 176 (Fla. 2d DCA
1991) .
My imposition of a sentence under the
habitual felony offender statute was reversed
and the case was remanded for resentencing.
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173
18. Blount V. State. 581 So. 2d 604 (Fla. 2d DCA
1991) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded for
resentencing.
19. Gonzalez v. State. 581 So. 2d 648 (Fla. 2d DCA
1991) .
Although the court affirmed my departure
sentencing order which exceeded the
sentencing guidelines based on one reason, it
found that two of my reasons for departure
were invalid.
20. Bur key v. State. 582 So. 2d 1252 (Fla. 2d DCA
1991) .
My written sentences were reversed and
remanded to conform to my oral pronouncements
at time of sentencing. In all other respects
the defendant's convictions were affirmed.
21. Jancar v. State. 585 So. 2d 1200 (Fla. 2d DCA
1991) .
Although the judgment and sentence were
affirmed, the court remanded for the
allocation of the proper amount of jail
credit to be awarded to the defendant.
22. State v. Milbro. 586 So. 2d 1303 (Fla. 2d DCA
1991) .
The court reversed my dismissal of the charge
of solicitation to deliver a controlled
substance and remanded the case for further
proceedings .
23. Jackson v. State. 590 So. 2d 1070 (Fla. 2d DCA
1991) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded for
resentencing.
•15-
174
24. State v. Tanskley. 590 So. 2d 1111 (Fla. 2d
DCA 1991) .
Although the court affirmed the defendant's
convictions for two offenses, it remanded for
the correction of sentence as to one of the
offenses .
25. Coleman v. State. 592 So. 2d 300 (Fla. 2d DCA
1991) .
The defendant was convicted of burglary and
delivery of cocaine. The court reversed the
burglary conviction, affirmed the drug
conviction, and remanded for resentencing on
the drug conviction using a corrected
guideline sentencing scoresheet that deleted
the burglary conviction.
26. Dumas v. State. 592 So. 2d 383 (Fla. 2d DCA
1992) .
Although the defendant's convictions were
affirmed, my departure order imposing a
sentence in excess of the sentencing
guidelines was reversed and the case was
remanded for resentencing.
27. State v. Bamber, 592 So. 2d 1129 (Fla. 2d DCA
1991) .
Although the court affirmed my granting of
the defendant's motion to suppress evidence,
it stated that I should have followed the
holding of another District Court of Appeal.
However, in affirming my ruling, the court
certified conflict to the Florida Supreme
Court with this other court's ruling. The
Florida Supreme Court ultimately affirmed my
suppression of the evidence. State v.
Bamber. 630 So. 2d 1048 (Fla. 1994) .
28. Mathews v. State, 596 So. 2d 79 (Fla. 2d DCA
1991) .
The court reversed my denial of the
defendant's motion to correct illegal
sentence and remanded the case for further
proceedings .
-16-
175
29. Smith v. State. 599 So.Zd 265 (Fla. 2d DCA
1992) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded for
resentencing.
30. Lehman v. State. 602 So. 2d 610 (Fla. 2d DCA
1992) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded with
directions to discharge the defendant from
any further sentence.
31. Jasperson v. State. 603 So. 2d 144 (Fla. 2d
DCA 1992) .
The court reversed the sentence imposed and
remanded for resentencing using a proper
guideline sentencing scoresheet.
32. Davis V. State. 605 So. 2d 561 (Fla. 2d DCA
1992) .
The court reversed my denial of the
defendant's motion to suppress evidence on
the basis that the stop of the defendant by
the police officer was pretextual in nature.
33. Love V. State. 606 So. 2d 755 (Fla. 2d DCA
1992) .
The court reversed my ruling that the
defendant's community control should be
revoked and remanded the case for
reinstatement of the original sentence of
community control.
34. Rodriguez v. State. 610 So. 2d 476 (Fla. 2d
DCA 1992) .
The court reversed my sentence on the basis
that it exceeded the sentence called for in a
plea agreement. It remanded the case for
further proceedings including giving the
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176
defendant an opportunity to withdraw his plea
of guilty.
35. Reber v. State. 611 So. 2d 91 (Fla. 2d
DCA 1992) .
The court remanded the case for the
correction of the written judgment. It also
struck a cost assessment.
36. Dorsey v. State. 613 So. 2d 1368 (Fla. 2d DCA
1993) .
The court reversed the defendant's
racketeering conviction. It also reversed
the defendant's petit theft conviction
finding that I should not have allowed
certain photographs into evidence. However,
the court did affirm the defendant's
convictions for possession of cocaine,
possession of marijuana, and grand theft of a
firearm.
37. Bryant v. State. 614 So. 2d 688 (Fla. 2d
DCA 1993) .
Although the court affirmed the convictions,
it reversed one special condition of
probation because it was not orally
pronounced.
38. Holliday v. Citv of Tamoa. 619 So. 2d
244 (Fla. 1993) .
In Holliday v. City of Tamoa. 586 So. 2d 64
(Fla. 2d DCA 1991), the Second District Court
of Appeal upheld my decision to affirm Mr.
Holliday' s conviction for loitering under a
Tampa city ordinance. The Florida Supreme
Court, however, disagreed and held the
ordinance was facially unconstitutional.
39. Bailev v. Hillsborough County. 619 So.
2d 346 (Fla. 2d DCA 1993) .
The court reversed my dismissal of a civil
complaint with prejudice and remanded the
case for the plaintiff to be able to file an
amended complaint.
-18-
177
40. Guerra v. State> 626 So. 2d 706 (Fla. 2cl
DCA 1993) .
My departure order imposing a sentence in
excess of the sentencing guidelines was
reversed and the case was remanded for
resentencing.
41. Charlie Brown's of Tampa. Inc. v. Cook.
630 So. 2d 1158 (Fla. 2d DCA 1994) .
The court reversed my order setting aside a
final judgment and remanded with instructions
to reinstate the judgment.
42. Newsome v. Sinaletary. 637 So. 2d 9
(Fla. 2d DCA 1994) .
The court reversed my order dismissing a
complaint for lack of jurisdiction and
remanded for further proceedings.
43. State v. Berry. 647 So. 2d 830 (Fla.
1994) .
Although the Florida Supreme Court affirmed
the result reached in the opinion I authored
in Berry v. State. 636 So. 2d 555 (Fla. 2d
DCA 1994), it disagreed with the assessment
that a juvenile could never waive his or her
right to forego certain statutory safeguards
before being sentenced as an adult.
44. State v. Jackson. 650 So. 2d 24 (Fla.
1995) .
Although the Florida Supreme Court agreed
with the result reached in the opinion I
authored in State v. Jackson. 636 So. 2d 1372
(Fla. 2d DCA 1994), it disagreed with my
substantive reasoning that information
transmitted to a digital display pager was an
electronic communication. Instead, the court
held that such information was a wire
communication.
•19-
178
45. State v. Hamilton. 660 So. 2d 1038 (Fla.
1995) ,
Although the Florida Supreme Court agreed
with my substantive analysis of what
constitutes the "curtilage" under Florida's
burglary statute in the opinion I authored in
Hamilton v. State. 645 So. 2d 555 (Fla. 2d
DCA 1994), it disagreed with remanding the
case for a new trial, determining instead
that the evidence was insufficient to prove
guilt .
46. Florida Power & Light Company v. Polackwich. 677
So. 2d 880 (2d DCA Fla. 1996) .
Although the court reversed and remanded for
a new trial because it determined that two of
my rulings were erroneous, it pointed out
that at the time I made these rulings they
were consistent with the law in effect at the
time of trial. After the trial, however, the
law had changed by virtue of two intervening
United States Supreme Court opinions which
required the appellate court to reverse and
grant a new trial.
47. State v. Montague. 682 So. 2d 1085 (Fla. 1996).
In State v. Montague. 656 So. 2d 508 (Fla. 2d DCA
1995) , I certified a question to the Florida Supreme
Court regarding whether a recent Florida Supreme Court
opinion had overruled prior precedent of the Second
District Court of Appeal in the area of preserving a
sentencing error for review. Although the Florida
Supreme Court acknowledged that its prior opinion did
not expressly overrule the precedent of my court
upon which I relied in my opinion, it did hold that
this opinion tacitly disapproved this precedent.
The supreme court, therefore, answered the question
in the affirmative and reversed my decision.
(3) Citations of Significant Constitutional
Opinions:
1. State Farm Mutual Automobile Insurance
Company v. Hassen. 650 So. 2d 128 (Fla. 2d
■20-
179
DCA 1995), approved. 674 So. 2ci 106 (Fla.
1996) .
2. Walker v. Bentley. 660 So. 2cl 313 (Fla.
2d DCA 1995), approved. 678 So. 2d 1265 (Fla.
1996) .
3. State V. Barnes. 21 Fla. L. Weelcly D2515 (Fla. 2d
DCA Nov. 27, 1996) .
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 date of the period you were a clerk;
I did not serve as a clerk to a
judge.
2. whether you practiced alone, and if so,
the addresses and dates;
From April of 1975 until December
of 1986, I was a sole practitioner
at the following addresses:
April of 1975 - December of 1977
725 East Kennedy Boulevard
Tampa, Florida 33602
January of 1978 - February of 1980 '
202 South Governor Street
Tampa, Florida 33602
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180
March of 1980 - June of 1985
610 West Deleon Street
Tampa, Florida 33606
July of 1985 - December of 1986
606 East Madison Street
Tampa, Florida 33602
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;
June of 1970 - November of 1970
Office of the Hillsborough County
Solicitor
801 East Kennedy Boulevard
Fifth Floor
Tampa, Florida 33602
Law Clerk
November of 1970 - December of 1972
Office of the Hillsborough County
Solicitor
801 East Kennedy Boulevard
Fifth Floor
Tampa, Florida 33602
Assistant County Solicitor
January of 1973 - April of 1973
Office of the State Attorney
801 East Kennedy Boulevard
Fifth Floor
Tampa, Florida 33602
Assistant State Attorney
April of 1973 - April of 1975
Levine, Freedman, and Hirsch, P. A.
725 East Kennedy Boulevard
Tampa, Florida 33602
Associate Attorney
January of 1986 - June of 1987
Hillsborough County Court Judge
Criminal Division
801 East Twiggs Street
Tampa, Florida 33602
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181
July of 1987 - December of 1987
Hillsborough County Court Judge
800 East Kennedy Boulevard
Tampa, Florida 33602
January of 1988 - July of 1991
Hillsborough County Circuit Court
Judge
Criminal Division
800 East Kennedy Boulevard
Tampa, Florida 33602
August of 1991 - November of 1993
Hillsborough County Circuit Court
Judge
Civil Division
419 Pierce Street
Tampa, Florida 33602
December of 1993 - Present
Second District Court of Appeal
Judge
801 East Twiggs Street
Tampa, Florida 33602
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
practice, which remained constant
over the years, involved extensive
litigation in the areas of criminal
law, commercial law, and family
law. I also handled appellate
matters in these same areas of the
law.
2. Describe your typical former clients,
and mention the areas, if any, in which you
have specialized.
My former clients ccime from all
walks of life - single parents,
educators, business people, law
enforcement officers, public
officials, and members of the
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182
general work force. Although I
considered myself a general
litigator, my area of specialty was
criminal defense.
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 .
While a practicing attorney, I
appeared in court on a regular
basis which did not significantly
vary over the years.
2. What percentage of these appearances was
in:
(a) federal courts - 30?.
(b) state courts of record - 70 %
(c) other courts - 0?,
3. What percentage of your litigation was:
(a) civil - 30%
(b) criminal - 70 %
4. State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled), indicating whether
your were sole counsel, chief counsel, or
associate counsel.
Sole Counsel
145
Chief Counsel
5
Associate Counsel
10
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183
5. What percentage of these trials were:
(a) jury - 60%
(b) non-jury - 40%
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.
1) citgticq Qt Case
Autgmatic Truck ^ Trgilgr Wggh
Centers. Inc. v. Eastamp. Inc., 320
So. 2d 7 (Fla. 2d DCA 1975) .
Capsule Summary of Case
This case involved a lawsuit filed
by my client, a secured creditor,
seeking to recover a deficiency
judgment following a foreclosure
sale involving an automatic truck
and trailer washer. The trial
court granted summary judgment
against the client and ruled that
its rights were governed
exclusively by the provisions of
Article 9 of the Uniform Commercial
Code relating to secured creditors
and that it was not entitled to the
benefits of Article 6 of the Code
which protected unsecured
creditors. The appellate court
disagreed, reversed the entry of
summary judgment, and remanded for
further proceedings. To the best
-25-
184
of my recollection, the case was
settled on remand.
Party Represented
Automatic Truck & Trailer Wash
Centers, Inc.
Nature of Participation in Case
I was actively involved in
litigating the case at the trial
court level in terms of drafting
pleadings, researching the law,
participating in pre-trial
depositions, and attending and
arguing motions at hearings. I was
equally active at the appellate
stage in terms of undertaking legal
research and preparing and drafting
the briefs. I do not recall,
however, whether I or my co-counsel
argued the case to the appellate
court .
Final Disposition of Case
It is my recollection that after
the appellate court reversed and
remanded the case the parties then
settled it.
Dates of Representation
Fall of 1974
Name of Court/Judge
Circuit Court of Thirteenth
Judicial Circuit of State of
Florida
Circuit Judge Laurence I . Goodrich
(retired) (now in private practice)
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other
Parties
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185
Co-Counsel
Mr. Michael J. Freedman
300 East Madison Street
Tampa, Florida 33602
(813) 229-6925
Counsel nf OthPr P^rti^'?
Raymond C. Farfante, Jr.
(deceased)
Mr. John P. Griffin
15819 Dawson Ridge Road N.W.
Tampa, Florida 33647
(813) 979-9831
Mr. Harold H. Griffin
(deceased)
Mr. Jan G. Halisky
507 South Prospect Avenue
Clearwater, Florida 34616
(813) 461-4234
2) Citation of Case
United States v. Myerc;. 550 f. 2d
1036 (5th Cir. 1977), 42 ALR Fed.
855, appeal after remand. 572 F. 2d
506 (5th Cir.), cert, denied. 439
U.S. 487, 99 S. Ct. 147, 58 L. Ed.
2d 149 (1978)
Capsule Summary of Case
Mr. Myers was indicted for robbing
a federally-insured bank, and I was
court-appointed to represent him.
He raised an alibi defense. His
first trial ended in a mistrial
after the jury could not reach a
unanimous verdict. His second
trial resulted in a jury verdict of
guilt. On appeal, the Fifth
Circuit reversed and remanded for a
new trial. The new trial resulted
in another jury verdict of guilt
which the Fifth Circuit affirmed.
-27-
186
Party Represented
Mr. Larry Allen Myers
Nature of Participation in Case
I was court-appointed to represent
Mr. Myers at trial and on appeal.
In that capacity, I prepared and
filed various pre-trial motions,
undertook discovery, tried his case
to a jury on three occasions,
prepared and filed appellate briefs
on two occasions, and argued his
case on appeal on one occasion.
Final Disposition of Case
Following the second conviction,
Mr. Myers was sentenced to ten
years imprisonment. The conviction
and sentence were affirmed by the
Fifth Circuit, and the United
States Supreme Court later denied
certiorari review.
Dates of Representation
1975-1978
Name of Court/Judge
United States District Court,
Middle District of Florida, Tampa
Division
United States District Judge Ben
Krentzman (retired)
Name/Address/Phone Number of Co-
Counsel and Counsel of Other Partv
Co-Counsel
None
Counsel of Other Partv
Mr. John L. Briggs
(I have been advised by a former
law partner of Mr. Briggs that he
-28-
187
is now in a nursing home in the
Jacksonville, Florida area
suffering from Alzheimer's
disease. )
Mr. Terry Smiljanich
300 First Avenue South
Suite 500
St. Petersburg, Florida 33701
(813) 823-3837
3) Citation of Case
Johnson v. Farris. 469 So. 2d 221
(Fla. 2d DCA 1985)
Capsule Summary of Case
I filed a petition to modify the
custody provisions of a final
judgment of dissolution of marriage
on behalf of the former husband in
which he sought custody of his
minor child. The trial judge
dismissed the petition on the basis
that he did not have jurisdiction
under Florida's Uniform Child
Custody Jurisdiction Act. This
ruling was reversed on appeal, and
the case was remanded for further
proceedings. On remand, the case
was settled by the parties with the
former husband obtaining more
extensive visitation rights.
Party Represented
Mr. Cecil E. Johnson
Nature of Participation in Case
I prepared and filed pleadings in
the case, undertook research of the
law, and argued the case before the
trial judge. On appeal, I prepared
and filed the briefs and argued
before the appellate court. On
remand, I represented the client in
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188
successfully resolving the case
without the need for any further
litigation.
Final Disposition of Case
Following the appellate court's
reversal and remand, the parties
resolved the case. As I recall,
the former husband was given more
liberal visitation with his minor
child.
Dates of Representation
1984-1985
Name of Court/Judge
Circuit Court of Thirteenth
Judicial Circuit of the State of
Florida
Circuit Judge Phillip L. Knowles
(retired)
Name /Address /Phone Numbers of Co-
Counsel and Counsel of Other Party
Co-Counsel
None
Counsel of Other Party
Mr. Stephen Carl Cheeseman
700 East Twiggs Street
Suite 105
Tampa, Florida 33602
(813) 223-4007
4) Citation of Case
Malone v. State. 390 So. 2d 338
(Fla. 1980), cert, denied. State v.
Malone. 450 U.S. 1034, 101 S. Ct.
1749, 68 L. Ed. 2d 231 (1981)
■30-
189
CaPSUlp Siimin^rv pf c^sp
Mr. Malone was indicted for and
convicted of two counts of first-
degree murder and one count of
robbery. At trial, the state
introduced into evidence
incriminating statements made by
Mr. Malone regarding his
participation in the murders and
robbery. These statements were
made to a state informant who had
been placed in a jail cell with Mr.
Malone for the specific purpose of
eliciting incriminating statements
from Mr. Malone. A motion to
suppress these statements was
denied by the trial judge. Mr.
Malone was eventually sentenced to
death. The Florida Supreme Court
held that the statements should
have been suppressed. Concluding
that the introduction into evidence
of these statements was not
harmless beyond a reasonable doubt,
the Florida Supreme Court reversed
Mr. Malone 's convictions and
sentences of death and remanded for
a new trial. On remand, Mr. Malone
pleaded guilty in return for
concurrent life sentences.
Partv ReoresPntPH
Mr, Charles Willis Malone, Jr.
Nature of Part i ri pr^j-j r^p
I was court-appointed to represent
Mr. Malone at his first trial and
after the case was reversed and
remanded by the Florida Supreme
Court. The Office of the Public
Defender represented him on appeal.
In connection with my repre-
sentation of Mr. Malone, I prepared
and filed extensive pre-trial
motions, including the pivotal
motion to suppress, undertook
extensive research of the law and
-31-
190
pre-trial discovery, participated
in numerous arguments before the
trial judge in connection with pre-
trial motions I filed, and tried
the case to a jury. On remand, I
helped negotiate a favorable plea
agreement on behalf of Mr. Malone.
Final Disposition of Case
Following the Florida Supreme
Court's reversal and remand for a
new trial, Mr. Malone pleaded
guilty to all charges in return for
concurrent life sentences.
Dates of Representation
1978-1981
Name of Court /Judge
Circuit Court of Thirteenth
Judicial Circuit of the State of
Florida
Circuit Judge J. C. Cheatwood
(retired)
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other Party
Co-Counsel
None
Counsel of Other Party
Mr. C. Thomas Davidson
100 North Tampa Street
Suite 2800
Tampa, Florida 33601
(813) 224-0866
5) Citation of Case
United States v. Conover. 772 F. 2d
765 (11th Cir. 1985), affirmed in
part and remanded. Tanner v. United
States. 483 U.S. 107, 107 S. Ct.
2739, 97 L. Ed. 2d 90 (1987),
-32-
191
opinion on remand. United States v.
Conover. 845 F. 2d 266 (11th Cir.
1988)
Capsule Summary of Case
Mr. Conover and Mr. Tanner were
indicted for conspiracy to defraud
the United States and for multiple
counts of mail fraud. The charges
arose from the awarding of a road
building contract to Mr. Tanner by
Mr. Conover as chief of procurement
for Seminole Electric Cooperative.
This contract was one of many
contracts let by Seminole Electric
in connection with its construction
of a power generating plant with
funds loaned and guaranteed by the
Rural Electrification Admini-
stration. The first trial lasted
approximately two months and ended
in a mistrial because the jury
could not reach a unanimous
verdict. The second trial lasted
approximately six weeks and ended
with jury verdicts of guilt.
On appeal, the United States Court
of Appeals for the Eleventh Circuit
affirmed the convictions. The
United States Supreme Court
accepted certiorari jurisdiction in
the case. It then affirmed one of
the points raised relating to juror
misconduct but remanded to the
Eleventh Circuit to reconsider the
sufficiency of the evidence to
sustain the convictions. On
remand, the Eleventh Circuit
determined that the evidence was
insufficient and directed that the
convictions be vacated.
Party Represented
Mr. William M. Conover
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192
Nature of Participation in Case
I represented Mr. Conover at both
of his trials arid on direct appeal
to the United States Court of
Appeals for the Eleventh Circuit.
Because I had become a judge when
the case went to the United States
Supreme Court, and then on remand
to the Eleventh Circuit, Mr. John
DeVault, III, assumed repre-
sentation of Mr. Conover.
My participation in the case
involved extensive research of the
law, extended discovery, filing,
preparing, and arguing numerous
pre-trial and post-trial motions,
and trying the case to two juries.
I also assisted in the preparation
of the briefs on the initial appeal
to the Eleventh Circuit.
Final Disposition of Case
In United States v. Conover. 845 F.
2d 266 (11th Cir. 1988), the court
vacated Mr. Conover 's convictions.
Dates of Representation
1983-1986
Name of Court/Judge
United States District Court,
Middle District of Florida, Tampa
Division
United States District Judge Ben
Krentzman (retired)
Name/Address/Phone Numbers of Co-
Counsel and Counsel o Other Parties
Co-Counsel
None
-34-
193
CounsPl nf nther Parfj^g
Mr. David Best
20 North Orange Avenue
Orlando, Florida 32801
(407) 425-2985
Mr. Stephen Millbrath
255 South Orange Avenue
Suite 1401
Orlando, Florida 32802
(407) 841-2330
Mr. John DeVault, III
101 East Adams Street
Jacksonville, Florida 32202
(904) 353-0211
Mr. Terry Zitek
Office of the United States
Attorney
500 Zack Street
Tampa, Florida 33602
(813) 274-6000
Mr. David Runyon
100 2nd Avenue South
St. Petersburg, Florida 33701
(813) 892-6001
6) Citation of ra^^P
United .Statp>.c; v, Gui 11 ph-t.j npr-o..,
636 F. 2d 1054 (5th Cir. 1981),
gppeal after rpm^nH 643 F. 2d 1054
(5th Cir. 1981)
Capsule Summary of C.^^e^
The defendants in this case were
indicted for and convicted of
conspiracy to possess marijuana
with intent to distribute and
possession of marijuana with intent
to distribute. The evidence used
to convict them was obtained from a
boarding of their vessel in Tampa
Bay by the United States Coast
Guard at the request of United
States Customs officers. The
-35-
194
central issue in the case was
whether the boarding was reasonable
under the Fourth Amendment to the
United States Constitution. The
United States Court of Appeals for
the Fifth Circuit remanded the case
to the trial judge for further
findings. After compliance with
this fact-finding mandate, the
Fifth Circuit then reversed the
defendants' conviction because it
concluded that the boarding was
accomplished without any reasonable
suspicion of illicit activity. It
concluded, therefore, that the
trial judge should have granted the
defendants' motion to suppress
evidence.
Party Represented
Mr. Felix Valle
Nature of Participation in Case
I represented Mr. Valle both at
trial and on appeal. I undertook
research of the law and discovery,
prepared, filed, and argued the
motion to suppress before the trial
judge, tried the case to a jury,
prepared and filed appellate
briefs, and orally argued the case
to the Fifth Circuit.
Final Disposition of Case.
In United States v. Guillen-
Linares. 643 F. 2d 1054 (5th Cir,
1981), the court reversed Mr.
Valle's convictions.
Dates of Trial Periods
1978-1981
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195
Names of Court/Judge
United States District Court,
Middle District of Florida, Tampa
Division
United States District Judge
William Terrell Hodges
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other
Parties
Co-Counsel
None
Counsel of Other Parties
Mr. Bennie Lazzara, Jr.
606 East Madison Street
Tampa, Florida 33602
(813) 229-2224
Mr. Anthony F. Gonzalez
701 North Franklin Street
Tampa, Florida 33602
(813) 224-0431
Mr. Joseph Ficarrotta
600 East Madison Street
Tampa, Florida 33602
(813) 223-9788
Mr. George Cardet
330 S.W. 27th Avenue
Miami, Florida 33125
(305) 649-4400
Mr. Marvin Rudnick
35 South Raymond Avenue
Pasadena, California 91105
(818) 798-2514
7) Citation of Case
United States v. McLarty
(unreported)
(case number unavailable)
-37-
196
Capsule Summary of Case
Mr. McLarty, who is an attorney,
was indicted for tampering with
evidence in violation of 18 U.S.C.
§ 1512. The charges arose from his
representation of various tax
protesters in an ongoing grand jury
investigation in Tampa, Florida,
directed at violations of the
federal income tax laws. He was
acquitted by a jury.
Party Represented
Mr. Scott McLarty
Nature of Participation in Case
I was co-counsel with another
attorney. My responsibilities
included undertaking discovery,
researching the law, preparing,
filing, and arguing pre-trial
motions, and participating in the
actual trial of the case.
Final Disposition of Case
Mr. McLarty was acquitted by a
jury.
Dates of Representation
1983
Names of Court/Judae
United States District Court,
Middle District of Florida, Tampa
Division
United States District Judge George
Carr (deceased)
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other Party
■38-
197
Co-Conn.qpl
Mr. Edward Garland
3151 Maple Drive N.E.
Atlanta, Georgia 30305
(404) 262-2225
Counsel nf nrh^r Party
Ms. Karla Spaulding
4830 West Kennedy Boulevard
Tampa, Florida 33609
(813) 286-4100
8) Citation of Ca.gp
State of Florid;^ v. Rohin'^nn, Case
Number 84-13740-A (unreported)
Capsule Snmin;:irv of C^^i.qp
Mr. Robinson was charged with
aggravated battery in connection
with a physical confrontation with
another individual in which this
individual sustained serious bodily
injury. Mr. Robinson claimed he
acted in self-defense and so
testified to the jury. The jury
acquitted him.
Party Repre.qenl-Pd
Mr. John Robinson
Nature of Parti ripati nn in Ca.qp
My representation of Mr. Robinson
required me to undertake extensive
pre-trial discovery, including the
talcing of pre-trial depositions,
research of the law, preparing,
filing, and arguing relevant
motions, interviewing defense
witnesses, and trying the case to a
jury.
-39-
198
Final Disposition of Case
Mr. Robinson was acquitted by a
jury.
Dates of Representation
1984-1985
Names of Court/Judae
Circuit Court of Thirteenth
Judicial Circuit of the State of
Florida
Circuit Judge Harry Lee Coe, III
(retired) (current State Attorney
for Thirteenth Judicial Circuit)
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other Party
Co-Counsel
None
Counsel of Other Party
Mr. Michael LeBron
235 West 56th Street
Suite 25D
New York, New York 10019
(unpublished phone number)
9) Citation of Case
State V. Moore. 486 So. 2d 79 (Fla.
2d DCA 1986)
Capsule Summary of Case
Mr. Moore and Mr. Moorman were
indicted by a grand jury for
official misconduct. The trial
judge granted a motion to dismiss
the indictment because it
determined that the indictment was
tainted by the defendants'
compelled appearances before the
grand jury that indicted them. The
-40-
199
Second District Court of Appeal
upheld the dismissal.
Party Represented
Mr. Joseph Moore
Nature of Participation in Case
I represented Mr. Moore in
connection with his appearances
before the grand jury. After his
indictment, I undertook pre-trial
discovery, including the taking of
pre-trial depositions, engaged in
research of the law, and prepared,
filed, and argued pre-trial
motions, including the critical
motion to dismiss. I also
represented Mr. Moore on appeal,
which included more research of the
law, the preparation and filing of
appellate briefs, and oral argument
before the Second District Court of
Appeal .
Final Disposition of Case
In State v. Moore. 486 So. 2d 79
(Fla. 2d DCA 1986), the court
affirmed the trial judge's
dismissal of the indictment brought
against Mr. Moore. He was never
recharged.
Dates of Representation
1984-1986
Names of Court/Judge
Circuit Court of Sixth Judicial
Circuit of the State of Florida
Circuit Judge Lawrence Keough
(retired)
Name/Address /Phone Numbers of Co-
Counsel and Counsel of Other
Parties
-41-
200
Co-Counsel
None
Counsel of Other Parties
Mr. Bennie Lazzara, Jr.
606 East Madison Street
Tampa, Florida 33602
(813) 229-2224
Mr. Richard Mensch
2001 80th Street North
St. Petersburg, Florida 33710
(813) 847-8158
Mr. Michael Halkitis
10036 Casey Drive
New Port Richey, Florida 34654
(813) 869-2401
10) Citation of Case
United States v. Fred Arthur
Anderson et al.. Case Number 85-59-
Cr.-T-13 (NOTE: This case is
unreported as to my client because
he was acquitted. It is reported
as to convicted, appealing co-
defendants. See United States v.
Kotvas. 941 F. 2d 1141 (Uth Cir.
1991), cert, denied. 506 U.S. 1055,
113 S. Ct. 982, 122 L. Ed. 2d 135
(1993) .)
Capsule Summary of Case
My client in this case, Mr. Richard
Guagliardo, was indicted for
conspiracy to commit racketeering,
racketeering, and mail fraud. His
co-defendants were indicted for
similar offenses, including
extortion. All of the charges were
based on acts of alleged public
corruption before the Hillsborough
County Board of County
Commissioners. The essence of the
charges was that the Board was a
■42-
201
criminal enterprise, and certain of
its members, aided by non-members,
were engaged in soliciting and
accepting bribes in return for
favorable votes on matters,
particularly zoning matters, which
came before the Board. Following a
protracted, highly publicized case,
Mr. Guagliardo and the majority of
his co-defendants were acquitted.
Party Represented
Mr. Richard Guagliardo
Nature of Participation in Case
This case represented the most
complex and time-consuming matter I
ever undertook as a trial attorney.
It required extensive pre-trial
discovery, which included securing,
compiling, cataloging, and
reviewing in detail literally
thousands of documents. The case
also required extensive research of
the law, followed by the
preparation, filing, and arguing of
numerous pre-trial motions. It
also demanded intense preparation
in terms of attempting to secure a
fair and impartial jury, preparing
and delivering an effective opening
statement, preparing effective
cross-examinations of numerous
government witnesses, presenting a
concise defense, and delivering a
convincing final argument to the
jury.
Final Disposition of Case
The jury acquitted Mr. Guagliardo
of all charges.
Dates of Representation
1985-1986
-43-
202
Names of Court/Judae
United States District Court,
Middle District of Florida, Tampa
Division
United States District Judge George
Carr (deceased)
Name/Address/Phone Numbers of Co-
Counsel and Counsel of Other
Parties
Co-Counsel
None
Counsel of Other Parties
Mr. Michael Otis
3841 West Kennedy Boulevard
Tampa, Florida 33609
(813) 872-2656
Mr. David Maney
606 East Madison Street
Tampa, Florida 33602
(813) 228-7371
Mr. Robert Polli
101 East Kennedy Boulevard
Suite 3130
Tampa, Florida 33602
(813) 222-8350
Mr. Patrick Doherty
619 Turner Street
Clearwater, Florida 34616
(813) 443-0405
Mr. Raymond Harris
(no longer practices law; address
and phone number unknown)
Mr. Claude Tison
111 East Madison Street
Suite 2300
Tampa, Florida 33601
(813) 273-4200
-44-
203
Mr. Lee Fugate
13630 58th Street North
Clearwater, Florida 34620
(813) 539-6536
Mr, Joseph Beeler
3050 Biscayne Boulevard
Suite 300
Miami, Florida 33137
(305) 576-3050
Ms. Julianne Holt
801 East Twiggs Street
Fifth Floor
Tampa, Florida 33602
(813) 272-5980
Mr. Thomas Hanlon
210 North Pierce Street
Tampa, Florida 33602
(813) 228-7095
Mr. Manual Lopez
801 East Twiggs Street
Fifth Floor
Tampa, Florida 33602
(813) 272-5980
Mr. Joseph Magri
7650 Courtney Campbell Causeway
Tampa, Florida 33607
(813) 281-9000
Mr. David Runyon
100 2nd Avenue South
St. Petersburg, Florida 33701
(813) 892-6001
Ms. Karla Spaulding
4830 West Kennedy Boulevard
Tampa, Florida 33609
(813) 286-4100
In that all of these cases are older than
five years, I provide the following list of
members of the legal community who have had
recent contact with me in my capacity as a
judge :
■45-
204
Mr. Frederick L. Bateraan, Jr.
Bateman & Graham, P. A.
300 E. Park Avenue
Tallahassee, Florida 32301
(904) 224-2677
Mr. Thomas Gonzalez
Thompson, Sizemore & Gonzalez, P. A.
109 N. Brush Street-Suite 200
Tampa, Florida 33601-0639
(813) 273-0050
Ms. Arthenia Joyner
Stewart, Joyner, Jordan-Holmes &
Holmes, P. A.
1112 E. Kennedy Blvd.
Tampa, Florida 33602-0297
(813) 229-2300
Mr. Christopher Knopik
Yerrid, Knopik & Valenzuela, P. A.
101 East Kennedy Boulevard
Suite 2160
Tampa, Florida 33602-5150
(813) 222-8222
Mr. Thomas C. MacDonald, Jr.
Shackleford, Farrior, Stallings &
Evans, P. A,
501 East Kennedy Blvd. -Suite 1400
Tampa, Florida 33601-3324
(813) 273-5000
Ms. Kay J. McGucken
Kay J. McGucken, P. A.
1320 East Ninth Avenue
Suite 210
Tampa, Florida 33605-3616
(813) 248-3782
The Hon. Stevan Northcutt
Second District Court of
Appeal
Post Office Box 327
Lakeland, FL 33802-0327
(941) 499-2290
■46-
205
Mr. Hugh Smith
Smith & Fuller, P. A.
101 East Kennedy Blvd. -Suite 1800
Tampa, Florida 33602-5148
(813) 221-7171
Mr. Thomas Steele
Fowler, White, Gillen, Boggs,
Villareal & Banker, P. A.
501 E. Kennedy Blvd. -Suite 1700
Tampa, Florida 33602
(813) 228-7411
Mr. Frank Strelec
Williams, Parker, Harris, Dietz &
Getzen, P. A.
P.O. Box 3258
Sarasota, Florida 34230-3258
(941) 366-4800.
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.)
1. I represented Mr. Kenneth Mullins in
State of Florida v. Mullins, Case Number 79-
5025-D, Circuit Court of the Thirteenth
Judicial Circuit of the State of Florida.
Mr. Mullins, along with a co-defendant by the
name of Mr. Brett Bachelor, was charged with
first-degree murder and robbery of an older
gentleman in the Hyde Park area of Tampa.
The co-defendant was arrested immediately
after the murder, went to trial, and was
convicted of second-degree murder, after
which he was sentenced to ten years in the
Florida State Prison. This co-defendant
always maintained his innocence.
Following the co-defendant's trial, my client
was arrested, and I was immediately retained
to represent his interests. After extensive
pre-trial discovery, I was able to convince
the State Attorney's office of Hillsborough
County that both my client and the co-
-47-
206
defendant did not commit this crime. As a
result, the charges against my client and the
co-defendant were dismissed and the co-
defendant was freed after spending
approximately one year in prison.
A very interesting event just took place in
this case several months ago. Another person
allegedly confessed to committing this murder
and has been indicted by the Hillsborough
County grand jury for first-degree murder.
To my knowledge, the case has not been
disposed of.
The Assistant State Attorneys who handled
these cases for the State of Florida were Mr.
Thomas Fox, 401 East Kennedy Boulevard,
Tampa, Florida, 33602, (813) 228-9819; now
Circuit Judge Robert Sims, Hillsborough
County Courthouse Annex, Room 122, Tampa,
Florida, 33602, (813) 272-6874; and now
County Judge Walter Heinrich, Hillsborough
County Courthouse Annex, Room 123 (813) 272-
6841. The Assistant State Attorney who is
handling the case against the recently-
charged individual is Ms. Karen Cox,
Hillsborough County Courthouse Annex, 800
East Kennedy Boulevard, Fifth Floor, Tampa,
Florida, 33602, (813) 272-5400.
2. I represented the dean of students of a
local high school who was charged with
committing a sexual offense on a young boy
who was his "little brother" in the "Big
Brother-Little Brother" program. He was
immediately suspended from his position by
the Hillsborough County School Board. Quite
naturally, the case was the subject of
extensive publicity.
My client was adamant that he was innocent of
the charge. The child had made a similar
accusation against another individual which
proved to be unfounded. Accordingly, I
immediately undertook an extensive
preindictment investigation to establish his
innocence including the taking of numerous
sworn statements from relevant witnesses.
The case was presented to the Hillsborough
County grand jury for its determination of
-48-
207
whether there was probable cause to return an
indictment against my client. The State
Attorney's office of Hillsborough County
presented certain evidence that I had
uncovered to the grand jury for its
consideration. Additionally, my client,
without a grant of immunity, testified before
the grand jury. The grand jury declined to
indict my client and the charge against him
was dismissed. He was later reinstated to
his position by the school board and awarded
all of his back pay.
I later had the court file sealed pursuant to
Florida law so I cannot furnish a case
number. I do recall, however, that Mr. Lee
Atkinson, 2655 McCormick Drive, Clearwater,
Florida, 34617, (813) 799-2882, was one of
the assistant state attorneys assigned to the
case.
3. I represented Mr. Allan Brown in the case
of Independent Bank of Tampa v. Brown, Case
Number 82-8533-H, Circuit Court of the
Thirteenth Judicial Circuit of the State of
Florida. Mr. Brown had been taken into
custody pursuant to a Writ of Ne Exeat. The
facts of the case were unique in that the
client was alleged to be in default as to an
unsecured bank loan in the principal sum of
approximately $100,000. After I obtained the
release of my client from jail, I
counterclaimed against the bank for malicious
prosecution, false imprisonment, and abuse of
process. The basis of these claims was that
the bank had misused the Writ of Ne Exeat and
their actions in that regard amounted to
nothing more than having my client imprisoned
for owing a simple debt which is contrary to
Article 1, Section 11 of the Florida
Constitution. After negotiations with the
bank, it dismissed its claim against my
client and forgave the $100,000 debt. In
return, my client dismissed his claims
against the bank for the sum of $1.
The attorney for the bank was Mr. Samuel
Mandelbaum, 712 South Oregon Avenue, Tampa,
Florida 33606, (813) 222-7500.
-49-
208
4. I am frequently called upon to lecture at
continuing legal education seminars. Over
the past several years I have lectured at
educational events sponsored by The Florida
Bar, the Hillsborough County Bar Association,
the Young Lawyers Section of the Hillsborough
County Bar Association, the Hillsborough
County Criminal Defense Lawyers Association,
the Pinellas County Criminal Defense Lawyers
Association, the St. Petersburg Bar
Association, the Academy of Florida Trial
Lawyers, Stetson University College of Law,
The American Judicature Society, the Defense
Research and Trial Lawyers Association, the
Judicial Assistants Association of Florida,
and the Second District Court of Appeal. I
have also judged "Moot Court" competitions
for Stetson University College of Law.
Finally, I have also participated in
community relations forums sponsored by the
University of South Florida and the City of
Tampa and have spoken to elementary, high
school, and college students about the role
of the judiciary in our society.
5. Finally, I would like to emphasize
another aspect of my background which I
believe reflects favorably on my candidacy
for United States District Judge. Since May
of 1992, Senators Connie Mack and Bob Graham
have impanelled Federal Judicial Nominating
Commissions to consider the qualifications of
applicants for vacancies on the United States
District Court, Middle District of Florida.
I am honored to have been the only applicant
recommended by each of the Commissions to
Senators Mack and Graham as being qualified
to be a United States District Judge.
-50-
20S
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 .
Only two categories of this question apply to
me — deferred income arrangements and
retirement benefits.
Deferred Income Arrangement
Beginning in July of 1987, after becoming a
state-court judge, I have deferred $100 per
month from my state salary under the State of
Florida Deferred Compensation Plan
administered by Security First Life Insurance
Company. According to the latest account
statement issued September 30, 1996, the
annuity value is $14,983.86, the lump sum
retirement value is $14,691.29, the lump sum
termination value is $14,656.33, and the lump
sum transfer value is $14,656.33. Withdrawal
from the Plan is limited to the following
circumstances: retirement, termination of
employment, total and permanent disability
lasting at least six months, death, or
unforeseeable emergency. Assuming I am
confirmed as a United States District Judge,
I would have the option of obtaining this
money under the category of "termination of
employment." I have not yet decided whether
I would pursue that option or leave the money
in the account until I retire.
Retirement Benefits
Since becoming a state-court judge in January
of 1987, I have been a member of the Elected
State and County Officers' Class of the
Florida Retirement System. Retirement
contributions to the system are made solely
by the state of Florida on behalf of members
of the class based on a certain percentage of
-51-
210
a class member's monthly salary. Vesting for
retirement benefits occurs after 8 years of
continuous service, a requirement I have
fulfilled. Assuming I am confirmed as a
United States District Judge, I would have
two options--take early retirement and
receive reduced benefits or wait until age 62
to start drawing retirement at a higher rate.
I have not yet decided which option to
pursue .
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.
As a state-court judge, I have adhered to a
basic philosophy--always avoid even the
appearance of impropriety. I will continue
to adhere to this philosophy if I become a
United States District Judge. That is, once
I become personally aware of a potential
conflict of interest, either on my own or
through any source, I will immediately bring
it to the attention of all parties and, if
the conflict is of such a nature that my
continued involvement in the case manifests
even the appearance of impropriety, I will
recuse myself from the case.
I know of no specific category of litigation
that may present a conflict of interest. As
to financial arrangements, I do have a
partnership interest with other attorneys in
a law office building. However, since
becoming a state judge, I have always recused
myself from presiding over cases in which
these attorneys were involved. I will
continue to follow this practice if I am
ultimately confirmed as a United States
District Judge.
Additionally, I have several relatives who
practice law in Tampa, Florida. Once again,
since becoming a state judge, I have always
recused myself from presiding over cases in
which these attorneys are involved. I will
-52-
211
continue this practice if ultimately
confirmed as a United States District Judge.
Finally, I will adhere strictly to the
standards imposed by the Codes of Conduct for
United States Judges and other rules of the
Judicial Conference of the United States, as
well as all statutory provisions, governing
disqualification or recusal.
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 (If
you prefer to do so, copies of the financial disclosure
report, requested by the Ethics in Government Act of
1978, may be substituted here.)
See attached form AO-10 which immediately follows
this part.
Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
See attached financial net worth statement which
immediately follows this part.
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.
No.
■53-
212
^?/96
FINANCIAL DISCLOSURE REPORT
NOMINATION
i-"!?*.' Novel
U.S.(. App.
1. Person Reporting (Last naae, first, aiddle initial)
LAZZARA, RICHARD A.
2. Court or Organization
U.S.D.C. Florida
3. Date of Report
01/07/97
4. Title (Article III judges indicate active or
senior statui; Ifladistrate judges indicate
U.S. District Court Judge
5. Report Type (check appropriate type)
X Noaination, Date 01/7 /97
Initial Annual Final
6. Reporting Period
01/01/95 - 01/01/97
7. chaabers or Office Address
801 E. Twiggs Street, #600
Tampa, FL 33602
8. On the basis of the infor^tion contained in this Report and
any aodifications^pertaining thereto.^it is, in ay dpinion,
in coap dance with applicable laws ahd regulations.
Reviewing Officer Date
IMPORTANT NOTES: The instrutSions accompanying this 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. (Reportingindividualonly, see pp. 9-13 of Instructions.)
n
POSITION
NOME (No reportable positions)
NAME OF ORGANIZATION/ENTITY
Custodian
Damon Lazzara-Florida Gift to Minor's Act
Damon Lazzara Trust
II. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.)
DATE PARTIES AND TERMS
n
NONE (No reportable agreements)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DATE
n
SOURCE AND TYPE
NONE (No reportable non-investment income)
State of Florida-Judicial Salary
State of Florida-Judicial Salary
University of South Florida (S)
S 104382.00
S 110627.00
S 0.00
$
$
213
FINAHCIAL DISCLOSURE REPORT
Naae of Pcrton Reporting
LAZZARA, RICHARD A.
Date of Report
01/07/97
IV. REIMBURSEMENTS and GIFTS - transporlation, lodging, food, cntertainmenl.
(IncJudes those (o spouse and dcpendenl children; use the parentbelicals '(S)' and '(DC)' lo indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instructions.)
SOURCE DESCRIPTION
n
Exempt
NONE (No such reportable reimbursements or gifts)
Exempt
OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
n
SOURCE
NONE (No such reportable gifts)
DESCRIPTION
Exempt
Exempt
VI.
n
LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for Uabihty by using the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint UabiUty of
reporting individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
NONE (No reportable liabilities)
Barnett Bank of Florida
Mortgage on law office in Taunpa, FL
VALUE COOES:
iUimr-im,,»o § = U^%--»i?;888,ooo M iSI?4<^n !1?868?8oo
H - 1100,001 to (250,000
214
FINANCIAL DISCLOSURE REPORT
Nam of Person Reporting
LAZZARA, RICHARD A.
Date of Report
OI/O7/97
VII. Page 1 INVESTMENTS and TRUSTS -income, value, transaaions (Includes those of spouse
and dependent children. See pp. 37-54 of Instructions.)
A. B.
.Qescriptjon of Assets
(incluaing trust assets)
Indicate where applicable, owner of
the asset W.usiK§ the^pafenthetical
°(J)" for ibint ownership of report-
ing indwiiual and spousfe, 'tsr'^for
separate ouriershfR b^poise, .'(DC)''
fof ownership by flependent child.
Place "(X)" after each asset
exe»pt froo prior disclosure.
IncQue
during
'=J?'ln3#
Transactions during reporting period
(1)
(2)
(1)
(2)
Value
Methods
j1)
buyflill,
■erger.
If not exempt from disclosure ]
(2)
Hontfi-
Day
(3)
(4)
43y%fPt?:r
NONE (No reportable
' ^fiiiCy '?Srp'fS^rif^l%lO/95
D
Interest
Q
Exempt
2 L.B.O.P., Inc. stock, (closest, ,„
family corp.)appraisal 9/30/95
B
Interest
a
Exempt
3 Plaza EquipBen.t Co. stock
(closed family corp.)
None
u
Exempt
4 Lazzara Family. PartnershiD
(closed family partnership)
D
Rent
u
Exempt
5 Law office^bujlding . . ,,„,
(recertified appraisal 7/23/90)
None
pi
0
Exempt
6 Security First Life (Def.comp
plan) 'Tallahassee, fL
A
Interest
T
Exempt
7 Nationsbank (IRA), Tampa, FL
A
interest
T
Exempt
8 PanAmerican Life (IRA) New
A
Interest
T
Exempt
9 Nationsbank (IRA) (S) Ta^M,
A
interest
T
Exempt
10 PanAmerican Life (IRA) (S),
New Orleans, U
A
interest
T
Exempt
" "a'i?n-uS''t^¥ Ur^iT^Sfv, N.r.
A
interest
T
Exempt
12 Suncpast Schools Credit Union
(J), Tampa, FL
A
interest
T
Exempt
13 Univ. of South FL Credit Union
(J), Tampa, fL
A
interest
T
Exempt
"- "^s^'r^nS^srir^" ""''
c
Dividend
T
Exempt
" 'TfcTVa^Vl^^^" ""'""
C
Interest
T
Exempt
16
17
18
' {S^^^'^ei^rsii t=tls?88i°fol!8,ooo SI36?8Ji'?o'iiS8°ooo mU°U°tlhnoo,ooo BiSlff JhiS I1!fl88?ooo
' n'^'dV'h & 03) fi=Ulo?88i°fol!8o,ooo £li^?8Ji'?o*l?;888,ooo t=SI?t°?JaS%f:88o?88o '''*'°°-'^' " '""'"^
' rfi^'cS!*^)'"*"^ 3=Sggfiltie 5=S?K^^"^ """ °"^>" 5:H??SfS5 T=cash/narket
215
FINANCIAI. DISCXOSURE REPORT
Naae of Person Reporting
LAZZARA, RICHARD A.
Date of Report
01/07/97
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Report)
None
216
FINANCIAL DISCLOSURE REPORT
Naae of Person Reporting
LAZZARA, RICHARD A.
Date of Report
01/07/97
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion
No. 57 of the Advisory Conunittee 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 litigation 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), m the outcome of such litigation.
I certify that all the 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 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. app. 7, secti^v)* 501 et. seq., 5 U.S.C. 7353 and Judicial
Conference regulations.
Signature
Date January 7, 1997
NOTE: ANY INDIVIDUAL WHO KNOWINgifY AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. 6,
SECTION 104) .
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
217
Lazzara Family
Partnership
289,
000
00
TIAA (Annuity)
8,
750
00
Total
Liabilities
204,
400
00
Total assets
897,
900
00
Net Worth
Total
liabilities and
net worth
693,
897,
500
900
00
Contingent
Liabilities
00
General In-
formation
As endorser,
comaker or
guarantor
00
Are any assets
pledged? Add
schedule
NO
On leases or
contracts
00
Are you
defendant in
any suits or
legal actions
NO
Legal claims
00
Have you ever
taken
bankruptcy?
NO
Provision for
federal income
tax
::o
Other special
debt
00
218
REAL ESTATE OWNED/REAL EASTATE MORTGAGES OWED
1) RESIDENCE
Fair market value $198,000
First Mortgage due Barnett Bank
of Tampa 121,100
Home Equity Loan due Barnett Bank
of Jacksonville 10,900
2) OFFICE BUILDING (1/12 interest)
fair market value of interest $ 91,200
liability on mortgage due
Barnett Bank of Tampa based 71,800
on interest
UNLISTED SECURITIES
1) L. O. C, Inc. $ 58,000
(Closed family corporation)
Lazzara Bulk Oil and Packaging, Inc. 58,000
(Closed family corporation)
2) Plaza Equipment Company
(Closed family corporation) 65,550
NOTE
I am currently the Trustee for my son Damon's trust (he is
19 years of age). The trust has $5,580 in a money market account
at the Suncoast Schools Federal Credit Union and $35,275 in a
certificate of deposit at the same institution. I also hold
shares of stock in The Southern Company for my son under the
Florida Gift to Minors Act. The current fair market value of the
stock is $51,085. I am also the beneficiary of two life
insurance policies on my son's life with Metropolitan Life and
Nationwide Mutual. The cash value of the Metropolitan policy is
$8,700. The cash value of the Nationwide policy is $1,600. All
of these assets were derived from gifts made to my son over the
years by my parents. I am simply managing them for his benefit
until such time as he is financially mature enough to manage them
himself. Finally, my son has no debts.
219
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemxzes 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
(average
monthly
balance)
13,
000
00
Notes payable
to banks
( secured)
00
U.S. Gov't
securities- -add
schedule
00
Notes payable
to banks
(unsecured)
00
Listed
securities --add
schedule
181,
550
00
Notes payable
to relatives
00
Accounts and
notes
receivable
00
Accounts and
bills due-
credit cards
600
00
Due from friend
or relative
00
Unpaid income
tax
00
Due from others
00
Other unpaid
tax and
interest
00
Doubtful
00
Real estate
mortgage
payable-add
schedule
203,
800
00
Real estate
owned-add
schedule
289,
200
00
Chattel
mortgages and
other liens
payable
00
Real estate
mortgages
receivable
00
Other debts-
itemize
00
Autos and other
personal
property
45,
000
00
Cash value
life insurance
11,
500
00
Other assets-
itemize — IRAs
45,
000
00
Security Life-
( Deferred Comp.
Plan)
14,
900
00
220
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 amount of time
devoted to each.
Both as a lawyer and judge, I have
participated in various activities designed
to educate the community about the legal
profession and the judicial system. Such
activities have included service on Law Day
committees, speaking to members of civic
clubs and organizations, speaking to students
in a classroom setting, and serving on
community discussion panels. Furthermore,
although I never belonged to any organization
which provided pro bono legal work during my
years as a practicing attorney, I would from
time to time take cases for a minimal fee.
Additionally, I was on the court-appointed
list of attorneys in both the federal and
state systems. When selected from this list,
I would provide legal representation to
indigent criminal defendants for a reduced
fee.
The American Bar Associates 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 the
practical implementation of membership policies? If so,
list, with dates of memberships. What you have done to
try to change these policies.
I have never belonged to any organization
that discriminates on the basis of race, sex
or religion.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination?
-54-
221
Please describe your experience in the entire judicial
selection process, from beginning to end (including all
circumstances which led to your nomination and
interviews in which you participated) .
Senator Bob Graham has impanelled a Federal
Judicial Nominating Commission to recommend
candidates to him for nomination to the
United States District Courts located in the
State of Florida. This commission
recommended me to Senator Graham for
nomination to the United States District
Court, Middle District of Florida.
In connection with this process, I was
required to fill out and submit to each
commission member a detailed questionnaire
designed to elicit much the same information
that is asked for in this questionnaire.
After that, I was invited to be personally
interviewed by the commission members who
reside within the Middle District. During
the course of the interview, which lasted
approximately thirty minutes and was open to
the public, the commission members asked me
in-depth and far-ranging questions designed
to determine my qualifications to be a United
States District Judge. My name, along with
the names of two other well-qualified
individuals, was then submitted to Senator
Graham.
Senator Graham then conducted personal
interviews of all three of the finalists,
after which he submitted his recommendation
to President Clinton that I be nominated for
this federal judgeship.
Following Senator Graham's recommendation to
the President, I completed and submitted
comprehensive background forms to the
Department of Justice, the American Bar
Association, and the Federal Bureau of
Investigation. I was then interviewed by
representatives of the Department of Justice,
the ABA, and the FBI and was the subject of
extensive background checks by all three of
these entities.
-55-
222
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-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 tov;ard
loosening jurisdictional requirements such as
standing and ripeness; and
e. A tendency by the judiciary to
imposed itself upon other institutions in the
manner of an administrator with continuing
oversight responsibilities.
-56-
223
As a state court judge for the past nine
years, I am keenly aware of the criticism
levied against not just federal judges but
also state judges regarding their tendency to
engage in "judicial activism" and to usurp
functions which, under the constitutional
doctrine of the separation of powers, are the
exclusive prerogatives of the executive and
legislative branches of government.
In my view, a judge's resolution of a case,
whether in the federal or state system, must
be accomplished in strict accord with the
relevant statutory provision that confers
jurisdiction to act in the case.
Accordingly, in resolving a case, a judge
must first determine whether jurisdiction has
been conferred by the legislature and whether
it has been properly invoked by the parties.
If jurisdiction or standing is lacking, the
judge is then obligated to terminate the
litigation because it is a fundamental
principle of our jurisprudence that without
jurisdiction conferred by law, a judge has
absolutely no authority to act.
Once a judge has determined that jurisdiction
has been legislatively conferred, it is
equally important that the judge, during the
dispute-resolution process, exercise that
jurisdictional authority in strict accord
with the legislative will embodied in the
statutory provision at issue. I am a firm
believer in the fundamental precepts that
legislative intent is the polestar by which a
judge must be guided in interpreting and
applying a statutory provision and that such
intent, as gleaned from a statute, is the law
which must be followed.
I also adhere to the basic proposition that
where the legislature has clearly manifested
its intent through plain and unambiguous
language, any further judicial construction
is not only inappropriate but unwarranted.
In my view, a judge who does not strictly
adhere to this fundamental principle becomes
in effect a "legislator" and risks expanding
the reach of a statute far beyond what the
legislature intended, to the detriment of the
-57-
224
cornerstone of our system of constitutional
government, the doctrine of the separation of
powers .
-58-
225
I. BIOGRAPHICAL INFORMATION
1. Full name (include any former names used) .
A. Richard Caputo*
Address: List current place of residence and office
address (es) .
Office:
387 Wyoming Avenue, P.O. Box 2059, Kingston,
PA, 18704-2059
3. Date and place of birth.
May 22, 1938, Portchester, New York
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Married to the former Rosemary Shea. She is not employed
outside the home.
Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Brown University, 1956-1960, A.B. Degree 1960
University of Pennsylvania Law School, 1960-1963,
LL.B. Degree 1963
Employment Record; List (by year) all business or profes-
sional 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.
* My first name is Albert. Because my father's name was the
same, I have been called Richard since childhood, and have never
used my first name, with the exception of military service where
personnel forms called for the use of one's first name.
226
A. Richard Caputo
1960-1963 Summers: Worked as a truck driver/ laborer for
R. J. Rich Construction Company, a residential developer
in the town of Rye, New York. The firm is no longer in
business.
August 1963-September 1964: Clerked in the law office
of Charles A. Shea, Jr., Esquire, 626 First Eastern
Bank Building, Wilkes-Barre, PA, 18701. I did research,
drafted pleadings, briefs and memoranda.
September 1964-September 1967; Served in the United States
Air Force (JAG) , Plattsburgh AFB, New York. I performed
as both trial and defense counsel in courts-martial, as
counsel in administrative elimination board hearings and
as a claims officer.
January-September 1968: Served as a public defender for
Luzerne County, Pennsylvania. I represented indigent
defendants in criminal cases.
September 1968-Present; Principal in Shea, Shea & Caputo,
626 First Eastern Bank Building, Wilkes-Barre, PA, 18701
(1968-1982); 310 Bicentennial Building, Wilkes-Barre,
PA, 18701 (1982-October, 1994); 387 Wyoming Avenue,
Kingston, PA, 18704 (November, 1994-Present) . I have
been engaged in the general practice of law with empha-
sis on construction and commercial litigation and
multiemployer pension plan law.
1973-1992 ; Secretary and Director of Stegmaier Brewing Company,
Wilkes-Barre, Pennsylvania
1980-Present; Assistant Secretary, McCarthy Enterprises, Inc.,
Kingston, Pennsylvania
1985-Present: Partner in Druid Associates, an investment
partnership, which owns an interest in an apartment
building in Mamaroneck, New York (Carolyn Court) , and
an interest in an apartment building in Fleetwood,
New York (William Street) . I am a twenty-five (25%)
percent partner in Druid Associates.
1985-Present: Assistant Secretary of Bronsberg & Hughes
Pontiac, Inc., d/b/a Wyoming Valley Motors, Larksville,
Pennsylvania
1986-Present : Partner in Alafaya Associates, an investment
partnership, which owns an interest in an apartment
building in Fleetwood, New York (William Street) . I am
a sixteen and two-thirds (16 2/3%) percent partner in
Alafaya Associates.
-2-
227
A. Richard Caputo
1988-1992; Director of Unifax, Inc. (now US Foodservice, Inc.)
Wilkes-Barre, Pennsylvania
1990-Present: Assistant Secretary of Middle Road Development
Corp. , Kingston, Pennsylvania
1990-Present; Assistant Secretary of Magicorp, Inc.,
Kingston, Pennsylvania
1990-Present; Assistant Secretary of Plainco, Inc.,
Kingston, Pennsylvania
1990-Present: Assistant Secretary of Forsuns, Ltd.,
Kingston, Pennsylvania
1990-Present; Assistant Secretary of Robbins Door & Sash
Company, Kingston, Pennsylvania
1991-Present: Director and Vice-President of Maplemoor,
Inc. , Lehman, Pennsylvania
1994-Present: Director and Secretary/Treasurer of The
Luzerne Foundation, a community foundation,
Wilkes-Barre, Pennsylvania
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.
Yes,
September 2, 1964, through September 1, 1967, U.S. Air Force
(JAG) - First Lieutenant, promoted to Captain March 2, 1966
Inactive Reserve from September 2, 1967 through September 27,
1973
Serial Number: FV 3106149
Honorably Discharged September 27, 1973
8. Honors and Awards: List any scholarships, fellowships, hon-
orary 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.
American Bar Association
Pennsylvania Bar Association
-3-
228
A. Richard Caputo
Federal Bar Association
Luzerne County Law & Library Association (Luzerne County
Bar Association)
Member, Committee on Unauthorized Practice
Member, Committee on Continuing Legal Education
Member, Third Circuit Judicial Conference
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.
Lobbying:
Except for the American Bar Association, I am not aware
that I belong to any organization which is active in
lobbying before public bodies.
Other organizations to which I belong:
Huntsville Golf Club - Bylaws attached as Exhibit "1"
The Luzerne Foundation
Westmoreland Club - Bylaws attached as Exhibit "2"
Wyoming Valley Country Club - Bylaws attached as
Exhibit "3"
11. Court Admissions; 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 o'f membership. Give the same information for
administrative bodies which require special admission to
practice.
Supreme Court of the Commonwealth of Pennsylvania,
April 27, 1964
Luzerne County Court, February 27, 1964
United States District Court for the Middle District of
Pennsylvania, October 26, 1967
United States District Court for the Eastern District of
Pennsylvania, April 4, 1996
United States Court of Appeals for the Third Circuit,
March 19, 1970
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 pub-
lished 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.
None.
-4-
229
A. Richard Caputo
13. Health: What is the present state of your health? List
the date of your last physical examination.
On October 16, 1993, I suffered a heart attack.
On October 25, 1993, I had coronary artery bypass surgery
which involved three (3) grafts. I was hospitalized at
Wilkes-Barre General Hospital, Wilkes-Barre, Pennsylvania
from October 16, 1993, to November 1, 1993. I began to work
in January, 1994, on a part-time basis and resumed full-time
practice in April, 1994. I have recovered and function as
well as before the episode and surgery.
Since October, 1993, examinations are ongoing every
three (3) to five (5) months.
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) citations
for significant opinions on federal or state constitu-
tional 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.
1968-1974 - Member of Fairview Township Zoning Commission
Appointed by the Board of Supervisors of Fairview Township.
This was a non-paying position. I have never run for public
office.
17 . Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school
including:
-5-
230
A. Richard Caputo
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; No.
3. the dates, name 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;
August 1963-Septerober 1964: Charles A. Shea, Jr., Esquire
626 First Eastern Bank Bldg. , Wilkes-Barre,
Pennsylvania, 18701; research, drafting pleadings,
briefs and memoranda.
September 1964-September 1967: U.S. Air Force (JAG),
Plattsburgh AFB, New York; trial and defense counsel.
January-September 1968: Public Defender for Luzerne
County; represented indigent defendants in criminal
cases.
September 1967-present : Shea, Shea & Caputo, 626
First Eastern Bank Building, Wilkes-Barre, PA, 18701
until 1982; 310 Bicentennial Building, Wilkes-Barre,
PA, 18701 until October, 1994; and, 387 Wyoming Avenue,
Kingston, PA, 18704 from October, 1994 to present,
office principal; general practice with emphasis on
construction and commercial litigation and multiemployer
pension plan law.
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?
1963-4 : Research, drafting of briefs, memoranda and
pleadings in civil matters
1964-7 : Trial and defense counsel in six (6) General
Courts-martial (criminal) , ten (10) Special Courts-
martial (criminal) , and in excess of 20 Administrative
Elimination Review Hearings (civil)
1967-9 : Criminal trials, extensive work on numerous
federal actions for collection of pension contributions,
research, memoranda, briefs, pleadings and motions
1970-present; General practice, litigation and arbi-
tration, multiemployer pension plan law, construction law
-6-
231
A. Richard Caputo
Describe your typical former clients and mention
the areas, if any, in which you have
specialized.
Clients:
A multiemployer pension plan; several contractors;
numerous small businesses; and numerous individuals
and families from all walks of life.
Specialization;
General practice with emphasis on commercial litigation;
construction contract disputes; federal law relating to
multiemployer pension plans.
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.
For the past fifteen (15) years, I have appeared in
court six (6) to ten (10) times annually. From 1967
to 1980, I appeared in court more frequently, viz twelve
(12) to eighteen (18) times annually.
2. What percentage of these appearances was in:
(a) federal courts; 70%
(b) state courts of record; 30%
(c) other courts. N/A
3. What percentage of your litigation was:
(a) civil; 99%
(b) criminal. 1%
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.
Approximately thirty-six (36) . I approximate
because as a public defender I cannot recall the exact
number. I know I had at least ten (10) jury trials and
ten (10) non-jury trials. Therefore, I am certain of at
least sixteen (16) trials to verdict or judgment. In
all but two (2) , I was sole or chief counsel.
-7-
232
A. Richard Caputo
5. What percentage of these trials was:
(a) jury; 52.8%
(b) non-jury. 47.2%
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. Indentify the party or parties whom you
represented; describe in detail the nature of your partici-
pation 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.
1. Lakeland School District Authority and Lakeland School
District v. The Sutter Corporation; Albert A. Miller, t/a Phoenix
Roofing and Supply Company and Albert Miller, individually;
Celotex Corporation; Bellante Clauss & Partners and Joseph
Bianca. Jr. . Civil Action No. 190 September Term 1979 (Lackawanna
County Court of Common Pleas) .
In this case, I represented defendant. The Sutter
Corporation, a general contractor who contracted with plaintiffs
to build a new high school according to the plans and specifica-
tions of the defendant architects, Bellante Clauss & Partners and
Joseph Bianca, Jr. Sutter entered into a contract with
defendant, Albert A. Miller t/a Phoenix Roofing, to install the
roof and defendant, Albert A. Miller t/a Phoenix Roofing, pur-
chased the roofing products from defendant, Celotex Corporation.
The school was constructed by Sutter, the Celotex built-up
roof installed by Miller, t/a Phoenix Roofing, and shortly
thereafter, and while students were in attendance, the roof began
to leak profusely. Ultimately, the roof failed, and it was
replaced by the plaintiffs with a rubber roof at a cost some
seven (7) times the amount of Sutter's agreement with Miller, t/a
Phoenix Roofing.
233
A. Richard Caputo
Action was instituted against the defendants on the theories
of breach of warranty and negligence. Defendant, Bianca, settled
immediately and secured a joint tortfeasor release. All other
defendants answered and cross claimed against each other.
The case was tried before a jury. The trial lasted three
(3) weeks, at the end of which the jury returned a verdict in
excess of $900,000.00 against Sutter (34%) Miller, t/a Phoenix
Roofing (33%), Celotex (32%) and Bianca (1%).
After an appeal was filed, the case was settled.
My involvement was as sole counsel for defendant, Sutter.
The trial preparation was extensive and involved four (4) experts
on built-up roofing. My preparation for their cross examinations
involved educating myself about a myriad of technical data con-
cerning built-up roofing and the careful review of the reports of
the experts. The other preparation related to the engineering
involved in the parapet wall design and the connections of the
structural steel at the top of the building.
(a) 1982.
(b) The Honorable John J. Cottone
Judge of the Court of Common Pleas of Lackawanna County
(c) Counsel for defendant. Miller, t/a Phoenix Roofing
Company
James E. O'Brien, Sr. , Esquire (deceased)
Kennedy, O'Brien, McCormack & Mulcahey
Suite 700 Scranton Life Building
538 Spruce Street
Scranton, PA 18503-1808
(717) 342-0151
Counsel for defendant, Celotex Corporation
Christopher K. Walters, Esquire
Reed Smith Shaw & McClay
2500 One Liberty Place
Philadelphia, PA 19103-7301
(215) 851-8100
-9-
234
A. Richard Caputo
Counsel for defendant, Joseph Bianca, Jr.
James M. Howley, Esquire
Scanlon, Howley, Scanlon & Doherty
321 Spruce Street
Scranton, PA 18503
(717) 946-7651
Opposing Counsel: James A. Kelly, Esquire
1500 South Webster Avenue
Scranton, PA 18501
(717) 346-1735
John Krisa, Esquire
Krisa, McDonough & Cosgrove
Route 6
Blakely, PA 18447
(717) 383-3205
2 . Emmett Thomas. Nicholas J. Haydock and John D. Jillson.
Trustees of the Anthracite Health and Welfare Fund v. Blue Coal
Corporation. Civil Action No. 71-46 (M.D.Pa.), 355 F.Supp. 510
(M.D.Pa.), aff'd by judgment order sub nom., Savitskv v. Blue
Coal Corp. . 485 F.2d 681 (3d Cir. 1973).
This was a case in which my client, the plaintiffs.
Trustees of the Anthracite Health and Welfare Fund, a
multiemployer pension fund, brought suit against the defendant,
Blue Coal Corporation, to recover contributions alleged to be due
the plaintiffs. Defendant was obligated to make pension contri-'
butions to the plaintiffs on the basis of anthracite (coal) it
"produced for use or for sale."
Defendant had purchased discolored anthracite from a third
party which was not a party to the collective bargaining agree-
ment which required parties such as the defendant to contribute a
per ton royalty contribution to plaintiffs on anthracite the
party "produced for use or for sale." The discolored coal had
been processed through the third party's preparation plant and
was saleable as coal, but because of its color, it would not
bring the price of non-discolored coal. After defendant pur-
chased the coal, it ran it through its processing plant with its raw
coal, and as a result, blended it with a non-discolored product
thereby reducing its notoriety. The defendant did not pay plain-
tiffs a royalty on the quantity of purchased discolored coal
although it did pay on the finished coal with which it was
blended in the process mentioned above. Plaintiffs brought an
action seeking the royalty contributions on the discolored coal
on the theory it had been produced for use or sale by the
defendant.
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A. Richard Caputo
The case was tried before a judge without a jury, and the
court determined that plaintiffs were not entitled to recover
because the subject coal had already been "produced for use or
for sale" before it arrived at defendant's plant. The court said
subsequent processing was irrelevant. I was sole counsel
for plaintiffs.
The case was appealed, and the decision was affirmed without
opinion.
This case is significant in that it set a precedent in the
anthracite industry with respect to the point at which
"production for use or sale" occurs and hence when more impor-
tantly in cases such as this, whether a contribution is due.
(a) 1972.
(b) The Honorable Malcolm Muir
Judge of the United States District Court for the
Middle District of Pennsylvania
(c) Opposing Counsel: James E. O'Brien, Sr. , Esquire
(deceased)
Kennedy, O'Brien, McCormack &
Mulcahey
Suite 700 Scranton Life Building
538 Spruce Street
Scranton, PA 18503-1808
(717) 342-0151
3. H. Eugene Wagner v. Corey E. Wagner, et al.. Civil No. 27
of 1972 (Luzerne County Court of Common Pleas) ; No. 611 of 1974
(Supreme Court of Pennsylvania, Eastern District); 466 Pa. 532,
353 A. 2d 819 (1976) .
This was a suit by a father against his children to establish
his claim to ownership of the stock of a corporation. He had,
through his attorney, formed a corporation which bought a piece
of real estate, its sole asset, and subsequently informed his
children that he was making a gift of the corporation to them.
He instructed his attorney to issue the stock certificates to the
children. This was never done in completed fashion, and a year
later, the father brought the suit and the children defended on
the basis that the complete gift had been made. I represented
the children and the case was tried in the Luzerne County Court
of Common Pleas in equity before The Honorable Bernard J.
Brominski, P.J. Judge Brominski found for my clients, the
Defendants. The Court en Banc overruled the Plaintiff's
exceptions. On appeal, the Pennsylvania Supreme Court affirmed.
The decision is reported in 466 Pa. 532, 353 A. 2d 819 (1976).
236
A. Richard Caputo
This case is significant because it presented the difficult
problems of having to represent children who were being sued by a
parent. These children were people who had, throughout their
childhood, and most of their adult lives, been extremely close to
their father. The series of cases involved in the complete sce-
nario were the domestic breakup of the mother and father; the
dissolution of the family construction business; the upsetting
of liens of the Small Business Administration wrongfully extended
by the father to the assets of the family business as well as the
corporation, the subject of the foregoing suit; the accounting by
the father of the business of the family partnership
(construction business) ; and proceedings before the United States
Tax Court. The emotional problems occasioned by such litigation
were, of course, delicate. The handling of legal problems with
the undercurrent of family disharmony was significant in my
development as a lawyer.
(a) 1972-4.
(b) The Honorable Bernard J. Brominski (Trial Judge)
The Honorable Richard L. Bigelow (deceased)
The Honorable Robert J. Hourigan (deceased)
The Honorable Peter P. Olszewski (now a Judge of the
Superior Court of Pennsylvania)
The Honorable Bernard J. Podcasy
The Honorable Arthur D. Dalessandro
Luzerne County Court of Common Pleas en Banc
and Supreme Court of Pennsylvania, Eastern District
(c) Opposing Counsel: William J. Taylor, Esquire
Taylor & Taylor
Suite 811
Ten Penn Center Plaza
1801 Market Street
Philadelphia, PA 19103
(215) 568-2644
Lawrence I. Washor, Esquire
address unknown
4. Commonwealth of Pennsylvania v, Gregory Reap. No. 675 of
1984, No. 676 of 1984 (Luzerne County Court of Common Pleas).
In this case, I represented a twenty-two (22) year old
defendant accused of aggravated assault and battery and simple
assault. The facts of the case are typical. Four (4) young men
were out drinking at a local singles bar. When they spoke to two
(2) young women, who they thought were unescorted, their spouses
suddenly appeared. Words ensued and all parties were asked to
leave. The controversy continued in the parking lot and onto the
highway, where threats and challenges resulted in the vehicles
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A. Richard Caputo
stopping and a physical confrontation taking place. The defendant
and his three (3) male friends were pitted against the two (2)
husbands, each of whom was bigger and stronger than the defendant
and his friends. The defendant said that in order to protect one
(1) of his friends, he hit one (1) husband on the head with a
rock. This resulted in a serious head wound and other injuries.
The other husband was beaten about the head and face with fists.
The defendant and his friends suffered minor injuries.
The defendant and two (2) of his friends were tried
before a jury and convicted after four (4) days of trial. An
unsuccessful appeal followed, and the defendant, who had no prior
record, was sentenced to ten (10) years probation and ordered to
pay restitution.
I acted as chief trial counsel and prepared all defense
witnesses. I also prepared the cross examinations of the
prosecution witnesses, which involved the review of extensive
prior testimony.
(a) 1985.
(b) The Honorable Arthur D. Dalessandro
Judge of the Court of Common Pleas of Luzerne County
(c) Co-Counsel: Cynthia A. Smith, Esquire (now by
marriage Cynthia A. Muroski, Esquire)
Shea, Shea & Caputo
3 87 Wyoming Avenue
P.O. Box 2059
Kingston, PA 18704
(717) 288-5020
Opposing Counsel: Joseph G. Albert, Esquire
Albert, Dingle, Russin,
Sklarosky, Sieminski & Kamage
1575 Wyoming Avenue
Forty Fort, PA 18704
(717) 283-1200
5 . Leo R. Corgan v . Kingston Metal Specialties Co. . William
Dickson. Jr.. Robert Oeller and Jeff Dickson. Civil Action No.
352-C of 1987 (Luzerne County Court of Common Pleas) .
I represented the plaintiff who brought suit against the
defendants to recover damages for cutting down some ninety (90)
mature trees on the plaintiff's property.
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A. Richard Caputo
Defendant, Kingston Metal Specialties, owned by the Dicksons,
was a land owner which adjoined the plaintiff's property.
Defendants' property was higher than plaintiff's and was visible
in the winter from an expressway artery serving the largest con-
centration of population in the county. In the spring and summer,
the mature trees on plaintiff's land obscured the view of
defendants' business establishment from that road. The
defendants, claiming they did not know it was plaintiff's land,
entered the land and cut down some ninety (90) mature trees.
Because of the intentional acts of the defendants, the
plaintiff also sought punitive damages.
The case was tried before a jury. I acted as chief counsel.
The jury returned a verdict for the plaintiff for both damages
and punitive damages in the amount of $15,000.00 and $780.00,
respectively .
There were several damage theories viz diminishment of value
of the real estate, loss of the value of the trees, replacement
cost as a measure of damages, damages for the trespass and
whether exemplary damages were appropriate. There were expert
witnesses on land value and tree replacement cost.
I mention this case because it involved a dispute about
fundamental real property rights.
(a) 1990.
(b) The Honorable Bernard C. Brominski
Judge of the Court of Common Pleas of Luzerne
County
(c) Co-counsel: J. Thomas Shea, Esquire (deceased)
Shea, Shea & Caputo
Opposing Counsel: Charles A. Shaffer, Esquire
Mahler, Shaffer & Pugliese
541 Pierce Street
Kingston, PA 18704
(717) 283-1800
Counsel for Kingston Metal
Specialties Company and Dicksons
Charles R. Coslett, Esquire
COSLETT & COSLETT
312 Wyoming Avenue
Kingston, PA 18704
(717) 288-4517
Counsel for Oeller
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A. Richard Caputo
6. Division Two. Inc. v. Linde Enterprises. Inc. . Civil
Action No. 86-0942 (M.D.Pa.).
In this case, I represented the plaintiff. Division Two,
Inc., a dewatering contractor from Denton, Maryland. Plaintiff
brought an action against the defendant, a Pennsylvania utilities
contractor, for the balance due on a contract to dewater a site
for the defendant. The defendant counterclaimed for defective
performance and failure to cure. The counterclaim exceeded the
claim ($75,000.00 to $126,481.00).
The case was tried before a jury in May, 1987. I acted as
sole counsel. My involvement was trial preparation as well
as the conduct of trial. Preparation included preparing
witnesses, reviewing and learning technical data regarding the
dewatering process, the design of the dewatering holes and the
preparation of cross examinations of defendant's witnesses
including an expert on dewatering. The case also involved a
parol evidence issue, since the defendant sought to introduce evi-
dence at variance with the written agreement between the parties.
The parol evidence issue was resolved favorably by the court.
After a four (4) day trial, the jury returned a verdict in
favor of plaintiff of $56,250.00 and in favor of the defendant on
the counterclaim of $18,618.00. No appeal was taken.
(a) 1987.
(b) The Honorable William J. Nealon
Judge of the United States District Court for the Middle
District of Pennsylvania
(c) Opposing counsel: Raymond P. Wendolowski, Esquire
Koff, Wendolowski, Ferguson & Mangan
22 East Union Street
Wilkes-Barre, PA 18701
(717) 822-5600
7. Uniqraphic-Color Corporation v. Mobil Oil Corporation and
Petroleum Service Company. Civil Action No. 1675-C of 1985
(Luzerne County Court of Common Pleas)
This was a jury trial in which I acted as chief trial .
counsel. The case involved a claim against Mobil Oil and its
distributor for breach of warranty, product liability and
negligence. The plaintiff was a printing company, and it intro-
duced the Defendant Mobil's oil product into two (2) of its large
printing presses. The presses had thousands of moving parts
which required constant lubrication. The presses, which were of
superior quality in the industry, began to experience mechanical
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A. Richard Caputo
failures and breakdowns. In fact, the failures and breakdowns far
exceeded what could be considered normal experience. Further
complicating the process was the fact that the printed product
produced in the presses became inferior and unclear. When a tar-
like substance was discovered in the oil in the presses, the
plaintiff sought to establish that Mobil oil was contaminated
with asphalt, and that the oil had been delivered in that
condition.
After a trial of approximately two (2) weeks and the
testimony of several witnesses, including two (2) expert wit-
nesses in the field of spectography, an engineer who expressed
the opinion that the contiminated oil caused the catastrophic
failure of the presses, and an engineer who was an expert on the
maintenance of operation of these particular presses, the jury
returned a defense verdict.
My preparation in this case involved becoming familiar
with a voluminous maintenance manual for the presses, as well as
the cross examinations of the experts in spectography and the
maintenance and operation of the presses.
(a) 1988.
(b) The Honorable Gifford R. Cappellini
Judge of the Court of Common Pleas of Luzerne County
(c) Co-Counsel: Charles A. Shea, III, Esquire
Shea, Shea & Caputo
387 Wyoming Avenue
P.O. Box 2059
Kingston, PA 18704
(717) 288-5020
Opposing Counsel: Edward F. Mannino, Esquire
Mannino Griffith, P.C.
2400 One Commerce Square
Philadelphia, PA 19103
(215) 851-6300
Thomas J. Elliott, Esquire
Elliott, Reihner, Siedzikowski,
North & Egan, P.C.
Union Meeting Corporate Center V
925 Harvest Drive
Blue Bell, PA 19422
(215) 977-1000
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A. Richard Caputo
8. Interfacts America. Inc. v. Dr. Jalal B. Fatemi. Civil
Action No. 85-0609 (M.D.Pa.).
I was chief counsel for a plaintiff, private investigator,
which brought suit against a client for the payment of fees for
services performed. The defendant, while not denying the engage-
ment, disputed the extent of services provided and contended
nothing was due.
The facts revealed the defendant engaged plaintiff to find
his children, whom he advised had been kidnapped by his wife with
whom he was having domestic difficulties. The plaintiff's people
performed investigative services such as surveillance, record
checking, personal inquiries and other related activities. The
performance of these services took them from Wilkes-Barre,
Pennsylvania, to Baltimore, Maryland, to Savannah, Georgia.
Unfortunately, the plaintiff never found the defendant's
children. The contract between the parties was oral and provided
for the payment of services at hourly rates regardless of whether
or not the children were found.
The case was tried before a jury which, after three (3) days
of trial, returned a verdict in favor of the plaintiff for
approximately fifty percent (50%) of the amount claimed.
My involvement in the case consisted of discovery, the review
of my client's billing records and time records, the preparation
of plaintiff's witnesses and the preparation of cross examina-
tions of defendant and his witnesses.
(a) 1986.
(b) The Honorable William J. Nealon
Judge of the United States District Court for the
Middle District of Pennsylvania
(c) Opposing Counsel: Arthur L. Piccone, Esquire
Ronald V. Santora, Esquire
Hourigan, Kluger, Spohrer &
Quinn, P.C.
700 Mellon Bank Center
8 West Market Street
Wilkes-Barre, PA 18701
(717) 825-9401
9. The Sutter Corporation v. Girard Bank. Civil Action
No. 82-C of 1980, (Luzerne County Court of Common Pleas).
In this case, I represented the plaintiff, a general
contractor, who brought suit against Girard Bank to recover for
the balance due plaintiff for the construction of an office
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A. Richard Caputo
building in Wilkes-Barre, Pennsylvania. The plaintiff had a
construction agreement with the owner, who never paid the balance
due on the contract, and ultimately sought bankruptcy protection.
Defendant, Girard Bank, had entered into a loan agreement with
owner to provide owner the funds to construct the building. The
construction agreement was in the amount of $1,730,000.00 and the
loan agreement was for $1,600,000.00. The plaintiff was not a
party to the loan agreement. The defendant, Girard Bank, drafted
and caused the owner and the contractor to execute a document
providing for the assignment, at Girard' s option, of the con-
struction contract to Girard. All payments to plaintiff were
made by Girard; Girard failed to require owner to deposit
sufficient funds in excess of the loan commitment of
$1,600,000.00 to build the building, despite a requirement in the
loan agreement to do so; Girard contracted with plaintiff's sub-
contractors to do work on the building, bypassing the plaintiff's
contractual relationship with those subcontractors; and, Girard
failed to pay plaintiff, despite Girard's inspecting architect's
commitment to pay for all work and change orders if the plaintiff
would complete the project.
Girard contended it had not triggered the assignment
because it had not given written notice it was doing so. Plain-
tiff argued that by its actions, Girard had indeed triggered the
assignment and stood in the shoes of the owner. Girard also con-
tended its inspecting architect was not its agent and that it was
therefore not bound by what he said.
The case was tried before a jury in November, 1994. At the
conclusion of five (5) days of trial, the jury returned a verdict
for the plaintiff on all theories of liability, namely:
(a) Girard exercised its rights of assignment, took over the con-
struction contract, and breached it by its failure to pay; (b)
the architect was the agent of Girard, promised payment, and
Girard was bound to pay; (c) Girard made material misrepresenta-
tions to plaintiff and was liable therefor; and, (d) Girard
intentionally interfered with the contractual relations between
the plaintiff and its subcontractors.
I acted as chief trial counsel. I prepared all witnesses for
the plaintiff and the cross examination for each defense witness.
Preparation involved becoming completely familiar with the operative
contracts, the job conference minutes, the payment requisitions
and correspondence.
The Superior Court of Pennsylvania reversed on the basis of
the lower court's denial of defendant's pretrial motion for non
pros. A petition for allowance of appeal to the Supreme Court of
Pennsylvania was denied.
(a) 1994.
(b) The Honorable Hugh F. Mundy
Judge of the Court of Common Pleas of Luzerne County
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A. Richard Caputo
(c) Co-counsel;
Joseph A. Dente, Esquire
Shea, Shea & Caputo
3 87 Wyoming Avenue
P.O. Box 2059
Kingston, PA 18704
(717) 288-5020
Opposing Counsel:
James C. Ingram, Esquire
Michael K. Sullivan, Esquire
Drinker, Biddle & Reath
134 5 Chestnut Street
Suite 1100
Philadelphia National Bank Bldg.
Philadelphia, PA 19107
(215) 988-2700
10. Frank J. Valvano and Pamela B. Valvano. his wife v.
Joseph E. Galardi and Kaye L. Galardi. his wife. Civil No. 48 of
1984 (Lackawanna County Court of Common Pleas), aff'd, Frank J.
Valvano and Pamela B. Valvano. his wife v. Joseph E. Galardi and
Kaye L. Galardi. his wife. 363 Pa. Super. 584, 526 A. 2d 1216
(1987) .
In this case I was sole counsel representing a husband and
wife who were defendants in an action for specific performance of
an agreement to provide a right-of-way.
The defendants entered into an agreement to buy ten (10)
acres of thirty (30) which v;ere owned by the plaintiffs. An
agreement of sale was prepared by a broker, signed by the defen-
dants and submitted to plaintiffs who rejected the agreement and
offered an amendment to the agreement which was signed by the
plaintiffs and the male defendant only. The amendment provided
an option to the defendants to buy the remaining twenty (20)
acres within two (2) years, and it provided for a right-of-way to
plaintiffs in the event the option was not exercised. The trans-
action of purchase closed, the two (2) years expired, and the
defendants did not exercise the option. Thereafter, the defen-
dants refused access to the plaintiffs, and the plaintiffs
brought an action for specific performance of the agreement and
the amendment to agreement. The female defendant testified she
was not aware of the amendment until two (2) years after closing.
The plaintiffs contended that the defendants performed the
amendment by closing the transaction and thereby acknowledging de
facto the terms of the agreement. They contended that part per-
formance took the matter outside of the Statute of Frauds.
Defendant contended that the Statute of Frauds prevented the
action for specific performance of the right-of-way because the
female defendant never executed the agreement or the amendment to
the agreement.
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A. Richard Caputo
The trial judge, sitting without a jury, in equity, agreed
with the plaintiffs and entered a decree of specific performance.
The defendants appealed, and the lower court was affirmed.
The trial of this case presented issues of credibility as
well as issues of law. The court simply did not believe the
female defendant on the issue of her awareness of the amendment.
It was my contention that the failure of execution by a wife in
these circumstances violated the Statute of Frauds and did not
permit the forced performance of the amendment against her.
Neither court agreed with me.
(a) 1987.
(b) The Honorable James Munley
Judge of the Court of Common Pleas of Lackawanna
County
(c) Opposing Counsel: William J. Oliver, Esquire
(deceased)
Oliver, Price and Rhodes
Suite 300 - 200 Penn Avenue
P.O. Box 1409
Scranton, PA 18501
(717) 343-6581
For further reference, I include the following list of judges
and counsel with whom I have been involved in various matters in
the past two (2) years:
1. Michael Beltrami, Esquire
1110 South Church Street
Hazleton, PA 18201
(717) 459-1491
2. Martin J. Cerullo, Esquire
CERULLO, DATTE & WALLBILLICH, P.C.
Second Street & Laurel Boulevard
P.O. Box 450
Pottsville, PA 17901
(717) 622-0767
3. Ruth S. Borland, Esquire
BORLAND & BORLAND
Suite 1100, PNC Bank Building
69 Public Square
Wilkes-Barre, PA 18701
(717) 822-3311
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A. Richard Caputo
4. Morton F. Daller, Esquire
DALLER, GREENBERG & DIETRICH
Valley Green Corporate Center
7111 Valley Green Road
Fort Washington, PA 19034
(215) 836-1882
5. Michael B. Sacks, Esquire
10 Fairfield Drive
Short Hills, NJ 07078
(215) 912-9679
6. George A. Spohrer, Esquire
4 00 Third Avenue
Suite 101
Kingston, PA 18704
(717) 287-1156
7. The Honorable William J. Nealon
United States District Court for
the Middle District of Pennsylvania
23 5 North Washington Street
P.O. Box 1148
Scranton, PA 18501
(717) 344-9619
8. The Honorable Edwin M. Kosik
United States District Court for
the Middle District of Pennsylvania
235 North Washington Street
P.O. Box 1148
Scranton, PA 18501
(717) 344-2124
9 . The Honorable Thomas I . Vanaskie
United States District Court for
the Middle District of Pennsylvania
235 North Washington Street
P.O. Box 1148
Scranton, PA 18501
(717) 344-0125
.0. The Honorable Correale F. Stevens
Luzerne County Court of Common Pleas
2 00 North River Street
Wilkes-Barre, PA 18711
(717) 825-1723
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246
A. Richard Caputo
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.)
1. International Union of United Brewery. Flour. Cereal.
Soft Drink and Distillery Workers of America. AFL-CIO. et al. v.
Stegmaier Brewing Company, et al. . Civil No. 70-556 (M.D.Pa.).
This case involved a suit by a decertified bargaining agent
of a bargaining unit comprised of two (2) local breweries to com-
pel arbitration toward the termination of the employee benefit
plan theretofore established and maintained by the employers and
the decertified bargaining agent. I represented one (1) of the
breweries, the Stegmaier Brewing Company, which was also one (1)
of the defendants.
In addition to the facts revealed by the foregoing paragraph,
a new bargaining agent had been certified by the N.L.R.B. and on
the defendants' Motion for Summary Judgment the question was
whether the new bargaining agent should be substituted, as a
matter of law, on the panel of fund trustees in the place of the
decertified bargaining agent as the representative of the employ-
ees thereon within the meaning of §302 of the National Labor
Relations Act, as amended, 29 U.S.C. §186.
I argued on 'behalf of the defendant company and contended
that the newly certified union should be substituted in place of
the old union for purposes of representing the employee interests
on the governing body of the jointly administered pension trust
and that, consequently, the plaintiffs had no standing to compel
arbitration. This position was sustained and a summary judgment
was granted by Judge Muir. An appeal to the Third Circuit
followed, but subsequent to the submission of briefs and
appendices, the appeal was abandoned.
I view this case as significant because it concerned a point
of federal labor law not theretofore directly decided, viz: by
what authority could it be said that a newly certified bargaining
agent represented retired personnel as a trustee of a jointly
administered trust when the authority conferred on it as a bar-
gaining agent under the Act did not extend to retired personnel.
The resolution of the issue involved the determination of the
extent of that authority in the newly certified bargaining agent
under the federal common law of collective bargaining agreements,
not under federal statutory law.
(a) 1970-1.
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A. Richard Caputo
(b) The Honorable Malcolm Muir
Judge of the United States District Court for the Middle
District of Pennsylvania
(c) Co-counsel: S. Keene Mitchell, Esquire (deceased)
Edward Darling, Esquire (deceased)
Darling, Mitchell & Schooley
Mellon Bank Center
Wilkes-Barre, PA 18701
(717) 822-8195
Allan M. Kluger, Esquire
Hourigan, Kluger, Spohrer & Quinn, P.C.
700 Mellon Bank Center
8 West Market Street
Wilkes-Barre, PA 18701
(717) 825-9401
Alan R. Howe, Esquire
53 0 Park Avenue
Unit 205
P.O. Box 34
Scotch Plains, NJ 07076
(908) 322-8184
Opposing Counsel: Bernard N. Katz, Esquire
Meranze and Katz
12th Floor
Lewis Tower Building
N.E. Corner 15th and Locust Street
Philadelphia, PA 19102-3977
(215) 546-4183
2. Commonwealth of PA v. Chas. S. Grucella. Criminal No.
1343 of 1967, (Luzerne County Court of Common Pleas).
Upon the election of a new District Attorney in Luzerne
County, the successful candidate hired seven (7) assistants,
three (3) of whom were immediate past members of the staff of the
Public Defender of Luzerne County. Since in excess of twenty-
five (25) cases wherein the defendants were represented by the
Public Defender's Office were to be tried in the first term of
Criminal Court handled by the new District Attorney, the question
was presented as to whether or not the foregoing facts did not
present such an appearance of a conflict of interest, if not an
actual conflict in some cases, sufficient to cause the disquali-
fication of the entire District Attorney's staff from prosecuting
the cases where the defendants were represented by the Public
Defender.
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A. Richard Caputo
In advance of the commencement of the new term of Criminal
Court, we of the Public Defender's Office filed a motion to
disqualify the District Attorney and his staff from prosecuting any
cases against defendants represented by the Public Defender's
Office.
I argued the case for the Public Defender's Office before the
Court of Common Pleas of Luzerne County en Banc. The Court en
Banc ultimately decided the matter adversely to the position I
advanced on behalf of the Public Defender, two (2) members dis-
senting (3 to 2) . An unsuccessful appeal later followed.
I view this case as significant because it presented a ques-
tion of the public confidence in a public official on the one
hand and the integrity of the prosecutorial system as it related
to Public Defender clients, present and future, on the other.
(a) 1968.
(b) The Honorable Bernard C. Brominski
The Honorable Richard L. Bigelow (deceased)
The Honorable Jacob Schiffman (deceased)
The Honorable Robert J. Hourigan (deceased)
The Honorable Peter P. Olszewski (now a Judge of the
Superior Court of Pennsylvania)
Luzerne County Court of Common Pleas en Banc
(c) Co-counsel: William R. Keller, Esquire
1111 Mellon Bank Center
8 West Market Street
Wilkes-Barre, PA 18701
(717) 822-6138
Peter J. Webby, Esquire (deceased)
Northeastern Bank Building
Wilkes-Barre, PA 18701
(717) 824-3161
John E. O'Connor, Esquire
14 60 Wyoming Avenue
Forty Fort, PA 18704
(717) 288-6441
Joseph C. Giebus, Esquire
2 Oakwood Drive
Laflin, PA 18702
Opposing Counsel: The Honorable Patrick J. Toole
President Judge
Luzerne County Court of Common Pleas
Luzerne County Courthouse
200 North River Street
Wilkes-Barre, PA 18711
(717) 825-1667
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A. Richard Caputo
Blythe H. Evans, Jr., Esquire
1013 PNC Bank Building
69 Public Square
Wilkes-Barre, PA 18701
(717) 825-6601
S. Keene Mitchell, Esquire (deceased)
Darling, Mitchell & Schooley
Mellon Bank Center
Wilkes-Barre, PA 18701
(717) 822-8195
3 . Frank J. Galqay and Francis P. Bonner. Trustees of the
Anthracite Health and Welfare Fund and the Anthracite Health
and Welfare Fund v. Gil-Pre Corporation. Civil No. 86-1363
(M.D.Pa. 198 6); Frank J. Galqay and Francis P. Bonner. Trustees
of the Anthracite Health and Welfare Fund and the Anthracite
Health and Welfare Fund v. Gilberton Energy Corporation. Civil
No. 86-1364 (M.D.Pa. 1986) ; aff'd on other grounds, Frank J.
Galqay. et al. v. Gil-Pre Corporation. No. 88-5200 (3d Cir.
1988) ; aff'd on other grounds, Frank J. Galqay. et al. v.
Gilberton Enerqy Corporation. No. 88-5201 (3d Cir. 1988) ; aff'd
on other grounds, Galqay v. Gil-Pre Corp. , 864 F.2d 1018 (3d Cir.
1988) .
This began as a suit by the Anthracite Health and Wel-
fare Fund (the "Fund"), the multiemployer pension plan which
involves retired anthracite miners and the anthracite industry
employers, against one (1) of the employers, Gil-Pre Corporation,
to recover pension fund contributions in the form of tonnage
royalties. The operative collective bargaining agreement pro-
vided that a royalty was due the Fund on all anthracite "produced
for use or for sale" by an anthracite operator or employer. The
quoted language had been in all industry collective bargaining
agreements dating back to 1946 and as of the time of the suit,
the number was fourteen (14) . The entire industry was organized
until the late 1960's, and this language was taken to mean that
the royalty was due when the anthracite was prepared in a coal
breaker. It could have been when the coal was mined, but since
there was verified measurement (weighmasters) and sale to con-
sumers after it was finished in the coal breaker, the parties
interpreted the key phrase to mean the royalty was due after the
raw mined coal was prepared in the coal breaker.
Two (2) things changed in the industry. First, the
industry was no longer completely organized after the late
1960's. Indeed, more and more operators were nonunion to the
point where today over one-half of the total production of
anthracite is produced by nonunion operators. Second, techno-
logical advances in the utilization of anthracite permitted what
had been waste to be used as a fuel without the necessity of coal
breaker preparation. The employers sought to exclude production
from royalty on the basis that it did not go through the breaker
process. Gil-Pre was such a case.
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A. Richard Caputo
Factually, Gil-Pre involved a substandard product that
had been screened and then sent on for further processing. The
United States District Court for the Middle District of Pennsyl-
vania determined that the material was not subject to royalty
because it did not go through a coal breaker. Indeed, the Dis-
trict Court held that the words "produced for use or for sale"
exclusively meant run through a coal breaker. This would have
excluded material being sold and used as anthracite coal. We
appealed.
On appeal to the United States Court of Appeals for the
Third Circuit, the Court rejected the District Court's view of
the operative contract language and recognized that technology,
as well as the realities of a non-organized industry, compelled a
construction of the key language which required a royalty on
material made marketable for use as fuel, whether it went through
a breaker or not.
The significance of the case is manifest. The anthracite
pension plan now receives contributions on material which does
not pass through a coal breaker or other involved process. The
use of key language of the contract as language of exclusion has
lessened since this decision.
(a) 1986-8.
(b) The Honorable Richard P. Conaboy
Judge of the United States District Court for
the Middle District of Pennsylvania
The Honorable Walter K. Stapleton
The Honorable Carol Los Mansmann
Judges of the United States Court of Appeals
for the Third Circuit
The Honorable Clarkson S. Fisher
Judge of the United States District Court for
the District of New Jersey, sitting by designation
(c) Co-counsel: Cynthia A. Smith, Esquire, now by marriage
Cynthia A. Muroski, Esquire
387 Wyoming Avenue
P.O. Box 2059
Kingston, PA 18704
(717) 288-5020
Opposing Counsel: Howard A. Rosenthal, Esquire
Pelino & Lentz
32nd Floor
One Liberty Place
Philadelphia, PA 19103-7393
(215) 665-1540
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A. Richard Caputo
4 . Frank J. Galgay and Francis P. Bonner. Trustees of the
Anthracite Health and Welfare Fund (Pension Trust) and the
Anthracite Health and Welfare Fund (Pension Trust) v. Pagnotti
Enterprises. Inc.. No. 3:CV-91-0999 (M.D.Pa.).
In this case, my client, the Trustees of the Anthracite
Health and Welfare Fund, instituted suit against Pagnotti
Enterprises, Inc. ("PEI") to recover the withdrawal liability of
Beltrami Enterprises, Inc. ("BEI") on the theory that PEI and BEI
were part of a controlled group of companies within the meaning of
29 U.S.C. §1301(b) (1) .
The issue in the case was whether PEI ever became a member of
a controlled group with BEI.
While there never was a transfer of the stock of BEI to
PEI, the parties began negotiations in 1980 and arrived at an
"agreement in principle" in March, 1982. Thereafter, we alleged
and believe we established through discovery, that PEI exercised
such a degree of control of BEI for the next eight (8) years
that, for purposes of the statute, it controlled BEI. The
indicia of control upon which we relied included the control of
funds, accounts payable, field operations, labor relations,
sales, pricing, and environmental matters. Admitted funds in
excess of $34 Million passed from PEI to BEI between 1982
and 1988 in the form of "advances for coal" for which no coal was
delivered. Moreover, there were no notes or other evidence of
indebtedness regarding the funds advanced.
Cross motions for summary judgment were denied. The case was
called for trial in 1997, and after four (4) days of trial, the
case was settled.
The case is significant because we sought to establish that
substance should govern over form with regard to the enforcement
of the controlled group provisions of 29 U.S.C. §1301(b)(l). BEI
declared bankruptcy while owing the Fund $2,4 00,000 in withdrawal
liability. Although there was no executed agreement of purchase
between BEI and PEI, we attempted to show that the requisite
degree of control was extent by virtue of the conduct of the
parties.
(a) 1991-February, 1997.
(b) The Honorable Thomas I. Vanaskie
Judge of the United States District Court for the
Middle District of Pennsylvania
(c) Opposing Counsel: Robert D. Schaub, Esquire
Robert N. Gawlas, Jr. , Esquire
Rosenn, Jenkins & Greenwald
15 South Franklin Street
Wilkes-Barre, PA 18711
(717) 826-5600
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A. Richard Caputo
5. Eininett Thomas, et al. and Charles Nedd. et al. v.
Honevbrook Mines. Inc. . Civil Action No. 8499 (M.D.Pa.).
This was a suit by the trustees of an employee benefit fund
which had been established as a result of collective bargaining
between the United Mine Workers of America and the anthracite
coal operators against an operator which was delinquent in its
contributions to the fund. Jurisdiction was founded in §301 of the
Labor Management Relations Act, as amended, 29 U.S.C. §185. The
issue in the case was whether the trustees of a jointly admini-
stered multiemployer pension fund could maintain an action to
recover delinquent contributions in a federal district court pur-
suant to §301 supra absent diversity of citizenship between the
parties.
The matter was heard on the delinquent operator's motion to
dismiss before The Honorable William J. Nealon, United States
District Judge, and Judge Nealon sustained jurisdiction. This
was later affirmed by the United States Court of Appeals for the
Third Circuit.
This case is significant because it was, at the time, a case
of first impression in the United States.* Moreover, the trus-
tees of this fund were, at the time of the institution of this
suit, confronted with an industry which was virtually, to an
operator, delinquent in its contributions to the fund. In
addition, the fund was in terrible financial condition and was
attempting to pay benefits to some 14,000 pensioned miners. The
prospect of suits in local courts was undesirable because of the
rumored and known coal interests of various county common pleas
judges. It was imperative that a more objective forum be
selected to resolve the issues of delinquencies. The federal
courts proved, with the passage of time and some thirty-seven
(37) additional cases, to have been that forum.
(a) 1964-71.
(b) The Honorable William J. Nealon
Judge of the United States District Court for the Middle
District of Pennsylvania
The passage of the Employee Income Retirement and Security Act
(ERISA) provided a statutory enforcement mechanism for such
actions after 1974; 29 U.S.C. §1132, 1145.
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A. Richard Caputo
(c) Co-counsel: Charles A. Shea, Jr., Esquire (deceased)
Shea, Shea & Caputo
626 First Eastern Bank Building
Wilkes-Barre, PA 18701
(717) 823-2151
The Honorable Thomas N. O'Neill, Jr.
Judge of the United States District Court
for the Eastern District of Pennsylvania
14613 U.S. Courthouse
Independence Mall West
601 Market Street
Philadelphia, PA 19106
(215) 597-2750
Opposing Counsel: Theodore R. Laputka, Esquire (Deceased)
Laputka, Bayless, Ecker & Cohn
Citizens Bank Building
Hazleton, PA 18201
(717) 455-4731
6. I serve on the Unauthorized Practice Committee of the
Luzerne County Bar Association. The Committee is currently
considering three (3) matters of alleged unauthorized practice.
I have attended one (1) meeting with regard to these matters, and
I will be involved in the final decision as to how to proceed
with respect to each case.
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A. Richard Caputo
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, pro-
fessional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
business interest.
I expect to collect the outstanding fees on matters on
which I have performed services up to the date I discontinue
practice. I do not expect to negotiate a buyout or deferred
income arrangement. I do anticipate that my interest in the
building in which I practice and which Charles A. Shea, III
and I own will be purchased on a market basis.
With respect to Druid Associates and Alafaya Associates,
I expect to continue to hold my interests, which I understand
do not have an optimistic future.
I currently hold options to purchase 664 shares of
Rykoff -Sexton stock at a price of $10.54 per share.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in deter-
mining these areas of concern. Indentify the categories of
litigation and financial arrangements that are likely to pre-
sent potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
Obviously, I would recuse myself from cases involving
former clients, entities in which I served as an officer
and/or director, and for the prescribed period, from any matters
handled by members of my firm. I do have one (1) client, the
Anthracite Health and Welfare Fund (Pension Plan) , which has
been active in federal litigation, and as I stated, I would
recuse myself from any matter in which it, or any other
client, was involved. I would, of course, follow the Code
of Judicial Conduct.
In the event any matter involved an entity in which the
Grace K. Shea Trust (my wife, children and I are beneficiaries)
my wife's IRA or my IRA had an interest, I would recuse myself.
I would use the same due diligence I use in my practice
to identify problem areas, and I would avoid any appearance of
impropriety by recusing myself.
255
A. Richard Caputo
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 (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 attached Exhibit "4'
Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
See attached Exhibit "5",
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.
In 1991, I was active in raising campaign funds for
The Honorable Hugh F. Mundy, Judge of the Court of Common
Pleas of Luzerne County, in his bid for election to a ten
(10) year term. I had no official title, but I was active
in seeking contributions from people who supported him.
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256
A. Richard Caputo
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 pro-
fessional workload, to find some time to participate in serv-
ing the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
As essentially a practitioner in a moderately sized
community, I have and continue to perform legal services for
a number of people who cannot afford to pay, on a no fee for
service basis. I estimate that in the performance of this
type of service, I devote approximately twenty (20) hours per
year. In addition, I have volunteered and am an active Pro
Bono Project Volunteer Attorney which project is sponsored
by the local bar association and Legal Services of
Northeastern Pennsylvania, Inc.
I also serve as Secretary, Treasurer and Director of The
Luzerne Foundation, a community foundation organized in 1994
to serve the communities of Luzerne County. This is the
first community foundation established in this geographical
area, and it involves approximately thirty (30) hours per
year.
The American Bar Association's Commentary to its Code of
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 have been a member of the Wyoming Valley Country Club
since 1967. It is a golf club. Until April, 1995, it did not
offer voting membership to women. It did offer a "Ladies"
membership which involved dues which were less than those of a
full member, and which also involved limited access to the
course. In 1995, as a new member of the by-laws committee,
I, along with others, proposed the elimination of this inequity.
The new by-laws provided for full membership to women by way of
a conversion from "Ladies" membership to "Senior" member. No
initiation fee was required; only the payment of Senior member
dues. I drafted the set of changes to the by-laws which
accomplished this task and offered full membership to women.
These changes were adopted by the membership on April 22, 1995.
257
A. Richard Caputo
Is there a selection commission in your jurisdiction to rec-
ommend 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) .
Yes, the Federal Judicial Nominating Commission of
Pennsylvania. I do not know if it recommended my
nomination.
In the late spring of 1995, I was contacted by Congress-
man Paul Kanjorski, who said he was seeking qualified people
for the position of Judge of the United States District Court
for the Middle District of Pennsylvania. I indicated my
interest to him. I asked the Luzerne County Democratic Party
leader to write a letter to the President recommending me for
the position, and I also made the same request of the State
Democratic Party leader. In addition, I sought the support
of those who were aware of my abilities and whom I thought
could appropriately recommend me to the President for consid-
eration as a nominee. In April of 1995, I was contacted by
White House counsel and asked to complete and return various
forms. I did so, and shortly thereafter, vetting began. I
was interviewed extensively by a deputy assistant attorney
general. Others such as clients, lawyers, judges and busi-
ness associates reported to me that they had been interviewed
as well. In August of 1995, I was interviewed at the Justice
Department in Washington by representatives of the Office
of Policy Development. In October of 1995, I was interviewed
by the FBI, and in December, 1995, by the American Bar
Association.
On February 25, 1997, I was asked by the Office of
Policy Development at the Justice Department, to complete and
update various forms necessary to be further considered for
nomination. I did so. I was again interviewed by an FBI
agent in March, 1997. I was interviewed by the Federal
Judicial Nominating Commission of Pennsylvania on June 17, 1997.
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 inter-
preted as asking how you would rule on such case, issue, or
question? If so, please explain fully.
No.
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A. Richard Caputo
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 pre-
rogatives 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, affirm-
ative duties upon governments and society;
d. A tendency by the judiciary toward loosening juris-
dictional 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.
Federal courts are courts of limited jurisdiction.
The judiciary determines matters in the context of a case or
controversy, considering standing and ripeness. It should
not, as the legislature is charged to do, make broad
pronouncements of policy. The federal judiciary is not a
popularly elected body, and it does not have the constitu-
tional or statutory mandate to generally engage in solving
society's problems. That is left to the Congress, and to a
lesser extent, the President. The judiciary's function is to
decide cases or controversies, viz resolve grievances between
and among parties, and in the process, follow precedent,
interpret statutes and, when called upon, review legislation
to determine constitutionality. With respect to the latter,
we should be mindful that state and federal legislators and
state court judges also take the oath to uphold the
Constitution of the United States.
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259
A. Richard Caputo
Moreover, with respect to following precedent, stare
decisis is a fundamental principle of the judicial process.
It provides predictability, and therefore stability to the
judicial system. A lower court judge has the responsibility
and obligation to follow the precedent of the relevant higher
courts, even if he or she disagrees with that higher court
decision.
The ability of any one branch of our government to check
or contain the usurpation of the function of any other is
manifest in our system. Indeed, this separation of powers and
checks and balances has been acknowledged as part of the
genius of our system. I believe the ability of the other
branches of our government to keep the judiciary in check
provides the ultimate remedy for the type of concerns
proposed in the criticisms I have attempted to address here.
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260
A. Richard Caputo
hgcrddsk
hgc.cll
as of 2/23/95
EXHIBIT "1"
Bylaws of the Huntsville Golf Club.
CONSTITUTION
OF THE
HUNTS VI LLE GOLF CLUB
ARTICLE I
NAME AND PURPOSE
1.1 The organization shall be known as the HUNTSVILLE
GOLF CLUB (hereinafter "HGC" or the "Club") . The Club is a pri-
vate golf club wholly owned by Maplemoor, Inc. which exists for
the purpose of fostering an interest in the game of golf and its
traditions.
ARTICLE II
MEMBERSHIP
2.1 Classes. The Membership shall consist of the
classes and number of Members permissible per class as follows:
(a)
Regular
300
(b)
Junior
100
(c)
Associate
See Paragraph 2 . 4
(d)
Non-Resident
50
(e)
Honorary
10
2.2 Regular Members. Only persons at least thirty-five
(35) years of age shall be eligible for Regular Membership.
Regular Members may enjoy all the privileges of the Club.
Regular Memberships are voting (as permitted by this
Constitution) , nonproprietary, assessable, nontransferable and
terminate upon death.
2.3 Junior Members. Only persons at least twenty-one
(21) years of age who have not reached their thirty-fifth (35th)
birthday shall be eligible for Junior Membership. Junior Members
may enjoy all the privileges of the Club. All Junior Memberships
261
are nonproprietary, nonvoting, nonassessable, nontransferable and
terminate upon death. Sons and daughters of Regular Members in
good standing may have priority over other applicants for Junior
Memberships.
A Junior Member accepted to Membership on or before
December 31, 1994 shall purchase a Membership Bond according to
the schedule in Paragraph 5.2. However, a Junior Member shall be
permitted to make equal annual payments toward the cost of that
Membership Bond. The amount of the payments shall be determined
by dividing the total cost of the Membership Bond by the number
of years difference between the Junior Member's age at acceptance
to Membership and when that Junior Member will reach his thirty-
fifth (35) birthday. A Junior Member purchasing on installments
shall be paid interest on the amount of the installment paid in
at the rate of interest provided in the Membership Bond. In the
event there is a default in a payment ot an installment which
persists for thirty (30) days beyond the due date, the Junior
Member shall be deemed to have withdrawn from the Club, lose his
privileges of Membership, and be repaid the amount of the
installments already paid. The applicable initiation fee will be
payable as hereinafter set forth in Article V.
A Junior Member accepted to Membership after
December 31, 1994 shall pay a Membership Fee according to the
schedule in Paragraph 5.2. However, a Junior Member shall be
permitted to make equal annual payments toward the cost of that
Membership Fee. The amount of the payments shall be determined
by dividing the total cost of the Membership Fee by the number of
years difference between the Junior Member's age at acceptance to
Membership and when that Junior Member will reach his thirty-
fifth (35th) birthday. In the event there is a default in a pay-
ment of an installment which persists for thirty (30) days beyond
the due date, the Junior Member shall be deemed to have withdrawn
from the Club, lose his privileges of Membership, and be repaid
the amount of the installments already paid. The applicable ini-
tiation fee will be payable as hereinafter set forth in Article
V.
A Junior Member's annual dues shall vary according to
his age as determined by the Board of Governors. Upon reaching
his thirty-fifth (35) birthday, a fully paid Junior Member shall
become a Regular Member and shall pay the same dues required to
be paid by Regular Members.
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262
2.4 Associate Members. Only persons who are surviving
spouses of Regular, Junior or Non-Resident Members are eligible
for Associate Membership. Associate Members may enjoy all the
privileges of the Club, except as modified herein. Associate
Memberships are nonproprietary, nonvoting, nonassessable, non-
transferable and terminate upon death, marriage or remarriage.
Those Associate Members who are the surviving spouses of
Non-Resident Members shall continue limited golfing privileges as
stated in Section 2.5.
2.5 Non-Resident Members. Only persons at least
twenty-one (21) years of age who, for at least nine (9) months a
year do not reside within forty (40) miles from Public Square in
Wilkes-Barre (hereinafter the "Club Area"), are eligible for
Non-Resident Membership. Non-Resident Members may enjoy all the
privileges of the Club, provided, however that they shall be
restricted to twenty (20) rounds of golf per year, including
those played by the Member and those played by other eligible
family members. Non-Resident Memberships are non-proprietary,
nonvoting, nonassessable, nontransferable, and terminate upon
death. Upon establishing legal residence in the Club Area, a
Non-Resident may, within ninety (90) days, make application to
the Club for Regular Membership.
If the Non-Resident Member becomes an Accepted Applicant
for Regular Membership on or before December 31, 1994, and there
are no Regular Memberships available to him, the name shall be
placed upon the waiting list for Accepted Applicants to Regular
Membership. Such Non-Resident Member may retain his status as a
Non-Resident Member until such time as he is accepted as a Regu-
lar Member, provided, however that such a Non-Resident Member may
continue his status only after depositing with the Club an amount
equal to one-fourth (h) of the Membership Bond and initiation fee
required for the last Regular Membership accepted. Such deposit
shall be applied toward the Membership Bond and initiation fee
required to be purchased at the time of the acceptance. A Non-
Resident Member in making payment in order to be accepted as a
Regular Member, shall receive credit toward the Regular Member-
ship for the amount of such payments made for such Non-Resident
Membership, provided, however, said amount does not exceed the
amount of the Regular Membership transfer fee then established.
During the period of time said Non-Resident Member is on the
waiting list of Accepted Applicants for Regular Membership, he
shall pay Regular Member dues and receive all privileges accorded
a Regular Member (except the right to vote) but he shall be
counted as a Non-Resident Member for the purpose of determining
the number of Non-Resident Members then outstanding. In the
event such Non-Resident Member fails to make such deposit or fails
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263
to perform such acts as are required by this Constitution for
acceptance to Regular Membership after Regular Membership is made
available to him, his Non-Resident Membership together with all
Club privileges, shall thereupon terminate.
If the Non-Resident Member becomes an Accepted Applicant
for Regular Membership after December 31, 1994, and there are no
Regular Memberships available to him, the name shall be placed
upon the waiting list for Accepted Applicants to Regular
Membership. Such Non-Resident Member may retain his status as a
Non-Resident Member until such time as he is accepted as a Regu-
lar Member, provided, however that such a Non-Resident Member may
continue his status only after depositing with the Club an amount
equal to one-fourth (h) of the Membership Fee and initiation fee
required for the last Regular Membership accepted. Such deposit
shall be applied toward the Membership Fee and initiation fee
required to be paid at the time of the acceptance. A Non-
Resident Member in making payment in order to be accepted as a
Regular Member, shall receive credit toward the Regular Member-
ship for the amount of such payments made for such Non-Resident
Membership, provided, however, said amount does not exceed the
amount of the Regular Membership transfer fee then established.
During the period of time said Non-Resident Member is on the
waiting list of Accepted Applicants for Regular Membership, he
shall pay Regular Member dues and receive all privileges accorded
a Regular Member (except the right to vote) but he shall be
counted as a Non-Resident Member for the purpose of determining
the number of Non-Resident Members then outstanding. In the
event such Non-Resident Member fails to make such deposit or
fails to perform such acts as are required by this Constitution
for acceptance to Regular Membership after Regular Membership is
made available to him, his Non-Resident Membership together with
all Club privileges, shall thereupon terminate.
2.6 Honorary Members. Honorary Memberships may be
issued to worthy individuals upon the majority vote of the Board
of Governors. Honorary Members may enjoy all the privileges of
the Club. Honorary Memberships shall be nonproprietary, non-
voting, nonassessable, nontransferable and terminate upon death.
The term of an Honorary Membership shall be for one (1) year.
Upon the expiration of such term, the Board of Governors shall
review such Membership and in its sole discretion either renew
the Membership for an additional one (1) year term or determine
not to renew the Membership, whereupon the Membership shall
terminate.
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264
2.7 Residence Requirement. All Members, regardless of
Membership classification, shall reside within the Commonwealth
of Pennsylvania.
2.8 Extension of Privileges. The Board may extend the
privileges of the Club to such other persons and upon such terms
as the Board may from time to time prescribe.
2.9 Privileges of the Club. As used in this
Constitution, "privileges of the Club" means the right to use the
facilities of the Club and to sponsor guests to use those facili-
ties subject to any rules and regulations which may from time to
time be established by the Board.
2.10 Family Privileges - Persons Entitled. A Member's
spouse is entitled to the same privileges as the Member enjoys.
Members' unmarried children up to the age of twenty-one (21)
years or up to the age of twenty-four (24) years who are attend-
ing college on a full time basis and living either in the family
home or at or about the college campus during the college term
are entitled to the same privileges as their member parent.
Where a Member has living with him and dependent upon him for
financial support, an immediate member of his family other than
his spouse or children, the Board may grant such person such
privileges of the Club for such period and under such restric-
tions as the Board may, in its discretion, choose and provide
that any such privileges granted may be changed or withdrawn by
the Board at any time. The enjoyment of family privileges by any
person entitled thereto pursuant to this Section is subject to
such rules as may be adopted by the Board.
2.11 Admission Application. Subject to the general
provisions hereinafter set forth, the Board shall prescribe when
and the manner in which all applicants for Membership shall be
made. Each Applicant must initially be invited to join by a
Regular Member, and his formal application for Membership must be
endorsed and sponsored by at least two (2) Regular Members of the
Club. Only Regular Members, with at least two (2) years tenure
as Regular Members, may sponsor new Applicants for Membership and
such sponsorship is limited to two (2) Applicants in any one (1)
calendar year.
Until such time as there are Regular Members of the Club
with at least two (2) years tenure as Regular Members, Applicants
may only be invited to join by the Board.
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2.12 No Discrimination. Applicants shall be accepted
and consideration given for Membership in the Club without regard
to sex, race, creed or color.
2.13 Membership Committee. The Membership Committee
shall consist of the Board of Governors. The Membership
Committee shall investigate each Applicant for Membership. The
records and proceedings of the Membership Committee shall be con-
fidential and shall be subject to the inspection only by the
Board. The Membership Committee shall fix the time for the hold-
ing of its regular and special meetings and shall be subject to
rules and regulations as the Board may from time to time adopt
with respect to the Committee.
2.14 Election to Membership. Applicants shall be
elected to Membership only after they shall have received a
majority vote of acceptance from Members of the Membership
Committee in attendance at a regular meeting with a quorum. An
Applicant receiving such vote shall be known as an "Accepted
Applicant." The name of each Accepted Applicant shall be placed
upon a list of Accepted Applicants and the Membership Committee
shall thereafter promptly notify such Accepted Applicant.
2.15 (A) Acceptance to Membership on or before Decem-
ber 31. 1994. At the time of his election, an Accepted Applicant
shall:
(i) If a Membership vacancy exists, be accepted
to Membership upon payment in full to the Club for the applicable
Membership Bond and initiation fee.
(ii) If no Membership vacancy exists, be accepted
to Membership, subject to any waiting list established pursuant
to Section 2.18, when (a) a Membership vacancy occurs by reason
of the death, resignation or surrender of a Membership, and
(b) full payment for the applicable Membership Bond and initia-
tion fee has been received by the Club.
An Accepted Applicant who within seven (7) days after
receipt of notification of the availability of a Membership has
not made the above payment, shall have his name removed from the
waiting list which is established for Accepted Applicants, unless
the Board, for cause extends the time for payment.
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266
(B) Acceptance to Membership after December 31,
1994 . At the time of his election, an Accepted Applicant shall:
(i) If a Membership vacancy exists, be accepted
to Membership upon payment in full to the Club for the applicable
Membership Fee and initiation fee.
(ii) If no Membership vacancy exists, be accepted
to Membership, subject to any waiting list established pursuant
to Section 2.18, when (a) a Membership vacancy occurs by reason
of the death, resignation or surrender of a Membership, and
(b) full payment for the applicable Membership Fee and initia-
tion fee has been received by the Club.
An Accepted Applicant who within seven (7) days after
receipt of notification of the availability of a Membership has
not made the above payment, shall have his name removed from the
waiting list which is established for Accepted Applicants, unless
the Board, for cause extends the time for payment.
2.16 (A) Membership Bond. The Board shall require the
purchase of a Membership Bond upon acceptance as a Regular, Jun-
ior or Non-Resident Member on or before December 31, 1994 as
hereinafter set forth in Article V.
(B) Membership Fee. The Board shall require the
payment of a Membership Fee upon acceptance as a Regular, Junior
or Non-Resident Member after December 31, 1994 as hereinafter set
forth in Article V,
2.17 Initiation Fee. The Board shall require a
nonrefundable initiation fee to be paid by Regular, Junior
and Non-Resident Members as hereinafter set forth in Article V.
2.18 Waiting List. The Board may establish a waiting
list for Accepted Applicants to whom no Membership is then avail-
able for issuance. The Board shall regulate all aspects of any
waiting list established, including, without limitation, priority
on the list and the obligations and privileges of and payments,
if any, to be made by persons on the list.
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267
2.19 Resignations. Any Member may resign his
Membership; provided, however, such resignation may be refused by
the Board unless and until any indebtedness owing to the Club by
such Member has first been paid in full. Such resignation shall
be submitted in writing to the Board.
2.20 Leave of Absence. A leave of absence may be
granted in the discretion of the Board upon the showing of spe-
cial circumstances.
2.21 Changes in Classes. The Board of Governors may
make such changes in the number of classes of Membership or the
number of Members permissible per class as it may deem
appropriate.
ARTICLE III
GOVERNMENT
3.1 Governing Body. The management of the Club shall
be under the control of a governing body of nine (9) persons to
be known as the Board of Governors. Five (5) persons shall be
appointed to the Board by Maplemoor, Inc. (hereinafter "Appointed
Governors") . The remaining four (4) persons shall be elected by
the Members of the HGC as hereinafter set forth (hereinafter
"Elected Governors") . The Chairman of the Board of Governors
shall be appointed by Maplemoor, Inc.
3.2 Eligibility. Only Regular Members shall be eligi-
ble for election to the Board of Governors. Candidates shall be
nominated by the Nominating Committee appointed by the Board of
Governors. The Nominating Committee shall submit the names to
the Board Of Governors at least thirty (30) days prior to an
annual meeting in which an election is to be held. The Board
shall post the list of names at the premises of the Club on a
bulletin board and mail a copy of same to each Regular Member at
least three (3) weeks prior to the annual meeting.
Any Regular Member in good standing may make additional
nominations of a Member or Members who are eligible for election
to the Board of Governors by submitting the name or names of the
candidates in writing at least fifteen (15) days prior to the
annual meeting to the Board of Governors which shall promptly
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268
post such names on the bulletin board at the Club upon which
names of others for such office have been posted and shall mail a
list of such names to each Member at least ten (10) days prior to
the annual meeting.
3.3 Term. Elected Governors, shall be elected for a
term of three (3) years. An Elected Governor may be elected to
succeed himself once but may not serve more than two (2) consecu-
tive terms unless his first service on the Board is to fill the
unexpired term of another Member who has for any reason left the
Board. All Members of the Board shall assume their duties imme-
diately upon election.
3.4 Elections . Elected Governors shall be elected by
the Regular Members at the annual meeting at which time the
Chairman of the Board shall appoint two (2) tellers who shall act
as inspectors and shall tabulate the vote.
Voting shall be by ballot and the four (4) candidates
receiving the highest number of votes shall be declared elected.
In the event of a tie vote between two (2) candidates, the Board
of Governors shall, at its next regular meeting, or at a special
meeting called for such purpose, decide which such candidates
shall be elected.
Elections shall be held every three (3) years at which
time all four (4) Elected Governors shall be chosen.
3.5 Vacancies. Vacancies in the Board of Governors
among the Elected Governors shall be filled by the Chairman of
the Board by appointment, subject to the confirmation of the
Board, and Members so appointed shall hold office until the next
regular election.
3.6 Quorum. Seven (7) Members, no less than four (4)
of whom shall be Appointed Governors shall constitute a quo-
rum of the Board of Governors.
3.7 Rules and Regulations. The Board of Governors
shall, from time to time, make such rules and regulations as it
may deem necessary.
269
3.8 Appointment to Committees. The Chairman with the
approval of the Board of Governors shall appoint the Members of
all Committees provided for in this Constitution and shall like-
wise have power to establish and fill such other standing or spe-
cial committees as may be deemed necessary to assist in the
management of tha Club.
3.9 Power to Censure. Suspend or Expel. The Board of
Governors shall have power to censure, suspend or expel any
Member or Members, for nonpayment of money owing to the Club or
for conduct prejudicial in their judgment to the good name or
welfare of the Club. Ten (10) days' notice in writing shall be
given to the Member against whom charges have been made, at which
time the Member may appear and be heard.
3.10 Interpretation of Constitution. The Board of
Governors shall be the final authority for the interpretation of
this Constitution and such rules and regulations as may be
enacted.
3.11 Meetings. The Board of Governors shall meet
at the Clubhouse or a designated location with such frequency as
they may determine. Special meetings of the Board may be called
by the Chairman upon his own motion and must be called by him
upon the written request of four (4) Members thereof.
3.12 Resignations. An Elected Governor who shall
absent himself without leave from three (3) consecutive regular
meetings of the Board may be deemed by the Board of Governors to
have resigned therefrom.
3.13 Removal from Office. An Elected Governor may be
removed from office by the affirmative secret ballot of a major-
ity of the Members of the Board of Governors present at a special
meeting of the Club called for such purpose, at which time such
Governor may appear and be heard.
3.14 Control and Management. The Board of Governors
shall have control and management of the affairs, funds and prop-
erty of the Club, and shall authorize and control all
expenditures; they shall have full power, and it shall be their
duty to carry out the purposes of the Club according to law, and
as provided in the Constitution, and to make and enforce all
270
rules and regulations which they may deem desirable for the wel-
fare of the Club. The Board of Governors shall have full power
to make and levy assessments.
3.15 Proxy. No Member of the Board may cast any ballot
by proxy on any issue.
3.16 Legal Action. No legal action based upon any
claim shall be brought against the Club by any Member unless the
claim is first presented in writing to the Board of Governors
thirty (30) days prior thereto. The Member shall receive ten
(10) days' written notice of a hearing on such claim.
3.17 Membership Meetings. There shall be an annual
meeting of the Regular Membership on the first Saturday in April.
Special Meetings of the Regular Membership may be called by the
Board of Governors upon reasonable notice. Action by the Regular
Membership shall be upon majority vote of those Regular Members
in attendance at the Annual and/or Special Meeting. There shall
be no quorum required.
ARTICLE IV
COMMITTEES
4.1 The Standing Committees of the Club shall be:
Executive Committee Membership Committee
Green and Grounds Committee Nominating Committee
Entertainment Committee Golf Committee
Planning Committee
4.2 Executive Committee. The Executive Committee shall
consist of the five (5) Appointed Governors, and the Chairman of
the Board of Governors shall be Chairman thereof. It shall con-
vene at the call of the Chairman and may act on behalf of the
Board of Governors during the interim between Board meetings. In
so acting, it shall have the same authority and effect as the
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271
Board itself; provided such actions shall be fully reported to
the Board of Governors and ratified by the body at its next suc-
ceeding meeting.
4.3 Green and Grounds Committee. The Committee shall
define and be solely responsible for all policy relative to care
and maintenance of the golf course and the purchase of supplies
and equipment relating thereto. The Committee shall review and
monitor the professional manner in which the Golf Course
Superintendent implements Committee and Club policy.
4.4 Entertainment Committee. The Committee shall
initiate, arrange, promote and supervise the execution of a pro-
gram of social activities and entertainment, in cooperation with
the management and the scheduled affairs of other Committees.
Expenditures for music, performance, decorations and publicity
shall emanate from funds allocated to the account of this
Committee. The Entertainment Committee shall work with such
other Committees as necessary to implement its programs.
4.5 Planning Committee. The Committee shall study all
trends and Club usage and shall develop and continually update a
long-range program of facilities and activities for the Club.
They shall advise the Board of Governors concerning all proposals
for alterations and improvements of the Club buildings, its
facilities and grounds and other properties. In general, the
Committee shall concern itself primarily with matters to be
accomplished two (2) or more years in the future.
4.6 Membership Committee. The Committee shall have
charge of all matters pertaining to Membership applications,
resignations, cancellations, suspensions and transfers in status;
and shall make recommendations in connection therewith to the
Board of Governors, who shall have full and final authority to
act with respect to such matters.
4.7 Nominating Committee. The Committee shall be
appointed by the Chairman of the Board of Governors and consist
of at least five (5) Members of the Club. It shall nominate can-
didates for the Board of Governors to succeed those whose term is
about to expire.
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272
4.8 Golf Committee. The Committee shall have adminis-
trative charge of all play, including intra-Club and inter-Club
matches. It shall have the power to establish local rules con-
cerning play which are not inconsistent with those of the United
States Golf Association. It shall recommend the selection and
use of an improved system of handicaps and shall exercise control
over the condition and awards of all golf trophies and other
prizes. It shall review and monitor the professional manner in
which the Golf Professional implements Committee and Club policy.
It shall regulate Greens, Caddy Fees and Cart Fees subject to the
approval of the Board of Governors.
4.9 Special Committees. In addition to the Standing
Committees, the Chairman of the Board of Governors may from time
to time also create such other Committees as he may deem
necessary.
4 . 10 Advisory Committees. All Committees are advisory
in nature, and have no authority to act without express approval
of the Board of Governors. All Committees shall make written
reports to the Board of Governors as often as required.
ARTICLE V
FEES. DUES AND ASSESSMENTS
5.1 Business Year. The business year of the Club shall
be the calendar year.
5. 2 Membership Bonds. Membership Fees and Initiation
Fees. Upon acceptance to Membership on or before December 31,
1994, each Member shall be required to purchase a Membership
bond. Upon acceptance to Membership after December 31, 1994,
each member shall be required to pay a Membership Fee. One-half
(H) of the Membership Fee shall be due upon acceptance to Member-
ship and one-half (%) of the Membership shall be due six (6)
months after acceptance to Membership. The schedule of the cost
of the Membership Bonds and Membership Fees, as the case may be,
for each classification of Membership is as follows:
(a) Regular $15,000.00
(b) Junior $15,000.00
(See Paragraph 2.3)
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273
(c) Associate $ -0-
(d) Non-Resident $ 5,000.00
(e) Honorary $ -0-
In addition to the purchase of the Membership Bond, all
Regular, Junior and Non-Resident Members shall pay a
nonrefundable initiation fee in such amounts as determined by the
Board of Governors.
No play on the course will be permitted until the initi-
ation fee is paid, and in the event the initiation fee is not
paid within twenty (20) days of acceptance to Membership, the
Member shall be deemed to have withdrawn as a Member of the Club.
Except as otherwise noted herein, a new Applicant
accepted to Membership or a Member transferring to another clas-
sification for which the purchase of a Membership Bond or payment
of a Membership Fee and/or payment of an initiation fee is
required shall thereupon become obligated for payment of the Mem-
bership Bond or Membership Fee and/or initiation fee amount in
full. Except however, one-half (%) of any Membership Fee shall
be due upon acceptance to Membership or transfer to another clas-
sification of Membership and one-half (H) shall be due six (6)
months after acceptance to Membership or transfer to another
classification of Membership. In the event that such payment is
not made within twenty (20) days of the date it becomes due, the
Member shall be deemed to have withdrawn as a Member of the Club.
Interest shall be paid on the Membership Bonds semi-
annually at the rate of interest provided in the Membership Bond.
Redemption shall occur within ninety (90) days of the date of the
Member's death or disability, regardless of the availability of a
new Member to take his place. A Member shall also be entitled to
receive full repayment of the face amount of the Membership Bond
within ninety (90) days of the termination of his Membership,
provided there is an available new Member to take the place of
the withdrawing Member. If such replacement is not immediately
available, then redemptions shall be made on a first
withdrawn/first redeemed basis. Interest will be paid on the
Membership Bonds so long as they remain outstanding. The
Membership Bonds also have a call provision granting Maplemoor
the right, at any time, to redeem all or a portion of the
Membership Bonds on a ratable basis. In any and all events, the
Membership Bonds shall have a fixed maturity date of twenty (20)
■14-
274
years from the date of issue. The Membership Bonds will not be
amortized and there will be no return of principal to a
Membership Bondholder except under the terms for redemption which
are described above. The interest income on the Membership Bond
will be paid semi-annually. A form 1099 will be provided to the
Member in the amount of the Member's Membership Bond interest.
Repayment of the Membership Fee shall occur within
ninety (90) days of the date of the Member's death or disability,
regardless of the availability of a new Member to take his place.
A Member shall also be entitled to receive full repayment of the
Membership Fee within ninety (90) days of the termination of his
Membership, provided there is an available new Member to take the
place of the withdrawing Member. If such replacement is not
immediately available, then repayments shall be made on a first
withdrawn/ first repaid basis.
5.3 Annual Dues. All Members of the Club shall pay
regular dues in such amounts and in such manner as determined by
the Board of Governors. Dues are payable in advance as follows:
one-half (%) is due the first day of January of each year and
one-half (^) is due the first day of May of each year. Dues
shall be prorated for the portion of the half year within which
acceptance to Membership occurs.
5.4 Assessments. The Board of Governors may levy
assessments against Regular Members as it deems proper for funds
required for Club purposes, provided that any assessment or
assessments which in the aggregate in any given year exceed fifty
percent (50%) of the annual dues for Regular Members shall not be
effective unless approved by a majority of the Regular Members in
attendance at a Membership meeting preceded by written notice to
all Regular Members mailed thirty (30) days prior to the
Membership meeting stating the intent to make such assessment,
the amount and purpose thereof, and the effective date and manner
of payment.
5.5 Nonpayment . Except as otherwise noted herein, the
Board of Governors shall cause to be posted by the I5th of each
month, the names of and the amounts due by Members who have
failed to pay within one (1) month after due any dues, fees,
assessments, penalties, fines or debts owed the Club. If such
sum and all debts accruing thereafter are not paid with fifteen
(15) days after such posting, the Board of Governors shall cause
to be sent to such delinquent Member a notice that if the debts
are not paid within ten (10) days after the mailing of the
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275
notice, the Member will be suspended. If the debts are not paid
within such ten (10) day period, the Member is automatically sus-
pended from all privileges of Membership unless the Board of
Governors accepts the Member's explanation as justifying the
delinquency in which case the Board may extend for not more than
thirty (30) days the time for payment of the debts and the effec-
tive date of suspension. Prior to expulsion, the Board of
Governors shall reinstate any Member so suspended upon payment of
all debts owed the Club, including any sums for dues or the debts
which would have accrued during the period of suspension. Any
Member who fails to pay for any Membership Bond, Membership Fees,
fees, dues, penalties, fines or other debts owed the Club for a
period of three (3) months, whether or not the Member has been
suspended shall be expelled at the next regular or special meet-
ing of the Board of Governors. A Member whose Membership is sus-
pended due to non-payment for the second time in one (1) fiscal
year, shall be expelled by the Board of Governors at its next
regular or special meeting.
ARTICLE VI
GUESTS
6.1 Guests Permitted. The use of the privileges of the
Club by guests of Members shall be as determined by the Board of
Governors.
6.2 Violation of Rules. Any guest or visitor violating
the Constitution, rules or regulations of the Club may, in the
discretion of the Board of Governors, be notified that he is no
longer able to enjoy the privileges of the Club.
ARTICLE VII
DISCIPLINE AND COMPLAINTS
7.1 Suspension and Expulsion. Any Member may be sus-
pended or expelled for cause by the Board of Governors on the
complaint of a Member, or on its own initiative. Except as oth-
erwise expressly provided in this Constitution, no such action
shall be taken before the Member shall have been furnished with a
written statement of the charges preferred against him, and shall
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276
have been given at least ten (10) days' notice of the time when,
and the place where, the same will be considered by the Board.
Every such Member shall have the right to appear before the Board
and be heard in answer to the charges before final actions shall
be taken.
7.2 Complaints. All complaints by Members against
other Members for conduct in violation of Club rules or other
misconduct bearing on a Member's suitability for continued Mem-
bership in the Club, and complaints against employees of the Club
for whatever reason, shall be in writing, signed and dated by the
complainant, and delivered to the Board of Governors. The Board
may refer such complaints to appropriate Committees of the Club
for recommendations, and upon receipt of such recommendations
take appropriate action.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendments. This Constitution and any rules and
regulations promulgated thereunder may be amended by a majority
vote of the Board of Governors.
8.2 Notice. Any notice required to be given to the
Board of Governors of the Club shall be sent by United States
mail, postage prepaid addressed as follows:
Board of Governors
Huntsville Golf Club
147 Hayfield Road
Shavertown, PA 18708
8.3 Prohibition Against Solicitation Mailings. Members
shall not use or disclose to others for use the Membership roster
for the purpose of making mass or general mailings for business
or commercial purposes.
8.4 Gender. Any references in this Constitution to the
masculine gender shall be deemed to include the feminine and any
references to the feminine gender shall be deemed to include the
masculine.
8.5 Club Colors. The colors of the Huntsville Golf
Club shall be Hunter Green and Gold.
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277
A. Richard Caputo
EXHIBIT "2"
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A. Richard Caputo
EXHIBIT "3"
uvcc dsk
HVCC. 1
Bylaws of the Wyoming Valley Country Club.
CONSTITUTION AND BY-LAWS
ARTICLE I
NAME
The name of the organization shall be THE WYOMING VALLEY
COUNTRY CLUB.
ARTICLE II
OBJECT
This Club is organized to promote social recreation
among its Members through encouraging and stimulating an interest
in golf. It is a corporation which does not contemplate monetary
gain, incidental or otherwise, to its Members.
ARTICLE III
MEMBERSHIP CLASSIFICATIONS
SECTION I.
The membership of the Club shall consist of the
following classifications:
A. SENIOR - All Members over the age of twenty-
five (25) . Seniors shall be the only voting
Members, and the only ones entitled to hold office
in the Corporation. Senior Members in good standing
shall be the only Members considered to have equity
in the Club.
B. SPOUSE - The spouse of any Senior Member in good
standing, and the spouse of an Associate who married
prior to his or her twenty-sixth (26th) birthday.
If the Senior Member or Associate, and his or her
spouse shall be divorced, then the spouse shall no
longer be a Member of the Club.
C. ASSOCIATE - Sons or daughters of a Senior Member
between the ages of twenty-one (21) and twenty-five
(25) years of age. Upon marriage, prior to their
twenty-fifth (25th) birthday, he/she may apply for
Senior Membership.
310
Associate Members who have paid one (1) year's
associate dues must apply for Senior Membership
before reaching their twenty-sixth (26th) birthday.
If accepted, they automatically become Members
regardless of a waiting list and no initiation fee
will be charged.
D. JUNIOR - Children of Senior Members or children of
their spouse. They may have automatic golfing
privileges until their twenty-first (21st) birthday.
E. CLERGY - Open to ordained clergy of all faiths.
F. SOCIAL - Those Members entitled to the full
facilities of the Club but do not have golfing
privileges, except for one (1) round of eighteen
(18) holes per month, upon payment of the required
Green Fee.
G. NON-RESIDENT - Any Senior Member, in good standing,
moving his or her permanent residence beyond a
seventy-five (75) air-mile radius from the Clubhouse
may apply to the Board for transfer to this
category. Permanent residence to mean in this
instance year round living at the new address.
H. HONORARY - May be granted under extraordinary
circumstances for service to the Club, but is
limited to one (1) in any given year. Subject to
majority Board approval.
I. WIDOW/WIDOWER - The surviving spouse of a Senior
Member.
J. SPECIAL - All those previously Members under the
category heretofore known as LADIES who shall not
elect to become Senior Members, and who maintain
membership without interruption shall remain
Members in this classification.
SECTION II.
The Board of Governors, under the powers granted by
these By-laws, may limit the number of memberships available in
any of the classifications when they feel that it is in the best
interest of the Club to do so.
311
SECTION I
ARTICLE IV
APPLICATION AND ELECTION
A Candidate for membership must first be proposed
by a Senior Member, in good standing, acting as the
Candidates' Sponsor. The Sponsor, by letter to
the Secretary of the Board, shall not only recommend
the Candidate, but also state his or her willingness
to orient his or her Candidate regarding course and
Club rules. Upon the acceptance of the Candidate,
in his or her letter, the Sponsor shall list three
(3) other references on behalf of his or her
Candidate; one (1) of whom shall be another Senior
Member in good standing.
The Secretary, upon receipt of the proposal, shall
immediately notify the Membership Chairman. The
Membership Committee shall then contact the four (4)
references as to the Candidates' financial
responsibility, character, integrity and any other
information the Committee may deem necessary. If
the Membership Committee finds that a Candidate is
not worthy of membership, the Chairman shall so
inform the Board.
Once a Candidate is screened, and recommended for
acceptance by the Membership Committee, he/she must
appear before the Board of Governors prior to
approval. Seven (7) Members shall constitute a
quorum for purpose of acceptance or rejection. Two
(2) negative votes by any Member of the Board will
reject the acceptance of any Candidate. If a
Candidate is rejected by the Board, he/she may not
reapply for membership for a period of two (2)
years. Upon approval by the Board, an accepted
Candidate's name shall be posted on the bulletin
board for a period of two (2) weeks for scrutiny by
the general membership.
Any Senior Member, in good standing, may write a
letter to the Secretary objecting to the admission
of any Candidate for membership. If two (2) or more
such letters are received, it will be necessary to
so inform the Sponsor of the Candidate; who, in
turn, shall have the right to appear before the
-3-
312
Board to support his or her Candidate. The Board,
sitting as a Committee on Admissions, shall then
re-evaluate the Candidate and either accept or
reject the plea of the Sponsor. Two (2) negative
votes will reject the Candidate.
E. Once a Candidate has been screened, approved and
accepted for membership, his/her admission is
automatic, providing there is not a waiting list
for admission. In the event there is such a list,
the Candidate's name shall be placed on said list
in order of his/her date of application, until such
time as an opening in the classification is
available. However, this does not obligate the
Committee on Admissions to necessarily accept those
heading the waiting list in preference to applicants
who may have been placed on the waiting list at a
later date.
F. Upon admission, all fees such as initiation and the
pro-rated amount of the yearly dues must be paid
prior to the use of Club facilities.
G. All Candidates must be informed of their status as
to rejection, acceptance on a waiting list, or
admission within ninety (90) days of their date of
application.
SECTION II,
A. The Board of Governors may transfer a Member from
one (1) membership classification to another
classification in the event of an age or residence
change by a said Member. Existing dues and initia-
tion fees shall be changed as of the date the Board
makes this determination either on its own
authority, or at the request of the individual
Member .
B. The Board of Governors may declare any category of
membership of the Club to be closed at any time,
when, in its discretion, it is in the best interest
of the Club to do so.
C. At any time the membership is declared to be
closed. Candidates may be encouraged to apply for
membership and be placed on the waiting list until
such time as the membership shall be declared open.
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313
SECTION I.
SECTION II.
ARTICLE V
RESIGNATION AND LEAVE OF ABSENCE
Any Member, in good standing, and, with no indebted-
ness to the Club, may resign. The resignation shall
be in writing, addressed to the Board of Governors,
and must be filed with the Treasurer to release the
Member from liability for dues. Any indebtedness
incurred for any phase of the Club operation prior
to the date of receiving said resignation at the
Club office will be considered a liability. All
Senior Members resigning or otherwise losing their
membership shall forfeit their equity in the Club.
Members who resign and who, at the time of resigna-
tion, were in good standing may be re-elected to
membership by the Board with payment of one-half (%)
of the then current initiation fee by the following
procedures outlined in Article IV.
A. Any Member, in good standing, with no indebtedness
to the Club, may request a leave of absence due to
illness of prolonged duration. The conditions for
granting a leave of absence will be the same as
those outlined above in Article V, Section I A on
resignation except the Member requesting leave shall
be carried on the roll as "on leave" and his/her
dues shall be suspended until the termination of
his/her illness or the Member requests, in writing,
reinstatement to active status.
B. The Board of Governors, at its discretion, may con-
sider a leave of absence for a reason other than
illness if there are extenuating and unusual
circumstances surrounding such a request by a
Member .
C. In no case will leave be granted for more than one
(1) year. If more time is needed, a new request
must be submitted by the Member or someone desig-
nated to act on his/her behalf.
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ARTICLE VI
SUSPENSION AND EXPULSION
SECTION I.
Any Member violating any rules of the Club or guilty of
any misconduct, and especially any Member whose conduct shall be
injurious to the character or interest of the Club, may receive a
Letter of Reprimand with a warning or be suspended or expelled by
the Board of Governors. No Member shall be suspended or
expelled without an opportunity to be heard. In the event the
Board agrees that suspension and/or expulsion is being
considered, the Member must be notified by certified mail that a
hearing will take place within ten (10) days of notice to
him/her. The notice will list the time, place, date and charges.
SECTION II.
If, after the hearing, the Board agrees to a suspension,
said suspension shall automatically be for a minimum of two (2)
weeks. Suspension will be valid when a majority of the Board
present so votes.
If the Board agrees to expulsion, it shall be valid when
a two-thirds (2/3) majority of the total Board so votes.
SECTION III.
All suspended or expelled Members shall be denied all
Club privileges and denied access to Club property.
Expelled Members shall be dropped from the rolls, and may
never again apply for membership to The Wyoming Valley Country Club
and it shall be so recorded in the minutes of the Club.
ARTICLE VII
FEES AND DUES
SECTION I.
The Board of Governors shall have the power to determine
the annual dues and golf fees; to establish initiation fees; to
set assessment rates; and, to levy any charges it may deem neces-
sary to maintain the financial stability of the Club.
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SECTION II.
The fiscal year will be considered as the first of
October of the calendar year until the 30th of September of the
following calendar year.
A. The annual dues are payable on the first of
October, however, the amount due may be
pro-rated on a schedule approved by the Board
of Governors, except for new Members who shall
pay all fees as directed under Article IV,
Section I F of these By-laws.
B. Senior Member applicants accepted after July
1 pay half-year dues, plus full initiation
fees for that fiscal year.
SECTION III.
When the dues, or any other indebtedness to the Club,
remains unpaid, by a Member, for a period of twenty (20) days
following the month in which said indebtedness occurred, the Mem-
ber shall be considered in arrears. The Treasurer shall then
send a second statement to the Member advising him or her that
the Member's name shall be posted unless the account is paid
within ten (10) days from the date of such notice. At the end of
this ten (10) day period, the Member will then be in arrears for
thirty (30) days, and, if his/her debt is still unpaid, he or she
shall be posted by the Treasurer. ONCE THE MEMBER'S NAME IS
POSTED, HE OR SHE WILL BE CONSIDERED DELINQUENT AND SHALL BE
DENIED ALL PRIVILEGES OF CLUB MEMBERSHIP, INCLUDING ADMISSION TO
THE CLUB PROPERTY.
The Treasurer shall notify the Board of Governors when
Members are posted. When the indebtedness of a Member remains
unpaid for ten (10) more days after being posted, or a total of
forty (40) days following the month in which said indebtedness is
incurred, the Board of Governors shall then declare such member-
ship to be forfeited, and the delinquent shall thereupon cease to
be a Member of the Club. Any member thus forfeiting a membership
may be considered for reinstatement upon payment of all arrears,
and requesting, in writing, that the Board of Governors reinstate
him or her. The individual concerned shall not become an active
Member until he or she is so advised that the request is granted.
A favorable vote by the Board of Governors present at any meeting
of the Board will be necessary for reinstatement.
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When circumstances seem to justify such action, the
Board of Governors may authorize for non-payment of indebtedness
when said Member is known to be ill or absent from home.
ARTICLE VIII
OFFICERS
SECTION I,
The officers shall be a President, First and Second
Vice-Presidents, Secretary, Treasurer (who will also
be the Finance Chairman), four (4) Governors, and
the respective chairmen of the Golf, Green, House
and Membership Committees provided for in Article X
of these By-laws, and these officers shall consti-
tute the Board of Governors.
Quorum - At all meetings of the Board, the
majority of the Officers in office shall be neces-
sary to constitute a quorum for the transaction of
business, and, the acts of a majority of the
officers present at a meeting at which there is a
quorum shall be the acts of the total Board of
Governors.
SECTION II.
In case of any office becoming vacant for any cause, the
Board of Governors shall fill the office by appointment for the
remainder of the term.
SECTION III.
Effective in fiscal year 1987/88 and thereafter, officers'
terms of office shall be as follows:
The President, First Vice-President and two (2) of
four (4) Governors shall be chosen at an annual
meeting and shall hold office for two (2) years.
The Second Vice-President, Secretary and Treasurer
shall be chosen at the annual meeting and shall hold
office for one (1) year.
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SECTION IV.
Above officers shall be chosen at the annual meeting
by a majority of votes cast by the Senior Membership present and
by way of absentee ballots cast. Election need not be by ballot
except in cases where an opposing slate has been posted.
SECTION V.
The President, or in his/her absence, the First or Sec-
ond Vice-President shall, at least thirty (30) days prior to the
annual meeting, appoint a committee of five (5) Members, not more
than two (2) of whom shall be officers of the Club, and the com-
mittee shall nominate a slate of candidates for all vacancies
about to occur. The proposed candidates will be posted on the
bulletin board at least twenty (20) days before the date of the
annual meeting. Any five (5) Senior Members may nominate other
candidates for the same offices, but the names of such candidates
must be posted on the bulletin board at least ten (10) days prior
to the annual meeting.
The names of the Senior Members placing the candidate's
name or names in nomination must be signed on the posting. No
Member shall be eligible to any office unless nominated and
posted as aforesaid.
The Secretary of the Club shall have ballots prepared
containing all the names so posted, and furnish the same to the
Members at the opening of the meeting when the election is to
take place. If there is no slate or candidates for office in
opposition to those candidates recommended by the nominating
committee, voting need not be by ballot.
The Secretary shall also have available a current list
of Senior Members, in good standing, all of whom shall be
entitled to one (1) vote.
If there is more than one (1) candidate for any office,
voting shall be by ballot. If voting by ballot, the President
shall appoint three (3) Judges of Election from the Senior
Membership. They, in turn, will name one (1) of their Members as
Chairman. None of the judges shall be candidates for office.
The judges shall take all action necessary to ensure fairness to
all concerned, to tally the votes and announce the results of the
election to the membership.
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318
A. When voting is by ballot, an Absentee Ballot
will be available in the office for any Senior
Member who cannot be present to vote on election
day .
B. Senior Members must sign for an official Absen-
tee Ballot, seal and return the ballot prior to
election day in order for it to be placed in the
ballot box by the Chairman of the Election
Committee .
C. The number of Absentee Ballots placed in the
election box will be duly recorded in the Min-
utes of the Club.
D. Only Senior Members, in good standing, with no
indebtedness to the Club, who have been Members
for two (2) years, are eligible to vote.
ARTICLE IX
DUTIES OF OFFICERS
SECTION I.
PRESIDENT - The President shall be the chief executive
officer of the Club. The President shall preside at all meetings
of the Board of Governors and at all meetings of the general
membership. The President shall, with the Secretary, sign all
written contracts and obligations of the Club and perform such
other duties as may be required by these By-laws or the Board of
Governors. The President shall appoint all committees and shall
be an ex-officio member of all such committees. The President
shall arrange for an annual audit of the accounts of the
Treasurer, and present an annual report on the business of the
Club to the membership. Such report to be given either in writ-
ing and mailed to each Member, presented orally at a business
meeting, or a copy of the report placed in the files at the
office, after notifying each Member of his/her right to study
said report.
SECTION II.
VICE-PRESIDENTS - The first Vice-President shall, in
the absence or disability of the President, perform the duties
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319
and exercise the powers of the President and shall perform such
other duties as may be assigned to him/her by the Board of
Governors. The Second Vice-President assumes responsibility if
both the President and First Vice-President are disabled or
absent from any meetings.
SECTION III.
SECRETARY - The Secretary shall attend all meetings of
the Board and of the membership and act as clerk thereof, and
record all the votes and minutes thereof in books to be kept for
that purpose. The Secretary shall notify all Members of their
election to office, arrange to have the proper people informed of
all meetings as to the time, place and purpose. The Secretary
shall be co-signer, with the President, of all written contracts
and obligations of the Club. The Secretary shall conduct or
cause to be conducted, all official correspondence of the Club
and shall see that such correspondence is properly preserved and
filed until otherwise disposed of by the Board. In the event
that he/she shall be absent at any meeting duly called, he/she
shall arrange to have the minutes of all previous meetings made
available to the Board for their edification when necessary. In
such absence, the President shall appoint any Board Member in
attendance as Temporary Secretary for the recording of the
minutes.
SECTION IV.
TREASURER - The Treasurer shall be the chief financial
and accounting officer and shall cause full and accurate accounts
of receipts and disbursements to be kept in books belonging to
the Club. The Treasurer shall render to the President, and to the
Directors, at regular meetings of the Board, or whenever the
President or the Board may require, an account of all his/her
transactions as Treasurer and the financial state of the Club.
The Treasurer shall cause to be deposited all funds of the Club
in one (1) or more of the banks in the Wyoming Valley area, in the
name and to the credit of the Wyoming Valley Country Club. The
Treasurer shall send out bills for dues and all other indebted-
ness to the Club, as specifically set forth in Article VIII
Sections II and III of these By-laws or as may be ordered by the
Board. The Treasurer shall sign and countersign all such
instruments as may be required by his/her signature as an officer
of the Club. The Treasurer shall perform all such other duties
as may be properly assigned to him/her by the Board, one (1) of
which will be Chairman of the Finance Committee.
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320
SECTION V.
THE BOARD OF GOVERNORS - This body shall exercise gen-
eral supervision of the affairs, funds and property of the club
and to this end is invested with all the powers of the Club. It
shall make such house and ground rules as may be deemed
necessary. It shall make and enforce all regulations as it may,
from time to time, feel are essential for the proper maintenance,
care and use of the golf course; including, but not restricted to,
regulations providing for the registration of golfers, and the
use of the course by registered golfers only. It shall set
regulations providing for the establishment, imposition and col-
lection of golf dues or charges and green fees. It shall set any
regulations necessary to prevent damage or congestion of the golf
course. The Board shall meet on call of the President or on
written request of any three (3) Board Members. Due notice shall
be given by the Secretary of such meeting. A majority of the
Members of the Board in office shall be necessary to constitute a
quorum as specified in ARTICLE VIII, SECTION I B.
ARTICLE X
COMMITTEES
SECTION I.
Immediately after the annual election, the President
shall appoint, with the approval of the Board, any committees
that are deemed necessary or desirable for the successful opera-
tion of the Club for the ensuing year. It shall be mandatory
that the standing committees be Finance, House, Greens and
Grounds, Membership and Golf Committees. Committees shall not
consist of more than five (5) Senior Members. The President
shall designate the chairman of each committee. The committees
shall be delegated authority to fulfill their mission, subject to
the approval of the Board, and, for purposes not inconsistent
with these By-laws. Each committee chairman must submit his
annual anticipated budget for the coming year for scrutiny by the
Finance Committee. Final budgets must be presented for Board
approval at the regular meeting of the Board in the month of
March following the January election of officers. Once approved
by the Board, the committee is free to expend funds as needed.
Any unexpected expenditures beyond the funds already budgeted
roust be submitted for Board approval. All monies received or
expended by all committees roust be handled by the office under
the supervision of the Club Treasurer. All members of any
special committee shall serve until their successors have been
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321
appointed or until the Board decides that a particular committee
is no longer necessary.
A. FINANCE COMMITTEE - This Committee, subject to the
Board, shall have general supervision of the finances
of the Club; help other committees determine their
financial needs for the year; help determine the
Club's total yearly budget; and, act in an advisory
capacity in reference to all financial matters
affecting the Club. The elected Treasurer will be
the Chairman of this Committee.
B. HOUSE COMMITTEE - The House Committee, subject to
Board approval, shall have full charge of the
clubhouse, and any buildings where refreshments,
articles or supplies are sold. Keeping within its
established budgetary allowance, it shall have
authority to make all purchases necessary for the
proper maintenance and operation of each building
and facility under its supervision. It shall deter-
mine the prices to be charged for all articles and
supplies served in any facility under its jurisdic-
tion and shall prescribe any special terms and con-
ditions under which Members or outside agencies may
use the facilities under its charge for private
occasions. This Committee shall supervise the
employment and discharge of all personnel needed to
properly fulfill its obligations to the membertship.
It shall be the duty of this Committee to make the
necessary house rules and regulations that all
Members are to abide by and to have said rules
printed and posted in a conspicuous place in the
golf clubhouse.
C. GOLF COMMITTEE - The Golf Committee, subject to
Board approval, shall arrange and conduct all
tournaments, exhibition matches and other special
golf events. This Committee shall consult with
other Committees that may be involved, such as the
House Committee, as to the dates of such events and
will notify Members of said dates and conditions
pertaining to such events. It shall have the
authority to employ, supervise or discharge extra
tournament personnel, and to purchase such articles
or supplies as may be necessary for the efficient
conduct of such special events. It shall have
charge of all publicity for special events and shall
select, purchase, and award any prizes which are won
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322
by the contestants. During special golf events
only, it shall have charge of carts, the caddie
area, caddie master and caddies fixing the latter's
tournament fees.
The Golf Committee will conduct and supervise any
inter-club matches held during the season. This
Committee shall organize and select Members to rep-
resent the Club at any such matches. Along with the
House Committee, they shall provide for the
reception and entertainment of the visiting teams.
The Golf Committee shall be responsible for
determining the handicaps of all Club golfers and
for posting such handicaps.
D. GREENS AND GROUNDS COMMITTEE - This Committee,
known simply as the Greens Conmiittee, subject to
Board approval, shall have full charge of the golf
course and grounds of the Club property. This
includes all trees, shrubs, vines, road, walk, cart
paths and automobile parking spaces on said property
and such buildings as not specifically covered by
the House Committee in Article X B. This Committee
shall employ such personnel and procure such
articles, tools, equipment and supplies as may be
necessary for the proper upkeep and maintenance of
such facilities that come under its jurisdiction.
Any major changes or alterations on the course or
grounds beyond what would be considered as routine,
every day procedure must first be presented to the
Board for discussion and approval. Since this Com-
mittee is directly concerned with the golf course,
and since said course is the basis of the entire
Club operation, it shall be empowered, after consul-
tation with the greenskeeper , to decide when and if
the course is being damaged for any reason, such as
weather conditions, use of golf carts, or
negligence, and to take whatever steps to remedy
such situations as may be deemed necessary. In the
best interest of the Club, this could mean limiting
the use of carts, closing certain area to play, or
complete closing of play at the course until the
problem is resolved. This Committee shall be
responsible for proper training and supervision of
all caddies.
It shall be the duty of this Committee to make the
necessary rules and regulations concerning the
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323
course and carts that all Members are to abide by
and to have said rules printed and posted in a
conspicuous place in the Clubhouse.
MEMBERSHIP - This Committee shall be responsible
for screening candidates in all membership
classifications before presentation to the Board of
Governors for approval.
F. Standing Committee Chairmen are voting members of
the Board.
a. Immediate Past President is Honorary Member
of Board for one (1) year, but has no voting
privileges.
G. Long Range Planning Committee is a special committee
of the Club.
It shall consist of nine (9) Members whose individ-
ual term will be five (5) years. These Members will
be elected at the annual meeting
The Committee will elect their chairman annually
after the general election and he/she shall be a
voting Member of the Board.
The Long Range Planning Committee is a Special
Committee of the Club, and as such, will be charged
with the responsibility of planning the future
growth and development; refurbishing the present
facility; and, replacing the equipment, buildings,
grounds, etc. , in a sound and orderly manner
consistent with logical development of The Wyoming
Valley Country Club. Said Committee will formulate
its plans and report to the Board, which will then
be responsible for the appropriate action within the
confines which that Board sees proper.
The recommendations of the Long Range Planning
Committee are not to be considered binding on the
Board, but since they are the recommendations of a
Committee of the Club, their plans must be given
very serious consideration by the Board.
324
SECTION II.
CAPITAL IMPROVEMENTS
A. Capital Improvement Budgets shall not exceed ten
percent (10%) of the audited, preceding year's dues
income, without a special membership meeting on the
proposed budget.
B. In the event capital expenditure actual figures may
exceed budgeted figures by ten percent (10%), a Spe-
cial Membership Meeting must be called by the Board
to inform the membership.
C. When and if it becomes necessary to borrow from any
lending institution to finance capital improvements,
a Special Meeting of the Membership must be held to
inform the Members of the project (s) involved prior
to any commitment by the Club,
ARTICLE XI
MEETINGS
SECTION I.
There shall be an Annual Meeting of the Club for the
election of officers which shall be the second Saturday of Janu-
ary in the clubhouse at a time to be determined by the Board.
A. Notice of such meeting shall be posted in the
clubhouse not less than two (2) weeks before the
meeting date.
B. Fifteen (15) Members shall constitute a quorum for
the Annual Meeting.
C. The audited Financial Report for the preceding year
must be mailed to all Senior Members by December 1.
D. In the event of a tie vote for any office, a Special
Election for the office/officer in question will be
held not later than the first Saturday in February.
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325
SECTION II.
The order of business shall be as follows:
1.- Reading the minutes of the last stated meeting, and
of any special meetings held thereafter.
2. Report by the President for the Board.
3. Report of the Treasurer.
4. Appointment of Auditor.
5. Report of standing Committees.
6. Election of officers.
7. New Business
8. Adjournment.
SECTION III.
Special Membership Meetings may be called at the discre-
tion of the President and must be called upon written request of
ten (10) Senior Members who shall state the specific purpose of
the meeting.
A. Special meetings must be held within twenty (20)
days of such a request by either the President or
Members .
B. Each Member of the Club shall receive ten (10) day's
notice, stating the place, time and purpose of the
meeting.
C. No business shall be transacted other than the
stated purpose of the meeting.
SECTION IV.
QUORUM - Twenty-five percent (25%) of the Senior
Membership shall constitute a quorum of the Club for special
meetings. The acts of the majority of the quorum present shall
be the acts of the total Senior Membership. Any decisions voted
upon by the membership shall be considered to be binding upon the
Board of Directors in any future meeting of the Board relating to
the decision made at the special meeting.
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326
ARTICLE XII
VISITORS
SECTION I.
Upon written request, by a Senior Member in good
standing, the Secretary may issue an invitation to any person not
a resident of Wyoming Valley to use the facilities of The Wyoming
Valley Country Club for a two (2) week period. The same guest
shall not be introduced more than twice in one (1) season and
then only after an interval of at least one (1) month. The guest
shall pay the required greens fee for each round of golf. No
Member shall have three (3) introductions in force at any one (1)
time.
SECTION II.
Should a non-resident guest of a Senior Member desire to
use the Club beyond two (2) weeks, he/she may, if the Board
approves, be granted a two (2) month guest card upon payment of
one-fourth (*;) of the then current annual dues.
SECTION III.
The names and places of residence of such visitors, as
outlined in the last two (2) sections, shall be recorded in the
Pro Shop in a book kept for that purpose. Any Member who uses the
privileges of these rules shall be held responsible for any debts
or liabilities to the Club that may be incurred by any person
he/she introduces or sponsors.
ARTICLE XIII
COLORS AND EMBLEM
The colors of the Club shall be Blue and Red and the
Club emblem shall be a Tomahawk.
ARTICLE XIV
EQUITY AND DISSOLUTION
SECTION I.
In the event that it is considered necessary or proper
to dissolve the corporation, the Board of Directors shall notify
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327
all Members in good standing of a meeting to be held for the
purpose upon not less than ten (10) day's written notice to each
paid Member at his last known address.
At the meeting so called, an election to dissolve the
Corporation shall be made by a majority vote of all of the
Members .
Following the vote concerning dissolution, the Board of
Directors may take whatever action they deem proper and necessary
to wind up the Corporation by the sale of all of its assets pro-
viding for the payment of all secured or unsecured obligations.
After all debts and obligations of the Corporation are approved
and paid, any assets remaining shall be distributed to Senior
Members of the Club who are fully paid and in good standing on
the date of dissolution, provided however, that only Senior Mem-
bers who have been Members of the CLub in good standing for five
(5) consecutive years immediately prior to the date of dissolu-
tion shall be entitled to any equity distribution.
ARTICLE XV
AMENDMENTS
These By-laws may be amended by a two-thirds (2./3) vote
of the Members present at any regular or special meeting, pro-
vided the proposed amendments shall be in writing, and shall be
proposed by the Board of Governors, or by ten (10) Senior
Resident Members two (2) weeks prior to the annual meeting, or a
special meeting called for that purpose, and that the notice of
said meeting shall contain a copy of the proposed additions or
amendments. , , ..
ARTICLE XVI
EFFECTIVE DATE OF BY-LAWS
These By-laws shall become effective on the date of a
regular or special meeting of the Senior Members of the Club duly
called for the purpose of their adoption.
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328
A. Richard Caputo
EXHIBIT "4"
FINANCIAL DISCLOSURE REPORT
Nomination Report
Report Required by the Ethics
Krform Aa of 1989. Pub L No.
1 01 -1 94. November SO. J 989
(S use App 4 . Sec 101-112)
1. Person Rtporting (Last name, first, rruddle initial)
CAPUTO, A. RICHARD .
2. Court or Organization
US DIST CT MID DIST OF PA
3. Date of Report
08/01/1997
4. Title (Article III judges indicate active or
senior status: magistrate judges indicate
fiill- or pan-time)
U.S. DISTRICT JUDGE NOMINEE
S. Report Type (check type)
X Nominalion. Date 07/31/1997
6. Reporting Period
01/01/1996
07/30/1997
7. Chambers or Office Address
387 WYOMING AVENUE
P.O. BOX 20S9
KINGSTON, PA 18704-2059
8. On the basis of the information contained in this Report and any
modincations pertaining thereto, it is in my opinion, in complianci
with applicable laws and regulations.
IMPORTANT NOTES: The instruaions accompanying this form must be followed. Complete all parts,
checking the NONE box for each seaion where you have no reportable information Sign on the last page
I. POSITIONS (Reporting individual only, see pp 9- 1 3 of Instructions)
POSITION
NONE {No reportable positions.)
' VICE PRESIDENT AND DIRECTOR MAPLEMOOR, INC
NAME OF ORGANIZATION / ENTITY
2 SECTY, TREASURER & DIRECTOR
3V.P., ASST. SECY t DIRECTOR
THE LUZERNE FOUNDATION
BACK MOUNTAIN HOLDINGS, INC.
II. AGREEMENTS (Reponmgindivulual only: see pp. 14-17 of instructions.)
DATE PARTIES AND TERMS
n
NONE (No reportable agreements )
Fees which have been billed, and those representing my work in progress not yet billed
will be ascertained upon my departure from my office, and those sums will be remitted
to me when received over the next twenty-four (24) months.
III. NON-INVESTMENTINCOME (Reporting individual and spouse: see pp 1S-2S of Insii
DATE PARTIES AND TERMS
□
NONE (No reportable i
1 1995 INCOME FROM LEGAL SERVICES
2 1996
INCOME FROM LEGAL SERVICES
3 TO 7/97 INCOME FROM LEGAL SERVICES
GROSS INCOME
(yours, not spouse's)
326,091.00
294,877.00
140,270.67
329
RNANCIAL DISCLOSURE REPORT
Name of Penon Reponing
CAPUTO, A. RICHARD
Dale of Rcpon
08/01/1997
SECTION HEADING. (Indicale pan of repon )
SECTION 1. POSITIONS (cont'd.)
Li. Position
Name of Organization/Entity
4 CO -TRUSTEE
5 ASSISTANT SECRETARY
6 ASSISTANT SECRETARY
7 ASSISTANT SECRETARY
8 ASSISTANT SECRETARY
9 ASSIST7UJT SECRETARY
10 ASSISTANT SECRETARY
11 ASSISTANT SECRETARY
12 PARTNER
13 PARTNER
14 PARTNER
GRACE K. SHEA TRUST
MCCARTHY ENTERPRISES, INC.
PLAINCO, INC.
BRONSBERG & HUGHES PONTIAC, INC.
MIDDLE ROAD DEVELOPMENT CORP.
MAGICORP, INC.
FORSUNS , LTD .
ROBBINS DOOR t SASH CO.
DRUID ASSOCIATES
ALAFAYA ASSOCIATES
3 87 WYOMING AVENUE ASSOCIATES
330
Name ol Person Kcponing
FINANCIAL DISCLOSURE REPORT CAPUTO, A. RICHARD
Dale of Report
08/01/1997
IV. REIMBURSEME^fTS and GIFTS - iransportanon. lodging, food, cnlenainmeni
(Includes those lo spouse and dependent children: use the parentheticals '{Si ' and '(DC)' to indicate reportable reimbu\
and dependent children, respectively See pp. 26-29 of Instructions.)
SOURCE
NONE (No such reportable reimbursements or gifts)
DESCRIPTION
V. OTHER GIFTS
(Includes those to spouse and dependent children,
respectively See pp. 30-33 of Instruaions }
D
SOURCE
NONE (No such reportable gifts)
r the parentheticals '(Sj ' and '(DQ ' lo indicate other gifts received by spouse and dependent children.
DESCRIPTION VALUE
VI. LIABILITIES
(Includes those of spouse and dependent children; indicate where applicable, person responsible for liability by using the parenthetical '(S)' for separate
liability of the spouse. '(J)' for joint liability of reporting individual and spouse, and '(DQ "for liabiliry of a dependent child. See pp 34-36 of Instructions.)
D
CREDITOR
NONE (No reportable liabilities)
1 FIRST UNION NATIONAL BANK
DESCRIPTION
LINE OF CREDIT
2
MELLON BANK
3
MBNA
4
FIRST NATIONAL COMM. BANK
5
FIRST NATIONAL MORTGAGE CORP.
e
7
VALUE CODE*
CREDIT CARD
J
CREDIT CARD
J
MTG. ON PROP. (3 87 WYO . AVE ASSOC.)
N
MORTGAGE ON PROPERTY (RESIDENCE)
J
> VALCODES:J=$15.000orlesj K=J15.001-$50.0(X) L=S50.001 lo J100.(X)0 M=J100.001-$250,000 N = $250.001-$500.000
0=$5(X).001-$I.000.0(X) P1=$1,0(X).001-$5.000.000 P2 = $5.000.001-J25.000.000 P3 = J25.O0O.O01-J50.O0O.0OO P4 = $50.000.(X)1 or more
331
FINANCIAL DISCLOSURE REPORT
Name of Penon Reporting
CAPUTO, A. RICHARD
Dale of Report
08/01/1997
VII. Page 1 INVESTMENTS and TRUSTS
-■ income, value. iransacUons (includes those of spouse and
dependent children . See pp. 37-54 of Instructions.)
A.
Description of AsseU
Indicate where applicable, owner of
the asset by using the parenthetical
B.
Income
during
reponing
C.
Gross value
at end of
reporting
D.
Transactions during reporting period
individual and spouse. '(S) 'for sep-
erate ownership by spouse. '(DQ '
for ownership by dependent child.
Place '00 ' after each asset
exempt from prior disclosure.
(1)
Amt.
Code
(A-
H)
(2)
Type
(e.g..
dividend.
rent or
interest)
(1)
Value
Code
(JP)
(2)
Value
Method
Code
(QW)
(1)
Type
(e.g..
buy, sell,
merger.
redcmp-
If not exempt from disclosure
(2)
Date:
Month-
Day
(3)
Value
Code
OP)
(4)
Gain
Code
(AH)
(5)
Identity of
buyer/seller
(if private
NONE (no rcponabtc income. assets, or
transactions)
1 RENTAL PROPERTY 11 - RYE, NY
D
Rent:
"
W
2 RENTAL PROPERTY 12 - RYE, NY
D
Rent
M
w
3 FIRST UNION NAT ' L BANK - INTEREST
CHECKING
"
Interest
*"
T
4 DEAN WITTER REYNOLDS - IRA - GTE
COMMON STOCK
A
Dividend
J
T
5 DEAN WITTER REYNOLDS - IRA - GE -
COMMON STOCK
*
Dividend
J
T
6 DEAN WITTER REYNOLDS - IRA -
CHRYSLER CORP. - COMMON STOCK
A
Dividend
J
T
1 DEAN WITTER REYNOLDS - IRA -
TCW/DW EMERGING MARKETS
A
Dividend
J
T
B DEAN WITTER REYNOLDS - IRA - LIQ.
ASSETS FUND
A
Interest
J
T
9 DEAN WITTER REYNOLDS - IRA -
COMPAO COMPUTER - COMMON STOCK
A
Dividend
J
T
10 DEAN WITTER REYNOLDS - IRA -
TRAVELERS-.^ETNA - COMMON STOCK
*
Dividend
J
T
11 DEAN WITTER REYNOLDS - IRA -
MOBIL CORP - COMMON STOCK
A
Dividend
J
T
12 DEAN WITTER REYNOLDS - IRA -
AMER. SAFETY RAZOR - COM. STOCK
A
Dividend
J
T
13 DEAN WITTER REYNOLDS - IRA -
CARNIVAL CORP. - COM. STOCK
A
Dividend
J
T
H DEAN WITTER REYNOLDS - IRA -
GENERAL MOT. CORP. - COM. STOCK
A
Dividend
J
T
15 DEAN WITTER REYNOLDS - IRA -
INGERSOLL RAND - COM. STOCK
A
Dividend
J
T
16 DEAN WITTER REYNOLDS - IRA -
COMPUTER ASSOC. INT'L - CM. STK
*
Dividend
J
T
n DEAN WITTER REYNOLDS - IRA -
HARLEY DAVIDSON - COMM. STOCK
A
Dividend
J
T
1 Inc/Olin Codes: A-$ 1.000 Of less B=S1.001-J2,S00 C-K.501.$5.000 D>$3,O01-$15.00O E=$15.001-$50.000
(Col. B1.D4) F-$50.001.$100,000 G=$100.001-$I,000.000 H1«J1.000.001-J5.000.000 H2=J5.000.001 ormore
JVilCodes: J-J 15.000 or less K-$15.001-$50,000 L-J50.001-S100,000 M-$I0O.OOl-J250.0O0 N-$250,001-$500.000
(Col.Cl.D3) O-JSOO.OOl-S 1.000,000 P|.$1.000.001-$5.000.000 P2-I5.O0O.001-J25.0OO.0O0 P3-$25.000.001-$50.000.000 P4.$S0.000.001 ocmore
3 Vil Mlh Codes: Q= Appraisal R=Cost (real csuie only) S=Assessment T=Cash/Msrket
(Col.C2) U-BookVdue V-Other W=Esumaled
332
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
CAPUTO, A. RICHARD
Date of Repon
08/01/1997
VII. Page 2 I>fVESTMENTS and TRUSTS
- income, value, iransaaions (includes those of spouse and
dependent dOdren. See pp. 37-54 of Im
A.
Description of Assels
Indicate where applicable, owner of
the asset by using the parenthetical
'(J)' for Joint ownership of reporting
individual and spouse. '(S}' for sep-
erate ownership by spouse. '(DC)'
for ownership by dependent child.
Place "(X) ■ after each asset
exempt from prior disclosure.
B.
Income
during
reporting
C.
GiDss vabe
at end of
reporting
D.
Transactions during reporting period
(1)
Ami.
Code
(A-
H)
(2)
Type
C^g.
dividend.
inlerest)
(1)
Value
Code
(J-P)
(2)
Vabe
Mednd
Code
(QW)
(1)
Type
(e.g.
buy. sell.
merger.
redemp-
!f not exempt from disclosure
(2)
Date:
Month-
Day
(3)
Value
Code
(J-P)
(4)
Gam
Code
<A-H)
(5)
Identity of
buyer/seller
(if private
NONE (no reportable income.assels. or
transactions)
18 GRACE K. SHEA TRUST - AIR
PRODUCTS- COMMON STOCK
A
Dividend
J
T
19 GRACE K. SHEA TRUST - AMERICAN
HOME PRODUCTS - COM. STOCK
B
Dividend
«
T
20 GRACE K. SHEA TRUST - ATST -
COMMON STOCK
A
Dividend
K
T
21 GRACE K. SHEA TRUST - CHEVRON -
COMMON STOCK
B
Dividend
>"
T
22 GRACE K. SHEA TRUST - CHRYSLER -
COMMON STOCK
A
Dividend
J
T
23 GRACE K. SHEA TRUST - COCA COLA -
COMMON STOCK
A
Dividend
L
T
24 GRACE K. SHEA TRUST - COMPAQ
COMPUTER - COMMON STOCK
A
Dividend
K
T
25 GRACE K. SHEA TRUST - DUPOMT -
COMMON STOCK
A
Dividend
''
T
26 GRACE K. SHEA TRUST - GE -
COMMON STOCK
A
Dividend
K
T
27 GRACE K. SHEA TRUST - GTE -
COMMON STOCK
A
Dividend
J
T
28 GRACE K. SHEA TRUST - JOHNSON (
JOHNSON - COMMON STOCK
B
Dividend
L
T
29 GRACE K. SHEA TRUST - LUCENT
TECH. - COMMON STOCK
A
Dividend
J
T
30 GRACE K. SHEA TRUST - MICROSOFT -
COMMON STOCK
A
Dividend
K
T
31 GRACE K. SHEA TRUST - SARA LEE -
COMMON STOCK
B
Dividend
L
T
32 GRACE K. SHEA TRUST - SMITH-KLINE
- COMMON STOCK
B
Dividend
L
T
33 GRACE K. SHEA TRUST - HARLEY
DAVIDSON - COMM. STOCK
A
Dividend
J
T
34 GRACE K. SHEA TRUST - CARNIVAL
CORP. - COMM. STOCK
A
Dividend
K
T
llnc/Oain Codes: A-$1.000 or less B-SI.OO1-J2.500 C«K.5ai-J5,0O0 D"$5.001 -SI 5.000 E«$15.001-$5O.O0O
(Col. BI.D4) F-$50,001-$100,000 G-S 100,001 -$1,000,000 Hl=$l,000.OOl-$5.OOO.O00 H2=$5.000.001 or more
2V«lCo<les: J-$l 5.000 or less K-$15.001-J50.000 L-S50.00I-I100.000 M-$100.00l-$250.000 N-J250.O01-$500,OOO
(Col.Cl,D3) O-J500.001 -J 1.000.000 Pl=$l,000.001.$5.000.000 P2.$5.OOO,0Ol-I25,0O0.OOO P3»$25.OOO.OOl-J5O.0OO.000 P4«J50.000,001 ormore
3 V.1 Mlh Codes: Q-Apprais«l R-Cost(re»l estate only) S-Assessment T-CaslVMarkel
(Col C2) U-Book Value VOlher W-Eslimaled
333
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
CAPUTO, A. RICHARD
Dale of Rcpon
08/01/1997
VII. Page 3 INVESTMENTS and
- incomf. valme. iransaaions (includes those of spouse and
IKUdld dependent children See pp. 37-54 of Instructions.)
A.
Descripuon of Assets
Indicate where applicable, owner of
the asset by using the parenthetical
B.
Income
during
reporting
C
Gross value
at end of
reporting
D
Transactions during rcponing penod
individual and spouse, '(S)'forsep-
erate ownership by spouse. '(DO '
for ownership by dependerxt child.
Place '(X) ' after each asset
exempt from prior disclosure.
(1)
Ami-
Code
(A-
H)
m
Type
(=8.
dividend.
rent or
interest)
(1)
Value
Code
(JP)
0)
Value
Method
Code
(Q-W)
(1)
Type
(c-g.
buy. sell.
merger.
redemp-
If not exempt from disclosure
(2)
Date:
Month-
Day
(3)
Value
Code
(J-P)
(<)
Gain
Code
(A-H)
(5)
Identity of
buyer/seller
(if private
NONE (no reporuble income.assets. or
transactions)
35 GPWCE K. SHEJi TRUST - ACTIVE
ASSETS - MONEY MARKET
B
Dividend
J
T
36 FARMER BROTHERS - COMMON STOCK
IS]
A
Dividend
K
T
37 FIRST UNION NATIONAL BANK -
COMMON STOCK (SI
C
Dividend
M
T
38 RYKOFF-SEXTON - OPTIONS - COMMON
STOCK
None
J
T
39 DEAN WITTER REYNOLDS - IRA ISI
-TWC/ OW CR, EQ. TR. , MUT FD
A
Dividend
J
T
40 DEAN WITTER REYNOLDS - IRA ISI -
DW AM VALUE/MNY MARKET
A
Interest
J
T
41 DEAN WITTER REYNOLDS - IRA
-CARLISLE CO., INC. - COM. STOCK
A
Dividend
J
T
42 DEAN WITTER REYNOLDS - IRA-
FEDERAL EXPRESS CORP. - COMMON
A
Dividend
J
T
4 3 DEAN WITTER REYNOLDS - IRA-
DUPONT EI DENEMOURS - COMMON
A
Dividend
J
T
4 4 GRACE K. SHEA TRUST - FEDERAL
EXPRESS CORP. - COMMON
A
Dividend
K
T
45 AMERICAN SAFETY RAZOR IS] -
COMMON STOCK
A
Dividend
J
T
46 80 ACS VACAWT LAND - ORANGE CTY .
INEAR ORLANDO! FLORIDA IS]
0
W
1 Inc/Giin Coda: A-$1.000 or less B-SI.001-n.500 C-K.501.JS.000 D-$S.001-$15.000 E-$IS,O01-$50.000
(ColBl.D4) F-J50.001-S100.000 O-S100.00l-Sl,000.000 Hl-J1.0O0.0Ol-$5.000.000 H2 =$5,000,001 or more
2V»ICoda; J-Jl 5,000 or less K»$15,0Ol-$50.O00 L=$50.001-$10O.000 M-$100.001.S250,000 N-$250.001-J500,000
(ColCl,D3) O-S500.001-S 1.000,000 Pl-$1.000.001-S5.000,000 P2=I5,DOO.OOI-$25.000.000 P3-S25,OOO.OOl-J50.0OO.000 P4-$50.000,001 or more
3 V«l Mlh Codes: Q-Appr»is»l R-Cosl <re«l estate only) S=Assessnient T=Cash/M»ricel
(Col.C2) U-Book Value VOther W=Estimated
334
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
CAPUTO, A. RICHARD
Date of Report
08/01/1997
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.
X NONE (No adduional information or explanations )
335
HNANCIAL DISCLOSURE REPORT
Name of Person Reporting
CAPUTO, A. RICHARD
Date of Report
08/01/1997
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 at 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
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the 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 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. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial Conference
regulations.
Signature
^l±_h7
Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three adilitional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
336
A. Richard Caputo
EXHIBIT "S*
FINANCIAL STATEMENT
NET WORTH
Notes payable to banks-secured
-0-
Cash on hand and In banks
27
916
39
Notes payable to banks-unsecured
4
960
18
U.S. Government securities
-0-
Notes payable to relatives
-0-
Listed securities
-0-
Notes payable to others
-0-
Unlisted securities
15
000
00
Accounts and bills due
12
800
00
See Schedule "A"
Unpaid Income tax
20
OOC
00
Accounts and notes receivable:
(Estimated for 1997)
Due from relatives and friends
-0-
Other unpaid tax and interest
-0-
Due from others
76
153
00
Real estate mortgages payable
516
964
43
Doubtful
6
700
00
See Schedule "0"
Real estate owned
1,110
000
00
Chattel mortgages and other
-0-
See Schedule "B"
liens payable
Real estate mortgages receivable
-0-
Other debts
-0-
Autos and other personal property
15
000
00
Cash value - life Insurance
10
259
00
Other assets
Retirement Plan
88
716
18
Interest in Partnerships
8
000
00
See Schedule "C"
Total Liabilities
554
724
61
Net Worth
803
049
96
Total assets
1,357
774
57
Total Liabilities and Net Worth 1
,35^
774
57
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
-0-
Are any assets pledged? No
Are you defendant in any suits or
On leases or contracts
-0-
legal actions? No.
Legal Claims
-0-
Have you ever taken bankruptcy? No
Provision for Federal Income Tax
-0-
(See Liabilities above)
Other special debt
-0-
337
A. Richard Caputo
SCHEDULE "A" - UNLISTED SECURITIES
$15,000.00 (Bond) Huntsville Golf Club - 20 years - 8?
Bond - Cost $15,000.00
SCHEDULE "B" - REAL ESTATE OWNED
Personal Use
Residence
Shavertown, Pennsylvania, 18708 - owned by A. Richard Caputo
and Rosemary S . Caputo
Purchased 1974
Market Value - $210,000.00
Investments in Real Estate
11 New Street
Rye, New York 10580 - owned by A. Richard Caputo
purchased 1975
Market Value - $200,000.00
17 New Street
Rye, New York 10580 - owned by A. Richard Caputo
purchased 1975
Market Value - $200,000.00
3 87 Wyoming Avenue
Kingston, Pennsylvania 18704 - owned by A. Richard Caputo and
Charles A. Shea, III as
co-partners
Purchased 1994
Market Value - $500,000.00
338
A. Richard Caputo
SCHEDULE "C" - PARTNERSHIP INTERESTS
Druid Associates - 25% interest - owns an interest in an apart-
ment building in Mamaroneck, New York, and an
interest in an apartment building in
Fleetwood, New York, with other investors.
Current value of my interest is estimated at
$5,000.00.
Alafaya Associates - 16 2/3% interest - owns an interest in the
same apartment building in Fleetwood, New
York, in which Druid Associates owns an
interest. Current value of my interest is
estimated at $3,000.00. My wife also owns
16 2/3% interest.
SCHEDULE "D" - REAL ESTATE MORTGAGES
First Union Mortgage Corp.
Balance: $8,173.40
Security: Residence - Shavertown, Pennsylvania
First Union Mortgage Corp.
Balance: $132,897.69
Security: Residence - Shavertown, Pennsylvania
First National Community Bank
Balance: $375,893.34
Security: 387 Wyoming Avenue, Kingston, Pennsylvania
Mortgagors: A. Richard Caputo and Charles A. Shea, III
NOMINATIONS OF RONALD LEE GILMAN AND
SONIA SOTOMAYOR (U.S. CIRCUIT JUDGES);
CHARLES J. SIRAGUSA, ALGENON L.
MARBLEY, DALE A. KIMBALL, JAMES S.
GWIN, AND RICHARD CONWAY CASEY (U.S.
DISTRICT JUDGES)
TUESDAY, SEPTEMBER 30, 1997
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 3:02 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Mike DeWine pre-
siding.
Also present: Senators Hatch, Thurmond, Thompson, Torricelli,
Sessions, and Ashcroft.
OPENING STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR
FROM THE STATE OF OHIO
Senator DeWine. I would invite my colleagues, I see Senator
Glenn and Senator Bennett, to come immediately to the table. We
are now proceeding to hearings for two circuit court judges and five
district court judges. We need to be out of here by 4:30 p.m., which
I assume we can be.
I would say to all of the prospective judges who are here that it
is certainly possible that we may submit some written questions for
the record, either because we run out of time or because some
members are not here. Some members may have to leave, so you
should be prepared to receive written followup questions from
them, as well.
Let me start, if I could, with the chairman of the committee. Sen-
ator Hatch. Mr. Chairman.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. Thank you, Mr. Chairman. I appreciate this op-
portunity to appear before the committee for and on behalf of Dale
A. Kimball, who has been nominated for district court judge for the
District of Utah. I am also happy to be here with my friend and
colleague, Senator Bennett, as well.
Mr. Kimball obtained his B.S. from Brigham Young University in
August 1964, his juris doctorate from the University of Utah in
1967, became an associate with the largest law firm in Utah and
(339)
340
one of the most prestigious, was a partner and then helped form
one of the major firms in Salt Lake City, Kimball, Parr, Waddoups,
Brown & Gee. He has been the senior partner in that law firm
from 1975 to the present. He was an associate professor of law at
the Brigham Young University School of Law from 1974 to 1976,
and adjunct professor from 1976 to 1979.
Mr. Kimball has extensive experience in the practice of law and
has been engaged in general practice, title work, oil and gas and
mineral matters, contract negotiations, and litigation, including se-
curities law, shipping disputes, administrative agency matters, and
criminal defense. Since 1975, he has been engaged primarily in
business litigation, including securities fraud, insurance, antitrust,
contract, and energy cases, along with some arbitrations and mu-
nicipal litigation.
He has had extensive experience in the practice of law, in the
practice of teaching law, and as a fine lawyer in the Utah area. He
has authored several articles. He is a member, of course, of the ap-
propriate bar associations and is one of the finest people I know.
Dale Kimball is not only an excellent lawyer, he is a person of
the highest integrity, the highest ability, a person we can rely
upon, a person who understands the role of judging, and a person
who, literally, I think, will elevate the Federal bench in this coun-
try.
There is so much more we could say. He is here with his wonder-
ful wife. I have known him for a long time. I have total respect for
him, as I think do all people in Utah and especially all members
of the bar association.
As you know, in any of these situations, it is very difficult to
make a decision as to who should replace another Federal district
judge. There are so many people who can be qualified for that posi-
tion, and there are a number in Utah who certainly do qualify, but
I know of none better, none greater, or none with more ability than
Dale Kimball. I think he will become one of the great judges in
America and I would expect no less from him.
I recommend to the committee that they approve this nomination
as quickly as possible and help us to resolve the problem of an
open seat on that bench, which has been open since June of this
year.
Senator DeWine. Senator, thank you very much.
Let me turn now to the junior Senator from Utah, Senator Ben-
nett.
STATEMENT OF HON. ROBERT F. BENNETT, A U.S. SENATOR
FROM THE STATE OF UTAH
Senator Bennett. Thank you, Mr. Chairman. Being the junior
Senator and not being a member of the Judiciary Committee where
the senior Senator is the chairman of the Judiciary Committee usu-
ally means that my activity with respect to the appointing of Fed-
eral judges is a fairly minimal one.
I will say that Senator Hatch has been more than solicitous,
however, of my opinion and he came down to see me early in this
process to tell me of the various people that were being considered
for this particular vacancy and to tell me that his recommendation
341
would be Dale Kimball. This made it very easy for me to say yes
without any kind of demur or objection.
I will not go over the specifics in Dale Kimball's background.
Senator Hatch has already done that and they are available to the
committee generally. I will share with you this personal experience.
I was the CEO of a company that grew very rapidly and finally
got to the point where, if its investors were to get any of their
money out, it had to go public. The decision was made that it
would go public and go directly to the New York Stock Exchange.
That meant underwriting by two of the Nation's largest investment
bankers, Merrill Lynch and Smith Barney, and I said to the people
who were then handling it, I assume this means we are going to
hire a very expensive law firm in either New York or San Francisco
or possibly both.
The folks at Merrill Lynch said, actually, you have one of the fin-
est law firms in the country dealing with this particular issue in
Kimball, Parr and we would recommend, as a New York invest-
ment banker, that the law firm that handles the public offering for
Franklin be Kimball, Parr. That was the first time I had heard Mr.
Kimball's name, and as I associated with the people at Kimball,
Parr, both in that official manner and in the unofficial question of
how I handle my own shareholdings, I have come to realize how
wise they were in making that recommendation.
Mr. Kimball is the founder of that firm and his name is the first
in the list of named partners. He would be qualified to serve on
any bench in any jurisdiction and I am happy to add my endorse-
ment to that of Senator Hatch's, based on that personal experience
with him and his legal background.
Senator DeWine. Senator Bennett, thank you very much.
Let me now turn to the senior Senator from the State of Ohio,
my colleague, John Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you very much, Mr. Chairman and mem-
bers of the committee. It is a pleasure to be here today to introduce
to the committee two Ohioans who have been nominated by the
President to serve as Federal district court judges. They are prod-
ucts of our judicial review commission that advises me on these se-
lections, as the chairman knows.
These individuals, Judge James Gwin and Mr. Algenon Marbley,
are certainly worthy of appointment and I would ask them to come
up and sit with me up here while I introduce them, if I could. Mr.
Marbley and Judge Gwin, would you come up, please? Thank you.
They both have had very distinguished careers, and before I go
on to scribe some of the qualities in these gentlemen that I believe
make them well suited to serve on the Federal bench, I want to
take just a moment to recognize their families who have traveled
with them here today to share in this proud moment. As I read
your names, if you would just stand back there, I would appreciate
it so you could be recognized.
We have Mr. Marbley's wife, Janet Green Marbley, as well as
their two sons, Algenon, Jr. and Aaron Marbley. They are both
45-964 98-12
342
here. They are joined by Mr. Marbley's mother, Ann Johnson. We
thank you for coming in today.
We also have Judge Gwin's wife, Bonnie Gwin, their two sons,
John and Michael Gwin, and Judge Gwin's mother, Carol Gwin.
Thank you all for coming here today. I am not sure who is minding
the store back home, Mr. Chairman, but they have quite a contin-
gent in here.
This committee has a large amount of information on these nomi-
nees. I will not try and go through it all. I will just sort of summa-
rize or highlight some of the things I believe make them outstand-
ing nominees.
Jim Gwin currently sits as a Stark County Court of Common
Pleas judge, where he has presided for the last 7 years. Judge
Gwin has earned a reputation for hard work. Since 1989, he has
presided over more jury trials than any other general division
judge in the State of Ohio. Judge Gwin has presided over 440 jury
trials, including 225 felony trials, 19 of which were murder trials.
Where the average is 15 jury trials per year, Jim Gwin has aver-
aged more than 50 jury trials per year, so we would definitely be
getting a hard worker, Mr. Chairman, when we get Jim Gwin.
When not hearing cases, Judge Gwin has been active with the
Ohio Judicial Conference, chairing the court technology subcommit-
tee and serving as a member of the court reform committee. He has
also worked in the community on behalf of the Central Stark Coun-
ty United Way, the Central Stark County Mental Health Center,
the East Central Ohio Juvenile Diabetes Foundation, and the Can-
ton Group Home. Judge Gwin has also been a lecturer at the Ohio
Judicial College.
In my opinion. Judge Gwin has demonstrated the talent, the in-
tellectual capacity and commitment to public service to make an
exceptional addition to the Federal bench in the Northern District
of Ohio.
I would also like to introduce to the committee Mr. Algenon
Marbley, or Monte Marbley, as he is better known. Mr. Marbley is
a partner in the law firm of Vorys, Sater, Seymour & Pease. He,
too, is exceptionally well qualified to serve on the Federal bench.
He has had 18 years of excellent experience as a trial lawyer, both
in the public sector, for the U.S. Department of Health and Human
Services, and in the private sector, with Vorys, Sater. Mr. Marbley
has had substantial trial experience at the Federal and State levels
in civil and criminal matters, both in jury and nonjury trials.
Monte Marbley has significant academic experience as an ad-
junct professor at both the law school and undergraduate levels
and he has taught trial advocacy to lawyers at the National Insti-
tute for Trial Advocacy for the past 10 years.
Like Judge Gwin, Mr. Marbley has also taken the time to play
an active role in his community. He has worked as a leader in or-
ganizations assisting disadvantaged youth in the Columbus area.
He has served as secretary and counsel to the board of directors
of the Big Brothers and Big Sisters Association of Franklin County.
He has served for 7 years on the board of directors and 2 years as
president of the Salesian Boys and Girls Club, which serves eco-
nomically disadvantaged inner-city youth. He also has served in
leadership positions for the Franklin County United Way Cam-
343
paign and the United Negro College Fund. In 1995, he was honored
as 1 of the top 10 outstanding young citizens of Columbus, OH.
Mr. Chairman, I recommend Jim Gwin and Monte Marbley with-
out any reservation whatsoever and I believe both of them will
make very, very fine Federal judges. They have the demonstrated
ability and they have the temperament to be able to dispense jus-
tice fairly and impartially and I am confident the committee will
agree with this assessment and I hope to see their very swift con-
firmation.
Thank you very much, Mr. Chairman.
Senator DeWine. Senator Glenn, thank you for that fine state-
ment.
Let me turn now to our colleague from the State of New York,
Senator D'Amato.
STATEMENT OF HON. ALFONSE M. D'AMATO, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator D'Amato. Thank you very much, Mr. Chairman. Might
I ask that as I introduce the nominees, they have an opportunity
to come forward.
First, it is my pleasure on behalf of both myself and Senator
Moynihan, who has submitted an extensive statement, and let me
just read a little part of it. He said today is a great day for New
York, and he talks to the honor and privilege it is for him to put
forth and join with me in support of three of the wonderful nomi-
nees that will be before this committee.
I am going to ask Mr. Richard Casey, who is the President's
nominee for the southern district. This nomination follows the nom-
ination of Mr. Casey by President Bush. Not very often do we get
one nominee nominated by two Presidents for the same job, two
Presidents of different parties. I think that is a testimony to our
Presidents, their administrations, the Justice Department, and to
the caliber of the nominee.
Second, Judge Sotomayor, who comes before the committee for
the second time. It was less than 5 years ago when the judge was
nominated for the southern district, a position that she has held
now for almost 5 years and she is now nominated to one of the
most important courts in the land, the Courts of Appeals, Second
Circuit.
Then Judge Charles Siragusa from Rochester, whose wife went
to law school, coincidentally, with my son, Christopher. I think she
helped him get through. [Laughter.]
By the way, I want you to know that this ^s not a payback, that,
indeed, I have been privileged to support this nomination.
Judge Siragusa was brought to the attention of the President by
Senator Moynihan. Were it not for Senator Moynihan feeling some-
what under the weather, as he has a heavy, heavy cold, he would
be here. I ask that his statement be inserted in the record as if
read.
Senator DeWine. His statement will be made a part of the per-
manent record.
Senator Torricelli.
344
Senator TORRICELLI. Mr. Chairman, I had three statements from
him. Senator D'Amato, do you have all three statements from Sen-
ator Moynihan?
Senator D'Amato. Yes; all three of them, and that is why I want-
ed to characterize his statement as this being a great day for the
judicial system of this country, but particularly as it relates to
these three magnificent individuals.
[The prepared statements of Senator Moynihan follow:]
Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma-
tion OF SONIA SOTOMAYOR FOR THE UNITED STATES COURT OF APPEALS FOR THE
Second Circuit
It is my great honor today to support Sonia Sotomayor, a most exemplary can-
didate for the United States Court of Appeals for the Second Circuit.
In March of 1991, I had the pleasure of recommending Sonia Sotomayor to be a
U.S. District Court Judge for the Southern District of New York, a position which
she currently holds. Her career as a District Court Judge has been a distinguished
one. She has presided over a number of high profile cases, including one which, to
the delight of baseball fans everywhere, put an end to a bitter strike in 1995. Dur-
ing the five year tenure, her decisions have been reversed only six times — an out-
standing record.
Judge Sotomayor is a former Assistant District Attorney with the New York
County District Attorney's office and was a partner at the law firm of Pavia & Har-
court. She has considerable experience in criminal law from her work as a prosecu-
tor, as well as commercial litigation from her days in private practice.
Her academic achievements are truly outstanding. She was graduated summa
cum laude from Princeton University in 1976, where she was elected Phi Beta
Kappa and was a co-winner of the M. Taylor Pyne Honor Prize, awarded to the
graduating senior who has most clearly m.anifested excellent scholarship and effec-
tive support of the best interests of the University. She received her law degree from
Yale University, where she was an Editor for the Yale Law Journal.
I believe that Judge Sotomayor's considerable accomplishments merit appoint-
ment to the United States Court of Appeals for the Second Circuit and I am con-
fident that, upon confirmation, she will serve with high distinction.
Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma-
tion OF Charles J. Siragusa To Be United States District Judge for the
Western District of New York
I am pleased to present to the committee New York State Supreme Court Justice
Charles Joseph Siragusa, nominated to be United States District Judge for the
Western District of New York.
Might I note that my judicial screening panel interviewed more than twenty ap-
plicants to fill the vacancy that resulted when Judge Michael A. Telesca took senior
status. There were, as one might have expected, many splendid candidates. How-
ever, Judge Charles J. Siragusa stood out.
Judge Siragusa has served with great distinction in the Seventh Judicial District.
He was elected to the State Supreme Court in 1992, following fifteen years as a
prosecutor with the Monroe County District Attorney's office. In that capacity he
tried over 100 felonies and was involved in a number of significant criminal cases
including the prosecution of Arthur J. Shawcross, a serial killer responsible for the
deaths of eleven women. He received widespread recognition and praise for his work
on that case.
A native of Rochester, Judge Siragusa was graduated from LeMoyne College in
DeWitt, New York in 1969. He received his law degree from Albany Law School
1969 and has been a member of the New York State Bar since 1977.
Judge Charles J. Siragusa is a man of great intelligence and unwavering prin-
ciple. I am confident that, upon confirmation, he will serve with honor and distinc-
tion.
345
Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma-
tion OF Richard C. Casey as a U.S. District Court Judge for the Southern
District of New York
It is my great privilege to support the confirmation of Richard Conway Casey, a
nominee for United States District Judge for the Southern District of New York.
Mr. Casey has been associated with the New York firm of Brown & Wood for over
thirty years, serving as a partner for fourteen years before becoming Of Counsel to
the firm in 1984. During his time in private practice, he has specialized in securi-
ties, corporate and criminal litigation.
Earlier in his career, he served as Assistant United States Attorney for the South-
em District of New York and investigated public corruption as counsel to a Special
Commission of the State of New York, commonly known as the Moreland Act Com-
mission.
Might I add that Mr. Casey has benefited from the rigors of a Jesuit education.
He was graduated from the College of the Holy Cross in 1955 and went on to receive
his law degree at Georgetown University Law center in 1958. At Georgetown he was
the recipient of the Beaudry Cup for best Moot Court argument in his class. He
later went on to be a finalist in the National Moot Court Competition.
It is an honor to introduce Mr. Casey to the Committee today. I am quite con-
fident that upon his confirmation he will serve New York with distinction.
Senator D'Amato. Let me say, I am going to ask that my full
statement be included in the record as if read in its entirety, be-
cause I have these loquacious speech writers who have gone into
every detail of all of the candidates and their lives. Some, they
might want to hear. Others would be — well, no.
Senator DeWine. It will be made a part of the record.
Senator D'Amato. Let me say that it is a great privilege and
honor to nominate Dick Casey. Dick Casey's impressive legal career
is quite extraordinary. But I think more extraordinary is the fact
that over the past several years, Mr. Casey's legal work has shifted
slightly as a result of his blindness. He is blind. He would be the
first district court judge who would be nominated for this position
and take the bench as a person who has no sight — who is legally
blind.
There is no doubt as to his legal acumen. There is no doubt as
to the brilliance of his academic record and his distinguished career
before the bar. Even after he lost his sight, he remained vigorous
in actively practicing law, probably more than most. His tenacious-
ness toward justice and fairness will never be impeded by his loss
of sight.
We had a distinguished panel of jurists before our committee
who came forward with this nominee and who explored the ques-
tion as to whether or not he would be able to discharge the duties
as a trial justice. This was headed by the former chief justice of the
southern district. Their recommendation was unanimous in terms
of indicating that Dick Casey could do the job.
I believe that not only is he eminently qualified by way of his
background and his experience, but his success in the face of the
disability that he has had to deal with will give further testimony,
living proof, to his great personal strength and it will be an inspi-
ration to Americans and many others that we are winning the bat-
tle against the prejudice toward the disabled. As always, he will be
a trail blazer, opening new doors for others.
Let me just add, for the record, just some of his credentials. I
might mention that those who know him best have come forward
and are here today, not only his family but one of the great U.S.
attorneys from the Southern District of New York, a great prosecu-
346
tor in his own right is here today to lend his support to his friend
and colleague, former U.S. attorney Otto Obermeyer.
Mr. Casey's impressive legal career began as an assistant U.S.
attorney in the Southern District in the Criminal Division. He
joined the special commission for the State of New York investigat-
ing public corruption, and for over three decades, he has been prac-
ticing with Brown and Wood in New York City. So it is my distinct
pleasure to put forward this nominee.
As it relates to Justice Sotomayor, what can one say? But only
in this country, the daughter of a humble working family has risen
by way of her legal scholastic stewardship to the highest trial court
in the Federal district, the premiere district, I might add with some
prejudice, the Southern District of New York, where she has distin-
guished herself.
I predicted to this committee almost 5 years ago that Judge
Sotomayor would be an exemplary, outstanding justice. She has
demonstrated that repeatedly. She has shown compassion, wisdom,
one of the great intellects on the court. Her experience both as a
prosecutor, civil litigator, and Federal trial judge makes her an ex-
ceptionally qualified candidate for the second circuit. She is here
with her beautiful mama, and I am wondering if we could have
your mother stand. Mrs. Sotomayor, congratulations to you.
Last but not least is Judge Siragusa, and I want you to know
that the judge comes with one of the most highly rated records as
a great trial judge, sitting in the Supreme Court in Monroe County,
having served as first assistant district attorney and thereafter
being recognized by more groups than one could possibly mention
in terms of his service to community and in terms of his legal stew-
ardship.
Of all of his great accomplishments, I might add, is the fact that
the judge graduated from a wonderful school, and you know that
my chief and top administrative assistant put this in. He said,
after graduating from a wonderful college, LeMoyne College in Syr-
acuse. So I want you to know, judge, that Mike Kinsella has never
forgotten that kinship and we share that with this committee
today.
I recommend him to this committee, along with Senator Moy-
nihan, recognizing that the President has chosen well and also that
this district is one of the busiest districts, most overworked dis-
tricts, in the country and they certainly could use the judge as
quickly as possible.
Mr. Chairman, it is a great honor to recommend these three
nominees and join with our senior Senator in presenting them to
the committee today.
Senator DeWine. Senator D'Amato, thank you very much for
joining us.
[The prepared statements of Senator D'Amato follows:]
Prepared Statement of Senator Alfonse D'Amato Introducing Sonia
Sotomayor
I am pleased to join my colleague, Senator Moynihan in the introduction of Judge
Sonia Sotomayor to the Senate Judiciary Committee.
Several years ago I introduced Judge Sotomayor to the Judiciary Committee when
she was nominated to the federal bench in the Southern District of New York. I was
347
confident then that she would be a fine addition to the federal bench and, nearly
5 years later, I remain confident of her abilities and fairness as a federal judge.
After graduating from Princeton University, Summa Cum Laude, and then earn-
ing a law degree from Yale, where she served as editor of the Yale Law School Jour-
nal, Judge Sotomayor worked in the New York County District Attorney's Office.
She joined the law firm of Pavia & Harcourt and made Partner in 1988. In private
practice. Judge Sotomayor has had significant experience in general civil litigation
including real estate, employment, contract, intellectual property law and export
commodity trading.
Judge Sotomayor has exercised her civic duties as a Board Member of a number
of organizations, including the Puerto Rican Legal Defense & Education Fund, the
New York State Mortgage Agency and the New York City Campaign Finance Board.
During her term in the Southern District of New York, she received numerous
honors including the "Distinguished Woman in the Field of Jurisprudence" by the
Secretary of State of Puerto Rico, "Recognition of Outstanding Achievement and
Dedication to the Latino Community" by the Latino American Law Student Associa-
tion of Hofstra University School of Law and an Award for "Outstanding and Dedi-
cated Service to the People of New York County" by the District Attorney's Office.
Her "Lifetime Achievement Award" was presented to her by both the National Puer-
to Rican Coalition and the Hispanic National Bar Association.
Judge Sotomayor's experience as prosecutor, civil litigator, and federal district
court judge makes her an exceptionally qualified candidate for the Second Circuit.
Her extensive knowledge of the law and her experience deciding federal cases pre-
pares her for the complex legal decisions that must be made by Circuit Court
judges.
I thank the Committee for this opportunity to present Judge Sotomayor and urge
the Committee's swift consideration of her nomination to the Second Circuit.
Prepared Statement of Senator Alfonse D'Amato Introducing Charles
Joseph Siragusa
I am pleased to introduce Mr. Charles Siragusa to the Senate Judiciary Commit-
tee. As the Committee is aware, the President has nominated Judge Siragusa to the
position of District Court Judge for the Western District of New York.
I would like to take a moment to recognize his family members who are present —
his bride (as of August 30, 1997) Lisa Serio Siragusa and his new parents-in-law,
Mr. and Mrs. James Serio. (In fact. Judge Siragusa would have been before the
Committee weeks ago had he been able to get a plane back from his honeymoon.)
Judge Siragusa is from Rochester, New York and has been a life-long New Yorker.
After graduating from a wonderful school, LeMoyne College in Syracuse, and work-
ing for several years as a teacher in a Rochester school. Judge Siragusa entered law
school, and graduated from Albany Law School.
Judge Siragusa's impressive legal career began as an Assistant District Attorney
with the Monroe County District Attorney's Office. He was promoted to First Assist-
ant District Attorney and was employed in that position for eight of his fifteen years
of service. Judge Siragusa's work at the prosecutor's office has been recognized by
many groups, awarding him distinguishing honors including, among others, the
Gannet Rochester Times Union's Person of the Year (1991), Honorary Deputy Chief
of the Rochester Police Department (1991), Exemplary Service Award from the Mon-
roe County Sheriffs Department (1991) and a Distinguished Service Award for his
contribution to the Italian American Community-Counsel General of Italy (1996).
Since 1993, Judge Siragusa has served New York State as a State Supreme Court
Judge in Rochester, deciding cases in a fair and equitable manner.
This nominee has also served in several community positions, volunteering his
leadership and knowledge for people in need. He has sat on the Advisory Board for
Rape Crisis and the Families and Friends of Murdered Children and Victims of Vio-
lence.
I thank the Committee for allowing me this opportunity to introduce Judge
Siragusa and I look forward to swift action on his nomination.
Prepared Statement of Senator Alfonse D'Amato Introducing Richard
Conway Casey
It is an honor for me to introduce Richard Casey to the members of the Senate
Judiciary Committee — a highly regarded and respected lawyer, and a close personal
friend, who President Bill Clinton has nominated to the Southern District of New
York, echoing a prior endorsement by former President George Bush.
348
After graduating from the College of Holy Cross, Mr. Casey attended Georgetown
University Law Center. A sign of his future abilities, he became a finalist in a na-
tional competition for his moot court team. He served his country in the United
States Army and served overseas before he was honorably discharged.
Mr. Casey's impressive legal career began as an Assistant U.S. Attorney with the
U.S. Attorney's Office, Criminal Division, in the Southern District of New York. He
joined the Special Commission for the State of New York investigating public cor-
ruption.
For over three decades, Mr. Casey has been practicing with Brown & Wood in
New York City, elected to partner in 1970 and Counsel in 1984, practicing complex
securities, corporate and criminal litigation.
Over the past five years, Mr. Casey's legal work has shifted slightly as a result
of his blindness but there is no doubt he remains vigorously active in the practice
of law, probably more than most. His tenaciousness toward justice and fairness will
never be impeded by his loss of sight.
What some may view as a disability has only strengthened his resolve for equity
and justice. He served as Director of Guiding Eyes for the Blind, a non-profit school
for training of guide dogs and the blind and Director of Catholic Guild for the Blind,
a nonprofit organization dealing in rehabilitation of the blind.
In addition to his work with these groups, Mr. Casey has shared his incredible
knowledge of the law, civil and criminal, as the Chairman of the American Bar As-
sociation Committee on Securities Litigation from 1975 to 1977 and as a member
of the Southern District of New York Trial and Appellate Panel representing indi-
gent defendants in criminal trials and appeals for twenty years.
Mr. Casey was appointed by the Honorable Jack Weinstein to serve on the Special
Commission on Discovery Abuse, amending local rules, and previously served, at the
request of Chief Justice Warren Burger, on the Special Committee for Discovery
Abuse, which issued a report recommending amendments to the Federal Rules of
Civil Procedure.
Whether a criminal case or a civil, with a disability or without, Mr. Casey has
earned the tremendous reputation that has followed him throughout his career. His
extensive knowledge of the law, thoughtful consideration and his demonstrated lead-
ership make him an exceptionally well qualified candidate for this position.
Besides being eminently qualified to serve in this position, his success in the face
of his disability is further testament of his great personal strength. His appointment
shows that in America we are winning the battle against prejudice towards the dis-
abled. As always, he will be a trailblazer, opening new doors for others.
I strongly support his nomination and urge the Committee's swift consideration.
Senator DeWine. Let me turn now to my colleague from the
State of Tennessee, Senator Thompson.
STATEMENT OF HON. FRED THOMPSON, A U.S. SENATOR
FROM THE STATE OF TENNESSEE
Senator Thompson. Thank you, Mr. Chairman.
Mr. Oilman, would you come forward, please.
Senator DeWine. I see our colleague from Tennessee, also. Sen-
ator Frist, is here.
Senator THOMPSON. Mr. Chairman and fellow members of the
committee, I am pleased to come here today before you to introduce
Ronald L. Oilman, the President's nominee to fill a vacancy in the
U.S. Court of Appeals for the Sixth Circuit. I want to start by ac-
knowledging my gratitude and the gratitude of all lawyers who
practice before the sixth circuit to our chairman for scheduling a
hearing on Mr. Oilman's nomination so promptly.
Before I summarize Mr. Oilman's accomplishments to the com-
mittee and explain why I believe he merits the committee's ap-
proval, I want to say a brief word to recognize Judge Ted Milburn,
whose seat Mr. Oilman will be filling if he is confirmed.
Judge Milburn has served the people of Tennessee and the
United States as a judge for almost a quarter of a century, first as
a State trial judge and, since 1983, a Federal judge. Judge Milburn
349
is widely regarded throughout the sixth circuit as a leader on the
court. On behalf of all Tennesseeans, I want to thank him for his
service and wish him well in his retirement. Mr. Oilman has big
shoes to fill.
Let me turn now to the nominee before you today. Mr. Oilman
is a native of Memphis and attended high school at Christian
Brothers Academy in Memphis, from which he graduated as val-
edictorian. He left Tennessee for college and law school in Massa-
chusetts, attending the Massachusetts Institute of Technology and
Harvard Law School. After graduating cum laude from Harvard in
1967, Mr. Oilman returned to Memphis, where he has practiced
ever since in one of Tennessee's leading law firms, Ferris, Mat-
hews, Oilman, Branan & Hellen. I might point out that the Mat-
hews in that firm name is former Senator Harlan Mathews. I
might also point out that my son is a member of that firm.
Mr. Oilman rapidly became established as a leader of the Mem-
phis bar, serving as the president of the young lawyers division of
the Memphis Bar Association and president of the young lawyers
conference of the Tennessee Bar Association. He subsequently
served a term as president of both the Memphis Bar Association
and the Tennessee Bar Association. In recognition of Mr. Oilman's
leadership at the bar, he was appointed to serve on the Tennessee
Court of the Judiciary, which hears disciplinary cases against State
judges. He has also served occasionally as a special judge in the
State courts in Memphis.
Mr. Oilman has been a leader not just in the Memphis bar but
in the Memphis community, as well. He has served on the board
of directors of the Chickasaw Council for the Boy Scouts of Amer-
ica, the Memphis Jewish Home, and the Memphis Senior Citizens
Services, among other groups. In 1981, Mr. Oilman was awarded
the Sam A. Myar, Jr. Memorial Award for outstanding service to
the legal profession and the Memphis community.
Perhaps most interesting of all is Mr. Oilman's membership in
the Society of Memphis Magicians, which he served as president in
1986. While this gives me a little concern, I assume he will restrict
himself to pulling rabbits out of his hat and not judicial decisions.
Mr. Oilman is an extremely well-qualified and unusually well-
rounded nominee. While his practice is concentrated on litigation,
particularly commercial litigation, he also has engaged in estate
planning and general business law. Not only is he experienced in
civil law, but in criminal law, as well, as he has represented a
number of indigent criminal defendants in Federal court.
More recently, Mr. Oilman's practice has focused on the practice
of alternative means of dispute resolution, such as arbitration and
mediation. Mr. Oilman has often served as an arbitrator and medi-
ator for groups like the American Arbitration Association and the
National Association of Securities Dealers. With the backlog in civil
litigation throughout the Nation, I think it is important to recog-
nize the importance of the nominee's experience in this area. Not
only is this experience similar to the experience of being a judge,
but it will no doubt help him bring a special insight to a variety
of procedural issues to help the civil litigation system work better.
I know his wife, Betsy, is here today. I know he will want to in-
troduce her. I want to thank again Chairman Hatch for scheduling
350
this hearing and you, Mr. Chairman, for presiding today. I am con-
fident that after hearing from Mr. Oilman, the committee will fa-
vorably report his nomination and that the full Senate will confirm
him promptly. Thank you very much.
Senator DeWine. Let me turn to the other Senator from the
State of Tennessee, Senator Frist. I also saw Congressman Ford
back there. Congressman, can you come on up and join us?
STATEMENT OF HON. BILL FRIST, A U.S. SENATOR FROM THE
STATE OF TENNESSEE
Senator Frist. Thank you, Mr. Chairman. I will join my col-
league from Tennessee in welcoming the opportunity to introduce
Mr. Ron Oilman, who has been nominated to fill the vacancy in the
Sixth Circuit Court of Appeals. The President has chosen wisely in
his selection of Ron Oilman of Memphis, TN, to fill this vacancy
and it is an honor for me to be here to speak on his behalf
I have heard from many Tennesseeans since the nomination from
across the State, and uniformly and unanimously, they have called
to express their support, their full support, for this nomination. Mr.
Oilman will make an outstanding judge and do a tremendous job
in serving Tennessee, as well as the entire sixth circuit.
His experience, which has been outlined to you, is diverse and
impressive. His reputation throughout Tennessee is fair and delib-
erative, all of which speaks volumes toward his integrity. I am
proud to support this outstanding nominee, was glad to have the
opportunity to meet his family earlier today, and look forward to
completion of this nomination process.
Senator DeWine. Senator Frist, thank you very much.
Congressman Ford, welcome.
STATEMENT OF HON. HAROLD E. FORD, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TENNESSEE
Mr. Ford. Thank you, and I certainly thank my Senators, Mr.
Thompson and Mr. Frist, for their leadership on this. I welcome my
friend and certainly the future sixth circuit jurist, Mr. Oilman, and
his family. I know his wife Betsy, if she would not mind standing,
and certainly his daughter. Sherry, who is there in the back. I
know Laura was not able to be with the soon-to-be jurist today, but
I am sure she would be proud of her father.
I thank Chairman Hatch, and certainly, again, my Senators for
moving this process forward in the way that they were able to and
did. I would certainly say that Mr. Oilman's nomination, the way
that this Senate has conducted itself, I believe, is a clear illustra-
tion of how this process can and should work when partisan politics
takes a back seat to the pressing needs of our judiciary.
I thank you again, Mr. Chairman, for scheduling this hearing
and I congratulate my friend, Mr. Oilman, again.
Senator DeWine. Congressman, thank you very much.
I have a statement that Senator Leahy has asked me to place in
the record. It will be made, without objection, a part of the record
today.
[The prepared statement of Senator Leahy and President Clin-
ton's radio address on judicial nominations follow:]
351
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the State
OF Vermont
I commend the Chairman for holding this confirmation hearing for judicial nomi-
nees this afternoon and, in particular, for including Judge Sonia Sotomayor among
those being considered. Judge Sotomayor has been an outstanding Federal District
Court Judge. She was nominated to fill a vacancy on the Second Circuit Court of
Appeals last June. There are currently four vacancies among tlie 13 judgeships that
constitute that distinguished court. The Chief Judge of Second Circuit recently testi-
fied that in light of these vacancies 80 percent of Second Circuit 3-judge panels over
the next 12 months will have to be filed by visiting judges, since there are simply
not enough Second Circuit judges to complete them and to hear all the cases that
need attention. I hope that we will proceed without delay to consider the nomination
of Judge Sonia Sotomayor to the Second Circuit and move promptly to fill the va-
cancies plaguing the Second Circuit.
I note that we are also considering the nomination of Ronald Oilman to the Sixth
Circuit, which nomination was received in July 16; the District Court nominations
of Charles Siragusa and Richard Casey to the Western and Southern Districts in
New York, which nominations were both received in mid-July; the District Court
nominations of James Gwin and Algenon Marbley to the Northern and Southern
Districts in Ohio, which nominations were received in late July and the District
Court nomination of Dale Kimball to the District of Utah, which nomination was
received on September 5, less than one month ago. I expect that Senator Thompson
and Senator DeWine are likewise appreciative of the Chairman's willingness to in-
clude these nominees in this hearing. The confirmation process for the vacancy in
Utah is likely to set the standard for how promptly this Committee can proceed to
review and report federal judgeship nominations. We all look forward to Mr.
Kimball's speedy confirmation.
Unfortunately, this is only the sixth confirmation hearing for judicial nominees
that the Committee has convened all year. By this time two years ago, the commit-
tee had held nine confirmation hearings involving 36 judicial nominees.
While I am encouraged that the Committee is today proceeding with a hearing
on these six nominees, there remains no excuse for the Committee's delay in consid-
ering the nominations of such outstanding individuals as Professor William A.
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret
McKeown, Ms. Ann L. Aiken, and Ms. Susan Oki MoUway, to name just a few of
the outstanding nominees who have all been pending all year without so much as
a hearing. Professor Fletcher and Ms. Mollway had both been favorably reported
last year. Judge Paez and Ms. Aiken had hearings last year but have been passed
over so far this year.
After this hearing, which is the first time this year the Committee has been will-
ing to hold two hearings in any one calendar month, the Committee will still have
pending before it more than 40 nominees in need of a hearing from among the 69
nominations sent to the Senate by the President during this Congress. From the
first day of this session of Congress, this Committee has never had pending before
it fewer than 20 judicial nominees for hearings. The Committee's backlog has now
doubled and is more than 40. Many of these nominations were before us last Con-
gress, during the election year slowdown, and have had to be re-nominated by the
President. The vacancies for which they are nominated have not been filled but per-
sist for periods now reaching years. For example, the Committee has 10 nominees
who have been pending for more than a year, including five who have been pending
since 1995. Thus, while I am delighted that we are moving more promptly with re-
spect to the nominees being considered today, I remain concerned about the other
vacancies and other nominees.
Some of those pending before the Committee had hearings or were reported favor-
ably by the Committee last Congress but have been passed over so far this year as
the vacancies for which they were nominated more than two years ago persist. The
President has sent us 69 judicial nominations so far this year and is sending more
each week. Over the last three weeks, apparently in anticipation of the President's
radio address on the judicial vacancy crisis, the Senate doubled its confirmations
from 9 to 18 in the course of 23 days. I expect even those who have spent so much
time this year holding up the confirmations of federal judges were uncomfortable
defending this Senate's record of having proceeded on only 9 of the 61 nominees re-
ceived through August of this year. With the two confirmations last Friday, the Sen-
ate achieved the snail-like pace of confirming two judges a month over the course
of this year, while still faced with almost 100 vacancies.
The Senate continues to lag well behind the pace established by Majority Leader
Dole and Chairman Hatch in the 104th Congress. By this time two years ago, the
352
Senate had confinned 36 federal judges, double the number achieved this year. For
purposes of perspective, let us also recall that by the end of September 1992, during
the last year of the President Bush's term, a Democratic majority in the Senate had
confirmed 59 of the 72 nominees sent to us by a Republican President. This Senate
is on pace to confirm less than one-third of a comparable number of nominations.
Those who delay or prevent the filling of these vacancies must understand that
they are delaying or preventing the administration of justice. We can pass all the
crime bills we want, but you cannot try the cases and incarcerate the guilty if you
do not have judges. The mounting backlogs of civil and criminal cases in the dozens
of emergency districts, in particular, are growing taller by the day. National Public
Radio broadcast a series of reports all lasts week on the judicial crises and quoted
the Chief Judge and U.S. Attorney from San Diego earlier this week to the effect
that criminal matters are being affected.
I have spoken about the crisis being created by the vacancies that are being per-
petuated on the Federal courts around the country. At the rate that we are going,
we are not keeping up with attrition. When we adjourned last Congress there were
64 vacancies on the federal bench. After the confirmation of 18 judges in nine
months, there has been a net increase of 30 vacancies, an increase of almost 50 per-
cent in the number of federal judicial vacancies.
The Chief Justice of the Supreme Court has called the rising number of vacancies
"the most immediate problem we face in the federal judiciary." Chairman Hatch has
said that we can do better. I agree with them and add that we must do better. I
have urged those who have been stalUng the consideration of these fine women and
men to reconsider their action and work with us to have the Committee and the
Senate fulfill its constitutional responsibility.
This weekend the President of the United States devoted his national radio ad-
dress to the threat being posed to our judicial system by those who are intent on
partisan and ideological intimidation of federal judges. I ask that a copy of the
President's Radio Address on Judicial Nominations from September 26, 1997, be in-
cluded in the record.
Radio Address of the President to the Nation
The President: Good morning. I want to talk this morning about a very real
threat to our judicial system. For more than 220 years our nation has remained
young and strong by meeting new challenges in ways that renew our oldest values.
Throughout our history our judiciary has given life and meaning to those values by
upholding the laws and defending the rights they reflect, without regard for politics
or political party.
That is the legacy of the judicial system our founders established, a legacy we re-
called this Thursday on the 40th anniversary of the court-ordered desegregation of
Little Rock Central High School.
But in the past 18 months this vital partnership has broken down as the Senate
has refused to act on nomination after nomination. And in federal courthouses
across America, almost 100 judges' benches are empty. In 1996, the Senate con-
firmed just 17 judges — that's the lowest election-year total in over 40 years.
This year I've already sent 70 nominations to Congress, but so far they've acted
on less than 20. The result is a vacancy crisis in our courts that Supreme Court
Chief Justice William Rehnquist warned could undermine our court's abiUty to fair-
ly administer justice.
Meanwhile, our courts are clogged with a rising number of cases. An unprece-
dented number of civil cases are stalled, affecting the lives of tens of thousands of
Americans — from the family seeking life insurance proceeds, to the senior citizen
trying to collect Social Security benefits, to the small business protecting its right
to compete. In our criminal courts nearly 16,000 cases are caught in limbo, while
criminals on bail await punishment and victims await justice. Our sitting judges are
overloaded and overworked, and our justice system is strained to the breaking point.
The Senate's failure to act on my nominations, or even to give many of my nomi-
nees a hearing, represents the worst of partisan politics. Under the pretense of pre-
venting so-called judicial activism, they've taken aim at the very independence our
founders sought to protect. The congressional leadership has actually threatened sit-
ting judges with impeachment, merely because it disagrees with their judicial opin-
ions. Under this politically motivated scrutiny, under ever-mounting caseloads, our
judges must struggle to enforce the laws Congress passes and to do justice for us
all.
We can't let partisan politics shut down our courts and gut our judicial system.
I've worked hard to avoid that. And the people I've nominated for judgeships and
353
had confirmed have had the highest rating of well qualified from the American Bar
Association of any President since these ratings have been kept.
So today I call upon the Senate to fulfill its constitutional duty to fill these vacan-
cies. The intimidation, the delay, the shrill voices must stop so the unbroken legacy
of our strong, independent judiciary can continue for generations to come. This age
demands that we work together in bipartisan fashion — and the American people de-
serve no less, especially when it comes to enforcing their rights, enforcing the law,
and protecting the Constitution.
Thanks for hstening.
Senator DeWine. We will now proceed with our circuit court
nominees. I would ask our two nominees to come forward. We
apologize for moving everyone around, but I think that we will pro-
ceed with two panels, starting with the circuit court nominees.
As you come up, I will just ask you to remain standing and take
the oath. Do you swear the testimony you shall give in this hearing
shall be the truth, the whole truth, and nothing but the truth, so
help you, God?
Mr. Oilman. I do.
Judge SOTOMAYOR. I do.
Senator DeWine. Thank you both for joining us today. We will
start with Mr. Oilman. Mr. Oilman, is there anyone in the audi-
ence who is with you that has not been introduced that you would
like to introduce? This is sort of a family day here today, which is
just fine with me.
TESTIMONY OF RONALD LEE OILMAN, OF TENNESSEE, TO BE
U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT
Mr. Oilman. Well, I appreciate it, Mr. Chairman. My wife, I be-
lieve, has been introduced, and my daughter. Sherry. Also, I have
my cousins from Chevy Chase, Marian and Leon Blum.
Senator DeWine. Let us have them all stand up, or maybe they
are standing up already.
Mr. Oilman. And I have three friends of my daughter Sherry,
Rhonda Rivens, Allison Issacman, and Stuart Frisch are all here,
living in the Washington, DC area. Thank you very much.
QUESTIONING BY SENATOR DE WINE
Senator DeWine. Mr. Oilman, all of us have interest in all of the
nominees. I obviously have a special interest in your nomination,
because you will be serving in the sixth circuit. The State of Ohio,
of course, also happens to be part of the sixth circuit.
I notice in your resume that you have worked as an arbitrator-
mediator for the American Arbitration Association. I think you also
worked as a referee in the Dalkon shield litigation.
Mr. Oilman. Yes, Mr. Chairman.
Senator DeWine. You have written on this topic. I wonder if you
could just comment for us as to whether you think our system uses
mediation enough, both at the Federal level and at the State level.
Mr. Oilman. My own experience, of course, is in the Tennessee
courts and it is just coming of age. It was just this year, as a mat-
ter of fact, that the Tennessee Supreme Court adopted an official
rule for mediation. The Western District of Tennessee just set up
its program this year. I believe it is something that has been quite
helpful. I know the sixth circuit several years ago set up a special
354
counsel's office to try to resolve disputes, even when they reached
the court of appeals.
It seems to me a way of shortening the process of resolving civil
cases and the statistics show that about 80 percent of cases that
are mediated end up being resolved. So I think the parties are bet-
ter off and the courts are better off because it unclogs the system
a good bit.
Senator DeWine. What is your opinion? Are we using this to its
fullest potential in the Federal system?
Mr. Oilman. It is not yet, in my own experience in the Western
District of Tennessee, not being fully — but it is just in the process
of being utilized. I expect, though, as I have talked to colleagues
in the States of, for example, Texas and Florida, where it has been
in existence for approximately 10 years, I understand it has gotten
to the point in those States where you cannot go to trial until you
first try mediation, and that is probably the direction that we are
going in, which, in fact, I think is healthy, as particularly medi-
ation is not binding and the parties are not obligated to settle, so
if they have to go to court, they certainly have the opportunity and
the legal right to do so. But on the other hand, many of these civil
cases get resolved far earlier and at far less expense to the parties
than if they had to go through traditional litigation.
Senator DeWine. Mr. Oilman, during your tenure as president of
the Tennessee Bar Association, the Association drafted a profes-
sional creed for Tennessee lawyers. Is there anything particularly
unique about that professional creed that we should take note of?
Mr. Oilman. Only that probably the thing that seems most im-
portant is the need for attorneys to disagree without being dis-
agreeable. Unfortunately, it seems to be more and more as the pro-
fession grows where the lawyers do not have regular contact with
each other on a repeated basis that you find less civility in the
process and that then reflects on the cost to the litigants and the
prolonging of the litigation and the need for lawyers to be able to
cooperate, particularly on procedural matters that do not affect the
substance of the case, but rather than just schedule a deposition
date and then have problems, oh, I am going to be out of town, to
talk to each other first and do things informally, where it does not
affect the merits but yet it greatly aids in the case being processed
through the system, and that is sort of the heart of the profes-
sionalism and the creed standards.
Senator DeWine. Thank you.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman. Judge
Sotomayor, a former Supreme Court Justice has expressed his view
of consitutional interpretation as follows, and I quote, "We look to
the history of the time of framing of the Constitution and the inter-
vening history of interpretation, but the ultimate question must be,
what do the words and the text mean in our time?" Do you agree
with that statement?
355
TESTIMONY OF SONIA SOTOMAYOR, OF NEW YORK, TO BE U.S.
CIRCUIT JUDGE FOR THE SECOND CIRCUIT
Judge SOTOMAYOR. No, sir, not fully. I agree with the first two
parts of it, that you look at the Constitution and what it meant at
the time. The last suggests that I would be trying to change its
meaning today, and no. I think the first two would inform what the
last result should be, which is what did it mean then and how to
apply new facts to that if the issue is new facts.
Senator THURMOND. Mr. Oilman.
Mr. Oilman. Senator, I think that
Senator Thurmond. Do you want me to repeat that, or do you
remember it?
Mr. Oilman. If you would, that would be fine.
Senator THURMOND. "We look to the history of the time of fram-
ing of the Constitution and the intervening history of interpreta-
tion, but the ultimate question must be, what do the words and the
text mean in our time?"
Mr. Oilman. I think that we need to look more at the text of the
Constitution as it was written. The words are important and I
think that if the Constitution is to have enduring meaning, those
concepts obviously have to be applied to current circumstances.
New events arise all the time, but I think the Constitution has got
to be interpreted within the meaning of its text.
Senator Thurmond. Now, this question is for both of you. You
have both had some involvement with the American Bar Associa-
tion. Do you believe that the ABA should take positions on social
and public policy issues such as abortion and aid to the homeless?
Mr. Oilman. I would be glad to answer first. I was actually in
the House of Delegates for the last 8 years. I am no longer in the
House. My term ended in August of this year. I believe the ABA
does a tremendous amount of good in areas like continuing legal
education and professionalism and providing legal services. My own
opinion is it should not, though. Senator, be involved in these
issues that are primarily social and moral on which lawyers have
no particular expertise, and I, in fact, have voted against those
kind of resolutions when they have come up before the House.
Judge Sotomayor. I have only been an inactive member of the
bar. I joined it largely because of its educational importance. The
American Bar Association regularly issues studies on the current
state of the law and analysis of where the law is and what is hap-
pening in that area and I receive their publications and receive
them for that purpose.
I am aware, obviously, as any reader of newspapers, that they
have taken larger positions on social issues. I believe, like Mr. Oil-
man, that that perhaps would not be terribly helpful to them gen-
erally because it undermines their effectiveness on the central
issues of their mission, which is the education of lawyers.
Senator Thurmond. This question is for you. It is a sad fact that
many young people get involved in selling drugs. Based on your ex-
perience as a judge, why do you believe many young, poor youths
become drug dealers?
Judge Sotomayor. Senator, I wish I had the answer. If we had
the answer, we would have a solution to one of the worst ravages
on our society, drugs, and I do not. The reason why kids become
356
in drugs, as I have learned as a judge, vary enormously. Some, be-
cause of the lure of easy money, something that perhaps they
should not be tempted by, but they are. Others, through their own
self-ignorance about the damage they are doing to society and to
themselves. I simply do not have one reason I can give you. The
reasons are myriad and complex.
Senator Thurmond. Nov^ another question. Do you oppose man-
datory minimum sentences for drug offenses?
Judge SOTOMAYOR. No, sir.
Senator Thurmond. Another question. Some argue that the Fed-
eral sentencing guidelines do not provide enough flexibility for the
sentencing judge and some even say they should be abolished.
What is your view of the Federal sentencing guidelines, based on
your experience with them?
Judge SOTOMAYOR. Thus far, sir, in the vast majority of cases, I
have found the guidelines to be very helpful in giving some comfort
to me as a judge that I am not arbitrarily imposing sentences
based on my personal feelings. I believe that congressional senti-
ment, as reflected in the guidelines, is important because it permits
me not to impose my personal views but to let the democracy im-
pose the society's views.
With respect to your second point. Senator, the guidelines al-
ready provide mechanisms for departures in appropriate cir-
cumstances. In my experience, when there are principled and rea-
soned grounds to depart, the guidelines already permit it.
Now, there is obviously discussion going on, I am very well
aware of it, of issues that the Senate is taking up on changes with-
in the guidelines with respect to some kinds or others or with re-
spect to some issues or other. I expect, as has happened during the
last 10 years, that the Sentencing Guideline Commission will con-
tinue to take up those issues and revisit them when they are ap-
propriate.
Senator THURMOND. Thank you both for your presence and your
testimony.
Senator DeWine. Senator Sessions.
QUESTIONING BY SENATOR SESSIONS
Senator SESSIONS. Mr. Oilman, I think you are correct. We do
need to look for ways to develop alternatives to litigation and I
think we can do a better job of settling controversies many times
without the expense and the trauma of a full-fledged litigation. I
am impressed that you have tried 37 cases going directly to judg-
ment. I think that helps you bring something to the circuit that
would be a kind of experience and understanding of what it is like
to be in the pit, if I might, so I congratulate you for that.
I notice that you are an Eagle Scout. I will ask you a legal opin-
ion. Do you feel that the Washington Zoo appropriately denied the
Boy Scouts the right to have a court of honor there because the
Scouts affirmed a belief in a superior being? Do you think that
would be an appropriate decision for them to make under the Con-
stitution?
Mr. Oilman. I do not have any immediate opinion on that. I was
not familiar with the issue. Senator.
357
Senator Sessions. Apparently, that has been somewhat of a con-
troversy and I think they have backed down now, but originally,
that was the explanation that I understand they gave. I think
sometimes we do need to respect differences. We need to respect
people's religious views and, under the Constitution, the right to
exercise those views. I do not think they should be discriminated
against because of that.
With regard to the Constitution, I think you were pretty clear
about that. Do you take the view, and would you not agree that the
Constitution was fundamentally a contract between the people and
its government. The first three words, "We the People," shows that
it was a contract with the people and we should be very careful be-
fore we alter the meaning of a contract which the people ratified.
Mr. Oilman. I fully agree with that, Senator.
Senator Sessions. Judge Sotomayor, would you agree that if we
respect that Constitution, we have to enforce it, the good and bad
parts?
Judge Sotomayor. Absolutely, sir.
Senator Sessions. Even if we do not agree with a part of it?
Judge Sotomayor. Absolutely.
Senator Sessions. And we really undermine and weaken that
Constitution when we try to bend it to make it fit our contem-
porary feelings of the moment?
Judge Sotomayor. Sir, I do not believe we should bend the Con-
stitution under any circumstance. It says what it says. We should
do honor to it.
Senator SESSIONS. And when we honor it as it is written, I think
we strengthen it and make it available to protect us when any
great threat to our liberty arises. I agree with you on that.
You mentioned the sentencing guidelines that Senator Thurmond
asked you about. I did notice that you had, on occasion, stated that
you disagree with the mandatory minimums. Is that correct? I have
heard that.
Judge Sotomayor. Sir, I do not ever remember saying that.
There may have been situations in which in a particular set of
facts I was unhappy with the results, but I do not believe that I
have ever stated that I was unhappy with mandatory minimums
as a policy question, no, sir.
Senator SESSIONS. I think you made a good point about the fact
that, as a judge, it would be easier to sleep at night when you basi-
cally have a guideline to help you decide what that sentence should
be rather than having it totally your burden from 0 to 20 years.
I think, in some ways, it provides more uniformity and would be
easier on a judge.
Judge Sotomayor. Unquestionably, sir.
Senator SESSIONS. Do you find it that way?
Judge Sotomayor. I have no idea how the judges before me ever
set a consistent standard by which to sentence individuals. The
guidelines do provide that framework in a very helpful way.
Senator SESSIONS. I have been in court when I thought a person
might get probation and they got 15 years and vice versa. I think
something is not healthy when you have that much flexibility.
So I do believe in the guidelines and I think in the long run they
are helpful, but I do notice in one case that you issued a sentence
358
and you were very critical of the guidelines and said, "I hope that
yours," referring to, I believe, Louis Gomez's case, "will be among
the many that will convince our new President and Congress to
change these minimums. The only statement I can make is this is
one more example of an abomination being committed before our
sight. You do not deserve this, sir. I am deeply sorry for you and
your family, but the laws require me to sentence you to the 5-year
minimum. I have no choice." Would you like to comment on that?
Judge SOTOMAYOR. Sir, that is a case where the facts and my
personal feelings would have imposed a different result, but I did
not. I imposed what the law required. If that is — I am sorry, the
name of the case is?
Senator Sessions. I think it was Louis Gomez.
Judge SOTOMAYOR. Can you tell me how far back that case was,
sir?
Senator DeWine. Ninety-three.
Judge SOTOMAYOR. If I am not mistaken, sir, that was before the
safety valve provisions that were passed by Congress and I believe,
and I could be completely mistaken, because it has been a very
long time and I have had many sentences since, that I may have
been talking about the mandatory minimums more than the guide-
lines in a first offense — exactly what Congress later did, which was
to say, in a first offense situation with someone who is willing to
cooperate, as that gentleman was but had nothing to give and he
has no history of violence and none was used, that you could depart
from the guideline minimums in that regard, or lower them.
So I may be mistaken, sir, but I do believe that that was the sit-
uation and that Congress did do what I had earlier stated, which
was to look at the factual situations and the impact and make
changes when they are appropriate.
Senator Sessions. I think the Congress should do that and I do
not disagree with the judge calling on Congress and suggesting
that they should consider making any changes in the law. How-
ever, I do think that a judge, would you not agree, has to be careful
in conducting themselves in a way that reflects respect for the law
and the system?
Judge SOTOMAYOR. Absolutely, but
Senator Sessions. A second guess about-
Judge SOTOMAYOR. Maybe I would not have called it an abomina-
tion, but I was thinking more of the factual outcome in that case.
But no question that all I meant in the context of that case was
the facts of that particular case, which Congress did come very
shortly thereafter to change. So, obviously, my strong feelings were
reflected sufficiently that Congress — not because of me, obviously,
I doubt they knew who I was at the time and may not all know
who I am now — but it was because of the hardships that were cre-
ated in many situations that caused the safety valve provision to
be passed.
I do agree, however, that great respect both for the law and for
the process is terribly important, and as I underscored there, I do
what the law requires and I think that is the greatest respect I
could show for it.
Senator SESSIONS. It is important to follow the law, though, in
cases like this, had you not, it would have been reversed. But I
359
think that perhaps had you expressed your criticism with the skill
you have done today, it might be a little better conduct for a judge.
I just think that, as you know, when you set a standard of guide-
lines, everybody is not going to fit perfectly within it and maybe
you have a responsibility to help that defendant to understand
that, though it may be unfortunate and you personally would not
have given as much, that there is a rationale to this law.
Judge SOTOMAYOR. I have done that on numerous occasions. Sen-
ator, and there, it was very shortly at the time that I took the
bench and I believe that since then, I have always been very care-
ful, and I say it repeatedly at sentencing. When I am faced with
emotionally difficult situations for defendants and their families,
often, I get a lot of letters from heartbroken family members and
at sentencing, I explain to them that as much as I understand their
pain, that I have a greater obligation to society to follow the law
in the way that it is set forth.
Senator Sessions. One more thing. I noticed a New York Times
article that indicated that you had not applauded or not stood and
applauded when Justice Thomas appeared at the second circuit
conference. Are you aware of that?
Judge SoTOMAYOR. Well, I never did say that, sir. I took the fifth
amendment when the New York Times asked me that because of
the raging controversy at the time. I thought it made no sense for
a prospective nominee to enter that kind of political fray by any
statement, but I do not think I ever did, sir.
Senator Sessions. Well, that might explain it. The question in
the article was, when Justice Clarence Thomas was introduced at
the second circuit conference, the question of the reporter was,
were you among those who sat on her hands rather than giving
him a standing ovation, and you said, "I will take the Fifth."
Judge SOTOMAYOR. I explained to her clearly, as I do to you now,
I did that because I thought as a — at that point, I was a confirmed
nominee, and as a judge, that I should never be making political
statements to the press or anyone else and I thought that was a
politically charged question.
Senator SESSIONS. Let me just ask you, did you see fit to stand
and applaud when he
Judge SOTOMAYOR. He was my Supreme Court Justice of my cir-
cuit. I stood up.
Senator SESSIONS. Thank you very much, Mr. Chairman.
Senator DeWine. Senator Ashcroft.
QUESTIONING BY SENATOR ASHCROFT
Senator AsHCROFT. Thank you, Mr. Chairman. I appreciate the
opportunity.
Mr. Oilman, I was interested in Senator Sessions' question about
the Boy Scouts, who for a time were deprived of an opportunity to
conduct a ceremony at the zoo because their organization espoused
a belief in a supreme being. I was more interested in your re-
sponse. You seemed to express some uncertainty about whether or
not that should be a disabling characteristic of an organization. Do
you think that organizations or groups of people that express a be-
lief in a supreme being should be subject to differential access to
public facilities or should have fewer rights than others?
360
Mr. Oilman. Oh, absolutely not. No. I think I just expressed that
I was not familiar with that situation, Senator. No. I certainly
would be — frankly, sounded shock that that would be a basis for
denying the Boy Scouts of America access to a public facility.
Senator Ashcroft. I would hope that that would be the way you
would approach the first amendment. Thank you for clarifying
that. It was not something I knew anything about, but I have come
to trust my colleague from Alabama.
Senator SESSIONS. I am relying on Eagle Scout Mike Enzi, who
examined that recently.
Senator AsHCROFT. Judge Sotomayor, at one time, you were
asked to rule on a case of a prisoner who was removed from his
food service job in prison because he was an open homosexual. The
plaintiff sued under the 1983 provisions, arguing that prison offi-
cials violated his constitutional rights by transferring him from the
food service job. Prison officials argue that he was reassigned from
his food service job to prevent disciplinary problems that could
arise from having open homosexuals prepare food.
You denied the motion for summary judgment on procedural
grounds, but you wrote that a person's sexual orientation, standing
alone, does not reasonably, rationally, or self-evidently implicate
mess hall security concerns. You ruled that prison officials did not
present evidence that having homosexuals prepare food was a real
threat.
I wonder, as a Federal judge, how much difference
Judge Sotomayor. Sir, may I just interrupt one moment, and I
apologize greatly. It was not a motion for summary judgment, it
was a motion to dismiss, which has a different standard. So I am
somewhat surprised when you say that I criticized them for not
producing evidence, because on a motion to dismiss, they do not
produce evidence. I have to take the prisoner's allegations on their
face. And I am sorry. I did not know if that affected the premise
of your question.
Senator AsHCROFT. I am going to find out here in a minute. I
guess what I really want to know is, what level of deference does
a Federal judge owe to prison officials when trying to figure out
what security risks there are in a prison?
Judge Sotomayor. Enormous. It is a rational basis, which means
any government interest, as long as there is a reasoned, rational
basis for it and it is not arbitrary and capricious, the prison offi-
cials can do what they like.
In that particular case, sir, as I said, it was a motion under
12(b)(6)— I believe it is 12(b)(6). It could have been 12(b) (6) or (5).
But under either, you take the plaintiff, in this case, the prisoner's
facts as stated. You do not in any way pay attention to what the
defendants are saying. You take just the pleadings, and the plead-
ings in that case alleged that there was — the plaintiff claimed that
there were no security threats against overt homosexuals whatso-
ever, that he was not aware of any threats, none had been directed
in prison.
The reason I know this case so well. Senator, is I just tried it
last week and it turned out the jury found in favor of the prison
guards because there was one fact there that was slightly different.
The prison claimed that it never removed him from the food line.
361
That was a factual dispute between them. They say that they
asked him to leave and that he consented to leave because of the
threats that had been made. And, in fact, the jury credited the
prison guards on that claim and held for the defendants.
Senator ASHCROFT. You say you just tried this case last week?
Judge SOTOMAYOR. Yes.
Senator AsHCROFT. Is this on a second appearance before you,
then? Is this the Holmes v. Artuse?
Judge SOTOMAYOR. Holmes v. Artuse.
Senator ASHCROFT. I had that as a 1995 case. Am I mistaken?
Judge SOTOMAYOR. It was. What happened, sir, in that case, is
if you notice my — because it was a motion to dismiss, I had invited
pro bono counsel to take on the case. They came on it later, I do
not remember exactly when, and we just got it to trial last week.
Senator ASHCROFT. What was the outcome of the case?
Judge SOTOMAYOR. As I said, the jury found for the defendants
on the initial question, which is that the prison had not removed
him without his consent, that he had, in fact, consented to the re-
moval. But those are issues of fact that a judge cannot decide on
paper, sir. Those are factual questions always for a jury. Did X or
Y happen?
Senator ASHCROFT. I think those are evidentiary questions.
Judge SOTOMAYOR. Exactly. Exactly.
Senator Ashcroft. I guess it is possible that a judge can decide
evidentiary questions in the absence of a jury, though.
Judge SOTOMAYOR. Well, in some circumstances.
Senator ASHCROFT. Do you believe that there is a constitutional
right to homosexual conduct by prisoners?
Judge SOTOMAYOR. No, sir; there is not. The case law is very
clear about that. The only constitutional right that homosexuals
have is the same constitutional right every citizen of the United
States has, which is not to have government action taken against
them arbitrarily and capriciously. The Supreme Court said that
last term in Evans v. Romer. But outside of that, that is a basic
constitutional right, not to them in particular, but to the world that
constitutes the United States.
Senator ASHCROFT. Do you think there should be one, a special
constitutional right?
Judge SOTOMAYOR. I do not think that we should be making con-
stitutional rights any greater than they exist right now. The Con-
stitution should be amended sparingly, sir, as it has been through-
out our history. It is something that should be done only after
much history and much thought.
Senator AsHCROFT. Do you agree with the amendments that have
been made to date?
Judge SOTOMAYOR. Yes, sir. It is a document that I live by.
Senator ASHCROFT. I agree with them and I think it was good
that they were amended, so I accept the process. So in your judg-
ment, you would not read additional rights into the Constitution,
like a right for homosexual conduct on the part of a prisoner?
Judge SOTOMAYOR. I cannot do it, sir. I cannot do it because it
is so contrary to what I am as a lawyer and as a judge. The Con-
stitution is what it is. We cannot read rights into them. They have
been created for us.
362
Senator ASHCROFT. Are there any rights that are not protected
by the Constitution that, as a matter of poHcy, you would hke to
see protected?
Judge SOTOMAYOR. I have not thought about that in a while, sir.
No.
Senator ASHCROFT. My time is not up.
Judge SOTOMAYOR. I think I answered.
Senator Ashcroft. In your opinion, do you think Congress has
the right constitutionally to restrict the jurisdiction of lower Fed-
eral courts?
Judge SOTOMAYOR. You know, I have not examined that question
in the longest time, but I cannot — I am not thinking — we were cre-
ated by legislation of Congress, so I would think that if Congress
created it. Congress can take it away. What you cannot do is take
away that which the Constitution would give the courts. I think
that was established in Marbury v. Madison. But absent that, not
looking at the question or studying it in depth, I cannot give a bet-
ter answer than that.
Senator ASHCROFT. I thank you, Chairman DeWine. Thank you.
Senator DeWine. Judge, one of the great burdens of being a Fed-
eral district court judge must be to deal with prisons. I have a little
familiarity with that. When I was Lieutenant Governor in Ohio,
one of my jobs was to oversee our prison system — so I have a great
deal of sympathy with judges who have to deal with the litigation,
and there is a tremendous amount of litigation.
I say that and preface it by way of an apology because I am going
to turn to one more prison question, if I could. I do not have a
name for this case, but I suspect you will recall it. The date I have
is 1994 and the issue was multicolored necklaces under the cloth-
ing of prisoners. Do you remember the
Judge SOTOMAYOR. Yes, I do.
Senator DeWine. So you remember the name of the case?
Judge SOTOMAYOR. It is my Campos case. It is better known as
the Santorea beads case, or at least colloquially known that way,
I should say.
Senator DeWine. My understanding is that there was a dispute
involving the wearing of these beads. Again, I am going to summa-
rize and you can correct me and then tell me a little bit about the
case. What I am trying to get at is how you reason as a judge.
My understanding is that prison officials argued that the beads
were gang symbols that provoked fights. Contrary to that, I assume
the argument is the religious freedom question. Do you want to
walk through for me how you balance that, and ultimately, do we
get back to what we were just talking about a minute ago, a factual
question?
Judge SOTOMAYOR. In that case, sir, yes, prison officials had
taken the position that the wearing of beads of colors were a sym-
bol of gang membership. The prisoners, in turn, had asked the pris-
on officials to permit them to wear the beads under their shirts as
opposed to visibly. So the question for me was, was it rational for
the Government not to permit that alternative when I was bal-
ancing a religious right against a security concern.
The Supreme Court in these cases has held that you must give
heightened deference to prison security concerns and other con-
363
cerns but that prisoners do not lose fundamental rights, like reli-
gion, in prison, and so that unlike the standard rational basis re-
view that is given — this is before the Religious Restoration Act,
Senator, it is not a part of the jurisprudence tied to that
Senator DeWine. I understand.
Judge SOTOMAYOR. The Court has said that it is a slightly dif-
ferent review in that context, that the context there is that you
must balance as a judge the security concerns with readily acces-
sible alternatives. There is no bright line rule, but there, unlike the
traditional rational basis test where you take as a presumption
that the Government is doing what it thinks is right, that is a jury
or a factfinder, you must weigh whether there are reasonable alter-
natives that could be just as effective.
My reasoning in that particular case, as the opinion stated, was
that, in essence, hiding the beads was a reasonable alternative be-
cause it could not show. I do not know if in the opinion, but I know
when I spoke to the prison officers later, I said to them, if it turns
out that they are finding ways to evade that, then, obviously, you
can take steps that are different. But until that was tried first, be-
cause it was a reasonable, inexpensive alternative and not terribly
costly, that I felt that that was consistent with Supreme Court
precedent on this area.
Senator DeWine. I appreciate your explanation. Let me move to
one final case, the 1993 Gonzalez case. Let me quote you in that
case. "We understand that you," referring to the defendant, "were
in part a victim of the economic necessities of our society, but un-
fortunately, there are laws that I must impose." Do you recall that
case at all?
Judge SOTOMAYOR. Not much, sir.
Senator DeWine. I understand that, because we sit up here and
we can look at all your cases and you have to try on the spot to
remember a case that may have occurred, in this case, 4 or 5 years
ago, so
Judge SOTOMAYOR. I have had two or three Gonzalez cases, and
I cannot, meaning not the same defendant, but different ones
Senator DeWine. Let me give you the additional facts, and if it
refreshes your memory, fine, and you can tell me about it. If it does
not, we will just move on.
My understanding is that Gonzalez had been convicted of con-
structively possessing at least 600 grams of cocaine. He exercised
dominion and control of an apartment in which the cocaine was
found. He also stated he knew someone else was supposed to pick
up the cocaine to sell it and distribute it to others. Do you recall
anything about that?
Judge SOTOMAYOR. No.
Senator DeWine. OK. That is fine.
Judge SOTOMAYOR. I am terribly embarrassed to say that that
fact situation is also extraordinarily common
Senator DeWine. And I can understand that. I appreciate it.
Thank you.
Any other questions from any members of the committee? Sen-
ator Sessions?
Senator SESSIONS. I would like to ask
Judge SOTOMAYOR. If you would like to — I am sorry. Senator.
364
Senator DeWine. No, go right ahead, Judge.
Judge SOTOMAYOR. If you have a question generally about some-
thing I might have said, perhaps I
Senator DeWine. I think it is difficult, frankly, if you do not re-
call. I think it would be unfair to you to ask you an3rthing further
about that, if you do not recall it.
Judge SOTOMAYOR. Thank you, sir.
Senator DeWine. Senator Sessions.
Senator SESSIONS. You mentioned that you appointed pro bono
counsel in this prison case?
Judge SOTOMAYOR. We do not appoint them, sir. There are no
funds to appoint counsel in civil cases, as you may know. What we
do is put the case on a pro bono list, which is made up of volunteer
lawyers, and the volunteer lawyers decide whether they want to
take the case or not. So if I used the word "appoint" the lawyer
there, what it means, in essence, is putting them on the list so that
they are eligible to get a lawyer from that volunteer list if a lawyer
chooses to take the case.
Senator Sessions. Those turn out to be often very expensive
processes. Sometimes it is easy for a judge to call in a lawyer and
then charge him to take a case — I am not saying you did, but I
have seen that befo'*e — but the State has the expense of going
through this whole process, which went on from 1995 until, I guess,
just last week. A lot of expense goes into that. I think we have got
to learn to do a better job.
Judge SOTOMAYOR. Senator, if I may add, I put people on a pro
bono list very, very rarely. I am on the pro se committee of our
court. I do it only when, generally, after some discovery has hap-
pened so I can take a look at what is there and determine whether
there is some substance to the claim, and not initially in all cases,
and where there may be a complex legal question.
For example, in that case and a few others, in that Holmes v.
Artuse, where I did that, the Supreme Court was just considering
an equal protection claim that I mentioned might elucidate this
area. In a case like that, where there is an unsettled legal question,
and you can define that by something where the circuits are split
or the Supreme Court is hearing an issue, then I will usually ask
for a lawyer because then the questions are so complex that one
needs some help in terms of making sure that you have thought
of all the arguments. You want the lawyers and not a pro se pris-
oner to brief them.
Senator Sessions. Thank you.
Senator DeWine. I want to thank both of you very much and
thank you for your patience. I would just again state that there
may be questions from members of the committee who were not
here today. They will be submitted to you in writing. On the other
hand, there may not be any written followup questions.
Also, I would invite you, if you want to elaborate on any answer
and want to submit an5rthing in writing to us, the committee would
be more than happy to receive that.
Judge SOTOMAYOR. Senator, may I take just half a second just
to introduce my mother again and my fiance?
Senator DeWine. I think that is very appropriate.
365
Judge SoTOMAYOR. My mother, Celina Sotomayor, is here, and
my fiance, Peter White, and respecting your time, I will not intro-
duce individually all of the wonderful supportive friends I have
here, other than my godson, who is a Boy Scout.
Senator DeWine. Let us have the godson stand up, then.
Judge Sotomayor. Tommy John Butler. He is the back standing
up.
Senator DeWine. He is standing up anyway. Thank you very
much.
Mr. Oilman. Thank you. Senator.
Judge Sotomayor. Thank you.
Senator DeWine. Thank you very much.
Let me just make kind of a personal comment. As the father of
eight kids, I have rarely seen children so quiet. We have a room
full of children here and I congratulate all of you for staying with
us.
I would ask our next panel to come up. We are going to take
about a 4- or 5-minute break, then ask you to come forward. We
are going to start this at 15 after, so we will give you a couple-min-
utes break. After the break, we are going to plow right on through.
Thank you very much.
[Recess.]
Senator DeWine. Let me thank all of you for coming today and
thank you also for your patience.
Let me just start from my left with you, Judge Siragusa. Judge,
is there anyone in the room you want to introduce? We are going
to go right down and do that to begin with because I do not want
you leaving here and getting home and realizing there is someone
who has not been introduced.
Judge Siragusa. Mr. Chairman, at the risk of correcting a U.S.
Senator, it was my wife, Lisa, who attended law school with Sen-
ator D'Amato's son, although I am sure of two things, that she is
very flattered by his comment and she will never let me forget it.
[Laughter.]
Judge Siragusa. My wife, Lisa, is here, and my in-laws, James
and Lucille Serio, and I thank them for coming. Thank you.
Senator DeWine. Thank you very much.
Mr. Marbley.
Mr. Marbley. Yes, Senator. I have been fortunate. I have had
some very good support throughout this process and I have some
law school classmates who were with me back in the old days at
Northwestern who came and I would like to have them acknowl-
edged for the record, if I may. One is Thomas Preston, who is with
the IRS, and then another friend of mine, Antoinette Cook Bush
was here. I do not know whether she left. She was a former staffer
and now partner at Skadin Arps. Then I have Ronald Sullivan,
who was like an understudy but he is a Harvard lawyer now, so
I cannot call him that anymore, and he is a Washington attorney
now, so thank you very much.
Senator DeWine. Very good.
Mr. Kimball.
Mr. Kimball. Thank you. Senator. I am grateful to have my wife,
Rachel, here. She is a nurse and I hope I do not need her medical
services during the hearing. Our six children and 16 grandchildren
366
are scattered across the country taking care of each other and
working.
Senator DeWine. Judge Gwin.
Judge GwiN. I am pleased to have my wife, Bonnie, and my sons,
Michael and John here. I would also introduce my sister, Mary Jo
Weis, and her husband, Ted Weis, and their sons, Robert and Ed-
ward, and also my mother, Carol. I have also some special friends
who have been helpful to me and these include John Lewis of the
Squires, Sanders firm and John Heider, who is the executive vice
president of B.F. Goodrich, and John Manos had been here, Judge
John Manos, but he may have stepped out. I thank them for their
help during this process.
Senator DeWine. Thank you.
Mr. Casey.
Mr. Casey. Mr. Chairman, I would like to introduce, I have my
sister here, Mrs. Carol Brunell. Unfortunately, my son, Richard Jr.,
was unable to be here today, but I do have v;ith me my nephew,
Christopher Brunell, and his daughter, Kelly, and my nephews,
Frank Casey, and Tom Casey.
Senator DeWine. Great.
Mr. Casey. I also have with me. Senator, some of my very dear-
est friends who have been so supportive to me from years back and
since I lost my eyesight. With me here today is Mr. Richard McCar-
thy, Mr. Otto Obermeyer, who the Senator identified as a former
U.S. attorney. Another friend was supposed to be here, Suzanne
Brown, and she, unfortunately, could not make it. But I also have
with us today several members of the National Federation of the
Blind and some other blind organizations. I am not sure all have
arrived, but I am very grateful for their support. Thank you, Sen-
ator.
QUESTIONING BY SENATOR DE WINE
Senator DeWine. Very good. Thank you all very much.
One of the privileges of having this gavel is you get to ask what-
ever questions you want
Mr. Casey. Excuse me. Senator. I am sorry. It would be remiss
and I could not go home. I have two of my partners here, Mr.
Thomas Suther and Mr. Robert Petersak and life would not be too
good when I got home if I did not mention them.
Senator DeWine. I appreciate that. I have had law partners my-
self.
Mr. Casey. Thanks so very much.
Senator DeWine. I appreciate that very much.
Let me just say to the nominees that the questions that we ask
are, frankly, difficult to frame because most of us who sit here and
who have the obligation to confirm or not confirm Presidential ap-
pointments have some very definite ideas about what we think a
judge should be. Those of us who have appeared before judges, es-
pecially have our ideas. But it is difficult sometimes to phrase
questions that can get at what we are really looking for.
Let me just be very candid with you and then I am going to
start, Judge, with you, if I could, and we will just go from my left
all the way down. We often talk about judicial temperament. I do
367
not particularly like the term because I do not even know what it
means, but I think we generally know what we are talking about.
One of the things that I am always concerned about and, frankly,
it is difficult asking somebody this question and getting an answer
that is going to tell you a whole lot — maybe I am just stating it so
that 2 years from now or 10 years from now, at some point, maybe
you will remember what some U.S. Senator said during the con-
firmation hearing.
One of the things that troubles me is that occasionally when
someone is either elected to the bench — but, frankly, maybe more
often when they are appointed to the bench and they have life ten-
ure— they become what I would call arrogant. They become out of
touch with the community. They fall out of touch with the people
whom they have dealt with before. I would just like for you to talk
a little bit in turn about any kind of judicial temperament.
Before I get into the substantive questions, let me ask you now
to stand and we will actually swear you in, which is the normal
procedure of the committee. Do you swear the testimony you shall
give in this hearing shall be the truth, the whole truth, and noth-
ing but the truth, so help you God?
Judge SiRAGUSA. I do.
Mr. Marbley. I do.
Mr. Kimball. I do.
Judge GwiN. I do.
Mr. Casey. I do.
Senator DeWine. Thank you. Judge.
TESTIMONY OF CHARLES J. SIRAGUSA, OF NEW YORK, TO BE
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW
YORK
Judge SiRAGUSA. Mr. Chairman, I think there are three basic
qualities that go into a good judicial temperament. The first is com-
mitment. I think that you have to be committed to be the very best
judge you can be. That involves a commitment to work hard, a
commitment to dem.and no more of the attorneys who appear in
front of you than you demand of yourself. It involves a commitment
to — a judgeship is not just a profession but really a way of life to
excel as best you can.
I think the next broad trait would be dedication. You have to be
dedicated to the oath that you take. I have been a trial judge and
you have to understand that the responsibility of a trial judge is
to resolve the cases and controversies that come in front of you and
not to think of yourself as a talisman to solve the social ills that
plague society.
The third, I think, is humility. I think you have to have an ap-
preciation that it is the position that is important and not the indi-
vidual. I have tried a lot of cases as a litigant. I have had inter-
action with a lot of judges following my election and I think there
is a danger that sometimes people get what I refer to as robe-itis,
that because you put on the robes, it does not make you a better
person and it is well to remember, and perhaps it is most impor-
tant that it is the position that is important and not the individual.
Thank you.
368
Senator DeWine. Certainly none of us have ever known anybody
in that position.
Mr. Marbley.
TESTIMONY OF ALGENON L. MARBLEY, OF OHIO, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO
Mr. Marbley. Certainly, one of the advantages of going second,
Mr. Chairman, is that you can adopt
Senator DeWine. Mr. Casey is given the last shot at this thing.
Now, he does not know we are going to start with him first next
time. [Laughter.]
Mr. Marbley [continuing]. The testimony of Judge Siragusa, but
I think that one of the key traits that a judge has to have is a com-
mitment to fairness. I think that a judge has to be fair to the liti-
gants who appear before him or her. I think that another key con-
sideration is the quality of being courteous. You have to be cour-
teous to the litigants, and I think that that will permeate your
courtroom. Once you establish that you are going to be courteous
and that civility will carry the day, the litigants who appear before
you will understand that they are to conform their behavior accord-
ingly, so we will not have the problem of noncivility in an other-
wise charged adversarial relationship.
I think that humility is perhaps one of the most single important
qualities because you have to realize that you have within your
hands often the ability to affect the course of events or alter peo-
ple's lives, and so you have to be humble with that type of respon-
sibility.
Finally, I think you have to be thoughtful. When someone has
posed the faith in you to allow you to sit in that position and to
be a neutral arbiter of cases and controversies, the least that you
could do is to be thoughtful in your deliberations.
I think all of those qualities, in addition to the qualities that
Judge Siragusa pointed out, make for a sound judicial tempera-
ment.
Senator DeWine. Mr. Kimball.
TESTIMONY OF DALE A. KIMBALL, OF UTAH, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF UTAH
Mr. Kimball. Thank you. Senator. I certainly agree with what
these two gentlemen have said. A judge must be fair, a judge must
be impartial, a judge must be patient, a judge must be well-pre-
pared and informed and render timely and thoughtful and well-ex-
plained decisions.
I believe the best example of judicial temperament I know is the
judge I hope to replace, Judge David Winter. One of the reasons
he is such a great judge is because he has always remembered, as
he says, what it is like on the other side of the bench, on the law-
yers' and the participants', the parties' side of the bench, and I
would hope to be as he is. Thank you.
Senator DeWine. Judge.
369
TESTIMONY OF JAMES S. GWIN, OF OHIO, TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge GwiN. Thank you. I think I would adopt just by reference
the comments made eariier, but I have also been impressed — it is
so important for judges and people in the judicial system to under-
stand that for most litigants, they come before a court one time in
their life, perhaps two or three times, and if those people have gone
away from the court believing that their concerns, their claims,
their defenses have been given just short shrift, I think that they
walk away with a diminished respect for our legal system.
So I think it is extremely important in every case that all the
participants, but especially the judge, give a concern for that and
treat people with respect and treat people with an open mind. So
those would be the qualities I would hope to bring to the bench for
the Northern District of Ohio.
Senator DeWine. Mr. Casey.
TESTIMONY OF RICHARD CONWAY CASEY, OF NEW YORK, TO
BE U.S. DISTRICT JXn)GE FOR THE SOUTHERN DISTRICT OF
NEW YORK
Mr. Casey. Senator, I love the profession of the law and I have
the greatest admiration for and affection for the Southern District
of New York. It is where I started and I am going to be fortunate
enough, if I am confirmed, to be with several colleagues that I
started out with.
But I think what has made me love being a trial lawyer is the
wonderful experiences before some great judges in that district.
There is nothing quite as pleasurable for a trial lawyer to try a
case before an intelligent judge who has compassion and under-
standing, at the same time understands his function and moves the
administration of justice along, but just as important, one who has
a sense of humor that we all need in life and I would hope to emu-
late some of those that I have had the pleasure of appearing before
over the years.
Senator DeWine. Thank you very much.
Let me turn to my second question. Mr. Casey, I will start with
you, if that is all right. If each one of you is confirmed, you will
be taking over a specific court with a docket and I would ask you
to maybe reflect — ^you have to have given it some thought — about
some of the things you want to do. What I am looking for is not
substance in the sense of how you decide cases, but I am looking
at more procedure — how you would run the court, what you have
observed in Federal courts or in other courts that work, what does
not work, what you like, what you do not like, how you would real-
ly run your court, because one of the things that litigants want is
a disposition of their case. They want the case resolved. So the
speed at which cases can be brought to trial, or can be resolved in
some way, is important.
So if you could just maybe comment on that, maybe reflect on the
use of support staff, reflect on the use of law clerks, reflect on the
use of arbitration or whatever the local rule might allow. That is
the type of response that I am looking for. What have you thought
about that? What is important to you, or what is not important?
370
Mr. Casey. Well, Senator, I think one thing, at least in the
course of my experience, I have spent a substantial amount of time
in private practice, at least, involved in major securities litigation
and I would think that a major step to handle the administration
of the court, if I were to be confirmed, is to get involved early, espe-
cially in large cases, to get a handle on what the issues of the case
are before things can get out of hand in order that you can move
them along.
I have served on committees involving discovery abuse and I
think much of that can be prevented if a judge is to get in early,
get his or her hands on the case, assist the lawyers in setting the
discovery schedule, and move the case along and always, of course,
with a mind that an early trial date frequently helps things to
move along, as well.
As far as the staff, certainly, it is a team effort with the law
clerks and everyone involved. I would certainly keep a keen eye to
things that various judges I know in the Southern District have ex-
perimented with as to how they move their dockets along and I
would certainly try to inquire of them and utilize all their experi-
ence, as well.
Senator DeWine. Judge Gwin.
Judge GwiN. I think it is so terribly important that cases move
along to an expeditious conclusion. After conversations with innu-
merable people who have been involved in litigation, I find that one
of their biggest concerns is how destructive and debilitating it is to
have litigation pending. That is true for individuals. It is perhaps
equally or more true for businesses. It is just to have the uncer-
tainty of a litigation pending is very damaging.
So I think it is extremely important for litigation to move along
quickly. I think the ways we do that are well known. It requires
an early intervention by the judge in terms of setting reasonable
but firm dates for preparation of motions and trials. It requires a
judge to stick to those dates, it requires a judge to quickly super-
vise discovery disputes, and it requires a judge to quickly rule and
supervise dispositive motions.
The things that it takes to move a case along, I think, are well
known, but it does require the hands-on effort of a judge, and those
are things I would like to have an opportunity to give to the North-
ern District.
Finally, I would comment, I am a big believer in alternative dis-
pute resolution and I find that in many cases, it can help narrow
the differences between the parties, even if it is not able to bring
about a conclusion to the matter. So that would be another area
where I would give emphasis.
Mr. Kimball. I agree with Judge Gwin, that the litigation proc-
ess can be very disruptive in people's lives and it is very important
that it move along. I would also say it can be very, very expensive
and if some of that expense can be saved by good management by
judges, then that ought to be done.
I have been an arbitrator. I have been a mediator. I have rep-
resented clients in front of arbitrators and in front of mediators
and I would encourage the voluntary, but not mandatory, use of
those ADR processes.
371
I believe in the early intervention and management that has
been discussed. Perhaps there is no more important case manage-
ment technique than timely and well-explained decisions, and I
would hope to be able to render those. I believe it is important to
utilize the magistrate judges and I consider myself a good manager
and would utilize the various management techniques for moving
things along and keeping them orderly that I have utilized in my
la^v practice.
Senator DeWine. Mr. Marbley.
Mr. Marbley. Thank you, Mr. Chairman.
Perhaps the single most important feature is the early entry of
the judge into the fray. That is important because the judge can
counsel the litigants on the expense of litigation, perhaps reach an
early resolution of the matter through settlement or otherwise.
Judges tend to be able to help the parties close the gap and resolve
their differences.
Also, the judge, I think, should counsel the litigants about the
advantages of alternative dispute resolution, and I know that in
our district, there are options in that respect, and so that would be
another method to move the cases along.
Third, I think that it will be important to resolve motions that
are pending, particularly discovery motions or dispositive motions.
Certainly, magistrate judges can be used for that and those mag-
istrate judges who perhaps have their own backlog and cannot do
it, you certainly can rely on your law clerks to get much of that
research done to resolve pending motions.
Finally, and perhaps most important, is to establish a reputation
for setting realistic discovery deadlines and trial dates and sticking
to them. A judge who has a reputation for having firm trial dates
is a judge who moves his docket along with a great deal of dis-
patch, and I think that once the litigants in your district realize
that you are going to adhere to those trial dates and that they are
firm, then you will see a lot more motion in terms of getting mat-
ters resolved.
Senator DeWine. Judge.
Judge Siragusa. As I listen to my colleagues, the old maxim of
justice delayed is justice denied comes to mind, and I think it is
true, and I think the ultimate responsibility is with the presiding
judge to manage his caseload. Certainly, the techniques that have
been suggested are good ones. I think it starts with a judge who
actively is involved in his case, who utilizes scheduling orders, and
I agree to set realistic demands and not grant adjournments unless
there is a legitimate reason. Certainly in Federal court, the use of
magistrate judges to deal with both nondispositive and dispositive
motions.
I agree that it is important for a judge to establish a reputation
that the judge is prepared and willing to do the work, and I think
you do that by rendering prompt decisions. I found that attorneys
can live with a decision that goes against them because then they
can proceed to the next step. What they cannot live with is deci-
sions that pend for months upon end.
Certainly, the use of mediation or alternative methods of dispute
resolution is something that I think can be utilized to deal with our
backlog. Thank you.
372
Senator DeWine. Judge, let me continue with you, if I could.
Judge SiRAGUSA. Yes.
Senator DeWine. You, in April of this year, had a writing that
had to do with cameras in the courtroom.. Do you want to tell us
about that?
Judge SiRAGUSA. Sure.
Senator DeWine. Any conclusions you reached, or
Judge SiRAGUSA. I was careful not to give any conclusion to the
presentation, but basically, I was asked as part of the continuing
education program to present both the pros and the cons on cam-
eras in the courtroom and I made that presentation. I would be
glad to comment on it.
I should preface it by saying, in June of this year, the New York
experiment on cameras in the courtroom ceased. There is no legis-
lation now. So since I am a sitting judge, I will speak to what my
experience has been on cameras in the courtroom.
In New York, the purpose of promulgating rules on cameras in
the courtroom was a recognition by the legislature that it was im-
portant to enhance the citizens' understanding of our criminal jus-
tice system and thereby promote both confidence in the judiciary
and also to promote the fair administration of justice, and that is
why these rules for cameras in the courtroom were initially enacted
back in 1987.
In my experience in New York, both in trying cases that were
some televised live and in presiding on cases, the goals of the ex-
periment have been approached, but I think it primarily de-
pends
Senator DeWine. The goals have been-
Judge SiRAGUSA. Approached. I am not going to — quote, ap-
proached. I am not going to say
Senator DeWine. What does that mean?
Judge SiRAGUSA. I think it would be naive to say that we have
achieved exactly what the legislature intended, but I think in New
York they have been approached, but it largely falls because of
three reasons, the responsibility of the media, the responsibility of
the attorneys, and the responsibility, of course, of the judge.
In my experience in Monroe County, the media has been respon-
sible about not being intrusive in the positioning of cameras and
following the dictates of the judge. The litigants have not engaged
in histrionics. There has not been theatrics. They have not been
playing to the cameras. And I hope myself, as a judge, and cer-
tainly the judges who have presided on cases that I have tried that
have been publicized, have kept control of their courtroom and
were consistent in the demeanor that was established in the court-
room, whether the presentation was televised or not.
Senator DeWine. Any unintended consequences, based on either
your personal experience or what you found out?
Judge SiRAGUSA. No. I think, to share an aside, I mean, and why
I said the goal was approached, when I was in the D.A.'s office, I
tried a case that was televised live for 12 weeks and after the case
was over, more than one citizen came up and said they were im-
pressed by the professionalism both of the prosecutor, the defense
attorneys, and the judges, and I think that speaks toward the pur-
pose of approaching the goal.
373
Senator DeWine. Mr. Kimball, let me refer to something that
you wrote a few years ago, I believe it is entitled "The Constitu-
tional Convention, Its Nature and Powers, and the Amending Pro-
cedure," Utah Law Review. It has been a few years ago, I guess.
Mr. Kimball. A lot of years ago.
Senator DeWine. I guess maybe the lesson that people take
away from these hearings is do not ever write an3rthing so you will
not be asked questions — but I hope that is not the lesson.
Considering the job that you have been nominated for, I wonder
what you learned from pertbrming research for that law review ar-
ticle that might be of any relevance to your service on the Federal
bench.
Mr. Kimball. As I recall that law review article, it was basically
about State constitutions and the amending process and problems
that arose and how conventions were called and what powers they
had and so on.
I think I gained a greater respect for both what constitutions say
and what the people say through their whatever it be, whether it
is the writing of the Constitution or the writing of legislation. That
has to be given great deference by a judge. That is one thing I
would have learned through writing that article.
Senator DeWine. Let me ask each one of you, and we will start
with Mr. Casey — ^you had the opportunity — I think you were all in
the room when the circuit court nominees were here — to hear a se-
ries of questions in regard to a problem that Federal court judges
have to deal with — and that is State prison systems. I wonder if,
based on what you heard today, you have any additional comments
about that, about your philosophy, and how you approach that type
of a case.
Please understand, I am not asking you to comment about any
particular case. I am not asking you, obviously, to comment about
anything we already have discussed. But I would just like to know
your approach in general. You all had the opportunity to hear the
two judges talk earlier and I wonder if you have anything to add
to that. Mr. Casey.
Mr. Casey. Well, Senator, I was very interested by the comments
of the two candidates. It is a problem which, I think, many mem-
bers of the court in the Southern District are concerned about.
However, it is a responsibility of the judge, regardless of who the
litigants are, to give them a fair and reasonable hearing, just as
they would to anyone else.
Senator DeWine. Judge Gwin.
Judge Gwin. I would generally think that in all cases, there
ought to be differentiated management, and so I think it is impor-
tant for the judge on a case to take an early perspective on the
case, the claims made, and put it on a track that leads to a final
disposition commensurate with the claims made and the defense as
a surrogate.
I use that as background to say that I think it is important for
judges to separate the wheat from the chaff in terms of this type
of litigation and others and to set these type of cases on a path
where they come to final disposition fairly, but not running a case
that should be resolved quickly through a long history of litigation
before a final resolution is reached.
45-964 98 - n
374
So I would comment just generally, I think that is important in
all civil litigation and I think it applies equally to the prison litiga-
tion. It applies similarly to habeas corpus litigation.
Senator DeWine. The prison cases are, to some extent, unique in
the sense that we have had experience with special masters with
whom these cases go on and on for years. I know that is not totally
unique to prisons. It happens in other areas, as well. It might hap-
pen in a school district. But some of these cases go on and on and
on. That is something that I think I have some sensitivity to be-
cause of the previous position I held and some of the problems that
I saw. I know it is very difficult to comment in general about that.
Mr. Kimball.
Mr. Kimball. I agree with what these two gentlemen on my left
have said, but I would also say that it seems to me that it would
be a very unusual and unique set of circumstances that would re-
quire or even allow a judge to really get into the management busi-
ness, which I think is partly what you are talking about. I do not
really see that as part of the job description.
Senator DeWine. Mr. Marbley.
Mr. Marbley. I think that I can answer your question in two re-
spects. First, these matters have to be dealt with expeditiously be-
cause they are administrative matters and an early resolution is
important to everyone involved, the inmates as well as the prison
officials.
Second, and perhaps more importantly, you have to subject them
to the same type of analysis that you would most other cases. You
start with whatever existing precedent is and then as far as the
issues that were discussed here today, it appears that as long as
there are no suspect classifications involved, you use a rational re-
lationship test, and in doing so, you give substantial deference to
officials who are enacting a particular program or whatever the
issue may be before the court.
So as long as you take that sort of analytical approach that we,
as lawyers, are trained to do and abide by the doctrine of stare de-
cisis, as we as article III judges are obligated to do, I think that
you can pretty much dispose of that litigation expeditiously and
fairly.
Senator DeWine. Judge.
Judge SiRAGUSA. Again, I do not know that I will add anything
new, but I do believe that deference should be given to administra-
tive decisions. Obviously, if there is a rational basis for an adminis-
trative decision affecting an inmate, it should be upheld. If cases
get to the court system, then I think it is the responsibility of the
judge, where possible, to separate the frivolous lawsuits out and to
deal with them expeditiously.
Senator DeWine. Let me thank each one of you for your presence
and for your patience today. I will again state that the record will
remain open and you may get additional questions. If any of you
want to supplement any of your answers, you are more than wel-
come to do that by contacting the committee staff and you can do
that in writing.
Again, I appreciate your participation and appreciate the pa-
tience of the members of your families, particularly the young
members of your families.
375
Mr. Casey. Senator.
Judge SiRAGUSA. Thank you very much.
Mr. Marbley. Thank you very much.
Mr. Kimball. Thank you very much.
Judge GwiN. Thank you very much.
Mr. Casey. Senator.
Senator DeWine. Yes.
Mr. Casey. Could I just, because I have to ride home with them
on the plane, ask the chair to recognize Mr. and Mrs. Doyle, who
came with me, too, because that would be a long ride home.
Senator DeWine. It would be. Thank you, Mr. Casey, very much.
Mr. Casey. Thank you, Senator.
Senator DeWine. The committee is adjourned.
[Whereupon, at 4:48 p.m., the committee was adjourned.]
[Submissions for the record follow:]
376
SUBMISSIONS FOR THE RECORD
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full neune (include any former names used) .
Ronald Lee Gilman
2. Address: List current place of residence and office
address (es) .
Office;
Farris, Mathews, Gilman, Branan & Hellen, P.L.C.
One Commerce Square, Suite 2 000
Memphis, Tennessee 38103
Home;
Memphis, Tennessee
Date and place of birth.
October 16, 1942, in Memphis, Tennessee
4. Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and
business address(es).
Married to Betsy Dunn Gilman. Former preschool director.
Currently a community volunteer.
Education; List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Massachusetts Institute of Technology
1960-1964
S.B. degree awarded in June of 1964
Harvard Law School
1964-1967
J.D. degree awarded in June of 1967
377
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.
Paid Employment
1967 - present!
Farris, Mathews, Gilman, Branan &
Hellen, P.L.C.
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
Associate 1967 - 1969;
Partner since 1969
1980 - Present;
University of Memphis School of Law
Memphis, Tennessee 38152
Adjunct professor of Trial Advocacy
1988 - Present:
American Arbitration Association
211 Seventh Avenue North, Suite 300
Nashville, Tennessee 37219
Arbitrator and Mediator
1993 - Present:
National Association of Securities
Dealers
10 S. LaSalle Street, 20th Floor
Chicago, Illinois 60603
Arbitrator and Mediator
1994 - Present:
Private Adjudication Center
8000 Weston Parkway. Suite 330
Cary, North Carolina 27513
Dalkon Shield Referee
-2-
378
Unpaid Activities
1967 - Present: Memphis Bar Association (see 9 below)
1967 - Present: Tennessee Bar Assn. (see 9 below)
1967 - Present: American Bar Assn. (see 9 below)
1995 - Present: Association of Attorney-Mediators
(see 9 below)
1991 - Present: Commercial Law Affiliates
(see 9 below)
1993 - Present: Boy Scouts of America, Chickasaw
Council (Executive Board)
1979 - Present: Society of Memphis Magicians
(President 1986)
1988 - 1995: Capital Case Resource Center
of Tennessee (Board member)
1984 - 1987: Memphis Jewish Home (Board member)
1979 - 1987: Tennessee Court of the Judiciary
(Member of the Court, serving
without compensation. See
14 below for an explanation
of the Court's function.)
1968 - 1973: Senior Citizens Services
(Board member & Treasurer)
1968 - 1973: Memphis Junior Chamber of Commerce
(Parliamentarian - Legal
Counsel 1971)
I have also sat at various times throughout- the years as
a special judge in the Shelby County Circuit Court and
the Shelby County Probate Court at the request of several
regular judges during their absences from the bench.
Such service was without compensation.
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
-3-
379
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society meniberships that
you believe would be of interest to the Committee.
Eagle Scout Award (1958)
William L. Stewart, Jr. Award for "Outstanding
Contributions to Extracurricular Life at M.I.T."
(1964)
Cum Laude graduate of Harvard Law School (1967)
Sam A. Myar, Jr. Memorial Award for "Outstanding Service
to the Legal Profession and the Community" (1981)
Best Lawyers in America (Woodward/White)
(Listed in categories of business litigation,
corporate law, and estate planning)
Who's Who in American Law (Marquis)
Who's Who in America (Marquis)
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.
Memphis Bar Association
President (1987)
President, Young Lawyers Division (1974) ^
Tennessee Bar Association
President (1990-1991)
Speaker, House of Delegates (1985-1987)
President, Young Lawyers Conference (1978-1979)
American Bar Association
Member, House of Delegates (1990-Present)
American Law Institute
American Bar Foundation
American Judicature Society
American Arbitration Association
Tennessee Bar Foundation
Memphis Bar Foundation
-4-
380
Association of Attorney Mediators (West Tennessee Chapter
Vice President, 1996-Present)
American College of Trust and Estate Counsel
Life member, Sixth Circuit Judicial Conference
Chair, Bankruptcy Merit Selection Panel for the
Western District of Tennessee (1992-1993)
Member, University of Memphis Law Dean Search Committee
(1991-1993)
Member, Federal Court Local Rules Revision Committee
(1989-1992)
Commercial Law Affiliates
Board of Directors (1991 - 1993)
Lawyers Journal Club of Memphis (This unincorporated
educational organization has no bylaws.)
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 Mensa, Ltd.
B'nai B'rith
Boys Scouts of America, Chickasaw Council
Economic Club of Memphis (A copy of the Bylaws of this
organization is attached to this Questionnaire as
Exhibit 1.)
Estate Planning Council of Memphis (A copy of the
Bylaws of this organization is attached to this
Questionnaire as Exhibit 2.)
Kiwanis Club of Memphis (A copy of the Constitution and
Bylaws of this organization is attached to this
Questionnaire as Exhibit 3.)
International Brotherhood of Magicians
Society of Memphis Magicians
I am not aware that any of the above organizations are
active in lobbying before public bodies, although the Boy
Scouts and B'nai B'rith may occasionally do so.
-5-
381
11. Court Admission: List all cour^ s 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
spe<.ial admission to practice.
Shelby County Chancery Court 1967
Shelby County Circuit Court 1967
Shelby County General Sessions Court 1967
Shelby County Probate Court 1967
Shelby County Criminal Court 1967
Tennessee Court of Appeals 1967
Tennessee Supreme Court 1967
Unites States District Court
for the Western District of Tennessee 1967
United States Tax Court 1980
United States Cou. t of Appeals
for the Sixth Circuit 1973
United States Supreme Court 1971
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.
BOOK
Tennessee Corporations. Lawyers Cooperative Pub. Co.
(1980; supplemented annually through 1994)
382
ARTICLES IN LEGAL PERIODICALS
"The Extension of the Privilege to Libel Without
Actual Malice," 3 Harvard Legal Commentary 169 (1966)
"Medical Expert Testimony in Tennessee," 34 Tennessee
Law Review 572 (1967)
"Non-Tax Aspacts of Estate Planning," 2 Memphis State
University Law Review 41 (1971)
"Annotated By-Laws for a Tennessee Corporation,"
Tennessee Bar Journal (May, 1975)
"Agreements for Buying and Selling a Business,"
The Practical Lawyer (Jan., 1977)
"Saving for College with a Clifford Trust,"
The Practical Lawyer (June, 1979)
"The Holographic Codicil," Tennessee Bar Journal
(August, 1982)
"Dishonesty Alone Dov^.s Not Deck a Fidelity Insurer,"
Insurance Counsel Journal (October, 1984)
"Tangible Evidence in Tennessee," Tennessee Bar Journal
(May/June, 1986)
"Planning for Disability," The Practical Lawyer
(March, 1989)
"The Shifting Focus of Estate Planning from Death
to Disability," Tennessee Bar Journal (May/June, 1989)
"Pro Bono & You," Tennessee Bar Journal
(March/April, 1993)
"Mediation: Prime ADR Tool of the '90s," Tennessee Bar
Journal (March/April, 1994)
"Resolving Commercial Cases through Alternative Dispute
Resolution," 26 University of Memphis Law Review 1121
(Spring, 1996)
OTHER ARTICLES
President's Column in Memphis and Shelby County
Bar Forum during my year as Memphis Bar Association
President in 1987 (Issued quarterly)
-7-
383
President's Column in The Bar Flyer (name changed in 1987
to The Bar Essentials) during my year as President of
the Memphis Bar Association
Letter to the Editor written as President of the
Memphis Bar Association, replying to an editorial
titled "Only Lawyers Lose." (Published in the
Memphis Commercial Appeal on December 27, 1987)
President's Column in the Tennessee Bar Journal and
Across the Bar during my year as President of the
Tennessee Bar Association in 1990-1991.
Travel report to Singapore, published in the Memphis
Business Journal on October 9, 1989.
SPEECHES
I have made no speeches on issues involving
constitutional law or legal policy.
CONTINUING LEGAL EDUCATION PROGRAMS
I have made numerous talks over the last 28 years at
various Bar Association continuing legal education
programs in the areas of estate planning, business
organizations, trial practice, and mediation. Many of
these programs required the preparation of handout
materials. I have not made a practice of saving these
materials. Copies of such handouts, to the extent
available in the files of the Memphis Bar Association and
the Tennessee Bar Association (the two organizations that
have sponsored almost all of the talks I have given) ,
have been supplied.
Health: What is the present state of your health? List
the date of your last physical examination.
Excellent. Last general physical exam was on May 5,
1997.
384
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.
Tennessee Court of the Judiciary, 1979-1987. I was
appointed as a member of the Court by the Tennessee Bar
Association. The Court has jurisdiction over
disciplinary complaints against state court judges.
During my time on the Court, it met semi-annually to
handle vari<5us disciplinary complaints, as well as
adjudicated several cases against judges where no
voluntary settlement could be reached.
I have also sat on various occasions as a special judge
in the Shelby County Circuit Court and the Shelby County
Probate Court at the request of several regular judges
during their absences from the bench.
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.
I wrote no opinions as a member of the Court of the
Judiciary. My only written opinion during my service as
a special judge was in the Circuit Court case of Rita
Hahn, et al. v. John Freeman, et al.. Case No. 82401
(Opinion dated November 30, 1981). The Tennessee Court
of Appeals unanimously affirmed my Opinion on
November 22, 1982. Copies of both my Opinion and the
Opinion of the Tennessee Court of Appeals are attached as
Exhibit 4 to the full sets of this Questionnaire.
16. Public Officer State (chronologically) any public
offices you have held, other than judicial offices,
including tho terms of service and whether such positions
were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
None
-9-
385
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;
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 which you have been connected and the
nature of your connection with each.
1967 - present: Farris, Mathews, Gilman, Branan &
Hellen, P.L.C.
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
Associate 1967-1969;
Partner since 1969
1979 - 1987: Tennessee Court of the Judiciary
100 Supreme Court Building
Nashville, Tennessee 37219
Judge appointed by the Tennessee Bar
Association
1980 - Present: University of Memphis School of Law
Memphis, Tennessee 38152
Adjunct professor of Trial Advocacy
1988 - Present: American Arbitration Association
211 Seventh Avenue North, Suite 300
Nashville, Tennessee 37219
Arbitrator and Mediator
-10-
386
1993 - Present: National Association of Securities
Dealers
10 S. LaSalle Street, 20th Floor
Chicago, Illinois 60603
Arbitrator and Mediator
1994 - Present: Private Adjudication Center
8000 Weston Parkway. Suite 330
Cary, North Carolina 27513
Dalkon Shield Referee
b. 1. What has been the general character of your
law practice, dividing it into periods with
do:tes if its character has changed over the
years?
Early in my legal career (1967-1973), I represented
indigent defendants in the United States District
Court for the Western District of Tennessee and
engaged in a very general practice. Later (1974-
1984) I began to concentrate in the areas of estate
planning, business formation, and commercial
litigation. Since 1985, my primary emphasis has
been in the areas of commercial litigation,
arbitration, and mediation.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
My typical clients are business corporations, an
insurance company, a bank, other lawyers, and
individuals with moderate to large estates.
My areas of concentration are the following:
Business Litigation. Much of my practice has been
in the U.S. District Court and the Shelby County
Chancery Court representing litigants as both
plaintiffs and defendants in cases dealing with
contractual, statutory, or constitutional disputes.
Such cases have included issues dealing with
fidelity bonds, commodity contracts, securities
laws, bank regulations, statutory ambiguities, and
alleged constitutional violations. Many of these
cases have required extensive document production
and numerous depositions. My longest jury trial,
-11-
387
for example, lasted six and one-half weeks in the
U.S. District Court and involved over 40 pretrial
depositions, many witnesses, massive exhibit books,
and thousands of pages of documents. The case
arose from the failure of the Butcher banking
system, and was settled near the end of the trial
with a recovery to my client of over one million
dollars.
Representation of Other Lawyers. I am currently
defending various local attorneys in four separate
cases, with the issues ranging from legal
malpractice to statutory violations to contract
disputes.
Estate Planning. I have drafted hundreds of wills,
trusts, durable powers of attorney, and living
wills over the past 29 years for clients with
moderate to large estates. These instruments often
incorporate the use of the unlimited marital
deduction and credit shelter trusts to minimize the
impact of the federal estate tax on the individuals
and their families.
Mediation and Arbitration. I am currently
certified as a trained mediator by both the United
States District Court for the Western District of
Tennessee and the Tennessee Supreme Court. I am
also a member of the arbitration panels for the
American Arbitration Association, the National
Association of Securities Dealers, and the Private
Adjudication Center associated with Duke
University. I have served as a mediator in 38
cases and as an arbitrator in 15 cases within the
last few years. The cases have included claims of
personal injury, wrongful death, statutory
violations, property damage and distributions,
medical and legal malpractice, contract disputes,
and business dissolutions.
1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearance in court varied, describe
each such variance, giving the dates.
I appear in court occasionally as needed for the
various cases I am handling. My appearances in
court were more frequent during my first 20 years
of practice. In the last 10 years, I have made
fewer appearances in court, but the cases I have
handled have tended to be larger and more complex.
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I have also become increasingly involved in
arbitration and mediation, having served as an
arbitrator in 15 cases and as a mediator in 38
cases within the last few years.
2. What percentage of these appearances was in:
(a) federal courts;
50%
(b) state courts of record;
35%
(c) other courts.
15%
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.
I have tried to judgment or verdict in courts of
record 37 cases. I have also handled 24 appeals in
the federal and state courts. I served as either
sole or chief counsel in all of these cases.
5. What percentage of these trials was:
(a) jury;
25%
(b) non-jury.
75%
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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 the principal counsel
for each of the other parties.
FEDERAL CASES
1. Gau Shan Company, Ltd. v. Bankers Trust Company &
The Julien Company, United States District Court
for the Western District of Tennessee, Civil Action
No. 90-2122; 956 F.2d 1349 (6th Cir. 1992)
This case involved a $20 million dispute between
Gau Shan (a Hong Kong cotton merchant) , The Julien
Company (a bankrupt Memphis cotton merchant) , and
Bankers Trust Company (a major New York bank) . I
represented Gau Shan as lead counsel, both
presenting all the proof in the trial court and
arguing the case on appeal.
Gau Shan filed suit in the United States District
Court for the Western District of Tennessee in
February of 1990 to enjoin Bankers Trust Company
(BTC) from suing in Hong Kong for the collection of
a $20 million promissory note signed by Gau Shan
for cotton that was never delivered due to the
bankruptcy of The Julien Company (TJC) . After a
three day injunction hearing before U.S. District
Judge Robert M. McRae Jr. in May of 1990, the
District Court enjoined BTC from filing suit in
Hong Kong on a finding of fraudulent
misrepresentation by the bank relating to the
signing of the note. The whole issue of "foreign
anti-suit injunctions" and "international comity"
was decided by the Sixth Circuit Court of Appeals
on February 24, 1992.
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390
The Sixth Circuit reversed Judge McRae and remanded
the case back to the District Court for trial. The
case was then mediated by U.S. District Judge Julia
S. Gibbons, resulting in a partial settlement with
BTC. The remainder of the claims between Gau Shan
and TJC was then arbitrated for three days in
February of 1993 before a panel of distinguished
neutrals drawn from a list prepared by the Center
for Public Resources.
BTC was represented by:
Lee L. Piovarcy
22 North Front Street
Memphis, Tennessee 38103
(901) 522-9000
TJC was represented by:
David J. Harris
130 Court Avenue
Memphis, Tennessee 38103
(901) 524-5120
Assisting me within my own firm was:
Rebecca P. Tattle
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
2. Charles D. Winston v. Federal Express Corp., United
States District Court for the Western District of
Tennessee; 853 F.2d 455 (6th Cir. 1988)
I was the sole attorney for the plaintiff Winston
in both the trial court and on appeal, handling all
aspects of the case. The Complaint for a
Declaratory Judgment was filed on May 28, 1986,
seeking to recover $176,570 in profits from the
plaintiff's sale of his Federal Express stock that
Federal Express impounded following his sale of the
same on March 26, 1986. The issue in the case was
whether the District Court erred in holding that
the plcintiff was an officer of Federal Express
within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 when he purchased
8,298 shares of its stock on September 30, 1985.
U.S. District Judge Julia S. Gibbons granted
summary judgment in favor of Federal Express on
April 28, 1987, although she acknowledged that "the
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question is an extremely close one ..." The Sixth
Circuit Court of Appeals affirmed the ruling of the
District Court.
The case was significant in that it involved the
proper interpretation of the "short swing profit"
prohibition of Section 16(b) of the Securities
Exchange Act in light of the facts presented.
Federal Express was represented by:
Veronica F. Coleman
(currently the United States Attorney for the
Western District of Tennessee)
800 Federal Building
Memphis, Tennessee 38103
(901) 544-4231
3. Interstate Brands Corp. v. Hartford Accident &
Indemnity Co., United States District Court for the
Western District of Tennessee; Sixth Circuit Court
of Appeals, No. 82-5660 (1984) (noted at 729 F.2d
1461 as an unpublished opinion)
I was the sole attorney for the defendant Hartford
in both the trial court and on appeal, handling all
aspects of the case. The Complaint sought recovery
on a fidelity bond claim for $223,716 plus a bad
faith penalty against Hartford. The case was filed
on March 27, 1981. A jury verdict for Hartford was
rendered on September 13, 1982, and the verdict was
affirmed by the Sixth Circuit Court of Appeals on
February 3, 1984. U.S. District Judge Odell Horton
presided over the trial. The case was significant
in recognizing the subtle difference between
fidelity insurance and surety bonds where the
plaintiff had previously obtained state court
judgments against the dishonest employees.
The plaintiff was represented by:
Patrick M. Ardis
6055 Primacy Parkway, Suite 360
Memphis, Tennessee 38119
(901) 763-3336
and
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Glen G. Reid, Jr.
6075 Poplar Avenue, Suite 650
Memphis, Tennessee 38119
(901) 537-1000
4. Gilman v. FDIC, United States District Court for
the Wes-tern District of Tennessee; 660 F.2d 688
(6th Cir. 1981)
This lawsuit, filed in 1976, alleged the violation
of Regulation U margin requirements under the
Securities Exchange Act of 1934. Seymour Gilman
and Rosalind Gilman brought suit in the United
States District Court to void a $139,500 promissory
note signed by them and held by the FDIC as
liquidator of the Hamilton National Bank of
Chattanooga. I represented the plaintiffs (my
parents) as their sole counsel, handling all
aspects of the case both in the trial court and on
appeal.
On October 15, 1979, U.S. District Judge Robert M.
McRae, Jr. rendered judgment for the plaintiffs.
He voided the promissory note in question based on
a violation of Regulation U by the bank. On
December 1, 1981, the Sixth Circuit Court of
Appeals reversed Judge McRae 's ruling and found for
the FDIC. The case was settled prior to perfecting
a petition for certiorari to the United States
Supreme Court.
This case involved complex and novel issues as to
the interpretation of Regulation U, the measure of
damages, whether a private right of action exists,
and the status of the FDIC as liquidator.
The FDIC was represented by:
James W. McDonnell, Jr.
6075 Poplar Avenue, Suite 650
Memphis, Tennessee 38119
(901) 537-1000
and
Mimi Phillips
22 North Front Street, Suite 800
Memphis, Tennessee 38103
(901) 529-0606
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393
5. H. Molsen & Co., Inc. v. Flowers, et al.. United
States District Court for the Western District of
Tennessee No. C-72-139 (Judgment on Jury Verdict
rendered on September 11, 1973; 62 F.R.D. 14 (1973)
I was the plaintiff Molsen's sole attorney in this
case, handling all aspects of the litigation. H.
Molsen & Co., Inc. was a Texas cotton merchant who
brought suit against a number of West Tennessee
farmers and their agent for failure to deliver on
their cotton contracts. Because the market value
at the time of harvest was substantially higher
than the contract price, the farmers failed to
deliver all the contracted cotton.
After a four-day trial and two more days of jury
deliberation between August 27 and September 4,
1973, the jury returned a verdict for Molsen in the
sum of $21,750, and U.S. District Judge Harry W.
Wellford added a $2,000 attorney's fee in the
nature of punitive damages. The case was reported
in the September 15, 1973 issue of Cotton Digest
International with the headline "Molsen Wins
Landmark Decision Against Farmers When Farmers
Renege On Acreage Contract," and stated that it was
the nation's first cotton contract case tried to a
jury verdict in federal court. A copy of the
article is attached to this Questionnaire as
Exhibit 5.
The defendants' attorneys were:
John S. Wilder
(currently Lieutenant Governor of Tennessee)
108 E. Court Square
Somerville, Tennessee 38068
(901) 465-3616
and
Thomas F. Johnston
80 Monroe Avenue, Suite 700
Memphis, Tennessee
(901) 523-8211
STATE CASES
6. United Physicians Ins. Risk Retention Group, et al.
V. United American Bank of Memphis, Chancery Court
for Davidson County, No. 94-1889; Tennessee Court
of Appeals No. 01-A-01-9503-CH-00096 (1996)
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394
I was the lead counsel for the defendant United
American Bank of Memphis (UAB) , both presenting all
the proof in the trial court and arguing the case
on appeal. The Complaint was filed in June of 1994
by the Tennessee Commissioner of Commerce and
Insurance, as the plaintiff's liquidator, to
recover the sum of $800,000 that the Commissioner
alleged had been received by UAB as a preferential
payment. The case involved the proper
interpretation of the Tennessee statutes dealing
with preferences that may be avoided by a
liquidator.
This was a case of first impression in Tennessee as
well as in the 29 other jurisdictions which have
enacted the Insurers Rehabilitation and Liquidation
Model Act. Nashville Chancellor Robert S. Brandt
granted UAB's Motion to Dismiss the Commissioner's
Complaint on January 20, 1995, and the Tennessee
Court of Appeals affirmed the dismissal on
February 7, 1996, The case was reported in the
February 22, 1996 issue of Mealey's Litigation
Report; Insurance Insolvency, a copy of which is
attached to this Questionnaire as Exhibit 6,
The Commissioner was represented by:
William B. Hubbard
424 Church Street, Suite 2900
Nashville, Tennessee 37219
(615) 251-5444
My local co-counsel was:
John Knox Walkup
(currently Attorney General
for the State of Tennessee)
500 Charlotte Avenue
Nashville, Tennessee 37243
(615) 741-3491
Assisting me within my own firm was:
Rebecca P. Tuttle
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
7. Mall of Memphis Associates v. Tennessee State Board
of Equalization, et al.. Chancery Court of Shelby
County, No. 106118-3; Tennessee Court of Appeals,
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395
No. 02A01-9609-CH-00214 (appeal pending, 1997)
This case was filed in the Chancery Court of Shelby
County by the Mall of Memphis in July of 1995,
challenging the right of the Shelby County Assessor
of Property to revalue the Mall's real estate for
the tax year 1990 without simultaneously examining
the values of all the hundreds of strip centers in
Shelby County. I was retained to represent the
Assessor and have been lead counsel for the defense
in both presenting all the proof in the trial court
and arguing the case on appeal.
In March of 1996, Chancellor D. J. Alissandratos
entered a Final Decree voiding the Mall of
Memphis 's increased property tax assessment for the
year 1990 on the basis that the Assessor's action
violated the Mall's 14th Amendment rights under the
United States Constitution. The Assessor and the
State Board of Equalization appealed this decision
to the Tennessee Court of Appeals, arguing that the
Chancellor applied the wrong legal test in his
determination of a constitutional violation. I
argued the case before the Tennessee Court of
Appeals on April 15, 1997. The case is currently
under advisement.
The Mall of Memphis was represented by:
Clare Shields and Harry J. Skefos
22 North Front Street, Suite 1100
Memphis, Tennessee 38103
(901) 522-9000
The State Board of Equalization was represented by:
Christine Lapps
Assistant Attorney General
404 Janes Robertson Parkway, Suite 2121
Nashville, Tennessee 37243
(615) 741-6424
Assisting me v/ithin my own firm was:
Steven C. Brammer
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
8. Gaile K. Owens v. State of Tennessee, Shelby County
Criminal Court No. P-8806; Tennessee Court of
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396
Criminal Appeals No. 02C01-9111~CR-00259 ; Tennessee
Supreme Court, 908 S.W.2d 923 (Tenn. 1995)
I was originally appointed by United States
District Court Judge Jerome Turner in October of
1989 to represent Gaile K. Owens on her petition
for a writ of habeas corpus. Ms. Owens i^i and was
an indigent defendant incarcerated at the Tennessee
Prison for Women in Nashville. Prior to my
appointment, she was convicted (on January 15,
1986) of being an accessory before the fact to the
first-degree murder of her husband, and was
sentenced to death by the jury. The petition for
writ of habeas corpus was dismissed without
prejudice in September of 1991 in order to allow
Ms. Owens to pursue her state petition for post-
conviction relief which had been filed in February
of 1991. I was thereafter appointed to continue
representing Ms. Owens by state Criminal Court
Judge Arthur T. Bennett, along with co-counsel
Stephen B. Shankman.
I petitioned Judge Bennett for an ex parte hearing
to request authorization for investigative and
support services necessary to protect Ms. Owens 's
constitutional rights in a capital case post-
conviction proceeding. Judge Bennett denied Ms.
Owens 's petition, but allowed her an interlocutory
appeal to the Tennessee Court of Criminal Apptals.
The Tennessee Court of Criminal Appeals held that
support services should be provided to an indigent
prisoner in an appropriate case, but denied her
right to an ex parte hearing to show her need for
such Sijrvices. On the State's appeal to the
Tennessee Supreme Court, the Supreme Court held
that a proper interpretation of the Tennessee
statutes and its own Rules entitled Ms. Owens to an
ex parte hearing to request support services at the
state's expense. The Opinion of the Tennessee
Supreme Court was rendered on October 23, 1995.
I was lead counsel for Ms. Owens in both the trial
court and on appeal, both presenting the proof in
the trial court and arguing the case on appeal. At
the joint request of Stephen B. Shankman and
myself. Judge Bennett discharged us from further
responsibilities as Ms. Owens' counsel on November
28, 1995, shortly after the successful
interlocutory appeal.
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397
The State was represented by:
Amy L. Tarkington
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243
(615) 741-2216
Co-counsel in a related case consolidated for the
appeal was:
J. Brooke Lathram
130 Court Avenue
Memphis, Tennessee 38103
(901) 524-5130
Assisting me within my own firm was:
Steven C. Brammer and Rebecca P. Tuttle
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
My outside co-counsel was:
Stephen B. Shankman
(currently the Federal Public Defender)
100 N. Mid-America Mall
Memphis, Tennessee 38103
(901) 544-3895
9. State of Tennessee, et al. v. County of Shelby, et
al.. Circuit Court of Shelby County, No. 55237-4;
Tennessee Supreme Court, No. 02S01-9312-CV-00083
(1994)
This case began in 1992 when the four
African-American members of the Shelby County Board
of Commissions brought suit in the United States
District Court for the Western District of
Tennessee to challenge the then-existing
reapportionment plan for the Shelby County
Commission. I was retained to represent the
County, the Mayor, the Board of Commissioners, and
the individual white Commissioners. As lead
counsel, I both presented all the proof in the
trial court and was principally responsible for the
briefs on appeal. United States District Judge
Jerome Turner stayed the action on July 9, 1993 in
order to allow the state courts an opportunity to
settle the underlying state law question of whether
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398
the required number of votes needed to adopt a
reapportionment plan was a majority (pursuant to
the applicable state statute) or two-thirds
(pursuant to the Shelby County Charter) •
State Circuit Court Judge James E. Swearengen
entered an order on November 16, 1993 voiding the
reapportionment plan approved by a majority vote.
The defendants then appealed the trial court's
order to the Tennessee Supreme Court, arguing that
the trial judge erred in ruling that the Shelby
County Charter controlled over a conflicting state
statute. While the appeal was pending, the Shelby
County Board of Commissioners reached a political
compromise on December 7, 1993 by adopting a new
redistricting plan by more than a two-thirds vote.
The Tennessee Supreme Court subsequently dismissed
the appeal as moot.
The plaintiffs were represented by:
P. A. Hollingsworth
415 Main Street
Little Rock, Arkansas 72202
(501) 374-3420
and
Keith C, Kyles
200 Jefferson Avenue, Suite 850
Memphis, Tennessee 38103
(901) 522-1200
Assisting me within my own firm was:
Rebecca P. Tuttle
One Commerce Square, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
10. Phil M. Canale, et al. v. Ruby Stevenson/ 458
S.W.2d 797 (Tenn. 1970)
I was lead counsel for the plaintiff Stevenson in
both the trial court and on appeal, handling all
aspects of the case. Ms. Stevenson brought suit to
declare unconstitutional a Tennessee statute
prohibiting the practice of fortune-telling in
counties whose population exceeded 400,000 persons.
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399
Chancellor Charles Nearn ruled in favor of Ms.
Stevenson after a trial in December of 1969, and
his decision was affirmed by the Tennessee Supreme
Court on October 5, 1970. The case was significant
in that both the trial and appellate courts held
that the statute was unconstitutional as arbitrary
and capricious class legislation, because there was
no discernable reason for the classification based
on county population.
The State was represented by:
Eugene C. Gaerig
(then an Assistant District Attorney General)
100 North Main Building, Suite 3118
Memphis, Tennessee 38103
(901) 526-6000
Supervising me within my own firm was:
Henry H. Hancock
One Commerce Sguare, Suite 2000
Memphis, Tennessee 38103
(901) 575-0100
ARBITRATION AND MEDIATION CASES
Other representative members of the Memphis legal
community who have had recent contact with me in my
capacity as an arbitrator or mediator are as
follows:
1. David M. Cook
80 Monroe Avenue, Suite 650
Memphis, Tennessee 38103
(901) 525-8776
2. Richard Glassman
2 6 North Second Street
Memphis, Tennessee 38103
(901) 527-4673
3. J. Kimbrough Johnson
One Commerce Square, Suite 2900
Memphis, Tennessee 38103
(901) 525-8721
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400
4. Hayden Lait
99 North Third Street
Menphis, Tennessee 38103
(901) 523-0301
5. Earle J. Schwarz
50 North Front Street, Suite 1300
Memphis, Tennessee 38103
(901) 543-8000
6. Kenneth R. Shuttleworth
200 Jefferson Avenue, Suite 1500
Memphis, Tennessee 38103
(901) 526-7399
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.)
I consider my service as President of the Memphis Bar
Association (1987) , President of the Tennessee Bar
Association (1990-1991) , and my membership in the House
of Delegates of the American Bar Association (1990-
Present) among my most significant legal activities.
The programs and innovations that occurred during my term
as President of the Memphis Bar Association included the
establishment of a Lawyers Helping Lawyers Committee, a
Corporate Counsel Section, a staff policy manual, the
addition of a CLE Director/Section Administrator, a
committee to plan for a new bar headquarters, new bylaws,
a judicial evaluation program, and changing the election
for bar leadership positions from in-person voting to a
mail ballot system.
The programs and innovations that occurred during my term
as President of the Tennessee Bar Association included
the formation of two new sections, one on criminal law
and the other on environmental law, the drafting of a
professional creed for Tennessee lawyers, the formation
of special committees to study alternative dispute
resolution, lawyer advertising, merit selection of
judges, outreach to the public, and the pros and cons of
a unified bar, and the formation of a Long Range Planning
Committee to formulate a list of both goals and
strategies to guide the Tennessee Bar Association's
future activities.
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I also consider my service as a member of the Federal
Local Rifles Revision Committee (1989-1992), as Chair of
the Bankruptcy Merit Selection Panel for the Western
District of Tennessee (1992-1993), as a board member of
the Capital Case Resource Center of Tennessee (1988-
1995) , and as a member of the University of Memphis Law
Dean Search Committee (1991-1993) to be significant
activities that have advanced the interests of our legal
system.
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402
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 the Farris, Mathews, Gilman, Branan & Hellen,
P.L.C. Operating Agreement, I would be paid a lump sum
within 90 days of my withdrawal from the firm for my
interest in its tangible assets. I would receive no
payment for accounts receivable or for work in process,
and would thus have no continuing financial interest in
the firm. I would also promptly transfer my account with
the firm's 401 (k) Plan to an Individual Retirement
Account.
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 do not anticipate any potential conf licts-of-interest.
If any potential conflict were to arise, I would recuse
myself from hearing any case in which even the appearance
of a conflict might exist. Any potential conflicts would
be resolved by fully complying with the applicable
provisions of the Code of Judicial Conduct.
3. Do you have any plans, commitments, or agreements to
p^'rsue 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,
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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 svibstituted here.)
A copy of the Financial Disclosure Report is attached to
this Questionnaire as Exhibit 7.
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
My financial net worth statement is attached to this
Questionnaire as Exhibit 8.
Have you ev«r 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.
No
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404
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 amount of time devoted to
each.
Early in my legal career (1968-1973), I served as a board
member and then as treasurer of Senior Citizens Services,
a United Way Agency. Later I served for 3 years (1984-
1987) on the board of the Memphis Jewish Home. For the
past 5 years, I have served on the Executive Board of the
Chickasaw Council of the Boy Scouts of America. For the
past 2 of those years (1995 and 1996) , I was chair of the
Special Scouting District. This is the District for
physically and mentally handicapped youth with special
needs. Our activities included a Learning for Life
program in the schools and a Special Scouting Jamboree
each fall.
In the legal arena, I volunteered to represent indigent
defendants in the federal court system prior to the
establishment of the public defender's office. MOi e
recently, I volunteered to represent an indigent death
row inmate at the request of the Honorable Odell Horton,
then Chief Judge of the United States District Court for
the Western District of Tennessee. He explained that as
President of the Tennessee Bar Association, my
participation in a post-conviction proceeding would
encourage other civil law practitioners to do the same.
Because of the very modest rates of compensation for time
spent in representing such indigents, I consider this as
largely pro bono work.
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 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 invidiously
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discriminates on the basis of race, sex, or religion.
The Kiwanis Club of Memphis, prior to 1987, did not admit
women to membership. I have been a member of the Kiwanis
Club since 1981, though I have never been an officer or
director of the organization. I voted to admit women as
members every time it came to a vote.
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 my jurisdiction to
recommend candidates for nomination to the federal
courts. I was recommended for this judicial position by
my law partner Harlan Mathews, a former United States
Senator from Tennessee. His recommendation was supported
by numerous written endorsements from legal, political,
and community leaders in Tennessee. I was not
interviewed prior to Vice President Gore's decision to
recommend me to the President for this judicial vacancy.
I met briefly with Michael O'Connor in the White House
Counsel's Office after my selection to discuss the
process of background checks and to review the various
forms to be completed. I have subsequently been
interviewed by representatives of both the American Bar
Association and the Federal Bureau of Investigation as
part of their respective background investigations.
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 interpretrid as asking how you would rule on such case,
issue, or question?
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
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45-964 98
406
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 stanc'ing 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.
A federal judge needs to be mindful of the proper role of
the judiciary in the basic constitutional scheme
concerning the separation of powers. The federal courts
must carefully balance their responsibilities as
interprc l;ers of the constitution with the limited nature
of their jurisdiction, their duty to resolve actual
controversies on the narrowest possible grounds, and with
due respect for the doctrine of judicial restraint. In
particular, the judiciary should refrain from unwarranted
intrusion into the legislative and executive processes
that the constitution delegates to Congress and the
Executive Branch. By the same token, the federal courts
must maintain their judicial independence, remedy
constitutional violations, and interpret statutory
language in their basic role as the resolver of disputes
properly brought before them.
-31-
407
BY-LAWS
OF
ECONOMIC CLUB OF MEMPHIS
ARTICLE I
The name of this corporation shall be Economic Club of
Memphis .
ARTICLE II
The purpose and objectives of the Economic Club of Memphis
shall be those set forth in its charter of Incorporation, as
such Charter now exists and as it may hereafter be amended from
time to time, and no others. The aims and purposes of the cor-
poration are to be carried out through any and all lawful acti-
vities, both direct and through contributions to any other cor-
poration, trusL fund or foundation whose purposes are chari-
table, scientific, literary or educational, provided:
1. That any such activity or contributions shall conform
to any applicable restrictions or limitations set forth in the
corporate charter.
2. That any such activity or contribution shall conform to
any restrictions which are imposed by the Internal Revenue Code
on corporations described in Section 501(c)(3) of the Internol
0*
Revenue Code and Its regulations
EXHIBIT
1 1
408
The Economic Club of Memphis shall exercise only such
powers as are in furtherance of its exempt purpose under the
Internal Revenue Code.
ARTICLE III
Section 1. The principal office of the corporation shall
be located at City of Memphis,
County of Shelby, State of Tennessee. The corporation may have
such other offices as the Board of Directors may determine from
time to time.
Section 2. The fiscal year of the corporation shall be
June 1 - May 31.
ARTICLE IV
Section 1. The elected officers of the corporation shall
be a President, a Vice-President, a Secretary-Treasurer, and
such other officers as may be elected in accordance with the
provisions of this Article.
Section 2. The Vice-President and Secretary-Treasurer shall
be elected by the membership annually by written ballot to
take office on June 1 for a term of one year or until their
successor is elected and qualified, except as hereafter pro-
vided .
- 2 -
409
Section 3. The President shall be the Chief Executive
Officer. He, or in his absence, the Vice President, or other
executive officer, shall preside at all meetings of the Board
and of the membership. The President shall preside at, or may
choose a presiding officer for, each public discussion.
Section 4. The Vice-President shall perform all of the
functions of the President in his absence. Upon completion of
his term as Vice-President he shall succeed to the office of
President, which office he shall hold for an additional term.
He shall also be President of the program Committee, which
shall consist of himself and two other members selected by him
with the approval of the Board of Directors. This Committee
shall be responsible for recommending programs to the Board of
Directors.
Section 5. The Secretary-Treasurer shall perform such
duties as ordinarily attached to that office, including
keeping minutes of all meetings of the Board and Executive
Committee. He shall have custody of the funds of the cor-
poration. He shall be Chairman of the Finance Committee, which
shall in addition to himself consist of not more than four or
less than two other members selected by him with the approval
of the Board.
Section 6. There shall also be an Executive DJ rector, who
shall be appointed by the President, subject to the approval of
the Board.
- 3 -
410
Section 7. Any officer elected or appointed may be removed
at any time by a vote of a majority of the members of the Board
of Directors whenever In its judgment the best interest of the
corporation would be served thereby.
Section 8. A vacancy in any office because of death,
resignation, removal, discfualification, or otherwise, may be
filled by the Board of Directors for the unexpired portion of
the term.
Section 9 . The several officers shall have such powers
and shall perform such duties as may from time to time be spe-
cified in resolutions or other directives of the Board of
Directors. In the absence of such specifications, each officer
shall have the powers and authority and shall perform and
discharge the duties of officers of the same title serving in
non-profit corporations having the same or similar general pur-
poses and objectives as this corporation. The powers of the
Executive Director however shall be limited to those delegated to
him by the Board of Directors.
ARTICLE V/
Section 1. The corporate powers of the Corporation shall
be exercised and directed by a Board of Directors consisting of
411
12 members elected as provided in Article VII hereof and in
addition such officers as qualify under Section 2 of Article v
hereof. The Executive Director may unless the Board determines
otherwise meet with the Board but shall have no vote. The
President may with the consent of the Board designate others to
attend its meeting but without vote. ^
The Board of Directors shall determine the policies
programs of the corporation and the projects for which funds
will be expended, provided, however, such policy determinations
are within the exempt purposes as provided by Section 501 of
the I.R.C. of the United states and the applicable Sections of
the Tennessee Code Annotated under which this corporation is
organized .
The Board of Directors may, from time to time, appoint, as
advisers, persons whose advice, assistance and support may be
deemed helpful in determining policies and formulating programs
for carrying out the corporate purposes. ^^-v- •""
The Board of Directors is authorized to employ such persons,
including an Executive Director, officer, attorneys, agents, and
assistants, as in its opinion are needed for the administration
of the corporation and to pay reasonable compensation for ser-
vices and expenses thereof.
5 -
412
Each member of the Board of Directors shall serve in a
fiduciary capacity and shall refrain from exercising any powers
in such manner as to disqualify the corporation from federal
income tax exemption as to qualified charitable organization or
any gift from deduction as a charitable contribution, gift or
bequest in computing federal income, gift or estate tax of the
donor or his estate.
Neither the Board of Directors, nor any of its members
individually, shall be liable for acts, neglects or defaults or
any employee, agent or representative selected with reasonable
care nor for anything it may do or refrain from doing in good
faith, including the following if done in good faith: errors
In judgment, acts done or committed on advice of counsel, or
any mistakes of fact or law.
The Board of Directors may provide for such standing or
special committees as it deems desireable, in addition to the
committees herein provided for, and discontinue the same at its
pleasure. Each such committee shall have such powers and
peform such duties, not inconsistent with law, the Charter of
the corporation, or these By-Laws, as may be delegated to it by
the Board of Directors, vacancies in such committees shall be
filled by the President or as the Board of Directors may provide.
413
Section 2. The President, the immediate past President, the
Vice-President , and the Secretary-Treasurer shall (if not other-
wise members of the Board of Directors) be Directors ex
officio while holding those offices.
Section 3- Officers (except the President) and Directors
shall be ejected from and by the membership, by written ballot as
herein provided. The directors shall be divided into three
classes, each class consisting of four (4) directors. Each year
the successors to the class of directors whose terms expire that
year shall be elected to hold office for the term of three years,
except as herein provided.
Section 5. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any
meeting of the Board. The acts of a majority of the directors
present at the meeting at which a quorum is present shall be
the act of the Board of Directors.
Section 6. Any vacancy occuring in the Board of Directors,
including those resulting from an increase in the number of
directors, shall be filled by the Board of Directors. A
Director appointed to fil.l a vacancy shell serve for the unex-
pired term of his predecessor in office.
414
Section 7. Directors as such shall not receive any compen-
ation for their services, but shall be reimbursed for expenses
incurred on behalf of the corporation. Nothing herein con-
tained shall be construed to preclude any director from serving .
the corporation in any other capacity and receiving compen-
sation therefor.
Section 8 . A regular meeting of the Board of Directors
shall be held annually in June. Special meetings of the Board
of Directors may be called by or at the request of the President
or any three members of the Board of Directors, and shall be
held at the principal office of the corporation or at such
other place as the President may determine.
Section 9 . Notice of Annual and Special Meetings of the
Board of Directors shall be given at least ten (10) days pre-
vious thereto by written notice delivered personally or sent by
mail to each director at his address as shown by the records of
the corporation. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail in a sealed
envelope so addressed, with postage thereon paid. Any director
may waive notice of any meeting. The attendance of a director
at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. The
business to be transacted at the meeting need not be specified
- a -
415
in the notice or waiver of notice of such meeting, unless spe-
cifically required by law or by these Dy-Laws-
ARTICLE VI
Section 1- There shall be an Executive Committee composed of
the elected officers and the immediate past President. The
Executive Director shall be a member ex officio without vote. The
Chairman shall preside at all of meetings of the Executive
Committee, except that in the event of his absence fr. m any
meeting, the members of the committee may designate one of
their members to preside over such meeting.
Section 2. Between meetings of the Board of Directors, the
Executive Committee shall have all of the powers and duties of
the Board, including the management of the corporation's
business; the making of necessary arrangements for meetings;
and the procuring of speakers nad the providing of payment for
services, rents or other expenses incurred in carrying on the
work of the corporation; but the Executive Committee shall have
no po-er to increase the size of the membership of the Board of
Directors or to fill vacancies, nor to amend these By-Laws.
ARTICLE VII
Section l. Any member may nominate any other member for
any office or for the Board of Directors by so advising the
- 9 -
416
Executive Director in writing before April 1. On or before that
date each year, the President shall appoint a nominating commit-
tee consisting of five (5) former Presidents (Chairmen) who are
active members, subject to approval by the Board of Directors. .
No more than twenty (20) days after its appointment the nominating
committee shall make its report in writing to the President, con-
sisting of the nomination of one member for each of the offices of
Vice-President and Secretary-Treasurer and four (4) for the Board
of Directors. These may but need not have been already nominated
by another member. This report, together with the names of all
members otherwise nominated, shall no later than May 1 be mailed
to the membership together with a ballot prepared in such a way as
to allow each member to vote for any such nominee individually or
for a write- jn candidate of his choice. A] 1 such ballots shall
state that in order to be counted they must be received by the
Executive Director by June 1 .
Section 2. On June 1 the candidate for each office
receiving a plurality of the votes then received, and the four
candidates for Director receiving the most votes shall be
declared elected and take office.
ARTICLE VIII
Section 1. The Board of Directors on the recommendation of
the President shall appoint a membership committee of three (3)
members which shall act on all applications for membership by
making recommendations to the Board of Directors. At such date
- 10 -
417
as the membership reaches the total as set by the Board, new
applications for membership shall be acted upon only at the
regular meeting of the Board of Directors in June.
Section 2. New members shall be elected upon nomination by a
member. Each such nominee shall then be considered by the mem-
bership committee, and recommendation of approval or disapproval
shall be made to the Board, of Directors pursuant to Section 1 of
Article VIII. Applicants approved by the Board of Directors shall
become members of the corporation upon payment of initiation fee
and dues fixed as provided herein, provided all other requirements
for membership are met.
Section 3. Any member wishing to resign may do so by
filing with the Secretary, written notice of resignation, but
such resignation shall not relieve the member so resigning of
the obligation to pay any dues, assessments, or other charges
theretofore accrued and unpaid and no return of dues previously
paid will be made.
ARTICLE IX
Section 1. Regular meetings of the members shall be held
at places and times designated by the Board of Directors.
Section 2. Special meetings of the members may be called
by the President or the Board of Directors, or not less than ten
- 11 -
418
(10) members having voting rights, at a place in Memphis,
Tennessee, to be designated by the President. The Executive
Director upon receipt of notice of a request for a special meeting
shall be charged with the duty of notifying the President who shall
then be required to call such meeting not more than thirty (30)
days thereafter.
Section 3. Each member In good standing shall be entitled
to one vote on each matter submitted to a vote of the members.
Section 4. Written or printed notice stating the place,
day, and hour of any meeting of members shall be delivered
either personally or by mail, to each member entitled to vote
at such meeting, not less than ten (10) nor more than twenty
(20) days before the date of such meeting, by or at the direc-
tion of the President or the secretary. In case of a special
meeting or when required by statute or by these By-Laws, the
purpose or purposes for which the meeting is called shall be
stated in the notice.
Section 5. Any notice or other communication required by
these by-laws shall be deemed to be delivered when deposited
in the United States mail addressed to the member at his
address as it appears on the records of the corporation, with
postage thereon prepaid.
12 -
419
Section 6. Any action required by laws to be taken or per-
mitted to be taken at a meeting of the members may be taken
without a meeting if a consent in writing setting forth the
action so taken is signed by a majority of all the members
entitled to vote with respect to the subject matter thereof.
Section 7. Twenty (20) members present at any meeting
shall constitute a quorum at such meeting. If a quorum is not
present at any meeting of members, a majority of the members
present may adjourn the meeting from time to time without
further notice.
Section 8. At any meeting of members, a member entitled to
vote may vote by proxy executed in writing by a member or by
his duly authorized attorney in fact. No proxy shall be valid
if dated three (3) months or more prior to the date of the
meeting at which it is presented, except if such is an
adjourned meeting and the original meeting was one at which the
proxy would have been valid.
ARTICLE X
Section 1. The Board of Directors may authorise any officer
or officers, agent or agents of the corporation, in addition
to the officers so authorized by these By-Laws, to enter into
any contract or execute and deliver any instrument In the name
- 13 -
420
of and on behalf of the corporation, and such authority may be
general or may be confined to specific instances.
Section 2. All checks, drafts, or orders for the payment
of money, notes, or other evidences of indebtedness issued in
the name of the corporation, shall be signed by the Executive
Director or by such officer or officers, agent or agents of the
corporation, and in such manner as shall from time to time be
determined by resolution of the Board of Directors. All per-
sons so authorized shall be bonded.
Section 3. All funds of the corporation shall be deposited
from time to time to the credit of the corporation in such
banks, trust companies, or other depositaries as the Board of
Directors may select.
Section 4. The Board of Directors may accept on behalf of
the corporation any contribution, gift, bequest, or devise for
any purpose of the corporation.
ARTICLE XI
The corporation shall keep correct and complete books and
records of account and shall also keep minutes of the pro-
ceedings of its members. Board of Directors, committees having
and e,\ercising any of the authority of the Board of Directors,
and the membership committee, and shall keep at the principal
- 14 -
421
office a record giving the names and addresses of the members
entitled to vote. All books and records of the corporation may
be inspected by any member, or his agent or attorney for any
proper purpose at any reasonable time, and shall be audited
annually.
ARTICLE XII
Section 1. The Board of Directors shall determine from
time to time the amount of initiation fee, if any, and annual
dues payable to the corporation by its members, and shall give
appropropriate notice thereof.
Section 2. Annual dues shall be payable in advance by June
1 of each year. The Board of Directors shall determine ini-
tiation fees, if any, and the pro rata share of annual dues
to be paid by new members upon election.
Section 3. When any member is in default in the payment of
dues for a period of four (4) months from the beginning of the
period from which such dues became payable, his membership may
thereupon be terminated by the Board of Directors as provided
hereinabove. However, such default may be waived in advance
thereof by the Executive Committee.
422
ARTICLE XIII
Whenever any notice is required to be given under the pro-
visions of T.C.A. 48-703, or the By-Laws of the corporation, a
waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE XIV
These By-Laws may be altered, amended, or repealed, and new
By-Laws may be adopted by a majority of the directors present
at any regular meeting or at any special meeting of the Board
of Directors, if at least ten (10) days written notice as given
of intention to alter, amend, or repeal or to adopt new By-Laws
at such meeting.
- 16
IITD/91/es-ecsb/61-76/cpm
423
4/92
The purpose of the Charter Amendments which you are asked to approve
today efiFective May 31. 1992, when Kurt Flexner retires, is to change the name
of the registered agent of the Club to its new Executive Director. Robert L.
Berl,: the address of the registered and principal office of the Club to Fogelman
College of Business and Economics; to preserve the Club's tax exempt status
by bringing the Charter into accord with present requirements of the Internal
Revenue Code; and to take advantage of certain provisions of the Tennessee
Corporation law dealing with the limitation of liability and indemnification of
Directors. Copies of the proposed amendments are available to anyone desiring
further details.
Purpose for Board of Directors
One of the purposes of the meeting of the Board of Directors is to adopt
certain amendments to the By-Laws. The first amendment proposed for
adoption merely implements the Board's earlier decision to modify the
procedures relative to the appointment of members to sit upon the Nominating
Committee. The text of the proposed amendment, which will be effective
immediately upon approval by the Board, is inserted anc' underlined on page 7
of the By-Laws which Is enclosed herewith. If adopted by the Board, said
amendment is effective immediately.
The remaining amendments proposed for adoption implement the Board's
earlier decision to change the By-Laws with respect to the administration of
424
the Club. The proposed amendments are in accordance with the Report of the
Transition Committee which was presented to the Board at Its meeting on May
21. 1991. The text of these proposed amendments has been inserted in the
enclosed set of By-Laws, and is underlined. If adopted by the Board, said
amendments shall be effective as of July 1. 1992.
In addition to the foregoing, proposed Articles of Amendment to the
Charter of the Club shall be presented to the Board for Its review. Said Articles
of Amendment reflect that as of July 1. 1992, the address of the principal
office and registered office of the Club as well as the name of the registered
agent of the Club will change. The Articles of Amendment also contain
amendments which implement changes made to the Tennessee Nonprofit
Corporation Act in 1987 by the Tennessee General Assembly.
Some of the amendments contained In the Articles of Amendment can be
adopted only by the members of the Club. Therefore, the Articles are being
presented to the BoEird in order that the Board may consider recommending the
Articles to the members for adoption at a meeting of the members.
Presented to Members on ^mS-
425
RESTATED BYLAWS OF
THE ESTATE PLANNING COUNCIL
OF MEMPHIS, TENNESSEE, INC.
ARTICLE I
The Estate Planning Council of Memphis, Inc. shall be a
Tennessee not for profit corporation pursuant to T.C.A.
S 48-1-601 \et seq.
ARTICLE II
Membership
The membership of this Council shall be comprised of: ■-"
1. Trust Officers of trust companies and banks main-
taining trust departments.
2. Chartered Life Underwriters,
3. Practicing Attorneys at Law. -
4. ■ Certified Public Accountants in public service.
Membership shall be limited to one hundred (100)^^«p >^/^tf5A/4ai»y
members; the total membership for the years ended May 31,
1981, 1982, 1983, 1984 and thereafter shall not exceed
eighty-five (85), ninety (90), ninety-five (95), and one
hundred (100) members respectively. Of the aforementioned
professional classifications, no single participant group
shall consist of more than forty (40%) per cent of such
total. Espba-tei 4udfle& of Shelby County, J^de^.a!, F-stat.e- Tax
E^xamixifers , and Xennesfi/^fe Ijahecfeiance. T-ax.. Ejcamxners , who meet
426
any of the above gualif ications^slxaXl-.noi: Restrict the
,cX.ciMifications of which they .ar.e. a: roejnber, or the total
number of members. To be qualified for membership, an
applicant, after the adoption of these Bylaws, must have
four (4) .years experience
must be interested in. and
in his category and such applicant-
actively engaged in cooperative
estate planning or compliance activities in the Memphis,
Tennessee area.
A member who is in a category which does not restrict .
the total number of such member's category and the total
number of members of the Council, and who ceases for, any
reason not involving a question of moral turpitude, to be a
member of such category, shall, upon written notice of such
member's desire so to do, continue as a member of the
Council in the proper category. By attrition the total
number of members of the Council, and the affected category,
shall be brought within the limitations otherwise .
established by these Bylaws prior to the admittance of new
members to the Council.
Members shall be elected by-:;a::<majority vote, of . the
Executive Committee upon recommendation of the Membership
Committee. Applications for membership shall be submitted
to the Secretary and shall be endorsed by five (5) members
2 -
427
of the Council, three of whom shall be in different mem-
bership classifications and only one of whom may be asso-
ciated in business with the applicant.
ARTICLE III
Executive Committee
All powers necessary for the governing of the Council
shall be vested in an Executive Committee composed of the
officers, the immediate past President of the Council, and
four (4) members-at-large with no more than one (1) trom any
participating group.
At each annual meeting and at all other meetings for the
election of members of the Executive Committee, two (2).
members-at-large shall be elected for a term of two (2)
years as members of the Executive Committee, with the
remaLning members to continue in office until the expiration
of their term or until their successors are elected.
ARTICLE IV
Officers
The officers of the Council shall consist of a
President, a Vice President, a Secretary and a Treasurer.
The Vice President shall serve as Chairman of the Program
Committee and the Secretary shall be Chairman of the
- 3
428
Membership Conunittee/ The officers shall hold office for
one (1) year or until their successor shall have been cho-
sen. .
ARTICLE V
Quorum js
Any five (5) members of the Executive Committee, shall
constitute a quorum for the transaction of business.- The
Executive Committee shall have the power to fill, for the
unexpired term, any vacancy which may occur in any office or
in their own body,, by a concurrence of at least five (5)
members.
The presence of twenty-five (25) members shall consti-
tute a quorum for the transaction of business at any regular
meeting of the Council, provided there shall be at least ten
(10) days written notice of the time and place of the
.meeting.
ARTICLE VI
Nominations and Elections
The President shall, sixty (60) days prior to the date
of each annual meeting, appoint a nominating committee to
submit a list of nominees for officers of the Council, and
for menbers-at-large of the Executive Committee, to be voted
- 4 -
429
upon at the annual meeting. Such Committee shall file the
names of their nominees with the Secretary at least fifteen
(15) days before the date of the meeting. In addition, any
nine (9) members/ by notice in writing filed with the
Secretary at least five (5) days before the date of the
meeting, may nominate candidates for officers of the Council
and for members-at-large of the Executive Committee. The
members shall be entitled to vote for any candidate named by
either on^ of the above methods at such meeting. The can-
didate receiving a simple majority of votes cast for his
office shall be declared elected.
ARTICLE VII
Annual Meeting
The annual meeting of the Council shall be held on the
fourth Tuesday in May of each year or at such other time as
may be selected by the Executive Committee, The Secretary,
shall mail each member a notice of the meeting at least ten
(10) days prior to the date hereof.
ARTICLE VIII
Executive Committee Meetings
Meetings of the Executive Committee may be called by the
President at his discretion, or when requested so to do by
three (3) members of the Committee. The Executive Committee
- 5 -
430
shall establish rules of procedure and practice for its
meetings, subject to approval of, or amendment by, the
Council.
• . ARTICLE IX
Committees
The President of the Council, with the advice and con-
sent of the Executive Committee, shall have the power to
appoint committees on. programs, membership, ethics, coopera-
tion, education, legislation and such other committees as he
shall deem advisable to further the interests of the Council
and its members; and to delegate to such committees such
power and authority as the Executive Committee shall deem
advisable.
■ . . .. ARTICLE X
Program Meetings
Meetings for the furtherance of the purposes o.^ this
association may be called by the Executive Committee at
stated times, or from time to time in its discretion. The
program of such meetings shall be arranged by the Executive
Committee and the Program Committee-
6 -
431
ARTICLE XI
Duties of Officers
The President shall preside at all meetings of the
Council and the Executive Conunittee, and perform the duties
herein set out.
The Vice President shall perform the duties of the
President in the absence of the President.
The Secretary shall keep a record of the proceedings of
all meetings of the Council and the Executive Committee, and
he shall be responsible for maintaining a current membership
roll and for the mailing of notice of meetings and other
communications to such members.
The Treasurer shall have custody of all funds and pro-
perty of the Council and shall deposit all funds of the
Council in the name of the Council in a bank or trust com-
pany located in Memphis, Tennessee. All withdrawals of such
funds shall be on checks or orders signed by him or by the
President. He shall prepare and submit a statement of the
financial condition of the Council at the annual meeting and
at such times and in such manner as the Executive Committee
may require.
- 7 -
432
ARTICLE XII
Expenses and Dues
The expenses of the Council shall be provided for, by
annual dues of Ninety ($90.00) Dollars for each member,
payable in advance on or before the September meeting in
each year. Annual dues may be increased by the majority of
the members at a meeting duly called with at least ten (10)
days prior written notice of the proposed increase.
ARTICLE XIII
Advertisement
No members of this association shall use his membership
herein in any form of advertisement of solicitation of busi-
ness.
ARTICLE XIV
Revocation of Membership
Any member who shall have been absent from two (2) con-
secutive called meetings of the Council, or shall have
failed to pay his dues at the time and in the amount
prescribed by these Bylaws / as from time to time amended,
shall have his name referred to the Executive Committee by
the Secretary. The Executive Committee, in its sole discre-
tion, may direct that such member be dropped from the roll
- 8 ~
433
of this Council, in which event he shall be so notified in
writing by the Secretary. Any such member who has been
dropped from the roll of the Council by action of the
Executive Committee shall not be eligible for membership in
thi^ Council for a period of at least three (3) years
thereafter.
ARTICLE XV
Amendments
Upon at least ten (10) days written notice setting out
the proposed "amendment , these Bylaws may be amended at any
annual or called meeting of the Council by a vote of two-
thirds (2/3) of the membership present.
ARTICLE XVI
Guests
Provided the inviting member pays the meal cost -as
established by the Executive Committee for each guest, smy
member of the Council will be permitted to invite guests of
his or her choosing, provided he or she does not bring the
same guest to more than two (2) meetings in any one (1)
fiscal year.
ARTICLE XVII
The corporate fiscal year shall be June 1 through May 31.
Revised: June, 1986
- 9 -
434
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445
IN TllK CIRCUIT COURT Of TENNESSEE
FOR THE FIFTEENTH JUDICIAI, CIRCUIT AT MEMPHIS
RITA HAUN and KENNETH IIAUN,
Individually and as wife
2nd Husband,
VS.
JOHN FREEMAN, Superintendent
of the City of Memphis Board
of Education, and THE CITY OF
MEMPHIS BOARD OF EDUCATION,
Defendants.
NO. 82<01 T.D.
SUPPLEMENT TO
ANSWER 15 ON
PAGE 9 OF
QUESTIONNAIRE)
EXHIBIT
This case involves the tragic situation of a kindergarten
teacher at the A. B. Hill Elementary School being raped in her
classroom by an unknown adult assailant shortly after she had dis-
missed her class on March 31, 1977. The teacher and her husband
(hereinafter collectively referred to as "plaintiff") have sued the
Board of Education,* essentially claiming that the Board was negli-
gent in failing to provide her with a safe place to work. More
specifically, she claims that she was assigned by the school's
principal to a relatively isolated classroom on the first floor of
the original school building, rather than to another available
classroom that was also in the original building but closer to the
other three kindergarten classrooms in the adjacent newer building
on the school campus. Plaintiff believes that the assault in ques-
tion would not have occurred if she had been assigned to the other
classroom, and contends that this alleged misassignment was the
proximate legal cause of her injuries.
Plaintiff's action is subject to and controlled by the
Tennessee Governmental Tort Liability Act, T.C.A. 29-20-101 et seq.
This Act allows actions against governmental entities for injuries
proximately caused by a negligent act or omission of any employee
within the scope of his employment, with certain enumerated
'The Complaint as Co co-ilef endant
dismissed by Order dated May 13, 1980
Remainder of this Exhibit is
included in the full sets of this
Questionnaire
446
Volum XLVI, Number 3
September IS, 1973
(Reg. U. S. Pot. Office)
INTERNATIONAL
V wholly disapprove of what you say but will deFend to the deoth your right to soy it. -Voltaire.
It Is Very Important That Farmers
Deliver Every Bale On Contract
RECENT PRESS RELEASES from the depart-
ment of agriculture indicate that 122,000 bales
of cotton had been sold for export during the
19T2-T3 marketing year but were undelivered as of
Aug-ust 10, 1973. It was also reported that another
6,100,000 bales have been sold for e.xport during
the 1973-74 marketing year (August 1 to July
31) and that 1.600,000 bales have been booked for
v;:--;-- durir.-: tls^ 1074-7-") — --.■'retir.g yea;-.
i;.~ort3 :r.j: y?ar were a;c,-.; .'i.-iCO.CO'.^ bales
cjid ii the preceding season. 1071-72, were 3,229,-
000 bales.
Tnus, we face final export sales this season of
around 7,000,000 bales, the trade believes. Can this
much cotton be handled through American ports?
This is the big question.
■ff we do ship 7.000,000 and our own mills con-
sume 7,500,000, this offtake of 14..=)00,000 bales
will be about 1,.500.000 bales above the latest crop
estimate of 12,938. -500, which report was issued
this week by the USUA in Washington.
It is nowestimated that we will have a carry-
over of 3,.500.000 bales next Augi'st 1.. but if ex-
ports do run as high as we have mted, it would
apoear to us that these carryover predictions, will
behalf a million bales too much. ,It is a good thing
that we do have the caryover or U. S. mills would
be in worse despair than they are now. And they
are crvnng daily for export controls to be placed
on further sales.
Many in the trade now consider controls in-
evitable due to the continuing heavy, unprecedent-
ed sales. They may come so late that controls will
be academic, for foreign buyers will h.ive filled
tl-.eir needs, except for fill-in orders here and
there as the season progresses. .
As for U. S. mill consumption, it haj been
steadilv downward, and the trend seems to con-
tinue do^vnward whether the crop is larfrc or
small. Last year, we had a big crop, yet total cot-
ton consumption was only 7,471,000 running bale.s.
This compares with 8,03
ing the 1971-72 season
1970-71 season.
While U. S. mills u;
uorl'l use is expandmg-
dicate that the day may
EXHIBIT
S
I
farmer may be producing for foreign consumption
mainly, instead of for U. S. consumption.
IT IS VERY IMPORTANT to the future of the
cotton industry that American farmers deliver
every bale of cotton they have contracted to de-
liver from every acre this year. The trade has sold
cotton ahead to world and U. S. mills.
True, the farmers might have received better
prices if :hey had waited to sell their cotton, but
there is nothing to be done now. The trade too'
would have received better prices if the farmers
had waited to sell. This is water over the dam.
The farmers can recover some of the profits
they might have made by selling ahead at higher
prices in the 1974-75 season. But, we would recom-
mend that farmers move slowly, sell only part of
their intended plantings and hold the remainder of
the acreage for later deals. This way, they can
have their cake and eat it too.
But for cottjn already contracted for this sea-
son, the farmer must deliver if he wants to do
business with buyers in the future. The farmer
must help insure that merchants will ge the cot-
ton they have contracted for — for if the trade
doesn't receive every bale for every acre they have
bought, thre won't be many firms remaining to do
business with in the future. It is that simple.
The entire cotton industry needs every member
it now has, and, in fact, could use some new buyers
as well as new producers in 1974 — for it appears
that we will need at least another million acres.
Thus, H. Molsen & Company's landmark de-
cision against 15 Tennessee farmers who failed to
deliver two seasons ago takes on added importance
now. It was the first federal case, and it shows
that the farmer must deliver under the law,
whether he wants to or not. Most farmers are
delivering — and most of them want to deliver.
They know the merchant must deliver to the mill
or the merchant will be used.
There have been only 142,800 bales ginned in
the Lower RiO Grande Valley to September 10 but
reports from the Valley say that the farmers are
delivering. They are living up to their word
whether they like to or not. They also seem to be
delivering sati.sfactonly in the Corpus Christi and
^ (SUPPLE>!ENr TO ANSWER 18 (CASE 5) Oti PAGE 18 OF QUESTIONNAIRE) THE COTTON DIGEST
447
In Memphis, Tennessee:
Molsen Wins Landmark Decision Against Farmers
When Farmers Renege On Acreage Contract
IN A LANDMARK DECISION. H.
Molsen & Company, Dallas cotton
merchants, won a S2l,T50 jury
verdict this week (September 4) in a
Memphis, Tennessee, federal district
court against 15 farmers and a cotton
jrinner-producer.
The jury ruled that the West
Tennessee farmers and dinners were
in breach of contract.
The farmers were charged with
breaking contracts for the sale of
their cotton in order to sell on the
open, market when the prices were
higher later in the harvesting period.
The case was file<i in April 1972
and covered transactions on the 1971
crop. The farmers were found guilty
of diverting bales that were on
contract-
The jury awarded the full amount
per bale asked by the Dallas cotton
shipping firm, which was the dif-
ference in contract price and market
price at the time the firm learned of
the diversion which forced them to
cover the loss in -the open market.
The amount awarded the Molsen
firm was $50 per bale, which was the
difference between the 23 cents per
pound average contract price and 33
cents per pound average cover price.
The Hefendants were George Flow-
ers & bon, Covington Tennessee, and
Wm. B. Cowan, Cowan Brothers,
producers and ginners from La
Grange, Tennessee.
Individual farmers whom the federal
judgement were delivered against
were Bynum Leajhenvood, Leona
Powell, R. D. Daniel. Franklin Farms.
William B. Cowan, Jr.. Clyce Weath-
erly, J. J. Smith, B. C. Yoger. Sr..
Paul Gatlin, O. D. Maclin. Robert
Sparkman, William Gaugh, Joe
Harvey, Franklin and C. W. Mid-
dlecoff.
Molsen's attorney. Ronald Gilman
of Memphis, said the case was the
first cotton contract default claim
presented to a jury in Tennessee. It
is believed to be the first cotton
contract case in federal court, al-
though several other cases have been
heard in state courts in Texas and
California. The case was tried before
U. S. District Judge Harrv W. Will-
ford.
Mr. Gilman said the 15 farmers
contracted to sell their cotton at an
average price of 23 cents, but
testimony showed they actually
delivered only 659 hales from the
1.985 acres under contract, selling
much of the remainer of the produc-
tion at prices ranging up to 33 cents
a pound.
In the Molsen case, Mr. Gilman said
the West Tenneaseee farmers contract-
ed in 1971 to sell all of their 1971
cotton crops through George Flowers,
III, a Covington. Tennessee, cotton
merchant.
Mr. Flowers, in turn contracted to
sell the cotton to Molsen through the
Texas firm's Memphis agent. Jini
Spurlock of the Delta Cotton Com-
pany, Mr. Gilman said.
Heinz Molsen. Jr.. of Dallas said
this week in ftlemphis that he felt
his firm had received a landmark
decision in the entire industry as it
was carried to a federal jury vealict
— which may be the first such case
in the nation. It was tried in federal
court due to the fact the principles
resided in different states.
Mr. Molsen said that *'I feel the
verdict should have a substantial
bearing on all cotton contract to that
time, and it has a very special bear-
ing on this year's contracts, with
regard to market prices moving
upwards after the contracts were ex-
ecuted.
"I feel especiallv happy about this
decision since last year we paid for
large volumes of contracted cotton
where the price was much lower at
hai'vest time than when the contracts
were initially executed. This means-
that the farmers receivetl $2,000,000
to $3,000,000 additional by contract-
ing prior to the season than they
would have received if they had sold
in the market during har\'est oeriod. .
The jury found that ilr. Flowers
was merely acting as agent for the"
IG farmers, and he was therefore
not personally liable for the damages.
The jury also found that it was proven
that 435 bales had been diverted, and
they awarded S50 per bale damage,,
or a total of $21,750. in the historic
decision.
WASJilNGTON Nlp^S
etine in Dallas. Texas on
August 24, 1973. the ex-
ulive Committee of the National
'Cotton Council and the Proilucer
Steering Committee met at the
Producer Steerine Committee m...
request of the American Tex
Manufacturers Institute
the current cotton supply situatji
light of the strong export
spiraling prices, and the/general
problems concerning the p^sent cot-
ton textile situation.
No determinations^
this meeting; ho\\*©^r, a force was
appointed to iliscu^ alternatives that
the Council dilators could consi<ler
at the Boar^Meeting in Memphis
next week^/The task force \\iU be
headed bj/C. R. Sayre of Greenwood.
I cooperative represent-
other members are: \V. D.
1, III. of Gastonia. North
irolina. President of Cotton Council
International, former president of
.\CSA and a n\erchant ilirertor of the
National Cotton Council; Gordon M
Cahe of Greenville. South Carolin
Vice President of J. P. Stevens ar
a spinner director of the N'
Cotton Council; an
of Crosbyton, Texas, past preiiident
of the Plains Cotton Grover
. ' of tl
^tional Cotton Council.
It is understood that^e task fo
ilabi
ig the operi^fon of Sect
of the ARric>inural Adjustment Act
of 1933 (S^urday authority avail-
able for reporting raw upland cotton),
licensinir of cotton exports, export
controiv and some questions concem-
ingy!Tie trading of cotton futures on
thi^New York Cotton Exchange.
/The merchant directors to the
'National Cotton Council are W. D.
Lawson, 111; William Tharp of Las
Cnices, New Mexico; A. Starke
Taylor. Jr. of Dallas. Texas; Rudi E.
Scheldt and W. B. Dunavant, Jr. of
Memphis. Tennessee.
Sec. r.utz Critizes .\TJ1I
Reacting to intense pressur
nerated bv U. S. textile inte
Secretary Butz was strongly/ritical
of efforts to seek restriction^n U. S.
cotton exports. Secretarv/Butz told
the Washington Post>^the textile
people asking for cj>fttrols are e.x-
actly like the wheat/fiUers: they don't
know how to ope/Ste in a free price
cononiy. They >5y: 'We want you to
protect our sjirpply,' when they really
&nt lower prices for raw-
product.'/'
Tlie yrt-iry further related that:
"isp language. Butz said that
nerican textile manufacturers
opeal for export controls on the
; of assuring cheaper prices for
consumers, he will suggest the_y
propose removal of 'volant
import quotas on competing
from the Far East.
The Department, in a for,
ment issued yesterday b/' Assists
Secretary Carroll G. Bryrhthaver, said
there would be no ex/ftrt controls
cotton "short of y^me unforeseen
disaster to this yorfr's growing crops."
SEPTEMBER 8, 1973
448
MEALEY'S LITIGATION REPORTS
INSURANCE INSOLVENCY
TWICE MONTHLY BY MEALEY PUBUCATIONS. INC. • P.O. BOX 446 « WAYNE. PA 19087-0446 • (610) 688-6566
Volume 7. Issue #18 February 22. 1996
FIDUCIARY DUTY
No Breach Of Duty In Purchase, Termination Of Mutual Benefit GIC
Michigan federal judge rules in action brought by former employees of Abitibi-Price 3
(PREFERENTIAL TRANSFER
Avoidance Period For Preferential Transfers Only For Liquidations
Tennessee court: transfer made within four months of rehabilitation petition not voidable 5
ASSOCIATION LIABILITY
Missouri Association Liable For Damages, Attorney Fees
Court finds statutory coverage limit does not apply to costs of defending insured 6
Workers' compensation carrier may not enforce lien against Delaware association 8
JURISDICTION
Deference To Centaur Illinois Rehabilitation Proceedings Appropriate
However. California appeals court provides for stay instead of dismissal 9
Appealability Of Remand At Issue Before High Court
Oral arguments in Mission, Allstate dispute center on type of review, finality 11
PREEMPTION
Second Circuit Amends Ruling On Preemption
Refers to ruling applying FAA in new footnote; motions call rulings inconsistent 13
SETTLEMENT
Canadian, U.S. Estates Agree To Separate Confederation Life Actions
Uruier agreement in principle, U.S. policyholders will look to U.S. proceeding for relief 14
RULINGS OF NOTE
Policyholder Did Not Breach Duty To Settle
Second Circuit also affirms New York district court's denial of attorneys' fees 15
Massachusetts high court to consider realm of owned-property clause 16
INDUSTRY NEWS
CIGNA Restructuring Approved By Pennsylvania Corrunissioner
Request for stay peruling review of petition for appeal denied Feb. 13 17
LITIGATION NOTES
Third Circuit Denies Rehearing In Unisys Case
Ruling vacated order which granted summary judgment to Unisys ....
California court of appeal publishes Mission ruling
Kentucky court releases decision on standing to appeal for publicati
© COPYRIGHT 1996 MEALEY PUBLICATIONS. INC. ALL RIGHTS RESERVED ^-J Publiconon ovoiloble on disk
REPRODUCTION STRICTLY PROHIBrTED WITHOUT WRITTEN PERMISSION ■■ '~°' '"°' ***-*5**
(SUPPLEMENT TO ANSWEK 18 (CASE 6) ON PAGE 19 OF QUESTIONNAIRE)
449
MEALEY'S LITIGATION REPORTS
INSURANCE INSOLVENCY
Febnjaiy 22. I9i3
are represented by Stp«(n Bompey and Ira R05;
stein of Orricjj/Herrington & SutcJ,
New York aiiQ Charles S. Mishkin^/^ Miller,
Canfiek^Taddock cS: Stone in^^Brand Rapids,
Mi^Jt: Counsel representing^^AP are Frances
Menton Jr. and Marv,i3erdes of Willkie. Eafr
& Gallagher in Uey/^oik and Thomas f'^'^Ko-
ernke of Boyde;><waddell. Timmonx^ Dilley
in Grand Rapfds. Mich.
Avoidance Period For
Preferential Transfers
Only For Liquidations,
Tennessee Court Holds
NASHVILLE, Tenn. — The phrase "the peti-
tion" in the portion of the Tennessee statute pro-
viding a four-month avoidance period for pref-
erential transfers refers only to petitions for liq-
uidation, a state appeals court held Feb. 7.
Therefore, an $800,000 transfer made within four
months of a petition for rehabilitation, but more
than seven months before a petition for liquida-
tion, is not a voidable preference, according to
the court CUnited Physicians Insurance Risk Re-
tention Group, el al. v. United American Bank
of Memphis. No. 01-A-01-9503-CH-00096, Tenn.
Ct. of App., Middle Sec).
(Text of Opinion in Section C. Mealey's Doc-
ument #10-960222-103.)
The appeals court thus affirmed the dismissal of
a petition of the Tennessee Commissioner of
Commerce and Insurance as liquidator of Unit-
ed Physicians Insurance Risk Retention Group
(UPI) to avoid an $800,000 transfer made to
United American Bank of Memphis to pay off
an outstanding bank loan.
UPI was a captive insurance company established
in 1989 by United Physicians Association Inc.
to provide medical malpractice insurance to its
members. Statuary capitalization requirements
were satisfied first by $1 million in letters of
credit. Two years later. United Physicians bor-
rowed $1 million from United American Bank
of Memphis and deposited the funds with the
insurance department to replace the letters of
credit. Subsequently, the balance of the loan was
reduced to $800,000.
The transfer occurred in December 1991 as part
of a reinsurance transaction, according to the court.
United Physicians caused $2.9 million to be paid
from the "L.I. O.N. Trust Account for U.P.I." to
Anchorage Fire and Casualty Insurance Co.
Anchorage used part of the funds to retire cer-
tain UPI debts, including the $800,000 bank loan.
The court noted that the parties do not agree
that the funds used to pay off the loan were UPI's
funds and the court assumed the truth of the
allegation for purposes of the motion to dismiss.
According to the court, UPI's 1991 annua! state-
ment showed it to be insolvent by $764,102. UPI
was placed under administrative supervision in
March 1992, ordered into rehabilitation in April
1992 and ordered into liquidation in July 1992.
In June 1994 the commissioner filed a complaint
seeking to avoid Anchorage's payment to the bank
as a voidable preference. The bank successfully
moved to dismiss the complaint because the pay-
ment did not occur within four months of the
filing of the petition for liquidation as set out in
Tenn. Code Ann. Section 56-9-3 17(a)(2)(B) which
provides that a "preference may be avoided by
the liquidator if . . . (tjhe transfer was made
within four (4) months before the filing of the
petition," the court noted.
Therefore, the court held, the question of whether
a preferential transfer entered into more than four
months before the filing of the petition for liq-
uidation is voidable when made within four
months before the filing of a rehabilitation peti-
tion centers on what is meant by "petition."
In ruling, the court considered the phrase "the
petition" in three contexts.
In the context of the language of the section it-
self, the coun held that the term "preference" is
"framed chiefly in the context of a liquidation
proceeding" and as stated in Section 56-9-
317(a)(2) "can only refer to a petition for liqui-
dation."
O COPYRICKT 19% MEALEY PUBLICATIONS. INC . WAYNE. PA
450
February 22. 1996
MEALEY'S LITIGATION REPORTS
INSURANCE INSOLVENCY
Vol. 7. #18
Next, considering the phrase in the context of
the Insurers Rehabilitation and Liquidation Act,
the court found that the act's provisions allow-
ing both liquidators and rehabilitators to set aside
fraudulent conveyances "demonstrate that
the legislature understood the difference be-
tween rehabilitation and liquidation proceedings
and that it intentionally drafted Tenn. Code
Ann. § 56-9-3 17(a)(2)(B) to exclude petitions for
rehabilitation."
Finally, considering the term in the context of
the purposes of the act, the coun noted that the
purpose of rehabilitation is to preserve a compa-
ny as an ongoing business. "Since officer and
employees of on-going insurance companies do
not have the authority to avoid preferences, re-
habilitators likewise do not have this authority,"
the court held.
Further, the coun noted, "A preferential trans-
action is one that circumvents the statutory pri-
ority provisions thereby permitting a creditor to
obtain more than its fair share of an insurance
company's estate upon dissolution. Since cred-
itors of an on-going insurance company have no
claims against the insurance company's "estate,'
rehabilitators need not concern themselves with
preferences or with the priority of creditors'
claims." Therefore, the court found, "preferen-
tial transfers, by their very nature, have no rel-
evance in a rehabilitation proceeding."
Concluding, the coun noted that the first men-
tion of the power to avoid preferences appears
in the delineation of a liquidator's duties. "It is
only in the context of a liquidation proceeding
that the avoidance of preferences makes sense,"
the court held.
Judge William C. Koch wrote the court's opin-
ion, joined by Judges Samuel L. Lewis and Ben
H. Camrell.
The liquidator is represented by William B.
Hubbard of Weed. Hubbard, Berry & Doughty
in Nashville. Tenn. Counsel for the bank are
Ronald Lee Oilman of Farris. Mathews, Oilman,
Branan & Hellen of Memphis, Tenn., and John
Knox Walkup of Gullett. Sanford, Robinson &
Manin in Nashville. ■
Missouri Association
Liable For Damages,
Attornefv Fees
LOUIS, Mo. — The Missouri Insura
Guaranty Association (MIGA) is liable fgrf'^actu-
al damages up to the statutory cov^t'age limit
plus attorney fees incurred by an >fisured of an
insolvent carrier in defending>« discrimination
claim, a state appeals courj/nere has held, af-
firming a summary judgment (Missouri Property
& Casualty Insuranca/Ciuarantv Association v.
Petrolite Corp. N</^68061. Mo Ct nf App
Eastern Dist).
(Text of Of>inion in Section D. Mealey's Doc-
ument>n0-960222-104.)
fie court held that the policy of the insolvent^
insurer provided coverage for an age discrin
nation claim, that MIGA was obligated tQ/-pro-
vide a defense and that MIGA's statutory^over-
age limit did not apply to attorney fj« incurred
in defending the insured after MKjA withdrev
its defense in the employment d>«crimination case.
Defendant Petrolite Corp^was insured under a
commercial catastroctie policy issued by now-
insolvent Integrity^surance Co. providing cov-
erage of $5 nuKion per occurrence, $5 million
annual aggreg^e, with a retained limit of $10,000.
■lying Litigation
1 October 1985, former Petrolite employee Wil-
liam M. Zachary filed a discrimination cha^
with the Equal Employment Opportunity >€^m-
mission (EEOC) claiming he was dischjtfged by
Petrolite because of his race. The EEDC filed a
complaint against Petrolite in September 1<
in the U.S. District Court fpt the District of
California.
MIGA provided Petperfite with a defense in the
place of the insolv^ insurer and settled by paying
Zachary $ll,Op«r MIGA then asked Petrolite to
pay it the S^t),000 retained limit under the In-
tegrity KiJficy, but Petrolite refused.
«a COPYRIGHT 1996 MEAL£y PUBLICATIONS. INC . WAYNE. PA
451
FINANCIAL DISCLOSURE REPORT
Nomination Report
Fepon Requirtd by the Elttici
Reform Act o/ 1989. Pub L No.
101194. November 30. 1989
(} US.C. App. 4 . Sec. I0III2)
1. Penon Reporllni (Lasi mme. flrsl. miiUk imiial)
Gllman, Ronald L.
2. Court or Orfuilxalloii
U. S. Court of Appeals, 6 CIr.
3. Date of Report
07/17/1997
lAnicle III Judges indicale acnve or
senior aalus: magistrate judges indicale
fiilt- or pan-time)
U. S. Circuit Judge Nominee
5. Report Type (check type)
X. Nomination. Dace 07/16/1997
Initial Annual Final
i. Reporting Period
01/01/1996
06/30/1997
7. Chajnben or OfTice Address
One Commerce Square #2000
Memphis, TN. 38103
8. On the basis of the in/ormatlon contained in this Report and any
modirications pertaining thereto, it is in my opinion, in compUanci
with applicable laws and regulations.
Reviewing Ofllcer
DiiPORTAyr NOTES: The instruaions accompanying this form must be followed. Complete alt parrs,
checking the NONE bos for each seaion where you have no reportable informalion. Sign on the tost page.
I. POSITIONS Ottporting individual only:
□ POSITION
NONE (No reportable posjiions.)
Member
^ Vice President
' Board Member
e pp. 9- 1 i of Instructions)
NAME OF ORGANIZATION / ENTITY
Fanis, Mathews, Oilman, Branan, & Hellen, P.L.C
Association of Attorney-Mediators, West Tn. Chap
Boy Scouts of America, Chickasaw Council
n. AGREEMENTS (Reporting individual only: see pp. 14-n of Inaruaions.)
DATE PARTIES A.ND TERMS
, NONE (No rcporuble agreements.)
^ 1997
Farrls. Mathews, et al - buy out of partnership interest within
90 days of withdrawal; 401 (k) plan Interest will be transferred
to an IRA
III. NON-INVESTMENT INCOME (Reporting individual and spouse: see pp. 18-25 of Instructions.)
DATE
PARTIES AND TERMS
NONE (No reportable non-investment i
1995
2 1996
Farris. Mathews, et al - member
Farris. Mathews, et al - member
University of Memphis School of Law - adjunct prof
Farris, Mathews, et al - member
5 June 97 University of Memphis School of Law - adjunct prof
GROSS INCOME
(yours, not spouse's)
$ 251,597.00
EXHIBIT
1 1
$ 231,635.00
S 1,950.00
$ 86,640.00
$ 1,950 00
452
FINANCUL DISCLOSURE REPORT
Name of Penon Repomng
Gilman, Ronald L.
Date of Report
07/17/1997
IV. REIMBURSEMENTS and GIFTS - crmspotunon. lodging, food, enwiuinmenl.
ilnctiulei thuse to spouse and dependent children; use Ihe poremheticats '(S) ' and '(DQ ' to indicate repanable reimbunetnents and gifts received by spouse
and dependent children, respectively. See pp. 26-19 of Instructions )
SOURCE
NONE (No such rcporuble reimbuRcmcnu or gifts)
DESCRimON
Exempt
V. OTHER GIFTS
(Includes those to spouse and dependent children;
respectively. See pp. 30-33 of Instructions.)
SOURCE
NONE (No such reportable gifts)
- the parentheticals 75) ' and '(DO * to indicate other gifts received by spouse and dependent children,
DESCRIFnON VALUE
Exempt
VI. LI.\BILITIES
(Includes those of spouse and dependent children: indicate where applicable, person responsible for UabiUry by using the parenthetical '(Si' for separate
liability of the spouse. ' (J)' for joint liability of reporting ituUvidual and spouse, and '(DQ'for Uabiliry of a dependent child. See pp. 34-36 of Instruaions.)
CREDITOR
NONE (No reportable liabilities)
DESCRIPTION
VALUE CODE*
' VALCODES:I-J15.(»Uorless K-JI5.0OI-J5O.0UO L-tJO.OOl 10 JKM.OOO M-$IUO.001I250.(X)0 N -KSO.UOl $500,000
0-J500.00I-$I.OOO.OOO PI-JI.OOO.OOIJS.OOO.OOO P2-t5.OUO.OOI-J25.0OO.0OO P3-J23,0OO.0OII5O.OOO,U0O P4-J5U.000.OOI or more
453
Name of Person Reponiag
FINANCIAL DISCLOSURE REPORT I Q^^"^"- Ronald L.
Date of Report
07/17/1997
vn.
- income, value, transaaions (Includes those of spouse and
Page 1 INVESTMENTS and TRUSTS ilependem children. See pp. 37-54 of instructions.)
A.
Docriplioa of Asseu
Iruliaae wlure appUcablt. owner af
Ifu asset by using the parenthetical
'Ui' /or joint owmnhtp of reporting
indivtdtult onti spcuse. '(S)' for lep-
erase ownership try spouse. 'IDQ '
for ownership by dependent chtUt.
Place '(X) ■ after each asset
aeniplfrom prior itisclosure.
B
Income
during
reporring
period
C.
Grou value
•lend of
reponing
period
D.
TraiuacUoiu dunng reponing period
(1)
Ajm.
Code
(A-
H)
(2)
Type
(e.g..
dividend.
interest)
(1) \m
Viluei Vilue
Code i Medwd
(J-P) Code
(Q-W)
(1)
Type
(e.g.,
buy, sell,
merger,
redemp-
tion)
ir not eiempi from disclosure
(2)
Dale:
Month-
Day
(3)
Value
Code
(J-P)
(4)
Gain
Code
(A-H)
(5)
Identity of
buyer/seller
(if pnvate
transaction)
NONE (no repomble incomcasseo. oc
transactions)
1
1
i
Exempc
1 ta. cent. Infl Disc. (J)
A
Dividend
K 1 T
1
3 Am. Cone. Infl Disc. «01(k)
C
Dividend
M T
4 An. Cent. Pr. Capital Rss. (J)
C
Dividend
S Evergreen Tax Kx (J)
B
Dividend
K
T
« Fidelity Divsfd. Infl (J>
A
Dividend
H
T
7 Fidelity Divsfd. Infl IRA
A
Dividend
L
T
8 Fidelity Divsfd. Infl IRA (SI
A
Dividend
K
T
9 Fidelity Real Estate (Jl
D
Dividend
H
T
10 Fidelity Sel. Am. Gold (J)
*
Dividend
11 Fidelity Sel. Natural Gas IRA
B
Dividend
12 Fidelity Sel. Natural Gas IRA (S)
B
Dividend
U Fidelity Sel. Prec. Metals (J)
A
Dividend
14 Fidelity Sel. Prec. Metals IRA
A
Dividend
15 Fidelity Sel. Prec. Metals IRA
(SI
A
Dividend
1
IS Fidelity SE Asia (Jl
A
Dividend
n Fidelity Spar. Muni M. (Jl
A
Dividend
lire/Gain CodesA-Jl.OOO or less B-1 1,00 (-$2,500 C-J2.501-$5.0<X) D-J5.00( -J 15.000 E.$I5.001-$50.000
(Col. BI.D4) F-JSO.Ofll-JlOO.OOO G-J100.00I-JI,000.000 Ml-J1.00O.0OI-J5.0OO,0Ofl H2-J5.000.001 ormore
2ValCo<la: J-$1S,OOC or less K-J 15.001 -$30,000 L-$50.001-$100.000 M-$100,OOI-$250.000 N-J250.001 -$500,000
(Col.Cl.D31 C>-$500.001-$ 1,000.000 Pl-$l,000,00l-$5.000.000 P2-$S,0OO.0Ol -$25,000,000 P]-$25.0OO,0OI-$5O.OOO.0OO P4-$50.000,001 or more
] Val Mill Ca<tes: Q-Appraisal R-Cosi (real ellale only) S-Assessmenl T-Cuh/Markel
(Col. C2) U-Uook Vilue V-Olher W-EslimaleJ
454
Name of Person Reporting
FINANCIAL DISCLOSURE REPORT | oilman, Ronald L.
>. value, iransaaions (includes those of spouse and
I Dale of Repon
I 07/17/1997
^^ ^^ - income, value, transaatons (includes those of spouse
VII, Page 2 INVESTMENTS and TRUSTS dependent children. See pp. 37-54 of Instntaions.)
A.
Descrtpdon of Asseu
Indicose where applicable, owner of
the asset by using the parenlheticat
'(J)' for joint ownership of reporting
individual and spouse. ' IS} ' for lep-
erase owntrshtp by spouse. 'IDQ'
for ownership by dependent child.
Place ■«)• after each asset
ejiemptfrom prior disclosure.
B.
Income
during
reponing
penod
C.
Gross value
at end of
reporting
penod
D
Transactions during reporting period
(I)
Amt,
Code
(A-
H)
(2)
Type
(e.g,.
dividend.
rem or
interest)
(1)
Value
Code
(J-P)
(2)
Value
Method
Code
((3-W)
(1)
Type
(e.g..
buy. sell.
merger,
redemp-
uon)
If not exempt from disclosure
(2)
Date:
Month-
Day
(3)
Value
Code
(J-P)
(4)
Gain
Code
(A-H)
(5)
Identity of
buyer/seller
(if private
transaction)
NONE (no reporable income.isseB. or
transactions)
la MPS Cash Res. 401 (kl
A
Dividend
1
19 MFS Gold & Nat;. Rea. 401(kl
A
Dividend
20 Janus Overseas (J)
A Dividend
L 1 T
21 Lindner Bulwark (J)
C Dividend
M 1 T
22 R-S ContLrarian (J)
D
Dividend
N
T
23 T. Rowe Price Muni. M. (J)
A
Dividend
24 Vanguard Energy (J)
B
Dividend
25 Vanguard Gold & P. M. (J)
B iDividend
1
26 Vanguard Inc'l Gro. (J)
A
Dividend | M 1 T
1 1
27 Farris, Mathews, ec al
B
Interest
K 1 0
1
28 Gulf Housing L.P.
A
Dividend
L j W
29 Locke Rd. Farms in Sh. Co.
A
Incereat
j
30 Pasture land in sh. Co.
A
Rent
H 1 W
1
31 NBC (J accc.)
A
Intereat 1 J j T
32Mort. note; C. Mednikow
D
Interest | l
T
1
Ilnc/OalnCodes :A-$l.000orkS5 B-$l.001J2.50O C-J2.5OI-J5.0OO D-I5.0O1-II5.0OO E-JIS.OOl-JSO.OOO
(Col BI.D4) F-J50.00l-I100,000 G-1 100.001 -J 1.000.000 H 1 -J 1. 000,00 1-J5. 000.000 H2-J5.00O,0Ol oi more
IValCodes: J-J 15.000 or less K-J 15,00 1 -$50,000 L-JSO,OOI -J 100,000 M-JIOO,001-I250.000 N-J250,0Ol-J50O,000
(Col C1,D3) O-J500,001 -J 1.000,000 Pl-J1.000,001-J5,000,000 P2-J5,0OO,OOI-I25,0OO.OO0 P3-J25.000,001-J50.000,000 P4-J50,000,001 or more
3 Val Mlh Codes Q-Appraisal R<oil (real eslale only) S-AsjessmenI Kash/Markcl
(Col. C2) U-Dook Value V-Olher W-Eslimaled
455
Name of Person Reporting
FINANCIAL DISCLOSURE REPORT] Gilman, Ronald L.
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.
I NONE (No addittoul infomulion or explaniuoiu.)
(Ifidicaie ptn of repon.)
Due of Report
07/17/1997
FINANCIAL DISCLOSURE REPORT
Name of Person Repotting
Gilman, Ronald L.
Date of Repon
07/17/1997
SECTION HEADING, (indicate part of report.)
SECTION 1. POSITIONS (confd.)
Li. Position Name of Organization/Entity
4 Board Member
Capital Case Resource Center of Tennessee ( 1 995)
456
FINANCUL DISCLOSURE REPORT
Name of Person Reponing
Gilman, Ronald L.
Date of Repon
07/17/1997
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 at 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
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the 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 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. app. 4, section 501 et. seq., 5 'J.S.C. 7353 and Judicial
Conference regulations.
Signature
.'^...di^^^.il.
D.« ^/n/<^^
Note:
Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative OfFice of the United States Courts
One Columbus Circle, N.E.
Suite 2-JOI
Washington, D.C. 20544
457
Ronald Lee Gllman
BeCsy D. Gllman
FINANCIAL STATEMENT
NET WORTH
June 30, 1997
Provide a complete, cuirent financial net worth statement which itemizes in detail
all assets (including bank accounts, real esute, securities, trusts, investments, and other financial
holdings) all liabilities Cmcluding debts, mortgages, loans, and other financial obligations) of
yourself, your spouse, and other immediate members of your household.
j ASSETS
LIABIUTIES
Cuh oa bMoi ind ia buJu
18,
000
Noiei paytbk to biola-ucurod
-
tJ4. Govemmtnt Mcuricia-idd
-
Nolo ptyibk to btcla-unseoBul
-
Uatd ttaaiaa-yU (chedulc
1,
788,
000
Note! pmyiblt to nltaya
-
Ualiiied $tasiaei-tdd (chcdule
62,
000
Hotct payifale to otbm
-
1
Accaonu uid notes reccivible:
-
Accounts lAd bills due
-
1
Due from reltQvu and frieiids
-
Unpaid income tiz
1
Duc&om odiat
Other unpaid tix and interest
-
:
Doubtful
-
Real cstau martfa^es payable-tdd
•diedule
-
Keil awe owTud-4dd idiedule
387,
000
able
-
Rul awe mangigci teccivibU
61,
000
-
Aiitoi Uid other pmoail ptopeny
I'l,
noo
Cuh vtJue-Iile insunncs
39,
300
1 Other useu-ilemize:
Law firm buy-out value
42,
300
Xotll T^flWi'l'f^'**
0
Net Worth
2
,472,
300
Total AueU
2
,472
,000
Total UabiliQea and net wotth
2
,472,
300
CONTINCENT UABIUnES
GENERAL INFORMAnON
Xi eadorser, coouJur or punator
25
000
Are any assets pledged (Add iched-
ale.)
no
Oa leuei or conncu
_
An you dcfodant in any toiu or lefal
actioiu?
no
Lcgtl CUiflU
Have you erer takes bjr.ltrtiptcy?
no
Proviiioo for paUnl Income Ttx
-
Other cpccuJ ilebl
1 -
EXHIBIT
P ?
458
Ronald Lee Gilman and Betsy D. Gilman June 30, 1997 NET WORTH SCHEDULE
Listed Securities
American Century Mutual Fund
Evergreen Mutual Fund
Fidelity Mutual Funds
Janus Mutual Fund
Lindner Mutual Fund
Robertson-Stephens Mutual Fund
Vanguard Mutual Fund
Total
133,000
43,000
688,000
60,000
181,000
487,000
196,000
1,788,000
Unlisted Securities
Gulf Housing Limited Partnership
62,000
Real Estate Owned
Residence in Memphis, TN
30 Acres in Shelby County, TN (undivided % interest)
222,000
165,000
387,000
459
Sotomavor Senate Questionnaire
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
OUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any foimer names used.)
Sonia Sotomayor — October 1983 to the Present.
Sonia Sotomayor de Noonan, Sonia Maria Sotomayor de Noonan,
or Sonia Noonan, Married Names — August 1976 to October 1983.
As pari of my divorce decree, I resumed my maiden name without my
middle name.
Sonia Maria Sotomayor — Birih to Marriage, August 1976.
Address: List current place of residence and office address(es).
RESIDENCE: OFFICE:
New York, New York U.S. Courthouse
500 Pearl Street, Room 1340
New York, New York 10007
Date and place of birth.
June 25, 1954
New York, New York
Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Divorced since October 1983. Engaged to be married to Peter White,
President of Commercial Residential and Industrial Construction
Corporation, 656 Central Park Avenue, Yonkers, New York 10704,
460
Sotomavor Senate Questionnaire
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
SCHOOL
DEGREE
DATES
ATTENDED
GRADUATION
Yale Law School
Princeton
University
J.D.
A.B., Summa
Cum Laude
1976-1979
1972 - 1976
June 1979
June 1976
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 fi-om college.
DATES OF
ORGANIZATION
ADDRESS
ASSOCIATION
POSITION
United States District
U.S. Courthouse
10/92 to present
Judge
Court - Southern
500 Pearl Street
District of New York
New York, NY
10007
Pavia & Harcourt
600 Madison Ave.
1/88 to 10/92
Partner
New York, NY
4/84 to 12/87
Associate
10022
New York County
1 Hogan Place
8/79 to 3/84
Assistant
District Attorney's
New York, NY
District Attorney in
omce
10013
Trial Bureau 50
Sotomayor & Associates 10 3rd Street
1983-1986
Counseling and
Brooklyn, NY
consulting work for
11231
family and friends
Yale Law School
127 Wail Street
9/78 to 5/79
Sales person
Mimeo Room
New Haven, CT
06520
Paul, Weiss, Rifkind
1285 Avenue of the
6/78 to 8/78
Summer Associate
Wharton & Garrison Americas
New York, NY 10019
461
Sotomavor Senate Questionnaire
The Graduate,
Professional Studen'
Center
306 York Street
New Haven. CT
06520
9/77 to 5/78
Sales person
Office of the
General Counsel,
Yale University
The Equitable Life
Assurance Society
of the United SUtes
Woodbridge Hall
New Haven, CT
06520
1285 Avenue of the
Americas
New York, NY
10019
6/77 to 9/77
6/76 to 8/76
Summer Intern
Summer Clerk
New York City
Campaign Finance
40 Rector Street
New York, NY
10006
1988 to 10/92
Member,
Board of Directors
State of New York
Mortgage Agency
260 Madison Avenue
New York, NY
10016
1987 to 10/92
Member,
Board of Directors
Puerto Rican Legal
Defense & Education
Fund
99 Hudson Street
New York, NY
10013
1980 to 10/92
Member,
Board of Directors
Maternity Center
Association
48 East 92nd Street
New York, NY
10128
1985 - 1986
Member,
Board of Directors
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.
Honors and Avyards: List any scholarships, fellowships, honorary degrees, and honorary
society memberships that you believe would be of interest to the Committee.
I received financial assistance in the form of scholarships during my four
years at Princeton University and my three years at Yale Law School. I
graduated summa cum laude, Phi Beta Kappa, from Princeton. Princeton
awarded me, as a graduating student co-winner, the M. Taylor Senior Pyne
Prize, for scholastic excellence and service to the University. My senior thesis
work received an honorable mention from the University's History
Department.
462
Sotomavor Senate Questionnaire
While at law school, I served as an Editor of the Yale Law Journal and
Managing Editor of the Yale Studies in World Public Order. I was also a
semi-flnalist in the Barrister's Union competition, a mock trial presentation.
In reverse chronological order, I have received the following awards:
Secretary of State of Puerto Rico
July 4, 1996
Award as Distinguished Woman in the Field of Jurisprudence
Latino American Law Student Association
of Hofstra University School of Law
March 15, 1996
Award in Recognition of Outstanding Achievement
and Dedication to the Latino Community
District Attorney - New York County
January 17, 1995
Award for Outstanding and Dedicated Service
to the People of New York County from 8-13-79 to 3-16-84
National Puerto Rican Coalition, Inc.
October 20, 1994
Lifetime Achievement Award
National Conference of Puerto Rican Woman
New York City Chapter
March 24, 1994
Certificate of Excellence in Grateful Recognition of
Outstanding Achievements and Contributions to the Community
Cardinal Spellman High School
Honors Night 1993
Excellence with a Heart Medal
Hispanic National Bar Association
Law Student Division
September 25, 1993
Lifetime Achievement Award
463
Sotomavor Senate Questionnaire
Hispanic National Bar Association
September 24, 1993
Award for Commitment to the Preservation of Civil
and Constitutional Rights for all Americans
Bronx Community College
of the City University of New York
Paralegal Studies
June 17, 1993
Human Rights Award for Service to Humanity
John Jay College of Criminal Justice
May 27, 1993
Claude E. Hawley Medal for Scholarship and Service
The Puerto Rican Bar Association, Inc.
1993
Emilio Nunez Award for Judicial Service
Bar Association: 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, Budget Committee of the Southern District of New York
("S.D.N. Y."), 1996 to present.
Member, Pro Se Committee of the S.D.N. Y., 1996 to present.
Member, Puerto Rican Bar Association, 1994 to present.
Honorary Member, Public Service Committee of the Federal Bar Council,
1994 to the present.
Member, Second Circuit Task Force on Gender, Racial, & Ethnic Fairness,
1993 to present (Preliminary Draft Report Attached).
Member, Committee on Rules of Practice and Procedure of the S.D.N.Y.,
1993 to present.
Member, Grievance Committee of the S.D.N.Y, 1992 to present.
5
464
Sotomavor Senate Questionnaire
Member, Hispanic National Bar Association, 1992 to present.
Member, American Bar Association, 1980 to present.
1 0. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies.
None.
Please list all other organizations to which you belong.
None.
1 1 . 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 lapsed membership. Give the same information for administrative bodies which
require special admission to practice.
United States District Court, Eastern District of New York - March 30, 1984.
United States District Court, Southern District of New York ~ March 27,
1984.
New York - First Department - April 7, 1980.
12. Published Writings: Listthe 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.
Note, Statehood and the Equal Footing Doctrine; The Case for Puerto Rican
Seabed Rights. 88 Yale L.J. 825 (1979) (copy attached).
Sonia Sotomayor & Nicole A. Gordon, Returning Majesty To The Law and
Politics; A Modern Approach. 30 Suffolk U.L. Rev. 35 (1996) (copy
attached).
The speeches I have given, in reverse chronological order, are as follows;
46f
Sotomavor Senate Questionnaire
Sonia Sotomayor, The Genesis and Need of an Ethnic Identity, Keynote
Speech at Princeton University's Latino Heritage Month Celebration (Nov. 7,
1996).
Sonia Sotomayor, El Orgullo y La Responsabilidad de Ser Latino y Latina,
Keynote Speech for the National Board of Governor's Reception of the
Hispanic National Bar Association held at the Association of the Bar of the
City of New York (May 17, 1996).
Sonia Sotomayor, El Orgullo y La Responsabilidad de Ser Latino y Latina,
Speech at the Third Annual Awards Banquet and Dinner Dance for the
Latino and Latina American Law Students Association of Hofstra University
School of Law (Mar. 15, 1996).
Sonia Sotomayor, Hogan-Morgenthau Award Address (Jan. 17, 1995).
Sonia Sotomayor,/! Judge's Guide to More Effective Advocacy, Keynote
Speech at the 40th National Law Review Conference (Mar. 19, 1994).
Sonia Sotomayor, Women in the Judiciary, Panel Presentation at the 40th
National Conference of Law Reviews (Mar. 17, 1994).
Sonia Sotomayor, Doing What's Right: Ethical Questions for Private
Practitioners Who Have Done or Will Do Public Service, Presiskel/Silverman
Speech at the Yale Law School (Nov. 12, 1993).
The drafts of these speeches are attached. I am unaware of any press reports
about any of my speeches. I am aware of one press report of a panel
presentation of which I was member, Edward A. Adams, Women Litigators
Discuss Battling Bias in Courtroom, N.Y. Law Journal, April 2, 1993, at 1.
This press report is also attached.
13. Health; What is the present state of your health? List the date of your last physical
examination.
Good. Please note, I am a juvenile diabetic (insulin dependent since age 7).
My condition is permanent and subject to continuing treatment. It does not
impair my work or personal life. My last physical examination was January
1997.
466
Sotomayor Senate Questionnaire
14. Judicial Office: State (chronologically) any judicial office you have held, whether such
position was elected or appointed, and a description of the jurisdiction of each such court.
Appointed by President George W. Bush as a United States District Court
Judge for the Southern District of New York. I commenced service on
October 2, 1992. The United States District Court for the Southern District
of New York includes the counties of the Bronx, Dutchess, New York,
Orange, Putam, Rockland, Sullivan, and Westchester, and, concurrently
with the Eastern District of New York, the waters within the Eastern District.
The jurisdiction of United States District Courts is limited to those matters
permitted by Article III, Section 2 of the United States Constitution.
1 5 . 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 criticisms 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) The following, in reverse chronological order, are ten of my most significant
opinions, with citations.
1. United States v. The Spy Factorv. Inc.. 951 F. Supp. 450 (S.D.N. Y. 1997).
2. Krueger Int'l v. Nightingale. Inc.. 915 F. Supp. 595 (S.D.N. Y. 1996).
3. United States v. Lech. 895 F. Supp. 586 (S.D.N.Y. 1995).
4. Refac Int'l. Ltd. v. Lotus Development Corp.. 887 F. Supp. 539 (S.D.N.Y.
1995), afTd. 81 F.3d 1576 (Fed. Cir. 1996).
5. Silverman v. Major League Baseball Player Relations Committee.
880 F. Supp. 246 (S.D.N.Y. ), afTd. 67 F.3d 1054 (2d Cir. 1995).
6. Modeste v. Local 1199. Drug. Hospital & Health Care Employees Union.
850 F. Supp. 1156 (S.D.N.Y.), afTd. 38 F.3d 626 (1994).
7. United States v. Hendrickson. 26 F.3d 321 (2d Cir. 1994) (sitting by
designation).
467
Sotomavor Senate Questionnaire
8. Campos v. Coughlin. 854 F. Supp. 194 (S.D.N. Y. 1994).
9. Azurite Corp.. Ltd. v. Amster & Co.. 844 F. Supp. 929 (S.D.N.Y. 1994),
afTd. 52 F.3d 15 (2d. Cir. 1995).
10. Flamer v. Citv of White Plains. 841 F. Supp. 1365 (S.D.N.Y. 1993).
(2) The following, in reverse chronological order, is a short summary of and
citations for all appellate opinions where my decisions were reversed or where my
judgments were affirmed with significant criticisms of my substantive or procedural
rulings.
1. Hellenic American Neighborhood Action Committee v. City of New York.
933 F. Supp. 286 (S.D.N.Y.), rev'd. 101 F.3d 877 (2d Cir. 1996).
I granted a preliminary injunction on behalf of a contractor which alleged
that it was barred from city procurements in violation of its due process
rights under the Fourteenth Amendment. The Second Circuit reversed
without addressing whether the City's alleged misconduct deprived plaintiff
of protected property and liberty interests. The Court reasoned that even if
there was such a deprivation, there was no failure of due process because
there was an adequate remedy available to the contractor under state law.
2. Aurora Maritime Co.. Ltd. v. Abdullah Mohamed Fahem & Co.. 890 F.
Supp. 322 (S.D.N.Y. 1995), afTd on other grounds. 85 F.3d 44 (2d Cir.
1996).
The Second Circuit affirmed my decision denying a bank's motion to vacate
various Supplemental Admiralty Rule B attachments of plaintiffs bank
account. I held that "because plaintiffs obtained Rule B attachments before
[the bank] exercised its set-off rights . . . plaintiffs gained a limited property
interest under federal law that cannot be defeated by a subsequently
executed state law set-off right." Although upholding my ruling, the
Second Circuit disagreed with my conclusion "that [the bank's] set-off right
and appellees' Rule B attachments d[id] not conflict." Instead, the Second
Circuit reached the constitutional issue and found that the dismissal was
proper because federal law preempted the bank's right, under Section 15 1 of
state law, to the funds in the disputed account.
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3. European American Bank v. Benedict. 1995 WL 422089 (S.D.N.Y. 1995),
vacated. 90 F.3d 50 (2d Cir. 1996).
I affirmed a Bankruptcy Court decision rescinding its prior order which had
extended the time period for a creditor to file a dischargeability complaint.
I reasoned that the Bankruptcy Court did not have the discretion, under the
applicable statute of limitations, to extend the time for filing a complaint,
and that the Bankruptcy Court was therefore correct when it reversed its
initial decision to do so. Recognizing a split of authority on the issue, the
Second Circuit determined that the applicable limitations period under the
Federal Bankruptcy Rules is not jurisdictional, and that it is therefore
subject to waiver, estoppel, and equitable tolling. The Court proceeded to
enforce the Bankruptcy Court's initial decision to extend the period for
filing, because the debtor had waived its right to object to the extension by
failing to raise that objection prior to the expiration of the statutory
deadline.
4. Bernard v. Las Americas Communications. Inc.. (no written opinion),
afTd in part, vacated in part. 84 F.3d 103 (2d Cir. 1996).
Pursuant to a jury verdict, I entered judgment in favor of plaintiff, an
attorney, seeking legal fees in connection with his representation of
defendant in proceedings before the Federal Communications Commission.
Applying Washington, D.C. law, the Second Circuit approved of my jury
instructions on the issues of proximate causation and damages, but found
error with respect to my instruction on materiality. Specifically, I had
instructed that a material breach "defeats the purpose of [an] entire
transaction"; the Second Circuit held that D.C. law requires only that
defendant prove that he received "something substantially less or different
fi'om that for which he bargained." On remand, a jury again foimd for
plaintiff, and judgment was entered accordingly.
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5. Bolt Electric. Inc. v. Citv of New York. 1994 WL 97048 (S.D.N. Y. 1994),
rev'd. 53 FJd 465 (2d Cir. 1995).
I granted a motion to dismiss on behalf of the City of New York (the
"City") in a breach of contract action brought by plaintiff Bolt Electric, Inc.
("Boh'). I found that because the City had undertaken to pay Bolt for
general contracting services pursuant to a letter which was not filed and
endorsed by the City's Comptroller, as required under New York's
Administrative Code, the contract was unenforceable. The Second Circuit
reversed, reasoning that compliance with the endorsement provision of the
Administrative Code was not a mandatory precondition to the formation of
a valid contract. In the alternative, the Court reasoned that, even if the
contract was executed without proper authority, it was enforceable because
the City had funds available for performance.
6. Runquist v. Delta Capital Management. L.P. 1994 WL 62965 (S.D.N.Y.),
rev'd. 48 F.3d 1212 (2d Cir. 1994).
The Second Circuit reversed a decision in which I adopted a Magistrate
Judge's recommendation that plaintiffs claims of securities fi-aud be
dismissed. Before the Magistrate Judge, plaintiff failed to file a timely
opposition to defendant's motion for summary judgment, and subsequently
filed an affidavit which the Magistrate Judge foimd insufficient to raise a
triable issue of fact as to the element of reliance in plaintiflPs fraud claim.
The Second Circuit found, however, that the affidavit was sufficient to raise
an issue of material fact, and that it was error for me to have dismissed
plaintiffs remaining claims on the basis of his attorney's repeated
noncompliance with applicable filing procedures and deadlines.
(3) The following, in reverse chronological order, are citations for my
significant opinions on federal or state constitutional issues, together with
citations to appellate court rulings on such opinions.
1. Estate of Joseph Re v. Kornstein. Veisz & Wexler. 958 F. Supp. 907
(S.D.N.Y. 1997).
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2. United States v. The Spy Factory et al.. 951 F. Supp. 450 (S.D.N. Y.
1997).
3. National Helicopter Corp. of America v. City of New York. 952 F.
Supp. 1011 (S.D.N. Y. 1997).
4. United States v. Ni Fa Yi. 951 F. Supp. 42 (S.D.N. Y. 1997).
5. Gelb V. Board of Elections. 950 F. Supp. 82 (S.D.N. Y. 1996).
6. United States of America^ Louis Menchaca. 96 Civ. 5305, decision
unpublished, read into the record on August 26, 1996.
7. Hellenic American Neighborhood Action Committee v. City of New
York. 933 F. Supp. 286 (S.D.N. Y. 1996), rev'd. 101 F.3d 877 (2d Cir.
1996).
8. In re St. Johnsbury Trucking Co.. Inc.. 191 B.R. 22 (S.D.N. Y. 1996);
199 B.R. 84 (S.D.N.Y. 1996).
9. United States v. Jimenez. 921 F. Supp. 1054 (S.D.N. Y. 1995).
10. Lee V. Coughlin. 902 F. Supp. 424 (S.D.N. Y. 1995), reconsideration
granted. 914 F. Supp. 1004 (S.D.N.Y 1996).
11. Ortiz V. United States. 1995 WL 130516 (S.D.N.Y. 1995), afPd. 104
F.3d 349 (2d Cir. 1996).
12. Senape v. Constantino. 1995 WL 29502 (S.D.N.Y. 1995), afTd. 99
F.3d 401 (2d Cir. 1995).
13. Clapp V. LeBoeuf. Lamb. Leiby & MacRae. 862 F. Supp. 1050
(S.D.N.Y. 1994), afTd. 54 F.3d 765 (2d Cir.), s£rL denied. 116 S. Ct.
380 (1995).
14. Campos v. Coughlin. 854 F. Supp. 194 (S.D.N.Y. 1994) (cited with
approval in Jolly v. Coughlin. 76 F.3d 468 (2d Cir. 1996).
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15. Flamer v. Citv of White Plains. 841 F. Supp. 1365 (S.D.N. Y. 1993).
16. United States v. Castellanos. 820 F. Supp. 80 (S.D.N. Y. 1993).
Copies of opinions not officially published are attached.
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.
1988 to 1992 - Board of Directors, New York City Campaign Finance
Board, appointed by the Mayor.
1987 to 1992 - Board of Directors, State of New York Mortgage
Agency, appointed by the Governor.
1979 to 1984 - Assistant District Attorney, New York County,
appointed by the District Attorney.
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, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New
York, 11231, from 1983 to 1986, but this work was more in the
nature of a consultant to family and friends in their real estate,
business, and estate planning decisions. If their circumstances
required formal legal representation, I referred the matter to my
firm, Pavia & Harcourt, or to others with appropriate expertise.
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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;
Dates of
Association
Organization
Address
Position
4/84 to 10/92
Pavia & Harcourt
600 Madison Ave.
Partner (1/88 to
New York, NY
10/92)
10022
Associate
8/79 to 3/84
New York County
1 Hogan Place
Assistant
District Attorney's
New York, NY
District
Office
10013
Attorney
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?
See 1(b)(2) below.
2. Describe your typical former clients, and mention the areas, if any, in which
you have specialized.
From April 1984 as an associate, and from January 1988 until
October 1992 as a partner, I was a general civil litigator involved in
all facets of commercial work including, but not limited to, real estate,
employment, banking, contract, distribution and agency law.
Moreover, my practice had significant concentration in intellectual
property law involving trademark, copyright and unfair competition
issues. I also worked in automobile franchise law, and export
commodity trading law under the North American Grain Association
Contract. I conducted over fifteen arbitration hearings involving the
banking, fashion, grain, and tire distribution industries. My typical
clients were significant European companies doing business in the
United States.
From August 1979 to March 1984, as a prosecutor in New York
County, my cases typically involved "street crimes," jiC., murders,
robberies, etc. I also investigated child pornography, child abuse,
police misconduct, and fraud matters. I further prepared the
responsive papers for five criminal appeals, two of which I argued
and ail of which resulted in affirmances of the convictions.
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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 appeared daily in court as a prosecutor and I appeared regularly in
court as a civil commercial litigator in New York with a largely
federal practice.
2. What percentage of these appearances was in:
In private practice As a prosecutor
1 . federal courts approx. 70% 0%
2. state courts of record approx. 20% 100%
3. other courts approx. 10% 0%
3. What percentage of your litigation was:
In private practice As a prosecutor
(a) civil 99% 0%
(b) criminal 1% 100%
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 tried over 23 cases to verdict. In two of the cases, I was chief
counsel and in another, co-counsel. In all other cases, I was sole
counsel.
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5. What percentage of these trials was:
1. Jury --90%
2. Non-jury -10%
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.
I list the ten litigated matters in reverse chronological order.
1.
Case Name: Fratelli Lozza (USA) Inc. v. Lozza fVSA\ & Lozza SpA
Court: United States District Court, Southern District of New York
Index No.: 90 Civ. 4170
Judge: Then District Court Judge Fred I. Parker (sitting by designation)
Federal Building
1 1 Elmwood Avenue
P.O. Box 392
Burlington, Vermont 05402
(802)951-6401
Date of Trial: March 16, 1992
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Sotomavor Senate Questionnaire
Co-Counsel: Allison C. Collard, Esq.
Attorney for co-defendant Lozza (USA)
1077 Northern Blvd.
Roslyn, New York 11576
(516)365-9802
Adversaries: Charles E. Temko
Teinko & Temko
19 West 44th Street
New York, New York 10036
(212)840-2178
Case Description: I represented the defendant Lozza SpA in this trademark infringement,
trademark abandonment, unfair competition, breach of contract, and
rescission action. The plaintiff, a corporation owned and operated by a
former shareholder of the defendant corporation, claimed the defendant
had breached an agreement with the plaintiff for the trademark use of
"Lozza" in the United States, had abandoned use of its marks in the United
States, and had infringed certain of the plaintiffs trademarks. I conducted
the trial for the lead defendant, and secured a dismissal of all of the
plaintiffs claims. The Court also issued an injunction against the
plaintiffs use of the defendants' marks, and of false and misleading terms
in its advertising. Findings of Fact. Conclusions of Law and Order
reported at 789 F. Supp. 625 (S.D.N. Y. 1992).
Administrative
Case Name;
Ferrari of Sacramento. Inc. v. Ferrari North America
Agency:
State of California New Motor Vehicle Board
(Appeared jjtq hac vice)
Protest No.
PR-973-88
Administrative
Law Judges:
Marilyn Wong
c/o New Motor Vehicle Board
1507 21st Street, Room 330
Sacramento, California 95814
(916)445-1888
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Sotomavor Senate Questionnaire
Robert S. Kendell (retired)
Contact: Michael Sabian
c/o New Motor Vehicle Boeird
1507 21st Street, Room 330
Sacramento, California 95814
(916)445-1888
Dates of Hearing: 10/16/90, 10/17/90, 10/31/90, 1 1/1/90, and 1 1/2/90
Co-Counsel: Nicholas Browning, III, Esq.
Herzfeld & Rubin
1925 Century Park East, Suite 600
Los Angeles, California 90067-2783
(310)553-0451
Adversaries: Jay-Allen Eisen
Jay-Allen Eisen Law Corporation
9A0 9th Street, Suite 1400
Sacramento, California 95814
(916)444-6171
Donald M. Licker, Esq.
2443 Fair Oaks Boulevard
Room 340
Sacramento, California 95825
(916)924-6600
Case Description: In or about 1 988, Ferrari North America ("Ferrari") terminated the
plaintiff dealer. Thereafter, the dealer filed a timely protest of the
termination with the California New Motor Vehicle Board (the "Board").
At a prehearing settlement conference, Ferrari and the dealer entered into a
Stipulated Settlement that permitted Ferrari to terminate the dealer,
without a hearing, if the dealer failed timely to cure specified obligations
under its franchise agreement with Ferrari. When the dealer breached the
terms of the Stipulated Settlement, Ferrari terminated the dealer, with the
Board's approval and without a hearing. The dealer then secured a writ of
mandate from a California court directing the Board to hold an
administrative hearing.
I had primary responsibility for representing Ferrari at the administrative
hearing. The Board determined that 1 ) the dealer had violated the terms of
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Sotomavor Senate Questionnaire
the Stipulated Settlement, 2) the violations constituted good cause for
Ferrari's termination of the dealer under California's Automobile
Franchise Law, and 3) the plaintiffs loss of its franchise was not an illegal
forfeiture under California law.
While the hearing before the Board proceeded after issuance of the
mandate, Ferrari also appealed the judgment on the writ, which judgment
was reversed on appeal in an unpublished opinion. The California Court
of Appeals, Third Appellate District, determined that enforcing the
Stipulated Settlement and terminating the dealer, without a hearing, did
not violate due process.
Although not listed as counsel for appellant's briefs, I contributed
significantly to the drafting of the briefs. The appellate case was
captioned Ferrari of Sacramento. Inc.. Respondent v. New Motor Vehicle
Board and Sam Jennings as Secretary. Appellants, and Ferrari North
America. Real Party in Interest and Appellant: No. C008840 in the Court
of Appeals of the State of California in and for the 3rd Appellate District;
Sacramento Superior Court, Case No. 360734.
Case Name: In re: Van Ness Auto Plaza. Inc.. a California Corporation, d/b/a Auto
Plaza Lincoln Mercury. Auto Plaza Porsche and Auto Plaza Ferrari.
Debtors.
Court:
United States Bankruptcy Court, Northern District of California
(Appeared j2m hac vifig)
Case No.:
3-89-03450-TC
Judgs:
Hon. Thomas E. Carlson
U.S. Bankruptcy Court Judge
235 Pine Street
San Francisco, California 94104
(415)705-3200
Dates of Hearing: 1/22/90 and 3/1 9/90
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Sotomavor Senate Questionnaire
Co-Counsel: Nicholas Browning, III, Esq.
Herzfeld & Rubin
1925 Century Park East, Suite 600
Los Angeles, California 90067-2783
(213)553-0451
Adversaries: Henry Cohen, Esq.
Cohen and Jacobson
Attorneys for Debtor
577 Airport Blvd., Suite 230
Burlington, California 90067-2783
(415)342-6601
William Kelly, Esq. (retired)
Address Unknown
Home Tel. No. (415) 641-1544
Case Description: I represented Ferrari North America ("Ferrari"), a franchisor of a bankrupt
dealer, in hearings related to Ferrari's opposition to the rejection of
customer contracts, assimiption of the dealer's franchise agreement, and
confirmation of the proposed sale of the dealer's franchise. At the time,
Ferrari was introducing a limited production and valuable new car model
to the marketplace. A rejection by the dealer of contracts for that model
would have frustrated the expectations of customers and subjected Ferrari
to potential multiple claims. After a number of hearings, the Bankruptcy
Court ruled that the dealer could not reject the customer contracts,
although financially burdensome, and then assume the franchise
agreement with Ferrari. The case also involved alleged claims by the
dealer and customers that Ferrari had violated the California automobile
franchise, antitrust, and securities laws. The case settled with the sale of
the dealership and resolution of claims among the bankrupt dealer, the new
franchise buyer, Ferrari, and customers.
Case Name: Fendi S.a.s. di Paola Fendi e Sorelle v. Burlington Coat Factory
Warehouse Corp.. et al.
Case No.: 86 Civ. 0671
Court; United States District Court, Southern District of New York
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Sotomavor Senate Questionnaire
Judge:
Co-Counsel:
Adversaries:
Dates of Trial:
Case Description:
Hon. Leonard B. Sand
U.S. District Judge
U.S. Courthouse
500 Pearl Street
New York, New York 10007
(212)805-0244
Frances B. Bernstein, Esq.
(Deceased)
Stacy J. Haigney, Esq.
Herbert S. Kasner, Esq.
Attorneys for Burlington Coat Factory Warehouse and
Monroe G. Milstein
Burlington Coat Factory Warehouse, Corp.
263 West 38th Street
New York, New York 10018
(212)221-0010
Dennis C. Kreiger, Esq.
Esanu, Katsky, Korins & Sieger
Attorneys for Firestone Mills, Inc. and Leo Freund
605 Third Avenue, 1 6th Floor
New York, New York 101 58
(212)953-6000
5/18/87 to 5/19/87
Combined Case Description in 5 below.
Case Name: Fendi S.a.s. di Paola Fendi e Sorelle v. Cosmetic World. Ltd.. Loradan
Imports. Inc.. Linea Prima. Inc. a/k/a Lina Garbo Shoes. Daniel
Bensoul. Michael Bensoul a/k/a Nathan BendeL Paolo Vincelli and
Mario Vincelli
Case No.: 85 Civ. 9666
Court: United States District Court, Southern District of New York
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Sotomavor Senate Questionnaire
Judges:
Hon. Leonard B. Sand
U.S. District Judge
U.S. Courthouse
500 Pearl Street
New York, New York 10007
(212) 805-0244
Hon. Joel J. Tyler
Magistrate Judge, U.S. District Court
Home address:
2 Primrose Avenue
Yonkers, New York 10710
Telephone unpublished
Co-Counsel:
Frances B. Bernstein
(Deceased)
Adversary: Stanley Yaker, Esq.
Attorney for Paolo Vincelli and Mario Vincelli
Former Address:
114 East 32nd Street
Suite 1104
New York, New York 10016
(212)983-7241
Telephone not in service. 1 have been unable to locate Mr. Yaker.
No attorneys appeared for the remaining defendants, who settled pro se.
Date of Inquest
Hearing: 1/6/88
Case Descriptions: From 1985, my former firm represented Fendi S.a.s. di Paola Fendi e
Sorelle ("Fendi") in Fendi's national anticounterfeiting work. Frances B.
Bernstein, a partner at Pavia & Harcourt (now deceased), and 1 created
Fendi's anticounterfeiting program. From 1988 until the time 1 left the
firm for the bench in 1992, 1 was the partner in charge of that program. I
handled almost all discovery work and substantive court appearances in
cases involving Fendi. This work implicated a broad range of trademark
issues including, but not limited to, trademark and trade dress
infringement, false designation of origin, and unfair competition claims.
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Sotomavor Senate Questionnaire
Approximately once every two months from 1989 to 1992, 1, for Fendi,
applied for provisional injunctive relief in district court to seize counterfeit
goods from street vendors or retail stores. These applications required
extensive submission of evidence documenting Fendi 's trademark rights,
its protection of its marks, the nature of the investigation against the
vendors, and Fendi's right to ex parte injunctive relief Generally, the
street vendors defaulted but others appeared and settled pro se. Two of
these cases filed in the Southern District of New York were captioned Jane
Doe V. John Doe and Various ABC Companies. 89 Civ. 3122, the Hon.
Thomas P. Griesa presiding (Tel. No. (212) 805-0210), and Fendi S.a.s. Pi
Paola Fendi e Sorelle v. Dapper Dan's Boutique. 89 Civ. 0477, the Hon.
Miriam G. Cedarbaum presiding (Tel. No. (212) 805-0198).
The preceding two cases (A4 and A5) involved a trial and a damages
hearing on Fendi's trademark claims against the defendants. In the first,
the Burlington case, Fendi alleged that defendants knowingly trafficked in
counterfeit goods and Fendi sought triple profits from the defendants and
punitive damages. After extensive discovery, submission of a pre-trial
order and memorandum, and Fendi's presentation of its expert at trial, the
case settled. I was sole counsel present at trial. In the Cosmetic World
case, the Court granted Fendi's summary judgment motion on liability and
referred the matter to a magistrate judge for an inquest on damages. See
642 F. Supp. 1 143 (S.D.N. Y. 1986). I conducted the contested hearing on
damages before the magistrate judge who recommended an award in
Fendi's favor.
6.
Case Name: Republic of the Philippines v. New York Land Co.. et al. (the
"Philippines Case") and Security Pacific Mortgage and Real Estate
Service Inc. v. Canadian Land Company, et al. (the "Security Pacific
Case").
Case Nos.: 90-7322 and 90-7398
Court: United States Court of Appeals for the Second Circuit
Panel: Hon. Thomas J. Meskill
U.S. Circuit Judge
1 14 W. Main Street, Suite 204
New Britain, Connecticut 06051
(203)224-2617
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Sotomavor Senate Questionnaire
482
Hon. Lawrence J. Pierce
U.S. Circuit Judge
c/o U.S. Courthouse
40 Foley Square
New York, New York 10007
(212)791-0951
Hon. George C. Pratt
U.S. Circuit Judge
U.S. Courthouse
Uniondale Avenue
Hempstead Turnpike
Uniondale, New York 1 1553
(516)485-6510
Co-Counsel: David A. Botwinik, Esq.
Pavia & Harcourt
600 Madison Avenue
New York, New York 10022
(212)980-3500
David Glasser, Esq.
Levin & Glasser, P.C.
675 Third Avenue
New York, New York 10471
(212) 867-3636
Roy L. Reardon, Esq. (455-2840)
David E. Massengill, Esq. (455-3555)
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Adversaries: Jeffrey J. Greenbaum, Esq.
James M. Hirschhom, Esq.
Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross
Attorneys for the Republic of the Philippines
Legal Center
1 Riverfront Plaza
Newark, New Jersey 07102
(201) 643-7000
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Sotomavor Senate Ouestmnniiirg
Pattof ArgMinynt: 6/1 5/90 (Argued by Roy L. Reardon, Esq. of Simpson, Thacher & Bartlett)
District Court
Case Name:
Case Nos.:
Court:
Judge:
Co-Counsel:
AND
Republic of the Philionines v. New York Land Co.. ct al dhp
"Philippines Case") and Security Pacific Mortgage and Real E.state
Service Inc. v. Canadian Land Company, et al. (the "Security Pacific
Case").
The Philippines Case: 86 Civ. 2294
The Security Pacific Case: 87 Civ. 3629
United States District Court, Southern District of New York
Hon. Pierre N. Leva!
U.S. Circuit Judge (Then District Court Judge)
U.S. Circuit Judge
U.S. Courthouse
40 Foley Square
New York, New York 10007
(212)857-2319
David A. Botwinik, Esq.
Pavia & Harcourt
600 Madison Avenue
New York, New York 10022
(212)980-3500
David Glasser, Esq.
Levin & Glasser, P.C.
675 Third Avenue
New York, New York 10471
(212) 867-3636
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Sotomayor Senate Questionnaire
Participating
Adversaries
Opposing Motion:
Jeffrey J. Greenbaum, Esq.
James M. Hirschhom, Esq.
Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross
Attorneys for the Republic of the Philippines
Legal Center
1 Riverfront Plaza
Newark, New Jersey 07102
(201)643-7000
Michael Stanton, Esq.
Weil, Gotshal & Manges
Attorneys for Security Pacific
767 Fifth Avenue
New York, New York 10153
(212)310-8000
Date of Argument: 2/12/90
Case Description: My former firm, Pavia and Harcourt, represented Bulgari Corporation of
America ("Bulgari"), an international retailer of fme jewelry, who was a
tenant in the Crown Building at 730 Fifth Avenue, New York, New York.
The Crown Building was the subject of a foreclosure sale in the Security
Pacific Action, and its beneficial ownership was in dispute in the
Philippines Action. Bulgari was not a party to these actions. The district
court denied Bulgari's request, by way of Order to Show Cause, to
approve a rental amount it had reached with the manager of the Crown
Building. I primarily drafted the papers presented to the district court and
argued the motion. Bulgari's motion attempted to demonstrate that no
competent evidence existed to dispute Bulgari's proof that the rental
amount agreed upon was at or above fair market value and benefited the
Crown Building and its claimants. Bulgari appealed the district court's
denial of its approval of the rent agreement on the grounds that the denial
was effectively an injunction against Bulgari's exercise of its contractual
lease rights to have its rent fixed by agreement during the term of the
lease, and that the district court improperly granted the injunction without
a hearing. I did not argue the appeal but participated extensively in the
drafting of appellant's brief and reply. The district court's Order was
affirmed on appeal, without a published opinion. 909 F.2d 1473 (2d Cir.
1990).
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Sotomavor Senate Questionnaire
7.
Case Name: Miserocchi & C SdA v. Alfred C. Toepfer International. G.m.b.H.
Case No .: 85-7734
Court: United States Court of Appeals for the Second Circuit
Panel: Hon. J. Edward Lumbard
Senior Judge
U.S. Circuit Judge
U.S. Courthouse
Foley Square
New York, New York 10007
(212) 857-2300
Hon. James L. Oakes
Then-Chief Judge
U.S. Circuit Judge
U.S. Courthouse
40 Foley Square
New York, New York 10007
(212)857-2400
Hon. George C. Pratt
U.S. Circuit Judge
U.S. Courthouse
Uniondale Avenue
Hempstead Turnpike
Uniondale, New York 11553
(516)485-6510
Adversary: Stephen P. Sheehan
Wistow & Barylick
61 Weybosset Street
Providence, Rhode Island 02903
(401)831-2700
Date of Argument: 9/17/84
AND
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District Court
Case Name;
Case No .;
Court:
Judge;
Sotomavor Senate Questionnaire
Miserocchi & C. SpA v. Alfred C. Toepfer International. G.m.b.H.
84 Civ. 6112
United States District Court, Southern District of New York
Hon. Kevin Thomas Duffy
U.S. District Judge
U.S. Courthouse
40 Foley Square
New York, New York 10007
(212)805-6125
David A. Botwinik, Esq.
Pavia & Harcourt
600 Madison Avenue
New York, New York 10022
(212)980-3500
Stephen P. Sheehan
Wistow & Barylick
61 Weybosset Street
Providence, Rhode Island 02903
(401)831-2700
Date of Argument; 9/5/84 (argued by David Botwinik of Pavia & Harcourt)
Co-Counsel:
Adversary:
Case Description: This action involved the bankruptcy of an Italian corporation, Miserocchi
& C, SpA ("Miserocchi"), with affiliates in London and elsewhere. The
London affiliate of Miserocchi breached a grain commodity trading
contract with my then client, Alfred C. Toepfer International, G.m.b.H.
("Toepfer"). Toepfer demanded arbitration of the dispute against both
Miserocchi and its London affiliate under the terms of the grain
commodity trading agreement between the parties and a guarantee signed
by Miserocchi. Shortly before the arbitration hearing was to commence,
Miserocchi moved to stay the arbitration against it, arguing that it was not
a party to the arbitration agreement. Although my partner, David A.
Botwinik, argued the motion before the district court, I primarily drafted
Toepfer' s responsive papers to the motion to stay arbitration and the
cross-motion to compel arbitration. Toepfer argued that Miserocchi was
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Sotomavor Senate Questionnaire
bound to arbitrate both as an alter ego of its London affiliate and under the
terms of its guarantee. After the district court ruled in Toepfer's favor,
Miserocchi filed a notice of appeal and sought an expedited stay of the
district court's Order denying the stay of arbitration and compelling
arbitration. 1 argued the motion to stay. At the conclusion of the
argument on the motion, the Second Circuit not only denied the motion for
a stay but also dismissed the appeal. I participated extensively as co-
counsel in the arbitration that followed and subsequently appeared in the
post-confirmation proceedings resulting from the arbitration award
rendered in favor of Toepfer. The matter settled before the hearing on
appeal of the confirmation order.
8.
Case Name:
The People of the State of New York v. Clemente D'Alessio and Scott
Hymao
Indictment No.:
4581/82
Judgg:
Hon. Thomas B. Galligan (retired)
Then- Acting Justice, Supreme Court,
c/o Administrative Judge's Office
Juanita Newton
1 1 1 Centre Street
New York, New York 10013
(212)374-4972
Associate Counsel: Karen Greve Milton
Director of Education Training Program
Association of the Bar of the City of New York
42 West 44th Street
New York, New York 10036-6690
(212)382-6619
Adversaries: Steven Kimehnan, P.C.
Attorney for Scott Hyman
757 Third Avenue
New York, New York 1 001 7
(212)421-5300
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Sotomavor Senate Questionnaire
Dates of Trial:
Case Description:
James Bernard, Esq.
Attorney for Clemente D'Alessio
1 50 Broadway
New York, New York 10038
(212)233-0260
2/2/83 to 3/2/83
I was lead counsel in this action in which defendants were charged with
selling videotapes depicting children engaged in pornographic activities.
Defendant Scott Hyman dealt directly with the undercover agent and
attempted to raise numerous defenses at trial based upon his alleged drug
addiction. The proof against defendant Clemente D'Alessio was
circumstantial and he raised a misidentification defense at trial. This action
was the first child pornography case prosecuted in New York State after
the U.S. Supreme Court upheld the constitutionality of New York's laws
in New York v. Ferber. 458 U.S. 747 (1982). The defendants filed a
plethora of motions before and during trial. The defendants' request for
severance was denied, as were, after a hearing, the defendants' motions for
the suppression of statements, evidence, and identification. Other issues
addressed at trial included whether the trial court should or could, upon
defendants' request, require the government to stipulate to the
pornographic nature of the evidence, whether defendant Hyman could
present expert testimony on the effects of drug addiction on mens rea, and
whether defendant Hyman was entitled to jury charges on diminished
capacity or intoxication. The jury convicted defendants after trial. The
defendants received sentences, respectively, of 3'/2 to 7 years and 2 to 6
years. The convictions were affirmed on appeal. See People v. D'Alessio.
62N.Y.2d619,476N.Y.S.2d 1031 (Ct. App. 1 984V People v. Hvman. 62
N.Y.2d 620, 476 N.Y.S.2d 1033 (Ct. App. 1984).
Case Name: The People of the State of New York v. Richard Maddicks
Indictment No.: 886/82
Court; Supreme Court of the State of New York, County of New York
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489
Judge;
Sotomavor Senate Questionnaire
Hon. James B. Leff (retired)
Justice, Supreme Court
c/o Administrative Judge's Office
Juanita Newton
100 Centre Street
New York, New York 10013
(212)374-4972
Lead Counsel;
Hugh H. Mo, Esq.
Law Offices of Hugh H. Mo
750 Lexington Avenue
15th Floor
New York, New York 10022
(212)750-8000
Adversary;
Dates of Trial;
Case Description;
Peter A. Furst, Esq.
100 Pine Street
Suite 2750
San Francisco, California 941 1 1
(415)433-2626
Almost all of January 1983
The defendant was dubbed the "Tarzan Murderer" by the local Harlem
press because he committed burglaries by acrobatically jumping or
climbing from rooftops or between buildings and entering otherwise
inaccessible apartments. If the defendant found a person in the apartment,
he shot them. I was co-counsel on the case, and prepared and argued the
motion, before Justice Harold Rothwax, that resulted in the court
consolidating the trial of four murders and seven attempted murders
relating to eleven of the defendant's burglaries. The consolidation was
unusual in that up to that point, most New York courts had limited
consolidation to crimes in which an identical modus operandi had been
used. We argued successfully that the commonality of elements in the
crimes, although with some variations in modus operandi, warranted
consolidation. I participated extensively in preparing and presenting
expert and civilian witnesses at trial. The defendant was convicted after
trial, and sentenced to 67'/2 years to life. The conviction was affirmed on
appeal. Sss People v. Maddicks. 70 N.Y.2d 752, 520 N.Y.S.2d 1028 (Ct.
App. 1987).
31
490
10.
Case Name:
Indictment No:
Judge:
Adversaries:
Dates of Trial:
Case Description:
Sotomavor Senate Questionnaire
The People of the State of New York v. Manny Morales a.k.a. Joey
Hernandez. Joseph Pacheco, and Eduardo Pacheco
4399/82
Hon. Alfred H. Kleiman (retired)
Then-Acting Justice, Supreme Court
c/o Administrative Judge's Office
Juanita Newton
100 Centre Street
New York, New York 10013
(212) 374-4972
Ira I. Van Leer (deceased)
(Associates present at portions of the trial: Valerie Van Leer-Greenberg
and Howard Greenberg)
Van Leer and Greenberg
Attorneys for defendant Manny Morales a.k.a. Joey Hernandez
132 Nassau Street, Suite 523
New York, New York 10038
(212)962-1596
Lawrence Rampulla, Esq.
Attorney for defendant Edwardo Pacheco
2040 Victory Blvd.
Staten Island, New York 10314
(718)761-3333
Stephen Goldenberg, Esq.
Attorney for defendant Joseph Pacheco
277 Broadway, Suite 1400
New York, New York 10007
(212)346-0600
March 25, 1983 to May 12, 1983
This multiple-defendant case involved a Manhattan housing project
shooting between rival family groups. I was sole counsel in this action on
behalf of the government. Prior to trial, I conducted various hearings
opposing defense motions to suppress statements and identifications. This
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Sotomavor Senate Questionnaire
lengthy trial involved witnesses with significant credibility issues. The
jury convicted one of the three defendants who was sentenced to 3 to 6
years for Criminal Possession of a Weapon in the Third Degree. The
conviction was affirmed on appeal. See People v. Pacheco. 70 N. Y.2d
802, 522 N.Y.S.2d 120 (Ct. App. 1987).
Additional Question under Item 18: In addition, if the majority of cases you list in
response to this question are older than five years, provide the name, address and phone
number for 10-12 members of the legal community who have had recent contact with you,
even if the contact was only an appearance before you as a judge.
I have interpreted this question to be seeking a list of individuals who are familiar with
my judicial work because they are knowledgeable about some of my cases or opinions, or
because they have appeared before me. If you seek only individuals who have tried cases
or made other substantive appearances before me, please advise me. I list these
individuals in alphabeticid order.
Martin J. Auerbach, Esq.
Dormand, Mensch, Mandelstan, Schaeffer
747 Third Avenue
New York, New York 10017
(212)759-3300
The Hon. Miriam G. Cedarbaum
United States District Court Judge
Southern District of New York
500 Pearl Street, Room 1330
New York, New York 10007
(212) 805-0198
Justin N. Feldman, Esq.
Kromish, Lieb, Weiner & Hellman
1114 Avenue of the Americas, 47th Floor
New York, New York 10036-7798
(212)479-6210
33
492
4. Leonard F. Joy, Esq.
Attomey-in-Charge
Legal Aid Society, Federal Defender Division
52 Duane Street
New York, New York 10007
(212)285-2830
5. John Kidd, Esq.
Rogers & Wells
200 Park Avenue
New York, New York 10166-0153
(212)878-8000
6. The Hon. John G. Koeltl
United States District Court Judge
Southern District of New York
500 Pearl Street, Room 1030
New York, New York 10007
(212)805-0222
7. Sara Moss, Esq.
Vice-President and General Counsel
Pitney Bowes
1 Elmcroft Road
Stamford, Connecticut 06926
(203)351-7924
8. John S. Siffert, Esq.
Lankier, Siffert & Wohl
500 Fifth Avenue, 33rd Floor
New York, New York 10110
(212)921-8399
9. Gerard Walperin, Esq.
Rosenman & Colin
575 Madison Avenue
New York, New York 10022
(212)940-7100
34
Sotomavor Senate Questionnaire
493
Sotomavor Senate Questionnaire
10. Mary Jo White, Esq.
United States Attorney for the Southern District of New York
U.S. Courthouse Annex
One St. Andrew's Plaza
New York, New York 10007
(212)791-0056
1 9. 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 the last five years as a judge, my legal activities have spanned the gamut of
federal jurisdiction. As part of my daily work, I have addressed many of the
complex legal questions of our time in fields as diverse as the First and Fourteenth
Amendments to the United States Constitution, antitrust, securities, habeas corpus,
immigration, tax, intellectual property, ERISA, employment discrimination, and
many other areas of law. The numerous opinions I have cited in Question Number
15 describe in detail many of these significant cases.
A great part of my litigation work while in private practice involved pre-trial and
discovery proceedings for cases which were typically settled before trial. I
conducted a number of preliminary injunction hearings in trademark and copyright
cases, and post-motion hearings before magistrate judges on a variety of issues. My
work also involved rendering advise to clients on a wide variety of legal issues,
including, but not limited to, product liability, warranty, antitrust, securities,
environmental, banking, real estate, patents, employment, partnership, joint
venture and shareholder laws; customs, automobile and joint tire regulations; and
franchising and licensing matters. I, moreover, conducted over fifteen arbitration
hearings involving, predominantly, export grain commodity trading on behalf of
foreign buyers but also hearings involving banking, partnership, tire, and fashion
industry disputes.
Finally, in addition to my work in establishing a national anti-counterfeiting
program for Fendi S.a.s. Paola Fendi e Sorelle, I participated, on behalf of Fendi, in
establishing a Task Force of prominent trademark owners to change New York
State's anti-counterfeiting criminal statutes. I also supervised and participated in
the national dealers and customer warranty relations programs for Ferrari North
America, a division of Fiat Auto USA, Inc.
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Sotomayor Senate Questionnaire
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 fiiture 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 conflicts-of-interest during
your initial service in the position to which you have been nominated.
Because my former firm, Pavia & Harcourt, advises me on personal matters,
I will continue to recuse myself from any matter in which my form firm or its
clients, or a former client with whom I worked are involved. Similarly, I will
continue to recuse myself from hearing any matter involving an issue in
which I participated while a member of the Board of Directors of the non-
profit organizations described in Part III, Question 1. I will further recuse
myself from any matter involving a client or associate of my husband-to-be.
In all matters, I will follow the dictates of 28 U.S.C. § 455 and 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, gifls, 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.)
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495
Sotomavor Senate Ouestionnaire
1996
1997
Salary - U.S.D.J.
S133,600
$66,800 to 5/31/97
Interest - Citibank Savings Acct.
$ 912
$ 373 to 6/1/97
Rent from Kings Co. Coop
[SllOOamonth]
S 13^00
$ 6600 to 6/1/97
My Financial Disclosure Report, AlO, is attached.
Please complete the attached financial net worth statement in detail. (Add schedules as
called for.)
My Net Worth Statement and Schedule is attached.
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,
yoiu' title and responsibilities.
No.
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496
Sotomavor Senate Questionnaire
III. GENERAL (PUBLIC)
An ethicjil 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 participaie in serving the
disadvantaged." Describe what you have done to fiilfill these responsibilities, listing
specific instances and the amount of time devoted to each.
Before my appointment as a judge, all of the non-profit organizations with
which I had been affiliated served the disadvantaged either directly or
through projects I had participated in developing. The Puerto Rican Legal
Defense and Education Fund, for example, promotes, through legal and
educational activities, the civil and human rights of disadvantaged Hispanics.
I had served, at various times, as the First Vice President of the Board of
Directors of the Fund and as Chairperson of its Litigation and Education
Committees.
The State of New York Mortgage Agency ("SONYMA") structures
affordable housing programs for residents of the State of New York. During
my service on its Board of Directors, SONYMA, among many other projects,
implemented special mortgage programs for low-income families to purchase
homes.
I was also a member, in 1988, of the Selection Committee for the Stanley D.
Heckman Educational Trust which granted college scholarships to minorities
and first generation immigrants. I had, moreover, served, in 1990-1991, as a
member of New York State's Panel on Inter-Group Relations. The Report of
that Panel is attached.
Finally, I had been a member of the New York City Campaign Finance
Board from its inception in 1988 until 1992. This Board distributes public
funds to candidates for certain elective positions in New York City when such
candidates agree to limit the amount of the contributions they will accept,
and expenditures they will make, during campaigns.
The time I devoted to my service to these assorted organizations varied
through the years but it was never less than two hours a week and had been
over eight hours a week during certain periods. I devoted an average of
approximately six hours a week cumulatively to the various non-profit
organizations of which I was a member.
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Sotomavor Senate Questionnaire
The Code of Judicial Conduct limits my ability to provide legal service to the
disadvantaged. While a judge, I nevertheless contribute my time as
permitted by law to bar and law school activities. I have served as an
honorary member of the Public Service Committee of the Federal Bar
Council. I also serve on the selection committees for the Root-Tilden-Snow
Scholarship granted to selected New York University Law School students
interested in public service and the Kirkland and Ellis New York Public
Service Fellowship granted to a Columbia Law School graduate to support a
year's employment in public service. I serve on moot court panels and in
trial advocacy courses at local law schools and for the office of the District
Attorney of New York County; I also speak regularly at bar association
functions on issues such as judicial clerkships for minority students and
women in the law. Finally, I have lectured about trial advocacy skills at the
Office of the Attorney General for the State of New York. It is difficult to
quantify the time I spend on these activities because I participate in functions
as my schedule permits. I estimate that I attend at least one community
service function a month, and often twice a month.
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 the practical implementation of membership policies? If so, list, with
dates of membership. What you have done to try to change these policies?
No.
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 interview in which you
participated).
I am not aware of any selection commission which recommended me for this
Circuit Court nomination. I was interviewed by the Office of the Counsel to
the President in or about March of 1996 and again in March of 1997.
Thereafter, the American Bar Association and the Federal Bureau of
Investigations interviewed me. The President's nomination followed.
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Sotomavor Senate Questionnaire
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-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
govenunents 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.
At the time I was nominated as a district court judge, I answered this
question as follows:
"Our Constitution vests the right to make and administer laws in the
legislative and executive branches of our government. Judges
impermissibly encroach upon that right by rendering decisions that
loosen jurisdictional requirements outside of the scope of established
precedents and by fashioning remedies aimed at including parties not
before the court to resolve broad societal problems.
40
499
Sotomavor Senate Questionnaire
Judges must provide fair and meaningful remedies for violations of
constitutional and statutory rights to the parties before a court. Doing
so can, at times, affect broad classes of individuals, may place
affirmative burdens on governments and society and may require
some administrative oversight functions by a court.
A judge's decision should not, however, start from or look to these
effects as an end result. Instead, because judicial power is limited by
Article III of the Constitution, judges should seek only to resolve the
specific grievance, ripe for resolution, of the parties before the court
and within the law as written and interpreted in precedents.
Intrusion by a judge upon the functions of the other branches of
government should only be done as a last resort and limitedly."
My service as a judge has only reinforced the importance of these principles.
Finding and maintaining a proper balance in protecting the constitutional
and statutory rights of individuals versus protecting the interest of
government, financial and otherwise, is very difficult. Judges must be
extraordinarily sensitive to the impact of their decisions and function within,
and respectful of, the constraints of the Constitution.
41
500
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Charles Joseph Siragusa
Address: List current place of residence and office address(es).
Home address: Webster, New York 14580
Business Address: Rochester, New York 14614
Date and place of birth.
August 10, 1947
Rochester, New York
Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Divorced. However, I am engaged to be married on August 30, 1997. My
fiancee's name is Lisa Serio. She is a lawyer currently employed as an
assistant district attorney in the Monroe County District Attorney's Offlce,
Rochester, New York 14614.
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Colleges:
State University of New York at Buffalo
August 1965 -May 1966
Transferred to LeMoyne College
LeMoyne College
September 1966 • May 1969
B.A. Sociology - Cum Laude
Date Granted: June 7, 1969
Law Schools:
Franklin Pierce Law School
August 1973 -May 1974
Transferred to Albany Law School
501
Albany Law School
September 1974 • May 1976
J.D.
Date Granted: June 5, 1976
Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including finms, with which you were connected as an officer,
director, partner, proprietor, or employee since graduation from college.
1969 • 1973
1974 (summer)
1977- 1992
1984-1992
1993 -present
1995 - Present
St. James School
Rochester, New York 14609
I was employed as a sixth grade and then junior
high teacher.
Diocese of Rochester
Catholic Youth Organization
Day Camp Counselor
Monroe County District Attorney's Office
Rochester, New York 14614
I was employed as an Assistant District Attorney
From 1984 through 1992, 1 served as First Assistant
District Attorney
Rape Crisis Advisory Board Member
(non paid, volunteer position)
New York State, Seventh Judicial District
Rochester, New York 14614
I am currently employed as a New York State
Supreme Court Justice
Families and Friends of Murdered Children and
Victims of Violence Advisory Board Member (non
paid, volunteer position)
Military Service: Have you had any military sen/ice? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
A^ OA/I Q8
502
Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
1969 Pi Gamma Mu National Honor Society
1983 Certificate of Appreciation - Brighton Police Department
1985 Certificate of Merit for Representing Monroe County with
Integrity and Conviction - Town of Irondequoit
1985 Certificate of Recognition for Successful Prosecution of Robert
P. Reilly - Gates Police Department
1985 Distinguished Service Award - Kiwanis Club; Lakeshore-
Rochester Chapter
1987 Distinguished Service Award - Rosewood Club
1987 Recognition for Successful Prosecution of Northeast Rapist -
Rochester Police Department
1988 Distinguished Service Award - Crime Stoppers
1988 Special Recognition for Successful Prosecution of $500,000
Armored Car Theft - New York State Police
1990 Citizen of the Year - Rochester Police Locust Club
1990 Person of the Year - Gannett Rochester Times Union
1991 Honorary Deputy Chief of the Rochester Police Department
1991 Exemplary Service Award - Monroe County Sheriffs Department
1991 Recognition and Service Award for Outstanding Service -
American Association of Retired Persons
1991 Commendation on Behalf of Citizens of Monroe County for
Successful Prosecution of Arthur J. Shawcross - Monroe County
Legislature
503
1991 Certificate of Honor for Outstanding Service and Contribution to
Law Enforcement - Association of Rochester Police and Area
Law Enforcement Retirees
1991 Letter of Recognition for Successful Prosecution of Arthur J.
Shawcross - Frank Horton, House of Representatives
1991 Certificate of Honor for Extraordinary Diligence in Preparation
and Successful Prosecution of Arthur J. Shawcross - American
Society for Industrial Security, Rochester Chapter
1991 Letter of Recognition for Dedication and Commitment to Public
Service - Louise M. Slaughter, Member of Congress
1991 Letter of Recognition for Successful Prosecution of Arthur J.
Shawcross - Alphonse M. D'Amato, United States Senate
1991 Certificate of Appreciation - National Association of Women in
Construction
1992 Government Award - Greater Rochester Metro Chamber of
Commerce
1996 Recognition Award - Monroe County Magistrates Association
1996 Distinguished Service Award - For Contribution to the Italian
American Community - Counsel General of Italy
1997 Certificate of Excellence - For support of the Rochester City
School District's Weapons Diversion Program
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.
New York State District Attorney's Association
Monroe County Bar Association
Ethics Committee - 1986
Courts Committee - 1990
Academy of Law Board of Governors - 1995
Chairperson, Evidence Institute - 1996
504
Association of Supreme Court Justices, Seventh Judicial District .
1993 to present.
Association of Justices of the Supreme Court of the State of New York.
1993 to present.
Rochester Inns of Court. 1995 to present.
Jury Advisory Committee. 1996 to present.
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 am not a member of any organization which is active in lobbying before
public bodies. As to other organizations, I am a member of the Health Club
of the Jewish Community Center.
1 1 . 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.
Admitted to practice in State of New York, Appellate Division, Fourth
Department - February 22, 1977
Admitted to practice in United States District Court for the Western District of
NewYori<-May9, 1977
12. Published Writings: List the titles, publishers, and dates of books, articles, reports,
or other published material you bave 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.
"Prosecution of a Serial Killer", St. Vincent's Hospital, Melbourne, Australia,
February, 1992, at Tab A
Rochesterian Magazine "View from the Bench" series, January, 1994, at
TabB
As to speeches, I have included the following:
505
Speech given at the 66th Dante Ball of the Italian Women's Civic Club,
September 28, 1971, at Tab C.
Speech given at the Monroe County Columbus Day Celebration, October 4,
1991, at Tab D.
Speech given at the Safety Council Luncheon, May 14, 1993, at Tab E.
Speech given at the Families and Friends of Murdered Children and Victims
of Violence Dinner, May 27, 1994, at Tab F.
Speech given at the 30th Firefighter of the Year Luncheon, October 13, 1995,
at Tab G.
Presentation on Cameras in the Courtroom as part of the American Justice
Seminar at Fairport High School, April 26, 1997, at Tab H.
1 3. Health: What is the present state of your health? List the date of your last physical
examination.
Excellent
April 9, 1997
14. Judicial OfTice: 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.
1993 to present New York State Supreme Court Justice Seventh Judicial
District
I currently serve as a New York State Supreme Court Justice in the Seventh
Judicial District. This is the only judicial position which I have held. I was
elected to a 14-year term in November 1992 and took office in January 1993.
The Supreme Court is the highest trial court in New York with general
jurisdiction relating to both criminal and civil matters. Since taking office, I
have been assigned to an IAS civil part, although I have presided over some
criminal cases as well. As of May 26, 1997, 1 began a full time assignment to
a criminal part.
506
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.
15(1)
(1). Citizens for a Safer Community; The Genesee Conservation League,
Inc., The IVIonroe County Conservation Council; The New York State
Rifle & Pistol Association, Inc.; The Shooters Committee on Political
Education, Inc. (Monroe County Chapter); Leadloader Arms, Inc. d/b/a
American Sportsman; Frederick Calcagno; Steven C. DeMallie; and
Kurt Thomann - versus - The City of Rochester, New York; The Council
of the City of Rochester, New York; Thomas Ryan, as Mayor of the City
of Rochester, New York; Louis Kash, as Corporation Counsel for the
City of Rochester, New York; Roy Irving, as Chief of Police of
Rochester, New York; John Curran; Maxine Childress Brown; Wade
Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla and
Robert Stevenson, as Members of the Council of the City of Rochester,
New York.
Reported: 164 Misc 2d 822
(2) In the Matter of the Investigation into the Rape of Jane Doe, John
Horace, Respondent.
Reported: 168 Misc 2d 981
(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rivazfar, a Minor
Over the Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under
the Age of Fourteen Years - versus • Patricia An Rivsizfar n/k/a Patricia
Ann Pafford and Ahmad Rivazfar
Unreported: Opinion at Tab I.
Modified _ AD2d _, 653 NYS2d 760, leave application to the New York
Court of Appeals Granted NY2d 06/27/97
(4) Keigh Beth Kenyon - versus - Security Insurance Company of Hartford
(DPIC Companies) and William C. Larsen and William C. Larsen, P.E.,
P.C. d/b/a Larsen Engineers/Architects
Reported: 163 Misc 2d 991, afTd 206 AD2d 980, Iv den 84 NY2d 813
507
(5) Maiden Lane Neighborhood Association; Frank Andolino; Emily
Andoiino; Paul Andree; Gay Andree; Burnett Barrett; Beverly Barrett;
Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Albert
Buettner; Joyce Buettner; Gloria Carpenter; Robert Cross; Helene
Cross; Edward Croteau; Joanne Croteau; Elaine Cummings;
Christopher Curatalo; Catherine Curatalo; Charles Dennett; Mark
Erbelding; Madeline Erbelding; Gerard Federation; Carole Federation;
Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French;
Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare;
Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine
Kurz; Roy LaForce; Mary Ann LaForce; Lawrence Little; Beveriy Little;
John Meagher; Jean Meagher; Marjorie Monte; Albert Rehn; Mary Beth
Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice
Webber Till; Howard Weltzer; Beveriy Weltzer; Edward White; Ellen
White; Frank Yanno; Carol Yanno; individually and Wegman's Food
Markets, Inc. - versus - The Town of Greece; Roger Boily; Vincent B.
Campbell; Raymond S. DiRaddo; Joan T. Korsch; and Charies J.
Zicari, as and constituting the Greece Town Board; Maiden Associates;
and Mark IV Construction Co., Inc.
Unreported: Opinion at Tab J.
(6) In the Matter of the Application of Anthony L. Jordan Health Center,
Inc. - versus - Barbara Ann DeBuono, M.D., as Commissioner of Health
of the State of New York, Brian Wing, as Acting Commissioner of Social
Services of the State of New York, and Patricia Woodworth, as Director
of the Budget for the State of New York.
Unreported: Opinion at Tab K.
(7) In the Matter of the Penfield Tax Protest Group;"Phyllis Dann, Jim and
Carolyn Welton and Peter Sciortino, for Themselves and on Behalf of
All Others Similariy Situated - versus - Linda Yancey, the Assessor of
the Town of , The Town Board of the Town of Penfield and the Town of
Penfield.
Unreported: Opinion at Tab L, afPd 210 AD2d 901, app. dism. 85 NY2d
903, Iv. den'd 86 NY2d 760
(8) Lawrence J. Demarse; John Sussek, Jr. and Marie Sussek d/b/a Sussek
Enterprises; Donald A. Robins; K.G. VanDine, M.D., P.C; Troser Group,
Ltd,; Slocum Dickson Medical Group, P.C, Pension Fund; and Joseph
Komler, III, Individually and as Limited Parents of Simulnet East
Associates, a New York Limited Partnership, on behalf of themselves
508
and all other Limited Partners of Simulnet East Associates, similarly
situated, and for the benefit and in the right of Simulnet East
Associates - versus - Simulnet East Associates, a New York Limited
Partnership; Simulnet, L.P.; Cable/Mac Services, Inc., A. Ross
MacGregor; Vincent Laurendi; Donald E. Dillon; John B. Fisher;
Waldon S. Hayes, Jr.,; Parijat Capital, Ltd.; David P. Ott; J. Anthony
DiGuilio; Ashvin J. Zaveri; Bytex Corporation; Simulnet Corporation;
Jerry Nelson; and Jonathan S. Edwards.
Unreported: Opinion at Tab M.
(9) Iqbal Singh - versus - John Karle; Richard Passero; Ram Shrivastava;
William Larsen, P.E., d/b/a Larsen Engineers.
Unreported: Opinion at Tab Mc, afTd AD2d 07/03/97, 1997 WL
378479
(10) Richard D. Castle; William Gowgill; James C. Duffus; J. Allen Gray;
John W. Handy; James T. Henderson; William F. Holly; Jean Fox Lee;
Frank E. Luellen, Jr.; Douglas Martin; Newtin Y. Robinson; Robert F.
Sykes; Herbert W. Vandenbrul; Nora Ward as Executor of the Estate of
Hawley Ward; Jessica W. Warren; Eugene S. Wetmore - versus-
Alexander and Alexander Services, Inc.
Unreported: Opinion at Tab N.
15(2)
(1) Funkv. Barry
The oral decision in Funk v. Barry, which granted plaintiffs motion
requesting that the Court sign a judgment in this case and denied
defendant's cross-motion to dismiss the action as abandoned, was
reversed by the Appellate Division, Fourth Department in an Opinion
reported at 222 AD2d 1017.
The Appellate Division then denied plaintiff's motion for leave to appeal
by order reported at 1996 WL 192891. However, the Court of Appeals
granted plaintiff's subsequent motion for leave by order reported at 88
NY2d 809.
That Court reversed the decision of the Appellate Division and
reinstated the judgment in favor of the plaintiff in an opinion reported
at 89 NY2d 364. A transcript of my oral opinion is included at Tab O.
509
(2) Marker v. Rochester City School District, et al
The decision in Marker v. Rochester City School District, et al, denying
defendants' summary judgment motion, was reversed by the Appellate
Division, Fourth Department, in an opinion dated July 3, 1997, reported
at AD2d , 1997 WL 373747. A copy of my decision is included
at Tab P.
(3) Rennoldson v. Voipe Realty Corp., et al.
The decision in Rennoldson v. VoIpe, et al. granting plaintiffs motion
for summary judgment on a Labor Law section 240(1 ) cause of action
and denying defendants' motion for summary dismissing that cause
was reversed by the Appellate Division, Fourth Department in an
opinion reported as Rennoldson v. James J. VoIpe Realty, et al., 216
AD2d 912.
The parties settled the case while plaintiffs motion for leave to appeal
was pending. The application for leave was dismissed. That dismissal
was reported at 86 NY2d 837. A copy of my written decision is included
at Tab Q.
(4) Schiffman v Spring, et al.
The order denying defendants' summary judgment motion was
reversed by the Appellate Division, Fourth Department in an opinion
reported at 202 AD2d 1007. A copy of my order is included at Tab R.
15(3)
(1) Citizens for a Safer Community; The Genesee Conservation League,
Inc., The Monroe County Conservation Council; The New York State
Rifle & Pistol Association, Inc.; The Shooters Committee on Political
Education, Inc. (Monroe County Chapter); Loadloadcr Arms, Inc. d/b/a
American Sportsman; Frederick Calcagno; Steven C. DeMallie; and
Kurt Thomann - versus - The City of Rochester, New York; The Council
of the City of Rochester, New York; Thomas Ryan, as Mayor of the City
of Rochester, New York; Louis Kash, as Corporation Counsel for the
City of Rochester, New York; Roy Irving, as Chief of Police of
Rochester, New York; John Curran; Maxine Childress Brown; Wade
Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla and
Robert Stevenson, as Members of the Council of the City of Rochester,
510
New York.
Reported: 164 Misc 2d 822
(2) In the Matter of the Investigation into the Rape of Jane Doe, John
Horace, Respondent.
Reported: 168 Misc 2d 981
(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rivazfar, a Minor
Over the Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under
the Age of Fourteen Years - versus - Patricia An Rivazfar n/k/a Patricia
Ann Pafford and Ahmad Rivazfar
Unreported: Opinion at Tab I.
Modified _ AD2d _, 653 NYS2d 760, leave application to the New York
Court of Appeals Granted NY2d 06/27/97
(4) Maiden Lane Neighborhood Association; Frank Andolino; Emily
Andolino; Paul Andree; Gay Andree; Burnett Barrett; Beverly Barrett;
Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Albert
Buettner; Joyce Buettner; Gloria Carpenter; Robert Cross; Helene
Cross; Edward Croteau; Joanne Croteau; Elaine Cummings;
Christopher Curatalo; Catherine Curatalo; Charies Dennett; Mark
Erbelding; Madeline Erbelding: Gerard Federation; Carole Federation;
Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French;
Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare;
Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine
Kurz; Roy LaForce; Mary Ann LaForce; Lawrence Little; Beveriy Little;
John Meagher; Jean Meagher; Marjorie Monte; Albert Rehn; Mary Beth
Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice
Webber Till; Howard Weltzer; Beveriy Weltier; Edward White; Ellen
White; Frank Yanno; Carol Yanno; individually and Wegman's Food
Markets, Inc. - versus - The Town of Greece; Roger Boily; Vincent B.
Campbell; Raymond S. DiRaddo; Joan T. Korsch; and Charies J.
Zicari, as and constituting the Greece Town Board; Maiden Associates;
and Mark IV Construction Co., Inc.
Unreported: Opinion at Tab J.
(5) In the Matter of the Application of Anthony L. Jordan Health Center,
Inc. - versus - Barbara Ann DeBuono, M.D., as Commissioner of Health
of the State of New York, Brian Wing, as Acting Commissioner of Social
Services of the State of New York, and Patricia Woodworth, as Director
of the Budget for the State of New York.
Unreported: Opinion at Tab K.
511
(6) In the Matter of the Penfleld Tax Protest Group, Phyllis Dann, Jim and
Carolyn Welton and Peter Sciortino, for Themselves and on Behalf of
All Others Similarly Situated - versus - Linda Yancey, the Assessor of
the Town of Penfield, The Town Board of the Town of Penfield and the
Town of Penfield.
Unreported: Opinion at Tab L, afTd 210 AD2d 901
(7) In the Matter of the Application of Karen Noble Hanson, Petitioner, v.
Marguerite L. Relin and Ronald Starkweather, Commissioners of the
Monroe County Board of Elections and Kevin Murray, Respondents.
For a Judgment invalidating the designating petitions filed with the
Board of Elections, nomination Kevin B. Murray, Respondent, as a
Democratic candidate for Mayor of the City of Rochester, State of New
York, in a primary election to be held on September 14, 1993.
Unreported: Opinion at Tab S.
(8) Sabrina Johnson, Plaintiff, v. City of Rochester, Defendant.
Unreported: Opinion at Tab T.
16. Public Office: State (chronologicaily) 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.
1977 - 1992 I held the appointed position of Assistant District Attorney
in the Monroe County District Attorney's Office in
Rochester, New York.
November 1991 I ran unsuccessfully for the position of New York State
Supreme Court Justice, 7th Judicial District.
512
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 dates of the period you were a
clerk;
I did not serve as a Clerk to a Judge.
2. whether you practiced alone, and if so, the addresses and
dates;
I did not practice 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;
1977-1992
Monroe County District Attorney's Office
201 Hall of Justice
Rochester, New York 14614
I served as an Assistant District Attorney.
From 1984 through 1992, I served as First Assistant
District Attorney
1993 - Present
New York State Supreme Court Justice
400 Hall of Justice
Rochester, New York 14614
In November, 1992, 1 was elected to serve as a New York
State Supreme Court Justice in the Seventh Judicial
District for a 14 year term and took office in January 1993.
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?
My entire career as a practicing attorney from 1977
through 1992 was spent in the Monroe County District
Attorney's Office.
513
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
As a Monroe County Assistant District Attorney, I
prosecuted cases on behalf of the People of the State of
New York. My area of specialization was criminal law, and
I routinely interacted with both victims of crimes and
witnesses to crime.
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.
As an Assistant District Attomey, I frequently appeared in
court.
2. What percentage of these appearances was in:
(a) federal courts; 0%
(b) state courts of record; 100%
(c) other courts. 0%
3. What percentage of your litigation was:
(a) civil; 0%
(b) criminal. 100%
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 tried to verdict approximately 100 felony cases where I
was sole trial counsel. I was also sole trial counsej on
numerous misdemeanor and violation cases.
5. What percentage of these trials was:
(a) jury; 95%
(b) non-jury. 5%
1 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
to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
514
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.
In each case, I was sole trial counsel for the People.
1. People V Arthur Shawcross
September 17, 1990 - December 13, 1990
Indictment #058
Filed 01/23/90
Murder in the Second Degree (10 counts)
Court: Monroe County Court
Presiding Judge: Honorable Donald J. Wisner
Defense Attorneys: David A. Murante, Esq.
700 Wilder Building
Rochester, NY 14614
(716)232-6830
Thomas J. Cocuzzi, Esq.
700 Wilder Building
Rochester, NY 14614
(716) 232-6830
Reported: 192 AD2d 1128; Iv den 82 NY2d 726
SUMMARY:
Shawcross, a serial killer, was responsible for the deaths
of 1 1 women. He was on parole to the Rochester area
having been convicted 18 years earlier for the sexual
assault and slaying of an 8-year-old girl. At that time,
Shawcross also admitted to the death of a 10-year-old
boy.
The victims in Rochester included prostitutes and street
people, ranging in age from 22 to 59 years old. At trial,
Shawcross claimed an insanity defense and offered an
expert witness. Dr. Dorothy Otnow Lewis. Dr. Lewis
claimed that Shawcross, due to physical and sexual abuse
that he suffered as a child, as well as a brain injury that
resulted in complex partial seizures, was not responsible
515
for his conduct in killing the women. Dr. Lewis submitted
tapes of interviews with Shawcross which she maintained
were conducted under hypnosis. It was also maintained
that Shawcross cannibalized two of his victims in
Rochester, and previously cannibalized Viet Cong women
while serving in the U.S. military in Viet Nam. The
cornerstone of Dr. Lewis' defense of Shawcross was her
premise that he suffered from dissociative states akin to
multiple personalities. The prosecution countered with Dr.
Park Dietz, an expert in forensic psychiatry, who
challenged Dr. Lewis' findings and offered the opinion that
Shawcross was, at best, an anti-social personality. In
December 1991, Shawcross was found guilty charged.
2. People V Robert Ahalt and Carl "Butch" Campbell
January 19, 1988 - March 9, 1988
Indictment #834
Filed 11/13/86
Murder in the Second Degree (11 counts); Arson in the
Second Degree; Arson in the Third Degree (2 counts)
Court: New York State Supreme Court
Presiding Judge: Honorable Donald J. Mark
Defense Attorneys: Culver K. Barr, Esq.
1025 Reynolds Arcade Building
Rochester, NY 14614
716-454-7672
Felix V. Lapine, Esq.
One East Main Street
Suite 711
Rochester, NY 14614
716-454-6690
Reported:
People v Ahalt, 139 Misc 2d 863; 170 AD2d 982, Iv
den 78 NY2d 953
People V Campbell, 139 Misc 2d 863; 170 AD2d 982,
Iv den 78 NY2d 963
SUMMARY:
Ahalt and Campbell were convicted of murdering five
people during a 48-hour period. Among their victims were
516
three people, one male aged 56 and two females, aged 74
and 75, all who were bludgeoned to death. The following
day they killed a 28 year old female. Prior to killing her,
the defendants forced her to ingest glass, broke bottles in
her face, and stabbed her seventh-month-old fetus with a
coat hanger. Her body was mutilated after her murder.
That same day at a different location, another female,
acquainted with the defendants, was beaten to death by
Ahalt. Following all the homicides, Ahalt and Campbell
attempted to cover their crimes by setting the murder sites
on fire. In the second double-jury trial ever to be held in
New York State, both men were convicted of multiple
counts of murder. Ahalt was found guilty on March 9,
1988 and Campbell was found guilty on March 10, 1988.
3. People V Richard Mainprize, Jr.
March 15, 1984 - March 27, 1984
Indictment #907
Filed 12/30/82
Murder in the Second Degree (3 counts)
Court: Monroe County Court
Presiding Judge: Honorable Charles T. Maloy
Defense Attorney: Vincent Rizzo, Esq.
200 Hall of Justice
Rochester, NY
716-418-5616
Reported: 134 AD2d 943, Iv den 71 NY2d 899
SUMMARY:
Mainprize was convicted of murder in the death of Diane
Marlowe, a 22-year-old female. Mainprize beat and
strangled Ms. Marlowe. After killing her, Mainprize placed
Ms. Mariowe's naked body in an abandoned refrigerator.
At trial, Mainprize claimed insanity, saying he watched a
"black form" perform the homicide acts. The insanity
defense was rejected. Mainprize was found guilty of
murder in the second degree on March 27, 1984.
517
4. People V. Nathaniel Lee Jones
September 2, 1987 - September 21, 1987
Indictment #918
Filed 12/23/86
Burglary in the First Degree (10 counts); Rape in the First
Degree (12 counts); Sexual Abuse in the First Degree (5
counts); Attempted Rape in the First Degree (4 counts);
Robbery in the First Degree; Sodomy in the First Degree
(4 counts); Petit Larceny
Court: Monroe County Court
Presiding Judge: Honorable Donald J. Wisner
Defense Attorney: Norman A. Palmiere, Esq.
205 St. Paul St.
Suite 300
Rochester. NY 14604
716-232-6144
Reported: 152 AD2d 984, Iv den 74 NY2d 812
SUMMARY:
Jones, who became known the "Northeast Rapist", was
involved in 10 separate incidents of burglary, rape,
sodomy and sexual abuse that occurred over a 9-month
period from April 1986 through December 1986. His
victims ranged in age from 9 to 26. On September 21,
1987, he was convicted of 37 counts of sexual assault and
burglary.
5. People V Anthony J. Salem, Jr.
July 11, 1988 -July 18, 1988
Indictment #734
Filed 10/08/87
Burglary in the First Degree (5 counts); Burglary in the
Second Degree; Rape in the First Degree (4 counts);
Sodomy in the First Degree (11 counts); Sexual Abuse in
the First Degree (12 counts); Petit Larceny (4 counts)
Court: New York State Supreme Court
Presiding Judge: Honorable Eugene W. Begin
518
Defense Attorney: Thomas J. Kidera, Esq.
lONorthFitzhughSt.
Rochester, NY 14614
716-428-5642
Reported: 167 AD2d 840, Iv den 77 NY2d 911
SUMMARY:
Salem was a serial rapist who was convicted of burglary,
rape, sodomy and sexual abuse. Over a six-month period,
he sexually assaulted six different victims who ranged in
age from 24 to 46. On July 18, 1988, Salem was found
guilty of a 37-count indictment.
6. People V Bruce W. Walden
August 25, 1986 - September 4, 1986
Indictment #877
Filed 11/27/85
Murder in the Second Degree (3 counts)
Court: New York State Supreme Court
Presiding Judge: Honorable Donald J. Mark
Defense Attorney: Edward F. Scanlan, Esq.
10 North Fitzhugh St.
Rochester, NY 14614
716-428-5210
Reported: 148 AD2d 971, Iv den 75 NY2d 819
SUMMARY:
Walden was convicted of murder in the death of 11 -year-
old Sunshine McKendree. The child's body was found on
an abandoned railroad track, nude from the waist down,
with a red scarf wrapped tightly around her neck, dead
from strangulation. On September 4, 1986, Walden was
convicted of murder in the second degree for intentionally
killing the child during a rape attempt.
519
7. People V David R. Larson
September 26, 1985 - October 10, 1985
Indictment #191
Filed 03/29/84
Murder in the Second Degree
Court: New York State Supreme Court
Presiding Judge: Honorable David O. Boehm
Defense Attorney: Michael Couture, Esq.
Unknown - Moved out of State
Reported: 145 AD2d 976, Iv den 73 NY2d 1017
SUMMARY:
Larson was convicted of murder in the death of Tracy
Kotlik, a 14-year-old female. Larson killed the girt by
slashing and stabbing her 18 times with a knife. Larson
submitted an intoxication defense at trial, but it was
rejected by the jury. On October 10, 1985, Larson was
found guilty of murder in the second degree.
8. People V Thomas Taylor and Thomas Torpey
Indictment #433
Filed 06/10/82
Murder in the Second Degree
Court: New York State Supreme Court
Presiding Judge: Honorable Robert P. Kennedy
Defense Attorneys: Robert H. Murphy, Esq.
6461 Main St.
Williamsville, NY 14221
716-634-6750
David A. Murante, Esq.
700 Wilder Building
Rochester, NY 14614
716-232-6830
Reported:
Taylor: 1 55 AD2d 980, Iv den 75 NY2d 81 8, cert
den'd Taylor v. New York, 496 US 926
Torpey: 1 68 AD2d 91 6. Iv den 77 N Y2d 967
520
SUMMARY:
Taylor and Torpey, members of an organized crime
faction, were convicted of murder in the second degree in
connection with the shotgun slaying of John Fiorino.
Taylor and Torpey contracted a hitman to kill Fiorino, who
was a member of a rival mob. Both defendants were
found guilty on March 12, 1986
9. People V Robert Reilly
October 21, 1985 - November 11, 1985
Indictment #004
Filed 01/11/85
Murder in the Second Degree (4 counts)
Court: Monroe County Court
Presiding Judge: Honorable Andrew G. Celli
Defense Attorney: Thomas J. Kidera, Esq.
10 North Fitzhugh St.
Rochester, NY 14614
716-428-5642
Reported: 155 AD2d 961, Iv den 75 NY2d 923
SUMMARY:
Reilly, 43, was convicted of four counts of murder in
connection with the death of his wife, 31, and his three
children, ages 3, 6 and 8. Reilly killed his wife by cutting
her neck and striking her with a hammer. Then he
drowned his three children in the upstairs bathtub. At
trial, Reilly claimed insanity, saying he was not
responsible for his conduct due to major depression. The
insanity defense was rejected and on November 8, 1985,
Reilly was found guilty of four counts of murder in the
second degree.
521
10. People V Kurtis Brown, Thaxton Hamlin and Billy Joe
Green
Indictment #088
August 20, 1984 - September 4, 1984
January 3, 1989 - January 10, 1989 (retrial of Kurtis Brown
only)
Indictment #088
Filed 02/08/83
Murder in the Second Degree (2 counts)
Court: New York State Supreme Court
Presiding Judge: Honorable Eugene W. Begin
Defense Attorneys: Lawrence J. Andolina, Esq.
130 East Main St.
Rochester, NY 14614
716-232-4440
Sidney T. Farber, Esq.
2140 Penfield Rd.
Penfield, NY 14526
716-377-6990
Michael T. DiPrima, Esq.
2024 West Henrietta Rd.
Unit 3-G
Rochester, NY 14623
716-292-0170
Reported:
Brown: 124 AD2d 973, rev 71 NY2d 750, 170 AD2d
955, Iv den 78 NY2d 962
Hamlin: 131 AD2d 200, afTd 71 NY2d 750
Green: 147 AD2d 955
SUMMARY:
Brown, Hamlin and Green were convicted of murdering
Brown's 21 -year-old wife, Susan. Brown plotted to have
Hamlin and Green kill Mrs. Brown to obtain the proceeds
from her $100,000 insurance policy. Brown arranged an
alibi for himself while Hamlin and Green carried out the
killing by stabbing the victim more than 30 times and
522
hitting her with a cane. On September 4, 1984, at! three
were convicted of murder in the second degree. Brown's
conviction was reversed because of a Bruton issue.
Specifically, subsequent to the trial, retroactive effect was
given to an appellate decision limiting interlocking
confessions. However, Brown was retried and again
convicted of murder in the second degree on January 10,
1989.
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.)
During my tenure as First Assistant District Attorney, I was on-call 24 hours
a day, 7 days a week for all homicides that occurred within Monroe County.
It was my responsibility, if called, to report to the scene and act as a legal
advisor to the investigating police agency. I would estimate that I responded
to 250 to 300 homicide scenes, and at various times I assisted the police in
drafting search warrants, conducting lineups, and in making decisions
relating to arrest and probable cause.
Further, as First Assistant, I had supervisory and administrative
responsibilities in the office and acted as the District Attorney in his absence
from the County. I also handled a number of cases that resulted in pleas prior
to trial and was assigned several Grand Jury investigations.
Finally, I have provided legal instruction on various occasions. I was a
volunteer instructor at a trial advocacy seminar, presented by the Monroe
County Bar Association and sponsored by the National Institute for Trial
Advocacy. Also, in conjunction with my responsibilities as First Assistant
District Attorney, I provided recruit instruction and in-service training for
police officers at the Monroe Community College Criminal Justice and Public
Safety Training Center. Additionally, I have provided training for volunteer
counselors at Rape Crisis. Most recently, I chaired the Evidence Institute,
sponsored by the Monroe County Bar Association.
523
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of ail 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.
Based on my 20 years of public service, I will be eligible at age 62 to receive
retirement benefits from the New York State Retirement System. The yearly
amount would be approximately 40% of my current salary. As an Assistant
District Attorney, I participated in a deferred compensation plan through the
County of Monroe, and as a Supreme Court Justice, I participated in a
deferred compensation plan through the State of New York. As of June 30,
1997, the fund value of my County deferred compensation plan was
$124,365.83. As of that same date, the value of my State deferred
compensation plan was $44,832.42. I was eligible to receive the monies on
deposit in the County plan when I left County employment. However, I
decided to maintain the account. With respect to the monies on deposit in the
State deferred compensation plan, I would be eligible to receive those when
I leave State employment. Prior to the institution of a deferred compensation
plan in Monroe County, I contributed to an IRA. As of June 30, 1997, the value
of that IRA was $16,214.00.
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.
Since I have served as a New York State Supreme Court Justice for the last
four and a half years, I don't believe that there are any such potential conflicts
of interest. However, I will, of course, follow the guidelines of 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.
I do not.
524
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.)
Please see attached copy of my Financial Disclosure Report.
5. Please complete the attached financial net worth statement in detail (Add schedules
called for).
Please see attached Net Worth Statement.
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.
Other than my own campaigns for New York State Supreme Court in 1991 and
1992, 1 have not.
525
AO-10M
FINANCIAL DISCLOSURE REPORT
Nomination Report
Report Rttnind by (ft* EtNa
Ratom Ac(oH9B9.PubLNo.
101-194, NonmbtrX, 1»t»
(S U.S.C. Afip.4.Stc. 101-112)
1. Pcnon Reporting (LtsI naim, list. wUdh UlaO
Siraguea, Charles J.
2. Court or Organlzitlon
US District Court/Western NY
J. Data of Report
07/16/1997
4.'nii« (A/SdtlBJudgeskKlcalfellnor
sf*>r sMia; mti^stma Judgas kxtcaf
l\ji-orptrt-«ma)
U.S. District Court Judge
t. Report Typo (check type)
X Ncnilnation. Date 07/15/1997
e. Reporting Pertod
01/01/1997
to
06/30/1997
7. Ctumlien or Olllce Address
400 Hall of Justice
Rochester, New York 14614
I. On the iMSis of the Inrormatlon contained In this Report and any
modifications pertaining tfiereto. It Is In my opinion. In compliance
with appilcatile laws and regulations.
Reviewing Officer
IMPORTANT NOTES: Tha Instructions accompanying this toim must b« tokwed. Completa al parts,
checking ttta NONE box for aactj section whan you have no raportabta htonnation. Sign on tha last page.
NAME OF ORGANIZATION / ENTITY
I. POSITIONS (Raportinglndvlduatonly:seapp.9-13oflnstnjctions}
POSITION
NONE (No reportable positions.)
'■ Advisory Board Member Families & Friends of Murdered Children
and Victims of Violence
II. AGREEMENTS (Reporting in<fvidualoi^.saapp.14-17 of InstnicHons.)
DATE PARTIES AND TERMS
n
NONE (No reportable agreements )
^ Pension
NYS Retirement System
(eligible to receive benefits at age 62)
NON-INVESTMENT INCOME
DATE
D
(Reporting tndividuat and spouse; see pp. 1S-25 of Instnjctions.}
PARTIES AND TERMS
NONE (No reportable nofrirrvestmenl income.)
1 1996 State of New York-Salary/NYS Supreme Court Justice
GROSS INCOME
(yous, not spouse's)
$ 112,430.00
1995
State of New York-Salary/NYS Supreme Court Justice
112,287.00
526
FINANCIAL DISCLOSURE REPORT
Name of Penon Repoctiqg
Siragusa, Chcurles J.
DaUoTBcpca
07/16/199
IV. REIMBURSEMENTS and GIFTS - ttanvoitatiaa, lodiiiK. boi, atatmanat.
(btebida tkoM to Mpous* ait^ dtptndau ABdrtn; MM At parmihttteaU '(S}' and '(PC)' to btdtoau rtpontbU nitnbttntmtno and g^ rtetived bytpoiat
ai^ d^tamUm chddrtn, r€sp*tStvttf. Sttpp. i6-J9cfbatnictionj.)
D
SOURCE
NONE (No iDcb reportable reuDbunemcda or gift*)
DESCRIPTION
V. OTHER GIFTS
0iclud€S thore to xpo%at and dependent children; use the parerUheticats '(S)' and '(DC)' to indicate other gifts received by spouse and dependent children,
rapecttvefy. See pp. 30-33 of Instructions.)
D
SOURCE
NONE (No Bich reportable gifts)
DESCRIPTION
VI. LIABILinES
(Includes those of ^>ou5e and dependent children; indicate v^iere applicable, person rtsponsible for tiabiUty by using Ae parenthetical ' (S)' for separtOe
liability offfte spouse. '(J)' for Joint liability of reporting individual and spouse, and 'ff)Q*for liability of a dependent chUd. See pp. 34-36 of btstructimu.)
□
CREDITOR
^ I NONE (No reportable lUbilitiea)
DESCRIPTION
VALUE CODE*
> VALCX)DESJ-$13,(XX)oclesa K-$1S,001-S30.0(» L-UO,0OI lo {100,000 M-S100.00I-$23O,0OO N-$MO.OOl-MOO,000
0-$500,00l-$t,000,000 PI-J1,000,OOI-$},000,000 P2-U,OaO,OOI-S2S,000,000 P3-S25,000.00l-U0,000,000 P4"«0.000.001ocnio»B
527
FINANC3AL. DISCLOSURE HEPORT | Slraguaa, Charles J.
Dau of Report
07/16/1997
- Bfamt, taltit. tmaaetlcni QncakUi man efjpaat md
Vn, Page 1 INVESTMENTS and TRUSTS J^pmdaidaun^ s-pp.sr-UefiatnKticm.)
A.
DcKii{i6aaorAncti
ttaeaUidttntppUcatU. mmtrof
'(Ji'jbrJcHmmtnh^ efrtpcrtbif
InHiUmlmdtpoia: •(5)'/ortip-
a
C
OfOSSTahie
at cad or
Rpocdat
pcdod
D.
"Raam Ih ml ouilJ<4 w|KMUm pcood
0)
AlK.
Co<lo
(A-
CO
•I>p.
(0^..
<Urkki>d.
mMor
boeroO
0)
VakM
Coda
O-T)
TO
Value
Mclhod
Coda
(Q-W)
0)
■Tn*
•loj.aell,
lioiO
VMcrcn^b^Omiam
Bale:
(3)
Vitoa
Code
W
OalD
Coda
(AH)
CJ)
Idcoliqtor
D«J
Ofpdvala
tmuadioo)
NONE <■>» ttpojublo iiiooiiio,atMa, or
tnnnrrtnm)
1 H4T Bank
B
interest
J
T
EXEMPT
2 MtT Bank
A
Interest
J
T
EXmPT
3 Herrill Lynch (IRA)
EXEMPT
4 — Alliance Income Builder
B
Dividend
J
T
EXEMPT
5— ML Global Allocation - B
B
Dividend
J
T
EXEMPT
6 Merrill Lynch
EXEMPT
7 Ready A^aet Trust
A
Dividend
J
T
E3CEHET
8 —Putnan Utilities Growth <
Income Fund Class A
A
Dividend
J
T
EXEMPT
9 — Putnam Global Growth Fund
Class A
A
Dividend
J
T
EXEMPT
10 — HFS Municipal Income FD Class B
A
Dividend
J
T
EXEMPT
11 Work Recovery New Common Stock
None
J
T
EXEMPT
12 Deferred Compensation PEBSOO
EXEMPT
13 —Putnam Investors Fund Class A
B
Dividend
K
T
EXEMPT
H —American Century 20th Century
Ultra
None
K
T
EXEMPT
15— Fidelity Equity Income
C
Dividend
K
T
EXEMPT
16 — Tenpleton Foreign Fund Class I
A
Dividend
K
T
EXEMPT
17 Deferred Compensation Copeland
Companies
EXEMPT
llncXlainCoilecA-tl.OOOorkss B-S1.00I-$2,500 0-Sl^l-ii,OV> D-J5,0Ol-$15.0O0 E-J15.0OI-S3O.OOO
(ColBl,D4) F-»0.001-$IO0.aO0 0-$ 100.001 -$1,000,000 H1-S1,000,001-S3,000,000 H2-{5,000.00l croons
IValCoies: J-$tS,000 or Ics K-J13.001-S50.000 U-U0,001-{100,000 M-S100,C0I-a}0,000 N-«30,OOI-S500,000
(ColCl.D3) O-JJ00,001.Jl,000,000 P1-JI,000,001-M,000,000 P2-M.000,001-«3.000,000 PJ-S«.000,001-MO,000,000 P4-«0,000,001 ormert
3V.lMlhCo.fa: Q-Aj>praml R-Co« (ital olila ooly) S-A«nma< T-Osli*tafa«
(Cold) U-BookVito. V-Ollier W-Ej«im««d
528 1
FINANCIAI. DISCLOSURE REPORT
Slragusa, Charles J.
DtfoofKepoct
07/16/1997
Vn. Page 2 INVESTMENTS and TRUSTTS Jtpaidaiddu^ sttpp-n^eftumaiaa.)
A.
Ol > ll|WOil of A««*i»
ti^cauwlitn appBeatU, OMitr ef
tuctutlysAitllupannaietlcal
iHUMmlmdipaa: •0)'M'V-
Plaa 'CO' iffter tach aael
txaiflfnom prior JlicUmtn.
B.
lacooM
C.
Onaanhw
•t cad of
pedod
D.
0)
AnS.
Code
<A-
(2)
Type
dMdend.
rcKor
lalereit)
0)
Vahw
Coda
(^P)
CD
Valua
»fol>ad
Coda
(Q-W)
0)
firp.
(e.«..
boy. lell,
nkerser,
redcsip-
lioa)
If Boc oeniiit 6om dlacloiun 1
C2)
Dale:
(3)
Vaba
Code
d-P)
(O
Oaln
Code
(AH)
(3)
Uesti^of
buyec/ieDer
(ifprivale
tramtaftintl)
D«7
NONE (no reportable iacome^usett, or
tnouctioiu}
18 — Stable Income Fund
A
Dividend
K
I
EXEMPT
19 — Janus Fund
A
Dividend
J
T
EXEMPT
20 — TRP Equity Incoiae Fund
B
Dividend
J
T
EXEMPT
21 —TRP International Stock
A
Dividend
J
T
EXEMPT
22 —Vanguard GNMM
A
Dividend
J
T
EXEMPT
|lDo*aiis Codec A-tl,000 or ks &-Sl,001-S2.JOO OQ^l-tJ.OOO D-S],001-$13,000 E<l),OOI-t}0.000
(ColBI,D4) F-S30^1-J100.000 O-J100,001-JI/K»,000 Hl-»1.000.001-«.000.000 HX3.000.OOl ormoro
2V<ICo<ks: J-IlJ.OOO«irfcj. K-$15.001-I30.000 1^-J50.0014100.000 M-S100.0OI-S23O.00O N-S230.001-«300,000
(OeLCUIS) O-JJOO.OOl-Jl.000.000 P1<JA)0,OOI-«.000.000 W-«.000.00I-SU.000AI0 P><23.000.001-«0.000.000 P4-S30.000.001 oriDore
3ValUbOi><lerQ-A|i|nB>l R-Cctf (real aUK oely) S-AneamcX t-C»AnSiAA
(PeLC3) O-BoolcValDO V-OOcr W-Eiiimtfal
529
FINANCIAL DISCLOSURE REPORT
Nuaa of Penoa Rqxiniag
Siragusa, Charles J.
DUeof Repoct
07/16/1997
Vra. ADDITIONAL INFORMATION OR EXPLANATIONS.
I y I NONE (No ■fWiitiniMl bifacir«tioa or exptuutiooi.)
N(»IE
(Indicalo put of Rpoit.)
530
FINANCIAL DISC1X)SURE REPORT
Name of Penoo Reporting
Siragusa, Charles J.
DuaofRepoit
07/16/1997
K. 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 at the time after reasonable inquiry, I did not perform any adjudicatory
fimction in any litigation during the period covered by this rqwrt in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3Xc), in the outcome of such litigation.
I certify that all the 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 that any information not rqwrted
was withheld because it met applicable statutory provisions permitting non-disclosure.
I fiirther 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. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial
Conference regulations.
Signature
CAa/igi,&j^ ^kMif^kj^Qj Date ///cj/y?
Note:
Any individual who knowingly and wilfully falsifies or fails to file this rqx)rt may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Knandal Disdosnre
Administrative OfTicc of the United States Coarts
One Coltuabns Circle, N.E.
Suite 2-301
Washington, D.C 20S44
531
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail
all assets Oncluding bank accounts, real estate, securities, trusts, investments, and other financial
holdings) all llabilides including debts, moitgages, loans, and other financial obligatioDs) of
yourself, your spouse, and other immediate members of your household.
1 ASSETS
UABILmES
===]
Cuh on bic^ uid in bulu
21
?23
61
Note* ptyible la btcia-uaaei
0
VJS. CoyoBmcci Mcuritia-<di
(dxilule
217
571
25
Nolei ptytUe to htvla-vnitcund
0
Holes piyible to teluivei
0
Unliiied icasitie*-*ii ichulult
0
Notei piyible to othen
0
1
AcoianU md nates ncciyible:
0
Accountt lad billf due
0
Due £nm itUdvu (j)d friends
Unpiid income us
0
Due from othen
Other tinpid tix t&d intentt
0
Doubtful
Retl cttiie moRgif es piyible-idd
Khedule SEE °B"
155
000
00
Ketl esuie o-wneii-uld tcbolale
210
DOC
00
Chirtfl ooitiite* sad other lieos fty-
•ble
Re4l tttH£ ffiart{i(U reccivtble
0
Other debu-itcmizc:
-
Adioi ind oiiKt pcnooil prapeny
40
000
00
^if^ vtlue-4iic iosunnce
2
200
00
OtSs UMU-ilemize:
0
1
,
■
-
Total Enbilicief
155
000
00
■-.
Net Worth
336
094
86
j Total AJScU
491
094
86
Totjl liihilitics tad net vot\h
491
094
86
-
1 CONTINGEKr LIABIUTIES
GENERAL INFORMATION
0
Are uy luett jdedgel? (Add <chad-
ole.)
NO
I Ob leua or contncti
0
Are yoa defend iiu in any loiu or lejil
•ctioniT
NO
I Lc(>lCliimi
0
Have you ever fiVrn baalit]]xcy?
NO
1 PiOTuioo tar Fedenl Income Tiz
r
.__
1 Other ipesitl d^x
nl
_'
J==
532
SCHEDULE A
I. Merrill Lynch
A. Ready Asset Trust 7.215.00
B. Mutual Funds
1 . Putnam Utilities Growth and Income
Fund Class A 71 .00
2. Putnam Global Growth Fund Class A 10,363.00
3. MFS Municipal Income FD Class B 13.426.00
Total 31.075.00
II. Merrill Lynch
A Alliance Income Builder Class C 7,389.00
B. ML Global Allocation B 8.825.00
Total 16,214.00
III. Common Stock
Work Recovery New 1 ,084.00
IV. Deferred Compensation - County of Monroe - PEBSCO
A Putnam Investors Fund Class A 34,917.71
B. Fidelity Equity - Income 33,485.78
C. American Century. 20th Century WLTRA 28,912.59
D. Templeton Foreign Fund, Class I 27.049.75
V.
Total
124,365.83
Defen-ed Compensation - State of New York - The
Copeland Companies
A Stable Income Fund
16,310.29
B. Janus Fund
727.11
C. TRP Equity Income Fund
9.935.49
D. TRP International Stock
8,520.16
E. Vanguard GNMA
9.339.37
Total 44,832.42
533
SCHEDULE B - REAL ESTATE
Residence: Webster, New York 1 4580
Fair Market Value: $21 0,000
Mortgage Loan: $155,000
Mortgage: Standard Federal Bank
Savings/Finalcial Services
45-964 98-18
534
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." Desaibe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
From 1984 through 1992, while a member of the Monroe County District
Attorney's Office, i served on the Rape Crisis Advisory Board, and also
provided legal instruction for volunteer counselors with that organization.
From 1988 through the present, I have participated in the Mentor Program
sponsored by the Board of Cooperative Educational Services by providing
guidance for students interested in careers in law and criminal justice.
Beginning in 1991, I became involved in the Community Reading Program
sponsored by the Rochester City School District. In conjunction with this
program, I had the opportunity to read to inner-City school children at the
primary level to encourage their interest in learning through reading. Since
1992, ! have participated in police civilian academies, sponsored by various
law enforcement agencies within Monroe County. The purpose of these
academies is to foster better relationships between the police and the
communities they serve. In 1992, 1 began assisting Families and Friends of
Murdered Children and Victims of Violence, an organization started by a
mother whose son had been murdered in the City of Rochester. On behalf of
this group, I have spoken to teenagers on the impact of violence, based on my
experience as an assistant district attorney and as a judge. Presently, I serve
on the Advisory Board for this organization. Since 1993, 1 have been active
in the Weapons Diversion Program of the Rochester City School District. In
connection with this program, I have spoken to inner-City students,
suspended from school because of weapons possession, and their parents,
about the potential consequences of such conduct, as well as the mutual
responsibility to foster a safe environment for learning in our schools. Since
1994, 1 have been involved in the Park Ridge Chemical Dependency Outreach
Program. I have met with high school students in the program, as well as
their parents, and discussed the legal ramifications and reasons behind drug
and alcohol abuse. Finally, I am currently a member of the Monroe County
Criminal Justice Council, a group comprised of professionals from various
discipline, which monitors criminal justice issues.
535
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 the practical implementation of
memtjership 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, nor have I ever belonged to any such organization.
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).
Yes, there is. The process started with the Committee on the Judiciary for
Senator Daniel Patrick Moynihan. The Committee required the submission of
a detailed "Candidate's Questionnaire" followed by an interview. At my
interview, which occurred in New York City, the Committee members
thoroughly questioned me about my qualifications, experience and
background. After completing interviews with all candidates, the Committee
recommended certain individuals to Senator Moynihan. I was one of the
individuals recommended, and was subsequently interviewed by Senator
Moynihan himself in Washington. Approximately two weeks later. Senator
Moynihan informed me that he would be recommending me to President
Clinton for appointment as a Federal District Court Judge. Shortly thereafter,
I received various forms from the Office of Counsel to the President, including
the American Bar Association Questionnaire and the F.B.I. Standard Form 86.
After completion of these forms, I was interviewed extensively in Washington,
D.C. by members of the Department of Justice, and next, in Rochester, New
Yorit, first by a representative of the F.B.I., and then by a representative of the
American Bar Association. With respect to the A.B.A. investigation, I was
informed that I was rated well qualified for the appointment. Finally, on July
15, 1997, I was notified by the White House Counsel's Office that President
Clinton was nominating me for the position of United States District Judge for
the Western District of New York.
536
Has anyone involved in the process of selecting you 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-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff
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.
I believe in our tripartite system of government. The strong
presumption of constitutionality of legislative acts compels trial courts,
in the absence of a clear showing of conflict with the Constitution, to
determine and give full force and effect to legislative intent. Adherence
to this rule is necessary to ensure that our representative government
works and works well. Trial courts need to appreciate their
jurisdictional limitations. While the constitutionality of legislative
enactments may properiy be the subject of litigation, a review of the
"wisdom" of such legislation, state or federal, is not.
537
Cases in trial courts, in my experience, involve the assertion of the
individual interests of the parties themselves. These litigants are not
the representatives of society at large. While sometimes their interests
are broad and affect a number of people, as in class actions, more
typically these interests are very narrow and specific, as in negligence
and contract actions. Therefore, an individual case, at the trial court
level, should not occasion the creation of new rights or the
implementation of far-reaching social policy.
My sixteen years as a trial attorney and my four-and- a-half years as a
trial judge have left me with a strong sense that what litigants expect,
and what they are entitled to from the courts, is an impartial application
of existing law and precedent, as well as the established rules for
determining legislative intent. I do not see the role of federal district
courts differently.
538
I BIOGRAPHICAL INFORMATION (PUBLIC)
Full Name (include any former names used).
Algenon Lamont Marbley
Nickname; Monte Marbley
Address: List current place of residence, office address(es), and telephone numbers.
Residence: Blacklick, Ohio 43004
OflBce: Vorys, Sater, Seymour and Pease
52 East Gay Street
P. O. Box 1008
Columbus, Ohio 43216-1008
Date and Place of Birth.
Date of Birth: September 19, 1954
Place of Birth: Morehead City, North Carolina
Marital Status (include maiden name of wife, or husband's name): List spouse's
occupation, employer's name and business address(es).
Married: Yes
Spouse: Janet Lynn Green Marbley
Occupation: Administrator and Counsel, Supreme Court of Ohio Client's Security Fund
175 South Third Street, Columbus, Ohio
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
University of North Carolina Northwestern University School of Law
at Chapel Hill Matriculated August, 1976
Matriculated August, 1972 Graduated May, 1979
Graduated May, 1976 Juris Doctor Degree, 1979
Bachelor of Arts Degree, 1976
539
Employment Record: List (by year starting with the most recent) 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 fi'om college
Associate (1986-1991)
Partner (1991 -Present)
Vorys, Sater, Seymour and Pease
52 East Gay Street
Columbus, Ohio 43215
Board Member (1991 - Present)
Board President (1995 - 1997)
Salesian Boys and Girls Club
80 South Sixth Street
Columbus, Ohio 43215-4784
Board Member (1991 - Present)
Secretary and Counsel to the Board
(1992- 1996)
Big Brothers/Big Sisters Association
of Columbus
Adjunct Professor of
Trial Advocacy
Fall 1995
Capital University Law School
665 South High Street
Columbus, Ohio
Instructor, 1987 -Present
National Institute of Trial
Advocacy
Assistant Regional Attorney
(1981-1986)
United States Department of Health and
Human Services
Office of the Regional Attorney
105 W. Adams Street
Chicago, Illinois
Adjunct Professor of Criminal
Law and Procedure (1985 - 1986)
Northeastern Dlinois University
5500 N. St. Louis Avenue
Chicago, Illinois
Associate (1979 - 1981)
Law Clerk (1977 -1979)
James D. Montgomery and Associates
(formerly Montgomery and Holland)
39 South LaSalle Street
Chicago, Illinois
Legal Assistance Clinic
Law Clerk (Summer 1977)
Northwestern University
357 E. Chicago Avenue
Chicago, Illinois 6061 1
Laborer (Summer 1976)
Bethlehem Steel Corporation
U. S. Highway 12, Portage, Indiana
540
7. Military Service; Have you had any military service? If so, give particulars, including the
dates, branch of service, rank or rate, serial number, medals awarded, and type of
discharge received.
None.
8. Honors and Awards: List (by month and year starting with the most recent) any
scholarships, fellowships, honorary degrees, and honorary society memberships that you
believe would be of interest to the Conference.
Ten Outstanding Young Citizens of Columbus (1995),
Outstanding Service Award, Minority Legal Education Resources, Inc (1986) (Nonprofit
organization which assisted minorities and others in taking the Illinois Bar
Examination);
Order of the Golden Fleece (1975), Highest Co-educational Honorary Society at the
University of North Carolina, Chapel Hill,
Order of the Grail (1974), Highest Male Honorary Society at the University of North
Carolina, Chapel Hill;
North Carolina Fellow (1973), Based on Academic Performance and Leadership Ability,
awarded to approximately 20 students each year.
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.
Bar Associations:
American Bar Association
National Bar Association
Columbus Bar Association
Ohio State Bar Association
Committees:
Columbus Bar Association:
Chairman, Trial Advocacy Committee - (1996 - 1997)
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.
a. Lobbying Organizations:
National Institute for Trial Advocacy (I have not been involved in lobbying
activities)
541
b Other Organizations:
President of the Board of Directors, The Salesian Boys and Girls Club; (Term
Expires 7/97)
Secretaiy and Counsel to the Board, Big Brothers/Big Sisters Association of
Franklin County, (Term Expires 7/97)
Omega Psi Phi Fraternity, Inc.
Jefferson Golf and Country Club
The Capital Club
1 1 . 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.
Court Date of Admission
Supreme Court of Illinois 1980
United States District Court for the Northern District of Illinois 1980
United States Court of Appeals for the Seventh Circuit 1982
Supreme Court of Ohio 1987
United States District Court for the Southern District of Ohio 1987
United States Court of Appeals for the Sixth Circuit 1996
United States District Court for the Southern District of Illinois 1 996
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.
None
13 Health: What is the present state of your health? List the date of your last physical
examination.
Present state of health: Excellent
Date of last physical examination : 1 997
14 Judicial Office: State (chronologically, most recent first) any judicial offices you have
held, whether such position was elected or appointed, and a description of the jurisdiction
of each such court.
None
542
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 decision 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.
None
1 6. Public Office: State (chronologically, most recent first) 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, most recent first) any unsuccessful
candidacies for elective public office.
None.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation fi^om
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;
No.
(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;
Title Employer Date
Law Clerk, Certified 71 1 Northwestern University Legal September 1976-
Student (As a third year law Assistance Clinic May 1979
student, I was allowed to 375 E. Chicago Avenue
represent clients in court Chicago, Illinois
under supervision of an
attorney, 1975-1976)
543
Associate Attorney
Montgomery and Holland
39 South LaSalle Street
Chicago, Illinois
(n/k/a James D Montgomery and
Associates)
May 1979 -
October 1981
Assistant Regional Attorney
Adjunct Professor of
Criminal Law and Procedure
Associate (1986- 1991)
Partner (1991 -Present)
Instructor
Adjunct Professor Trial
Advocacy
United States Department of
Health and Human Services
105 W. Adams Street
Chicago, Illinois 60603
Northeastern Illinois University
Chicago, Illinois
Vorys, Sater, Seymour and Pease
52 East Gay Street
Columbus, Ohio 43215
National Institute of Trial
Advocacy
Capital University Law School
665 South High Street
Columbus, Ohio
October 1981 -
November 1986
1985 - 1986
1986 -Present
1987 - Present
Winter 1995
Present
(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?
May 1979 - October 1981 (Montgomery and Holland)
I was employed by Montgomery and Holland at the beginning of my
second year in law school (fall 1977). I worked there continuously through
law school, until October 1981.
Montgomery and Holland was a litigation boutique with approximately
seven attorneys. I worked primarily with the senior partner, James D.
Montgomery, doing federal and state criminal defense. My primary
responsibility was assisting Mr. Montgomery in the preparation and trial of
cases. Typically, I prepared witnesses for testimony, took witness
statements and engaged in general investigation. I was responsible for
drafting pleadings, writing briefs and arguing motions.
544
While at Montgomery and Holland, I tried six cases to a jury. I served as
lead counsel on four of those trials, and as second chair on the remaining
two. I was involved in one civil jury trial, a paternity case, which I also
second chaired with Mr. Montgomery. The remaining four jury trials
involved three felony criminal matters and one misdemeanor matter, ail of
which I first chaired
October 1980 - November 1986
In October 1980, 1 left the Montgomery and Holland firm and began
employment with the Office of the Regional Attorney, U. S. Department of
Health and Human Services ("HHS") in Chicago. I was recruited to the
Department of Heahh and Human Services primarily to practice in the
administrative litigation area. My primary responsibilities were prosecuting
physician exclusion and physician suspension cases pursuant to Section
11 60 of the Social Security Act.
At issue in physician suspension cases was the length of time that a
physician should be suspended fi"om the Medicare Program due to a
conviction relating to Medicaid fi"aud. The physician exclusion cases were
akin to medical malpractice cases. At issue in those cases was whether the
physician's practice fell below the standard of care for physicians in that
particular geographical area. If it was determined by the administrative law
judge that the practitioner fell below the standard of care, then that
practitioner would be excluded fi-om the Medicare program for a period of
time. While at Health and Human Services, I tried two physician exclusion
cases and won both. I tried In The Matter of_Dr. H. R., , which was one
of the first such proceeding to go to hearing in the country. I also tried as
first chair In The Matter ofM. F. Again, the Agency prevailed throughout
the administrative process. My remaining duties included representing the
various HHS umbrella agencies~e.g. the Social Security Administration
and the Health Care Financing Administration in various administrative
matters. During that time, I represented the Agency before the Seventh
Circuit Court of Appeals in the case ofSt. EUzabeth Hospital v. Bowen,
797 F.2d 449 (7th Cir. 1986), a case relating to hospital reimbursement
regulations, in which the Agency prevailed.
'J Pursuant to the pertinent regulations, the name of the respondent cannot be disclosed.
7
545
November 1 986 - December 1 995
I joined Vorys, Sater, Seymour and Pease as an Associate in November
1986. 1 was recruited directly into the litigation group to handle medically-
related matters, such as medical malpractice defense, product liability
litigation and workers compensation litigation My first major case,
however, was in the United States District Court for the Southern District
of Ohio in the case ofRopak v. Buckhom, 656 F Supp 209 (S.D Ohio
1987), a securities litigation matter in which the primary issue was the
validity of a "poison pill" plan. This was a case of first impression in this
district and I was a part of the litigation team. Ropak was the first
litigation in which a poison pill plan under Delaware law was found invalid.
I also participated in the preparation of the brief filed with the Sixth Circuit
Court of Appeals The Sixth Circuit affirmed the favorable ruling below.
Having participated in that case, I also was involved in the trial of General
Acquisitions, Inc. etal. v. Gencorp, Inc., et al.. Case No C2-87-348 U.S.
District Court Southern District of Ohio before the Honorable Joseph
Kinneary. There, as in the Ropak litigation, I was primarily involved in
drafting pleadings, and interviewing and preparing witnesses for trial. The
GenCorp matter eventually settled.
Subsequent to my involvement in securities litigation, my litigation practice
involved primarily product liability defense, general business litigation and
workers compensation litigation. I have represented a variety of clients in
my product liability defense practice, including General Motors, Coca-
Cola, Illinois Tool Works and Ford Motor Company. One significant case,
an automobile fire case. Bales v. General Motors, Case No. 86 CI 397,
I tried to a jury before the Honorable Nicholas Holmes, in the Ross
County, Ohio Court of Common Pleas I also tried two additional product
liability matters, as well as three workers' compensation matters during this
period.
My commercial litigation experience, in addition to securities litigation,
involved matters ranging fi^om breach of contract to commercial paper. I
was involved in a protracted breach of contract case with product liability
overtones, Buckeye Custom Products, Inc. v. 77?^^ Technar, Case No. C2-
90-207, before the Honorable James Graham. That case settled on the day
of trial following arguments on motions, but before jury selection. I also
was involved in a complex set of commercial paper cases on behalf of
Signet Bank Maryland which were pending in the District Court with
parallel cases pending in the Franklin County, Ohio Court of Common
Pleas Those cases settled.
546
1995 to Present
In 1 995 my practice changed to some degree. I now practice primarily in
the area of employment litigation and commercial litigation. In 1995, 1
undertook all of the Ohio litigation for Illinois Tool Works, a Fortune 100
company Illinois Tool Works selected me as the attorney for its sixteen
factories in the State of Ohio. I am responsible for all of the company's
labor work and all of the litigation involving those factories, including all of
its divisions. I also am doing a significant amount of employment litigation
for The Limited and its various divisions. I serve as lead counsel in several
employment litigation matters pending in the United States District Court
for the Southern District of Ohio, and I have appeared as trial counsel for
such other companies as Symix Systems, Inc., Pitney Bowes and M/I
Schottenstein Homes
(2) Describe your typical (former) clients, and mention the areas, if any, in
which you have specialized
Most of my clients are large corporations, although I have represented
several smaller enterprises and individuals My civil litigation experience
has been in the areas of general business litigation, product liability and
employment litigation. My representative clients in litigation include:
Business Litigation
Wendy's International, Inc.
Worthington Industries
Illinois Tool Works
National City Bank
Signet Bank Maryland
Product Liability
General Motors
Ford Motor Company
The Coca-Cola Company
Illinois Tool Works
Employment Litigation
The Limited
Symix Systems, Inc.
Illinois Tool Works
M/I Schottenstein Homes
547
Workers' Compensation Litigation
General Motors
Teledyne
Illinois Tool Works
George Lynch Controls
Special Counsel Litigation
The Ohio State University
Franklin County Children's Services
Big Brothers/Big Sisters Association
Project Linden, Inc.
I have also represented The Ohio State University as special counsel in a
wrongful death action from which the University was dismissed pursuant to
a Motion to Dismiss in State Court and later dismissed in the Court of
Claims I also have appeared as special counsel for Franklin County
Children Services in a contested child custody matter in which the Agency
had been implicated on negligence counts.
(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 frequently. Virtually 100% of my professional work is
litigation. The only exception would be some of the pro bono counseling
that I provide and have provided to Big Brothers/Big Sisters Association as
well as The Salesian Boys and Girls Club for the past six years.
(2) What percentage of these appearances was in:
(a) federal courts:
Approximately 33% of my cases have been in the Federal courts.
(b) state courts of record:
Approximately 66% of my cases have been in the State courts.
(c) other courts:
Less than 1% of my cases have been in other courts.
10
548
(3) What percentage of your litigation was:
(a) civil:
85%
(b) criminal:
15%
(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
Twenty (20)
• Sole Counsel: 9
• Chief Counsel: 15
• Associate Counsel: 5
(5) What percentage of these trials was:
(a) jury - 85%
(b) non-jury- 15%
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, address, and telephone numbers of co-counsel and of principal
counsel for each of the other parties.
11
549
The ten most significant litigated matters are as follows
1) United Stales v. Powell, 654 F 2d 724 (7th Cir 1981)
a Date of Representation 1980
b Court United States District Court for Northern District of Illinois
Honorable Nicholas J Bua
c Co-Defense Counsel: James D Montgomery
39 S LaSalle Street
Chicago, Illinois
(312)977-0200
d. Opposing Counsel; Assistant United States Attorney Daniel Reidy
(Mr. Reidy is now a partner at Jones, Day, Reavis and Pogue, Chicago,
(312)269-4140)
Defendant James H Powell was charged with violation of the Hobbs Act, 18
use. § 1951 The government argued that Mr Powell, a plumbing inspector for
the City of Chicago, had extorted money from an electrical contractor.
The matter was tried to a jury in the United States District Court for the Northern
District of Illinois before Judge Nicholas Bua. The government was represented
by Assistant United States Attorney, Dan Reidy, now a partner with the law firm
of Jones, Day, Reavis & Pogue in Chicago The jury trial lasted approximately one
week and was tried pursuant to a multi-count indictment The principal issue
before the jury was whether defendant, Mr. Powell, extorted money fi-om the
electrical contractor who had received goods moved in interstate commerce. In
prosecuting its case, the government relied on wire tap evidence derived fi-om a
wire worn by their primary witness, the electrical contractor. At trial, we proved
that the tape testimony was unreliable and the defendant was convicted of only two
counts of the multi-count indictment The defendant was sentenced to one year in
the federal penitentiary
The Powell case was significant to me because it was my first jury trial in Federal
court I was responsible for putting on the entire defense case, which included the
direct examination of the defendant and various defense factual witnesses and
character witnesses In addition, I cross examined some of the prosecution
witnesses and argued all motions before the Court. The fact that I was able to
convince the jury through my examination of the defendant that the wire tap
evidence was unreliable and was to be disbelieved certainly resulted in the
defendant not being convicted of the more serious charges.
12
550
2) Buckeye Custom Products. Inc. v. TRW Technar, Case No C2-90-207
a Date of Representation; 1990-1991
b Court: United States District Court for Southern District of Ohio
Honorable James Graham
c Co-Counsei: Michael G. Long
Vorys, Sater, Seymour and Pease
52 East Gay Street
Columbus, Ohio 43215
(614)464-6297
d. Opposing Counsel: Richard I. Werder, Jr.
Michael Carpenter^
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216)586-7260
This breach of contract action was brought by my client. Buckeye Custom
Products, Inc , against TRW Technar in the United States District Court for the
Southern District of Ohio before the Honorable James Graham Buckeye Custom
Products, a division of Worthington Industries, sued TRW for its failure to honor a
requirements contract between the companies for the production of cylinders that
were incorporated in TRW's airbags. TRW counterclaimed against Worthington
Industries, Inc., arguing that the part Buckeye produced was defective.
The case involved complex commercial issues, as well as technical issues. TRW's
claim was in the nature of a product liability claim because it involved questions of
whether the cylinder produced by Buckeye was in full compliance with the
specifications of the contract. The primary technical area of contention was
whether the cylinders were "burr fi^ee," or produced without any extruded metal
fi-agments. This required extensive expert testimony on "burr technology." The
case lasted approximately two years, with discovery lasting approximately one
year.
^J Mr. Carpenter is now a member of the firm of Zeiger and Carpenter, Suite 1600, 4 1 South High Street,
Columbus, Ohio 43215, (614) 365-4100.
13
551
I was primarily responsible for conducting much of the discovery, including talcing
the depositions of TRW s factual and expert witnesses and defending the
depositions of Buckeye's factual and expert witnesses. I also was responsible for
the trial brief and arguing motions The case settled after argument on the motions,
but prior to voir dire
3) Thomas Bales v. General Motors Corporation, Case No. 86 CI 397
a. Date of Representation 1987
b. Court: Ross County Court of Common Pleas
Honorable Nicholas Holmes
c Co-Counsel: Gerald P Ferguson
Vorys, Sater, Seymour and Pease
52 East Gay Street
Columbus, Ohio 43215
(614) 464-6484
d Opposing Counsel: Charley Hess
1520 Old Henderson Road
Suite 102 A
Columbus, OH 43220
(614)442-5800
This case was a product liability action. I defended on behalf of General Motors
Corporation. The plaintiff alleged that a defect in the ignition system of the
Camero caused the Camero to ignite after the ignition had been turned off and the
car parked in the garage. The fire which ensued consumed the garage and its
contents and much of the plaintiffs house. The defense argued that the fire was
not caused by any defect in the Camero, but offered as a possibility defective
wiring in the garage.
The defense strategy which I developed was significant in two respects. First, the
defense not only had to rebut Plaintiffs theory, but had to present a plausible
theory of the fire's origins. In effect, the defense had to sustain a burden of
persuasion to establish that wiring in the garage was the likely cause of the fire.
Secondly, because the fire destroyed much of the family's belongings, I had to
convince the jury to be guided by scientific fact instead of emotions. It was,
therefore, incumbent upon the defense to focus the jury's attention on the issue of
liability instead of damages and on the expert testimony instead of that of the
Plaintiffs.
14
552
The case was tried to a jury. I was responsible for every aspect of this trial,
including jury selection, opening argument, presentation of the defense case, cross
examination of witnesses in the plaintiffs case, closing arguments and arguments
on motions My co-counsel only participated in the charging conference The jury
returned a verdict in favor of the defense on all claims
4) In re M. F., Case No. 000-57-7005
a. Date of Representation: February 27 - March 1, 1985; August 12 - 14,
1985
b. Department of Health and Human Services, Social Security Administration
Office of Hearings and Appeals
Chief Administrative Law Judge, Kenneth Stewart
c. Co-Counsel: Donna Morris Weinstein
Regional Attorney
U. S. Dept of Health and Human Services
105 W. Adams Street
Chicago, Illinois 60603
(312)886-1710
d. Opposing Counsel: Steven O. Murray
Otjen, Van Ert, Stangle, Lieb & Wier
450 Science Drive, Suite 110
Madison, Wisconsin 53711
(608) 238-9500
This case was a physician exclusion case brought by my client, the United States
Department of Health and Human Services ("Department" or "DHHS") pursuant
to Section 11 60 of the Social Security Act. The Department alleged that the
respondent. Dr. F. rendered care that fell below the professionally recognized
standards of care for the geographical area in which he practiced and that he
should, therefore, be excluded from participation in the Medicare Program for a
period of five (5) years. The Department had the burden of establishing its case
through medical expert testimony.
The case of Dr F. involved seven medical charts and several days of expert
medical testimony. At the conclusion of the testimony, the administrative law
judge found for the Department and excluded Dr. F for five years. The
significance of this case was that it was one of the first cases tried nationally under
the then newly-enacted Section 11 60 of the Act and was the second one tried and
won in our region. I had, in fact, tried the first case of this kind in the six-state
region served by the Chicago office of HHS The Dr F matter also was
15
553
significant because I trained our Regional Attorney, Donna Weinstein, in trying
physician exclusion cases.
Parks V. Tdedyne Ohio Cast, Case No 91-CV-0221
a Date of Representation April, 1993
b Court: Clark County Court of Common Pleas
Honorable Gerald F Lorig
c. Co-Counsel: None.
d Opposing Counsel: John Workman
1375 Dublin Road
Columbus, Ohio 43215-1069
(614)486-8935
This was a workers' compensation death case brought against my client, Teledyne.
The claimant's decedent had prevailed throughout the administrative process and
Teledyne appealed the matter to Common Pleas Court for a trial de novo. At issue
in this case was whether the Plaintiffs decedent's lung disease was contracted as a
result of his work in the Teledyne foundry. This two-day jury trial centered
primarily on the medical testimony of several experts. I was responsible for the
entire case: argument on motions, opening statement, examination of all witnesses
and closing argument.
Af^er several hours of deliberation, the jury returned a verdict in favor of Teledyne.
This case was significant because it was one of those rare trials in which the
claimant had prevailed throughout the administrative process on essentially the
same medical evidence as was presented to the jury. It was a very difficult case,
both technically and emotionally, inasmuch as the Plaintiff was a very sympathetic
figure, and it was tried in a city which had some antipathy toward Teledyne
because it had closed its foundry, relocated and taken a significant number of jobs
from the Springfield community.
16
554
6) Pruitt V. General Motors, 74 O App 3d 520 (1991), Juris Mtn overruled, 62 O.
St. 3d 1447(1991)
a. Date of Representation: 1991
b. Court; Franklin County Court of Common Pleas
Honorable David Johnson
c. Co-Counsel: Gerald P. Ferguson
Vorys, Sater, Seymour and Pease
52 East Gay Street
P O Box 1008
Columbus, Ohio 43216-1008
(614)464-6484
d. Opposing Counsel: Lyman Brownfield
Lyman Brownfield Law Offices
341 S. Third Street
Suite 10
Columbus, OH 43215
(614) 221-5834
This is a product liability case in which I represented General Motors ("GM"). At
issue in this case was whether a cable located on a semitractor, which broke,
causing the Plaintiff" significant bodily harm, was defective. The defense contended
that the accident resulted fi^om product misuse or abuse, and was not related to any
design defect or production defect. The case was tried to a jury over a three-day
period. At the end of the Plaintiff's case, the Court granted GM's Motion for a
directed verdict based on GM's ability to refiite Plaintiffs' expert testimony. The
responsibilities for this case were divided evenly with co-counsel. I was
responsible for voir dire and cross examination of several of Plaintiff's witnesses,
including Plaintiff's expert. We also prevailed in the Tenth District Court of
Appeals of Ohio. I shared responsibility for preparation of the appellate brief
17
555
7) Null V. Franklin County Children Services, Case No. 92 JU-0 1 -84
a Date of Representation March, 1992
b Court: Franklin County Court of Common Pleas
The Honorable Ronald Solove
c. Co-Counsel: None.
d. Opposing Counsel Charles K. Milless
175 South Third Street
Columbus, Ohio 43215
(614)228-6885
Nancy K. Wonnell
Wonnel! & Wonnell
330 S. High Street
Columbus, Ohio 43215-4510
(614)224-7291
Natalie Fletcher
122 E. Main Street
3rd Floor
Columbus, Ohio 43215
(614)267-3700
This was a child custody case in which there were two primary issues:
(1) whether the two minor children involved should be in the custody of Franklin
County Children Services ("FCCS"); and (2) whether FCCS had been negligent in
allowing the children to return to their home after they had been in the temporary
custody of FCCS. The case was tried over the course of several days before Judge
Ronald Solove and was highly publicized by The Columbus Dispatch. I was
retained as special counsel to represent FCCS in the proceeding before Judge
Solove.
This was an important case for several reasons. First, the safety and well-being of the
children was of paramount importance. It was in the best interest of the children to be
permanently removed from a neglectful home environment. I also had to defend the
Agency on charges made by the guardian ad litem, Charles K. Milless, Esq., that the
Agency had been negligent in returning the children to the home after the Agency had
taken them into temporary custody. I had to persuade the Court that the Agency
exercised due caution and sound discretion in returning the children to the home. I
had to demonstrate to the Court that, where possible, it was the policy of the Agency
to reunite and to maintain the family unit. I was successfiil in persuading the Court
that FCCS acted reasonably under the circumstances
18
556
The Court agreed with our position and removed the children from the home The
Court declined to find that FCCS had been guilty of actionable negligence in
returning the children to the home.
8) Chase Enterprises v. Wendy 's International, Case No. 395 CV 00486
a. Date of Representation: 1996
b. Court: United States District Court For The District of Connecticut
Honorable Peter C Dorsey
c. Co-Counsel: Michael G. Long
Vorys, Sater, Seymour and Pease
52 East Gay Street
P. O. Box 1008
Columbus, Ohio 43216-1008
(614)464-6297
d. Opposing Counsel: Kathleen McManus TraflFord
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215-3406
(614)227-1915
This was a breach of contract case brought by Chase Enterprises against Wendy's
International, Inc. ("Wendy's) for alleged violations of Wendy's franchise
agreement. Plaintiff, a franchisee whose store was located in Krakow, Poland,
argued that Wendy's failed to provide adequate support services to assist the
fledgling franchise. On behalf of Wendy's, I took the position that Wendy's
International Group offered all of the technical support that it was obligated to
provide pursuant to the franchise agreement
This case was of precedential value to Wendy's If it were found that Wendy's
failed to support its international franchisee, then other franchisees stood poised to
register similar complaints. The Wendy's support system and network, in effect,
were on trial. It was essential that the system be exonerated, and that, irrespective
of the resolution of the case, the structure of Wendy's franchise agreement remain
intact.
In order to defend Wendy's interests effectively, I had to immerse myself in
Wendy's operational procedures, as well as develop an understanding of franchise
law. I was responsible for conducting virtually all of the discovery in the matter,
developing our litigation strategy and coordinating the efforts of the various
19
557
Wendy's divisions I also was responsible for negotiating with opposing counsel
to settle the dispute This matter eventually was referred to arbitration but, prior
to arbitration, was settled by the parties
9) Howard v. The Limiled Inc., Case No BC086556
a Date of Representation; 1994-1995
b Court: Superior Court of the Los Angeles Judicial District for the County
of Los Angeles
Honorable Edward M. Ross
c. Co-Counsel: Jay S. Hill (Local Counsel)
Wiedner and Swanson
10 Universal City Plaza
Universal City, California
(818)754-3300
d Opposing Counsel: Timothy E Meyer
2029 Century Park East
Suite 1020
Los Angeles, California 90067-2901
(310)203-0754
In this case, the Plaintiff, Garry Howard, brought an action against The Limited
alleging that The Limited violated the California Pubhc Accommodations Act and
other state civil rights statutes. Howard alleged that he was wrongfully detained at
the behest of The Limited and that The Limited thus violated the civil rights of
Howard and his female companion In addition to filing suit, the Plaintiff engaged
in a campaign against The Limited consisting of picketing and leafleting On behalf
of The Limited, I argued that PlaintifTs civil rights had not been violated, that The
Limited was acting well in its power in surveilling Plaintiff while he was in the
store, and demonstrated conclusively that The Limited did not order that the
Plaintiff be searched or detained. The trial court agreed with our position and
granted summary judgment in favor of The Limited.
Although on the surface this case was not technically complex, it was a very
sensitive matter for all involved and required me to use not only my legal skills but
also my judgment in handling a tense racially charged situation. I had to maintain
the focus on the legal issues in the case and persuade the Court that this was a
legal issue susceptible of resolution, and not a political issue.
I had total responsibility for every aspect of this case, which was closely monitored
by The Limited 's corporate office
20
558
10) Symix v. LaRoque, Case No 95 CVH 06-4279; 295-CV-632 (US District Court)
a Date of Representation: 1995- 1996
b Court; The Court of Common Pleas, Franklin County
Honorable Nodine Miller
United States District Court for the Southern District of Ohio
Honorable John Holschuh
c. Co-Counsel: None
d. Opposing Counsel: Rex H. Elliott, Esq.
Cooper, Elliott & Connors
17 South High Street
Columbus, Ohio 43215
(614)221-1177
This was a breach of contract action brought by my client, Symix Systems, Inc.
("Symix") against two ex-employees who were former members of the Symix
management team Defendants counterclaimed, alleging wrongful discharge. It
was a very contentious matter. Discovery covered a significant period of time,
lasting approximately one year and involved issues ranging fi-om psychological
damages to the First Amendment
I had primary responsibility for the case and conducted all discovery, drafted
pleadings and presented arguments before the court. The case was on parallel
tracks in both the Federal Court and state court, and the federal case was held in
abeyance pending resolution in the state court. Within approximately one year of
commencing discovery, settlement discussions ensued. As we neared trial, I had to
withdraw from litigation as one of my law partners, a board member at Symix, was
slated to be a witness at the trial. Shortly after my withdrawal— and based on the
negotiations that already had begun~this matter settled.
21
559
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 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).
1 ) Winfrey, et al. v. Franklin County Community Based Correctional Facility, et al
97CVH01 2225
Our clients in this litigation are the Franklin County Community Based
Correctional Facility ("CBCF") and the Franklin County Judicial Corrections
Board ("JCB"). The CBCF is comprised of all of the judges on the Franklin
County Court of Common Pleas The plaintiffs are former employees of CBCF
who claim that their positions were wrongfully abolished and that their
constructive discharge was based on race and sex discrimination. This case is still
pending.
The significance of this case is personal I have been selected as lead counsel to
represent the judges of the Franklin County Court of Common Pleas in a
significant employment discrimination matter. Having had jury trials before both
Judge McGrath, the current JCB President, and Judge David Johnson, the past
JCB President, I consider my selection to be a high compliment fi^om the judges,
and a recognition from the judges of my skills as a litigator. Moreover, the
implications of this case are far reaching inasmuch as precedent may be set for
other community-based correctional facilities located throughout the state. I am
therefore looking forward to the challenge of litigating what I am certain will be a
very compelling case.
2) United States v. Erickson, CR-2-93 -66
United States District Court for Southern District of Ohio
Honorable John Holschuh
Our client, Vem Erickson, was a buyer for BMY Corporation ("BMY") BMY
Corporation was, among other things, a supplier to the army. B\fY was under
investigation by the U. S. Department of Justice for fraud in connection with
certain contracts that BMY had with the Army. Mr. Erickson himself was accused
of participating in BMY's fraudulent activity, but was persuaded to cooperate with
the government in its investigation. Mr. Erickson did in fact cooperate and was
sentenced to a term of probation. Under government contracting regulations,
however, the Department of the Army decided to debar Mr. Erickson fi-om
participation in any government contracting activity. Because Mr. Erickson spent
much of his career in government contracting and had completed plans to open his
own consulting firm, debarrment would have effectively ended his career.
22
560
I appealed the Department of the Army's decision to the Department of the Army
Office of The Judge Advocate General We received a favorable decision from the
hearing officer Because of the nature of the decision, the Army did not appeal.
Under the terms of the order, Mr. Erickson was not excluded from participating in
government contracts, working on behalf of government contractors, or otherwise
being involved in government contracting activities.
3) Kay Snyder v. The Bank of Marion.
In this case, the Plaintiff, Kay Snyder, was a secretary/administrative assistant for
one of the officers of the Marion Bank. She contacted me to handle her case,
although she had some trepidation about our accepting her representation because
she was under the impression that our law firm represented companies and not
individuals. I took her representation because Ms. Snyder had what I believed to
be a legitimate sexual harassment claim and, although she did not have the
resources to prosecute the claim, we undertook the representation because of the
personal appeal that she made
At the time that I took the case, I was an associate at Vorys and enlisted the
support of another colleague of mine who also was an associate. We negotiated
with the Bank's counsel and, after several weeks of negotiations, were able to
reach an amicable resolution without having to file suit. Mrs. Snyder was
compensated, the Bank took the appropriate action with respect to its officer, and
opposing counsel left that encounter with renewed respect for me.
4) Minority Legal Education Resources Inc ("MLER")
MLER is a not-for-profit corporation located in Chicago, Illinois, which began as
an organization which assisted minority applicants in preparing for the Illinois Bar
exam. I was first a participant in MLER then an instructor for several years. I
later became a Board Member, and then President of the Board. The program was
a supplement to the Bar Review course that was offered by various companies
such as BAR/BRI. We met once a week and taught bar taking techniques with an
emphasis on taking multiple choice examinations and writing. I taught in both
sections.
This was one of the most rewarding undertakings that I have been involved in as a
lawyer. Many of the students we helped were individuals who had never taken the
bar exam. We were able to impart not only our technical knowledge, but also
insights to give first-time takers the confidence that they needed to pass the bar
exam. However, a small percentage of people, from 10 to 20 percent in the
summer program, and the majority of individuals who took our program in the
winter, were persons who had failed the bar. It was a particular challenge to
restore their sense of confidence and self esteem, while at the same time prepare
them to prevail on the upcoming bar examination. It was most rewarding to share
23
561
with them the success of passing the bar after they had initially failed. As an
organization, we had a second time pass rate that was higher than the national
average.
5) Teaching at the Capital University Law School.
In the fall semester of 1995, 1 was an adjunct professor of Trial Advocacy at
Capital University. (I have enjoyed teaching, as I taught criminal law and
procedure on the undergraduate level at Northeastern Illinois University from 1985
through 1986). Very few activities in which I have engaged have been more
rewarding than teaching young lawyers to become skilled advocates
6) The National Institute for Trial Advocacy.
My pedagogical bent has led me to accept invitations to teach at the National
Institute for Trial Advocacy ("NITA") from 1987 to the present. I have taught
both the flill trial courses as well as the deposition courses. My teaching has been
at the Midwest Course held at Northwestern University, and Nova University Law
School in Fort Lauderdale, Florida. 1 have been invited to teach at Temple
University, at the NITA program in Dallas and at Case Western Reserve
University. In the NITA sessions, I have performed cross examination
demonstrations for the entire student population, as well as direct examination
demonstrations. I have been a team leader, the highest teaching rank, as well as
section leader. As a team leader, I taught the course for approximately ten days,
from beginning to end. As section leader, I was a part of a team and taught for a
five day period.
7) In connection with my teaching responsibilities, I also have given demonstrations
for the Ohio State Bar Association, as well as the Committee on Regional
Training, which was responsible for teaching trial advocacy to lawyers in the Legal
Aid Societies for the states of Ohio and Michigan.
24
562
FINANCIAL DATA AND CONFLICT OF INTEREST
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
I have no deferred income arrangements, stock, options, uncompleted contracts, or
fijture benefits which I expect to derive from previous business relationships,
professional services, firm membership, former employers, clients or customers.
When 1 resign as a partner in my law firm, I will receive my capital contribution to
the partnership, which includes a buyout of my percentage ownership of the law
firm. As of June, 1997, that amount (determined at the end of the quarter ending
December 1996) is approximately $52,000.00 and would be paid to me upon my
resignation from the partnership. The disbursement would include no future
income of the law firm, and, I am advised, would be made within a month
following my last month with the firm.
I also have an account established pursuant to Section 401(k) of the Internal
Revenue Code. There is approximately $36,000.00 in that account, of which I
have full ownership. Upon resignation from the partnership, I would in all
likelihood put that account into an individual retirement account in an institution
unaffiliated with the law firm.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining 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.
Through my law firm, I will identify all matters which are pending in the Southern
District of Ohio in which any lawyer in the firm is the counsel of record. I will
then identify to the Chief Judge for the Southern District of Ohio any and all
matters which may present actual potential conflicts of interests I will be guided
by the rules embodied in the Code of Judicial Conduct and any other governing
ethical and/or disciplinary rules.
25
563
I do not anticipate any categories of litigation and financial arrangements that are
likely to present potential conflicts of interest during my initial service on the
Federal District Court Bench I do, however, have several matters pending before
the United States District Court for the Southern District of Ohio and I will
identify those specific matters to the Chief Judge. Any other categories of
litigation which would present potential conflicts, of course, would involve cases
that are pending with the court in which my firm is counsel of record
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.
As a United States District Court Judge for the Southern District of Ohio, I intend
to continue teaching in the National Institute for Trial Advocacy for which I would
receive my per diem expenses if I am a group leader and a small stipend if I am a
team leader. I also intend to continue to teach in both the trial practice and
deposition courses, schedule permitting That commitment does not exceed two
weeks annually.
It is possible that I will teach again at Capital University Law School. That will
depend, however, upon my caseload at the Court. I have no other specific plans,
commitments or agreements to pursue outside employment while a Judge on the
United States District Court for the Southern District of Ohio.
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. (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 attached AO-10 Form (pages 31a - 3 Id).
5. Please complete the attached financial net worth statement in detail. (Add
schedules as called for.)
See attached financial statement (page 3 1 e).
26
564
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
Yes. I had a role in the 1993 re-election campaign of The Honorable Janet
Jackson, then a Judge on the Municipal Court of Franklin County, Ohio I worked
with my then law partner. The Honorable R Guy Cole, Jr. and Pat Logsdon, Judge
Jackson's campaign manager, in raising money in the African American
community. My involvement spanned the period from January 1993 through
Judge Jackson's election in November 1993.
m. GENERAL
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.
Big Brothers/Big Sisters Association.
Serving as Secretary and Counsel to the Board of Big Brothers/Big Sisters
Association of Franklin County.
In my capacity as counsel to the Board of Big Brothers/Big Sisters Association of
Franklin County ("BB/BS"), a mentoring organization which matches adults with
children of the same sex from single-parent homes, I had the responsibility of
serving as BB/BS's counsel on a variety of legal matters There was one matter
which comes to mind which was of vital importance to the organization and whose
resolution was essential to the continued well being of the organization both
financially and from a public relations vantage point. That situation involved a
threatened suit by the Stonewall Union, a gay and lesbian group, who contended
that BB/BS did not allow matches between homosexual mentors and children. As
BB/BS' lawyer, I was charged with the responsibility of avoiding this lawsuit and
the attendant negative publicity which could have resulted. Through negotiations
with counsel for the Stonewall Union, we were able to reach an agreement which
avoided litigation and was satisfactory to both sides.
27
565
Salesian Boys and Girls Club.
I have served on the Board of Directors of The Salesian Boys and Girls Club for
the past seven years During that time, I have provided pro bono legal services to
the Board on various legal matters that have arisen Those matters have included,
but have not been limited to, counseling on employment matters, revising the By-
Laws, counseling relating to the property issues as well as to insurance issues. The
population served by the Boys and Giris Club is almost exclusively minority inner-
city youth, who are economically disadvantaged.
Slate V. Carlton Gary
For the past three years I have assisted one of my law partners, James A. Wilson,
in the habeas corpus proceedings involving Carlton Gary. Mr. Wilson was
assigned the Cariton Gary matter by the American Bar Association Death Penalty
Project Though I am not a member of the Death Penalty Project, nor a direct
volunteer in it, I have assisted Mr Wilson in providing services for Mr Gary.
Those services have included conducting a habeas corpus proceeding in the State
of Georgia and helping to prepare various pleadings, motions and memoranda
related to Mr Gary's habeas corpus proceeding.
United Negro College Fund. Fund Raiser.
For the past four years, I have been a fund-raiser for the United Negro College
Fund ("UNCF") The UNCF helps economically disadvantaged students by
providing financial assistance to historically Airican American colleges and
universities. The fiands that ! assisted in raising are used primarily to provide
scholarship funds for disadvantaged youth to attend college
Innerbelt Chair for the United Way Campaign
In 1995, 1 served as the Innerbelt Chairman for the Franklin County United Way
Campaign My responsibility was primarily raising fiands from the downtown
Columbus business community for a projected 36.1 million dollar campaign for the
United Way. The United Way assists local agencies in providing services to the
disadvantaged.
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 the practical implementation of
membership policies? If so, list, with dates of membership. What you have done
to try to change these policies''
28
566
No, except that I am a member of the Omega Psi Phi Fraternity, Inc. which admits
only men This is a college fraternity, which I joined as a graduate. The fraternity
was founded in 1911 and is comprised primarily of African American males,
although there are no racial restrictions and there are some white male members
Most persons join during their college years and remain lifetime members. The
members of Omega Psi Phi include a variety of men of diverse backgrounds.
The Jefferson Golf and Country Club has no restriction on membership based on
either gender or race Nor does it have restrictions on tee times. There is a men's
only grill which most of the time is limited to the male members and their guests.
That Grill Room, however, is occasionally open for mixed dining when the dining
room itself is closed
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).
Yes, the selection commission is the Ohio Judicial Review Commission. It
recommended me for this nomination. The Commission is a five person bipartisan
commission composed exclusively of lawyers from the Southern District of Ohio.
It was chaired by Anthony J. Celebreeze (Columbus), a partner at Dinsmore &
Shohl LLP, and included Ralph K. Frasier (Columbus), General Counsel for The
Huntington National Bank, Michael Barrett (Cincinnati), a partner at Barrett &
Weber; Beth Schaeffer (Dayton), a partner at Pickrel Schaeffer & Ebeling; and
Gary Smith (Woodsfield), a partner at Sherry, Smith & Coury.
The candidates were required to complete an application which is similar in many
respects to the Senate Judiciary Committee's application for District Court Judges.
The application had to be submitted along with any letters of reference that the
candidates chose to include. After all applications were submitted, the
Commission chose approximately ten candidates to be interviewed. The
Commission conducted thirty-minute interviews of the candidates. Based on the
interviews and the applications submitted, the Commission chose me as the
candidate to be recommended to Senator Glenn.
Senator Glenn then recommended me to President Clinton. I have since been
investigated by the Federal Bureau of Investigation, the American Bar Association,
and the Justice Department.
29
567
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 "judiciai 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.
Resolution of specific disputes is the function constitutionally delegated to
our adversarial system of justice. The premise of the adversary system is that
parties have a strong incentive to develop and present persuasively the facts that
bear upon their individual dispute. Traditional doctrines such as standing and
ripeness, among other things, help assure that the parties presenting a case have
the necessary incentive to develop and present these facts. The responsibility of a
judge, particularly a trial court judge, is to focus the trial or other resolution of a
case upon the specific facts presented by the parties in that particular dispute.
Most of the time, the challenge facing a trial judge is not creating or finding new
law ~ it is assuring that the law is effectively applied to the case that the parties
present
Generally, the courts are not well-equipped to resolve issues beyond the
scope of the particular controversy before them. Parties normally do not have
adequate incentive to develop and present facts that do not bear upon their
30
568
individual disputes. Moreover, remedies broader than necessary to resolve the
particular dispute before a court will inevitably affect the rights of individuals and
institutions that had no opportunity to be heard in the litigation. This type of
judicial activism is inconsistent with our adversarial system of justice and the
limited constitutional delegation of power to the judiciary.
On the other hand, our society and the executive and legislative branches
have much broader expectations of the judiciary than has historically been the case.
The Courts are now required to review more administrative agency decisions, to
interpret statutes containing remedies unknown at common law, and fashion class
action relief Because of all of these circumstances, particularly in light of the
favor with which the courts have treated class action relief under the Federal Rules
of Civil Procedure, it is inevitable that judicial decisions in this context may often
appear to be the result of judicial activism.
A judge must carry out the responsibilities and jurisdiction the Constitution
and Congress has legitimately given to him or her. However, these responsibilities
must be carried out in recognition of the fact that we still work within an
adversarial system of justice. The role of the courts, particularly the trial courts,
remains to ensure that parties to a particular dispute before the court have a fair
and efficient opportunity to present their controversy, and to order relief that is
broad enough to resolve that dispute between the parties, and no broader.
31
569
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1996
1 Person keporlin; ,Lasl na-.- ;i:st, midd'.r .n.-.ia:'
Marbley, Algenor. L.
United States District Court
For Southern District of Ohio
3 Dale o- Report
8/2/97
5en;o: status, haaistrate luU^.^ inaicj:-
fai; or par: .ti«*
U. S. District Judge - Nominee
' k-l-^rt T>T'- ■i.-i'.-CK. approprrate ;yi>'r
X Nomw,at.on. Dat. 7,31.97
4 Reporting Veri:,d
: / 1/96 7 a / 97
VOID'S , Sater, Seymour and Pease
52 East Gay Street
Columbus, Ohio 43215
any"mo<I:!ica-;or.« pertair.inq t'h,— -."c. i: is. m my opm'ior;.
in compliance with applicaoie ia»s ar.u regulations
IMPORTANT NOTES; The instruclions accompanv-ing ihis form must be followed Complele all pans,
checking ihe NONE box for each section where you have no reportable information Sign on last page.
I. POSITIONS. (Reporting individual only; sec pp 9-13 of Instructions.)
n
POSITION
NOKE (No reportable positions)
NAME OF ORGANIZATION/ENTITY
Salesians Boys and Girls Club
Big Brothers/Big Sisters Association of Franklin Countj
II. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.)
DATE PARTIES AND TERMS
n
NONE (No reportable agreements)
There is no written partnership agreement between myself and my law fit
Vorys, Sater, Seymour and Pease. Upon resigning from the partnership.
I will receive the balance of my capital account in the approximate
of $52,000.00.
in. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DATE SOURCE AND TYPE
n
NONE (No reportable non-investment income)
Vorvs
Sater,
Seymour
and
Pease
State
of Ohio
(S)
Vorys
Sater,
Seymour
and
Pease
State
of Ohio
(S)
$
134,412
S
s
119,358
s
s
570
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Algenon L. Marbley
I 2 I <il
IV. REIMBURSEMENTS and GIFTS - transponation, lodging, food, cntcrtainmcm
{Includes those lo spouse and dcpcndcni children, use Ihe parcnlhelicals '(S)' and '(DC)' to indicate reportable
reimbursements and gifts received bv spouse and dependent children, respectively. Sec pp. 26-29 of Instructions.)
SOURCE DESCRIPTION
□
NONE (No such reportable reimbursements or gifts)
n
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parenlheticals '(S)" and "(DC)" lo
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE DESCRIPTION
NONE (No such reportable gifts)
Exempt 5
$_
$_
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where appUcable, person responsible
for liability by using the parenthetical '(S)" for separate liability of the spouse, "(J)" for joint liability of
reponing individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODl
n
NOKE (No reportable liabilities)
Fifth Third Bank
J-S1S,000 or less K-SIS. 001 -SSO, 000 L-S50. 001 -SlOO, 000 M-SlOO, 001 -S250, 000
0-SSOO, 001-$1 . 000, 000 Pl-Sl.OOO. 001-$ " "' ""' *
P3-S2S.000.001-SSO.0 00. 000 M-550. 000. 001
01 -$S. 000. 000 P2-SS.000.001-S2S.000.000
571
FINANCIAL DISCLOSURE REPORT
Algenon L. Marbley
1/2 / 97
MI. Page 1 IWESTMENTS and TRUSTS - Income, value, transaciion.'. (Includes those of spouse
and dcpendcnl children Sec pp .^7-54 of Inslruclions.)
Des-ription of Ass*cs
Ind.rate where applirabU. own-, -f
the isset by using the pj! enthe; ; -a:
-IJ ■ tor joint ownership ol lepor;
ing indiviQual and spouse. "(Si'- In
separate ownership by spouse, "(PC-
for ownership by dependent child
exempt fron- piior disclo.':.;re
d::;
Gross value
reporting
period
T-.ansaction. o.r'.n, reporting period
s.^
IV-
Code"'
"Er'
Type
le.g ,
buy. sen.
merger.
If no: e«eirp-_ frorr disclosure |
121
Day
Value;
Code
Cainl
Code
(51
Identity of
buyer/seller
(If private
1 NONE ,No reportabie
Vorys, Sater, Seymour and
Pease 401 (K)
D
Div.
K
T
Redemp-
tion
4/97
K
A
2 Public Employees Retire-
ment. System (SI
B
Div.
K
T
] Fifth Third Bank
Monev Market Fund
A
Int.
J
T
>o
"
-
"
»
-
:.
1'
u
;cJr'e?:s.^- r.iioTo.'^hiri.o i:i!6S°So?^ir?oS:??6"'-"-"° E:!h°?Sonii°??.ooo,ooo S5!H;§sj:?i;r_
ic^!'?$r- 8:S?gf'il!ie ;.Cost, real estate only. S-Xs^ent T.ca.h.«ar.et
572
FINANCIAL DISCLOSURE REPORT (conc'd) Algenon L. Marbley
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate part of Report.)
IX. CERTIFICATION.
Id compliance with the provisions of 28 U S.C § 455 and of Advisory Opinion No 57 of the Advisory Committee on Judicial
Activiiies, and to the best of my knowledge at the tune after reasonable inquuy. 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 had a fmancial inleresi, as defined in
Canon 3C(3)<c), in the outcome of such litigation.
I certify that all information given above (including information peruining to my spouse and mmor or dependent children, if any) is
accurate, true, and complete to the best of my knowledge and belief, and that any information not reponed was withheld because it met
applicable sunitoty 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. 4, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Conference regulations.
Signature
^5-^!^
f?97
NOTE ANY INDIVIDUAL WHO KNOWINGLTT^ND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App 4, § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the
United Sutes Courts
Suite 2-301
One Columbus Circle, N.E.,
Wasbmgton. DC. 20544
573
FINANCIAL STATEMENT
NET WORTH
Provide & complete, cunwit 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
LIABIUnES
Cub oc bind tni tc bu±i
16
500
00
UtMt payible to binVi-«fnn-ed
49
675
DO
VS. CoTcmmeac Kcunacs-«<U
Kbedule
Note* peyiUc to binki-unKCured
18
000
DO
Nota ptyibk to ttlltivci
None
UoGiud $ceunsiet-*M tchuSulc
Motet ptytble lo olhen
None
AecoaoU tad nolo nccivtbic:
Accounts ind bSli due
None
Out bom reUdvu ind bicaii
Unpiid I'fV^TTK tix
None
Due fncn oihai
Other tinp<p5 cut and intenst
Doubtful
Reel cttue manfita ptytbU-nii
(dxdule
307
000
00
tjul aW£ ovxici-tid >ciK4ulc
See Below *
(Home)
360
000
00
CbttTfl taattttta tad other licm pty-
ibk
Kul ouie motV^SCi rcceivible
None
Aatot tnd otbct penoul piupuiy
75
000
00
VTSfi
3
000
00
Cufa vtlue-CIe iniunnce
2
000
bo
Lazarus
850
00
Other tTT^T'^f'^^JT^:
Shell Oil Co.
350
00 •
Retirement Accounts
88
JOO
00
The Bombay Co.
.
470
00
Retirement Accounts (S)
18
500
00
ToUl EibiC^ei
379
345
00
^
Net Worth
181
155
00
■T«(ll AUCU
560
500
DO
Total CibOilief ud net wotth
560
500
00
CONTlNGEJfr UAEIUnES
GENERAL INPORMA-TION
Ai taiana, comtler or ruruor
None
Art uy (ueti (ied|c<17 tAdd icfaad-
ok,)
No
_
None
Arc yoo defcadint in loy niiu or le{il
letioofT
No
LcfilOiiflu
Hive yoo erer Utea biabupceyT
NO
'FtOTiiioe tat Fedenl laeome Tix
Other tpedii debt
None
L_
i=
* Mortgage Holder: Fifth Third Bank
21 E. State Street
Columbus, OH
574
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used)
Dale Albert Kimball
Address: List current place of residence and office address(es).
Home: Draper, Utah 84020
Office: 185 S. State Street, Suite 1300
Salt Lake City, Utah 84111
Date and place of birth.
November 28, 1939; Provo, Utah
Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Rachel Henriod Ballard Kimball
nurse - Alta View Hospital
9660 South 1300 East
Sandy, Utah 84094
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Brigham Young University; September 1958 - December 1959;
Brigham Young University; March 1962 - August 1964;
Bachelor's of Science Degree August 21, 1964;
University of Utah Law School; September 1964 - June 1967;
Juris Doctor Degree June 9, 1967.
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.
Summers of 1964 and 1965: Employer: Utah State Highway Department (West Jordan,
Utah); position held: laborer;
1966-67: Employer: University of Utah Law School or the American Law Institute, Salt
Lake City, Utah; position held: research assistant
575
1967-74: Van Cott, Bagley, Cornwall & McCarthy; position held: associate (from June
1967-Spring 1972), then partner (from Spring 1972-June 30, 1974).
1974-76: Brigham Young University Law School, Provo, Utah; position held: Associate
Professor.
1976-79: Brigham Young University Law School; position held: Adjunct Professor.
1975-present: Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, Utah; Senior
Partner.
Former member Alta View Hospital, Board of Governors 1979-1991;
Member of Board of Directors and Executive Committee, Deseret News Publishing, May
1996-present;
Member, Board of Directors Pioneer Theatre Company, 1980-1990; 1993-present;
Former Member, Jordan Education Foundation Board, 1989-1994; Former Member,
Board of J. Reuben Clark Law Society, 1990-1993.
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.
Utah Air National Guard, Fall of 1957-Spring of 1964;
From February 1960 - February 1962; inactive status due to serving an LDS Mission in
Northern California;
Serial Number AF 28939504; honorably discharged in 1964.
Honors and Awards: List any scholarships, fellowships, honorary degrees, and honorary
society memberships that you believe would be of interest to the Committee.
Brigham Young University, 1964, Magna Cum Laude; Phi Kappa Phi
University of Utah Law School, finished second in the class of 1967; Order of the Coif,
case note editor. University of Utah Law Review;
Utah State Bar 1996 - Distinguished Lawyer of the year;
Master of Bench, American Inns of Court;
Former member, Utah Federal District Court, Mediation/Arbitration Panels.
Bar Association: 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.
576
Utah State Bar Association; Member Screening Panel Utah State Bar Ethics and
Disciplinary Committee 1986-87; Chairman, Utah State Bar Ethics and Discipline
Committee 1988-94; Chairman, Utah State Bar Committee on the Unauthorized Practice
of Law, 1984-86;
American Bar Association, 1973-present.
Since 1995, I have been the Chairman of the Utah State Judicial Performance Evaluation
Committee.
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 am not a member of any organization which lobbies of which I am aware.
I have been a registered lobbyist before the Utah State Legislature for three clients:
VISA, WECCO, and Geneva Steel. These three corporations are clients for which I
have done minor lobbying.
Other: LDS Church
1 1 . 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.
All Utah trial and appellate courts, October 17, 1967;
United States Court of Appeals for the Tenth Circuit, March 20, 1973;
United States District Court for the Western District of Missouri, 1984;
District Court of Clark County, Nevada, 1988;
United States District Court for the District of Nevada, 1991;
United States District Court for the Western District of Missouri, March 1996.
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.
Case Note: Appropriation of Name, Likeness and Personality - Relatives and
Administratrix Held to Have No Claim Under Privacv or Property Theories. 9 Utah Law
Review 999 (1964-65) (my own work)
577
Note, The constitutional Convention. Its Nature and Powers - And the Amending
Procedure. 1966 Utah Law Review 390 (my own work)
Note, "Like Grade and Quality" Under Section 2(a) of the Robinson-Patman Act. 1967
Utah Law Review 251 (my own work)
Kimball, Compulsion Without Protection or Recourse: The Case for No-Fault Accident
Insurance for School Children. 1975 Utah Law Review 925 (a student helped me with
it)
Parr and Kimball, Acquisition of Non-Mineral Land for Mine Related Purposes. 23rd
Armual Rocky Mtn. Min. L. Inst. 595 (this is half my work and half my partner's work)
American Law of Mining. Second Edition. Chapter 204, "Liens" (my own work)
13. Health: What is the present state of your health? List the date of your last physical
examination.
Excellent; late summer of 1996
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)
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
-4
578
17. Lepal Career:
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;
No
3. the dates, names and addresses of law firms or offices, companies or
govenunental agencies with which you have been connected, and the
nature of your coimection with each;
June 1967 - end of June 1974
Van Cott, Bagley, Cornwall & McCarthy
50 S. Main Street, #1600
Salt Lake City, Utah 94144
Associate until Spring 1972, at which time I was made a partner in the
firm.
In early July of 1974, I became an Associate Professor of Law at Brigham
Young Law School, Provo Campus, 456 JRCB, Provo, Utah 84602; I was
a full-time Associate Professor of Law from July 1974 through April
1976. I was an Adjunct Professor of Law at Brigham Young University
Law School from 1976 until approximately April 1979.
In April of 1975 (while I was still teaching), I was one of the founding
partners and I am now the Senior Partner of the law firm of Kimball,
Parr, Waddoups, Brown & Gee, 185 S. State Street, Suite 1300, Salt Lake
City, Utah 84111.
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?
During the first seven years of my practice at Van Cott, Bagley, Cornwall
& McCarthy, I engaged in a very general practice. I did title work,
contract negotiation, oil, gas and mineral work, administrative work and
a variety of litigation including securities fraud, shipping problems,
-5-
579
telephone company matters, criminal defense and appearances before a
variety of administrative agencies. From 1975 to the present I have
generally engaged in a business litigation practice including securities
fraud, insurance matters, antitrust problems, general contract disputes and
energy work. I appear in court very frequently. In the last five years of
my practice I have also had some major arbitrations and some municipal
litigation.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
Corporations with some emphasis on energy litigation. In recent years,
the emphasis has been on general litigation.
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 over my career. During the last five
years I have probably appeared in court somewhat less frequently than in
the ten years immediate preceding because of my desire to get younger
partners more court appearances.
2. What percentage of these appearances was in:
(a) federal courts; 35%
(b) state courts of record; 45%
(c) other courts; 20%
3. What percentage of your litigation was:
(a) civil - 95%;
(b) criminal - 5%.
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.
40 total, 15 as sole counsel, 10 as co-counsel and 15 as chief counsel
5. What percentage of these trials was:
(a) jury - 25%;
(b) non-jury - 75%.
-6-
580
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.
1. Buzas Baseball. Inc.. et al.. v. Salt Lake Trappers. Inc. et al. Civil No.
940907477CV, In the Third Judicial District Court of Salt Lake County, State of
Utah, Judge Homer F. Wilkinson; 925 P. 2d 941 Oct. 4, 1996; Salt Lake
Trappers. Inc. et al.. v. Buzas Baseball. Inc. et al.. Supreme Court Case No.
950351, Appeal from the Third Judicial District Court for Salt Lake County, The
Honorable Homer F. Wilkinson.
This case was litigated from 1995-97. Our firm was counsel for the Salt Lake
Trappers and I was chief counsel on the case. The underlying arbitration
involved whether our clients baseball territory and franchise had been improperly
taken from it and, if so, the appropriate amount of damages therefor. Plaintiffs
alleged that the arbitrator had awarded our client an inappropriate award in a
previous arbitration. The trial court in 1996 agreed with the plaintiffs. We
appealed to the Utah Supreme Court which reversed and found that the arbitrator
had acted appropriately. This was a significant case in Utah setting forth the
appropriate and limited scope of review of an arbitrator's decision. Gregory
Phillips, then of our Firm, also worked on the case.
Opposing counsel: Robert S. Campbell, Jr.
Campbell, Maack & Sessions
201 S. Main Street, /I' 1300
Salt Lake City, Utah 84111
801-537-5555
2. SALT LAKE CITY CORP. . et al. . UTAH TRANSIT AUTHORITY BD. .
et al.. vs. SALT LAKE COUNTY, et al.. Co-counsel Jeffrey J. Hunt; Civil No.
960907363CV, Judge Homer F. Wilkinson; Stephen J. Rees. v. Utah Transit
Authority, et al.. Bonnie Fernandez. Dan Berman. et al.. v. Utah Transit
Authority, etal.. Nos. 960519, 96020, Utah Supreme Court, 939 P. 2d 680 June
9, 1997.
581
We represented seven members of the Utah Transit Authority Board. I was chief
counsel for these seven clients. Jeffrey J. Hunt of our firm helped me on the
case. The litigation involved a question over the proper appointment powers to
the UTA Board.
The controlling statute and legislative history created significant ambiguities
respecting the powers of appointment to the Utah Transit Authority Board by the
various counties, cities and other population members of the Utah Transit
Authority District.
Salt Lake City was aligned with the clients and was represented by Roger Cutler,
451 S. State, #505, Sak Lake City, Utah 84111, 801-535-7788. Salt Lake
County represented by William Hyde, 2001 S. State Street, #S-360O, Salt Lake
City, Utah 84190, 801-468-3420, was opposing us on the case. The other seven
members of the Board opposing our clients were represented by Alan Sullivan,
Van Con, Bagley, Cornwall & McCarthy, 50 S. Main, #1600, Salt Lake City,
Utah 84144, 801-532-3333. Steven Reese, who wanted to be appointed to the
Board, was represented by Dale F. Gardiner, O'Rorke & Gardiner, 6995 Union
Park Center, #470, Midvale, Utah 84047, 801-569-31311.
In the fall of 1996 the court granted our motion for a preliminary injunction
freezing the then current Board members in place. Salt Lake County and the
other seven Board members appealed to the Utah Supreme Court. We argued the
case in January of 1997 and the Supreme Court upheld the granting of the
preliminary injunction and remanded the case to the trial court for further
proceedings. After that the Utah legislature clarified the appointment procedure
and mooted the entire case.
Young Electric Sign Co.- Vaughan Cannon v. YESCO. Civil No. C892213,
Third Judicial District Court for Salt Lake County, State of Utah; Judge J. Dennis
Frederick, Third Judicial District Court. We represented Young Electric Sign
Company and certain of its officers and directors. They were sued by two
minority shareholders seeking the appointment of a receiver, the dismantling of
the company and high values for their shares. The case was tried in 1992. After
a two-week bench trial. Judge Frederick ruled entirely in our favor. I was chief
counsel for our client. My partner Michael M. Later helped me on the case.
This case saved a major company.
582
Opposing counsel: Leland Eugene Backus
Nancy M. Somers
Thomdal, Backus, Maupin & Armstrong
P.O. Drawer 2070
Las Vegas, Nevada 89125-2070
702-366-0622
Steven W. Dougherty
Hansen & Anderson
50 West Broadway, Sixth Floor
Salt Lake City, Utah 84101
801-534-1700
4. State of Utah, v. Cecil D. Andrus. 486 F. Supp. 995; (D.C. Utah 1979), 10 ELR
20570 (1979), No. C79-0037; No. C79-0307. We represented Cotter
Corporation. As I recall, our client had obtained unpatented mining claims
pursuant to the Mining Law of 1872 and was attempting to develop said claims.
In order to develop mining claims access is required. Since the claims had been
staked the area in question had been set aside as a wilderness study area under the
Wilderness Act and the Federal Land Policy Management Act had been enacted.
At the time, I recall no law on the question of what was necessary to obtain a
right-of-way under FLPMA, particularly with respect to wilderness study areas.
The United States was attempting to deny access altogether. The case, as I
recall, was tried by me in 1978 and our clients were granted an appropriate right-
of-way limited to the least intrusive methods of construction.
Opposing counsel: James Holbrook (formerly AUSA)
Callister, Nebeker & McCuUough
10 E. South Temple, #900
Salt Lake City, Utah 84133
801-530-7300
Dallin W. Jensen
Parsons, Behle & Latimer
201 S. Main Street, #1800
Sak Lake City, Utah 84111
801-532-1234
5. Great Salt Lake Minerals and Chemicals Corp. v. Marsh. 596 F. Supp. 548
(D.C.Utah 1984), No. C84-0230A. We represented Great Salt Lake Minerals
and Chemicals Corp. (I was lead counsel and my partner Patricia W. Christensen
was co-counsel) in an effort to keep the Army Corps of Engineers from breaching
583
the causeway in the Great Salt Lake. The case was tried on a preliminary and
final injunction for about a week (as I recall) in 1984 before Judge Aldon J.
Anderson. We lost the case. The government was allowed to breach the
causeway.
The Utah water year in 1983 was very high. The Great Salt Lake, a navigable
and therefore federally owned body of water, was lower in the northwest arm of
the lake because of a railroad causeway. Our client had valid leases to extract
mineral brine from the northwest arm of the lake. The Army Corps of Engineers
set about to breach the causeway and equalize the level of the lake for flood
control purposes. We sought to prevent the breach and keep our leases valuable
by our ability to extract brine in its more concentrated form.
Opposing counsel: Dallin W. Jensen (for the State of Utah)
Parsons, Behle & Latimer
201 S. Main Street, #1800
Salt Lake City, Utah 84111
801-532-1234
Joseph W. Anderson
US Attorney's Office
185 S. State Street
Sak Lake City, Utah 84111
801-524-5682
SCFC ILC, INC. d/b/a MOUNTAINWEST FINANCIAL, vs. VISA U.S.A.
Inc., VISA U.S.A., INC. and VISA INTERNATIONAL SERVICE
ASSOCIATION, Delaware corporations, v. SEARS CONSUMER FINANCIAL
CORPORATION; and SCFC ILC, INC. d/b/a MOUNTAINWEST FINANCIAL,
United States Court of Appeals for the Tenth Circuit, 36 F.3d 958 (U.S. App.
1994); Certiorari Denied June 19, 1995; 819 F.Supp. 956 April 1, 1993, Civil
No. 2:91-CV-047B, Judge Dee V. Benson (D.C. Utah 1993); SCFC ILC, Inc.
V. VISA USA, Inc., No. 93-4105 (1994), 936 F.2d 1096 (U.S. App. 1991); I
served as associate counsel along with my partner Clark Waddoups. We
represented VISA, USA, INC.
10
584
Lead counsel was:
M. Laurence Popofsky
Stephen V. Bomse
Marie L. Fiala
Renata M. Sos
Robert G. Merritt
Heller, Ehrman, White & McAuliffe
333 Bush Street, Suite 3100
San Francisco, CA 94104
415-772-6000
Opposing counsel:
William H. Pratt
James H. Gale
Ellen M. Moskowitz
153 East 53rd Street
New York, New York 10022
212-446-4800
Gary F. Bendinger
Giauque, Crockett, Bendinger & Peterson
170 South Main Street, Suite 400
Salt Lake City, Utah 84101
801-533-8383
The plaintiff in this case alleged that VISA'S refusal to allow the Discover card
into the VISA system was a violation of Section 1 of the Sherman Act. The
Discover Card was a relatively new credit card competing with VISA,
Mastercard, American Express, etc. Discover Card attempted to enter the VISA
system and create a Discover VISA Card. VISA refused on the grounds that it
had no obligation to aid a healthy competitor. Discover Card alleged that the
refusal constituted an antitrust violation. After a five-week jury trial, the jury
found for the plaintiff. The Tenth Circuit reversed and the Supreme Court denied
certiorari.
White River Shale Oil Corp. v. Public Service Com'n of Utah. 700 P. 2d 1088
(Utah 1985), No.
Transmission.
19848, No. 19849. We represented Deseret Generation &
This case involved the question of whether our client, Deseret Generation &
Transmission, or White River Shale Oil Corp. Co. had the right to serve a
territorial area with electric power. After an administrative trial before the Public
Service Commission we prevailed. On appeal to the Utah Supreme Court we also
prevailed. I handled the trial and the appeal.
11
585
Opposing counsel:
Robert F. Reeder
Parsons, Behle & Latimer
201 S. Main Street, #1800
Salt Lake City, Utah 84111
801-532-1234
Salt Lake City v. Western Area Power Admin.. 926 F.2d 974 (C.A. 10 Utah
1991), Federal Court, bench trial, U.S. District Court, Judge Thomas Greene.
I was lead counsel and we represented the Colorado River Energy Distributors
Association (CREDA).
In this case. Salt Lake City and others attempted to obtain public power produced
on the Colorado River System by the Western Area Power Administration.
WAPA was represented by lawyers from the Department of Justice in Washington
and in Denver. Other municipalities and Utah Power and Light, a stockholder
owned power company, attempted to obtain public power produced on the
Colorado River System by the Western Area Power Administration (WAPA).
This case involved what, in our experience, was a unique attempt by parties not
associated with public power production attempting to muscle in on its cheaper
rates. The case was tried in 1989 or 1990. The result was that the municipalities
and privately owned power company not associated with the public power systems
were not allowed to obtain Colorado River Power. Gary Dodge of our firm
helped me on this case.
WAPA was represented by:
(Justice Department)
Max C. Vassanelli
Civil Division, Room 3730
United States Department of Justice
10th & Constitution Avenue, NW
Washington, D.C. 20530
(In-house counsel)
Mike Hacskaylo
Susan Earley
Western Area Power Administration
1627 Cole Blvd.
Golden, Colorado 80402
WAPA was aligned with us. I believe the trial was in 1989 or 1990.
12
586
Opposing counsel: Donald B. Holbrook
Jones, Waldo, Holbrook & McDonough
170 S. Main, #1500
Salt Lake City, Utah 84101
801-521-3200
9. Atlas Corp. v. Clovis Nat'l. Bank. 737 P. 2d 225 (Utah 1987), No. 19239. In the
mid 1980's I tried this case before Judge Boyd Brunnell in Monticello, Utah. I
represented two banks from Clovis, New Mexico, who were claiming a net
profits interest in land owned by Atlas Corp. I was chief and lead counsel for
our clients. We lost the trial and won on appeal in the Utah Supreme Court.
Opposing counsel: Stephen D. Alfers
Alfers & Carver, LLC
730 17th Street, Suite 340
Denver, Colorado 80202
303-592-7674
Robert Anderson
P.O. Box 275
Monticello, Utah 84535
801-587-2222
10. Biben v. Card (Midwestern Cases, 1983-1994); Fed. Sec. L. Rep. (CCH)
P92,462 January 6, 1986; United States District Court For The Western District
of Missouri, Western Division; Honorable Harold Sachs. I was chief counsel for
an engineer, John P. Redd, who was a defendant in several consolidated federal
securities fraud claims in the United States District Court for the Western District
of Missouri. Plaintiffs in these consolidated cases included a class of
shareholders at Midwestern, limited partners who had purchased an interest in
ethanol plants and certain individuals. The ethanol industry collapsed in the early
1980's as did the Midwestern companies. Other defendants included other
directors and officers, accountants, lawyers for Midwestern and other related
parties. Hundreds of depositions were taken, scores of motions were argued and
decided and the case was finally settled on the eve of a three-month jury trial.
We also represented our client in peripheral and related insurance litigation over
coverage and payment to us, said claims being against National Union Insurance
Company. We also did a Wells Submission to the Securities and Exchange
Commission. Robert S. Clark of our office worked with me on the cases. Two
of these numerous cases are currently on appeal in the Eighth Circuit. The
parties and their counsel are:
13
587
Attorneys for National Union Insurance Company:
Benjamin F. Mann, Esq.
Blackweil, Sanders, Matheny,
Weary & Lombardi
Two Pershing Square
2300 Main Street
Suite 1100
Kansas City, Missouri 64141-6777
816-274-6817
Attorneys for KPMG Peat Marwick:
George E. Feldmiller
Berkowitz & Feldmiller
Suite 550
Two Brush Creek Boulevard
Kansas City, Missouri 64112
816-561-7007
Attorneys for Defendant Harold E. Card:
Neil L. Johnson
Swanson & Midgley
1500 Commerce Trust Building
922 Walnut
Kansas City, Missouri 64106-1848
816-842-6100
Attorneys for Defendant Ira W. Palmer:
Donald E. Howell, Jr.
P.O. Box 6705
Lee's Summit, Missouri 64064-6705
816-525-5200
Attorneys for Raymond Jallow:
C. Edward Simpson
Jones, Bell, Simpson, Abbott & Fleming
601 South Figuroa Street
27th Floor
Los Angeles, California 90017-5759
213-485-1555
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
- 14
588
any information protected by the attorney-client privilege (unless the privilege has been
waived).
I taught law school on a full-time and adjunct basis. I have chaired several important bar
committees including the Unauthorized Practice of Law Committee, the Ethics and
Discipline Committee and the Judicial Performance Evaluation Committee.
I have represented for many years a finance company with respect to UCC Article 9
financing and, in addition, I have litigated many of those matters.
I litigated a significant tort case in Nevada from 1988-1992 which was settled on the eve
of a six-month jury trial.
The following is a description of some of my legal activities in the last while:
1. I am chief counsel for First Health Strategies, Inc. and First Health
Services Inc. in the following matter. FIRST HEALTH STRATEGIES,
INC., and FIRST HEALTH SERVICES CORPORATION, Claimants, vs.
FOUNDATION HEALTH PHARMACEUTICAL SERVICES, INC.,
AND INTEGRATED PHARMACEUTICAL SERVICES, INC.,
Respondents; Charles T.C. Compton, arbitrator, of Wilson, Sonsini,
Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California 94304-
1050. This is a complicated matter involving the construction of
formulary agreements and administrative services agreements in the health
management area.
2. I am chief counsel for Halotron, Inc. in the matter of Halotron, Inc., et
al. V. AB Bejaro- Product, et al.. Arbitration No. 81.153.00026.96. This
matter involves intellectual property problems and contract disputes.
Professor Hans Smit is the Arbitrator.
3. Also, I am lead counsel for two banks in a major case in the Third
Judicial District Court, State of Utah involving the appropriate scope of
credit union activities.
4. I have been hired by the LDS Church to conduct a major legal audit of
one of its large departments.
5. I am also currently involved in giving general legal advice to the Chief
Executive Officer of Geneva Steel Company.
6. I am chief counsel in a case in the Utah State District Court regarding
appropriate state taxes on airline assets.
- 15
589
7. I am chief counsel in a case in the Federal Court currently regarding Fair
Labor Standard Acts problems.
8. I am also Chief counsel for certain developers who have numerous
problems with municipalities and several on-going lawsuits concerning the
same.
9. Along with my partner Richard G. Brown, I have recently represented a
group of investors who have purchased a controlling interest in a bank.
We have worked through the regulatory, contract and other problems
relating to this purchase. We now represent the bank.
- 16-
590
HNANCIAL 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 own an interest in the pension and profit sharing plans at Kimball, Parr, Waddoups,
Brown & Gee. The Firm is agreeable to continue managing my interest in the plan or
turning it over to an independent manager.
I own minor interest in a couple of limited partnerships which pay modest dividends from
time to time.
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.
As long as my current law firm is involved in the management of my retirement plan,
I assume I could not hear any cases from said law firm. The Firm is agreeable to
continue managing my interest in the plan or turning it over to an independent manager.
If the management of the fund is transferred to an independent manager then I could not
hear cases involving that manager. I would resign from all profit and non-profit
organizations from which I am affiliated except for my church.
I obviously could not hear cases involving the limited partnerships in which I retain an
interest.
For an appropriate period of time, I would not hear cases from my former firm. Further
I would not hear cases involving former clients. I would, in all instances, follow
appropriate guidelines including 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
17
591
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 attached Financial Disclosure Report.
Please complete the attached financial net worth statement in detail (add schedules as
called for).
See attached Net Worth Financial Statement.
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.
No
18
592
FINANCIAL STATEMENT
NET WORTH
Provide a complete, cuirent financial net worth stattmcnt which itemizes in detail
aU assets Cmduding bank accounts, real estate, securities, trusts, investments, and other financial
holdings) all Uabiliries Cmcluding debts, mortgages, loans, and other financial obligations) of
yourself, your spouse, and other immediate members of your household.
ASSETS
LIABrLniES
Cuh on htnd uid in bccki
42,0QQ
Notes payable to bants-seoired
none
] U.S. Goveznmcax »ccuritics— uld
J idiedule
none
Notes payable to ban]a-«a»ecured
none
1 Lilted ucaiiaes—vid tcbfidule
—
Notes payable to relatives
none
1 UtiUitcd t£ciffitics — Mjid schedule
—
Notes payable ta othen
none
1
Accoonti and nous receivable:
Accounts and btUj due
1
Due from reUdvei and friends
—
Unpaid income tax
none
1
1 Due from others
none
Other unpaid tax and interest
none
!
Doubtful
none
Real estate mortjatei payable-add
schedule
^61,0(
0
louse and land located in
Real ataxc owned— add schedule
praper, Utah
450, OOC
Chattel mort{a{e3 and other lieits pay-
able
none
Real estate mortgages receivable
none
Other debo-itemize;
!5,00(
Autos and other personal properly
100, OOC
sharing trust)
Cash value-lile iniurance
—
1 Other assets-tlemiie:
1 Pension and profit sharing plan
7 5a, OOC
,
1
Limited partnership interest in
"Village Anartments
100. OOC
122 shares of Mt . Jordan Ltd.
5,. OOC
Total T^«t^'i'^'^«
186,0
)0
4 shares of Draper Irrigation
Company ''
6, OOC
Net Worth ^ ■
277,0
)C
Kageiian common stocK ^,lS,y->J^
10, OOC
Total lisbililies and net wcnh '
4 63,0
)0
ifi'^.OOC
CONTINGENT UABIUTIES
GENERAL INFORMATION
Ai endoner. comaker or juarantoc
''see be
low
Are any aaiets piedied? £Add sched-
, ,hc!use ahd T-antT, see
ule.) abo-*e
On leases or contracts
none
Are yoQ defendant in any luki or le|al
tenons?
no
Legal Claims
none
Have you ever taten bankruptcy?
no
Piovisioo for Federal Income Tai
none
Other special debt
lone
Liabilities secured-First Mortgage payable to Bank One approximately $145,(XX); Second Mortgage payable to Bank One $16,000.
Unpaid income lax: I have withheld more than ovfed.
1 am an accommodation maker for one of my daughters on a residence note lo Chase Manhattan Bank. The amount of the note Is approximately
$205,000. The value of the secunty for the note is approximately $320,000. My daughter is currently refinancing and I will then no longer be on
this note. 1 am also an accommodation maker for one of my sons on a residence note to PMC Mongage Corporation In Lubbock, Texas. The amount
of the note is $57,000. The value of the security for the note is approximately $65.0(X).
593
FI.NAMCI.\L DISCLOSURE REPORT
FOR CALENDAR YEAR 199S
oC 19«}, Pus. ■;,, Mo
I. Person Reporting (Las: name. Jirsc. i*iddl- ifiiZLalt
Kimball, Dale A.
2. Couri or Orjaniiacior.
U.S. District Court
District of Utah
3. Oace Qt Aepoc:
9 / 9/97
U.S. District Judge
5, Sepor- Type [c.-.£c!c i=?r=QriJ:« cvpe!
X Mm-.r^-.-.or.. Oizt 9 A / 97
r.Titiil A.-..-.ual .-i.-.al
5 Xtporli.-.^ Period
within 30 days of
nomination
1/1/96 -'9/4/97
7 CSdcvbers or Oii::i .Wdress
185 S.. State Street, #1300
Salt Lake City, Utah 84111
) On :.-.s basis a: cSe -.licrraiiar. cortzt'.r.ti i.i cms lecor: and
any .^diricaciors aertdi.-.i.-.g tnerslo. i; is. m mv oo---or
m compliance wich appLicacii ta-s a.-.d rs^ulacioni '
Ieviawi.-.5 0£;icsr Dace
IMPORT AiVT NOTES: The instructions accompanying this 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 onJy; see pp. 9-13 of Instructions.)
n
POSITION
NONE (No reportable positions)
Partner/Shareholder
Board of Directors
Executive Committee
Limited Partner
Limited Partner
NAME OF ORG-gLNIZATION/ENTITY
Kiahall, Parr, Waddoups, Brown & Gee
Deseret News Publishing
Mt. .Tnrdan T ^r^
Village Apartments
II. AGREEiVIEiNTS. (Reporting individual only; see pp. 14-17 of Instructions.)
DATE PARTIES AND TERiMS
y
NONS (No reportable agreements)
Some agreement will have to be reached regarding payments to me from my share
or ttie K.imbaii, Parr, Waddoups, Brown & Gee pension and profit sharing trust.
The firm is prepared to either continue to manage my share or to turn it over
to an independer.t manager. ~
III. NON-IIWESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DATE SOURCE AND TYPE
n
NONE (No reportable non-investment income)
Dale Kimball
1995 Kimball, Parr, Waddoups, Brown S Gee
Kimball, Parr, Waddoups, Brown & Gee
Kimball, Parr, Waddoups, Brown & Gee
Rachel Kimball
1995 Jordan Vallev Hospital
Columbia/HCA ffealthcare Corp
Jordan Valley Hospital
Hospi
LC4 View HospiC4l
City of Drapet
Alta View Hospital
g 182,210.84
207,386.18
5
222,383.08
594
FINANCIAL DISCLOSURE REPORT Dale A. Kimball „ " '"
9/9/97
rV. REIMBURSEMENTS and GIFTS -- transportation, lodging, food, entertainment
(Includes those to spouse and dependent children, use the parentheticals '(S) ' and (DC)" to indicate reportable
reimbursetnents and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instructions )
SOURCE DESCRIPTION
n
NONE (No such reportable reimbursements or gifts)
n
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE DESCRIPTION
NONE (No such reportable gifts)
Exempt J
$_
?.
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint hability of
reporting individual and spouse, and "(DC)" for Liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION V?d.UE CODE"
D
NONE (No reportable liabilicics)
•Value Codes: J-SIS.OOO or less K-SIS. OOL-SSO, 000 L-SSO. OOL-SIOO, 000
0-SSOO, OOL-Sl,OOO.OaO Pl-Sl. OQO.OOl-SS.OOO.OOO
P3-S2S.OO0.0OL-SSO,00O,00O P4-S50. OOP. 001 or more
595
FINANCIAL DISCLOSURE REPORT
/9 /q
VII. Page 1 INVESTMENTS and TRUSTS •- income, value, transactions (Includes those of spouse
and dependent children. See pp. 37-34 of Instructions.)
OescrvpCLon'of Assecs
I.-ifiiracs -here aopUraale. o«r.er a-
i.-.i ir.ii^Juil'ard siocse. '- ^sf'^fSr
sesarace owners.Tio 3y soouse. "(DC)"
;or 3«p.er3ti:.p by Seper.der.c cnild.
exempt from prior disclosure
3
c
Gross value
r;=ir:i.-.g
?er:.od
^--— .urL, repor:.., Per.rd
(11
Code"
(A-KI
(21
Tv3e
(e".j, .
(11
Value
Code
(J--?l
value
.1eci-.od3
Code
(O-wl
Su/'leil
:.' r.oc e.<er.pc :roa disclosure 1
.^cr.""
Value;
Code
(J-?)
Sair.
Code
IA-«
(SI
Idenciiv o:
buy-r/seller
(i; ?ri«a:e
NONE (Mo repor:aole
Exempt
1 y4aiage. Apt:s»
$100
,000
2 122 units Mt, Jordan
5
,000
3 4 shares Draper Irrigation
6
,000
« Magellan coiranon stock
10
,000
s
'
»
'
10
u
w
13
M
IS
13
1'
IS
\ci'i''it%^'-- r.u^To.'-idr.ioo s:it63»So??s5°2oS:i^6"^-"-°°" °.:nroii'ikr..o...ooo 5jfH:SSJi^?-r™r=
■-^ -' WM^mM^^... imaa^iiP-—' --^-^^^°^-—'°'
JValMchCds: Q-Aopraisal R-Cosl:(real escace onlyl S-Assesment T-Caah/Markec
(Col. C2I U-SbSk Value v-other a-isciroaced
596
FINANCIAL DISCL0SUH2 REPORT (conC'd)
Dale A. Kijib'all
9 /9 /97
VIII. ADDITIONAL INTORALATION OR EXPLAiVATIONS andtcate pan of Report.)
IX. CERTiriC.4.TI0N.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the .Advisory Cotnminee on Judicial
Activities, and to the best of my tcnowledge at the time after reasonable inqmry, I did not perform any adjudicatory function in any litiganon
during the period covered by this report m which I, my spouse, or my minor or dependent children had a fmanciai interest, as defined in
Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information penaming to my spouse and mmor or dependent children, if any) is
accurate, true, and complete to the best of my knowledge and belief, and that any information not reponed was withheld because it met
applicable statutory provisions pennicting non-disclosure.
I fiirther certify that earned income from outside employment and honoraria and the acceptance of gifts which have been teponed are
in compliance with the provisions of 5 U.S.C. A. app. 4, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Conference regulations.
J^r^O ^f /C
2sd^2.
Signanire
NOTE: AiVY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAJLS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App. 4, § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to;
Comnuttee on Financial Disclosure
Admimstrative Office of the
Um'ted States Courts
Suite 2-301
One Columbus Circle. N.E.,
Washington, D.C. 20544
597
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 amount of time devoted to each.
From 1980-1989 I managed the law firm's pro bono legal activities and did some of the
work myself. I do not know how much time I spent. I have also done considerable
work for penniless friends and relatives over the years. I would guess it involved 500
hours worth of work. I also recently supervised pro bono litigation in our office for a
convicted murderer in an effort to require the State of Utah to reimburse lawyers in
capital cases.
I have engaged in the following civic service:
Master of Bench, American Inns of Court 1994-present; Former member, Utah Federal
District Court Mediation/Arbitration Panels 1993-96; Former Member Alta View
Hospital Board of Governors 1978-90; Former Member, Jordan Education Foundafion
Board 1989-95; Former Member Board of J. Reuben Clark Law Society 1991-93;
Pioneer Theater Company Board 1980-90; 1992-present; University of Utah Law Alumni
Board 1988-90.
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 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 such organizations.
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).
No. I spoke with Senator Orrin Hatch, Senior Senator from the State of Utah about my
interest in becoming a United States District Judge. I believe we had two conversations.
I have had several conversations with personnel at the Department of Justice. In
addition, I was interviewed by an FBI agent. Further, I was interviewed by a
representative of the American Bar Association.
- 19-
45-964 98-20
598
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-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
maimer of an administrator with continuing oversight responsibilities.
Judges are required to honor the philosophy embraced in our system of govenmient:
namely, there are three branches of government with a separation of powers. The
judiciary should not improperly intrude into the functions of the executive or legislative
branches of government. Further, courts are bound to follow the principle of stare
decisis. The developed doctrines of standing and ripeness also control and shape which
appropriate issues and parties come before the judicial branch of government.
-20
599
I. Biographical Information (Public)
Full name (include any former names used.)
Judge James S. Cwin
Address: (List current place of residence and office addresses).
Office:
Stark County Court of Common Pleas
Stark County Courthouse
115 Central Plaza South
Canton, Ohio 44702
Residence:
Canton, Ohio 44718
Date and place birth.
August 10, 1954
Canton, Ohio
Marital Status (include maiden name of wife or husband) and spouse's occupation,
employer's name and business address.
I am married to Bonnie Wetterer Cwin, married November 16, 1985.
She is Senior Location Manager and Business Unit Executive, Travel and Transport
Industry, I.B.M. Ccporation.
Suite 400, Main Place,
121 South Main Street
Akron, OH 44308
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Kenyon College
Gambler, Ohio
1972-76
A.B., cum laude, granted May 22, 1976
The University of Akron School of Law
Akron, Ohio
1976-1979 (Completed in IVi years)
600
J.D., earned December 1978, conferred May 1979
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.
Judge, Court of Common Pleas
Stark County, Ohio
1 989- present
Gutierrez, Mackey & Cwin, L.P.A.
1985-1989
Partner, shareholder
Wise & Gutierrez
1979-1985
Associate
Urbanistics, Inc.
Canton, Ohio
January 1979- May 1979
Research Associate
Blakemore, Rosen & Norris, L.P.A.
Akron, Ohio
1976-1979
Law Clerk
Doctors Hospital of Stark County
Massillon, Ohio
1993-94
Former Board of Trustees Member, unpaid
North Central Ohio Juvenile Diabetes Foundation
Canton, Ohio
1991-94
Former Board of Trustees Member, unpaid
Central Stark County Mental Health Center
Canton, Ohio
1990-1994
Former Board of Trustees Member, unpaid
Canton Croup Home, Inc.
Canton, Ohio
Approximately 1980-1985
Former Board of Trustees Member, unpaid
601
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.
None
Honors and Awards List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Kenyon College
cum laude
The University of Akron, School of Law
Akron Law Review
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.
Ohio Bar Association
Stark County Bar Association
Ohio Judicial Conference
Chair, Court Technology Subcommittee
Approximately 1995 to present
Ohio Judicial Conference
Member, Court Reform Committee
Ohio Judicial Conference
Member, Legislation Committee
Office of Criminal Justice Services
Member, Regional Working Group
Ohio Judicial Conference
Former member, Jury Instructions Committee
Ohio Judicial College
Lecturer
State Justice Institute
Member, "State Courts and Toxic Torts" Advisory Board
602
Stark County Bar Committee
Grievance Committee, Technology Committee, Citizenship Committee
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 do not belong to any organization that lobbies before public bodies
United Way of Central Stark County, committee member
Brookside Country Club
1 1 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.
Ohio Supreme Court, May 7, 1979
U.S. District Court for the Northern District of Ohio, September 4, 1 980
U.S. Court of Appeals, Sixth Circuit, August 27, 1986
U.S. Supreme Court, August 12, 1988
My membership has not lapsed in any of these.
12 Published Writings List the titles, publishers, and dates of publication of papers,
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 have spoken on legal issues and legal procedures often. These were given to various
judicial education groups and attorney groups. 1 have spoken on Ohio's criminal
sentencing provisions, on evidence, on the use of technology, on effective writing, and
on opening statements, among others. I did not keep the notes used for these speeches
or talks.
13 Health: What is the present state of your health? List the date of your last physical
examination.
Good, last physical examination June 9, 1997
603
14 Judicial Office: State (chronologically) any judicial office held, whether such position
was elected or appointed, and a description of the jurisdiction of each such
court.
Stark County Court of Common Pleas, appointed April 1, 1989, elected November 4,
1990. in 1996, I was reelected without opposition. General jurisdiction (Felony and
civil)
My peers elected me Administrative Judge in 1 990, 1 993 and 1 997. In 1 995, my peers
elected me Presiding Judge.
1 5 Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have written; (If any of the
opinions listed were not officially reported, please provide copies of the opinions.
Roseman v. Firemen's and Policemen's Death Benefit Fund, 579 N.E.2d 560 (1991.)
This decision was affirmed by the Ohio Supreme Court in Roseman v. Firemen &
Policemen's Death Benefit Fund, 66 Ohio St. 3d 443 (1993)
Carrols Corporation v. Jacobs Visconsi, 1990 Ohio Misc. LEXIS four (Enclosed)
Moore v. Consolidated Rail Corp., Stark County Case No. 1995 CV 01 185, (Enclosed)
State V. Jewell, Stark County Case No. 1996CV01944, (Enclosed)
Bradley v. Time Warner, Stark County Case No. 1996CVn03, (Enclosed)
State V. Fry, Stark County Case No. 1994CR0176, (Enclosed)
Mohr V. fianc One, Akron Stark County Case No. 1992CV304, (Enclosed)
Barr v. Ohio Edison, Summit County Case No. 91-12-4661, (Enclosed)
In Re Annexation of 369.781 Acres, 1990 Ohio Misc. LEXIS 8, (Enclosed)
State V. Williams, Stark County Case No. CV93-021 13 (Enclosed)
None of these decisions have been reversed.
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 If any of the opinions listed
were not officially reported, please provide copies of the opinions.
I have been reversed twenty eight times. I enclose copies of these reversals. To give
perspective, I have presided over more than 426 jury trials in the last eight years,
604
including more than 230 felony cases. I have presided over more than 6,730 total case
terminations.
State V. Allen Wendling (August 7, 1995), Stark App. No. 95 CA 0044, unreported. In
this case the Court of Appeals of Ohio, Fifth District, Stark County ruled that I erred in
sentencing the defendant. The state charged the defendant with felonious assault, he
was found not guilty of the charged offense of felonious assault, but guilty of the lessor
included offense of aggravated assault with a physical harm specification. The Court of
Appeals ruled that the defendant could not be sentenced to an indeterminate period of
incarceration of two to five years because the indictment had not included a physical
harm specification. The defendant was returned and resentenced.
State V. Bowersock (October 21, 1996), Stark App. No. 1995CA00418, 1996 WL
608464, unreported. The State charged the Defendant with gross sexual imposition.
The State alleged that Bowersock fondled a seven year old girl in the vaginal area and
performed cunnilingus on the child. During trial, the child witness had testified that she
had drawn a picture of the area involved in pretrial interviews. I ruled that the drawings
would be hearsay and not admissible. The Court of Appeals ruled that the drawings
were discoverable under Criminal Rule 16 as a statement of a witness.
State V. Stanley, (Jan. 17, 1995), Stark App. No. 1994CA00025, unreported. In a
criminal case the defendant had pled not guilty by reason of insanity. At trial the State
had sought to introduce evidence that the Defendant remained silent after being given
Miranda warnings. The State argued that this silence suggested that the defendant was
not delusional. I allowed the evidence. The Court of Appeals ruled that the use of post-
Miranda silence to prove sanity was not permitted. The Defendant was returned and
pled guilty.
in Estate of Baxter v. Grange Mut. Cas. Co., 73 Ohio App. 3d 512 (5th Dist. 1992) the
plaintiff brought a declaratory judgment action against insurer for bad faith in
investigation and denial of insurance coverage. The Court of Appeals affirmed all the
major decisions I made in the case. The Court, however, ruled that I erred in awarding
prejudgment interest before the amount of damage had been arbitrated and confirmed.
Cole V. Motorist Mutual Insurance Company (October 16, 1995), Stark App.
1995CA00066, 1995 WL 617610, unreported. In Cole, the Plaintiff sued their
uninsured motorist provider for bad faith when the insurer refused to pay a wrongful
death claim. After trial, I granted a motion for a new trial on the issue of damages. The
Court of Appeals ruled that I had erred in refusing to grant a new trial on the issue of
punitive damages as well.
In Sherlin v. Palace Theater, (April 20, 1992), Stark App. No. CA-8476, the plaintiff was
a welfare worker assigned to do clean up at a not-for-profit theater. The plaintiff was
injured in a fall. The Court of Appeals found that I erred in not giving judgment to the
Defendant. The Court of Appeals found that the theater employed the injured party
under a borrowed employee theory. The Court of Appeals found the theater enjoyed
immunity under Ohio's Workers Compensation Law, R.C. 4123.74.
Lewis V. Pizza Rack, Inc., (5th Dist. 1992) 1992 WL 71512 In this case, the Court of
605
Appeals reversed my grant of a new trial. After a ten-day trial on a contract case and
verdict for a franchisor, the franchisees moved for a new trial. They alleged that the
foreman of the jury was heard saying: "It doesn't matter. They signed the contract and
they should have to honor it." I found this was the central issue in the case and the
foreman had disregarded my instruction. The Court of Appeals found that the
franchisees failed to show the jury's verdict was adversely affected or prejudiced by the
foreman's remarks.
In Klapchar v. Dunbarton Properties, itd.,(5th Dist. 1991) 1991 WL 249432, I gave
summary judgment on a fraud claim involving real estate. I granted summary judgment
after the plaintiff testified that noone purposely deceived him and that the transaction
was done 'in good faith by everyone.' The Court of Appeals reversed and found
sufficient evidence remained to require a jury trial on the fraud claim.
Wayne Mutual Insurance Company v. Burdge, (July 10, 1995), Stark App. No.
95CA001 1, 1995 WL 617655, unreported. In this declaratory judgment involving
uninsured benefits, I ruled that the insurance company that had paid uninsured benefits
was required to pay medical benefits for the same accident to the father of the injured
parties. The Court of Appeals, with a dissent, ruled that the insurance company could
set off amounts received under the medical pay provisions of the policy.
In Spatz Wholesale Floral, Inc. v. Midwestern Indem. Co., (5th Dist. 1992) 1992 WL
1 2804, the Court of Appeals found error in the introduction into evidence of an offer to
compromise.
In Davis v. Licbtenwalter, (5th Dist. 1994) 1994 WL 75615, I gave summary judgment
on Plaintiff's false arrest and malicious prosecution claims. I found that the Plaintiff
failed to file his claim within one year of his arrest and within Ohio's statute of
limitations. The Court of Appeals found I had erred, saying that a false arrest claim does
not accrue at the time of the arrest.
Ross V. Burns (March 10, 1997), Stark App. No. 1996CA00284, 1997 WL 1 16941,
unreported. In Ross, the plaintiff attorney sued his former client for legal fees. The jury
awarded the plaintiff attorney damages. I ruled the plaintiff was not entitled to
pre-judgment interest under Ohio R.C. 1 343.03 because the amount due under the
contract was not reasonably ascertainable. The Court of Appeals ruled that the plaintiff
should have received prejudgment interest.
Capadona v. Scott (January 10, 1994), Stark App. No. CA 9271, 1994 WL 22849,
unreported. At trial of a personal injury lawsuit, the defense attorney said: " So I just
ask you to use your collective perspective and return a fair verdict for both Mr. Scott
who has to pay this out of his pocket * ■* *" In fact, the defendant had insurance. I
sustained an objection and directed the jury to disregard the statement and reminded
the jury that the counsel's statements were not evidence. The Court of Appeals held
that I should have granted a new trial because of the defense attorney's misconduct.
State V. Patterson (March 1 4, 1 994), Stark App. No. CA 9435, 1 994 WL 1 1 5952,
unreported. The State charged the defendant with aggravated robbery. The State
alleged that the defendant took cash from a convenience store while armed with a knife.
606
The defendant said the knife involved was not a deadly weapon but instead a produce
knife. I denied a motion to dismiss the aggravated robbery charge. The Court of
Appeals reversed and said insufficient evidence showed that the knife was a deadly
weapon.
MDS Development v. Professional Services Industries Oune 1997), Stark App. No.
1996CA00353, unreported. The Plaintiff developer sued the defendant soil testing
company for negligence in performing soil tests in an area intended for housing
development. I ruled that a $50,000.00 limit on damages contained in the parties
contract was valid. As a result, I reduced the jury's verdict of $137,375.61 to
$50,000.00. The Court of Appeals found that the contractual limitation on damages was
not enforceable as to the tests conducted.
State V. Luttrell (August 30, 1993), Stark App. No. CA-9207, 1993 WL 370651,
unreported. The State charged the defendant with felonious sexual penetration and
gross sexual imposition, alleging the defendant sexually abused an eleven year old
child. At trial, the victim objected to a single time of abuse. The defendant objected
that the victim's testimony was not consistent in time with the bill of particulars,
because the bill of particulars alleged a continuous course of conduct. I denied a
motion for a mistrial, finding that there was insufficient showing of prejudice. The Court
of Appeals reversed and ruled that I should have granted a mistrial.
State V. Vincent Hill (October 27, 1994), Stark App. No. 94 CA 0142, unreported. Hill
was convicted of carrying a concealed weapon. At trial, the verdict form did not state
the enhancing factor that the weapon involved was loaded or that ammunition was
ready at hand. The Court of Appeals held that Hill should have been sentenced to a first
degree misdemeanor rather than a felony of the third degree because the verdict form
did not have the enhancing factors.
In State v. Zerbe, (5th Dist. 1991), 1991 WL 302418, the State indicted the defendant
for sexual battery. After getting more specific information from the victim, the State
moved to dismiss the charges. The State then indicted the defendant for sexual
imposition. I denied the defendant's motion to dismiss the charges on speedy trial
grounds. The Court of Appeals reversed and found that the sexual imposition charge
was sufficiently related to the sexual battery charge as to cause the speedy trial
requirements to run from the time of the first indictment.
In American Seaway Foods, Inc. v. Belden South Associates Ltd. Partnership, (5th Dist.
1994) the parties disputed a complicated commercial lease and security arrangment. In
a replevin action, I ruled that the Defendant real estate developer had right to replevin
equipment taken by the Plaintiff. The Court of Appeals found the real estate developer
was entitled to elect between a return of the equipment or a judgment in the amount of
the value of the equipment.
In Shearson Lehman Hutton, Inc. v. Cook, (1991) 1991 WL 57131, 1 allowed a debtor to
present evidence tending to show that the amount of judgment did not reflect payments.
The Court of Appeals found that the judgment could not be challenged absent a motion
to vacate.
607
In Morris v. Wilson, (5 Dist. 1991), 1991 WL 241990, I granted summary judgment in a
personal Injury claim. The Court of Appeals reversed and found material issues existed
that should be submitted to a jury. In this case, parents made claim against a neighbor
for injuries to their son. The son had gone to a neighbor's house and been injured
when he had tried to to pound down a nail with his tennis shoes. The nail entered the
boy's foot. I ruled insufficient evidence showed that the neighbor was aware of the
dangerous condition or of the son's conduct. The Court of Appeals found sufficient
material facts so as to require a trial.
In Ungar v. jett, (1991), 1991 WL 123840, the Court of Appeals found I erred in
allowing the jury to give damages to a building owner where the claim had been
brought only by his insurer.
\nShawv. Matheny, (OhioApp. 1991) 1991 WL87136, I presided over a case
involving real estate. The Court of Appeals found that I erred in failing to find that the
Plaintiffs breached a deed covenant of quiet enjoyment.
In Wilhelm v. Peoples Federal Oanuary 22, 1991), Stark App. No. CA-8181, I allowed
the plaintiff to present evidence that a savings association wrongly allowed the plaintiff's
mentally impaired son to pledge a joint savings account, resulting in loss to his mother.
The Court of Appeals found I had erred and the savings association was statutorily
immune.
In Ream v. Civil Service Com'n of City of Canton, (1 990), 1 990 WL 1 87076, the
Plaintiff contested a civil service establishment of an eligibility list for the position of
police captain. He said the civil service commission violated Ohio's Sunshine Law,
R.C. 121.22, by failing to give proper notice of a meeting. I ruled that the Civil Service
Commission violated this provision. The Court of Appeals reversed. The Court of
Appeals ruled that the Commission was not required to give the Plaintiff notice because
he had failed to place his name on the pertinent "subscribers mailing list."
In Metheny v. Spitzer Chevrolet Co., (1990) 1990 WL 93932, I ruled the Ohio Civil
Rights Act gave the Ohio Civil Rights Commission exclusive authority to process the
plaintiff's pregnancy discrimination claim. The Civil Rights Act gave that Civil Rights
Commission power to investigate discrimination and gave plaintiffs the right to appeal
the Civil Rights Commission's determination. The Court of Appeals ruled that a private
cause of action remained. In a later case, EIek v. Huntington Natl. Bank, (1991) 60
Ohio St. 3d 135, the Ohio Supreme Court ruled an employee could institute
independent civil action to seek redress for discrimination on basis of physical
disability.
In State v. Allen (March 24, 1997), Stark App. No. 96CA044, the Court of Appeals ruled
that I had given the defense insufficient time to prepare for the trial of an aggravated
robbery.
In State v. Nieb (May 27, 1997), Stark App. No. 96CA256, unreported, the Court of
appeals reversed because I had not instructed the jury on what "deadly force" is. In the
case, the defendant male punched his girlfriend in the face, breaking her sinuses,
shattering her teeth and breaking her nose. During instructions, the defense attorney
608
never requested an instruction defining 'deadly force.' Ohio has pattern jury
instructions. Ohio's pattern instructions do not suggest that trial courts give an
instruction on 'deadly force.'
(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.
Roseman v. Firemen's and Policemen's Death Benefit Fund, 579 N.E.2d 560 (1991)
This decision was affirmed by the Ohio Supreme Court in Roseman v. Firemen &
Policemen's Death Benefit Fund, 66 Ohio St.3d 443 (1993)
State V. Fry, Stark County Case No. 1994CR01 76, (Enclosed)
State V. Mallett, Stark County Case No. 1993CR3154 (Enclosed)
16 Public Office: State (chronologically) any public offices you 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.
I was an unsuccessful candidate for the U.S. Congress in 1984. I served as an appointed
board member of the Canton Fair Housing Commission from approximately 1 982 to
1986. I was an unsuccessful candidate for the Ohio State Senate in 1986.
1 7 Legal Career: 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:
I have never served as a judicial law clerk.
2. Whether you practiced alone, and if so, the addresses and dates;
I have never practiced law 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.
In December 1978, I completed law school after two and one half years. I took the
Ohio Bar Examination in February 1979 and was admitted in May 1979.
In June 1979, I accepted a position as an associate with Wise & Gutierrez, Suite 610,
10
609
Bliss Tower, Canton, Ohio 44702. Wise & Gutierrez was a Martindale Hubbell 'av'
rated firm. In this position I worked with Earle E. Wise until he took a position as Judge
of the Ohio Court of Appeals, Fifth Appellate District. He is now retired and lives at
11242 Marlboro Avenue, N.E., Alliance, OH 44601, 330/935-2156. I also worked with
Roy Gutierrez. He keeps his office at 610 Bliss Tower, Canton, OH 44702, 330/452-
6567.
In 1 985, Judge Wise went to the position as Judge. I became a partner with Roy
Gutierrez and John Mackey in the firm of Gutierrez, Mackey & Gwin. John Mackey
keeps his office at 610 Bliss Tower, Canton, OH 44702, 330/452-6567. I continued in
this partnership until I was appointed Stark County Common Pleas Judge on April 1,
1989.
1 . What was the general character of your practice, before you became a judge,
dividing it into periods with dates if its character changed over the years.
2. Describe your typical former clients, and mention the areas, if any, in which
you specialized.
I engaged in a general practice of law. My practice was generally civil although I
represented some defendants in appeals of criminal convictions. My practice was
approximately 90 percent related to litigation. The litigation included personal injury,
labor law and commercial law.
Over time, I increased my emphasis upon litigation in federal court with special
emphasis upon labor law and on equal employment litigation. I became District
Counsel to the United Steelworkers of America and took responsibility for litigation in
many counties. I also served as counsel to United Food & Commercial Workers,
International Brotherhood of Boilermakers, Graphic Arts International Union, Fraternal
Order of Police, Oil, Chemical and Atomic Workers. I successfully represented these
bodies in complex litigation involving complicated labor, pension, and commercial
matters.
I represented the Steelworkers in complex, large dollar cases. These included a
bankruptcy litigation case involving more than 500 workers and more than $15 million
in claims. Alone, I successfully represented the Steelworkers before the NLRB including
many trials with more than five days of testimony. Alone, I also successfully
represented the Boilermakers in major federal litigation involving more than $500,000
in benefits owing in a plant shutdown.
I represented Stark Technical College as an Assistant Ohio Attorney General acting as
General Counsel. In that position I represented the College in a significant amount of
EEO litigation in federal courts.
I have personally appeared before the Ohio Supreme Court and before the U.S. Court of
Appeals for the Sixth Circuit.
610
As an attorney, I appeared in court on civil litigation. While the wide majority of my
work was litigation, the amount of time I appeared in Court varied In the final year oi
my practice I acted as sole counsel in a trial that lasted eleven trial days and created a
record of more than 291 5 pages. In the same year, I acted as sole counsel in a trial that
took eight trial days and created a record of more than 241 5 pages.
Since becoming a common pleas judge, I have presided over more than 420 jury trials
including more than 220 felony jury trials.
2. What percentage of these appearances was in:
a. Federal courts.
b. State courts of record.
c. Other courts.
In the early years of my practice, I appeared in State Courts approximately 80% of my
litigation. In these years, I appeared before Federal Courts, including bankruptcy courts,
approximately 20% of my litigation. In later years, I appeared in Federal Courts
approximately 40% of my litigation and before Federal agencies and bankruptcy courts
approximately 40%
3 What percentage of your litigation was:
a. civil
b. Criminal.
My litigation was approximately 95% civil and 5% criminal appeals.
4 State the number of cases you tried to verdict or judgment (rather than settled)
in courts of record, indicating whether you were sole counsel, chief counsel, or
associate counsel.
I believe I tried approximately three cases to verdict in jury trials as chief counsel.
5. What percentage of these trials was:
a. Jury
b. Non-jury.
I believe I participated as associate counsel in approximately three additional cases tried
to verdict in jury trials. I tried at least three cases to verdict in nonjury trials as sole
counsel.
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
17
611
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.
I have handled a large amount of litigation as an attorney and more as a judge. These
cases have included:
International Brotherhood of Boilermakers v. Transue & Williams, 879 F. 2d 1388 (6th
Or. 1989). As sole counsel, I represented the Boilermakers. After negotiations, the
employer and union believed they had reached accord on a new collective bargaining
agreement. The parties then became unable to agree on language for their agreement.
During the pendency of the effort to journalize their agreement, the Company shut
down the plant employing more than two hundred bargaining unit members. The
Company refused to pay severance, insurance and other benefits and refused to arbitrate
the dispute. I sued for the Union in the United States District Couit for the Northern
District of Ohio. The case was assigned to Judge David Dowd. Upon motion for
summary judgment, the District Court ordered the Company to arbitrate. The Company
appealed. The Sixth Circuit Court of Appeals completely adopted my argument. I
represented the Union in the arbitration. I tried and prepared the case without co-
counsel. Mr. Timothy Wood of Schwartz, Einhart, Wood & Szuter represented the
opposing side. Mr. Wood is currently at 1400 Bank One Center, Cleveland, Ohio
44114, 216/363-1400
M. K. Morse Co. and United Steelworkers, 302 NLRB No. 147; 138 L.R.R.M. 1245
(1991). As sole counsel, I represented the United Steelworkers in support of charges
made to the NLRB. The case involved claimed violations of the National Labor
Relations Act. The trial of the case took eleven trial days between January 11,1 988, to
February 11, 1988, and created a record of more than 2915 pages. I was successful in
having Administrative Law Judge Harold Bernard find that the Company had violated all
except one of more than fifty claimed violations. I was successful in having the
Administrative Law Judge issue a bargaining order though the Steelworkers had lost the
representation election. These decisions were subsequently upheld by the Board after I
had taken the bench. I tried the case and prepared the brief to the Board without co-
counsel. Opposing counsel was Terence Ryan. Mr. Ryan is currently at The Arcade,
Suite 332, 401 Euclid Avenue, Cleveland, Ohio 441 14, 216/241-7220.
Summitville Tiles, Inc. and United Steelworkers of America, 300 NLRB No. 9, 136
L.R.R.M. 1 180 (1990). As sole counsel, I represented the United Steelworkers in
support of charges made to the NLRB. The case involved claimed violations of the
National Labor Relations Act. The trial of the case took eight trial days November 3,
1 987, and December 3, 1 987, before Administrative Law Judge Honorable Karl H.
Buschmann, and created a record of more than 241 5 pages. 1 was successful in having
the Administrative Law Judge Karl Buschmann find that the Company had violated all
except one of seven claimed violations. I tried the case without assistance. Opposing
counsel was Theodore Mann, Jr. Mr. Mann is currently at 644 Huntington Building,
925 Euclid Avenue, Cleveland, Ohio 441 15-1493, 216/621-6147
13
612
In Re. Enduro Stainless, Inc. United State Bankruptcy Court for the Northern District of
Ohio at Canton. I represented the United Steelworkers when a Company employing
more than 500 employees petitioned for bankruptcy and shut down the plant. After
major negotiations and litigation I was successful in having a trustee appointed. At trial
before U.S. Bankruptcy Judge James Williams, I established that the former owners had
siphoned assets of the company at a time when they owed obligations to Steelworkers
and others. The information I developed later led to criminal charges and convictions
against the Company owners. The Trustee sold the Company to a Company that
reopened the plant and again employed more than 500. Mr. Richard Seltzer of Cohen,
Weiss & Simon, 330 West 42nd Street New York, New York 10036-6976, 212/563-
4100 was co-counsel. Other attorneys involved included Alan Kopit, 3300 BP America
Building, 200 Public Square, Cleveland, Ohio 441 14-2301, 216/621-0150 representing
the creditors committee and Howard Levy, 2300 BP America Building, 200 Public
Square, Cleveland, Ohio 441 14-2378, 216/363-4500, representing the debtor.
In Re Union Metal, 842 F.2d 879 (6th Cir. 1988). I represented the United
Steelworkers when a Company employing more than 200 went bankrupt. The Debtor-
Company sought to stop payments of retiree health and life insurance benefits. First, the
Debtor sought to reject the collective bargaining agreement, 1 1 U.S.C. § 1113. After
trial before U.S. Bankruptcy Judge James Williams, the Judge denied the Company's
request to reject the collective bargaining agreement. The Company then sought to stop
the payments, claiming they were not administrative expenses. The Bankruptcy Judge
ruled that payments should not be made. I appealed for the Steelworkers. The District
Court affirmed the Bankruptcy Court's order denying payment. The Union appealed to
the Sixth Circuit. The Sixth Circuit reversed. The Sixth Circuit held that the Debtor was
required to pay retiree benefits until the Debtor succeeded in rejecting the collective
bargaining agreement. As a result, the Company remained obligated to honor
commitments to provide retiree health and welfare benefits. The Union members
subsequently received distributions when the Company submitted a plan of
reorganization. I served as co-counsel with Paul Whitehead, United Steelworkers of
America, 5 Gateway Center, Pittsburgh, Pennsylvania 15222, 412/562-254. Mr. Alan
Kopit, 3300 BP America Building, 200 Public Square, Cleveland, Ohio 441 14-2301,
216/621-0150 and Eric Fingerhut, 200 Public Square, Cleveland, Ohio represented the
Debtor.
Louise Weber v. Stark Technical College, U.S. District Court for the Northern District of
Ohio, Case No. 84-3535A. In this case, 1 represented Defendant Stark Technical
College in an age and sex discrimination case. U.S. District Court Judge David Dowd
presided over the case. The Plaintiff alleged that a decision not to renew her faculty
contract was motivated by sex and/or age. At the time of her separation, the Plaintiff
had been earning in excess of $40,000.00 per year. As sole counsel, I represented Stark
Technical College through a large amount of discovery and trial preparation. The case
was settled in December 1 984, after the first day of trial. The case was settled for
$6,000,00. This was far less than the Plaintiff's original settlement demand of more than
$200,000.00. The plaintiff was represented by Ralph Cosiano, 1 1 707 Terminal Tower,
Cleveland, OH 44113, 216/687-1400. (This is his former address. The Ohio Supreme
Court does not have any current registration. I believe he may now be deceased.)
Diana Smith, Guardian of Geoffrey Dean v. Shane Steel, U.S. District Court for the
14
613
Northern District of Ohio, Case No. C88-1 598. In this case, I represented the Plaintiff
who brought claim for violation of constitutional rights by the Carroll County Sheriff's
Department and its employees. The Plaintiff received massive brain injuries after being
stopped for a traffic violation. We alleged that this resulted from an assault by the
deputy sheriff. We alleged a pattern of similar activities by this Sheriff's Department
that manifested a policy. The case was assigned to U.S. District Court Judge Alice
Batchelder. I represented the Plaintiff through most of the discovery. I assisted in
preparing a response to the Defendants' motions for summary judgment. This case went
to trial after I had taken a seat on the common pleas bench. After I took the bench, the
case was prosecuted by John Mackey, Robert Swan (now deceased) and Kathleen
Tatarsky, all at Suite 610 Bliss Tower, Canton, Ohio, 44702, 330/452-6567. The case
was settled during trial for approximately $250,000.00. The Carroll County Sheriff was
represented by Chris Nolan, 300 Courtyard Square, 80 South Summit Street Akron,
Ohio 44308-1 71 9, 330/253-5454.
Helen L. lacquez v. Stark Technical College, U.S. District Court for the Northern District
of Ohio, Case No. C84-1673. In this case, I represented Defendant Stark Technical
College in an age and sex discrimination case. U.S. District Court Judge Sam Bell
presided over the case. The Plaintiff alleged that a decision not to renew her faculty
contract was motivated by sex and/or age. The Plaintiff also alleged intentional
infliction of emotional distress. The Plaintiff was represented by Roy Battista, 4808
Munson Street, N.W., Canton, OH, 499-0900. At the time of her separation, the
Plaintiff had been earning in excess of $35,000.00 per year. I represented Stark
Technical College with John Childs, 50 South Main Street, Akron Centre Plaza, P.O.
Box 1500, Akron, Ohio 44309-1500, 330/376-5300; I represented Stark Technical
College through a large amount of discovery and trial preparation. The case was settled
in April 1985. The case was settled for $15,000.00.
Diane Davis v. Allen Tulgan, Et al., Stark County Common Pleas Case No. 80-1 123. I
represented the Plaintiff as an associate of the principal counsel, Earle Wise, 1 1 242
Marlboro Avenue, N.E., Alliance, OH 44601, 330/935-2156. The Plaintiff claimed the
defendant neurological surgeon had failed to properly stage a brain tumor. The Plaintiff
claimed that the Defendant did not surgically remove a benign brain tumor and wrongly
used radiation, chemotherapy and high cortisone therapy. As an associate, I prepared
discovery and all the pleadings. After the Court denied the Defendants' motion for
summary judgment, the case was settled. I believe the case was settled for near
$200,000.00. The principle defendant was Allen Tulgan, M.D. Dr. Tulgan was
represented by David Hilkert, 50 South Main Street, Akron Centre Plaza, P.O. Box
1 500, Akron, Ohio 44309-1 500, 330/376-5300.
Thomas Butchko v. Stark Technical College, Stark Common Pleas Case No. 84-1992. I
represented Stark Technical College. The Plaintiff alleged that Stark Technical College
had wrongfully failed to renew the Plaintiff's faculty contract. After conducting
significant discovery, the case was settled for $6,000.00. Mr. Butchko was represented
by Ronald Macala, 4150 Belden Village St., Canton, Ohio 44718, 330/493-1570.
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
15
614
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.)
I have been active In a number of judicial and legal organizations. Since about 1995, I
have served as Chair of the Ohio Judicial Conference Subcommittee on Court
Technology. This committee facilitates the use of technology by Ohio Judges. I serve
as a member of the Ohio Judicial Conference Committee on Court Reform and
Legislative Committee. This committee does long range revievv of issues affecting Ohio
Courts. I have served on the Stark County Bar Association Grievance Committee. I
have lectured a number of judicial education programs Including programs on Ohio's
new criminal sentencing law, on technology, on evidence, and on effective writing.
615
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 certain rights under the Ohio Public Employee Retiree System. I believe these
entitle me to receive approximately 2% times my years of service of my average best
three years salary. I have no other deferred benefit arrangements excepting tax deferred
savings that were wholly contributed by me.
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.
I.B.M. Corporation employs my wife as Senior Location Manager and Business Unit
Executive, Travel and Transport Industry. We own I.B.M. common stock. My wife has
certain pension rights with I.B.M. I would have a potential conflict of interest in
litigation involving I.B.M. Corporation. I anticipate I would recuse myself from any
litigation involving I.B.M. I would follow the Code of Judicial Conduct in making that
determination and other determinations.
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 plans to pursue any outside employment with or without compensation. I
have no agreements to receive any income from anyone.
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 financial disclosure report.
Please complete the attached financial net worth statement in detail (Add schedules as
called for.)
See attached. The attached schedule reflects both my and my wife's assets.
17
616
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.
In 1990, I was a candidate for my current seat on the Stark County Common Pleas
Court. John Boggins (now Judge John Boggins) opposed me. I won with 63% of the
vote. In 1996, I was unopposed for reelection.
I was a candidate for the 29th Ohio Senate District in 1986. I lost a close election to the
incumbent.
I was a candidate for the U.S. House of Representatives, 26th District in 1 984. I lost the
election by a wide margin against the incumbent. I have helped on other campaigns
without holding a formal position
617
AO-IO M
ltn.t/96
FINANCIAL DISCLOSURE REPORT
Nominatioo Report
Report Required by the Ethics
Reform Act of I9S9. Pub L No.
101194, Noveinber 30. 1919
0 use. App 4 . Sec. 101-112)
1 1. Pcnoo Reporting (Last r.
GWIN, JAMES S.
I 2. Court or Organizalion
! U.S. DISTRICT COURT, N.D. OHIO
3. Bite of Report I
08/01/1997 j
6. Reporting Period 1
01/01/1996 ;
to
07/31/1997 j
j 4. Title {Article III judges indtcae active or
i ieiuor siatus. magistrate judges indicate
I fitll- or pan-rime)
U.S. DISTRICT JUDGE - ACTIVE
5. Report Type (check type)
yt NomiiUQOn. Datt / /
Initial Annual
7. Chambers or Office Address
STARK COUNTY COURTHOUSE
CANTON. OH 44702
8. Od the hasis of the infornutioo contained in this Report and any
modiflcations pertaiiung thereto, it Is in my opinion, in compllanci
with applicable laws and regulations.
,
Reviewing OfTicer
Dale
j IMPORTAm NOTES: The insrrvcn
! checking the NOSE box for each sec
ons accorrtpanying this form must be followed- Comple
tion where you have no reportable mformahon Sign o
e all parts.
1 the last page.
I. POSITIONS (Repomng uuLvulmil only: see pp. 9-13 of Instructions)
POSITION
X NO>X (Noreponableposinons.)
NAME OF ORGANIZATION / ENTITY
II. AGREEMENTS (Reporting individual only: see ppl4-17 of Im
DATE PARTIES AND TERMS
NONE (No reponablc agreements.)
STATE OF OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM
m. NON-INVESTMENT INCOME
DATE
(Reporting individual and spouse: see pp 18-25 oflnsiruaions-)
PARTIES AND TERMS
NO?VE (No reporuble non-investment income )
1/1/96 STATE OF OHIO, JUDCIARY
2 1/1/96
INTERNATIONAL BUSINESS MACHINES. INC. (S)
GROSS INCOME
(yours, noi spouse's)
S 175,565.50
618
! name 01 nnon Keporant I DaieofRepon
RNANCIAL DISCLOSURE REPORT | qvVIN. JAMES S. ! 08/01/1997
rV. REIMBURSEMENTS and GIFTS - nansporaUon, lodging, food.
(Includes those to spouse and dependent children: use the parenlheticats '(S) ' and '(DQ ' to indicate reportable reimbursements and gifts received by spouse
and ttependent children, respecnvety. See pp. 26-29 of Instructions.)
i ; SOURCE DESCRIPTION
j NONE (No such reportable reimbursements or gifts)
' EXEMPT
V. OTHER GIFTS
(Includes those to spouse and dependent children, use the parenthestcats 'fSi ' and '(DC) ' to indicate other gifts received by spouse and dependenl children,
respectively. See pp 30-33 of Instructions.)
■ SOmCE DESCRIPTION VA
NONE (No such reporoble gifts)
1 EXEMPT
VI. LL\BILITIES
Oncludes those of spouse and dependent children: indicate M-here applicable, person responsible for liabiliry by using the parenthetical ' IS)' for separate
tiabiUty cf the spouse. 'IJj' for jotnl liability of reporting individual and spouse, and '(DO' for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
X NONE (No repomble liibiiiues)
' VALCODES:J-S15.000orless K = S15.001S5O.0OO L= 550.00 1 lo SI 00.000 M = S100.00IS:50.000 N = S23O.0Ol-S50O.00O
0-S500.001-S1.000.000 PI =$1,000 OOl-SS.OOO.OOO P: = S5 000.001 -S:5 000.000 P3=S25.O0O.OOI-$50.0OO.OOO PJ = 550.000.001 or more
619
I Hunt of Person Reporting
FINANCIAL DISCLOSURE REPORT ] GWIN, JAMES S.
Due of Repon
08/01/1997
- income, value, iransaaions {includes those of spouse arui
dependeru children. See pp S7-S4 of Instructions.)
Vn. Page 1 ENTVESTMENTS and TRUSTS
Descnpdon of Assets
Indicate where applicable, owner of
the asset by using the parenthetical
'P) 'for joins ownership ofrepomng
indx\idual and spouse. ' (S) ' for sep-
erate orwnenfiip by spouse, "(DC
for o**nership by deperuieni child.
Place '00' <^tf foch asset
exempt from prior disclosure.
' Income
J during
I reponing
I period
I Gross value
I ai end of
I reporting
period
' Transacbons during reporting period
1(1} I a)
Iajw. Type
]Co<*e (e.g..
j(A- I dividend,
|h) I itmor
j interest)
(1) |(2) ; (1)
VaJue Value '. Type
Code|Method| (e-8-.
(J-P) :Code 1 buy. sell.
(Q-W) liwrger.
I If not exempt from disclosure
(2) j(3) I (4)
I Date: Value Gain
Month- 1 Code i Code
Identity of
buyer/seller
(J-P) |(A-H) (ifpnvate
i transaction)
NONE (00 ttponable tnconte.asseu
' nnsactions)
or
1
1
!
i i
1 ! ;
1 1 AIM INTEKNATIOHAL GKOHTH FUND
|A
'Dividend
J
T
EXEMPT
; 2 AIM CONSTELLATION FUND
'D
Dividend
L
T
EXEMPT
. 3 IBM COMMON SHARES
1
.A
Dividend
M
T
EXEMPT
;
* GALAXY SMALL COMPANY FUND
C
Dividend
L
T
EXEMPT
5 GALAXY LARGE COMPANY FiniD
A
Dividend
J
EXEMPT 1
e MERRILL LYNCH GROWTH FOTD
i
D
Dividend
K
T
EXEMPT
1
■ 7 TRCWE PRICE MID CAP FUND
A
Dividend
J
T
EXEMPT
; 8 MERRILL LYNCH CASH MANAGEMENT
ACCOUNT
A
Dividend
J
T
EXEMPT
9 PIHCO OPPORTUNITY TJNO
C
Dividend
1 Inc. Gain Codes A=S 1 .000 or less
(C01BI.D4) F'S.'iO.OOl-SlOO.OOO
B
G=
=si.ooi-s:.5oo
SI 00.001 -SI. 000.000
c=
HI
S:.501-S5.000
Sl.000.001-S5.000.000
D=S5.001-S15.000
H2=S3.000.001 or more
E=SI;.001-S50.000
;ValC0(Jc5 J=S 15.000 or less K=S15.001-S50.000 L=S5a00l-SI00,0D0 M=$I00.00I-S:50.000 N=S:50 001-S500-000
(Col C1.D3) OS500.00 1 -SI. 000.000 PI=SI.000.001-S5,000,000 P:=S5.O0O.OOI-S:5.OOO.OOO P3=S:5.000.00 1 -550.000.000 P4=S50.000.00I
3 Val Mih Codes (J^.Appraisal
(Col C2) L=Book Valui
R=Cosi (real e
V=Ollier
S=Asscssmcnl
W=Estimaied
T=C ash. Market
620
I „*uic u. rcrson ncponmg I Dale of Rtpon
FINANCIAL DISCLOSURE REPORT GWIN, JAMES S. 08/01/1997
Vm. ADDITIONAL INFORMATION OR EXPLANATIONS. Ondicatt pan of rcpon )
j NONE (No iddirionil infomuiion or ciplaMdons.)
I have rights under the Ohio Public Employees Retirement System to receive pension benefits.
have right to receive 2.1% times the number of years of Ohio public employment times the
average of my highest three years salary.
621
I Name of ?cnoD Reportmg
FINANCIAL DISCLOSURE REPORT j q^^^ JAMES S
D>ic of Repon
08/01/1997
DC. CERTmCATION
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 at the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the 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 the 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 that any information not reponed
was withheld because it met applicable stamtory provisions permitting non-disclosure
I further cenify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reponed are in compliance with the provisions of 5 U.S.C. app. 4, section 501 el. seq., 5 U.S.C. 7353 and Judicial Conference
regulations.
Signamre "^ Y *-^ £0*^ '***'V^ Date *> ' ]^\
Any individual who knowingly and wilfully falsifies or fails to file this repon may be subject to civil
and criminal sanctions (5 U.S.C. App 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative Office of the United Stales Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
622
Financial Statement
Net Worth
Assets
Liabilities
Notes payable to bank, secured
.i-5 —
32.161.29
Cash on hand and m banks
$
24.007.89
Notes payable to bank, unsecured
U.S. Government securities, add
schedule
$
Notes payable to relatives
Listed securities
$403,779.07
Accounts and bills due
i $
377.72
Unlisted lecurities
i
_
Unpaid income tax
.
Accounts and notes receivable
$
Other unpaid tax and interest
1 *
.
Due fronn relatives and Iriends
«
Real estate mortgages payable, add
schedule (to Keycorp Mortgage Corp.)
Chattel mongages and other liens
payable
■ s
155.349.08
Due from others
s
•
: $
Doubtful
s
Other debts, itemize
s
Real estate owned, add schedule
5290,000.00
Total liabilities
1 s
187.888.09
Real estate mortgages receivable
S
Net worth
$
601.164.52
Autos and other personal property
i
60,000.00
Total liabilities and net worth
' s
789,042.61
Cash value, life insurance
$
11,255.65
Other assets, itemize
$
General information
Total assets
$789,042.61
Are any assets pledged? (Add
schedule)
No
Are you a defendant in any suits or
legal actions?
Yes
Contingent Liabilities
Have you ever taken bankruptcy?
—
No
As endorser, comaker or gurantor
$
On leases or contracts
$
.
Legal Claims
$
.
Provisions for Federal Income Tax
$
Other special debt
$
-
1
623
GWIN-All Investment Accts
Security
Portfolio Value Report
(Includes unrealized gains)
• Estimated Pnces
Shares Curr
Cost Basis Gain/Loss
AGAAX
CSTGX
IBM
IBM Tax Defer
ILCIX
iSCIX
MOQRX
Merrill Lynch Growth
T. Rowe Price
-Cash-
TOTAL Investments
Page 1
Balance
588.582
18.740
10.000.00
1.030 03
11.030.03
2.881 577
30.210
70.056,49
16.995.95
87.052 44
1.337.601
105 3/4
60,285.38
81.16597
141,451 35
2.356.314
16.800 •
34.295.46
5.290.62
39,586 08
723.887
29.230
15.446 66
5.712.55
21,159.21
1.775.298
27.360
42.156.86
6.415.31
48,572 17
291738
30.510
748.92
8.13675
8.885.67
1.191.000
28.180
29.660.01
3.902.37
33.562.38
452.694
27.320
10.000.00
2.367.60
12.367 60
112.140
1.000
112.14
0.00
112.14
272,761.92
131.017.15
403.779.07
624
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 amount of time devoted to each.
I have given much time to programs benefitting less advantaged persons. I served for
more than six years on the Board of Trustees of Canton Croup Home, Inc. (Pathway),
which operates group homes and referral services for children involved in abuse or
criminal situations. This responsibility involved monthly meetings to track the
governance of the program together with time spent on activities needed for fund
raising.
I served more than five years on the Canton Fair Housing Commission. This
commission sought fair housing for all citizens. This responsibility required monthly
meetings and special meetings to review Fair Housing Enforcement.
I served for more than five years as a member of Central Mental Health Agency, Stark
County's largest provider of mental health services. Central Mental Health provides
most of these services to the poor. This responsibility involved monthly meetings and
committee meetings to monitor the program.
I was a founding trustee of the Urban Family Life Institute. It gives advice, food, and
other services to disadvantaged families. The Urban Family Life Institute tries to change
destructive patterns of behavior.
For more than six years, I have served as a member of the United Way Community
Planning Committee, which reviews and makes grant of seed monies to community
programs for the disadvantaged. This responsibility requires monthly meetings and
other reviews of applicants for funding.
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 the practical implementation of
membership policies? If no, list, with dates of membership. What you have done to
try to change these policies?
I do not currently belong nor have I ever belonged to any organization that
discriminates on the basis of race, sex, or religion.
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
625
and (including the circumstances which led to your nomination and interviews in
which you participated).
U.S. Senator John Glenn has used a selection commission to screen applicants for
appointment to the federal courts and to make recommendations concerning the same.
The Committee has two Democrats, two Republicans and is headed by former Ohio
Attorney General Anthony Celebrezze, Jr.
This Commission solicited applications from all persons who had expressed an interest
in appointment to the district court in recent years. The press reported about this
selection process. The Commission then received a large number of its long application
form. The Commission also solicited comments concerning applicants. After this, the
Commission narrowed the field to between 12 to 15 applicants. The Commission then
interviewed these persons. After interviewing these applicants, the Commission me first
for this position on the U.S. District Court. I am told that this Commission unanimously
selected me for this position.
Near May 1 5, 1 997, Ohio Senator John Glenn adopted this Commissions
recommendation and sent a letter supporting me for appointment. Subsequently, I have
been interviewed by representatives of the Department of Justice, the F.B.I, and the
American Bar Association.
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.
I have not discussed any pending case, legal issue, or question with anyone involved
with the selection process in a way that could reasonably be interpreted as asking how I
would rule on such case.
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;
20
626
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 overnight responsibilities.
Article III, Section 2 of the U.S. Constitution gives judges power over 'Cases, in Law
and Equity ♦ ♦ ♦' With this grant, the Constitution says Courts should decide real
disputes between parties with real interest. Judges should decide the issues at hand and
the case at hand.
Courts function best when judges make narrow decisions on the faas and law of
individual cases. Litigants have real interests that should not be subsumed to some
agenda of the judge. They need to feel that their case was decided upon the law and
facts of their case. Parties should not feel that outside influence or issues decided their
case.
Judges should maintain the quality of impartiality. They lose the perception of fairness
if litigants or the public believe that they decided the case on matters other than the
merits of the parties' case and on the law. Also, Judges lose the perception of fairness if
the parties or the public sees judges as deciding cases on a whim.
Stare decisis is the preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles. It fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial process. Stare
decisis is specially important in cases involving property and contract rights, where
reliance interests are involved.
Judges should use care in the exercise of their authority.
21
627
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Richard Conway Casey
Address: List current place of residence and office
address (es) .
Office: Brown & Wood
One World Trade Center
New York, New York 10048
Residence: New York, New York 10022
Date and place of birth:
January 19, 1933; Ithaca, New York
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Divorced.
Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
College of The Holy Cross, September 1951 to June 1955.
Received a B.S. Degree on June 8, 1955.
Georgetown University Law Center, September 1955 to
January 19 58. Received LL.B. Degree on February 1,
1958.
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.
Answer: During my law school career, I accelerated my
academic program and attended school year-round. The only
employment that I had during law school was when I worked
during two Christmas seasons as a clerk at The Georgetown
Men's Shop.
From April 1958 through approximately June 1958, I
served as a legal investigator for the District Attorney's
Office, New York County.
628
From June 1958 through December 1958, I served in the
United States Army.
From June 1959 to September 1963, I served as Assistant
United States Attorney, Southern District of New York.
From September 1963 until June 1964, I served as
Counsel to Special Commission of the State of New York.
From July 1964 to the present, I have been associated
with, and a partner of, the law firm of Brown & Wood, New
York City, New York (the firm had different names during
this period). I was hired as an associate in 1964, and was
made a partner on January 1, 197 0. I became Of Counsel to
the firm in 1984.
I am a member of the Board of Directors of Guiding Eyes
for the Blind, Catholic Guild for the Blind and Ski for
Light.
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.
Answer: I served in the United States Army from June
1958 to December 1958. I was released from active duty as a
PFC, and remained in the reserve affiliated with the
National Guard of New York. From October 1, 1961, to August
1962, I returned to active duty during the Berlin Crisis,
and held the rank of Specialist 4th Class (E-4) while
serving at Fort Knox, Kentucky. I was honorably discharged
in the summer of 1963. My serial number was NG 21-992-946.
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Georgetown University Law Center
1956: Beaudry Cup Winner (best Moot Court argument.
Freshman Class) .
1957-1958: Finalist, National Moot Court Competition.
College of the Holy Cross:
Freshman Class President, Varsity Football Letter
and Purple Key Honor Society.
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
629
Member, Association of the Bar of the City of New York
Member, The Special Commission for Discovery Abuse in
the Eastern District of New York, 1979-1980, appointed by
Chief Judge Jack B. Weinstein.
Member, The Special Committee on Discovery Abuse,
1975-1979, appointed at the request of Chief Justice Warren
Burger.
Chairman, Forum on Securities Litigation of the Bar
Association for the State of Colorado, 1976.
Chairman, American Bar Association Committee on
Securities Litigation, 1975-1977.
Panelist, American Bar Association Litigation
Section Panel on Discovery Abuse, 1975.
Member, Southern District of New York Trial and
Appellate Panel established under Federal Criminal Justice
Act, 1964-1984.
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 do not belong to any organizations that are active in
lobbying before public bodies.
The other organizations to which I belong are:
Member, Board of Directors, Guiding Eyes for the Blind.
Member, Board of Directors, Catholic Guild for the Blind.
Member, Holy Cross Alumni of New York.
Member, American Association of the Sovereign Military Order
of Malta (Knights of Malta) .
Member, Board of Directors, Ski for Light.
Member, Friendly Sons of St. Patrick.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and laps^ if
any such memberships lapsed. Please explain the reat.'^^for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Admitted to the Bar of the State of New York, Second
Department, on July 1, 1959
Admitted to the Bar of the United States Court of
Appeals for the Second Circuit in May, 1960
Admitted to the Bar of the United States District Court
for the Southern District of New York on June 11,
1963
Admitted to the Bar of the United States Court of
Appeals for the Fifth Circuit in March, 1973
Admitted to the Bar of the United States District Court
for the Eastern District of New York on No.vember 9,
1989
630
Admitted before the Supreme Court of the United States
of America on May 26, 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 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.
None.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent (but I am blind); December, 1996.
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) 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.
Assistant United States Attorney, appointed by William P.
Rogers and subsequently by Robert F. Kennedy (deceased) ;
Counsel to a Special Commission of the State of New York
appointed by Chairman Herman Stitchman (deceased) .
631
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;
No
2. whether you practiced alone, and if so, the
addressees and dates;
No
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;
Answer: From June 1959 to September 1963, I served as
Assistant United States Attorney, Southern District of New
York (currently located at 1 St. Andrew's Plaza, New York,
New York 10007) .
From September 1963 until June 1964, I served as
Counsel to a Special Commission of the State of New York
(Moreland Act Commission) to investigate public corruption.
From July 1964 to the present, I have been associated
with and a partner of the law firm of Brown & Wood, New York
City, New York (the firm had different names during this
period) . I was hired as an associate in 1964 and was made a
partner on January 1, 1970. I became Of Counsel to the firm
in 1984.
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?
Answer: From 1959 to 1963, as Assistant United States
Attorney in the Criminal Division, my practice involved
prosecuting Federal crimes.
From September 1963 to June 1964, as Counsel to Special
Commission of the State of New York, I investigated public
corruption.
632
From July 1964 to the present, my practice has
consisted of securities, corporate and criminal litigation.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
Answer: In private practice, my typical clients have
included numerous investment banking firms, corporations and
individuals employed in the financial services and other
industries. I have specialized in securities, corporate and
criminal 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.
Answer: My practice from 1959 through 1963 was
exclusively criminal, and the nature of the practice as
Assistant United States Attorney required that I be in court
on almost a daily basis. After I entered private practice,
my practice was predominantly civil in nature and as a
result, the appearances in court were less frequent.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
Answer; Over my entire professional career, my
appearance in courts has been predominantly (approximately
90%) in Federal courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
Answer: Since leaving the United States Attorney's
Office, my practice has been approximately 90% civil and 10%
criminal 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.
Answer: Approximately 40 as chief counsel and/or sole
counsel and I was co-counsel or associate counsel on an
additional 5 cases.
633
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
Answer: 95% of the trials were by jury, and 5% were
non-jury.
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, addressees, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
Criminal Litigation
My tenure at the United States Attorney's Office
in New York City included, among various other
prosecutions, my prosecution of three Russian spy
cases listed below.
1. United States v. Sob! en. 60 CR 996 (1961)
(U.S.D. C. -S.D.N. Y. ) (sentencing opinion written by
Judge Her lands appears in United States v. Soblen,
199 F. Supp. 11 (1961) ) .
a) Dates of Action/Decisions: The trial
lasted approximately one month in or about
June, 1961. After trial by jury before the
Honorable Judge Herlands, the defendant was
found guilty of espionage. The conviction
was affirmed on appeal and certiorari was
denied by the Supreme Court of the United
States.
b) Court and Judge: The case was tried before
the United States District Court for the
Southern District of New York, the Honorable
William Herlands, District Judge, presiding.
c) Parties to the Litigation; Dr. Soblen,
along with 18 unindicted co-conspirators, was
charged with espionage.
8
634
d) Summary of Case/Significance; As Assistant
United States Attorney and lead counsel, I
prosecuted Dr. Soblen for espionage. The
case disclosed a network of Soviet spy
activity in the United States that was, as
Judge Herlands noted in his sentencing
opinion, "conceived by the Secret Police of
Soviet Russia" and "executed through the
active connivance and financial support of at
least two high-ranking Soviet diplomats." 199
F. Supp. at 13.
e) Co-Counsel/Opposina Counsel; My co-counsel
was David R, Hyde (currently a retired
partner with the law firm of Cahill Gordon &
Reindel, 8 0 Pine Street, New York City, New
York 10005 (tsl. (212) 701-3000)). The
defendant was represented by Mr. Joseph
Brill, a sole practitioner formerly residing
at 66 Pinebrook Boulevard, New Rochelle, New
York, and by Mr. Jacob W. Friedman, a sole
practitioner formerly residing at 295 St.
John's Place, Brooklyn, New York. Neither
Mr. Brill nor Mr. Friedman is currently
listed in the Martindale-Hubbell Law
Directory. I do not know the current
whereabouts of these gentlemen, or whether
they are still alive.
2. United States v. Zborowski. CR 156-113 (1962)
(U.S.D.C.-S.D.N.Y. )
a) Dates of Action/Decisions: The trial was
conducted during the autumn of 1962. After
trial by jury before the Honorable Judge
Richard Levet, the defendant was found guilty
of perjury.
b) Court and Judge; The case was tried before
the United States District Court for the
Southern District of New York, the Honorable
Richard Levet presiding.
c) Parties to the Litigation; The defendant
was Mark Zborowski, a Soviet espionage agent
who was charged with perjury.
d) Summary of Case/Significance; As Assistant
United States Attorney and lead counsel, I
prosecuted retrial of the defendant for
perjury. The defendant was a Soviet spy who
had perjured himself before a grand jury by
635
denying that he knew another Soviet spy. The
second spy ultimately testified against Mr.
Zborowski at trial. The case was retried
after his original conviction had been set
aside by the Court of Appeals for the Second
Circuit.
e) Co-Counsel /Opposing Counsel: Counsel for
the defendant was Frederick S. Nathan
(currently with the law firm of Kelley, Drye
& Warren, 101 Park Avenue, New York City, New
York 10178 (tel. (212) 808-7800)).
3. United States v. Drummond, 62 CR 910 (1963)
(U.S.D.C.-S.D.N. Y. ) (no reported opinion).
a) Dates of Action/Decisions: The trial
lasted approximately one month in or about
July, 1963.
b) Court and Judge: The case was tried before
the United States District Court for the
Southern District of New York, the Honorable
Thomas Murphy, District Judge, presiding.
c) Parties to the Litigation: The defendant
was Mr. Nelson Drummond, a Chief Petty
Officer in the United States Navy,
d) Summary of Case/Significance: As Assistant
United States Attorney, I, along with my co-
counsel, prosecuted the defendant for
espionage for attempting to deliver military
secrets to agents of the former Soviet Union.
The first trial of the defendant occurred in
or about May, 1963, and resulted in a
mistrial due to the inability of the jury to
reach a verdict. The case was re-tried in
July 1963 and the defendant was found guilty
of conspiracy to commit espionage.
e) Co-Counsel /Opposing Counsel: My co-counsel
were Vincent L. Broderick (now deceased) , and
John S. Martin (currently, a United States
District Court Judge in the Southern District
of New York, U.S. Courthouse, 500 Pearl
Street, New York City, New York 10007 (tel.
(212) 805-0228)). Defending Mr. Drummond was
Mr. William Chance (deceased) .
10
636
civil Litigation
My civil litigation experience has been primarily
in the areas of securities and commodities fraud
cases brought by customers of brokerage and
investment banking firms, including, among others,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") . The seven cases set forth
below are a fair representation of my private
practice.
4. Sinva. Inc. v. Merrill Lynch, 65 Civ. 1566
(U.S.D.C.-S.D.N. Y. ) (a reported decision, with
respect to defendant's motion to dismiss the
complaint or stay the action pending arbitration,
appears at 253 F. Supp. 359 (1966)),
a) Dates gf Action/Decisigng: The case,
through the initial complaint and subsequent
trial, extended from 1965 through 1969.
b) Court and Judge; The case was tried before
the United States District Court, Southern
District of New York, the Honorable Dudley
Bonsai, District Judge, presiding, and was
retried before the Honorable Lloyd McMahon,
presiding.
c) Parties to the Litigation; The plaintiff
to the civil suit was Sinva, Inc., a
Panamanian corporation with its headquarters
in Berne, Switzerland, and Merrill Lynch.
d) Summary of Case/Significance; I was the
lead counsel for the defendant, Merrill Lynch
in a commodities fraud action brought by a
Merrill Lynch customer in connection with
losses suffered by the customer in sugar
futures contracts. The first trial ended in
a mistrial, due to the inability of the jury
to reach a verdict. The second trial
resulted in a verdict for the defendant
Merrill Lynch. The significance of the case
lies in the fact that it was a successful
defense of a complex commodities futures
contracts case before a jury.
e) Co-Counsel /Opposing Counsel; My co-counsel
was Robert A, Foy, currently located at 90
South Bedford Road, Mt. Kisco, New York 10549
(tfil. (914) 666-7393). Counsel for the
plaintiff Sinva, Inc. were Lawrence P.
11
637
McGauley, (current address unknown) and John
G. Lipsett (currently with the law firm of
Forsythe, Holbrook, Seward & Bovone, 420
Lexington Avenue, New York, New York 10170
(teJL. (212) 867-8280)).
5. Dunn V. Merrill Lynch, 64 Civ. 1285 (The only
reported decision in the case, relating to the
recovery by Merrill Lynch of the actual expenses
for flying in witnesses subpoenaed by the
plaintiff, appears at 279 F. Supp. 937 (1968)).
a) Dates of Action/Decisions: The complaint
against Merrill Lynch was filed in 1964, and
the case ultimately decided in February,
1968.
b) Court and Judge; The case was tried before
the United States District Court for the
Southern District of New York, the Honorable
Milton Pollack, District Judge, presiding.
c) Parties to the Litigation: The plaintiff
was Burton D. Dunn, an investor residing in
France, who employed Merrill Lynch as his
broker during the early 1960s.
d) Summary of Case/Significance: As counsel,
I represented Merrill Lynch in an action
brought by a customer who sustained losses
through his investment in the common stock of
Syntex Corporation. Mr. Dunn sued Merrill
Lynch under a theory of common law securities
fraud and negligence under the Securities
Exchange Act of 1934, which was tried before
a jury and ultimately resolved in favor of
the defendant Merrill Lynch. The case
presented an original attack on the
reasonableness of investment recommendations
provided by a broker and involved the
explanation of both "technical" and
"fundamental" factors supporting such
research to a jury.
e) Co-Counsel/Opposing Counsel; Assisting me
from Brown & Wood, One World Trade Center,
New York City, New York 1004 8 was Henry F.
Minnerop (tal. (212) 839-5555). Counsel for
the plaintiff was John F. McNeill, of the law
firm of Stone, Malone, Driver & McNeill,
formerly at 12 0 Broadway, New York City, New
York. The firm has disbanded, and there is
12
638
currently no listing for Mr. McNeill in the
Martindale-Hubbell Law Directory.
6. Simon v. Merrill Lynch, Civ. No. 34094
(Michigan)/ Misc. 675, Civ. Action No. CA 3-4273
(Texas) .
a) Dates of Action/Decisions: The suit was
initiated on December 16, 1969, and was
conducted through August, 1972. The sole
reported decision in this case denying class
action status and upholding the judgment in
favor of defendant, Merrill Lynch, was
affirmed by the United States Court of
Appeals for the Fifth Circuit reported at 482
F.2d 880 (1973) .
b) Court and Judge: The case was first tried
before the United States District Court for
the Eastern District of Michigan, Southern
Division, and was subsequently transferred to
the United States District Court for the
Northern District of Texas, Dallas Division.
The case was tried without a jury to the
Honorable Ernest J. Guinn, District Judge,
who rendered a judgment in favor of the
defendant, Merrill Lynch.
c) Parties to the Litigation: Plaintiffs
James Simon and The Bank of the Commonwealth
were two representatives of a purported class
(of approximately 6,000 individuals)
allegedly injured by the advice of defendant
Merrill Lynch with respect to the stock of
Scientific Control Corporation
("Scientific") .
d) Summary of Case/Significance: This case
was one of three cases in which I was lead
counsel to Merrill Lynch and one of its
employees that arose out of allegedly
improper and misleading investment advice
provided by employees of Merrill Lynch with
respect to the stock of Scientific, a Dallas
corporation which filed for bankruptcy after
having been favorably described in research
reports of Merrill Lynch. In the Simon case,
the plaintiffs attempted to certify their
claims as those of a class of plaintiffs.
The Simon case (as well as the other related
Scientific cases) was notable both for the
allegations of pervasive and substantial
13
639
fraud by Merrill Lynch 's sales
representatives, as well as the novel attacks
by both private plaintiffs and the United
States Securities and Exchange Commission
alleging that Merrill Lynch 's "inadequate"
securities research was a violation of the
Securities Exchange Act of 1934. ,
e) Co-Counsel /Opposing Counsel: Merrill
Lynch 's local counsel of record in Michigan
were Erwin S. Simon and Douglas G. Graham, of
the law firm of Butzel, Levin, Winston &
Quint (now Butzel & Long), Suite 900, 150
West Jefferson, Detroit, Michigan 48226 (tsl.
(313) 225-7000). Merrill Lynch • s local
counsel of record in Texas was Frank Finn, of
the law firm of Thompson, Knight, Simmons &
Bullion (now Thompson & Knight) , 330 First
City Center, 1700 Pacific Avenue, Dallas,
Texas 75201 (tfil- (214) 969-1700) . William
H. Merrill (current address unknown) and
Robert R. Bradshaw, currently of the law firm
of Babb & Bradshaw, P.C., 905 Congress
Avenue, Austin, Texas 78767 (t£l. (512) 457-
0188) were counsel for the plaintiffs.
7. Santilli v. Merrill Lynch ^ Civ. No. 4469
(U.S.D.C. -D.R.I.) (No reported decisions.)
a) Dates of Action/Decisions: The action was
instituted on December 4, 1970. A verdict in
favor of the defendant Merrill Lynch was
issued on February 29, 1972.
b) Court and Judge: The case was tried before
a jury in the United States District Court
for the District of Rhode Island, the
Honorable Edward W. Day, District Judge,
presiding.
c) Parties to the Litigation; Plaintiff
Anthony Santilli was an individual investor
who employed Merrill Lynch as his broker-
dealer.
d) Summarv of Case /significance: As lead
counsel in the Santilli case, I defended
Merrill Lynch against charges that the sale
of Scientific stock to the plaintiff was by
fraudulent and negligent representations as
to the value and safety of such stock by one
of Merrill Lynch 's employees.
14
640
e) Co-Counsel/Opposing Counsel: Assisting me
from Brown & Wood, One World Trade Center,
New York, New York 10048 was Henry F.
Minnerop (t£l. (212) 839-5555) . Local
counsel of record for Merrill Lynch in Rhode
Island was Richard M. Borod, of the law firm
of Edwards & Angell, 2700 Hospital Trust
Tower, Providence, Rhode Island 02903 (t£l.
(401) 274-9200) . Counsel for the plaintiff
was John P, Bourcier (a sole practitioner) ,
with his offices formerly located at 1000
Smith Street, Providence, Rhode Island. There
is currently no listing for Mr. Bourcier in
the Martindale-Hubbell Law Directory.
8. In the Matter of Merrill Lynch , Pierce, Fanner
& Smith. Inc. , Administrative Proceeding File No.
3-4329 before the United States Securities and
Exchange Commission (the "SEC") (reported in SEC
Release No. 34-14149 (1977)).
a) Dates of Action/Decisions: The SEC issued
an order on June 10, 1970, directing a
private investigation of Merrill Lynch to
examine allegations of alleged fraud in
trading the stock of Scientific. On June 22,
1973, the SEC issued an order for a public
proceeding against Merrill Lynch and 49
individuals (either current or former
employees of Merrill Lynch) . The proceeding
commenced in March 1974 and, after hearings
lasting over a two-year period, resulted in a
settlement with the SEC effective November 9,
1977.
b) Court and Judge: The proceeding was tried
before Sidney Ullman, an Administrative Law
Judge of the SEC. The trial was completed on
November 2, 1977.
c) Parties to the Litigation: SEC, Merrill
Lynch and 49 individuals (either current or
former employees of Merrill Lynch) .
d) Summary of Case/Significance: The SEC
Order charged Merrill Lynch and its employees
with fraud in the solicitation and trading of
the stock of Scientific, and inadequate
research on behalf of its research department
in recommending the purchase of Scientific
stock. I was lead counsel for Merrill Lynch
and several of its employees during the
15
641
proceedings. At the time the proceeding was
brought, I believe that it was the largest
(with several hundred witnesses) and most
extensive administrative proceeding ever
brought against any broker-dealer by the SEC.
It was also the first time that the SEC had
charged that inadequate research in
recommending the purchase of a security was a
violation of the Securities Exchange Act of
1934.
e) Co-CounseT /Opposing Counsel: I was the
lead counsel on behalf of Merrill Lynch and
most of the individual respondents, with the
exception of David Phelps (who was
represented by Otto G. Obermaier (currently
with Weil, Gotshal & Manges, LLP., 767 Fifth
Avenue, New York City, New York 10153 (tglt
(212) 310-8843)) and Robert Morvillo,
(currently with the law firm of Morvillo,
Abramowitz, Grand, lason & Silberberg, 565
Fifth Avenue, 10th Floor, New York City, New
York 10017 (t£l. (212) 856-9600))); Richard
J. Murphy (who was represented by Arthur F.
Mathews of the law firm of Wilmer, Cutler &
Pickering, 2445 M Street, N.W. , Washington,
D.C. 20037 (tsl. (202) 663-6000), and Mary A.
McReynolds (current address unknown) and John
J. Ruzicka (who was represented by Mahlon M.
Frankhauser, currently with the law firm of
Kirkpatrick & Lockhart, 1800 Massachusetts
Avenue, N.W. , Suite 200, Washington, D.C.
20036-1800 (t£l. (202) 778-9000). The SEC
was represented by, among other individuals,
John F.X. Peloso (currently with Morgan,
Lewis & Bockius, 101 Park Avenue, New York
City, New York 10178 (tel. (212) 309-6000)),
Michael T. Gregg (currently Senior Vice
President, Law Department, Dean Witter
Reynolds, Inc., 2 World Trade Center, 4th
Floor, New York City, New York 10048 (tgl-
(212) 392-2222)), Steven J. Glusband
(currently with Carter, Ledyard & Milburn, 2
Wall Street, New York City, New York 10005
(tel. (212) 732-3200)) and Thomas F. Egan
(currently with the brokerage firm of Langdon
P. Cook, 100 Park Avenue, New York City, New
York 10017 (t£l. (212) 682-7074)).
9. T.oeb v. Mprrin Lvnch ■ 79 Civ. 0788 (U.S.D. C.-
D.N. J.) (no reported decision).
16
642
a) Dates of Action/Decisions; The action was
commenced on March 20, 1979 and was concluded
on December 31, 1980, with a judgment
rendered in favor of my client, the defendant
Merr ill Lynch .
b) Court and Judge; The case was tried before
the United States District Court for the
District of New Jersey, the Honorable
Frederick B. Lacey, District Judge,
presiding.
c) Parties to the Litigation: The plaintiff
in the action was Mrs. Else Julie Loeb, an
investor, against Merrill Lynch.
d) Summary of Case/Significance: I was lead
counsel for defendant Merrill Lynch in a suit
brought by a private investor alleging
misrepresentation, securities fraud and
allegations of unauthorized securities
trading by defendant. The plaintiff sought
compensatory damages in excess of $5 million.
The case was decided in favor of the
defendant with costs assessed against the
plaintiff. The significance of the case was
in the difficulty of trying, before a jury, a
complex case involving a knowledgeable, but
sympathetic plaintiff.
e) Co-Counsel /Opposing Counsel: Assisting me
from Brown & Wood, One World Trade Center,
New York City, New York 10048 were A. Robert
Pietrzak (tel. (212) 839-5537) , Judith Welcom
ftel. (212) 839-5362) and Kent E. Daiber
(current address unknown) . The local counsel
of record for defendant Merrill Lynch was
John L. Moore (deceased) . Counsel to the
plaintiff was John J. LaFianza of the law
firm of LaFianza & Auriginma (deceased) , and
Harry L. Carman (current address unknown) .
10. Schwarz v. Dean Witter Reynolds, Inc.,
82 Civ. 0452 (U. S . D. C. -S . D. N. Y . ) (no reported
decision) .
a^ Dates of Action/Decisions: The action
commenced on April 13, 1982. No decision was
rendered, since the case was settled on the
eve of trial during the summer of 1983.
17
643
b) Court and Judge: The case was before the
United States District Court for the Southern
District of New York, the Honorable Robert
Carter, District Judge, presiding.
c) Parties to the Litigation: The plaintiff,
Mr. Fred Schwarz, was a client of Dean
Witter; the defendants were Dean Witter
Reynolds, Inc., a brokerage firm ("Dean
Witter") and Palomba Weingarten, the
individual broker who serviced Mr. Schwarz 's
account,
d) Summary of Case/Significance: I was lead
counsel for the defendant Dean Witter in a
case brought by a customer of the defendant
under Section 10(b) of the Securities and
Exchange Act of 1934, alleging securities
fraud and misrepresentation.
The significance of the action is that the
case involved extremely complex option
trading as well as alleged unauthorized
trading and misrepresentations.
e) Co-Counsel/Opposing Counsel: Counsel for
the co-defendant Palomba Weingarten was Debra
Brown Steinberg, currently with the law firm
of Cadwalader, Wickersham & Taft, 100 Maiden
Lane, New York City, New York 1003 8 (tfil.
(212) 504-6000) . Counsel for plaintiff was
Richard Kraver (deceased) .
See Attachment A for list of Professional References.
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.)
Answer: Some of the most significant litigation that I
handled, apart from the cases discussed in question 17
above, include representation of Merrill Lynch in private
civil suits (which were settled) and in administrative
proceedings before the U.S. Securities and Exchange
Commission entitled In re Douglas Aircraft. They were one
of the first significant insider trading cases. In
addition, I was counsel in the New York City Municipal
Securities litigation, representing Merrill Lynch & Co. as
defendant. The case involving my client was ultimately
18
644
settled. I tried numerous arbitration and administrative
proceedings, which include administrative proceedings before
the U.S. Securities and Exchange Commission, and
arbitrations before securities self-regulatory bodies such
as the National Association of Securities Dealers, Inc., the
American Stock Exchange, and the New York Stock Exchange.
19
645
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.
As disclosed on the financial forms below, I have vested
interests in two Brown & Wood retirement plans (the Brown &
Wood Profit Sharing Retirement Plan and the Brown & Wood
Defined Benefit Plan) , as well as an IRA. I receive a salary
from Brown & Wood that will terminate upon my accepting any
other position. I currently receive tax-free income from a
disability insurance arrangement in an amount equal to
$50,829.24 per annum, which will continue until age 65.
Other than these arrangements, I do not anticipate any other
benefits from my current professional relationship.
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 do not believe that there will be any potential conflicts
of interest arising out of my professional and charitable
obligations. However, if there are, in an exercise of
caution, I would follow the Code of Judicial Conduct and
recuse myself from any matter that could pose a potential
conflict.
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 (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 Attachment B.
20
646
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See Attachment C.
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.
No.
21
647
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 amount of time devoted to each.
Answer: I served on the Federal Criminal Justice Act
Indigent Panel for the Southern District of New York and for
the Second Circuit for Trial and Appeals from the mid-1960 's
to late 1970's.
I served again during the early 1980 's on the Federal
Criminal Justice Act Indigent Panel for the Southern
District Court of New York.
During the late 1960 's and early 1970' s, I served on
the Assigned Counsel Panel for Indigent Defendants in
criminal cases in Nassau County, New York.
I have handled numerous trials and appeals, on a pro
bono basis, (including U.S. v. McBryde, U.S. v. Tucker, U.S.
V. Coppin and U.S. v. Stransky^ , before the federal courts.
From 1983 to 1991, I served as Assigned Counsel on a civil
case under the Civil Rights Act in the United States
District Court for the Eastern District of New York.
I am responsible for Brown Wood representing the U.S.
Blind Golfers Association in connection with their
application for 501-C3 status as a not-for-profit
organization.
I am a member of the Board of Directors of Guiding Eyes
for the Blind.
I am a member of the Board of Directors of Ski for
Light.
The American Bar Association 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 the practical implementation of
membership policies? If so, list, with dates of membership.
What you have done to try to change these policies?
22
648
Answer ; To the best of my knowledge, the only
organizations that I have been a member of that could
possibly be viewed as discriminatory (if the organizations
listed below are, in fact considered to be discriminatory)
are the following:
Boy Scouts of America (terminated my association in the
1940s)
Knights of Columbus (terminated my association in the
1950s)
The Friendly Sons of St. Patrick (current member)
In addition, I was a member of a private country club
(the Creek Club, Locust Valley, New York) from 1974 to
1985. I do not believe that the membership policies of
the Creek Club during that time, nor currently, are
discriminatory .
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) .
Answer: Senator D'Amato has a Committee to recommend
judicial nominees. I submitted an application to that
Committee and was interviewed by them on March 26, 1997.
This committee recommended my candidacy to Senator D'Amato.
Senator D'Amato subsequently designated me for a vacancy on
the U.S. District Court for the Southern District of New
York. I also appeared before Senator Moynihan's Committee
on March 6, 1997. I do not know the recommendation of the
Committee, but I do know that Senator Moynihan has endorsed
my candidacy.
Between May and July, 1997, I was interviewed by the
Department of Justice, the Federal Bureau of Investigation
and the American Bar Association. Based on information and
belief, I received a favorable recommendation by all three
entities.
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.
23
649
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 is 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 .
Answer: Judging is inherently a reactive, not a
proactive, process. Federal judges are bound, in the words
of Article III of the United States Constitution, to resolve
"cases" and "controversies" properly appearing before them,
not to foment disputes or mandate policies that individual
judges find personally compelling. Federal judges have the
duty, while deciding the merits of a case properly before
them, to resolve the competing claims of litigants in a
manner consistent with precedent and with the terms of the
applicable statutes and the Constitution. Judges must
render decisions, and provide remedies, that are both lawful
and equitable for the individual parties, and do not usurp
the allocation of power among the executive, legislative and
judicial branches of the federal government. However, a
judge may not shirk a controversy that is properly before
his or her court, regardless of the identity of the parties.
The rights of the citizenry are ill-served if the courts
sacrifice their obligation to judge fairly between the
claims of competing parties, because one party is unpopular
24
650
or because a party may be an agency of federal or state
authority. Within the limited breadth of the judiciary's
authority, the courts have the obligation to interpret the
law, and to resolve the grievances of the parties to the
full extent that the law provides a remedy.
25
651
Attachment "A"
Thomas McC. SoTither, Esq. (212) 839-5846
Brovm & Wood LLP
One World Trade Center
New York, New York 10048
A. Robert Pietrzak, Esq. (212) 839-5537
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Laurel J. Southworth, Esq. (212) 839-5559
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Joseph W. Armbrust, Jr., Esq. (212 839-5390
Brown t Wood LLP
One V7orld Trade Center
New York, New York 10048
James D. Zirin, Esq. (212) 839-6576
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Andrew J. Maloney, Esq. (212) 839-5825
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Roger J. Hawke, Esq. (212) 839-5544
Brown & Wood LLP
One World Trade Center
New York, New York 1004 8
Kenneth J. Kornblau, Esq. (212) 839-5529
Brown & Wood LLP
One World Trade Center
New York, New York 10048
652
John J. Kilkenny, Esq. (212) 449-9513
Vice President and Senior Counsel
Merrill Lynch
World Financial Center, North Tower
250 Vesey Street - 12th Floor
New York, New York 10281-1312
Daniel Dolan, Esq. (212) 449-1260
Vice President and Assistant General Counsel
Merrill Lynch
World Financial Center, North Tower
250 Vesey Street - 12th Floor
New York, New York 10281-1312
AOlO M
653
FINANCIAL DISCLOSURE REPORT
Nomination Report
Attachment B
Report Required by the EAics
Reform Aa of I9S9. Pub L No.
101194. November 30. 19S9
(5 V.S.C. App. 4 . Sec. I0I-II2)
1. Pmn IcpMtlng (Lan name. fint. nmLOe initial)
Casey, Richard C.
2. Couil or OrjmJxatioo
O.S. District Ct. (S.D.N. Y.)
3. Date of Report
07/16/1997
4. nh (Artlde Uljudtes Indicaie active or
tenior nana, mafistraie judfa imBcatt
fia- orpatt-diK)
Judicial Nominee
S. Rtport Tjrpt (dKck type)
X Nomiaiion. Dw 07 //t / 17
01/01/1996
to
lojiiil Amual Final
12/31/1996
7. ChaAcn or OOn Addrcs
%Brown & Wood
1 World Trade Center
Mew York, New York 10048
t. On (he Iwslf of the tarfoniuuikia mntilnril In this Report and an;
modlDcatloos pertxtnJnf thereto, li b In m; opinion. In compliance
with appUcihle Uwi and ntubUoaa.
Ktrfewliii Ofdeer Dale
aiPOKTANT NOTES: Tlu iiatructlats accompanyiitt Ms form must be Jdttmitd. Complete all para.
diecHiit the NONE bm fi)r each lection where you bare no reportable infDrmallon. Spt an the last pa/e.
L POSITIONS (Keportii>t indimtuil only:
posmoN
NONE (No repoitlHe poiiliiKis.)
1 Of Counsel
2 Member, Board of Directors
3 Member, Board of Directors
epp. 9-13 of Initnictions)
□
NAME OF ORGANIZATION / ENTITY
Brown & Wood, 1 World Trade Center, NY NY 10048
Guiding Eyes for the Blind
Catholic Guild for the Blind
n. AGREEMENTS lfteponlKtlndMdKalaiity:utpi).l4-l7cfliutTuaiau.)
DATE PARTIES AND TERMS
n
NONE (NoiepoinMe
Brown & Wood Profit Sharing Retirement Plan
Brown & Wood Defined Benefit Plan
in. NON-INVESTMENT INCOME
DATE
(Kepofting individual and spouse: see pp. 18-25 of Instruaians.l
PARTIES AND TERMS
GROSS INCOME
_(y(Mn. not spoose's)
1996 Brown & Wood (compensation)
$
20", 622.0
1996 ONUM Long Term Disability Policy No.
0041501
$
50,829.2
654
FINANCIAL DISCLOSURE REPORT
Nunc of Person Repbraog
Casey, Richard C.
[>ice of Report i
07/16/199
IV. REIMBURSEMENTS and GIFTS - tramponuioii, lodjinj, food, enenunaaa.
^ulMda thou to spouie and depeiklaa diUdrtn; lat Uk /xmnthetkals '(5)' and '(DO' lo indicau rtporubU rtOnbummau and t^ rectivtd bf tpouse
a^ dependent diiUrm. raptaivet). See pp. 26-29 cflnaruaicm.)
'199 I
□SOURCE
NONE (No nich rcpomMe leimbunemeim or gifts)
DESCRIPTION
V. OTHER GIFTS
(htdudes those to spouse and dependent children; use the parentheticals '(S)' and '(DQ' to indicate other gifts received by spouse and dependent children,
respeaivety. See pp. 30-33 cf Instructions.)
□
SOURCE
NONE CNo such repomUc gifts)
DESCRIPTION
VI. LIABILITIES
ffnctudes those of spouse and dependent children; indicate where applicable, person responsible for liability by using the parenthetical '(S) 'for separate
liabUisy of the spouse, 'tJ}' for Joint liability of repotting individual and spouse, and 'ff>Q' for liability cf a dependent child. See pp. 34-36 of Instructions.)
CREDITOR
NONE (No reponable liabilities)
Dime Savings Bank
DESCRIPTION
VALUE CODE*
Cooperative Loan
;*VALCODES:J-$IS.000orless K=$IS,OOI-$50.000 L^SSO.OOI lo $100,000 M-S100,mi-CX),000 N=Q50.001-SSOO,000
! O'^SSOO.OOI-Sl.000,000 Pl°$1.000.a01-$3.000,000 P2=U,000.001-$U,000,000 P3-S2S.aaO,OOI-SSO.OOO,000 P4=SS0,000.001oriliore
655
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Casey, Richard C.
Vn. Page 1 INVESTMENTS and TRUSTS
Date of Rcpon
07/16/1997
- income, value, transaaions (includes those of spouse and
dependent children. See pp. 37-54 cf Instructions.)
A.
Description of Asseis
Indicate where applicable, owner of
the aster fry using the parenthetical
'Ui'forjoijtt ownership of reporting
individutil and spottse. '(S)'forsep-
erase ownership by spouse, '(DQ'
for ownership by depertdent child.
Place '00' t^er each asset
exempt from prior disclosure.
B.
Income
reporting
period
C.
Gross vtlue
It end of
reporting
period
D.
Trmnsactions during repotting period
(1)
Amt.
Code
(A-
H)
m
TVpe
(e.g..
dividend,
rent or
interest)
(1)
ViJue
Code
(J-P)
m
Vilue
Method
Code
(Q-W)
(1)
Type
(e.g..
buy. seU.
merger,
redemp-
tion)
If not exempt from disclosure
(2)
Date:
Month-
Day
(3)
Value
Code
(J-P)
(4)
Gain
Code
(A-H)
(5)
Identity of
buyer/seller
(if private
tituisactioo)
■ NONE (00 repomble income.issets. or
mnsacdoos)
1 75 shs Equity Income Fund 1st
Exchange Series
A
Dividend
J
T
2 260 shs Exxon Corp. Com.
A
Dividend
K
T
3 200 shs Fleet Financial Group
Inc. Com
A
Dividend
J
T
j
4 264 shs General Electric Corp.
Com
A
Dividend
K
T
1
5 350 shs Morgan Stanley Group
6.75% pfd. Depository
A
Dividend
J
T
redeem
53097
J
j
6 $50,000 f.a. Bell South Telecom
Notes 6.5* due 2/1/00
C
Interest
L
T
7 S25,000 AT t T Corp. Notes 7.125*
due 1/15/02
B
Interest
K
T
e Merrill Lynch, New York, NY 12771
shs CMA Money Hark Accoun
A
Dividend
J
T
9 Merrill Lynch IRA Retirement
Reserves 382.57 shs
A
Dividend
J
T
1
10 Merrill Lynch IRA 20,348 shs
Sel. Ten96B Dow Eq. Inc. Fnd
A
Dividend
K
T
1
i
11 Merrill Lynch IRA 9251.7973 shs
Eq. Inc. Fnd. Tele-Global
B
Dividend
J
T
1
i
1
12 Brown i Wood Retire. Plan
1134.518 shs Fidelity Magellan
A
Dividend
M
T
1
13 Brown I Mood Retire. Plan 2099.18
shs Fidelity Eq. Income
A
Dividend
H
T
'
14 Brown ( Mood Retire. Plan 4108.
594 shs Fidelity Inv. Bond
B
Interest 1 K
T
15 Brown ( Wood Retire. Plan 1064.
915 shs Fidelity Overseas
A
Dividend
K
T
16 Brown ( Wood Retire. Plan 9301.
59 shs Fidelity Hon. Mark
A
Dividend
J
T
T
- -
L,. ._.
-
1
17 Brown ( Wood Retire. Plan
1649.494 shs Fidelity Contrafund
A
Dividend 1 L
1 Inc/Oain Codes: A-=S 1 ,000 or less B-
Jl.OO
-$2,500
C=
J2.50I.]
5,000
>-j5,00
T-J"15T(S
OO E=$ 15,001 -$50,000
I 2 Val Codes: J-$lS,000or less
: (Col.Cl.D3) O=$500,00l-$1,000,000
i 3 Val Mth Codes: Q-Appraisal
(Col.CZ) U'Book Value
G"$l00.00l-$l.000.000 Hl=$l,000,00l-$5.000,000 H2-$5,000,00l or more
K-$I5.001-$50,000 L-$50,00 1 -$100,000 Mi$100,OOr$25'oSOO N=$250,OOl-$50O,000
PI-$1,000,OOI-$S.OOO.OOO P2=$5,000,00l-$25.000,000 P3-$25,000,001-$SO,000,000 P4=$50,000,001 or more
f'Cash/Matlcet
R-CosI (real estate only)
V-Othet
S>Asscssment
W-Eaimated
656
FINANCIAL DISCLOSURE REPORT
Nunc of Penon Repoiting
Casey, Richard C.
Date of Repon |
07/16/1997 i
- income, vabu, transactions (m^tdcs those of spouse and
Vn. Page 2 INVESTMENTS and TRUSTS dependent children. See pp. 37-54 1^ Instructions.)
A.
Descfqiboa of Assets
Indicate yAure applicable, owner of
the asset by using the parentheticai
'W 'far joint ownership cf reporting
individual and spouse. '(S)'/drsep-
eraie ownership by spouse, '(DQ '
far ownership by dependent child.
Place '00 ' f^ef 'och asset
exempt from prior disclosure.
B.
Income
reporting
period
C.
Gross vilue
■lender
rcponing
period
D.
Transactions during reponing period
(I)
Ami.
Code
(A-
H)
(2)
Type
(e.g..
interest)
(1)
Vilue
Code
(J-P)
(2)
Value
Method
Code
(Q-W)
(1)
Type
(eg..
buy. seU.
merger.
lion)
If not exempt from disclosure
m
Date:
MoMh-
Day
(3)
Value
Code
(IP)
(4)
Gain
Code
(AH)
(5)
Identity of
buyer/seller
(if piivaie
transaction)
■ NONE (00 reponable income, assets, or
tnnsactions)
18 Brown k Wood Defined Benefit Plan
A
Interest
J
H
1
I
i
1
1
; llnc/Gsin Codes: A-1 1,000 or less B=$l.001-$2.500 C=$2,501-
' (Col.Bl,D4) F-SSa.001-$l(XI,000 G^ 100,001 -SI, 000,000 HI4I,000.
S.OOO
S0I-I5.000.0(
D=-S5,00\-$I5.000 E=jr5,00l-$SO,000
DO H2=$5.000,001ormore
M=$IOO.OOI-$250,000 N-J250.00I-JSOO.OOO
0 P3-$25.000.001-$S0,000,000 P4=$50,000.001 or more
ZVJCodes: J-SI 5,000 or less K-$l5,00l-$50.000 L-J50,001-$iOO,000
(Col.CI.D3) O>J500,00l-Si.000.000 PI-$I,000,OOI-J5.000.000 P2-$5,000.001-S2J,000.00
1 3VilMthCo<les: Q-Appraisal R-Cost (ml csuie only) S-Assessmetlt T-Cash/Mailet
(Col.C2) U-Book Value V-Olher WEstlnuled
657
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Casey, Richard C.
vm. ADDITIONAL INFORMATION OR EXPLANATIONS.
NONE (No additional infomution or expUnalions.)
Date of Repon {
07/16/1997
(Indicate pan of report.)
RE: Schedule VII- Investments and Trusts:
RE: Item 18- Brown S Wood Defined Benefit Plan
The Plan is being terminated effective as of March 31, 1997 and once a determination letter has
been received from the Internal Revenue Service a distribution will be made to all participants
of their accrued, benefit .
FINANCIAL DISCLOSURE REPORT
SECTION HEADING, (indicate pan of repon.)
SECTION 1. POSITIONS (cont'd.)
Li . Position
Name of Person Reporting
Casey, Richard C.
Dale of Repon
07/16/1997
Name of Organization/Entity
4 Member, Board of Directors
Slci for Light
658
FINANCIAL DISCLOSURE REPORT
Nunc of Penon Reponiiig
Casey, Richard C.
Dsucof Rcpon
07/16/1997
K. 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 at the time after reasonable inquiry, I did not perform any adjudicatory
fimction in any litigation 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 the 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 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. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial Conference
regulations.
Signature
\'{...<X^ ^'''^U'yt^
Date 0-i/\e>lqi
Note:
Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative OfTice of the United SUtes Courts
One Columbus Ci^cl^ N.E.
Suite 2-301
Washington, D.C. 20S44
659
FTNANOAL STATIMENT
NET WORTH
Riphard Conway Casey
ftovide t complete, tuunit fininriil na worth nunoent which Iiemaes ja fti»n,i
all assers Qncludlng bank accounts, real estate, teamries. tnuts, inresirnaui, and other fiw.».-fB]
holdings) all liahilides Qneluding debts, moitgifBa, loans, and ertfaer ^"-niT ohiigadens) of
yoonelf, your spouse, and other irr<T-i'^f*t^in'-'r,h^^ gf yogr honcehald.
• See attached Statement
•• SSI shares of 41S/52 Owners Coop are pledged as collateral for coop lean
nade by Tne Dine Savings BanX.
660
RICHARD CONWAY
CASEY
I . Cash on hand and
in banks :
1. Chase Bank
New York, New York
Checking account
No. 001-287923
(balance as of
7/16/97)
$ 2,515.21
2. Merrill Lynch
New York, New York
CMA Account No .
840-99K26 (balance
as of 7/16/97)
$ 891.56
TOTAL:
$ 3,406.77
II. Securities:
1. Equity Income
Fund 1st Exchange
Series (unit
investment trust
formed from
interests in AT&T
and Bell affiliates
by Merrill Lynch
upon AT&T
divestiture)
75 shares (value as
of 7/16/97)
$ 7,040.00
2 . Exxon Corp .
Common
260 shares (value
as of 7/16/97)
$ 16,315.00
3 . Fleet Financial
Group Inc. Common
200 shares (value
as of 7/16/97)
$ 13,012.00
4 . General
Electric Corp.
Common
264 shares (value
as of 7/16/97)
$ 19,536.00
5. Bell South
Telecom Notes 6.5%
due 2/1/00
$50,000 face amount
(value as of
7/16/97)
$ 50,312.00
6. AT&T
Corporation Notes
7.125% due 1/15/02
$25,000 face amount
(value as of
7/16/97)
$ 25,718.00
7. Merrill Lynch
CMA Money Market
Account 840-99K26
(value as of
7/16/97)
$ 12,771.00
TOTAL LISTED
SECtJRITIES
$144,704 .00
661
8. 415/52 Owners
Corp.
851 shares
(cooperative
apartment)
$260, 000.00^
TOTAL XJNLISTED
SECURITIES
$260,000.00
III. Other tangible
personal property
Furniture,
furnishings and
personal effects
$ 20,000.00^
IV. Cash value of
life insurance
policies
$500,000 life
insurance policy
provided by Brown &
Wood to former
partners
No cash surrender
value
$ 0.00
V. Other
miscellaneous
assets
1. Merrill Lynch
IRA, consisting of:
Account No.
84093784 (value as
of 7/17/97)
$ 33,991.57
a. Retirement
Re serves /Cash
(value as of
7/17/97)
$ 382.57
b. Select Ten 96B
Dow Equity Income
Fund
20,348 shares
(value as of
7/17/97)
$ 20,750.00
c. Equity Income
Fund Tele -Global
Trust Defined Asset
Funds
(value as of
7/17/97)
$ 12,859.00
^ Value of the apartment shares as of July 17, 1997 is an
informal estimate provided by the managing agent, without the
benefit of a formal appraisal. Further documentation will be
provided as available. Acquisition cost (1982) $130,000.
^ Estimated value of apartment furnishings and clothes; Mr. Casey
does not have an itemized insurance list of his possessions.
BWNY2/. 1/99990/00004/1785 July 18, 1997 4:13pm 2
A'^.Qf.A Qfi _ T)
662
2 . Interest in
Brown & Wood Profit
Sharing Retirement
Plan: Consisting of
the following
Fidelity mutual
funds)
(value as of
7/17/97)
$376,429.02
a. Magellan
(value as of
7/17/97)
$109,344.84
b. Equity Income
(value as of
7/17/97)
$107,729.92
c . Investment
Grade Bond
(value as of
7/17/97)
$ 29,540.80
d. Overseas
(value as of
7/17/97)
$ 39,604.18
e. Retirement
Money Market
(value as of
7/17/97)
$ 9,301.59
f . Contraf und
(value as of
7/17/97)
$ 80,907.69
3 . Interest in
Brown & Wood
Defined Benefit
Plan
(value as of
3/31/97)
$ 2,915.75'
TOTAL
MISCELLANEOUS
ASSETS
$413,336.34
TOTAL ASSETS
$841,447.11
LIABILITIES
$ 19,008.89
I . Loans and
Indebtedness
' The Plan is being terminated effective as of March 31, 1997,
and once a determination letter has been received from the
Internal Revenue Service, a distribution will be made to all
participants of their accrued benefits.
BWNY2/. 1/99990/00004/1785 July 18. 1997 4:13pm
663
1 . Dime Savings
Bank
Mortgage on
Cooperative
Apartment located
at 415 East 52nd
Street, New York,
New York {value as
of 7/16/97)
$ 19, 008.89
2. Credit card,
short term debt
(more than 31 days
duration)
$ 0.00
3. Other
$ 0.00
TOTAL LIABILITIES
$ 19,008.89
BWNY2/. 1/99990/00004/1785 July 18. 1997 4:13pm
NOMINATIONS OF STANLEY MARCUS (U.S.
CIRCUIT JUDGE); RODNEY W. SIPPEL, NOR-
MAN K. MOON, ANN L. AIKEN, AND JEROME
B. FRIEDMAN (U.S. DISTRICT JUDGES)
TUESDAY, OCTOBER 28, 1997
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:32 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the committee) presiding.
Also present: Senators Grassley, Ashcroft, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SEN-
ATOR FROM THE STATE OF UTAH, CHAIRMAN, COMMITTEE
ON THE JUDICIARY
The Chairman. If we could begin, I would appreciate it. We have
a number of very important judgeships to be filled and a number
of excellent candidates and nominees here today.
Today, we will move first with Stanley Marcus, of Florida, to be
U.S. circuit judge for the eleventh circuit. I am very familiar with
Mr. Marcus and I have a very high opinion of him, and I look for-
ward to going through a few questions with him.
Then on the district court level, we will go in alphabetical order.
We will start with Ann L. Aiken, of Oregon, to be U.S. district
judge for the District of Oregon; then Jerome B. Friedman, of Vir-
ginia, to be U.S. district judge for the Eastern District of Virginia;
Norman K. Moon, of Virginia, to be U.S. district judge for the
Western District of Virginia; Rodney W. Sippel, of Missouri, to be
U.S. district judge for the Eastern and Western Districts of Mis-
souri. So we will have a total of five nominees today.
Do we have our Senators here from Florida?
[No response.]
The Chairman. I think what we will do is, move in the order of
these judges, but we will also have the Senators that are here
today give their testimony for and on behalf of their nominees, and
we will wait until they get here.
Let us move ahead, then, with Ann Aiken, of Oregon. I see both
Senators are here. Would you gentlemen care to make some re-
marks about Ms. Aiken?
Senator Wyden, we will go with you first.
(665)
666
STATEMENT OF HON. RON WYDEN, A U.S. SENATOR FROM THE
STATE OF OREGON
Senator Wyden. Thank you, Mr. Chairman. Mr. Chairman, let
me begin by expressing a special thanks and my gratitude to you
for placing Judge Ann Aiken on the committee's schedule today. I
know of no committee or no chairman who holds a heftier workload
than you do, and I just want you to know that I am very grateful
for all of your assistance, and particularly the good counsel that
you have given me in the consideration of Oregon's judges.
The Chairman. Well, thank you, Senator Wyden. I am very
pleased with the support of you Oregon Senators for Ann Aiken,
and I think it weighs really heavily in her behalf
Senator Wyden. Mr. Chairman, before presenting the name of
Judge Ann Aiken to the committee, I would also like to publicly
thank my colleague. Senator Smith, for his extensive efforts on be-
half of this nominee. He has joined me earlier this year in request-
ing that President Clinton re-nominate Judge Aiken, after her
nomination did not reach the Senate floor in October 1996.
He has spoken with many of our Senate colleagues about the
judge's qualifications, and I just want the committee to know that
Senator Smith has been vociferous in his support of the judge every
step of the way and it has been a pleasure to work with him.
Mr. Chairman, I will be brief this morning, but it is a great
honor to present to the committee the nam_e of Judge Ann Aiken
to be a U.S. district judge for the State of Oregon. Her journey to
be before the committee today has been long, and not just in terms
of the 3,000 miles she has traveled, but through a nomination proc-
ess that began in 1993 with the bipartisan support of the entire
Oregon congressional delegation.
And it is fair to say, Mr. Chairman, that the judge's support for
this position literally spans the entire political spectrum. For exam-
ple, all living former presidents of our State bar association, eight
Democrats and eight Republicans, are on record supporting the
judge's candidacy.
Her dedication, intelligence, and integrity has won her broad
support from Oregon's law enforcement community, including
many district attorneys in our State, the Oregon State Police Offi-
cers Association, and our attorney general. And it is my view that
these many endorsements that she has received are pouring in be-
cause of the hard work and thoroughness that has marked her ca-
reer to date.
Judge Aiken is an individual who somehow manages to squeeze
hours out of minutes. Not only does she maintain a rigorous judi-
cial schedule, but the list of task forces she has chaired and boards
she has served on numbers in the dozens. She has been particu-
larly active and innovative in the cause of juvenile justice. And on
top of all of this extensive work, she has still found time to raise
five sons.
I am particularly pleased to recommend her because of her ex-
pertise on family law issues, from how the law and communities
can work together to prevent the breakup of families to dealing
with the rising caseloads of abused youngsters and requiring ac-
countability from youthful offenders.
667
Of special note is her leadership in the founding of the Relief
Nursery. This program has brought together in Lane County, in
our State, the entire community — Republicans, Democrats, busi-
ness leaders, lawyers, doctors — to provide a service for families
that are finding it very difficult to stay together. The successes of
the Relief Nursery were profiled by Peter Jennings on "World News
Tonight," and I can tell you I have been to this program and what
they are accomplishing with youngsters in crisis is just extraor-
dinary.
In conclusion, Mr. Chairman, I think that Judge Aiken will bring
to the Federal bench the same energy, drive, and integrity that she
has brought to her work as a State judge and as a specialist in
family law. So I want to thank you again, Mr. Chairman, for mov-
ing us to this point in the process. Your patience and your aid has
been particularly helpful to me, and I very much hope that now the
committee will complete the nomination process and move Judge
Aiken's name to the floor before the Congress adjourns this year.
[The prepared statement of Senator Ron Wyden follows:]
Prepared Statement of Senator Ron Wyden
Mr. Chairman: Let me begin by expressing a special thanks and my gratitude to
you for placing Judge Ann Aiken on the Committee's schedule today as the session
draws to a close. I know of no Committee or Chairman who carries a heftier work-
load than you, and I'm very grateful for both the immense amount of time and good
counsel you have given me in the consideration of Oregon's needs on the Federal
bench.
Before presenting Judge Aiken to the Committee, I would also like to publicly
thank my colleague, Senator Gordon Smith for his extensive efforts on behalf of this
nominee. He joined me earlier this year in requesting that President Clinton re-
nominate Judge Aiken after her nomination did not reach the Senate floor in Octo-
ber of 1996. He has spoken with our colleagues and vociferously supported Judge
Aiken every step of the way, and it is a pleasure to be working with him.
Mr. Chairman, it is a great honor to present to this Committee the name of Judge
Ann Aiken to be a United States District Judge for the District of Oregon. Her jour-
ney to be before the Committee today has been long — not just in terms of the 3,000
miles she's traveled from Oregon, but also in terms of a nomination process that
began in 1993 with the strong bipartisan support of the Oregon Congressional dele-
gation.
Judge Ann Aiken's supporters for this position span the political spectrum. All liv-
ing former presidents of our state Bar Association, eight Democrats and eight Re-
publicans are on record supporting her candidacy. Her dedication, intelligence, and
integrity has won her broad support from Oregon's law enforcement community in-
cluding many district attorneys throughout our state, the Oregon State Police Offi-
cers' Association and our state Attorney General.
It is my view that the many endorsements are pouring in because of the hard
work and thoroughness that has marked her career to date.
It is certain that Ann Aiken is a woman who knows how to squeeze hours out
of a minute. Not only does she maintain a rigorous judicial schedule, but the list
of task forces she has chaired and Boards she has served on in the past couple years
number in the dozens. She has chaired a Subcommittee of the Governor's Task
Force on Juvenile Justice and served on the Steering Committee and the Board of
Directors of the Court Appointed Special Advocates (CASA) Program. On top of all
this, somehow she stiU finds time to raise five sons.
When Judge Aiken began her legal career, she made family law her area of exper-
tise. Today, she is known throughout the State as one of the leading figures on fam-
ily law issues — from how law and communities can work together to prevent the
break up of families, to how to deal with the rising case loads of abused children,
to requiring accountability from young offenders.
Of particular note is her leadership in the founding the "Relief Nursery." With
this project she brought together the entire community — business leaders, lawyers,
doctors, even Republicans and Democrats — to provide a service for families that
were about to crack apart. Recently in fact, the successes of the Relief Nursery in
keeping families together were profiled by Peter Jennings in "World News Tonight."
668
I am certain that Judge Aiken will bring to the federal bench the same intensity,
drive and integrity that she has brought to her work as a State Judge and as a spe-
cialist in family law. I want to again thank the Chairman for moving us to this
point in the process, and I urge the committee to complete the nomination process
and move Judge Aiken's name to the floor before Congress adjourns this year.
The Chairman. Well, thank you, Senator Wyden. Your support
means a great deal to this committee and we appreciate the co-
operation you have given to the committee.
Senator Smith.
STATEMENT OF HON. GORDON SMITH, A U.S. SENATOR FROM
THE STATE OF OREGON
Senator SMITH. Senator Hatch and members of the committee, I
ask unanimous consent that my statement be entered in the
record.
The Chairman. Without objection, we will put it in the record.
Senator Smith. I would like to speak from the heart and from
my experience with Ann Aiken. Under your counseling. Senator
Hatch, I have visited with every member of the Republican mem-
bership of this committee to discuss Ann Aiken, how I know her
personally, and why I believe she is qualified to be a U.S. district
court judge.
I first met Ann Aiken in 1993. We served together on the Gov-
ernor's juvenile justice task force. Out of that task force came some
of the toughest juvenile crime laws in the United States of Amer-
ica. On that committee, Ann Aiken was a star. I came to respect
her opinion and to value her as a person.
While there are some cases that cause concern for some of you,
I believe if you review the totality of her record, you will see a
tough, fair judge and someone who would do credit to the U.S. dis-
trict court. I invite and encourage you to ask all the tough ques-
tions you can of this woman.
Finally, I would like to present a qualification that some may
view as irrelevant, or even politically incorrect. Ann Aiken is the
mother of five sons. I want you to know that any woman who can
raise five sons, with a busy professional schedule, in my view, will
have the requisite amount of fairness and firmness to be an excel-
lent judge. Ann Aiken can be my judge any day.
The Chairman. Those sons look pretty good to me.
[Laughter.]
Senator Smith. I don't want that fact to be overlooked in your
decision as to how you will vote, and I ask that you be tough in
your questions of her, and I ask for your support.
I thank you, Mr. Chairman, and each member of this committee.
The Chairman. Thank you. Senator.
[The prepared statement of Senator Smith follows:]
Prepared Statement of Senator Gordon H. Smith
Mr. Chairman, and Members of the Judiciary Committee, I thank you for this op-
portunity to introduce Judge Ann L. Aiken of Eugene, Oregon, nominee for the U.S.
District Court. I commend Senator Hatch for his leadership in moving Judge Aiken's
nomination forward, and for his continued commitment to filling the vacancies on
the federal bench.
I would also like to recognize Judge Aiken's family who are here today. Her hus-
band, James Klonoski and five boys—Jake, Nick, Zach, Sam and Chris. It's a pleas-
669
ure to have you all here today, and to join my colleagues Senator Wyden and Con-
gressman DeFazio in support of this nomination.
Judge Aiken's service as a District Court and Circuit Court Judge for the State
of Oregon reflects her strong commitment to her community and to her State. In
1993, I served with Ann on the Governor's Task Force on Juvenile Justice. Together,
we worked to redefine the way Oregon addresses juvenile crime by focusing on
intervention and prevention programs to deter criminal behavior.
Judge Aiken has been nothing less than forthright throughout this process, and
has indicated her willingness to answer any questions the members of the Commit-
tee may have with respect to her record. I have found her honest and compelling
which is why I stand beside her today.
Mr. Chairman, it has been said that Judge Aiken represents the people and the
personality of Oregon. A dedicated wife and mother of five young boys. A role-model
in her professional life and in her community. To put it simply, she's forthright,
she's faithful, and a fine nominee for the federal court. I am proud to stand in sup-
port of her nomination, and encourage my colleagues to report it favorably to the
floor of the United States Senate.
Thank you Mr. Chairman, and members of the Committee for your consideration.
The Chairman. Judge Aiken, this is certainly a tribute to you to
have two distinguished Senators both energetically acting on your
behalf, and I personally appreciate both of them and we will look
forward to asking you some questions.
Thank you both for coming. We really appreciate you coming.
We will now turn to Senator Mack, of Florida. Do you know if
Senator Graham, is coming?
Senator Mack. Yes, he is.
The Chairman. We will accommodate him when he gets here.
Senator Mack. The subway is down again, so I hope he is not
caught on it.
The Chairman. OK. Well, we are glad to have you here and we
look forward to hearing your testimony on Judge Marcus.
STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator Mack. Thank you, Mr. Chairman and members of the
committee. I want to thank you for this opportunity to introduce
Judge Stanley Marcus to the committee and thank you once again
for your overall responsiveness to the needs of Florida's judiciary.
Florida's judicial nominees have enjoyed swift passage from nom-
ination to confirmation this year, and the committee is to be com-
mended for its fine work. And, Mr. Chairman, we do appreciate
that efibrt. It has meant a great deal to the State of Florida.
I have to say at the outset that I have never been more enthu-
siastic in my support for a circuit court nominee than I am for
Judge Marcus. This is a nominee which the Senate can be proud
to confirm, and I am confident that, if confirmed. Judge Marcus
will leave the appellate bench someday with a proud legacy of judi-
cial precedent which maintains the integrity of our legal system
and provides justice for those who come before him.
Judge Marcus was first appointed to the Federal bench at the
district court level by President Reagan in 1985 after being rec-
ommended by Senator Paula Hawkins. He has done an excellent
job presiding in the Southern District of Florida since that time.
Back in 1989, when faced with an earlier vacancy on the elev-
enth circuit Court of Appeals, I recommended Judge Marcus for
that position. Although I was disappointed at the time that Judge
670
Marcus was not nominated, I am truly thrilled that he is being con-
sidered for this position today.
Judge Marcus can be described as one of those judges who is
genuinely loved and respected by attorneys of all sides of the issues
in the south Florida legal community. He possesses a superior in-
tellect and a wonderful disposition, a priceless combination. I know
from previous confirmation hearings that courtesy is a characteris-
tic highly valued by this committee. Judge Marcus possesses this
in abundance. He is friendly, well-liked, and easily approachable.
Even though there is widespread happiness and support for
Judge Marcus because of his nomination, it is mixed with a real
sadness by those who will miss his presence on the Southern Dis-
trict bench. The Miami Herald called Judge Marcus an exemplar
of the law.
Judge Marcus would also bring to the appellate bench a reputa-
tion for being tough on crime, something that is imperative to the
future well-being of our State. Prior to his service on the bench.
Judge Marcus was the chief of the Detroit strike force in the Orga-
nized Crime and Racketeering Section of the Department of Jus-
tice. His excellent service in that position further adds to the
weight of evidence in support of Judge Marcus' fitness for the ap-
pellate bench.
I am so pleased to be here today to have the opportunity to intro-
duce Judge Marcus. It has been a joy to interact with him through-
out the years, and I expect to continue to hear great things about
the legal career of Judge Stanley Marcus.
I urge the committee's and the Senate's swift confirmation of
Judge Marcus, and I thank you, Mr. Chairman.
The Chairman. Well, thank you, Senator Mack.
Senator Graham.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator Graham. Mr. Chairman and members of the committee,
thank you for this opportunity for Senator Mack and I to introduce
not only an outstanding jurist, but also a man that we have both
come to know as a friend and as a pillar of the civic and legal com-
munity of our State.
I would like to join Senator Mack in expressing my appreciation
to this committee for the attention and consideration that you have
given to the nominees from Florida. We had a long period in which
there had been vacancies, particularly at our district court level.
Senator Mack and I are pleased to say that today every position
in Florida's district courts is filled, with the exception of two judges
who have recently announced for senior status. So we will be before
you again.
The Chairman. If I might interrupt you, I think that is largely
because of the efforts of you two.
Senator MACK. Thank you.
The Chairman. Both of you have worked very hard to nominate
really qualified, good people and the committee has appreciated
that very much.
Senator Graham. Well, Senator Mack and I appreciate your kind
remarks, but I also realize that it is the recognition of yourself, Mr.
671
Chairman, and your committee members of the circumstances in
our rapidly growing State, with some of its special Federal judicial
concerns, including, unfortunately, the high level of criminal cases
generated by drug-related activities which are now being served by
the full Federal bench. So today's hearing relatively shortly after
the nomination of Judge Marcus is another example of your atten-
tion to the needs in this case of the eleventh circuit.
I have a full statement that I would like to file for the record,
but just to supplement some of the comments that Senator Mack
has already so effectively made, Judge Marcus' career combines a
number of elements, from his birthplace in New York City, where
he served in such disparate positions as on the city's Bureau of
Budget and Housing Maintenance and as a caseworker in the State
Department of Social Services and as a legal clerk and assistant
U.S. attorney.
He has brought that broad experience, first, to the U.S. attor-
ney's office in Michigan, where he initially served on and later led
in the Detroit strike force that was established to fight organized
crime in Michigan. His steady rise through the Department of Jus-
tice soon led him to Miami where, in 1982, President Reagan ap-
pointed Judge Marcus as the U.S. attorney for Florida's Southern
District. This commenced 15 years of service which continues today
to the people of our State through the Federal judiciary.
Judge Marcus' record of judicial service began in 1985 when he
was nominated on the recommendation of Senator Hawkins and
confirmed as Federal district judge for Florida's Southern District.
As Senator Mack has said, since that time he has consistently been
recognized as a fair, dedicated jurist who brings out the best in the
lawyers who appear before him and in the other judges with whom
he serves in a collegial relationship.
He has continued his interest in academic law, serving as profes-
sor of trial advocacy at the Brooklyn Law School this year. He has
had a positive influence on the guidance of a number of young at-
torneys who have worked with him or been influenced by his judi-
cial actions. Judge Marcus has consistently received the highest
recognition of members of the bar who have appeared before him.
He has received in various forms the appreciation of the citizens
of New York State, Michigan, and Florida for his three decades of
service to the people.
I join Senator Mack in urging the speedy consideration and con-
firmation of the next judge to the U.S. Court of Appeals for the
Eleventh Circuit, Judge Stanley Marcus.
The Chairman. Thank you, Senator.
[The prepared statement of Senator Graham follows:]
Prepared Statement of Senator Bob Graham
Good morning. Chairman Hatch, Senator Leahy, members of the Senate Judiciary
Committee, it is an enormous honor to introduce Judge Stanley Marcus for your
consideration as the next member of the U.S. Court of Appeals for the Eleventh Cir-
cuit.
Before I extol Judge Marcus' outstanding qualifications and virtues, I want to
thank the Chairman and the Ranking Member for their prompt and thorough re-
view of nominations affecting my home state of Florida.
In the last ten months, the Senate Judiciary Committee has interviewed — and the
full Senate has confirmed — two judges to fill vacancies in Florida's Southern Judi-
cial District, a new United States Attorney for the Southern District, and most re-
672
cently, a federal judge for Florida's increasingly crowded Middle Judicial District.
For the first time in several years, Florida has no pending federal district court
nominations, a turn of events that is a testament to your leadership and welcome
news for members of the Florida federal judicial community.
All of the Florida nominees that you have examined and approved this year have
exhibited certain traits that are critical to quality judicial performance. They have
been outstanding legal professionals whose service has earned them the respect and
admiration of their peers. Their qualifications have demonstrated a wide range of
legal, professional, and academic interests and experiences. They have been dedi-
cated public servants and community leaders. And they have appeared before this
committee with the bipartisan support of Senator Mack, myself, and Floridians of
every political background.
In Stanley Marcus, President Clinton has nominated someone who may be at the
top of this impressive class of highly regarded Florida judicial nominees. For more
than three decades. Judge Marcus has done more than just perform quality legal
and judicial service. He has virtually redefined the standard for what it means to
be a highly skilled federal prosecutor and an outstanding judge.
Stanley Marcus' public service roots lie in his birthplace of New York City. Be-
tween 1967 and 1978, he served the people of New York almost continuously — in
the city's Bureaus of the Budget and Housing Maintenance, as a Caseworker in the
state Department of Social Services, and as a legal clerk and Assistant U.S. Attor-
ney in the Eastern Judicial District. His only hiatus from this service were the
years he spent at Harvard University Law School, in the United States Army, and
gaining valuable private sector experience at a New York law firm.
At the U.S. Attorney's Office, Stanley Marcus quickly gained a reputation as a
highly effective prosecutor. In 1978, he was assigned to the U.S. District Attorney's
Office in Detroit as part of the "Detroit Strike Force" that had been established to
fight organized crime in Michigan. Two years later, he had been elevated to Chief
Prosecutor on that Strike Force.
His steady rise through the ranks of the Justice Department soon led him to
Miami. In 1982, President Reagan appointed Judge Marcus as the United States At-
torney for Florida's Southern District, launching his more than fifteen years of serv-
ice to the people of South Florida.
Stanley Marcus' record of judicial service began in 1985, when he was nominated
and confirmed as a federal district judge in Florida's Southern Judicial District.
Since then, he has been consistently recognized as a fair, dedicated jurist who
brings out the best in both the lawyers who appear before him and the other judges
who work with him.
And since Judge Marcus was appointed a Professor of Trial Advocacy at Brooklyn
Law School in 1997, his positive influence and guidance is now being applied to the
next generation of legal professionals.
Mr. Chairman, throughout his career, Stanley Marcus has impressed his peers
with his legal and prosecutorial skills, won plaudits from lawyers and fellow judges
alike as a fair and highly intelligent jurist, and received the appreciation of citizens
from New York to Michigan to Florida for his nearly three decades of service to city,
state, and country. I urge his speedy approval as the next judge in the U.S. Court
of Appeals for the Eleventh Circuit.
The Chairman. I think, Judge Marcus, it certainly weighs very
heavily in your behalf to have these two excellent Senators here
speaking for you, and I have no doubt you will have an easy con-
firmation, as far as I am concerned.
Thank you both for being here. We appreciate you both being
here. It is high praise for Judge Marcus.
We will now turn to our two Virginia Senators. Both of them are
here and have two judicial nominees on the agenda, so we will be
happy to hear first from the senior Senator, Senator Warner, and
then we will turn to you, Senator Robb.
Senator Warner. Thank you, Mr. Chairman and members of the
committee. I think that while protocol says the senior Senator goes
first, my distinguished friend and colleague was the moving person
in bringing these nominations to the attention of the President and
therefore I would like to defer and let you speak first and then I
will follow.
673
The Chairman. That will be fine with the committee.
STATEMENT OF HON. CHARLES S. ROBB, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Robb. Thank you, Mr. Chairman, and I thank my distin-
guished senior colleague. I might add at the outset that he and I
have worked together on these nominations, as we have on many
other things, and I very much appreciate the relationship that we
have had and continue to have between our two ofilces.
I would also, Mr. Chairman, like to thank you and the members
of the committee for scheduling this particular hearing. I know
that there are many demands on your schedule, and your expedi-
tious inclusion of particularly Judge Moon, who was nominated
more recently, at this time so that we have an opportunity to get
these nominees confirmed before we adjourn is very, very much ap-
preciated.
I should suggest at the outset that I was assisted initially, and
my senior colleague ultimately, in the selection of both of the nomi-
nees for the Eastern and Western Districts of Virginia, respec-
tively, by panels of jurists and lawyers in their respective jurisdic-
tions.
I am going to ask unanimous consent, if I might, to have a longer
statement included in the record that more fully describes the dis-
tinguished careers of both of these fine judges.
The Chairman. Without objection, we will put all statements in
the record.
Senator RoBB. I might add that in each case they have a long
and distinguished career on the bench, and in each case they have
been selected at each level by their other circuit court judges or
their other panel, in the case of the court of appeals, to be the chief
judge at each level in which they have participated, which, it seems
to me, is a very important testimony, at least, to the collective
judgment of the peers with whom they have served.
Very briefly, the President has nominated Judge Jerry Friedman
to be U.S. district judge for the Eastern District of Virginia. He is
currently the chief judge of the Virginia Beach Circuit Court. He
has served on that court since 1991, as chief judge since 1994. He
was previously a judge on the Virginia Beach Juvenile and Domes-
tic Relations Court. He served from 1985 to 1991, and he was chief
judge of that particular court for four years.
He received his law degree from Wake Forest in 1969 and his un-
dergraduate degree from ODU in 1965. His wife, Sandra, is with
him. I hope that at the appropriate time, Mr. Chairman, you would
recognize his wife, as well as the wife of Judge Moon, Barbara, who
is also here.
I will also describe, if I may, very briefly Judge Moon's back-
ground. He is on the Virginia Court of Appeals, which incidentally
was created during the time that I had the privilege to serve as
Governor. He has been on there from the beginning. He has been
chief judge since 1993. He has a particular record in eliminating
case and publication backlog that had troubled the court before he
became chief judge.
He is a visiting lecturer in trial advocacy at the University of
Virginia Law School since 1975 and was the recipient of the Wil-
674
Ham J. Brennan, Jr. Award for dedication to teaching trial advo-
cacy. Prior to that, he was chief judge of the Lynchburg Circuit
Court from 1974 to 1985, and chief judge from 1982 to 1984. He
has three degrees from the University of Virginia, a master of laws
in 1988, a J.D. in 1962, and a bachelor of arts in 1959. As I say,
he is accompanied by his wife, Barbara, and has a son, Norman,
Jr.
Mr. Chairman and members of the committee, I am enthusiastic
in recommending both of these distinguished jurists for your con-
sideration, and I am very grateful to my friend and senior col-
league. Senator Warner, for his assistance in making this rec-
ommendation from the Virginia delegation unanimous.
I would now yield to my distinguished senior colleague.
[The prepared statement of Senator Robb follows:]
Prepared Statement of Senator Charles S. Robb
Mr. Chairman, it gives me a great deal of pleasure to present for confirmation
two nominees for the federal bench from Virginia, Judge Jerry Friedman to fill the
vacancy in the Eastern District and Judge Norman Moon to fill the vacancy in the
Western District.
Before I do so, however, Mr. Chairman, I'd like to thank you for scheduling both
of these nominees for today's hearing. It eliminates a substantial uncertainty in
their lives, and will help us fill two vacancies in Virginia where the work is piling
up.
Jerry Friedman and Norman Moon did not know each other personally prior to
each being nominated to the federal bench. However, they have been in close contact
since their nominations, and have become fast friends. So when this process is con-
cluded, we will have two new federal judges and one new set of friends. Not a bad
outcome.
And it is easy to understand how they've grown close, because they are similar
in many respects. Both have dedicated themselves to serving the public, Judge
Friedman for 12 years as a trial judge and Judge Moon for more than ten years
as a trial judge and 12 years on Virginia's Court of Appeals. Both have earned the
admiration of their colleagues who chose them to be Chief Judge of their respective
courts, a position demanding increased responsibility and commitment. And both
are well respected in the legal community, which views them both as thoughtful,
intelligent and fair.
Judge Friedman currently serves as Chief Judge of the Circuit Court of Virginia
Beach. His peers on the bench have elected him twice to be Chief Judge, which
highlights the faith they have in his abilities. Prior to his work on the Circuit Court,
Judge Friedman distinguished himself in one of the toughest assignments in the ,
Virginia judicial system as a judge in the Juvenile and Domestic Relations court,
where he was also selected to be Chief Judge. He graduated from Old Dominion
University in 1965 and received his law degree from Wake Forest University in
1969. He is here with his wife, Sandra, who also serves the public as a school teach-
er in Southeastern Virginia. Judge Friedman has earned a reputation as a hard-
working, evenhanded and courteous judge whose deliberative approach creates con-
fidence that justice will be served in his court. Judge Friedman was selected from
a group of highly-respected candidates who were interviewed by a committee headed
by former U.S. Senator Bill Spong, who passed away three weeks ago. In my view.
Bill Spong represented the best a public servant has to offer: he was honorable,
made the tough decisions, and did what he thought was right despite the con-
sequences. I expect Judge Friedman will stand as a living testament to those fine
qualities of public service embodied by Senator Spong.
Judge Moon has similarly had a distinguished career in public service. He has
served on the Virginia Court of Appeals since 1985, when it was first created. In
1993 he was selected Chief Judge, and during his tenure the court has eliminated
its case backlog despite the increase in filings, and its publications, which had been
eight months behind, were brought current. Prior to being elevated to the appellate
court, he served more than ten years as a trial judge, where he also served as Chief
Judge. During his illustrious career, he has touched many in the judicial system,
both as a judge and as a visiting professor teaching trial advocacy at the University
of Virginia School of Law, where he has received three degrees. Judge Moon earned
a Master of Laws degree in 1988, which he added to the Bachelor of Laws he re-
675
ceived from the University in 1962 and the undergraduate degree he received in
1959. He has been teaching the course in trial advocacy at the University since
1975, and this year he received the William J. Brennan, Jr. Award for his dedication
and contributions to the teaching of trial advocacy. His wife, Barbara, is also here
today. The judicious decisions he has rendered, the students he has taught, and the
courts he has run are all a testament to his wisdom and his dedication to justice.
Judge Moon is one of the most widely respected jurists in the Commonwealth, and
I have no doubt that the federal judiciary will benefit by adding him to their ranks.
Thank you, Mr. Chairman, and I look forward to swift confirmation of both of
these fine candidates.
The Chairman. Senator Warner.
STATEMENT OF HON. JOHN W. WARNER, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Warner. Mr. Chairman, first, we want to thank you, the
ranking member and other members of the committee for hstening
to the petitions of my colleague and myself to bring up these two
outstanding jurists.
We, the two of us, and I am sure other Senators likewise, spend
a great deal of time on the question of judicial nominations. I think
that function of a U.S. Senator in the constitutional advise and
consent process has certainly no higher calling, that duty, and we
spend a great deal of time on it.
I could summarize Judge Moon by simply saying a decade ago,
Mr. Chairman, I recommended him for the Federal bench. And
time didn't permit to get him on at that point, so here he is recy-
cled again 10 years later. So I don't know that I need to add much
more about Judge Moon, except the legislature of the month in our
general assembly, the senior man, was a college classmate of mine.
He has known Judge Moon all his life, and I just wanted to read
a very brief quote from Lacey Putney, a delegate in the Virginia
General Assembly.
He said, "Judge Moon's excellent judicial temperament and his
keen intellect have contributed greatly to the outstanding reputa-
tion he has earned for intellectual honesty, fairness, and equity."
I don't know of a higher tribute to be paid to a jurist.
Likewise, Judge Friedman — there was a fierce competition for
this particular slot, and I know my colleague and I weighed very
carefully the viewpoints of a diversity of citizenship and jurists and
others in our State. And I think it is to Judge Friedman's credit
that he came out in the minds of many as the best qualified person
at this time, because he is known for his fairness and his compas-
sion and mastery of the law. As one person said, he is tough, he
is analytical.
So we bring before the U.S. Senate and this committee two out-
standing Virginia public servants to take on the very important re-
sponsibility of the Federal bench.
I thank the committee.
The Chairman. Thank you, Senator.
Senator ROBB. Mr. Chairman, could I just add one word?
The Chairman. Sure.
Senator ROBB. I made reference to the fact that we had been as-
sisted by judicial selection panels in considering all of the nomi-
nees, or all of those who were interested or had been nominated by
various bar associations and others. The first panel that I had
676
asked to assist us was led by our late colleague, Senator William
Spong.
Bill Spong was kind enough to head that group up. As many of
our colleagues know, he passed away about 3 weeks ago, but this
was his final contribution to the public service that these two
judges both exemplify. Many of the superlatives and adjectives that
I did not use in describing them are included in the formal state-
ment that I have submitted.
With that, Mr. Chairman, I thank you again for holding this
hearing and I wholeheartedly recommend, with my senior col-
league, both Judge Friedman and Judge Moon for your consider-
ation and confirmation.
Senator Warner. I will put my statement in the record.
The Chairman. Without objection.
[The prepared statement of Senator Warner follows:]
Prepared Statement of Senator John Warner
Mr. Chairman, members of the Committee. It is a distinct privilege for me to be
here this morning before you to introduce two of Virginia's most distinguished ju-
rists.
Both Judge Norman K. Moon and Judge Jerome B. Friedman are men of uncom-
mon integrity and talent. Both are held in the highest esteem among their col-
leagues and citizens of our Commonwealth.
I will be brief this morning, but I do want to say a few words about each.
With respect to Judge Moon, some on the committee may recall my long-standing
support for his appointment to the Federal bench. Some 16 years ago, I rec-
ommended Judge Moon as one supremely qualified for the vacancy on the U.S. Dis-
trict Court for the Western District of Virginia.
Today, I am just as convinced as I was then, that Judge Moon is one this commit-
tee should approve for elevation to the Federal bench without qualification.
I want to share with the committee words written by a long-time friend and col-
lege roommate, Lacey Putney, in behalf of Judge Moon. His words go a long way
to summing up the way many of us in Virginia feel about Judge Moon.
"Judge Moon's excellent judicial temperament and his keen intellect have contrib-
uted greatly to the outstanding reputation he has earned for intellectual honesty,
fairness and equity * * *."
Since 1985, Judge Moon has served on the Court of Appeals of Virginia, and since
1993 he has served as that court's chief judge. His court has handled a record level
of filings and eliminated a substantial case backlog.
From 1974 to 1985, Judge Moon served on the 24th Judicial Circuit of Virginia,
including service as chief judge from 1982 to 1984.
The bottom line is that Judge Moon brings nearly a quarter century of bench ex-
perience. He is seasoned and talented. He has built a remarkable career that would
make him a tremendous credit to the Federal judiciary.
I won't bore members of the committee with a detailed accounting of Judge
Moon's resume, I simply will say that he is accomplished as a jurist, a teacher, a
family man, and as a tremendous contributor to his community. Without question,
if approved by this committee and the Senate, Judge Moon will serve with uncom-
mon distinction and dedication.
And those words, "uncommon distinction and dedication" bring me to my thoughts
about Judge Friedman, who appears today before you as the candidate for the va-
cancy on the U.S. District Court for the Eastern District of Virginia.
Like Judge Moon, Judge Friedman's record as a jurist is impeccable.
Respect for Judge Friedman runs deep in Virginia's Eastern District because he
is a superior legal intellect with a keen, straightforward judicial temperament.
Judge Friedman has over 12 years as a trial judge, and like Judge Moon, he has
received tremendous support from his colleagues who know him best, in addition to
strong endorsements from the Virginia Bar Association and the Virginia State Bar.
Jiidge Friedman is known for his fairness, compassion, and mastery of the law.
He is tough and analytical.
In 1991 he was elected to the Virginia Beach Circuit Court, and since 1994 he
has served as that bench's chief judge. From 1985 to 1991 he served as judge of the
Virginia Beach Juvenile and Domestic Relations District Court.
677
Judge Friedman will make an excellent addition to the Federal judiciary and
should be approved by the committee and confirmed by the Senate. His talents and
reputation speak for themselves.
Mr. Chairman, I thank you for scheduling today's hearings and for the oppor-
tunity to address you and the committee. These gentlemen are deserving of the com-
mittee's approval.
The Chairman. We appreciate both of you being here, and I
think it is great praise for both of these judicial nominees and we
appreciate it.
We will conclude with the two Senators from Missouri, who are
both here. We will turn first to the senior Senator, Senator Bond,
and then Senator Ashcroft.
STATEMENT OF HON. CHRISTOPHER S. BOND, A U.S. SENATOR
FROM THE STATE OF MISSOURI
Senator Bond. Thank you very much, Mr. Chairman. I appre-
ciate very much your scheduling the hearing and giving Mr. Rod-
ney Sippel the opportunity to appear before you today.
I advise that Congressman Gephardt wanted to be here today
and join in presenting Mr. Sippel, but other commitments out of
Washington prevent him from being with us.
One of the honors, of course, of serving as the senior Senator
from Missouri is to present to my colleagues outstanding can-
didates for service on the Federal bench, and I believe Rodney
Sippel is such a candidate. He has an exceptional public record,
and many Missourians have told me of his ability and the fact that
they think he will serve the Federal judiciary with distinction and
honor.
Mr. Sippel is a native Missourian, born in Jefferson City, raised
in St. Louis; received high academic honors at the University of
Tulsa and at Washington University, where he gained his legal de-
gree. He currently is with the firm of Husch and Eppenberger in
St. Louis, and briefly served as an administrative assistant for
Congressman Gephardt during the 103d and 104th Congress. He
also served on the staff of my predecessor. Senator Eagleton.
Mr. Chairman, I commend you and the committee for the fine job
of screening rigorously the candidates for the Federal judiciary to
ensure that only exceptional individuals with a healthy view of the
role of the Federal judiciary are confirmed. And I believe that you
are doing that well and I think that we need to look for candidates
who will serve in the courtroom and show a mastery of the issues
over which they preside.
Mr. Sippel has the experience necessary. He started as a litigator
trying lawsuits on behalf of the Bi-State Development Agency,
sometimes having 30 to 40 cases pending at one time. Over the
years, as his legal practice evolved, he has litigated extensively in
the Federal district court and handled a variety of criminal, civil
and antitrust issues. In addition to his private practice, he has
worked to improve the Missouri Legal Services Program and as-
sisted the victims of the flood of 1993.
I believe Mr. Sippel is a respected and experienced member of
the Missouri legal community, with a healthy respect for the role
of the judiciary, and I think he has the broad experience necessary
to serve on the Federal court. We very much appreciate your con-
678
sidering him today and hope that after hearing him that you will
be able to move his confirmation promptly.
Thank you very much for your attention.
The Chairman. Well, thank you, Senator Bond.
[The prepared statement of Senator Bond follows:]
Prepared Statement of Senator Christopher S. Bond
Mr. Chairman, I thank the Committee for scheduhng this hearing and giving Mr.
Sippel the opportunity to appear before you today. Before I proceed, I advise that
Congressman Gephardt wanted to be here today to join me in introducing Rodney
Sippel to the Committee but had another commitment out of Washington and will
be unable to join us.
One of the honors of serving as senior Senator from Missouri is to introduce my
colleagues on the Judiciary Committee to outstanding candidates for service on the
Federal Bench in Missouri. In Rodney Sippel, I believe I am introducing such a can-
didate today. Mr. Sippel has amassed an exceptional record as a public servant and
an attorney and I have heard from several Missourians that Mr. Sippel is a very
gifted attorney who will serve the federal judiciary with distinction and honor.
As a few words of introduction, Mr. Sippel is a native Missourian. He was bom
in Jefferson City and raised in the St. Louis area. He earned an undergraduate de-
gree in political science and economics from the University of Tulsa and a legal de-
gree from Washington University in St. Louis, graduating with impressive records
from both institutions. After graduating from law school. Rod Sippel joined the St.
Louis firm of Husch &; Eppenberger, where he is currently a partner. Mr. Sippel
briefly left private law practice to serve as Administrative Assistant for Congress-
man Gephardt during the 103d and 104th Congress. He also served on the staff of
my predecessor, the Honorable Thomas Eagleton.
The honor of introducing candidates for the judiciary is proceeded by the respon-
sibility of ensuring that only the fittest of candidates are elevated to this position.
I believe the Chairman of this Committee has done a fine job in rigorously screening
candidates to ensure that only exceptional individuals with a healthy view of the
role of the federal judiciary in our system of government are confirmed to sit on the
federal bench. I also believe that when we review qualifications of candidates to
serve on the federal district court, we should be looking for candidates who have
distinguished themselves in the courtroom and have achieved a mastery of the
issues over which they will preside. Such judges are essential to managing the dif-
ficult federal dockets in a productive and professional manner.
As I said moments ago, distinguished members of the Missouri legal community
have made it known that Mr. Sippel is a smart and talented lawyer, he has earned
the respect of his colleagues and there is consensus in the legal community that he
will make an exceptional jurist.
As a young attorney, Mr. Sippel cut his teeth as a litigator. He litigated civil suits
on behalf of the Bi-State Development Agency, the local transit authority, at times
having upwards of thirty to forty cases pending on the docket of the Circuit Court
for the City of St. Louis. One must become a master at procedural, jurisdictional
and evidentiary issues with tremendous courtroom skills to succeed in this environ-
ment. By all accounts Mr. Sippel is a successful litigator.
Over the years, his legal practice has evolved. Mr. Sippel has litigated extensively
in federal district court. He has handled a variety of criminal, civil and antitrust
issues and represented some of the most respected members of the St. Louis commu-
nity. In addition to his private practice, Mr. Sippel has given an admirable amount
of his time to his community; he has worked to improve the Missouri Legal Services
program and he assisted the victims of the great flood of 1993 navigate the various
federal programs for flood victim assistance. Mr. Sippel is also a husband and a fa-
ther.
In summation, I have concluded that Mr. Sippel is a respected and experienced
member of the Missouri legal community. Throughout his career, he has displayed
a commitment to excellence and professionalism. During this process he has dis-
played a healthy respect for the role of the judiciary in our system of government.
He has broad experience in federal court, accumulating experience that will make
him a credit to the bench.
I am appreciative of the Chairman for considering this nomination today.
The Chairman. Senator Ashcroft.
679
STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM
THE STATE OF MISSOURI
Senator ASHCROFT. Mr. Chairman, thank you very much for call-
ing upon me to support the nomination of the senior Senator and
to echo his remarks about what a pleasure it is to introduce Mr.
Rodney Sippel, of Kirkwood, MO, to the committee.
As you can tell from his resume — and, of course, the committee
has a great deal of information about him — Mr. Sippel is a distin-
guished and accomplished attorney with extensive experience liti-
gating in the Federal court system. He is an honors graduate of the
University of Tulsa and of the Washington University School of
Law in St. Louis. He has put together a distinguished career in pri-
vate practice, but has been willing to take time out from his pri-
vate practice to serve the public.
He is uniquely qualified as a result of his awareness both of the
private law community and of the need to have an understanding
of what happens in the Congress and in the development of law by
the representatives of the people. Most recently, he served in the
St. Louis office of Congressman Gephardt.
I have been particularly impressed by the high esteem in which
Mr. Sippel is held by members of both the plaintiff and defense
bars, and by people on both sides of the political aisle. He has a
well-deserved reputation for integrity and one for maintaining his
composure, for being calm even during intense times of litigation.
Judicial temperament, in my judgment, is so important to the suc-
cessful operation of our court system.
Mr. Sippel is a civic-minded individual dedicated to the ideal of
public service. He has served the public both by working with the
people's elected representatives, as I have indicated, but also by
dedicating himself to pro bono activities. The President has recog-
nized these qualities through this nomination and has given Mr.
Sippel another opportunity to serve the public, which 1 believe is
appropriate.
I believe that Mr. Sippel understands the proper role of a Fed-
eral judge. He is an excellent lawyer. He also has an appreciation
for both the awesome power and the limited jurisdiction of a Fed-
eral judge. In an important international business dispute that he
litigated in the Federal court in St. Louis involving Lloyd's of Lon-
don, Mr. Sippel convinced the Federal court to restrain itself from
issuing a temporary restraining order against a letter of credit.
That sounds like an esoteric concern, but there are times when
the judiciary needs to restrain itself, to be restrained, and to under-
stand the limits of its authority. And I am sure that Mr. Sippel will
exercise that same restraint as a judge that he urged upon the
court as a litigator. A number of people for whom I have great re-
spect have endorsed Mr. Sippel and they confirmed to me that he
has the temperament and the restraint and modesty to be an effec-
tive legal representative of the people as a member of the Federal
bench.
I support Mr. Sippel's nomination and I look fonvard to today's
hearing which will provide the rest of the committee a better sense
of the quality that Mr. Sippel would bring and his dedication to the
rule of law for which he has stood.
I thank the chairman for this opportunity.
680
The Chairman. Thank you both. This has been an excellent
hearing so far because we have unanimity among Senators in these
respective States. So, that makes our job a little bit easier. We ap-
preciate both of you and it is great praise for Mr. Sippel to have
your support.
Senator Ashcroft, I am going to ask you to chair the rest of this
hearing. I have to go to a chairmen's meeting and I will turn over
the gavel to Senator Ashcroft. I am counting on him to ask some
tough questions and we will move on from there.
Senator Ashcroft [presiding]. I thank the chairman for his con-
duct of the hearing up until this point. It will now be our pleasure
to hear from nominees and we will first start with the nominee for
the Eleventh Circuit Court of Appeals, Stanley Marcus, a judge
from the Southern District of Florida.
Judge Marcus, if you would come forward, please? Judge Marcus,
would you please raise your right hand?
Do you swear that the testimony you shall give in this hearing
shall be the truth, the whole truth and nothing but the truth, so
help you God?
Judge Marcus. I do.
Senator Ashcroft. Thank you. Judge. You may be seated.
Judge, we would be very pleased to have you make some initial
remarks, including an introduction of members of your family who
have accompanied you to this hearing today.
TESTIMONY OF STANLEY MARCUS, OF FLORIDA, TO BE U.S.
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
Judge Marcus. Mr. Chairman and Senator Durbin, I am deeply
honored to be a nominee for this position, for the Court of Appeals
for the Eleventh Circuit. I really have no statement, would be
happy to answer your questions, but would like to introduce my
wife, Judith Marcus, if I could, to you.
Thank you.
QUESTIONING BY SENATOR ASHCROFT
Senator ASHCROFT. Thank you, Ms. Marcus. Thank you very
much for coming.
Judge Marcus, a couple of weeks ago in California, in the Ninth
Circuit Court of Appeals, the court set aside the law of the State
of California relating to term limits for members of the General As-
sembly of California and other elected officials there based on, ac-
cording to the opinion of the court, the sense of the court or idea
or thought of the court that the voters had inadequate information
when they enacted their term limits rules for California.
In your judgment, is the thought that a court would arrive at,
thinking that the people of a State were not adequately or appro-
priately informed or were ignorant about the issues — would that be
an appropriate judicial basis for overturning an initiative enacted
by the people of the State?
Judge Marcus. It seems to me, Mr. Chairman, that a Federal
judge would step down the road of setting aside an initiative of the
people with extreme caution and great care. We put our faith in
the people. The people are sovereign. The Federal courts are surely
the least representative branch of Government, and so we must act
681
with great care, caution and discretion when we address issues of
that kind.
Senator ASHCROFT. Well, would the ignorance of the people be
appropriate grounds upon which to set aside the will of the people
which had been expressed through their votes in an initiative proc-
ess?
Judge Marcus. I put my faith in the people to understand fully
what they do, Senator.
Senator Ashcroft. Less than 2 weeks, a Federal appellate judge
urged President Clinton to admit his mistake of judgment and re-
nounce the military "don't ask, don't tell" policy. He also com-
mented that the policy's constitutionality is highly suspect. These
remarks were made at a ceremony.
Do you think it is appropriate for a Federal judge to advise the
President in such settings, in off-the-bench remarks?
Judge Marcus. I think not. My own view is that when we take
the oath as a Federal judge, it is extremely important that we are
careful to remain within the confines of the judiciary, as embodied
in article III of the Constitution, and ought to speak with great
care and discretion, particularly about matters of public con-
troversy and debate.
Senator Ashcroft. For the last quarter century, there has been
a series of cases relating to the rights of States and to the residual
capacity of States to enact laws and the deliberating or otherwise
calling into question the efficacy, power, or the limited scope or na-
ture of the 10th amendment to the Constitution.
Do you believe that there are any areas in which the Constitu-
tion reserves exclusive jurisdiction to States, or is it your view that
any time the Congress acts it automatically preempts the States'
capacity?
Judge Marcus. It seems to me that the Constitution is a docu-
ment, a brilliant document of limited government. It provides for
limited and explicit powers for the executive, legislative and judi-
cial branches of Government. And beyond that, it leaves to the
States and the people the power to decide.
Senator ASHCROFT. Judge, are there any rights that you think
exist for Americans protected by the courts which do not appear in
the Constitution of the United States that should be protected by
the Federal courts?
Judge Marcus. I think the Constitution is a brilliant document,
perhaps the most brilliant document crafted in the name of govern-
ment. It enumerates rights and powers with deliberation and care,
and I think it pretty much got it right.
Senator Ashcroft. So you don't believe there are rights that you
would need to find or create in the Constitution that aren't explic-
itly meant there?
Judge Marcus. I do not.
Senator ASHCROFT. Do you believe that the Constitution is a liv-
ing document that is growing and that there will be rights that will
suddenly appear in the Constitution or will arise in the Constitu-
tion as a result of enlightened members of the judiciary and the
public in the future, or do you believe that the rights that are ex-
pressed therein in the words of the Constitution are the limits of
the rights that should be expressed?
682
Judge Marcus. I think the language and text is clear and it is
explicit and we are bound by what it says.
Senator ASHCROFT. In the event there were to be rights which
the culture felt should be added to those rights enjoyed by the
members of the society, would it be appropriate for the judiciary to
add those rights in judicial decisions?
Judge Marcus. I think not. I think that there is, of course, the
power to amend the Constitution if the people and their represent-
ative officials believe that that is appropriate. I do not believe that
it is the role of the judge or the court, however, to substitute its
judgment for the judgment of the legislative body.
Senator Ashcroft. So it is your view that judges cannot amend
the Constitution, except through their elected representatives?
Judge Marcus. Yes, sir.
Senator ASHCROFT. Thank you.
Senator Durbin.
QUESTIONING BY SENATOR DURBIN
Senator DURBIN. Thank you, Senator Ashcroft.
Judge, thank you for joining us today. I am a relatively new
member of this panel. I have been here a year and I have the high-
est respect for my colleague from Missouri. We disagree on a num-
ber of political issues. I am afraid that if I would take his line of
questioning and engage in a debate on those issues, it wouldn't be
in the best interests of your confirmation or moving this issue
along today, and so I won't.
I will ask one question, though. The Constitution never mentions
the word "privacy," and yet when it comes to so many areas of in-
terpretation, the courts have said Americans have a right to be left
alone, have a right not to be harassed by their government, and
have a right to make individual decisions.
So absent that word "privacy," if you are going to take a strict
construction of the Constitution, where do you find refuge for the
conclusion that we should be left alone?
Judge Marcus. I think the Supreme Court has spoken, and spo-
ken clearly on the subject, and has repeatedly spoken about the
issue of privacy and I think that its pronouncements bind us all.
I think they have found a right to privacy in a variety of amend-
ments to the U.S. Constitution and have spoken in a variety of
fields, including marriage and procreation, the right to raise your
children and educate them as you see fit. And I think that these
principles have been clearly enunciated and repeatedly upheld by
the Supreme Court of the United States.
Senator DURBIN. At the risk of getting us both in trouble with
the majority on the committee, I will move on to another question.
Let me ask you about the Federal Sentencing Guidelines.
Judge Marcus. Yes, sir.
Senator DuRBiN. As a district court judge, you have dealt with
those quite a bit. What is your opinion of the Sentencing Guide-
lines?
Judge Marcus. We have had an experience for the last 8 or 9
years and have sentenced many thousands of defendants under it
in the Southern District of Florida. My own experience is that the
Sentencing Guidelines have worked well. I think they have accom-
683
plished three things that they were really designed to do; first, to
compress disparity in sentence; second, to build in greater predict-
ability and certainty in the sentencing process; and, third, to re-
quire district judges to give the reasons or explicate the rationale
for its rulings and to take into account a wide variety of cir-
cumstances that the Congress and Sentencing Commission thought
ought properly to be taken into account — relevant conduct, role in
the offense, prior criminal record, and so on. My own experience is
that the Sentencing Guidelines have worked well.
Senator DURBIN. If you are confirmed as an appellate judge, at
some point you may be faced with applying a Supreme Court prece-
dent which you do not personally agree with. Would you consider
yourself bound by the precedent or your conscience, and how would
you make that call?
Judge Marcus. I believe that when you take the oath as a judge,
you are bound to support, uphold, and defend the Constitution and
laws, and you are bound to follow the precedent of the Supreme
Court of the United States.
Senator DURBIN. Thank you, judge.
Judge Marcus. Thank you.
Senator DURBIN. Thank you, Mr. Chairman.
Senator ASHCROFT. I want to thank you very much for appearing
before the committee and for coming, and we look forward to an op-
portunity to act on your nomination in the Senate as a whole.
Judge Marcus. Thank you very much, Mr. Chairman. Thank
you. Senator Durbin.
Senator AsHCROFT. The committee will proceed now by asking
the other nominees to come forward together, if you would, please,
and so would you please all approach the witness table — ^Ann Lou-
ise Aiken, Rodney W. Sippel, Jerome B. Friedman, and Norman K.
Moon.
Senator DURBIN. Mr. Chairman, I have a statement from Senator
Leahy in support of Ann Aiken which I would ask permission to
be entered into the record.
Senator ASHCROFT. Without objection, it is so ordered.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick J. Leahy
I commend the Chairman for holding this confirmation hearing for judicial nomi-
nees this morning and for noticing a second session for tomorrow. If we are able
to proceed with these 13 nominees the Committee will make some progress toward
reducing the backlog of judicial nominees pending before the Committee and await-
ing their hearings.
I am particular delighted to see Ann L. Aiken included this morning. She is nomi-
nated to fill a judicial emergency vacancy and was first nominated in November
1995, almost two years ago. She had a confirmation hearing in September 1996. I
hope that the Committee will now proceed without dela}' to consider her nomination
as well as the nominations of Clarence Sundram and Judge Sonia Sotomayor and
the other nominees participating today. We should be moving promptly to fill the
vacancies plaguing the federal courts.
While I am encouraged that the Committee is today proceeding with a hearing
on these five nominees, there remains no excuse for the Committee's delay in con-
sidering the nominations of such outstanding individuals as Professor William A.
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret
McKeown, and Ms. Susan Oki Mollway, to name just a fev/ of the outstanding nomi-
nees who have all been pending all year vidthout so much as a hearing. Professor
Fletcher and Ms. Mollway had both been favorably reported last year. Judge Paez
had a hearing last year but has been passed over so far this year.
684
After this hearing, the Committee will still have pending before it almost 40 nomi-
nees in need of a hearing from among the 73 nominations sent to the Senate by
the President during this Congress. From the first day of this session of Congress,
this Committee has never had pending before it fewer than 20 judicial nominees for
hearings. The Committee's backlog had doubled to more than 40.
Many of these nominations, including that of Ms. Aiken for the District Court in
Oregon, were before us last Congress, during the election year slowdov/n, and have
had to be renominated by the President. The vacancies for which they are nomi-
nated have not been filled but persist for periods now reaching years. The Commit-
tee still has pending before it 10 nominees who were first nominated during the last
Congress, including Ms. Aiken and four others, who had been pending since 1995.
Thus, while I am delighted that we are moving more promptly with respect to some
of the nominees being considered today, I remain concerned about the other vacan-
cies and other nominees.
At the snail's pace that the Committee and the Senate are proceeding with judi-
cial nominations, we are not even keeping up with attrition. When we adjourned
last Congress there were 64 vacancies on the federal bench. After the confirmation
of 22 judges in 10 months, there has been a net increase of 28 vacancies, an increase
of almost 50 percent in the number of federal judicial vacancies. Thus, vacancies
have been increasing not decreasing over the course of this year and the vacancy
crises remains. The Chief Justice of the United States Supreme Court has called
the rising number of vacancies "the most immediate problem we face in the federal
judiciary."
I commend Senator Hatch's effort to hold two days of hearings this week and to
accelerate the pace at which nominations are moved through the Committee. Unfor-
tunately, this is only the seventh confirmation hearing for judicial nominees that
the Committee has convened all year. By this time two years ago, the Committee
had held 10 confirmation hearings involving 46 judicial nominees. And, unfortu-
nately, no regular Executive Business Meeting of the Committee has been noticed
for this week. Accordingly, the Committee will not have an opportunity to report
any judicial nominees or the nomination of Bill Lee to be Assistant Attorney Gen-
eral for the Civil Rights Division.
I have urged those who have been stalling the consideration of these fine women
and men to reconsider their action and work with us to have the Committee and
the Senate fulfil its constitutional responsibility. Those who delay or prevent the fill-
ing of these vacancies must understand that they are delaying or preventing the ad-
ministration of justice. Courts cannot try cases, incarcerate the guilty or resolve civil
disputes without judges. The mounting backlogs of civil and criminal cases in the
dozens of emergency districts, in particular, are growing more critical by the day.
Senator ASHCROFT. Would you nominees please raise your right
hands? Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. SiPPEL. I do.
Judge Moon. I do.
Judge Aiken. I do.
Judge Friedman. I do.
Senator ASHCROFT. Thank you very much. You may be seated.
Senator Durbin, I will turn to you to begin the questioning here.
QUESTIONING BY SENATOR DURBIN
Senator DURBIN. Let me say at the outset, Mr. Chairman, that
Mr. Sippel is a personal friend and acquaintance from the St. Louis
area, where I was born, and I am happy to see him before this com-
mittee today and am happy to support his nomination.
I will start with you, Mr. Sippel, for the record.
TESTIMONY OF RODNEY W. SIPPEL, OF MISSOURI, TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN AND WESTERN DIS-
TRICTS OF MISSOURI
Mr. Sippel. I am sure everyone else appreciates that. [Laughter.]
685
Senator DURBIN. You have kind of taken the short straw in
terms of alphabetical preference here.
Your biography indicates you have been admitted to practice in
the Missouri and Illinois U.S. district courts and U.S. court of ap-
peals. In your personal opinion, what have been the major dif-
ferences in your practice between the State and Federal courts?
Mr. SiPPEL. The Federal courts — certainly, the Eastern District
of Missouri — have been much more aggressive in alternative dis-
pute resolution, early intervention in a case in order to manage the
case, often to a more successful and early settlement to the benefit
of the parties and saving a lot of expense. And I think that is a
very worthy and good result in terms of the difference between the
State and the Federal benches in Missouri.
Senator Durbin. One other thing I note in your background is
an extensive civil experience, civil litigation experience, which has
been noted by Senators Bond and Ashcroft. As a Federal district
judge, though, you will be faced with many criminal cases and I
would like to ask you what steps you will be taking to familiarize
yourself with the criminal practice.
Mr. SiPPEL. When I was first nominated, I met with the chief
judge of the eastern district and several of the other sitting judges
and actually raised this issue with them and have hopefully alerted
them to that need that, as with any profession, I need to learn and
grow. And they were very supportive and felt that in pretty short
order that the nature of not being familiar with the criminal side
of the practice would be something, if I devoted myself to, I would
be able to accomplish.
Senator DURBIN. We are finding in many areas of Illinois, and
I don't know if it is the case in Missouri, that because of some —
how do I put this — because of vacancies on the bench, we have seen
some of our judges who have had to focus more on the criminal side
because of these deadlines that they face in considering motions
and moving cases along. I don't know if that is the case in Mis-
souri.
Do you happen to know what the backlog is and what the usual
time is between filing and taking a case, for example, to civil trial?
Mr. SiPPEL. It is still less than — the eastern district sort of tracks
cases. When you first file it, you have to notify the court as to what
track you are on — 12, 18, or 24 months. It is unusual now for a
case to still be pending more than 2 years and it is common for a
case to be tried within a year, year-and-a-half. So, that backlog —
and I think in large part due to the effective use of magistrate
judges — has not been an issue in the Eastern District of Missouri.
Senator DURBIN. You were involved in setting up a pro bono
practice at your law firm and I would like to ask you if you could
relate to the committee what your experience was in organizing
that practice.
Mr. SiPPEL. It was a voluntary pro bono program, but it was well
received by the attorneys in the firm. There was a great need lo-
cally for pro bono assistance by attorneys, especially for women in
abusive marriages who could not afford an attorney and needed
help getting through the system. And it has been very worthwhile
both for attorneys and those who received the benefit of those sen/-
ices.
686
Senator DURBIN. Thanks, Mr. Sippel.
Judge Moon, I note that you are a professor, in addition to a
number of other things on the professional level that you have
done, and teach a trial advocacy course. Is that correct?
TESTIMONY OF NORMAN K. MOON, OF VIRGINIA, TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA
Judge Moon. Yes.
Senator DURBIN. How long have you done that?
Judge Moon. Twenty-one years.
Senator DURBIN. Can you give me your impression of law stu-
dents today and their preparation for practice and your experience
with these same students once members of the bar as trial advo-
cates?
Judge Moon. Well, I think it is much better today because the
law schools have put greater emphasis on practice courses. When
I was in law school, there was only one trial advocacy class for the
whole law school student body. Today, there are probably six or
more each semester, so that most all students have an opportunity
to go through these courses. I think there is much more emphasis
in the CLE programs on trial advocacy than there was, say, 20
years ago.
This was spurred on mostly by Chief Justice Burger's comment
that 50 percent of the lawyers who practiced were incompetent,
and I think that caused a great impetus for trial advocacy being
taught in the law schools and the bar getting involved.
Senator Durbin. Your service has been at the State court level.
What do you perceive to be the real difference between the State
bench and the Federal bench, to which you are seeking appoint-
ment?
Judge Moon. Well, relative to the fact — the major difference, I
think, that would take place in Virginia — and Virginia may be
unique — the use of summary judgment in the Federal court is
much more extensive than in the State court. In Virginia, it is very
hard to get summary judgment on any issue, the statutes and rules
that prohibit the use of depositions and affidavits for summary
judgment. So I anticipate, other than the jurisdiction and some of
the substantive issues such as bankruptcy, that type of thing — but
I think that the actual practice — the major difference will be the
use of summary judgment.
Senator DURBIN. My last question of you in this round, and then
I will defer to Senator Ashcroft and ask the other two nominees in
the second round, can you describe for the committee the substance
of your work on the Com.mission on Family Violence Prevention?
Judge Moon. Well, I have been on that commission for several
years now, and basically we have met very frequently and consid-
ered— the committee was more or less started by the chief justice
of our court, of our supreme court, who took a special interest in
this subject. The legislature subsequently turned it into a legisla-
tive commission and reappointed all the members the chief jus-
tice— most of those members.
We have met for about 2 years. We have studied legislation. We
have tried to get a handle on how much domestic violence there
was. A great deal of legislation has come out of that committee. I
687
can't say that I can take any credit for any particular item that is
coming out, but at this point I am Chair of a committee that is try-
ing to come up with a way to allow persons who are being stalked
to establish a residence so that they — not like the witness protec-
tion program, but at least they will be able to have addresses, be
able to vote, have their mail sent to a location so that the stalker
hopefully will not be able to locate them.
Senator DURBIN. Judge, in the interest of avoiding family ten-
sion, my staff reminds me that I should ask you to introduce your
family and friends who are present here today.
Judge Moon. OK. Well, sir, thank you. My wife, Barbara, is with
me and I would like to present her.
Senator DURBIN. Glad to have you here. Thank you very much.
Mr. Sippel.
Mr. Sippel. My wife, Mary, is here, and good friends Spencer and
Carol Dickerson. Thank you for the opportunity to introduce them.
Senator DURBIN. Thanks, and I am sure Senator Ashcroft will af-
ford the same opportunity to the other nominees.
Senator Ashcroft. I certainly will, and it was my neglect — my
staff had also prompted me — that I forgot to allow the nominees to
do so. So we will not ask you to do it twice, and I would invite
Judge Aiken to introduce her family that is here and then Mr.
Friedman to do the same, please.
TESTIMONY OF ANN L. AIKEN, OF OREGON, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF OREGON
Judge Aiken. Thank you. I would like to introduce my husband,
James Klonoski; my oldest son, Jstke, who is holding my youngest
son, Christopher. Samuel Klonoski is seated over there, raising his
hand; Nicholas, my No. 2 son; and my No. 3 son, Zachary, behind
my husband. And I have a number of friends, and I won't take the
committee's time to introduce them, who are also here.
Senator ASHCROFT. Well, thank you very much for coming.
Jerome Friedman, please introduce those who are with you.
TESTIMONY OF JEROME B. FRIEDMAN, OF VIRGINIA, TO BE
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIR-
GINIA
Judge Friedman. Thank you, Mr. Chairman. I would like to in-
troduce my wife, Sandra; almost 29 years and if I made a mistake,
I am in big trouble. She is a history — a government teacher teach-
ing 12th grade advanced placement government students, and I
know it is a thrill for her to be here personally, but also profes-
sionally.
Thank you very much, Mr. Chairman.
QUESTIONING BY SENATOR ASHCROFT
Senator Ashcroft. Thank you very much.
I would begin by asking a question of Judge Aiken, from Oregon.
Judge, how do you feel the role of a Federal judge would differ from
that of a State judge, a responsibility which you now hold?
Judge Aiken. Mr. Chairman, I have appreciated the role as a
State court judge. Federal courts have different issues, more com-
plex issues, resources available to it to decide cases early, to make
688
a difference with alternative dispute resolution. We have had in
our Federal court a very active use of magistrates, and Judge
Hogan, who is our presiding judge, has been tremendously respon-
sible for keeping the docket moving with enormous use of settle-
ment conferences. So I look forward to using all those tools that are
ready and available in Oregon in our district court.
Senator Ashcroft. In responding to a questionnaire of the com-
mittee, you indicated that crime often, quote, "stems from cycles of
abuse and neglect, drug and alcohol use, and poor education." How
would these conclusions which you reach affect your approach to
criminal statutes and sentencing decisions?
Judge Aiken. Well, Mr. Chair, the sentencing guidelines and the
requisites for imposing sentences are set out by statute and I follow
those. Oregon has sentencing guidelines within the State and I fol-
low those guidelines and understand that that is a determination
made by the legislative body.
In taking a look at what are the roots of crime, those issues are
addressed in sentencing guidelines, as well as with treatment pro-
grams that are adjunct to the guidelines once individuals are in
sentenced positions. I can't help but notice those are the issues that
I see as individuals come before me, but guidelines dictate what
the sentences will be.
Senator AsHCROFT. Has your experience as the chief clerk of the
State legislature given you any insights concerning the value of
legislative history in interpreting statutes?
Judge Aiken. It was a privilege to hold that job. It was a non-
partisan position where I had an opportunity to see the inside of
the legislature in Oregon. I believe legislative history is an impor-
tant tool in looking at, as you go through the analysis of a statute
or a constitutional issue, to make a determination. It certainly isn't
the first thing you look at, but, if necessary, I feel well-equipped
to be able to read and understand legislative history and to, to the
best of my ability, use that legislative history in guiding me in
making a decision within the confines of a case.
Senator ASHCROFT. In interpreting a law, if the legislative his-
tory conflicts with the words expressed in the law, which should
prevail?
Judge Aiken. The law.
Senator AsHCROFT. Do you feel that there are any rights that do
not exist in the Constitution which ought to be — that exist inde-
pendent of the Constitution?
Judge Aiken. No, sir. The Constitution is one of the most ele-
gantly written documents. The words of the Constitution are clear.
It expresses the rights that are given. I find no need to look beyond
those express words and the document itself.
Senator AsHCROFT. Mr. Friedman, I asked earlier a question of
Judge Marcus about initiatives enacted by voters in various areas.
I don't know whether Virginia has such a potential. Do you know
if that is the case in Virginia, whether the voters exercise the right
to bring into existence statutes by initiative?
Judge Friedman. Not as they do in California, no, Mr. Chair-
man.
Senator ASHCROFT. The 10th amendment to the Constitution re-
serves to States certain powers, all powers not enumerated to the
689
Federal Government. Do you view the 10th amendment as being a
viable part of the Constitution, and do you respect the right of
States to have exclusive jurisdiction in some areas?
Judge Friedman. I, certainly, do feel it is a viable part of the
Constitution and there are certain areas, obviously, that the States
have to get involved with and I have no problem with that concept,
in very limited areas.
Senator ASHCROFT. Are there any issues, such as capital punish-
ment, on which you find yourself in substantial disagreement with
the laws of the United States so that it would be difficult for you
to apply the law in an impartial manner?
Judge Friedman. Absolutely not. The Supreme Court has de-
cided capital punishment issues and I have absolutely no problem
in adhering to those decisions and upholding the death penalty.
Senator ASHCROFT. In the event that you were to have a personal
disagreement with the kind of sentence that the guidelines re-
quired, be it capital punishment or otherwise, what would your re-
sponse— how should you conduct yourself?
Judge Friedman. Well, the guidelines were established by the
legislative body. It is my opinion that the judges, and certainly I,
if confirmed, would adhere to the guidelines and follow the guide-
lines. There are some discretionary areas of the guidelines and in
those areas the court would exercise its — and I would exercise my
discretion.
But as Judge Marcus eloquently put it earlier, the guidelines are
there for very good reasons, and certainly I would have no problem
in exercising my sentences in accordance with the guidelines.
Senator Ashcroft. Thank you very much. I see my time is ex-
pired.
It is time for your second round. Senator Durbin.
questioning by senator durbin
Senator Durbin. Thank you very much.
Well, Judge Aiken, I am impressed that anyone from Oregon
might know where Somonauk, IL, is. I note here that you
Judge Aiken. I have been there.
Senator Durbin. You have some family connection there?
Judge Aiken. Yes, sir.
Senator Durbin. Yes. Let me ask, if I might, you have served on
a juvenile justice commission, have you not?
Judge Aiken. Yes, sir.
Senator DURBIN. And how long a period of time did you serve on
that?
Judge Aiken. It was approximately 2 years and it concluded with
legislation that created new juvenile beds in our State and created
a new Oregon Youth Authority that essentially brought juvenile
justice into its own, taking it out of child protection services and
making its own entity, and that commission now is complete.
Senator DURBIN. Was it a good experience?
Judge Aiken. It was a tremendous experience.
Senator Durbin. What did you learn serving on that commission
that was new to you that you didn't know going in or might have
surprised you?
690
Judge Aiken. It was an opportunity to look across the State and
see what issues were facing rural and urban parts of the commu-
nities. It gave us a chance to come together and try to balance how
resources could be better allocated for youth and to come across
with consistency on how we would address issues of juvenile crime.
I think what is interesting is, as a commission, there was great
unanimity about a need to address this issue, and to address it
firmly and to get on with it and make the task force not only just
a report, but a reality. And we were very successful in not only cre-
ating juvenile beds, but boot camps and regional academies.
Senator DURBIN. Did you have a chance as a member of that
commission to meet face to face with young men or women who
had been accused of juvenile crime?
Judge Aiken. Absolutely. We were in the institutions. We trav-
eled across the State in programs that came before the committee.
We worked both in urban areas, rural areas. I think we were all
incredibly impressed with what the young people who were housed
in the training schools had to tell us, what would have been helpful
to stop their ending up in that program. It was a tremendous expe-
rience.
Senator DURBIN. Did it change your viewpoint as a judge in
terms of how to handle cases involving juvenile justice?
Judge Aiken. It reminded me that we need just as parents to be
consistent and we need to be swift in discipline, and in this in-
stance responding when a crime is committed. In my community,
we aren't able to file juvenile cases unless a felony has been com-
mitted, so we will have offenders who have had multiple mis-
demeanors and no action taken. And I think that is not the mes-
sage we need to be giving to the young people.
Senator E JRBIN. Thank you.
Mr. Friedman, your background, of course, is serving as a judge
on a circuit court in Virginia Beach. You are not embarking on an
effort to enter the Federal structure of justice in this country. How
do you see that as a different challenge, or is it a different chal-
lenge?
Judge Friedman. It is a different challenge, certainly, because
some of the decisions that Federal judges make affect so many peo-
ple. On the State court level, the decisions we make in many cases,
and in most cases, I would say, affect the individuals before you.
But in Federal cases, a decision could have wide ramifications for
numerous classes of people or people. So I think that is one of the
major differences.
Senator Durbin. Senator, I would like to close this, if I might,
by asking each of the nominees a question I always ask nominees
in Illinois when they would like to ascend to the Federal bench and
it is one that they usually are surprised at, but now that I am ask-
ing it for the first time, I think every nominee before us will antici-
pate it.
But what is the last book that you read. Judge Aiken?
Judge Aiken. The last book that I read? I am in the middle of
about three different books.
Senator DURBIN. You sound like me.
Judge Aiken. The last book I completed was actually the most
recent Grisham book that came out, very frankly.
691
Senator DURBIN. It figures.
Judge Aiken. Yes.
Senator DURBIN. Judge Friedman.
Judge Friedman. "The Tenth Justice."
Senator DURBIN. Very good.
Judge Moon.
Judge Moon. The last one I read was on a plane, "Donnie
Brasco," the FBI agent who infiltrated the Mafia.
Senator DURBIN. Great.
Mr. Sippel.
Mr. SiPPEL. Reagan's speechwriter, Peggy Noonan's book, "Life,
Liberty and the Pursuit of Happiness."
Senator Durbin. You can see his political background that he
would be preparing himself. Senator, for this.
Thank you very much.
Senator ASHCROFT. Thank you very much.
Judge Moon, are there any rights not enumerated in the Con-
stitution that you believe should be added to the Constitution?
Judge Moon. No, sir. I know of none.
Senator ASHCROFT. Do you believe that the Constitution is a liv-
ing document which expands and grows to meet new cir-
cumstances, or that if it is to be amended, it has to be amended
by the terms of the Constitution through one of the amendment
techniques?
Judge Moon. I believe it must be amended through the normal
procedure set forth in the Constitution.
Senator ASHCROFT. Are there any issues, such as capital punish-
ment, that you might be required to be involved with as a judge
which as a matter of conscience you could not be involved with?
Judge Moon. No, sir, there are no issues.
Senator ASHCROFT. Mr. Sippel, are there any issues with which
you might be required to deal as a Federal judge on which you
have such a substantial disagreement with the law of the United
States that it would make it difficult for you to operate as a judge?
Mr. SiPPEL. Mr. Chairman, the answer to that is no.
Senator ASHCROFT. Are there any rights that you think it would
be necessary for you to develop in the Constitution which do not
exist as part of the Constitution now?
Mr. SiPPEL. No, Mr. Chairman.
Senator ASHCROFT. Mr. Sippel, you will be working in a jurisdic-
tion that has a substantial heritage of initiative efforts and you
have worked with them in prior cases. Have you read the Ninth
Circuit Court of Appeals decision regarding the term limits in the
State of California?
Mr. SiPPEL. I have not read that decision, Mr. Chairman. As you
know, in Missouri we did have initiative adoption of term limits for
State representatives and State senators which is in force.
Senator ASHCROFT. Do you think it would be appropriate for judi-
cial officers to, from the perspective of the bench, sort of try to fig-
ure out whether or not people had made an informed decision and
sustain an initiative, or whether they weren't adequately informed
and as a result to set aside a decision based on the fact that the
voters were ignorant?
692
Mr. SiPPEL. I am at a loss to be able to defend that analysis. I
think in any initiative petition, you start out not with just a pre-
sumption that it is valid, but an overwhelming presumption that
is enforceable because the people have spoken, and it is not for a
Federal judge to substitute their judgment for that of the will of
the people.
Senator ASHCROFT. On what grounds could an initiative statute
be set aside?
Mr. SiPPEL. I can't think of any. In Missouri State law, there are
occasions where the language has been a cause, but that is a State
court issue. I can't think of any Federal grounds under which that
would happen.
Senator ASHCROFT. I should have said any grounds other than
constitutional grounds.
Mr. SiPPEL. Well, absolutely. I can't think of any, Mr. Chairman.
Senator ASHCROFT. If there were an initiative, though, to deprive
Missouri citizens of their right to speak freely?
Mr. SiPPEL. Well, certainly, then, contrary to the express lan-
guage of the Constitution, it would be the court's obligation to up-
hold the Constitution.
Senator ASHCROFT. Judge Moon, the 10th amendment has been
the subject of substantial debate. Do you think the 10th amend-
ment is viable or are you among the scholars who believe that the
10th amendment has sort of suffered so much from attrition that
atrophy is about to pronounce its final demise?
Judge Moon. I think it is very viable.
Senator ASHCROFT. So you think there are areas in which the
State does have the exclusive right to govern?
Judge Moon. Yes, sir, Mr. Chairman, I do.
Senator ASHCROFT. Let me thank each of you for coming today.
I appreciate the fact that you are here and that you have brought
members of your families with you and other individuals who ex-
press their support for you. You are all to be commended for having
members of the U.S. Senate ardent in your behalf.
There are committee members who are absent today whose inter-
est could be expressed by way of written questions for you. I would
urge you, in the event that you are the recipient of additional inter-
rogatories in writing, that you would respond to them as quickly
as possible. I believe there is going to be an additional effort to
move individuals through the process before the end of our delib-
erations during this calendar year and that could be just in the
next several weeks. So I offer that suggestion of your prompt atten-
tion to those items because the sooner those kinds of responses
could be received, in the event there are written questions, the
more likely it is that your situation can be acted on by the Senate
as a whole.
Senator Durbin, anything further?
Senator DURBIN. No, Mr. Chairman.
Senator ASHCROFT. Without further proceedings, then, I would
thank each of you for your appearance here and look forward for
an opportunity to act on your measures before the U.S. Senate.
Thank you.
[Whereupon, at 11:44 a.m., the committee was adjourned.]
[Submissions for the record follow:]
693
SUBMISSIONS FOR THE RECORD
y^ITFRTTONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Stanley Marcus.
Address: List current place of residence and office
address (es) .
Office: United States District Court
Southern District of Florida
301 North Miami Avenue, 5th Floor
Miami, FL 33128
Home: Miami, Florida
Date and place of birth.
March 27, 1946
New York, New York
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
I have been married to Judith Sue Rosenbaum since
January 1, 1972.
She currently is employed as an assistant librarian at:
Temple Beth Am
5950 North Kendall Drive
Miami, Florida 33156
She is also employed part-time as a sales representative
at:
Williams-Sonoma
8888 S.W. 136 Street
Miami, Florida 33176
Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Queens College of the City University of New York, Flushing,
NY, September 1963 - June 1967 (including Summer 1964);
B.A. (June 1967) (Magna Cum Laude) .
45-964 98-23
694
Judge Stanley Marcus
United States District Judge
Southern District of Florida
Harvard Law School, Cambridge, Massachusetts, September 1967
- November 1968, September 1969 - June 1971; J.D. (June
1971) (leave of absence taken to satisfy military
service obligation - U.S. Army, Nov. 1968-July 1969).
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.
Year Name of Employer
1967 Bureau of the Budget,
City of New York
1968& Dept. of Rent & Housing
1969 Maintenance, City of New York
1968
Bennett Bros. Inc.
N.Y.
Position
Research Intern
Law Clerk
Order Filler
1968 Hobart Maintenance Corp., N.Y. Taxi Driver
1968-
1969 Dept. of Social Svcs., N.Y. Caseworker
1969 U.S. Army, Ft. Bragg, N.C. Soldier
1970 Strook, Strook & Lavan, N.Y. Law Clerk
1971- U.S. District Court Law Clerk
1973 Eastern District of N.Y.
Hon. John R. Bartels
U.S. District Judge
1974- Botein, Hayes, Sklar &
1975 Herzberg, New York
1975- United States Attorney's Office
1978 Eastern District of New York
1978- United States Dept. of Justice,
1982 Detroit Strike Force, Organized
Crime and Racketeering Section
Law Firm Associate
Asst. United States
Attorney
Special Attorney and
Deputy Chief, and
Chief
695
Judge Stanley Marcus
United States District Judge
Southern District of Florida
1982- United States Attorney's Office United States
1985 Southern District of Florida Attorney
1985- United States District Court United States
Present Southern District of Fla. District Judge
1997 Brooklyn Law ^chool, N.Y. Professor of
Trial Advocacy
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.
Yes.
U.S. Army
Active Duty: March 8, 1969 - July 12, 1969
Reserve Duty: October 28, 1968 - October 27, 1974
Rank E4
Serial No. ER12779852
Honorably Discharged: July 12, 1969
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
Magna Cum Laude. Queens College, City University of New York
A. Joseph Geist Law Scholarship, Queens College,
City University of New York
Member and President of Pi Sigma Alpha, National Political
Science Honor Society, Queens College,
City University of New York
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.
Federal Bar Association - Florida Chapter, 1982-present;
Member of the Executive Committee of the Federal Bar
Association's local chapter, 1982-1985.
696
Judge Stanley Marcus
United States District Judge
Southern District of Florida
Association of the Bar of the City of New York, 1974
The Florida Bar, 1985
Judicial Conference of the United States
Federal-State Jurisdiction Committee Member (1988-1992) and
Chair (May, 1992 - September, 1995)
Ad Hoc Committee on Violence Against Women (Chair) , 1992-
1994
National Conference on State-Federal Judicial Relationships
(1991-1992)
Southern District of Florida
Executive Committee (1994-Present)
Magistrate's Committee (Chair) (1986-1992)
Security Committee (1995-Present)
Civil Justice Advisory Committee (1991-1996)
Budget Committee (1996-present)
Rules Committee (1989-1995)
Judicial Council of the Eleventh Circuit
Education Committee (1997)
Committee on Pattern Jury Instructions of the District
Judges Association of the Eleventh Circuit
(1996-Present)
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 organization active in lobbying before public
bodies. I am a member of Temple Zion, Miami, Florida.
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.
Court Date of Admission
697
Judge Stanley Marcus
United States District Judge
Southern District of Florida
Appellate Division of the
Supreme Court of State of New York May 1972 Term
United States Court of Appeals for
the Second Circuit November 7, 1974
United States District Court for the
Southern District of New York May 14, 1974
United States District Court for the
Eastern District of New York May 14, 1974
United States Court of Appeals for
the Eleventh Circuit February 3, 1983
Supreme Court of Florida January 8, 1985
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.
1) Speech to Citizens Crime Watch Luncheon, May 10, 1982.
2) A. Messerschmidt, "Dade, U.S. Team Up to Prosecute
Aliens," The Miami Herald, June 3, 1982, p. 1-B.
3) Speech to Cuban American Bar Association,
June 22, 1982.
4) Speech to Sigma Delta Chi, June 23, 1982.
5) Speech to Tower Forum, June 24, 1982.
6) Speech to Corporate Counsel Association of Dade County,
August 20, 1982.
7) Speech to Federal Bar of Broward County,
February 18, 1983.
8) P. Slevin, "Murders by Aliens Targeted," The Miami
Herald, April 8, 1983, p. 1-B.
698
Judge Stanley Marcus
United States District Judge
Southern District of Florida
9) Speech for Law Day U.S.A., April 29, 1983.
10) Statement of Stanley Marcus, United States Attorney,
Southern District of Florida, Before the U.S. Senate
Drug Enforcement Caucus; Subcommittee on Security and
Terrorism Committee on the Judiciary; and the
Subcommittee on Western Hemisphere Affairs. Committee
on Foreign Relations. United States Senate.
April 30, 1983, and transcript of remarks to the
Committee.
11) J. McGee, "Castro Backs Drug Traffic, U.S. Claims,"
The Miami Herald, May 1, 1983, p. 1-A.
12) Speech to The Miami Citizens Against Crime,
June 7, 1983.
13) H. Silva, "U.S. Crackdown Costing Smugglers Cash and
Assets," The Miami Herald, June 8, 1983, p. 3-B.
14) International Society of barristers, Vol. 18, No. 3,
July 1983, "The War Against South Florida Crime,"
by Stanley Marcus.
15) Speech to Tiger Bay Club, August 18, 1983.
16) Statement of Stanley Marcus, United States Attorney,
Southern District of Florida, Before the Select
Committee on Narcotics Abuse and Control , House of
Representatives , October 12, 1983.
17) Statement of Stanley Marcus, United States Attorney,
Southern District of Florida, Before the Subcommittee
on Crime, Committee on the Judiciary House of
Representatives. October 14, 1983.
18) Speech to The Miami Citizens Against Crime,
October 26, 1983.
19) Speech to Dade County Outstanding Citizens Award
Luncheon, October 27, 1983.
20) Speech to Financial Institutions Security Association,
March 15, 1984.
699
Judge Stanley Marcus
United States District Judge
Southern District of Florida
21) Statement of Stanley Marcus, United States Attorney,
Southern District of Florida, Before the Senate
Permanent Subcommittee on Investigations,
March 21, 1984.
22) Statement of Stanley Marcus, United States Attorney,
Southern District of Florida, Before the Senate
Subcommittee on Alcoholism and Drug Abuse,
May 10, 1984.
23) S. Marcus, "How Drug Money Can Corrupt Us," The Miami
Herald, May 20, 1984, p. 1-E.
24) Speech to the FDIC, May 30, 1984.
25) Speech at Second Annual Commercial Maritime Seminar,
June 8, 1984.
26) Speech to International Association of Journalists &
Editors, June 9, 1984.
27) Testimony Before the Governor's Commission on Drug and
Alcohol Concerns, September 12, 1984.
28) Speech to Grand Jury Association of Florida,
November 1, 1984.
29) Speech Before the Coral Gables Bar Association,
November 21, 1984.
30) Speech to Leadership Florida Conference,
January 18, 1985.
31) Speech to National Association of Former United States
Attorneys, Scottsdale, Arizona, March 30, 1985.
32) Speech to Miami Beach Bar Association, June 11, 1985.
33) International Society of Barristers, Vol. 21, No. 2,
April 1986, "Public Confidence in Criminal Justice,"
by Stanley Marcus.
34) Federal Sentencing Reporter, Vol. 6, No. 1, July/August
1993, "Substantial Assistance Motions: What is Really
Happening?", by Judge Stanley Marcus, United States
District Court, Southern District of Florida.
700
Judge Stanley Marcus
United States District Judge
Southern District of Florida
35) State-Federal Judicial Observer. No. 4, December 1993,
"Obiter Dictum - Erosion of Public Confidence in
Criminal Justice System Is Source of Increased
Federalization of Crime," by Judge Stanley Marcus,
United States District Court, Southern District of
Florida.
36) Statement of the Honorable Stanley Marcus, Chairman,
Judicial Conference Committee on Federal-State
Jurisdiction, Before the United States House of
Representatives, Subcommittee on Intellectual Property
and Judicial Administration. Committee on the
Judiciary. May 26, 1994.
37) Eleventh Circuit Pattern Jury Instructions (Criminal
Cases) 1997; edited, revised and updated by Judges
Hodges (Chair) , Marcus, Hancock, Butler, Vinson,
Edenfield and Carnes (Committee on Pattern Jury
Instructions of the District Judges Association of the
Eleventh Circuit) .
13. Health: What is the present state of your health? List the
date of your last physical examination.
I am in excellent health; August 1997.
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 am a United States District Judge for the Southern
District of Florida. I was appointed by the President and
began serving on August 16, 1985.
The district courts have jurisdiction of civil and criminal
actions arising under the Constitution, laws or treaties of
the United States.
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
701
Judge Stanley Marcus
United States District Judge
Southern District of Florida
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions.
(1) Citations for ten most significant opinions:
1. Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107
(S.D. Fla. 1987).
2. White V. Wainwriaht. 632 F.Supp. 1140 (S.D. Fla. 1986),
aff 'd. 809 F.2d 1478 (11th Cir.), cert, denied. 483
U.S. 1044 (1987).
3. Consol. Gas Co. of Fla. v. City Gas Co. of Fla.. 665 F.
Supp. 1493 (S.D. Fla. 1987), aff 'd, 880 F.2d 297 (11th
Cir.), reh'g granted and opinion vacated by 889 F.2d
264 (11th Cir. 1989), opinion reinstated on reh'g en
banc by 912 F.2d 1262 (11th Cir. 1990), judgment
vacated by 499 u.s. 9i5 (i99i).
4. U.S. V. Benefield, 874 F.2d 1503 (11th Cir.
1989) (double jeopardy), Marcus, J., sitting by
designation, writing for the panel.
5. Carnival Cruise Lines. Inc. v. Oy Wartsila AB. 159 B.R.
984 (S.D. Fla. 1993) .
6. Bennett v. United States. 102 F.3d 486 (11th Cir.
1996), Marcus, J., sitting by designation, writing for
the panel.
7. Austin V. Blue Cross and Blue Shield of Alabama. 903
F.2d 1385 (11th Cir. 1990), Marcus, J., sitting by
designation, writing for the panel.
8. U.S. V. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990).
9. Doe V. State of Fla. Judicial Qualifications
Commission, 748 F. Supp. 1520 (S.D. Fla. 1990).
10. Costa Crociere, S.p.A. v. Rose, 939 F. Supp. 1538 (S.D.
Fla. 1996).
(2) : Summary of and citations for all appellate opinions
where district court decisions were reversed or
affirmed with significant criticism:
702
Judge Stanley Marcus
United States District Judge
Southern District of Florida
Seminole Tribe of Florida v. State of Florida, 801 F.
Supp. 655 (S.D. Fla. 1992), rev'd by 11 F.3d 1016 (11th
Cir. 1994), aftid, 116 S.Ct. 1114 (1996).
An Indian tribe sued the State of Florida in
federal district court under the Indian Gaining
Regulatory Act ("IGRA") seeking to require the state to
negotiate in good faith to enter into a Tribal-State
Compact governing conduct of gaming activities on
tribal lands within the state. The state sought
dismissal of the action under the Eleventh Amendment,
contending that the provision of IGRA which granted
district courts jurisdiction over any cause of action
arising from the failure of a state to negotiate in
good faith under the terms of the statute was beyond
the power of Congress to mandate.
Based upon the Supreme Court's binding decision in
Pennsylvania v. Union Gas Co. , 490 U.S. 1 (1989), which
held that Congress had the power and authority under
Article I to regulate commerce and thus could override
a state's Eleventh Amendment sovereign immunity, the
district court denied the motion to dismiss the action,
noting that Congressional power over Indian affairs is
plenary and that the Indian Commerce Clause and the
Interstate Commerce Clause are both in Article I, § 8,
cl. 3. (The district court later ruled on the merits
that Florida had fulfilled its obligation to negotiate
in good faith. 116 S.Ct. at 1122 n.6.)
On appeal, the Eleventh Circuit reversed and
remanded the case to the district court with
instructions to dismiss the action. In an opinion in
which the court forecast the future invalidity of the
Union Gas decision and, finding that the passage of
IGRA had not created an entitlement for the tribe, the
court ruled that IGRA had been based only on the Indian
Commerce Clause, not the Interstate Commerce Clause,
and held that to be an insufficient basis on which to
abrogate the state's sovereign immunity under the
Eleventh Amendment.
On review, the Supreme Court noted that its Union
Gas decision allowed no principled distinction in favor
of the states to be drawn between the Indian Commerce
Clause and the Interstate Commerce Clause and that the
decision had created confusion and was essentially out
10
703
Judge Stanley Marcus
United States District Judge
Southern District of Florida
of line with its earlier precedents. The Court
therefore reconsidered Union Gas, concluded that it had
been wrongly decided and overruled its own prior
precedent on which the district court had relied.
Consequently, the Court affirmed the finding that
Congress had not possessed the power to abrogate the
state's Eleventh Amendment protection.
2. Linder v. Calero Portocarrero. 747 F. Supp. 1452 (S.D.
Fla. 1990), aff d in part and rev'd in part. 963 F.2d
332 (11th Cir. 1992) .
Survivors of an American citizen who was alleged
to have been tortured and killed in Nicaragua by anti-
government forces in the midst of a civil war in
Nicaragua brought civil action in federal court in
Miami against anti-government organizations and
leaders, charging the defendants with civil conspiracy
and wrongful death, battery, intentional infliction of
emotional distress, violation of Geneva Conventions,
international law and other treaties. The district
court granted defendants' motion to dismiss the
complaint, finding that the plaintiffs' claims were
non-justiciable due to operation of the political
question doctrine and that neither customary
international law nor the Geneva Conventions provided a
private right of action. The court noted the intimate
link between the activities of the contras and the
political branches' policy toward Nicaragua — "an
inquiry which would surely involve efforts to uncover
the nature of the relationship between United States
policy and the actions of the contras" — and found
that the "actions of the contras should be called into
question, if at all, by the political branches of
government to whom the conduct of foreign affairs is
trusted. "
On appeal, the Eleventh Circuit reversed one
narrow portion of the district court's ruling, while
affirming other parts of the order of dismissal. The
court pointed out that the plaintiffs were raising on
appeal a much more focused issue than those raised in
the broad-based, 33-page complaint adjudicated by the
district court, and concluded that the amended
complaint contained within its allegations a narrow
issue of Florida tort liability upon which relief might
be granted.
11
704
Judge Stanley Marcus
United States District Judge
Southern District of Florida
3. Von Stein v. Brescher, 696 F. Supp. 606 (S.D. Fla.
1988), rev'df 904 F.2d 572 (11th Cir. 1990).
The managing agent of a shopping center brought a
civil rights action against a county sheriff and three
deputies, alleging that the publicized arrest of the
agent for leasing premises with knowledge that they
would be used for prostitution was without probable
cause and that the press conference by the sheriff had
been staged to provide favorable publicity for a re-
election campaign and had caused injury to the agent's
reputation and business. The district court held that
the sheriff and deputies were not entitled to qualified
immunity as a matter of law in connection with the
agent's arrest and allowed the case to be presented to
a jury, which found for the plaintiff.
On appeal the Eleventh Circuit reversed the jury's
award for the plaintiff /managing agent. The Court
reasoned that, even though the charges against the
plaintiff had not been prosecuted by the State
Attorney, the arrest based upon those charges, for a
violation of a Florida misdemeanor, was grounded on
"arguable" probable cause. The Court discounted the
facts that the managing agent originally had brought to
the attention of the sheriff the suspected prostitution
activities, had then cooperated in the investigation
and had been seeking legal advice about his right to
evict the tenants at the time the sheriff arrested him
for honoring a lease after learning that the leased
premises were being used for prostitution. Thus, the
Court found that the defendants were entitled to
qualified immunity with respect to the illegal arrest
claim.
4. U.S. v. Boole, 689 F. Supp. 1121 (S.D. Fla. 1988) (en
banc) , vacated in light of Mistretta v. United States.
488 U.S. 361 (1989) .
After the Sentencing Guidelines ("SG") ,
promulgated by the United States Sentencing Commission
("Commission") pursuant to the passage of the
Sentencing Reform Act ("SRA") , were implemented and
became effective November 1, 1987, a number of
defendants challenged the SRA and SG as
unconstitutional on a variety of grounds. The district
judges in the Southern District of Florida decided to
12
705
Judge Stanley Marcus
United States District Judge
Southern District of Florida
consolidate those challenges and hear the issue en
banc. Following extended oral argument and conference,
a majority (13 judges) of the court voted to hold the
SG unconstitutional and Judge Marcus was selected to
write the opinion for the majority. In that opinion,
the en banc court determined that the method by which
the SG had been developed and implemented through a
Commission, whose membership by statutory command
included Article III judges, violated the separation of
powers doctrine, which prohibits judges from making the
laws they are then called upon to adjudicate. The
court found that the SG were substantive and not
procedural laws, and that the SRA reposed legislative
and executive functions within the judicial branch,
thus conferring rule-making authority upon the
judiciary.
The government appealed the decision and although
there is no published order or table noting its
reversal, the order was reversed by the Eleventh
Circuit because the impact of the district court's en
banc order was overruled by the subsequent decision of
the Supreme Court in Mistretta, in which the Court
found that the Sentencing Guidelines were
constitutional and that the SRA did not violate either
the prohibition against excessive delegation or the
separation of powers doctrine.
Jones v. City of Key West, Fla., 679 F. Supp. 1547
(S.D. Fla. 1988), rev'd, 888 F.2d 1328 (11th Cir.
1989) .
A citizen and resident of Key West filed a civil
rights action against the city and its mayor,
contending that his First and Fourteenth Amendment
rights were violated when he was silenced, arrested and
removed from a city commission meeting during his
scheduled presentation at a public meeting. Following
a bench trial the district court held that the mayor's
action in interrupting the citizen's presentation,
chastising him for his "outbursts," and having him
forcibly removed from the chamber and arrested were not
authorized by city ordinance and that the mayor was not
entitled to qualified immunity for silencing the
speaker based upon the content of his speech.
13
706
Judge Stanley Marcus
United States District Judge
Southern District of Florida
Both the city and the mayor appealed, but the city
dismissed its appeal before the case was considered by
the Eleventh Circuit. The court reversed the judgment
against the mayor on the basis that his actions in
attempting to confine the speaker to the agenda item at
the city commission meeting and having the citizen
removed from the chamber when he became disruptive
constituted a judgment call by the mayor and was a
reasonable time, place and manner regulation of speech
which did not violate citizen's First Amendment rights.
6. U.S. Philips Corp. v. Windmere Corp., 680 F. Supp. 361
(S.D. Fla.), rev'd, 861 F.2d 695 (Fed. Cir. 1989).
A razor manufacturer holding a patent for a rotary
electric shaver brought a trademark infringement action
against a competitor, who filed a counterclaim for
unfair competition and monopoly in the rotary razor
market in violation of the Sherman Act. The district
court granted a directed verdict for the manufacturer
on the antitrust claim, finding that the competitor had
not presented sufficient evidence of acquisition by the
manufacturer of monopoly power via predatory pricing
and certified the issue for appeal under Rule 54(b) and
28 U.S.C. § 1292 (b) .
Because of the existence of the patent issue in
the case, the appeal was heard by the Federal Circuit,
even though the patent issue was not contested on the
appeal. The Federal Circuit reversed and remanded the
matter for trial on the antitrust counterclaim, finding
that the facts presented a close case which should have
been presented to a jury.
(Following re-trial on remand and a second appeal,
the parties entered into a settlement, the appeal was
remanded and the second verdict vacated. See 971 F.2d
728 (Fed. Cir. 1992), cert, dismissed as improvidently
granted. 510 U.S. 27 (1994).)
7. U.S. V. Fuentes. (May 26, 1993), aff'd in part and
vacated and remanded in part, 991 F.2d 700 (11th Cir.
1993) .
Three defendants were charged with credit card
offenses and entered pleas of guilty to various counts.
All three appealed their subsequent sentences and
14
707
Judge Stanley Marcus
United States District Judge
Southern District of Florida
raised various grounds. The court of appeals affirmed
the sentence as to one, vacated a portion of a
restitution order and affirmed the sentence as to a ,
second, and vacated the sentence of the third and
remanded for resentencing. One issue argued on appeal
challenged the interpretation of a Sentencing Guideline
("SG") not previously discussed in the case law of the
Circuit, based upon an amendment to the SG. The court
held that a defendant who admitted to joining a
conspiracy to deal in stolen credit cards could not be
held responsible for losses to victims from a co-
defendant's use of stolen credit cards (acts committed
in furtherance of the conspiracy) which the court found
were acts not reasonably foreseeable by the particular
defendant. With regard to the second defendant, as to
whom a portion of the order requiring forfeiture was
vacated by the court, the government admitted that the
presentence report contained a miscalculation which had
not been flagged for the district court.
Merrill Lynch. Pierce, Fenner & Smith, Inc. v. Cohen,,
1993 WL 593998 (S.D. Fla. Sept. 24, 1993), (NO. 93-
0915-CIV-MARCUS) , rev ' d ■ 62 F.3d 381 (11th Cir. 1995).
Plaintiff stock brokerage firm sued for
declaratory and injunctive relief, seeking to enjoin
arbitration action which had been filed by investors
with the National Association of Securities Dealers
pursuant to an arbitration clause in their contract.
Defendant investors filed a motion to compel
arbitration and to stay the district court action
pending arbitration. The motion was assigned to a
magistrate judge who recommended that it be granted.
The factual question which had to be resolved
centered around whether the statute of limitation under
the arbitration agreement had been tolled by the
alleged fraudulent concealment of the facts giving rise
to the dispute between the parties. Relying upon
authority from the Eleventh Circuit, the district court
determined that the matter was one which should be
resolved by the arbitrator, adopted the recommendation
of the magistrate judge, and denied the plaintiff's
motion for a temporary injunction and discovery, and
dismissed the case.
15
708
Judge Stanley Marcus
United States District Judge
Southern District of Florida
On appeal the Eleventh Circuit reversed and
remanded the matter for further proceedings, holding
that the question of whether the investors' claims were
time barred was for the district court to resolve in
order to determine whether arbitration was called for.
In so ruling the appeals court distinguished its own
precedent on which the district court had relied.
9. U.S. V. Huppert, aff'd in part and rev'd in part, 917
F.2d 507 (11th Cir. 1990).
A defendant was charged with and convicted of two
counts of obstruction of a grand jury in connection
with its investigation into allegations of money
laundering by this defendant. Defendant had engaged in
cash for check transactions with coin and precious
metal dealers. When two of the dealers were subpoenaed
to appear before the grand jury, defendant tried to
convince them to identify a third man as the person
with whom they had dealt in the scheme. The sentencing
guideline applicable to the offense level for
obstruction of justice contained a cross-reference to a
guideline for the offense of accessory after the fact,
which cross-reference the district court applied in
setting defendant's sentence.
On appeal, the Eleventh Circuit rejected several
challenges to the convictions, but reversed the
sentence and remanded the case for resentencing. The
Court based its reasoning upon the fact that defendant
had been attempting to aid himself and not another, and
thus the court determined that the accessory after the
fact guideline could not be used logically in this
situation. (The particular guideline provision
subsequently was amended to nullify the effect of this
decision. )
10. 3M Health Care Ltd. v. Grant, rev'd. 908 F.2d 918 (11th
Cir. 1990) .
A transshipper of pharmaceutical products through
the foreign trade zone at Port Everglades, Florida,
brought suit against the state of Florida and others,
seeking declaratory and injunctive relief from
compliance with Florida's Drug and Cosmetic Act with
regard to plaintiff's warehousing activities in the
foreign trade zone. The district court granted summary
16
709
Judge Stanley Marcus
United States District Judge
Southern District of Florida
judgment to the defendants, finding that the riorida
act was a valid exercise of its police power which was
not preempted by federal law.
On appeal, the Eleventh Circuit reversed and
remanded the case for the entry of summary judgment in
favor of the plaintiff. The Court held that the
federal Foreign Trade Zone Act, 19 U.S.C. §§ 81a, et
seg., was intended to facilitate the use of U.S. 'ports
for transshipment of foreign goods in foreign commerce.
Thus, the Court held that the Federal Act preempted the
Florida Drug and Cosmetic Act, Fla. Stat. § 499.001, et
seg. , and that the State Act required unnecessary
regulation of goods in which the state had no interest,
as applied to the warehousing of pharmaceuticals being'
transshipped to Latin America through the Port
Everglades Foreign Trade Zone.
11- U.g. V- R^mos, remanded, 45 F.3d 1519 (llth Cir. 1995).
Defendant was tried and convicted of possessing
cocaine with intent to distribute. Prior to trial
defendant sought an order from a magistrate judge that
he be permitted under Federal Rule of Criminal
Procedure 15 to take a deposition in Medellin,
Colombia, of a potential witness who was alleged to be
in a position to provide exculpatory testimony. The
magistrate judge granted the motion, but reconsidered
and denied it upon the government's motion for
reconsideration which pointed out that defendant could
only locate the witness through an unknown third party
and that the Assistant United States Attorney would be
in danger if she had to travel to Colombia under such
circumstances. The defendant was then tried and
convicted without the testimony of the potential
witness who had been deported before the defendant
filed his first motion and who refused to return to
give testimony at trial.
Noting that the defense had never proffered to the
district court the substance of the testimony it deemed
material to its defense, the appeals court remanded the
matter to the district court to hear the defense
proffer, evaluate whether it would be exculpatory and
if so to allow the deposition to go forward, after
which the district court would be in a position to
determine whether to grant a new trial.
17
710
Judge Stanley Marcus
United States District Judge
Southern District of Florida
12. Fioretti v. Massachusetts General Life Ins. Co.. 892 F.
Supp. 1492 (S.D. Fla. Sept. 24, 1993), (NO. 90-6530-
CIV-MARCUS) , aff 'd. 53 F.3d 1228 (11th Cir. 1995),
cert, denied. 116 S. Ct. 708 (1996).
A beneficiary of a life insurance policy sued the
insurer after his claim for benefits had been denied on
the ground that the policy had been procured by fraud.
The district court held that the imposter exception
applied to defeat the general rule that an
incontestability clause in a policy prohibits the
defense of fraud in the inducement, in this case fraud
by the insured who had arranged for an imposter to
submit to a blood test to conceal the insured's chronic
illness. In reaching its decision about whether the
incontestability clause or relevant state law statutes
would bar the insurer's pleading of fraud in the
inducement under the "imposter exception," the district
court was faced with a conflict of laws question and
had to determine which state law to apply. After
surveying the possible applicable laws of the states of
Florida, New York and New Jersey, the court determined
that it did not need to resolve the choice of laws
problem because the laws of all three states would not
bar proof of the use of an imposter despite the
incontestability clause, and thus entered judgment for
the insurer.
On appeal the Eleventh Circuit affirmed the
judgment, but criticized the district court for failing
to decide which law applied, and determined that the
applicable law was that of Florida, which would have
applied New Jersey law, which in turn would have
allowed the insurer to rescind the policy under the
facts of the case.
(3) : Significant opinions on federal or state constitutional
issues:
1. U.S. V. Benefield. 874 F.2d 1503 (11th Cir.
1989) (double jeopardy), Marcus, J., sitting by
designation, writing for the panel.
2. U.S. V. Falcon, 930 F. Supp. 1510 (S.D. Fla. 1996).
3. U.S. V. Falcon. 930 F. Supp. 1518 (S.D. Fla. 1996).
18
711
Judge Stanley Marcus
United States District Judge
Southern District of Florida
4. U.S. V. Falcon, 957 F. Supp. 1572 (S.D. Fla . 1996).
5. U.S. V. Peralta, 930 F. Supp. 1523 (S.D. Fla. 1996).
6. Reyes-Vasquez v. United States, 865 F. Supp. 1539 (S.D.
Fla. 1994) .
7. U.S. V. Kowalik, 809 F. Supp. 1571 (S.D. Fla. 1992),
aff d. 12 F.3d 218 (11th Cir. 1993).
8. Seminole Tribe of Florida, v. State of Florida, 801 F.
Supp. 655 (S.D. Fla. 1992), rev ' d , 11 F.3d 1016 (11th
Cir. 1994), aff 'd. 116 S. Ct . 1114 (1996).
9. In Re Grand Jury Subpoena Dated Nov. 12, 1991, 792 F.
Supp. 1423 (S.D. Fla. 1992).
10. In Re Grand Jury Subpoena Dated Nov. 12. 1991. 792 F.
Supp. 1431 (S.D. Fla. 1992).
11. U.S. v. Reyes, 782 F. Supp. 609 (S.D. Fla. 1992).
12. Telesat Cablevision. Inc. v. City of Riviera Beach, 773
F. Supp. 383 (S.D. Fla. 1991).
13. Doe v. State of Florida Judicial Qualification Comm. ,
748 F. Supp. 1520 (S.D. Fla. 1990).
14. Linder v. Calero Portocarrero. 747 F. Supp. 1452 (S.D.
Fla. 1990), aff'd in part and rev'd in part. 963 F.2d
332 (11th Cir. 1992) .
15. U.S. v. Ortiz. 738 F. Supp. 1394 (S.D. Fla. 1990).
16. U.S. V. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990).
17. Doe V. Supreme Court of Florida, 734 F. Supp. 981 (S.D.
Fla. 1990).
18. Cash Inn of Dade, Inc. v. Metropolitan Dade County, 706
F. Supp. 844 (S.D. Fla. 1989).
19. U.S. v. So)coloff. 696 F. Supp. 1451 (S.D. Fla. 1988).
20. U.S. V. Bogle. 689 F. Supp. 1121 (S.D. Fla. 1988) (en
banc) vacated in light of Mistretta v. United States,
488 U.S. 361 (1989) .
19
712
Judge Stanley Marcus
United States District Judge
Southern District of Florida
21. CRS Inc. V. Smith. 681 F. Supp. 794 (S.D. Fla. 1988).
22. Jones v. City of Key West. Fla.. 679 F. Supp. 1547
(S.D. Fla. 1988), rev'd. 888 F.2d 1328 (11th Cir.
1989) .
23. Cikora v. Wainwriaht. 661 F. Supp. 813 (S.D. Fla.
1987), aff 'd, 840 F.2d 893 (11th Cir. 1988).
24. U.S. V. Puliese. 671 F. Supp. 1353 (S.D. Fla. 1987).
25. Hernandez v. Wainwriaht. 634 F. Supp. 241 (S.D. Fla.
1986), aff 'd, 813 F.2d 409 (11th Cir. 1987).
26. White V. Wainwriaht. 632 F. Supp. 1140 (S.D. Fla.
1986), aff 'd. 809 F.2d 1478 (11th Cir.), cert, denied.
483 U.S. 1044 (1987) .
27. McLaughlin v. Metropolitan Dade County, Case No. 96-
074 5-Civ-Marcus (S.D. Fla., Oct. 23, 1996) (Unpublished
Order Granting Defendant Summary Judgment) (opinion
attached as Exhibit A) .
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.
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 clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms
or offices, companies or governmental
20
713
Judge Stanley Marcus
United States District Judge
Southern District of Florida
agencies with which you have been connected,
and the nature of your connection with each;
Tnclusive Dates
9/71 - 10/73
4/74 - 6/75
6/75 - 1/78
2/78 - 3/82
Names of Employers,
Associates, etc.
Hon. John R. Bartels
(deceased 1997)
U.S. District Judge
Eastern District of N.Y.
U.S. Courthouse
225 Cadman Plaza East
Brooklyn, NY 11201
Botein, Hayes, Sklar &
Herzberg (since disbanded)
200 Park Avenue
New York, NY 10166
Asst. U.S. Attorney
Eastern District of N.Y.
225 Cadman Plaza East
Brooklyn, NY 11201
(David G. Trager,
then-U.S. Attorney -
1974-1978;
now U.S. District Judge
Eastern District of N.Y.
225 Cadman Plaza East
Brooklyn, NY 11201;
718-260-2510)
Special Attorney and
Deputy Chief (Promoted to
Chief in 1980)
Detroit Strike Force
U.S. Organized Crime &
Racketeering Section
231 Lafayette, Room 940
Federal Building
Detroit MI 48226
(David Margolis,
then-Chief, U.S. Dept. of
Justice, Organized Crime &
Racketeering Section;
Name of Practice
Law Clerk to
U.S. District Judge
Law Firm Associate
(approx. 75 attys)
Dept. of Justice
Trial Prosecutor
(Major Crimes Unit,
Political Corruption
Unit)
Dept. of Justice
(Eastern District of
Michigan &
Western District
of Michigan) Super-
vised staff of 10
lawyers & agents
from a variety of
federal and state
law enforcement
agencies.
21
714
Judge Stanley Marcus
United States District Judge
Southern District of Florida
3/82 - 8/85
now Associate Deputy
Attorney General,
950 Pennsylvania Ave. , NW
Washington, DC 20530;
202-514-4945)
(then-U.S. Attorney - James
K. Robinson - Eastern Dist.
of Michigan; now Dean at
Wayne State Law School,
468 W. Ferry, Detroit, MI 48202;
(313-577-3933); subsequent
U.S. Attorney Richard Rossman -
Eastern District of Michigan,
now in practice at the firm of
Pepper, Hamilton & Scheetz,
100 Renaissance Center,
Detroit, MI 4824 3;
313-259-7110)
United States Attorney
Southern District of
Florida
155 S. Miami Avenue
Room 7 00
Miami, FL 33130
299 E. Broward Blvd.
Room 2 02B
Ft. Lauderdale, FL 33301
701 Clematis Street
West Palm Beach, FL 33401
Dept. of Justice
Presidential Appt.
as Chief Law
Enforcement Officer
in So. Dist. of Fla.
including directly
supervising a staff
of more than 100
lawyers (4 major
divisions —
Criminal, Civil,
Appellate and Lands-
plus Organized Crime
Strike Force) with
offices established
in Miami, Ft.
Lauderdale and West
Palm Beach, FL, and
total staff in
excess of 200.
8/85 - Present U.S. District Judge
Southern District of Florida
301 N. Miami Avenue
Miami, FL 33128
22
715
Judge Stanley Marcus
United States District Judge
Southern District of Florida
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 area, if any, in which you have specialized.
From 1975 until I became a U.S. District Judge in 1985,
I represented the people of the United States as a
prosecutor for the Department of Justice in New York,
Michigan and Florida. The major part of my practice as
an attorney was as a federal prosecutor, following a
stint in private practice in New York City, where my
work as an associate in a large commercial law firm was
in general civil practice, more particularly in
commercial litigation.
My clients included a variety of federal investigative
and regulatory agencies, such as the Federal Bureau of
Investigation, the Drug Enforcement Administration, the
Immigration and Naturalization Service, the Internal
Revenue Service, the United States Coast Guard, the
United States Army, the United States Department of
Treasury, the United States Secret Service, the United
States Customs Service, the Federal Deposit Insurance
Corporation, and a variety of other agencies and
departments of the federal government.
Since August of 1985, I have served as United States
District Judge in the Southern District of Florida.
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 New York and Michigan, I appeared in the various
federal courts regularly. In Florida, I appeared in
court regularly, but not as frequently as in New York
and Michigan.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
The overwhelming bulk of my court appearances had been
in Federal Court in the district courts in New York,
Detroit, Grand Rapids and Southern Florida, as well as
in the respective Circuit Courts of Appeal. I also
appeared in the State Courts of New York while an
associate at the law firm of Botein, Hays, Sklar and
Herzberg in 1974-75.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
A very large percentage of my personal in-court
appearances had been in criminal matters and
prosecutions, except in that described in question
number 17. c. 2. above. In addition, I supervised a
staff of approximately 20 Assistants in the Civil
Division and Lands Division, United States Attorney's
Office, who appeared regularly on civil and land
condemnation matters on my behalf.
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 tried many criminal cases in the federal courts in
New York, Michigan and Florida as chief counsel and as
co-counsel. The trials included a wide variety of
matters such as conspiracy, tax fraud, bank fraud,
embezzlement, mail fraud, wire fraud, extortion,
bribery, narcotics violations, and racketeering.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
The bulk of these trials were to a jury.
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:
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
(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.
(1) 1982-1983. U.S. V. Great American Bank of Dade
County. Case No. 82-720-Cr-EPS (United States District Judge
Eugene P. Spellman, U.S. District Court, Southern District of
Florida, now deceased), the bank corporation and three of its
employees were charged with a conspiracy to defraud the United
States, more particularly with numerous felony counts involving
the failure to file required Currency Transaction Reports with
the Treasury Department concerning cash transactions totaling
almost $100 million. In addition, the bank was charged as an
unindicted co-conspirator in three interrelated indictments, U.S.
V. Kattan, et al. . Case No. 82-721-Cr-JAG; U.S. v. Interfil,
Inc. ■ Case No. 82-723-Cr-JCP; and U.S. v. Piedrahita. Case No.
82-722-Cr-JE, which collectively charged twelve other defendants
with crimes related to those against the bank and its employees.
I personally supervised the investigation and
prosecution of the Bank as corporate defendant, including making
the decision to seek an indictment after reviewing all the facts
in the case, drafting a large portion of, and signing the
charging instrument. I supervised the pre-trial proceedings and
helped draft the Government's brief on a major suppression issue.
Finally, I personally conducted as lead counsel for the United
States the extensive negotiations which resulted in the entry of
pleas of guilty by the defendant. Great American Bank of Dade
County (through its subsequently-acquired owner, the Harnett
Bank) to multiple felony charges of failure to file the required
currency reports involving cash deposits of $673,450, $837,530,
$685,500 and a series of transactions totaling $34,413,789.26.
The corporate defendant bank was fined by the Honorable Eugene P.
Spellman, a total of $500,000, with the fine suspended as to
$125,000 on one count. I also argued various matters before the
District Court relating to the bank, along with my co-counsel,
then-Assistant United States Attorney Gregory Baldwin. (Various
bank employees also entered pleas of guilty to various counts and
a number of defendants in the related cases entered pleas of
guilty to certain counts.)
This case was significant in contributing to the
prosecution of narcotics smuggling and the ancillary problem of
massive money laundering of narcotics dollars through
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
institutions of finance and commerce in this region. This
prosecution and other money-laundering investigations in the
Southern District of Florida served to highlight the importance
of compliance with the reporting requirements of the currency
laws.
Counsel for the bank were:
Earl Hadlow, Esq. (now deceased)
Mahoney, Hadlow & Adams
P.O. Box 4099, Jacksonville, FL 32201
(904) 354-1100
Michael Madigan, P.C.
Suite 400
1333 New Hampshire Avenue, NW
Washington, DC 20036
(202) 887-4017
Co-counsel for the United States were:
Gregory A. Baldwin
(then) Assistant United States Attorney
(now) Holland and Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
(305) 374-8500
Linda Collins Hertz
Assistant United States Attorney
99 N.E. 4th Street
Miami, FL 33132
(305) 536-3011
(305) 446-0977
Carol Wilkinson
Assistant United States Attorney
505 South Second Street, Suite 200
Ft. Pierce, FL 34950
(561) 466-0899
(2) 1983-1984. In In re Grand Jury Proceedings, the
Bank of Nova Scotia, Case No. 83-1 (WPB) GJ-JCP (United States
District Judge James C. Paine, Southern District of Florida) , a
federal grand jury in the Southern District of Florida was
conducting a combined tax-narcotics investigation and had
received information sufficient to cause it to inquire into and
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
compel the production of off-shore bank records from a foreign
bank, the Bank of Nova Scotia, doing business within the Southern
District of Florida.
A Federal Grand Jury sitting in the Southern District
of Florida issued a subpoena to the Miami agency of the Bank of
Nova Scotia, seeking the production of financial records located
in its Cayman Islands and Bahamas branches. The bank objected,
claiming that the Bank Secrecy Acts in those island nations
prohibited it from complying with the subpoena authorized by the
United States Court.
The U.S. Attorney's Office sought to have the court
compel compliance. After giving the bank opportunity to respond,
the United States District Court for the Southern District of
Florida, held the bank in contempt and imposed a coercive fine of
$25,000 for each day that the bank failed to produce these
documents.
In the United States Court of Appeals for the Eleventh
Circuit, various entities, including the governments of Canada,
Great Britain and the Cayman Islands, filed aniiEi curiae briefs
on the side of the bank. After initial review, the appeals court
remanded the matter for further consideration by the district
court, including allowing the amici to participate and state
their views. In re Grand Jury Proceedings, the Bank of Nova
Scotia, 722 F.2d 657 (11th Cir. 1983).
I personally directed and participated in all aspects
of the remand, including interviewing witnesses from the
Departments of Justice and State, planning strategy, supervising
all written responses and drafting substantial portions of the
briefs. My involvement also included personally coordinating all
of the Government's responses with both the Department of State
and the Department of Justice and making all major litigation
decisions. After the Honorable James C. Paine granted the
Government's motion to impose a cumulative fine of $1,825,000,
additional briefing before the United States Court of Appeals for
Eleventh Circuit was required. I wrote and edited substantial
portions of the brief filed by the Government in the Eleventh
Circuit.
The Government's position was adopted on appeal. In re
Grand Jury Proceedings, the Bank of Nova Scotia. 740 F.2d 817
(11th Cir. 1984), and the Supreme Court denied certiorari review
on January 8, 1985, 469 U.S. 1106 (1985).
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
Opposing counsel were:
Parker Thomson, Esq.
(counsel for the Governments of the Cayman Islands
and the United Kingdom)
Thomson Muraro, et al.
1 SE Third Avenue, Suite 1700
Miami, FL 33131
(305) 350-7200
Danforth K. Newcomb, Esq.
(counsel for the Bank of Nova Scotia)
Shearman & Sterling
153 East 53rd Street
New York, NY 10022
(212) 848-4184
William Sadowski, Esq. (now deceased)
(counsel for the Bank of Nova Scotia)
Akerman, Senterfitt & Eidson
Suite 405, 1401 Brickell Avenue
Miami, FL 33131
(305) 372-1364
Andreas F. Lowenfeld, Esq.
(counsel for the Government of Canada)
40 Washington Square South
New York, NY 10012
(212) 598-2321
Herschal Sparks, Esq.
(counsel for Canadian Bankers' Association)
Hughes Hubbard & Reed
201 S. Biscayne Blvd., Suite 2500
Miami, FL 33131
(305) 358-1666
Co-counsel with me were:
Linda Collins Hertz
Assistant United States Attorney
99 N.E. 4th Street
Miami, FL 33132
(305) 536-3011
(305) 446-0977
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
Andrea Simonton
Assistant United States Attorney
500 East Broward Boulvard, 7th Floor
Ft. Lauderdale, FL 33301
(954) 356-7255
Thomas Blair
(then) Assistant United States Attorney
1322 S.W. Seahawk Way
Palm City, FL 34990
(561) 220-7899
Lawrence H. Sharf
(then) Assistant United States Attorney
111 Hicks Street, #21E
Brooklyn, NY
(718) 852-0345
(3) 1982-1983. In U.S. V. Guillot-Lara , et al., Case
No. 82-643-Cr-JE (United States District Judge Joe Eaton,
Southern District of Florida) , the 14 named defendants were
charged with various counts of drug importation and conspiracies
and attempts to import both methaqualone and marijuana. The
gravamen of the charges were that the defendants would smuggle
large quantities of narcotics from South America to the United
States using Cuba as a source of protection and resupply for the
movement of narcotics from South America to the United States.
The indictment charged that this illegal activity was made
possible because of the direct involvement of several high-
ranking Cuban officials who were indicted in Miami as part of the
plot. Included as defendants were: Fernando Ravelo-Renedo, the
Cuban Plenipotentiary Ambassador to Colombia at the time of the
crime; Gonzalo Bassols-Suarez, Minister-Counselor of the Cuban
Embassy in Colombia; Aldo Santamaria-Cuadrado, a member of the
Central Committee of the Communist Party of Cuba and Vice-Admiral
in the Cuban Navy; and Rene Rodriguez-Cruz, a member of the
Central Committee of the Communist Party of Cuba and President of
the Cuban Institute of Friendship with the People (I.C.A.P.), a
Cuban government agency which oversees the activity of foreign
visitors in Cuba.
I personally and directly supervised the conduct of
this investigation because of its extreme sensitivity to law
enforcement and issues of diplomacy and the ramifications which
emerged from the case. My involvement included complete review
of all facts, assessment of the case, drafting the indictment,
making the decision to file American criminal charges against
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
foreign government officials, and coordination of federal efforts
with the Departments of Justice and State. The Cuban officials
were not apprehended; a number of other defendants also charged
in the case were prosecuted by my co-counsel:
Richard Gregorie
Assistant United States Attorney
99 N.E. 4th Street
Miami, FL 33132
(305) 536-5435
before the Honorable Joe Eaton, United States District Court for
the Southern District of Florida.
This case was also the subject of extensive testimony
which I gave on April 30, 1983, before the U.S. Senate Drug
Enforcement Caucus; the Subcommittee on Security and Terrorism of
the Senate Judiciary Committee: and the Subgommittee on Western
Hemisphere Affairs of the Senate Foreign Relations Committee.
(4) 1982-1983. In U.S. V. Carlos Cruz, Case No. 82-
733-Cr-WMH (United States District Judge William M. Hoeveler,
Southern District of Florida) , the United States Marshal for the
Southern District of Florida was charged with conspiracy to
defraud the United States and to bribe the Federal Warden of the
Metropolitan Correctional Center in Miami and five counts of
bribery of a public official, the Federal Warden. In U.S. v.
Carlos Cruz, Case No. 83-47-Cr-WMH, the Marshal was also charged
with five counts of perjury before the federal grand jury which
was investigating the bribery matter. The facts uncovered in
this case revealed an extensive pattern of corruption involving
the office of the United States Marshal.
I supervised personally and directly as Chief Counsel,
the entire investigation and prosecution and conducted the
significant pre-trial litigation which resulted in the indictment
and conviction of: Carlos Cruz, the United States Marshal for the
Southern District of Florida; Seymour Klosky, co-conspirator and
state official with the Florida Department of State; and Merle
Gottlieb, also a co-conspirator and the father of the
incarcerated defendant who was the object of the bribe plot.
Klosky and Gottlieb each entered pleas of guilty to one felony
count of bribing a federal official. I also personally conducted
the trial of Mr. Cruz before the Honorable William M. Hoeveler,
and a jury in April 1983, along with my co-counsel, then-
Assistant United States Attorney Kevin March. Toward the
completion of the Government's case, the defendant entered pleas
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
of guilty to the conspiracy to bribe count and to one count of
bribery of a federal official. The United States Marshal was
sentenced to a term of imprisonment for one year and one day.
Before he was to report to begin serving his sentence,
the defendant moved to vacate his plea, alleging that he had not
been "of sound mind" and had received ineffective assistance of
counsel from his lawyer. Elaborate post-trial hearings were held
by the Court and I testified in that connection on September 6,
1983, concerning my observations of and conversations with the
defendant on the day of the plea. The court subsequently denied
the defendant's motion and he served his sentence. No appeal was
taken by Mr. Cruz.
The defendant, Carlos Cruz, was represented at trial
by:
Jon W. Burke, Esq.
616 S.W. 12th Avenue
Miami, PL 33134
(305) 858-6000
and subsequently at the post-sentencing hearing by:
Theodore Sakowitz
(then) Federal Public Defender
301 N. Miami Avenue
Miami, FL 33128
(305) 350-6900
My co-counsel were:
Kevin March
Assistant United States Attorney
Middle District of Florida
500 Zack Street, #400
Tampa, FL 33602
(813) 274-6000
Linda Collins Hertz
Assistant United States Attorney
99 N.E. 4th Street
Miami, FL 33132
(305) 536-3011
(305) 446-0977
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
The Marshal's co-defendant, Seymour Klosky, was
represented by:
Edward Shohat, Esq.
800 Brickell Avenue, Penthouse 2
Miami, FL 33131
(305) 358-7000
and Merle Alan Gottlieb was represented by:
Paul Lazarus, Esq.
2455 East Sunrise Boulevard, Suite 805
Ft. Lauderdale, FL 33304
(954) 940-7190
(5) and (6) 1979. U.S. v. Ouasarano and Vitale, Case -
No. Cr. 79-80644, involved an extensive organized crime
investigation, which I directed and supervised over a period of
some two and one-half years, involving tax fraud, racketeering
and extortion, arising out of the illegal take-over of a series
of interconnected cheese manufacturing companies in the Midwest
and Michigan, by among others, defendants Raffaele Quasarano
("Jimmy Q") and Peter Vitale, who were the hidden beneficial
owners of the manufacturing facilities. Following a lengthy
trial which I conducted as chief counsel for the United States
before the Honorable Robert E. DeMascio, United States District
Court for the Eastern District of Michigan, the case ended in a
mistrial because of a hung jury. Subsequently both defendants
entered pleas of guilty to the central racketeering charges
before Judge DeMascio and each was sentenced to incarceration for
four years and fined a substantial sum of money.
Subsequently, in a related case arising out of the same
investigation into the ownership and control of a number of
legitimate business enterprises in the Midwest in the area of
manufacturing facilities, trash hauling and banking, in U.S. v.
Barbara, et al. , Case No. Cr. 79-80655, Peter Vitale, Paul Vitale
and Joseph Barbara, Jr. , were charged with conspiracy to defraud
the United States by making false, fictitious and fraudulent
statements to the Internal Revenue Service in connection with a
plot to conceal the true ownership of a large Detroit-based
trash-hauling company subsequently purchased by a publicly-traded
national waste treatment company. Following extensive pre-trial
pleadings and litigation, Paul Vitale and Barbara each entered
pleas of guilty to the second indictment before the Honorable
Thomas P. Thornton, United States District Court, Eastern
District of Michigan. Peter Vitale and Quasarano each entered
32
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
pleas of guilty before Judge DeMascio to the aforementioned
racketeering charge and to the conspiracy to defraud the Internal
Revenue Service charge as set out in the former indictment.
Opposing counsel were:
N.D. Deday LaRene, Esq.
(for Raffaele Quasarano)
2000 City National Bank Building
Detroit, MI 48226
(313) 962-3500
Albert J. Kreiger, Esq.
(for Peter Vitale)
1899 S. Bayshore Drive
Miami, FL 33133
(305) 854-0050
Peter J. Bellanca, Esq.
(for Peter and Paul Vitale)
20480 Vernier Road
Harper Woods, MI 48225
(313) 882-1100
Neal Bush, Esq.
(for Joseph Barbara, Jr.)
719 Griswald
Detroit, MI 48226
(313) 962-1177
My co-counsel was:
Keith E. Corbett
(then) Special Attorney
Detroit Strike Force
940 Federal Building
Detroit, MI 48226
(313) 226-7252
(7) 1979. Also arising out of the same lengthy
inquiry was the case of U.S. v. State Bank of Eraser. Case No.
79-80442, where the corporate entity, the bank itself, was
charged in three felony counts with wilfully filing false bank
entries, reports and transactions with intent to deceive the
Federal Deposit Insurance Corporation. In the companion case of
U.S. V. Beck, Case No. 79-80463, Edgar Beck, the State Bank of
Eraser's President, Chief Executive Officer and principal
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
shareholder, was charged with knowingly filing fraudulent and
false statements in connection with the bank's corporate income
tax return, his own individual tax returns, along with
embezzlement and misapplication of bank funds, and with knowingly
making false bank entries, reports and transactions with the
F.D.I.C. The bank entered pleas of guilty and was convicted of
the criminal charges in September 1979 before the Honorable
Robert E. DeMascio, United States District Court for the Eastern
District of Michigan, and was fined by the Court. Bank President
Beck entered guilty pleas to four felony counts before the
Honorable Ralph B. Guy, Jr. , then-United States District Court,
Eastern District of Michigan (now Circuit Judge, U.S. Court of
Appeals for the Sixth Circuit), in April 1980, was sentenced to
incarceration for two years and was fined a substantial sum of
money.
Opposing counsel were:
F. Lee Bailey, Esq.
(for Edgar Beck)
1400 CentrePark Blvd., Suite 909
West Palm Beach, FL 33401
(561) 687-3700
James A. Smith, Esq.
(for the State Bank of Eraser)
Bodman, Longley & Dahling
34th Floor, 100 Renaissance Center
Detroit, MI 48243
(313) 259-7777
I was chief counsel for the Department of Justice on all of these
related prosecutions.
(8) 1975. In U.S. v. Cristenfeld, Case No. 75-Cr-896.
Marvin Cristenfeld was Chairman of the Nassau County New York
Democratic Committee and then-Commissioner of the Nassau County
Board of Elections. He was charged with and convicted of Hobbs
Act violations of extortion by the wrongful use of fear of
economic loss and under color of official right, bribery and
Travel Act violations, conspiracies to defraud the United States
and the filing of false and fraudulent tax returns in connection
with a massive corruption inquiry into the operations of the
Chairman of the Nassau County Democratic Party. On June 24,
1976, he was convicted on all counts after jury trial before the
Honorable Orin Judd (now deceased) , United States District Judge,
Eastern District of New York, who sentenced him to concurrent
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727
Judge Stanley Marcus
United States District Judge
Southern District of Florida
terms of incarceration of six months and fined him $2,000. I
tried this case as co-counsel along with:
Kenneth Kaplan
(then) Assistant United States Attorney
Eastern District of New York
(now) Kaplan & Katzberg
767 Third Avenue, 26th Floor
New York, NY 10017
(212) 750-3100
The defendant Marvin Cristenfeld appealed his
conviction to the United States Court of Appeals for the Second
Circuit (Case No. 76-1312) , raising serious issues about the
scope of the federal bribery and extortion statutes involving
political party officials. I wrote the brief and argued the case
for the Government before the Court of Appeals for the Second
Circuit. The convictions were affirmed per curiam in an
unpublished opinion.
Counsel for the defendant were:
Raymond Bernhard Gruenwald, Esq. and
Michael Gillen, Esq.
Gruenwald, Turk, Gillen & Caliendo
then at 233 Broadway
New York, NY 10007
(no current listing for names, address or
telephone number)
Mr. Gruenwald argued the appeal for the defendant; Mr. Gillen
tried the case for the defendant. My co-counsel on the brief
filed with the Court of Appeals were:
Edward R. Korman
(then) Assistant United States Attorney
(now) United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
(718) 260-2470
Kenneth Kaplan
(then) Assistant United States Attorney "<
Eastern District of New York
(now) Kaplan & Katzberg
767 Third Avenue, 26th Floor
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
New York, NY 10017
(212) 750-3100
Robert Katzberg
(then) Assistant United States Attorney
(now) Kaplan & Katzberg
767 Third Avenue, 26th Floor
New York, NY 10017
(212) 750-3100
David G. Trager
(then) United States Attorney
(now) United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
(718) 260-2510
(9) In U.S. V. McGrathf 558 F.2d 1102 (2d Cir. 1977),
cert, denied, 434 U.S. 1064 (1978), the case was tried before the
Honorable Henry Bramwell, United States District Court for the
Eastern District of New York, by other Assistant United States
Attorneys in Brooklyn, New York. The defendant, John McGrath,
then the Park Maintenance Supervisor of the Long Island State
Park Commission of New York, was convicted of extorting illegal
payments from two truck operators in return for parkway towing
contracts, in violation of the extortion and bribery provisions
under the Federal Hobbs Act, tax evasion and filing false tax
returns. I wrote and prepared the appellate brief filed with the
United States Court of Appeals for the Second Circuit on behalf
of the Government; co-counsel on the brief was:
Stanley A. Teitler
(then) Assistant United States Attorney
(now) 299 Broadway
New York, NY
(212) 233-8031
Opposing counsel were:
Leonard Meiselman, Esq.
John J. Reilley, Esq.
Meiselman, Boland, Reilley & Pittoni
54 Willis Avenue
Mineola, NY 11501
(516) 248-2400
36
729
Judge Stanley Marcus
United States District Judge
Southern District of Florida
(10) Joint Federal/State Homicide Task Force, 1982.
In order to address the serious problem of violent crime in the
Southern District of Florida, I, along with Janet Reno, then-
State Attorney for the Eleventh Judicial Circuit of Florida,
created, organized, implemented and supervised a Joint
Federal/State Homicide Task Force here in Dade County in 1982.
By the creation of this Joint Task Force, some 100 defendants
charged with homicide in state court were prosecuted by federal
prosecutors and Assistant State Attorneys in Dade County Circuit
Court. In each phase of the Homicide Task Force, certain
homicide cases and defendants residing in Dade County who were
illegal or otherwise undocumented aliens were designated to be
tried in State Court by a team of State prosecutors and Assistant
United States Attorneys. The federal prosecutors were "cross
designated" as State Assistants to permit them to appear in State
Court .
In Phases I and II of this Task Force, a total of 73
defendants were targeted, of which 61 were found guilty, five
were found not guilty, two were adjudged insane, one was
dismissed, and two were nolle pressed. In Phase III of the Joint
Task Force, the Task Force prosecuted some 4 0 additional
defendants in homicide cases.
The creation and implementation of this Joint
Federal/State Homicide Task Force by Ms. Reno and the United
States Attorney represented a joint effort to combine federal and
state law enforcement resources in a novel way.
Ms. Reno is now Attorney General.
In addition, the following members of the legal
community have had recent contact with me:
1) Roberto Martinez
Colson Hicks Eidson, et al.
200 South Biscayne Boulevard, Suite 4700
Miami, FL 33131
(305) 373-5400
2) Martin Steinberg
Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
(305) 374-8500
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
3) Daniel Pearson
Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
(305) 374-8500
4) Thomas E. Scott
United States Attorney
Southern District of Florida
99 N.E. 4th Street, 8th Floor
Miami, FL 33132
(305) 536-5401
5) Karen Amlong
Amlong & Amlong
500 N.E. 4th Street, 2nd Floor
Ft. Lauderdale, FL 3 3 301
(954) 462-1983
6) Elizabeth Du Fresne
Steel, Hector & Davis
200 South Biscayne Boulevard, #4000
Miami, FL 33131
(305) 577-2855
7) Charles E. Senatore
Securities & Exchange Commission
1401 Brickell Avenue, Suite 200
Miami, FL 33131
(305) 982-6332
8) Leon B. Kellner
3053 "Q" Street, NW
Washington, DC 20006
(202) 785-9700
9) James Joseph Kenny
Kenny Nachwalter, et al.
1100 Miami Center
201 South Biscayne Boulevard
Miami, FL 33131
(305) 373-1000
10) Rudolph F. Aragon
Aragon Martin, et al.
2699 South Bayshore Drive, Penthouse
Miami, FL 33133
(305) 858-2900
38
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Judge Stanley Marcus
United States District Judge
Southern District of Florida
11) Chesterfield Smith
Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
(305) 374-8500
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 1988, I was chosen by Chief Justice Rehnquist to serve as
a member of the Federal-State Jurisdiction Committee of the
Judicial Conference of the United States. In May 1992, the
Chief Justice appointed me to serve as Chair of the
Committee, a position I filled until my tenure expired in
September 1995. In that capacity, I had the opportunity to
represent the Judicial Conference in connection with pending
legislation that affected the federal judiciary and involved
the intersection between federal and state jurisdiction.
During this time the Committee was composed of federal
judges and the Chief Justices of the Supreme Courts of
Texas, California, Virginia and Ohio. My position as Chair
also required me to meet regularly with and attend the
formal meetings of the State Conference of Chief Justices
and to work with them in areas of interest common to both
the state and federal courts. As an outgrowth of my work on
behalf of the Federal-State Jurisdiction Committee, Chief
Justice Rehnquist also appointed me to serve as Chair of the
Ad Hoc Committee on Violence Against Women, 1992-1994.
On a number of occasions I served at the request of then
Chief Judge Gerald Bard Tjoflat in planning the education
programs for the Annual Eleventh Circuit Judicial
Conferences. I am also a member of the Committer on Pattern
Jury Instructions of the District Judges Association of the
Eleventh Circuit Court of Appeals, which was asked by Judge
Tjoflat to edit, revise and update the pattern jury
instructions for use throughout the Circuit.
Finally, Chief Judge Hatchett has appointed me to serve as a
member of the Education Committee of the Judicial Council of
the Eleventh Circuit.
39
732
Judge Stanley Marcus
United States District Judge
Southern District of Florida
From the summer of 1994 to the present, I have served the
district court as a member of a four- judge executive
committee whose responsibility it is to make decisions about
the administration of the Court. I have also been selected
by the Chief Judge to serve as a member of the District
Court's Security, Budget and Rules Committees, the Civil
Justice Advisory Committee, and, for six years, I chaired
the Court's Magistrate's Committee.
40
733
Judge Stanley Marcus
United States District Judge
Southern District of Florida
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.
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 conf licts-of-interest during your initial
service in the position to which you have been nominated.
I am unaware of any areas of financial concern that would
represent any potential conflict of interest. However, I am
mindful of the provisions of Title 28, U.S.C. §§ 455 and
144, and the Canons of Judicial Ethics.
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 (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 attached Financial Disclosure Report for 1997.
See attached Financial Disclosure Report for 1996.
Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See attached form.
734
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1996
r.^oi.
e*.. p
1 Person Reporting (Last name, first, middle initial!
MARCUS, STANLEY
2 Court or organization
U.S. COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
3 Date o( Report
9 /23/97
i ' ^" " ^ 'scn!or%caJu=';'^Ml|is"rl!r5udges"!ndIcai.<r
U.S. CIRCUIT COURT NOMINEE
i Report Type (check, appropriate type)
^No.i„at.on, Oace9^2^ 9 7
6 Reporting Period
■ 1 a 'SI- SI 2a 97
1 301 North Miami Avenue
: 5th Floor
; Miami, Florida 33128
e On the basis of the informatjon contained in this Report and
any modifications pertaining thereto, it is. in my opinion.
in compliance with applicable laws and regulations
1 IMPORTANT NOTES: The instruclions accompanying this form must be followed. Complete all parts,
! checkmg the NONE box for each section where you have no reportable information. Sign on last page.
H
POSITIONS. (Reporting individual only, see pp 9D of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (No reportable positions)
I. AGREEMENTS. (Reporting individual only, see pp. 14-17 of Instruclions.)
DATE PARTIES AND TERMS
NONE (No reportable agreements)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
n
1997
SOURCE AND TYPE
NONE (No reportable non-investment income)
Professor-Triai Advocacy Course-Broolclyn Law School g 7,000
(May-July 1997)
Wi lliams -Sonoma , Inc. (S)
Temple Path Am ( S)
735
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
MARCUS, STANLEY
9 /23 /97
IV. REIMBURSEMENTS and GIFTS • iransportalion, lodging, food, enlcrtainmcnl.
(Includes ihosc lo 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. 26-29 of Instructions )
SOURCE DESCRIPTION
D
NONE (No such reportable reimbursements or gifts)
Brooklyn Law School
May-July 1997, Coach air fare and lodging
at Brooklyn Law School Dormitory (May 28,
June 2, 9, 16, 23, June 30-July 9).
OTHER GIPTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to
indicate other gifts received by spouse and dependent children, respectively See pp. 30-33 of Instructions.)
SOURCE DESCRIPTION
Q
NONE (No such reportable gifts)
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for Uability by using the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint liability of
reporting individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE'
NONE (No reportable liabihlies)
L-550.001-S100,00
P2-$S.000.001
01-S2SO.OOO
736
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
STANLEY MARCUS
ce of Report
9/23/97
VII. Page 1 INVESTMENTS and TRUSTS - income, value, transacllons (Includes those of spouse
and dependent children. See pp. 37-54 of Inslruclions.)
..
Description of Assets
(including crust assets)
cate where applicable, owner of
asset by using the parenthetical
during
reporting
period
Gross value
at end of
reporting
period
^
ansactions during reporting period
vng individual and spouse. '(SI for
separate ownership by spouse. "(DC)"
for ownership by dependent child
exempt from prior disclosure
Code'
Type
d^v^ ■
Code*'
(21
11)
^Type
buy' leil.
merger,
redemp-
I( not exempc from disclosure
Dace:
Day
Value2
Code
(J-P)
Code
(A-H)
(51
Identity of
buyer/seller
{if private
NONE (NO reportable
J First Union
Miami . FL Checkina
A
Int
J
T, '
,T. Rowe Price Sraall-Cai
"Value Mutual Fund - IR
' A
Div
J
T
Baltimore. MU^„„
J Vanguard Index 500,
Mutual Fund - IRA,
A
Div
J
T
, FiMm g?f^gftp!'v°wi
IH A
Div
J
T
Fidelity SoftWCom Mutui
'Fund-IRA, Cin., OH
1
A
Div
J
T
U.S. Treasury Note
' 99 NV 30
B
Int
K
T
Coca Cola Common Stock
'Stanley Marcus, Cust.
A
Div
J
T
6 Young Stovall & Co.
A
Div
J
T
^Dell Computer tommon S<
Jonathan (son) & Juditl
k'
A
Div
J
T
Buy
8/1
J
j^Marcus (spouse)
»
-
.3
„
"
1.
-
,s
icir^t^B.?"- rMoTo.%dro.o ■ aniorjo!
.500 C-S2.S01-SS
.000 D.SS
Hl-Sl
Ol-SlS.OOO E-S1S.001-SS0,000
OOO.OOl-SS.OOO.OOO K2.SS.000.001 or more
^-'--v UM^ihB^^..... ^a.
DOl'S5,O0O?O00'
1-SlOO.OOO
M.S100.001-S250.000 N-S250, 001 - 5S0O. 000
]cS'?5V"^ 8:K^ift;e 5:S^^r"
S-Assesment T-Cash/Market
M-Estimated
737
FIKANCIAL DISCLOSURE REPORT (cont'd)
STANLEY MARCUS
9/23/97
Vin. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate pan of Report.)
My son, Jonathan Marcus' bank account (NationsBank-Savings) -listed in
Part VII, line 7, on my 1996 Annual Report dated 5/12/97, is now below
the value that requires reporting.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Commiliee on Judicial
Activities, and to the best of my knowledge at the time after reasonable mquiry, 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 had a rmancial interest, as defmed m
Canon 3C(3)(c). m the outcome of such litigation.
I cerxif>' that all information given above (mcludmg mformalion 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 that any information trot reponed was withheld because ii met
applicable statutory provisions permitting non-disclosure
1 further certify that earned income from outside employment and honorana and the acceptance of gifts which have been reponed are
m compliance with the provisions of 5 U.S.C. A. app 4. § 501 ei seq , 5 U.S C. § 7353 and Judicial Conference regulations
Signature
^l/JLaAMy^
%!_
u^ ^f f-;
NOTE: ANY INDIVIDUAL WH6 KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CrVIL AND CRIMINAL SANCTIONS (5 U.S.C App 4. § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Comminee on Financial Disclosure
Administrative Office of the
United States Courts
/.
Suite 2-301
One Columbus Circle. N.E.,
Washington, D.C. 20544
738
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 19 96
MARCUS, STANLEY
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
5/12/97
U.S. District Judge -Active Status —
1/1,961231^6
Office Addr
301 North Miami Avenue
5th Floor
Miami, Florida 33128
!wing Officer
IMPORTANT NOTES: The instruclions accompanying this form must be followed Complete ail pans,
checking the NONE box for each section where you have no reportable information Sign on last page
POSITIONS. (Reporting mdividual only; see pp. 9-13 of Instructions.)
Q
POSITION
NONE (No reportable positions)
NAME OF ORGANIZATION/ENTITY
II. AGREEMENTS. (Rcportingindividualonly, see pp. 14-17 of Instructions.)
DATE PARTIES AND TERMS
X NONE (No reportable agreements)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DATE SOURCE AND TYPE
NONE (No reportable non-investment income)
1996 Williams-Sonoma, Inc. (S)
1996
Temple Beth Am (S)
739
FIKANCIAL DISCLOSURE REPORT
tc ol Person Reporting
MARCUS, STANLEY
5/12/97
V. REIMBURSEMENTS and GIFTS -■ iransporlalion. lodging, food, cnlcrlainmcnl
{Includes ihosc lo spouse and dependent children; use the parcnlheiicals '(S)" and "(DC)' 10 indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively Sec pp 2(i 2') of Instructions.)
SOURCE DESCRIPTION
Q
NONE (No such reportable reimbursements or gifts)
OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively. See pp 30-33 of Instructions.)
SOURCE DESCRIPTION
Q
NONE (No such reportable gifts)
LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by u.sing the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint liability of
reporting mdividual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE'
H
NONE (No reportable habililies)
J-S15,000or less K-SIS . 001 -SSO. 000 L=S50. 001 -SlOO, 000 M-SlOO. 001 -S2S0. 000 N-S2S0 , 001 -SSO
O-S500.001-$1.000,000 PI- S 1.000. 001 -S5, 000. 000 P2-S5, 000. 00 1-S2S. 0 00.000
740
rihANCIAL DISCLOSURE REPORT
MARCUS , STANLEY
5 A2 fil
II. Page 1 INVESTMENTS and TRUSTS -• income, value, Iransaclions (Includes those of spouse
and dependent children See pp 37-54 of Instructions.)
Description of Assets
[including crust assets)
Indicate where applicable, owner of
Che asset by using the parenthetical
during
reporting
period
reporting
period
Transactions during reporting period
ing individual and spouse. '(Sl^ for
Code
Type
-tnXo-
Code"'
Value
Method!
lO-ui
b.jy. sel;,
n,;rge-. .
^tS'
If not exempt from disclosure |
for ownership by dependent child,
exempt from prior disclosure
Date
(31
Value2
Code
{41
Identity of
NONE INo reportable
First Union
' Miami, Fl Checking
A
Int
J
T
2 Nations Bank, Miauni, F
L A
Int
J
T
Close
T. Rowe Price Small-Ca
^ Value Mutual Fund
P
A
Div
J
T
^ ssep'^guSa'^jR^j"'
A
Div
J
T
^ FideSi^ty°B?':'Chp Growt
' Mutual Fund IRA, Cin. ,
h
A
Div
J
T
Fidelity SoftWCom Mutu
' Fund, IRA, Cin., OH
al
A
Div
J
T
Nations Bank (Savings)
Miami, FL (son)
A
Int
J
T
U.S. Treasury Note
° 99 NV 30
B
Int
K
T
' Intel Common Stock
A
Div
J
T
Sold
>/24
J
C
ju Alliance Tech Mutual
Fund CL.A
A
Div
J
T
Sold
)/24
J
A
Coca Cola Common Stock
Stanley Marcus, Cust.
A
Div
J
T
for Jonathan Marcus (s
on)
Young Stovall & Co.
(Alliance Honey Mkt Fu
A
nd)
Div
J
T
Buy
>/24
\c^'^^'^- ^^Vi^l^l.. ■ ?:|!6?°J^?^i!%oS1?6"— S:!|i"SJo=J5i°??.ooo.ooo S^UI:SSS:^^?-r^r.
'-' — ■ iiiiSj5;»ff6»sSo.„oo ?j!iL°§s.°Hi»Hr-°°'-"°°-°°° "^»°^s§!o?f^?.i°Soo^ir-"-°
;ci?'?5r^= 8:Sggriltie J-Cosc.re.t estate only, S:???!^^^ T.ea.h/«ar.,t
741
FINANCIAL DISCLOSURE REPORT (cont'd)
MARCUS , STANLEY
5/12/97
Vni. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate pan of Report.)
1) Chase Federal, Miami, FL
Savings (son)
Bank was acquired by Nations Bank, Miami, FL,
Savings Account transferred to Nations Bank;
Suu Sue-. VII (17).
IX. CERTIFICATION.
In compliance with the provisions of 28 U S C § 455 and of Advisory Opinion No 57 of the Advisory Commmee on Judicial
Activiiies. and to the best of my knowledge at the time after reasonable inquiry. I did not perform any adjudicatory function in any litigation
during the period covered by this repon ui which I. my spouse, or my minor or dependent children had a financial interest, as defined in
Canon 3C(3)(c). m the outcome of such litigation
I certify that all information given above (mcluding information pertauung to my spouse and minor or dependent children, if any) is
accurate, tme. and complete to the best of my knowledge and belief, and that any inforraaiion not reported was withheld because it met
applicable stanitory provisions permittmg non-disclosure
1 further certify that earned mcome 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. 4, § 501 et seq , 5 U S C § 7353 and Judicial Conference regulations.
Signature
fkjLKMu,
12, Ml
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U S C App 4, § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Commiaee on Financial Disclosure
Administrative Office of the
United Slates Courts
t:-
Suite 2-301
■ r
One Columbus Circle, N.E.,
Washington, DC. 20544
742
FINANCIAL STATEMENT
NET WORTH
Provide a complete, cunent financial net worth statement which itemizes in detail
all assets Qncluding bank accounts, real estate, secuhties. trusts, invesimenu, and odier financial
holdings) all liabilities Onduding debts, mongages, loans, and other financial obligations) of
youiself, youi spouse, and other immediate membcts of your household.
ASSETS
UABILmES 1
f'fcK oa hiod and in b«nkx
ax
3)1 0
"/o
Nom p«yiblt ID hinh ifrnrad
1
U^. Govcnimca ucaniio-«dd
idicdule
r\
oeo
00
Nolet p«yibk 10 bmlo-unssascd
],ia«rf ifmrif*! irfri >rhff1\ilr
^s
°iy^
4o
I4eles piyible to iclitiTci
Unlisted Mcurities— «dd idudule
Nolo payable lo oibcn
1
Accoonis tnd notts reoeiviblc:
Aceouu aad bOk due
1
Due from nlAtivcs and frunds
Unpaid income tax
1
Due bom oihen
Other unpaid lax and iniercat
!
Doubtful
•chedidc
/Vg
A'fi
vv
Real csute owned— add schedule
-2.?t>
OOo
or)
Chanel nion(a(ca and otlis liem pay-
able
Real estaie mortgages receivable
Cl
Auut and other perrooal pro perry
;^t>
'^r
oo
Fprl^ir.<. U\oA4u{huiA\
ns>
tf-0
Catb value -life insurance
Other aiseu-ilcinixe:
HorJ'^ Tncr^(i>Ct>lie4e Fnc^ra/t^
7
(^7
W
.
'
I
m
oil
H'i
NdWoith
X'^lo
s-y<j
ni
Total AueU
3SC
S"?!
a^{
Total liabilitia and net «ath
55T
>r?l
2/
COl^TINGENT IXtBILITIES
GENERAL INFORMATION
As cadoner. comaker or guanncor
An any aaaea pledf cd7 (Add Khad-
ole.) t/gS
On leases or coDincts
An yoo defmdanl in any iniu or lef al
aetioai7 d/ ^
Legal Oiinu i^f\
Have you eret taken binbnpiey? A/o
Provuioo tor Federal Income Tax C'^^TTt^
1 Other fpccUl debt kt A
1
1
'
1
743
Schedules to Financial Statement
Re: Stanley Marcus
SSN# 112-34-24X7
U.S. Government Securities
Nations Securities
7.75% Treasury Bond - Due 11/99 $ 27.000.00
Listed Securities
50.398 shares - Coca Cola C. 3,014.30
In name of Stanley Marcus, Custodian for
Jonathan Marcus, Son
15 shares - Dell Computers C. 1,477.50
In name of Jonathan and Judith Marcus
I.R.A. Accounts
Fidelity Select Software 4,132.36
Fidelity Blue Chip Growth 8,625.40
T. Rowe Price Small Cap Fund 4,847.80
Vanguard Index Trust 500 6,851.04
$ 28.948.40
Real Estate Owned
Residence: Miami, Florida
Current estimated value $250,000.00
Mortgaged: See below
Real Estate Mortgages Payable
First Mortgage on Residence:
GE Mortgage Services $126,436.67
Home Equity Line:
NationsBank 21,854.77
Perkins (Student Loan^ (Elizabeth Marcus) 750. OP
$149.041.44
744
Judge Stanley Marcus
United States District Judge
Southern District of Florida
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.
No.
42
745
Judge Stanley Marcus
United States District Judge
Southern District of Florida
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 amount of time devoted to each.
As a district judge I have not engaged in any pro bono
activity, but as a member of our Court's Civil Justice
Advisory Committee, I worked with District Judge Lenore C.
Nesbitt, the Committee, and the Court, in establishing a
Voluntary Lawyers' Project to provide legal support for
indigent litigants in non-Criminal Justice Act cases, which
include, for example, a variety of claims arising under
Title VII, Age Discrimination Act, Americans With
Disabilities Act, claims of ownership in civil forfeiture,
non-prisoner § 1983 civil rights litigation, and Freedom of
Information Act cases. The project has received the
voluntary services of lawyers in this district and appears
to be a real and working solution to an old and vexing
problem.
I also expended substantial time over a seven-year period in
service of the Judicial Conference of the United States. I
served from 1988-1992 as a member of the Federal-State
Jurisdiction Committee of the Judicial Conference. In 1992,
Chief Justice Rehnquist appointed me to serve as Chair of
that same committee, a position I held until the term
expired in September of 1995. In this capacity I
represented the Judicial Conference in connection with
legislation that affected the federal judiciary and involved
the intersection between federal and state jurisdiction. As
an outgrowth of this work, the Chief Justice also appointed
me to serve from 1992 to 1994 as Chair of the Ad Hoc
Committee on Violence Against Women, which also required
extensive time commitments.
I have further served the judiciary as a member of a number
of other committees. I was appointed to committees to plan
the education programs for the Eleventh Circuit's Annual
Judicial Conference. I served on the Committee on Pattern
Jury Instructions, appointed to edit, revise and update the
standard instructions used throughout the Circuit. For the
past three years, I have served the district court as a
43
746
Judge Stanley Marcus
United States District Judge
Southern District of Florida
member of a four- judge executive committee, which meets
weekly to make decisions about the administration of the
court. I have also served the district court as a member of
its Security, Budget, and Rules Committees, the Civil
Justice Advisory Committee, and I chaired the Magistrate's
Committee for six years.
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 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?
No.
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) .
I am unaware of the involvement of any selection commission
in connection with this nomination. I was recently asked by
the Office of Counsel to the President to fill out a
judicial questionnaire, and was invited to an interview by
representatives of the Department of Justice and the
Counsel's Office in July 1997. I also had occasion to be
interviewed by representatives of the FBI and the ABA.
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."
44
747
Judge Stanley Marcus
United States District Judge
Southern District of Florida
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 by its very nature, armed with neither
sword nor purse, derives its power entirely from its legitimacy
with the people, from the widespread belief that it does not more
nor less than apply the known and established law to real and
actual controversies. If the people come to believe that the
courts are overreaching the boundaries of the law and in
circumstances that may not justify judicial intervention of any
kind, the people will withdraw their support from the judicial
process exposing the nation to the great danger of lawlessness.
In a democracy, the judicial branch — the one branch that does
not directly derive its power from the democratic process —
must, to preserve its effectiveness under the Constitution,
scrupulously limit the exercise of its power to real cases ripe
for decision. Moreover, its remedies must be calculated to pose
the minimum feasible judicial interference that will still
achieve a fair resolution. This is not to say that broad
judicial remedies are always wrong, but they certainly can be
45
748
Judge Stanley Marcus
United States District Judge
Southern District of Florida
wrong often. Where such remedies are clearly necessary to the '
vindication of fundamental constitutional rights, they may be
unavoidable. Where, as in most situations, broad remedies are
not indispensable, resort to such remedies will tend inevitably
to detract from the democratic character of our society and the
proper role of the courts. The brilliance of our constitutional
system is that the simple, narrow and precise case-by-case
enforcement of the rights and obligations it has spawned will in
itself tend to the creation of a just society.
46
749
Judge Stanley Marcus
United States District Judge
Southern District of Florida
EXHIBIT A
ATTACHMENT TO QUESTION 15 (3) 27.
750
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 96-074 5-CIV-MARCUS
ROBERT A. Mclaughlin,
et al. ,
Plaintiffs,
METROPOLITAN DADE
COUNTY,
ORDER
FILFD By /jL/J " D' CJ
OC? 2 ^ 1996 '
Defendant.
-/
THIS CAUSE comes before the Court upon the Defendant's Motion
for Summary Judgment, filed August 26, 1996, and the Plaintiffs'
Cross-Motion for Summary Judgment on Liability, filed September 10,
1996. Both of these motions are ripe for resolution, and the Court
took brief argument on them at the pre-trial conference on October
22, 1996. After a thorough review of the record and pleadings, and
being otherwise advised in the premises, the Defendant's motion
must be and is GRANTED. The Plaintiffs' cross-motion is DENIED.
I.
This litigation concerns the enforcement of a Florida statute
that, among other things, prohibits any use of a public street in
a manner that creates a hazard to motorists or pedestrians. This
statute, codified at Fla. Stat. §337.406(1), provides in pertinent
part :
It is unlawful to make any use of the right-
of-way of any state transportation facility,
including appendages thereto ... in any
manner that interferes with the safe and
efficient movement of people and property from
751
place to place on the transportation facility.
Failure to prohibit the use of right-of-way in
this manner will endanger the health, safety
and general welfare of the public by causing
distractions to motorists, unsafe pedestrian
movement within travel lanes, sudden stoppage
or slowdown of traffic, rapid lane changing
and other dangerous traffic movement,
increased vehicular accidents, and motorist
injuries and fatalities. Such prohibited uses
include, but are not limited to, the free
distribution or sale of any merchandise,
goods, property or services; the solicitation
for charitable purposes, the servicing or
repairing of any vehicle, except the rendering
of emergency service; the storage of vehicles
being serviced or repaired on abutting
property or elsewhere; and the display of
advertising of any sort ....
(emphasis added). Fla. Stat. §334.03(22) defines "right-of-way" as
"land in which the state, the department, a county, or a
municipality owns the fee or has an easement devoted to or required
for use as a transportation facility." Fla. Stat. §334.03(31)
defines "transportation facility" as "any means for the
transportation of people and property from place to place which is
constructed, operated, or maintained in whole or in part from
public funds." A violation of the statute constitutes a
misdemeanor of the second degree. Fla. Stat. §337.406(4).
A.
The facts giving rise to this lawsuit were set out during an
evidentiary hearing conducted on May 2, 1996 in conjunction with
the Plaintiffs' motion for preliminary injunction.' Testimony at
'The parties agree that the record developed during the May
2nd evidentiary hearing may be considered in resolving the
pending summary judgment motions. Relatively little has been
added to the record since that time, and neither party has
752
the May 2nd hearing established the following: Plaintiffs Michael
Vance, Eric Seralnick and Robert A. McLaughlin sell flowers and
other floral products within the boundaries of Metropolitan Dade
County. Vance sells flowers in northeast Dade County, typically at
the intersection of Ives Dairy Road and Biscayne Boulevard, both of
which are state roads. When selling flowers on the street, Vance
waits until the traffic light turns red and the stopped vehicles
back up six car lengths. At that point he walks between the lanes
of traffic, displaying arrangements of flowers to drivers and
passengers who are seated in the vehicles, and carrying change in
his pocket or hands. Vance testified that he could not recall ever
walking in front of a moving vehicle, and could not recall ever
seeing an accident involving a flower vendor.
On Thanksgiving Day, 1995, Vance was taken aside by Lieutenant
Joseph McGillivray, an officer with the Intracoastal District of
the Metro-Dade Police Department. McGillivray advised Vance that
he could not sell flowers on a state road. At the time McGillivray
approached Vance, Vance was standing on the sidewalk. Several
weeks later, McGillivray again approached Vance while Vance was on
the sidewalk, and warned him that he could not sell flowers on a
state road. At some point in late February or early March of 1996,
McGillivray confronted Vance while he was sitting on a bucket of
flowers on private property. McGillivray advised him that if he
continued to sell flowers on the street in violation of section
introduced evidence to contradict or rebut testimony presented at
the hearing.
753
337.406, he would be arrested and not permitted to secure his
release on bond. McGillivray testified at the May 2nd hearing
that, on this and other occasions, he had observed Vance in the
roadway after the light turned green, delaying traffic and causing
motorists to honk their horns in frustration.
Seralnick, like Vance, sells flowers to motorists at the
intersection of Biscayne Boulevard and Ives Dairy Road as well as
other locations in northeastern Dade County. He has sold flowers
on the street for the past two years. His practice is to stand at
the start of the median while waiting for a red light. Once the
light turns red, he walks between lanes of traffic at the beginning
of the line of stopped cars. As soon as the light turns green, he
moves back to the median, walks to the head of the intersection and
waits for the next red light. Seralnick testified that he has
never walked in front of a moving vehicle, and has never seen an
accident involving a flower vendor. He added that each transaction
takes no more than a couple of seconds, and that if he is unable to
complete a transaction before the light turns green, he will walk
away from the sale.
On or about January 26, 1996, Seralnick was arrested and given
a notice to appear for an alleged violation of section 337.406.
Margaret Romero, a Metro-Dade police officer assigned to the
Intracoastal district, made the arrest. At the May 2nd hearing,
Romero testified that, when she arrested Seralnick, he was making
use of a state road in a manner that interfered with the safe and
efficient movement of people and property. She had observed
754
Seralnick selling flowers on the street, walking among cars stopped
in the two westbound left-turn lanes of northbound Biscayne
Boulevard at the intersection with Ives Dairy Road. According to
Romero, when the traffic light for the left-turn lanes turned
green, Seralnick was still in the road, which delayed the progress
of cars through the turn and forced a number of vehicles that
ordinarily would have made it through the light to wait for the
next green. Romero explained that, once Seralnick saw her, he
stepped onto the median, at which time she effected the arrest.
Romero explained that she was not monitoring the intersection for
the purpose of arresting flower vendors or any other vendors, but
rather as part of her normal routine during "down time" when she
was not responding to a call elsewhere.
McLaughlin supplies the flowers that are sold by Vance and
Seralnick. He drops off bunches of flowers at various street
corners, where they are picked up by flower vendors. He returns to
these corners at the end of the day, and picks up whatever flowers
have not been sold. McLaughlin testified that he has cautioned
Vance and Seralnick not to interfere with moving traffic, and that
he has never observed one of his vendors obstruct a vehicle. He is
not aware of an accident involving a vendor or an instance where a
car had to swerve to avoid a vendor. McLaughlin added that he has
observed Vance and Seralnick walk away from sales when it appeared
that the transaction could not be completed before the light turned
green. According to McLaughlin, the practice of soliciting in the
middle of streets in Dade County has been going on as long as he
755
can remember.
Lieutenant McGillivray testified that he has seen Seralnick,
Vance and others selling flowers at the intersection of Ives Dairy
Road and Biscayne Boulevard, both of which he described as heavily
traveled roads. McGillivray has warned individuals about
violations of Fla. Stat. §337.406 on many occasions, based on
activities at that intersection and at other locations in his
district. McGillivray said he has never given a warning unless he
felt the individual was interfering with the safe and efficient
movement of people and property by wandering between lanes of
traffic and causing a delay. When questioned on cross-examination,
McGillivray stated unequivocally that he would not arrest someone
under section 337.406 unless he believed that the individual was
obstructing traffic.
McGillivray noted that the activities of the Plaintiffs and
others have generated complaints from neighborhood citizen groups.
According to McGillivray, when vendors are in the street after the
light turns green, drivers are forced to decrease their speed,
change lanes or swerve to avoid hitting them. The delays caused by
the presence of vendors also agitates drivers in cars further back
in the line, who start to yell or honk their horns. McGillivray
said he has observed accidents, near-accidents and traffic tie-ups
result from the activities of on-street vendors and solicitors who
walk between lanes of traffic at busy intersections. He said that
he recalls incidents where drivers have jammed on their brakes ard
honked their horns in order to avoid collisions with vendors,
756
because of uncertainty as to whether the vendors would walk to the
left or the right in order to avoid the rush of traffic. He has
observed cars forced to wait at green lights to allow vendors
additional time to reach the sidewalk or median. McGillivray
explained that the presence of vendors and other solicitors in the
street causes anxiety to the many elderly drivers in the area who
become frightened or unsettled when unfamiliar persons approach
their cars. The anxieties of these elderly drivers exacerbate the
multiple safety and traffic flow problems that already exist on
Biscayne Boulevard and Ives Dairy Road.
Like McGillivray, Officer Romero testified that she has
observed accidents, near-accidents and traffic jams as a result of
the activities of vendors who sell their goods in the street in
violation of Fla. Stat. §337.406. She stated that she has made
arrests under the statute at the intersection of Ives Dairy Road
and Biscayne Boulevard, as well as at other locations in Dade
County. Romero explained that she has never made an arrest or
issued a warning under this statute unless she saw a dangerous
condition or a disruption to traffic (except in instances involving
older pedestrians) . According to Romero, when she observes an
apparent violation of section 337.406, she gives the violator a
warning, and advises him that he will be arrested if he continues
to obstruct traffic.
Vance, Seralnick and McLaughlin testified that they have seen
vendors for the Miami Herald, as well as panhandlers and
representatives of charitable groups and political organizations,
757
engage in solicitation on state roads in the vicinity of Ives Dairy
Road and Biscayne Boulevard. Nevertheless, according to the
Plaintiffs, they have never seen Metro-Dade police officers arrest
or warn these individuals for violating the law. Officer Romero
testified, without contradiction, that she has warned and arrested
individuals other than flower vendors for violations of Fla. Stat.
§337.406. Lieutenant McGillivray added that although he has not
arrested or warned individuals other than flower sellers, officers
under his command have done so. McGillivray explained that most of
the vendors who used to sell their wares on the street no longer do
so, as a result of Metro-Dade's enforcement of section 337.406. He
explained that charitable groups sometimes attempt to solicit
contributions while standing in the roadway, but that these groups
either leave the area or move to the sidewalk after being advised
of the applicable laws and regulations.
Both McGillivray and Romero acknowledged that they have not
enforced section 337.406 against vendors of the Miami Herald or
other newspapers. According to McGillivray, the officers in his
district have refrained from enforcing the statute against Herald
vendors because of a bulletin from the Police Department's legal
staff, which expressed concern about the constitutionality of
applying a former version of section 337.406 to newspaper sales.
McGillivray and Romero testified that Metro-Dade officers do not
arrest flower vendors on the basis of the content of their message
or their race, religion or political beliefs. Indeed, both
McGillivray and Romero testified that they are not aware of the
8
45-964 98 - 9S
758
race, religion or political beliefs of the Plaintiffs, and have
never overheard the substance of Plaintiffs' remarks to motorists
while selling their goods.
B.
Plaintiffs filed their complaint on March 18, 1996, along with
a motion for preliminary injunction pursuant to Rule 65 of the
Federal Rules of Civil Procedure.^ The complaint arises under 42
U.S.C. §1983, and seeks a declaration that Fla. Stat. §337.406 is
overbroad and unconstitutional as applied or selectively enforced
in violation of the First and Fourteen Amendments to the United
States Constitution. Plaintiffs request an injunction prohibiting
enforcement of the statute, damages and other relief.
The Plaintiffs moved for a hearing on their request for an
injunction in an emergency motion dated April 4, 1995. The parties
appeared for a status conference on April 15, 1996, at which time
the Court scheduled the parties for an evidentiary hearing. At the
hearing on May 2nd, the Court took testimony from five witnesses
and listened to oral argument on the outstanding motions. In a
lengthy Order dated May 6, 1996, the Court denied Plaintiffs'
motion for preliminary injunctive relief, finding no likelihood of
success on the merits. First, the Court held that section 337.406
is not facially unconstitutional, because it is narrowly tailored
to serve the State of Florida's significant interest in
^The complaint initially named the State of Florida as a co-
Defendant. In the May 6th Order, however, we dismissed the
claims against the State on Eleventh Amendment grounds.
759
facilitating traffic flow and ensuring the safety of motorists and
pedestrians. Second, the Court held that section 337.406 was not
unconstitutional as applied to the Plaintiffs and their customary
method of selling flowers, because Plaintiffs had failed to show
that their practice could never violate the statute or give rise to
the concerns that led to its enactment. Third, the Court found no
persuasive evidence that Fla. Stat. §337.406 was being selectively
enforced against flower vendors.
II.
The standard to be applied in reviewing summary judgment
motions is stated unambiguously in Rule 56(c) of the Federal Rules
of Civil Procedure:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.
It may be entered only where there is no genuine issue of material
fact. Moreover, the moving party has the burden of meeting this
exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970) . As the Eleventh Circuit has explained:
In assessing whether the movant has met this
burden, the courts should view the evidence ^.£,
and all factual inferences therefrom in the
light most favorable to the party opposing the
motion. Adickes, 398 U.S. at 157, 90 S. Ct.
at 1608; Marsh, 651 F.2d at 991. All
reasonable doubts about the facts should be
resolved in favor of the non-movant. Casey
Enterprises v. Am. Hardware Mutual Ins. Co.,
655 F.2d 598, 602 (5th Cir. 1981). If the
record presents factual issues, the court must
10
760
not decide them; it must deny the motion and
proceed to trial. Marsh, 651 F.2d at 991;
Lighting Fixture & Elec. Supply Qq_. ^Ll.
Continental Ins. Co. , 420 F.2d 1211, 1213 (5th
Cir. 1969) . Summary judgment may be
inappropriate even where the parties agree on
the basic facts, but disagree about the
inferences that should be drawn from these
facts. Lighting Fixture & Elec. Supply Co. ,
420 F.2d at 1213. If reasonable minds might
differ on the inferences arising from
undisputed facts, then the court should deny
summary judgment. Impossible Electronics, 669
F.2d at 1031; Croley v. Matson Navigation Co.,
434 F.2d 73, 75 (5th Cir. 1970).
Moreover, the party opposing a motion for
summary judgment need not respond to it with
any affidavits or other evidence unless and
until the movant has properly supported the
motion with sufficient evidence. Adickes[ ] ,
398 U.S. at 160 . . .; Marsh, 651 F.2d at 991.
The moving party must demonstrate that the
facts underlying all the relevant legal
questions raised by the pleadings or otherwise
are not in dispute, or else summary judgment
will be denied notwithstanding that the
non-moving party has introduced no evidence
whatsoever. Brunswick Corp. v. Vineberg, 370
F.2d 605, 611-12 (5th Cir. 1967). See Dalke
V. Upjohn Co. , 555 F.2d 245, 248-49 (9th Cir.
1977) .
demons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.
1982); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d
1486, 1502 (11th Cir. 1985), cert, denied, 475 U.S. 1107 (1986).
The United States Supreme Court has provided significant
additional guidance as to the evidentiary standard which trial
courts should apply in ruling on a motion for summary judgment:
[The summary judgment] standard mirrors the
standard for a directed verdict under Federal
Rule of Civil Procedure 50(a), which is that
the trial judge must direct a verdict if,
under the governing law, there can be but one
reasonable conclusion as to the verdict.
11
761
Brady v. Southern R, Co^, 320 U.S. 476,
479-80, 64 S. Ct . 232, 234, 88 L. Ed. 239
(1943) .
Anderson v. Liberty T.obhy . Inc.. 477 U.S. 242, 250 (1986). The
Court in Anderson further acknowledged that "[t]he mere existence
of a scintilla of evidence in support of the position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant] ." Id. at 252 (emphasis
added) . In determining whether this evidentiary threshold has been
met, the trial court "must view the evidence presented through the
prism of the substantive evidentiary burden" applicable to the
particular cause of action before it. Id- at 254. If the
non-movant in a summary judgment action fails to adduce evidence
which would be sufficient, when viewed in a light most favorable to
the non-movant, to support a jury finding in his favor, summary
judgment may be granted. Id. at 254-55.
In a companion case, the Supreme Court declared that a
non-moving party's failure to prove an essential element of his
claim renders all factual disputes as to that claim immaterial and
requires the granting of summary judgment:
In our view, the plain language of Rule 56(c)
mandates the entry of summary judgment . . .
against a party who fails to make a showing
sufficient to establish the existence of an
element essential to that party's case, and on
which that party will bear the burden of proof
at trial. In such a situation, there can be
"no genuine issue as to any material fact,"
since a complete failure of proof concerning
an essential element of the nonmoving party's
case necessarily renders all other facts
immaterial. The moving party is "entitled to
judgment as a matter of law" because the
12
762
nonmoving party has failed to make a
sufficient showing on an essential element of
her case with respect to which she has the
burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (emphasis
added). We measure the parties' cross-motions for summary judgment
against these standards.
III.
Plaintiffs now concede that section 337.406, properly
interpreted, is constitutional on its face. P'tiff. Resp. , at 8.
Nevertheless, they renew their argument that the statute is
unconstitutional as applied to them and their customary method of
selling flowers. In our May 6th Order, we rejected the Plaintiffs'
argument on this point in the following terms:
The Plaintiffs' next argument concerns whether
Fla. Stat. §337.406 is unconstitutional as
applied to the Plaintiffs' conduct in selling
flowers on streets in North Dade. The issue
here is not whether, in any specific instance,
one of the Plaintiffs did or did not violate
the statute. Rather, the issue is whether
selling flowers in the manner that the
Plaintiffs do makes application of the statute
to them — as opposed to others —
unconstitutional, because (1) their speech
warrants special protection or (2) the manner
in which the Plaintiffs sell their flowers is
such that enforcing the statute against them
could never serve the significant state
interests that give rise to the section
337.406.
The Plaintiffs do not — and cannot —
argue that the speech element of selling
flowers is somehow entitled to a higher
measure of constitutional protection than the
speech associated with selling sandwiches or
sunglasses or engaging in other commercial
transactions. Moreover, the evidence
establishes that the practice of mixing
13
763
pedestrian flower-sellers with temporarily
stopped motor vehicles will, in some if not
all instances, "pose a safety hazard [and]
cause delays and disruptions to traffic as
vehicles become detained at traffic lights
while drivers fumble for money and vendors
provide change." [News & Sun Sentinel Co. V.
QSX, 702 F. Supp. 891, 900 (S.D. Fla. 1988)].
In the case at bar. Lieutenant McGillivray and
Officer Romero testified to the various
hazards actually created by vendors who peddle
their wares while walking between lanes of
traffic at red lights. These hazards include
drivers swerving to avoid accidents, drivers
slamming on their brakes to avoid collisions
with vendors or other cars, and drivers who
become agitated at the presence of strangers
near their car window or at vendors' apparent
nonchalance in stepping off the road once the
light turns green.
Vance and Seralnick testified that they
have never been involved in an accident as a
result of their flower selling, and that they
try to conduct their business in a manner that
is not dangerous and does not delay traffic.
This evidence is not compelling, however. As
the Eight Circuit noted under similar
circumstances in [Acorn v. St. Louis CQUntV,
930 F.2d 591, 596 (8th Cir. 1991)]:
The fact that there was no evidence
of Acorn's solicitors being hurt is
of no probative value. The
government need not wait for
accidents to justify safety
regulations. Nor is it sufficient
for Acorn to show that its
particular practices are safe if the
practice of in-the-roadway
solicitation generally is dangerous.
It is the regulation's relationship
"to the overall problem that the
government seeks to correct," not
its necessity in Acorn's particular
case, that determines its validity.
The evidence does not establish that the
Plaintiffs' practice of selling flowers by
weaving between lanes of traffic while cars
are stopped at red lights — and stepping off
14
764
to the sidewalk or median once the light turns
green — is at all times compatible with the
State's need to ensure traffic safety and
prevent unreasonable delay to motorists. It
is inevitable that this practice will, on
occasion, be unsafe or disruptive, no matter
how cautious or considerate the Plaintiffs
might be. Indeed, on this limited record, the
evidence establishes that Vance and Seralnick
do not always conduct their business in the
innocuous manner that they suggest. Officer
Romero testified that, when she arrested
Seralnick, he had been lingering in the left-
turn lanes after the traffic light turned
green, causing a delay that limited the number
of cars able to complete the turn before the
light turned red again. Lieutenant
McGillivray testified that he has observed
Vance remaining on the street after the light
turned green, disrupting traffic^ and causing
cars to honk their horns. Under these facts
and circumstances, the Plaintiffs have not met
their burden of showing that the enforcement
of section 337.406 against them could never
serve the State of Florida's interest in
preventing interference with the movement of
people and property on state roads.
Order, at 23-26 (citations to factual findings omitted) .
The principal basis for the Plaintiffs' opposition to summary
judgment is their supposition that, as far as the County is
concerned, the Plaintiffs' customary method of selling flowers can
never be carried out in a manner that does not violate the statute.
According to the Plaintiffs, the County is prepared to arrest
flower vendors without regard to whether their conduct in any
particular instance "interferes with the safe and efficient
movement of people and property." Thus, they seek "protection from
this [C]ourt to prevent officers of Dade County from enforcing a
new policy of the County to make arrests of flower vendors,
regardless of whether plaintiffs obstruct traffic or otherwise
15
765
interfere in the free flow of traffic." P'tiff. Resp. , at 1.
This argument is unconvincing. To begin with, the record does
not support the Plaintiffs' belief that Metro-Dade police are
arresting flower vendors under Fla. Stat. §337.406 without regard
to the limitations of the statute. The Defendant acknowledges for
purposes of its motion that "some arrests occurred although the
accused was able to return to the median island or the shoulder
before the light turned green and traffic began to move." Def.
Mot., at 2. There is no evidence, however, that these arrests were
made without a sufficient basis for the arresting officer to
believe that the accused was "interfer [ ing] with the safe and
efficient movement of people and property." During the May 2nd
evidentiary hearing. Officers McGillivray and Romero stated
unequivocally that they would not cite an individual for a
violation of the statute unless they felt that the individual was
obstructing the flow of traffic or pedestrians. See Order of May
6, 1996, at 6-8. Plaintiffs have come forward with no record
evidence to suggest that Metro Dade officers regularly are abusing
the statute, or have a policy of making arrests under section
337.406 without probable cause to believe that an infraction has
occurred.
The Plaintiffs call our attention to what appears to be a Dade
County arrest form dated January 2, 1996. See P'tiff. Resp., at
exh. 6. The arrest form, executed by an Officer Ankney, charges
Plaintiff Seralnick with violations of two Florida statutes:
section 337.406, and a separate provision for "doing business
16
766
without a license." The narrative portion of the report explains
that Seralnick was observed "walking along the roadway for the
purpose of selling merchandise."' Plaintiffs seem to suggest that
this police report, standing alone, is sufficient to create a
triable issue of fact on the question of whether the County has a
policy of enforcing Fla. Stat. §337.406 without regard to whether
a violation of the statute has taken place. We disagree. Absent
meaningful details about the circumstances leading to the arrest,
it is impossible for us to ascertain whether the arresting officer
had cause to believe Seralnick was "interfering with the safe and
efficient movement of people and property" at the time of his
arrest. Moreover, even affording this police report the weight
that Plaintiffs suggest, the record falls short of establishing a
policy or pattern of making arrests pursuant to Fla. Stat. §337.406
without regard to the statute's limitations.
The heart of the Plaintiffs' argument is their opposition to
the County's assiamption that there can be an interference "with the
safe and efficient movement of people and property" even in
situations where vendors are able to leap onto the median or
sidewalk before the light turns green. Plaintiffs once again
Although Plaintiffs refer in passing to deposition
testimony concerning this arrest, no testimony is cited in the
briefs, and the deposition transcript is not in the record.
Thus, Plaintiffs' statement that "[i]n his deposition testimony
officer Ankney stated that he was unaware that this statute had
been declared unconstitutional . . .."is not competent evidence.
P'tiff. Resp., at 3 . We note, however, that the version of
section 337.406 on the books in January, 1996 had not been
declared unconstitutional by any Court.
17
767
insist that they sell their goods in a manner that does not create
a hazard to vehicles or pedestrians. They also stress that Metro-
Dade Police cannot recount a single instance where an accident
resulted from their conduct. But as this Court suggested in its
May 6th Order, no reasonable trier of fact could find that the
Plaintiffs' customary practice of weaving between lanes of traffic
while cars are stopped at red lights — and attempting to step off
to the sidewalk or median once the light turns green — could never
"interfere with the safe and efficient movement of people and
property." See Order, at 2 5-2 6. Even in situations where the
Plaintiffs managed to step off to the median or sidewalk before the
light turned green, an officer could conclude that, under the
circumstances, the Plaintiffs' presence in the roadway had
threatened to undermine the safe and efficient movement of people
and property. See Def. Mot., at 4 (noting that individuals who
engage in on-the-roadway solicitation "distract drivers from . . .
watching the intersection and being alert to move when the light
changes, and thereby create probable cause to believe that traffic
is thereby impeded") . As the Eighth Circuit observed in Acorn v.
:, 798 F.2d 1260 (9th Cir . 1986):
Unlike oral advocacy of ideas, or even the
distribution of literature, successful
solicitation requires the individual to
respond by searching for currency and passing
it along to the solicitor. Even after the
solicitor has departed, the driver must secure
any change returned, replace a wallet or close
a purse, and then return proper attention to i. z
the full responsibilities of a motor vehicle
driver. The direct personal solicitation from
drivers distracts them from their primary duty
18
768
to watch the traffic and potential hazards in
the road, observe all traffic control signals
or warnings, and prepare to move through the
intersection .
789 F.2d at 1269; see also City of Baton Rouge 876 F.2d at 498
(quoting this language) . In City of Phoenix, as in City of Baton
Rouae . the Court of Appeals applied these principles to uphold
against First Amendment challenge municipal ordinances that
effectively banned all roadway solicitations, whether or not they
"interfered with the safe and efficient movement of people and
property." These cases reflect the courts' ambivalence with the
notion that no obstruction of pedestrian or vehicular traffic
exists so long as the individual making the solicitation is able to
step off the roadway when the light turns red. This Court shares
that ambivalence, and is unpersuaded by Plaintiffs' suggestion that
Fla. Stat. §337.406 cannot constitutionally be applied in
situations where they are not found in the roadway at the precise
moment vehicular traffic resumes.
To reiterate, the question for purposes of determining whether
a statute is unconstitutional as applied is not whether it has been
applied properly in any particular instance; rather, we must ask if
the statute could ever be applied constitutionally to the
Plaintiffs' customary practice. See, e.g. , County of St. Louis,
930 F.2d at 596. The answer to this question is clear. Even
assuming that the Plaintiffs invariably are able to leap onto the
median or sidewalk before the light turns green (a factual
predicate not supported by the record) , no reasonable trier of fact
19
769
could disagree that their presence in the roadway at certain points
while the light is red may create a risk of undermining the safe
and efficient movement of people and property on the road, within
the meaning of Fla. Stat. §337.406. No genuine issue remains,
therefore, as to whether the statute is unconstitutional as applied
to the Plaintiffs' customary method of selling flowers. Metro-Dade
police are entitled to enforce the statute on a case-by-case basis;
and to the extent that one of the Plaintiffs believes that, in a
particular instance, he has been arrested without probable cause,
section 1983 provides an altogether satisfactory vehicle for relief
from that incident.
Vance and Seralnick next reprise their argument that Fla.
Stat. §337.406 is being selectively enforced against them. As
support for this contention. Plaintiffs once again highlight the
County's practice of enforcing Fla. Stat. §337.406 against flower
sellers, but not against vendors of the Miami Herald. As noted in
the May 6th Order, however, this fact does not establish selective
enforcement:
In order to establish a claim for selective
enforcement, a plaintiff must show (1) he has
been singled out for prosecution among others
similarly situated who commit the same offense
and (2) the singling out was invidious or done
in bad faith. £££ Geaneas v. Willets, 911
F.2d 579, 587 (11th Cir. 1990), cert, denied
sub. nom, 499 U.S. 955 (1991); Fillingim v.
Boone, 835 F.2d 1389, 1399 (11th Cir. 1988);
United States v. Lichenstein, 610 F.2d 1272,
1281 (5th Cir. 1980) (listing racial and
religious discrimination as examples of
impermissible considerations) . The burden of
proof in making a prima facie showing of
selective prosecution has been characterized
20
770
as "heavy." Fillingim, 835 F.2d at 1399
(citing United States v. Johnson. 577 F.2d
1304, 1308 (5th Cir. 1978)). These cases
reflect the principle that even the conscious
exercise of some selectivity in enforcement of
a statute is not in and of itself a
constitutional violation. Oyler v. Boles, 368
U.S. 488, 450 (1962); Owen v. Wainwright, 806
F.2d 1519 (11th Cir. 1986), cert, denied sub,
nom., 481 U.S. 1071 (1987) .
The Plaintiffs allege that the section 337.406
has been applied selectively by Dade County.
See Compl. at 517 (asserting that "while
plaintiffs and others selling flowers to
motorists have been arrested and threatened
with arrest by officers of the Dade County
Police Department other vendors, and
specifically vendors of the Miami Herald, a
local newspaper, have not been so harassed or
threatened with arrest, and have been
specifically permitted to sell newspapers at
the same locations where plaintiffs have been
deprived of the right to sell their
products") . All three of the Plaintiffs
testified that they were not aware of anyone
other than a flower vendor being arrested for
a violation of Fla. Stat. §337.406.
McGillivray and Romero, however, stated
unequivocally that Metro-Dade officers have
arrested or warned others for apparent
violations of the statute. Moreover,
McGillivray and Romero made plain that they
would not make an arrest under the statute
unless they genuinely believed that the
individual, whatever his activity, was causing
a delay or creating a safety hazard. Although
the evidence establishes that officers do not
arrest newspaper vendors, McGillivray
explained that this policy is based not a
desire to limit all speech other than that
contained in newspapers, but rather a good
faith belief that such arrests or citations
would be incompatible with the First
Amendment .
These facts make clear that the
Plaintiffs have not been singled out for
enforcement and that flower vendors are not
targeted on the basis of the content of their
speech. We stress that the pertinent question
21
771
is whether the Plaintiffs — and flower sellers
in general — were the subject of selective
enforcement, and whether the decision to
target these vendors (as opposed to others
violating the statute) was done in bad faith
or for an invidious motive. Thus, the mere
fact that Metro Dade Police officers did not
arrest or warn Miami Herald vendors does not,
in and of itself, establish that the officers
selected the flower vendors for impermissible
reasons or on the basis of their message. At
all events, the record evidence plainly does
not support the Plaintiffs' contention that
Fla. Stat. §337.406 was enforced solely
against flower vendors. The Plaintiffs' Equal
Protection claim is, therefore, without
foundation.
Order, at 26-28 (emphasis added) (citations to factual findings
omitted).^ Plaintiffs have introduced no persuasive new evidence
or case law to support their selective enforcement claim, which
continues to rest on the mistaken assumption that the County's
reluctance to enforce Fla. Stat. §337.406 against newspaper vendors
establishes the selectivity of its enforcement of the statute
against all other offenders.
^Testimony at the May 2nd hearing established that the
County's concern about enforcing section 337.406 against
newspaper vendors stems from the Judge Hastings' decision in Cox.
In CoXf the court held that the former version of section 337.406
was unconstitutional, in the context of a case brought by the
publisher of various newspapers who argued that the statute
abridged First Amendment free press rights. Shortly after Cox,
in a memorandum dated June 8, 1989, the Police Legal Bureau
advised officers that enforcement of the statute was to be
immediately discontinued. See P'tiff. Resp., at exh. 1.
Subsequent to the date of this memorandum, the language of
section 337.406 was revised and narrowed in an effort to avoid
any perceived constitutional infirmities. See Order of May 6,
1996, at 18 n.6. The issue of whether section 337.406, in its
present form, may be constitutionally enforced against newspaper
vendors is not before this Court, and Plaintiffs' argument that
newspaper vendors create every bit as much of a safety risk as
other roadside vendors is of no moment here.
22
772
Plaintiffs do cite a February 12, 1996 memorandum from Robert
Diers, a Lieutenant with the Special Operations Unit, to certain
police personnel. The memorandum states the following:
We have received numerous complaints reference
illegal flower vendors in the area of Ives
Dairy Road and Biscayne Boulevard, and Miami
Gardens Drive and Biscayne Boulevard.
As well as being illegal, these vendors take
customers away from legitimate business owners
who pay rent and taxes in order to operate
their businesses. They also present a traffic
hazard to motorists who have to stop because
another motorist is obstructing traffic to
make a purchase from the vendor. It should
also be noted that many of these vendors have
outstanding bench warrants for failing to
appear in court for previous vending arrests.
Please assign a unit from your squad to
investigate these vendors and take the
appropriate enforcement action. Attached is a
copy of Legal Bulletin 95-4, which lists the
County Ordinances and Florida State statutes
that are applicable to these situations.
P'tiff. Resp. , at exh. 5.
Plaintiffs highlight this memorandum as evidence that the
County is arresting flower vendors not because they threaten
motorist and pedestrian safety, but rather because they are drawing
business from local merchants. The record plainly does not support
this accusation, nor the concomitant assumption that arrests are
being made even if the Plaintiffs are not obstructing pedestrian or
vehicular traffic. Moreover, a claim of selective enforcement
requires proof that "the selection was deliberately based upon an
unjustifiable standard such as race, religion or other arbitrary
classification." Oyler , 368 U.S. at 456; cf. United States v.
23
773
Armstrong, — U.S. — , 116 S. Ct. 1480, 1486-87 (1996) (holding that,
to establish a claim of selective prosecution based on race, the
defendant must meet a "demanding standard" and produce "clear
evidence" that similarly situated individuals of a different race
were not prosecuted) . The Diers memorandum does not constitute
significant proof of the kind of invidious motive that gives rise
to a constitutional violation, and Plaintiffs cite no case law to
the contrary. Indeed, Plaintiffs concede that "[i]n this case,
flower vendors are [not] a 'suspect class.'" P'tiff. Resp. , at 10.
For all of the foregoing reasons, no reasonable trier of fact
could conclude that Fla. Stat. §337.406 is being applied in an
unconstitutionally restrictive or selective manner. The Plaintiffs
ask us to rule that they "are entitled as a matter of law to sell
flowers to motorists stopped in the street, so long as they do not
obstruct traffic." P'tiff. Resp., at 6. But what Plaintiffs seek
is nothing more or less than what the statute permits now. The
essence of Plaintiffs' objection is their belief that their
customary sales practice does not obstruct traffic, and can never
give rise to the safety and efficiency concerns that led to the
statute's enactment. But absent some persuasive indication that
their method of selling flowers can never create a safety hazard or
interfere with the smooth passage of vehicles or pedestrians, or
that Metro-Dade officers have a policy of regularly arresting
individuals even if they have no probable cause to believe that an
offense has occurred, it is not for us to enjoin the County from
enforcing an otherwise constitutional law. The Plaintiffs remain
24
774
free to sell flowers on state roads; they simply may not do so in
a manner that violates a state statute.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant's motion for summary
judgment is GRANTED, and the Plaintiffs' cross-motion is DENIED.
All other pending motions are DENIED AS MOOT. The Defendant shall
submit a proposed Order of Final Judgment within ten (10) days of
the date of this Order.
DONE AND ORDERED in Miami, this "^'^^ day of October,
1996.
STANLEY MAReeS
UNITED STATES DISTRICT JUDGE
copies to:
counsel of record
25
775
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Rodney W. Sippel
2. Address: List current place of residence and office
address (es) .
Home: Kirkwood, Missouri
Office: Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
3. Date and place of birth.
July 26, 1956; Jefferson City, Missouri
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Married;
Mary (Manning) Sippel
Nurse
Cardinal Glennon Children's Hospital
14 65 South Grand Boulevard
St. Louis, Missouri 63104
5. Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Washington University School of Law
St. Louis, Missouri
Dates Attended: August, 1978 through Decerober, 1981
Degree: J.D., December, 1981
University of Tulsa
Tulsa, Oklahoma
Dates Attended: August, 1974 through June, 1978
Degree: B.S. , with Honors, June, 1978
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and
STL-E3e592.10
776
organizations, nonprofit or otherwise, including firms,
with which you were connected as an officer, director,
partner, proprietor, or employee since graduation from
college.
1978 Employee, Hational Museum of Transport
to 3015 Barrett Station Road
June, 1979 St. Louis, Missouri 63122
June, 1979
to
May, 1980
Staff Assistant
Office of U. S. Senator
Thomas F. Eagle ton
1520 Market
St. Louis, Missouri 63102
May, 1980
to
November, 1980
Field Director
Eagleton Campaign Committee
7701 Clayton Road
St. Louis, Missouri 63105
November, 1980
to
March, 1982
Staff Assistant
Office of U.S. Senator
Thomas F. Eagleton
1520 Market
St. Louis, Missouri 63102
March, 1982
to
December, 1988
Associate
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
January, 1989
to
/^ril 1993
Partner
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
May, 1993 Administrative Assistant
to Congressional Office of U.S. Congressman
October, 1995 Richard A. Gephardt
11140 South Towne Square #201
St. Louis, Missouri 63104
October, 1995 Partner
to Vice-chairman Litigation Department
Present Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
STL-538S92.10
777
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.
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
Eagle Scout
University of Tulsa
Phi Eta Sigma (Freshman Honorary Society)
Omicron Delta Kappa (Leadership Honorary Society)
Mortar Board (Scholarship/Leadership Honorary
Society)
W.V. Holloway Prize in Political Science
Outstanding Senior Award, 1978
Rhodes Scholar Nominee
Washington University School of Law
Order of the Barristers
Moot Court National Competition Team
International Law Moot Court National Competition Team:
• National Semi-Finalist
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.
Bar Association of Metropolitan St. Louis
Missouri Bar Association
American Bar Association
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.
Lobbying: None
- 3 -
STL-536592.10
778
other :
St. Louis Zoo Friends: since approx. 1992
St. Louis Art Museum: since approx. 1992
University of Tulsa Alumni Association: since 1978
• served as St. Louis Coordinator
• served on National Board of Directors
KETC/Channel 9 (Public Television Station) :
currently a member and have been a member
in other years .
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.
Missouri Supreme Court, 1982
United States District Court
for the Eastern District of Missouri, 1982
United States District Court
for the Southern District of Illinois, 1987
United States Court of Appeals
for the Eighth Circuit, 1984
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.
As part of a CLE publication ^^For the Defense: Limiting
Damages in Missouri", I wrote a chapter "Discovery
Techniques for the Defense . "
I have also written an outline on Noncompetition Agreements
under Missouri Law, which has been distributed at CLE's as
a hand-out.
- 4
STL-538592.10
779
13. Health: What is the present state of your health? List
the date of your last physical examination.
Excellent. May, 1996.
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) 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.
N/A
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 clerk:
I did not serve as a clerk.
- 5 -
STL-S36E92.10
780
whether you practiced alone, and if so,
the addresses and dates;
I have never practiced alone.
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.
March, 1982 to Decen±)er, 1988
Associate
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
January, 1989 to April, 1993
Partner
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
• 1988-1991 - Chairman
Hiring Committee
• 1989-1993 - Coordinator
Volunteer Lawyer Program
May, 1993 to October, 1995
Administrative Assistant
Congressional Office of
U.S. Congressman Richard A. Gephardt
11140 South Towne Square #201
St. Louis, Missouri 63104
October, 1995 to Present
Partner
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
• Vice Chairman - Litigation
Department
• Compensation Committee
What has been the general character of
your law practice, dividing it into
- 6 -
STL-538592.10
781
periods with dates if its character has
changed over the years.
I have handled hundreds of litigation
matters ranging from personal injury
claims to RICO and antitrust cases.
My practice has evolved from defense of
p>ersonal injury cases to complex
commercial litigation during the past 15
years .
Upon graduation from law school, I joined
the St. Louis law firm of Husch &
Eppenberger. My initial focus was
defense of personal injury cases. The
primary client in these matters was the
Bi-State Development Agency (the local
p\iblic transportation authority) . From
1985 through 1968, I was the supervising
attorney for Bi-State cases assigned to
Husch & Eppenberger. At any given time,
I handled a docket of at least 30 to 40
personal injury cases pending in the
Circuit Court of the City of St. Louis.
The nature of the personal injury cases
ranged from "soft tissue" injuries to
wrongful death cases . The volume of
personal injury cases I was handling
dictated that I was on the trial docket
on almost a weekly basis.
Even while I was managing a substantial
personal injury caseload, I always
handled a few commercial cases for
lending institutions. As the number and
complexity of the commercial cases grew,
my practice shifted over time toward a
commercial litigation practice. This
transition also shifted the focus of my
practice from the state courts to the
federal courts. For exanple, my personal
injury docket of 30 to 40 cases was
typically pending in the Circuit Court
for the City of St. Louis. Today, I do
not have a single case pending in the
City Circuit Court. Rather, the
commercial cases I am currently handling
- 7 -
STL-536592.10
782
are almost exclusively pending in the
United States District Court for the
Eastern District of Missouri or other
federal courts .
Describe your typical former clients, and
mention the areas, if any, in which you
have specialized.
My current coinmercial litigation practice
includes cases involving federal
antitrust law, the Uniform Commercial
Code, lender liability, non-compete
agreements and Lanham Act claims
(primarily disputes over counterfeit
merchandise) . During the past year, my
clients have primarily been the General
Electric Capital Corporation and Lloyd's
of London in commercial matters, and the
St. Louis Convention and Visitors
Commission in its antitrust case against
the National Football League.
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 the first seven years of my
practice, I was in court on a weekly basis.
As my practice evolved from personal injury
defense (primarily state court cases) to
complex commercial defense (primarily
federal court cases) my court appearances
became less frequent.
What percentage of these appearances was in:
(a) federal courts: 60%
(b) state courts of record; 35%
(c) other courts. 5%
What percentage of your litigation was:
(a) civil; 99%
(b) criminal. 1%
S7L-63e59:.10
783
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 handled at least 15 cases to
verdict or judgment. Six of these cases
were jury trials. I was sole counsel in
four jury trials and six bench trials.
The remaining cases were tried as an
associate or co-counsel.
5. What percentage of these trials was:
(a) jury; 40%
(b) non-jury. 60%
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.
Hardin v. Lloyd's of London, 4 : 96CV02252GFG,
United States District Court for the Eastern
District of Missouri. The Honorable Judge George
F . Gunn , Jr .
I was co-counsel for the defendant Lloyd's of
London .
SUMMARY: Plaintiffs "Names" sought to enjoin
payment of letters of credit issued to Lloyd's of
- 9 -
STI.-536592.10
784
London as security for insurance underwriting
risks made by the plaintiff ^Names" at Lloyd's of
London .
The case presented issues relating to: i) the
limited circumstances under which a letter of
credit may be enjoined; ii) enforcement of venue
selection provisions; and iii) collateral
estoppel .
The original petition was filed in state court. I
removed the action to the United States District
Court for the Eastern District of Missouri.
Briefs were filed and oral arguments heard on the
request for a Teir^orary Restraining Order on
November 15, 1996.
RESULT: Plaintiffs' request for a TRO was denied
and Lloyd' s was permitted to collect the money due
pursuant to the terms of the letters of credit.
OTHER COUNSEL:
Mr. Stephen H. Rovak
Sonnenschein, Nath £ Rosenthal
One Metropolitan Square
Suite 3000
St. Louis, Missouri 63102
Telephone: (314) 241-1800
Counsel for Plaintiffs
CO-COUNSEL:
Mr. Alex Bartlett
Husch & Eppenberger
235 East High Street
Jefferson City, Missouri (65101
Telephone: (573) 635-9118
Co -Counsel for Lloyd' s
E. Bruce Nangle, et al . v. Mark Twain Bank, Adv.
No. 87-0029-BKC-JJB, United States Bankruptcy
Court for the Eastern District of Missouri. This
case is still active although it has been pending
since 1987,
I serve as sole counsel for the defendant Mark
Twain Bank.
10
STL-53e59i.lO
785
SUMMARY: Plaintiffs claim that Mark Twain Bank
violated the Uniform Fiduciaries Law in making
certain loans to a Missouri limited partnership,
Crossroads USA Limited II, causing injury to the
plaintiffs who were limited partners in the
partnership.
The substantive issue in this case was whether and
under what circumstances the Bank owed a fiduciary
duty under the Uniform Fiduciaries Law to limited
partners in making a loan to a limited
partnership. Additionally, this was a case of
first impression regarding the applicable statute
of limitations for claims arising under the
Uniform Fiduciary Law.
RESULT: Summary Judgment was entered for Mark
Twain Bank. See, In re Lauer, 97 Bkty. Rptr. 544
(Bkty. E.D.Mo. 1989). The judgment was upheld by
the District Court. The United States Court of
Appeals for the Eighth Circuit recently remanded
the case for further proceedings.
OTHER COUNSEL:
Mr. Steve Hamburg
Summers, Compton, Wells & Hamburg, P.C.
8909 Ladue Road
St. Louis, Missouri 63124
Telephone: (314) 991-4999
Counsel for Defendant Lauer;
Mr. Michael D. Stokes
1215 Pine Street
St. Louis, Missouri 63103
Telephone: (314) 621-3743
Counsel for Plaintiffs
3. Calvin Klein Jeanswear Company v. Venture Stores,
Inc. , Cause No. 4:96CV01263, United States
District Court. The Honorable Judge E. Richard
Webber .
I was co-counsel for plaintiff, Calvin Klein
Jeanswear Company.
- 11
786
SUMMARY: Calvin Klein filed a Complaint for
trademark infringement seeking injunctive relief
arising out of the alleged sale of counterfeit or
"seconds/irregular" tee shirts by Venture Stores
as first quality Calvin Klein merchandise.
The primary issue in this case was whether Venture
Stores was selling counterfeit or "second"
merchandise as first quality Calvin Klein
merchandise. TRO hearing was commenced in May,
1996. Settlement discussions precluded the
submission of the claim to the court for judgment.
RESULT: A consent agreement was negotiated and its
implementation is the subject of ongoing
discussions.
COUNSEL:
Mr. Loel Seitel
Law Offices Marc F. Desiderio
45 Birch Street
Englewood Cliffs, New Jersey 07632
Telephone: (201) 568-3003
Co-Counsel for Plaintiff
Mr. Alan Nemes
Kalish & Gilster
500 North Broadway, Suite 1200
St. Louis, Missouri 63102
Telephone: (314) 436-1331
Counsel for Venture
Thera-Kinetics , Inc. v. Dan Mecklenberg. , Cause
No. 4:95CV2283JCH, United States District Court
for the Eastern District of Missouri. The
Honorable Jean C. Hamilton.
I was sole counsel for defendant former employee
Dan Mecklenberg.
SUMMARY: Complaint filed by former employer sought
relief for breach of contract, trade secrets and a
non-compete agreement.
The primary issues in this case focused on
traditional non-compete issues relating to the
existence of an employer's "protectable interest"
- 12 -
STL-53eS92.10
787
in the goodwill of its customers balanced against
an employee's right to seek new employment. The
case also involved choice of law issues and
traditional unfair competition issues.
RESULT: Case was settled in May of 1996,
OTHER COUNSEL:
Mr. Harry W. Wellford, Jr.
Thompson Coburn
1 Mercantile Center
St. Louis, Missouri 63101
Telephone: (314) 552-6000
Counsel for Plaintiff.
Stewart, et al . v. Fry, et al . , Cause No. 84-4325,
United States District Court for the Southern
District of Illinois. The Honorable Judge James
L . Foreman .
I was sole counsel for former Bank Officers and
Directors, including former Bank President Thomas
E . Fry , Jr .
SUMMARY: Plaintiff purchased "control" of the Ina
State Bank through a stock purchase. The Bank
failed shortly after the purchase. Plaintiff sued
the sellers and the Bank's former Board of
Directors for securities fraud and common law
fraud. Discovery in this case and the companion
cases proceeded almost full time for approximately
one year.
The primary issue was the nature and extent of the
duty to disclose and whether the former Board of
Directors failed to fully disclose the financial
condition of the Bank during plaintiff's due
diligence examination of the Bank. Discovery and
depositions of Bank officers, auditors,
accountants and FDIC personnel continued virtually
full-time for more than one year spanning a period
of time from 1984 through 1985.
RESULT: Case resulted in a favorable settlement
for defendants when the companion case against the
policy carrier was settled.
- 13 -
STL-53e592.10
788
OTHER COUNSEL:
Mr. John A. Klobasa
Kohn, Shands, Elbert, Gianoulakis & Giljijm
1 Mercantile Center
St. Louis, Missouri 63101 .
Telephone: (314) 241-3963
Counsel for Plaintiff
Mr. Terrance J. Good
Lashly & Baer
714 Locust
St. Louis, Missouri 63101
Telephone: (314) 621-2939
Counsel for Co-Defendant Accounting Firm
Ms. Susan Bennett Green, Law Clerk
The Honorable John R. Gibson
837 U.S. Court House
811 Grand
Kansas City, Missouri 64102
Telephone: (816) 426-3169
Counsel for Co-Defendant Bank Directors
Mr. Kent Knickmeyer
Thompson Coburn
1 Mercantile Center
St. Louis, Missouri 63101
Telephone: (314) 552-6000
Counsel for Co-Defendant Bank Director.
COMPANION CASES: FDIC v. Withers, et al . , Cause
No. 85-4070, United States District Court for the
Southern District of Illinois; F & D Company of
Maryland v. Fry, et al . , Cause No. 89-3070, United
States District Court for the Southern District of
Illinois.
C.I.T. V. Duncan Grading & Construction, Inc., Cause
No. 82-0305(2), United States District Court for the
Eastern District of Missouri. The Honorable Chief
Magistrate Judge David D. Noce.
I was co-counsel for C.I.T. at trial and briefed and
argued the appeal in the United States Court of Appeals
for the Eighth Circuit.
- 14 -
311-538592.10
789
SUMMARY: C.I.T., a commercial lender, sought payment
due on a promissory note and security agreement
including attorneys' fees and costs of repossessing the
pledged equipment. Despite defendants' refusal to pay
the amounts due under the promissory note and hiding
the collateral, defendant claimed that the conduct of
the repossession and the sale of repossessed equipment
was not "commercially reasonable" under the Uniform
Commercial Code.
The fundamental issue in this case was whether CIT's
sale of the collateral was commercially reasonable
under Article 9, Section 504, of the Uniform Commercial
Code.
This case was tried to verdict in a one day trial in
December, 1982.
RESULT: Trial court determined that C.I.T. complied
with the requirements of Article 9 of the Uniform
Commercial Code and entered judgment for the balance
due to C.I.T. The United States Court of Appeals for
the Eighth Circuit upheld the trial verdict. See
C.I.T. Corporation v. Duncan Grading & Construction,
Inc., 739 F.2d 359 (8" Cir. 1984).
OTHER COUNSEL:
Mr. David Lander
Thompson Coburn
1 Mercantile Center
St. Louis, Missouri 63101
Telephone: (314) 552-6000
Trial Co-Counsel;
Mr. Sidney Rubin
230 South Bemiston
St. Louis, Missouri 63105
Telephone: (314) 862-6000
Counsel for the Defendant.
Horseshoe Entertainment, a Louisiana Limited
Partnership, and Robinson Property Group Limited
Partnership, Cause No. 4:96CV00695, United States
District Court for the Eastern District of
Missouri. The Honorable Charles A. Shaw.
- 15 -
STL-53e592.10
790
I was lead counsel for General Electric Capital
Corporation.
SUMMARY: Horseshoe Entertainment sought to
recover a prepayment premium previously paid to GE
Capital. Horseshoe claimed that a loan officer at
GE Capital had orally agreed to waive any
prepayment premium under certain conditions. GE
Capital denied any such agreement and relied on
Missouri's newly enacted statute of frauds
governing credit agreements (§432.045 R.S.Mo.
(1994)) whereby credit agreements may not be
amended except in writing upon compliance with the
statute.
This was a case of first impression under
Missouri's statute of frauds governing credit
agreements .
The Court determined that the statute of frauds
governing credit agreements precluded any action,
including promissory estoppel and fraud, arising
out of an oral amendment to a credit agreement.
RESULT: Summary judgment for GE Capital was
granted on February 21, 1997.
OTHER COUNSEL:
Mitchell A. Margo, Esq.
Green, Schaaf £ Margo, P.C.
7733 Forsyth Boulevard
Suite 800
St. Louis, Missouri 63105
Telephone: (314) 862-6800
Facsimile: (314) 862-1606
Counsel for Plaintiff Horseshoe Entertainment
Pohlmann v. Bil-Jax, Inc. , Cause No. 932-8665, Circuit
Court for the City of St. Louis, Missouri. Trial
Judge: The Honorable Circuit Judge James Edwards.
I was co-counsel at trial for defendant Bil-Jax. I
handled expert and damages testimony at the trial . The
jury trial lasted one week during April of 1996.
- 16 -
£TL-5je592.10
791
SUMMARY: Plaintiff Pohlmann suffered a crushed left
leg and ankle in a fall from a scaffold allegedly
manufactured by defendant. The plaintiff alleged that
the scaffold was unreasonably dangerous as designed.
The extent of plaintiff's injuries and resulting
damages were disputed.
The primary medical issues presented by this case
related to the causation of plaintiff's alleged
permanent injuries and future medical expenses.
RESULT: Jury verdict for plaintiff Pohlmann. The
trial court ordered a remittitur of damages or re-trial
on the issue of damages only. The case is presently on
appeal to the Missouri Court of Appeals.
OTHER COUNSEL:
Matthew D. Menghini
Husch & Eppenberger
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
Telephone: (314) 421-4800
Co-Counsel for Defendant
Mr. John J. Allan
8000 Maryland Avenue, Suite 1000
Clayton, Missouri 63105
Telephone: (314) 725-4545
Counsel for Plaintiff
Wilson, et al . v. Purdy, et al . , Cause No. 914-
00135, Circuit Court for the City of St. Louis,
Missouri. The Honorable Judge Edward M. Peek.
I was sole counsel for newly elected members of
the City of St. Louis School Board.
SUMMARY: This case was a challenge to the
election results in City of St. Louis School Board
election in April, 1991. Despite losing the City
wide election by more than 8,000 votes, the
unsuccessful candidates claimed that sufficient
irregularities existed in election results to
warrant new election.
- 17 -
£71,-536592.10
792
RESULT: As provided for under Missouri's election
law statutes, defendants demanded and received an
insnediate trial. After a one day hearing,
judgment was entered for defendants and the
election results were upheld.
OTHER COUNSEL:
Mr. Edward R. Joyce
1108 Olive Street
St. Louis, Missouri 63101
Telephone: (314) 241-2317
Counsel for Plaintiffs ;
Mr. Leo V. Garvin
Anderson & Gilbert
7800 Forsyth Boulevard, 6"" Floor
P. O. Box 50210
St. Louis, Missouri 63105
Telephone: (314) 721-2777
Counsel for City Election Board.
10 . Trigg, et al . v. Leader Motors, Inc., et al . ,
Cause No. 892-01066, Circuit Court for the City of
St. Louis, Missouri. The Honorable Circuit Judge
Jack L. Koehr.
I was sole counsel for the defendant automobile
dealer. Leader Motors in the trial court during
the class action certification hearings.
SUMMARY: Plaintiff sought to certify a class
action against defendant car dealer. Leader
Motors, Inc., and the Ford Motor Company for
alleged orsl misrepresentations by different
salesmen in the sale of used rental cars as
"program" or "executive driven" cars .
The primary issue in the case was whether
different oral misrepresentations by different
salesmen to different parties at different times
could be certified as a class action under
Missouri law.
The class certification issues were argued at a
series of hearings held on February 6, 1991 and
March 20, 1991, and on January 27, 1992.
- 18 -
STL-53e592.10
793
A Writ of Prohibition was filed in the Missouri
Court of ^peals on January 30, 1992. The
Missouri Supreme Court accepted transfer on
September 22, 1992.
RESULT: Trial court certified the class action.
The Missouri Court of Pippoals reversed the trial
court. The Missouri Supreme Court reversed the
Court of ;^peals and upheld the original trial
court ruling.
OTHER COUNSEL:
Mr, Jim Virtel
Armstrong Teasdale Schlafly £ Davis
One Metropolitan Square
St. Louis, Missouri 63102
Telephone: (314) 621-5070
Counsel for Ford Motor Company;
Mr. Jeff Lowe
Gray & Ritter
701 Market Street
St. Louis, Missouri 63101
Telephone: (314) 241-5620
Counsel for Plaintiff.
In addition to the lawyers identified in the cases
above, the following lawyers have had recent
contact with me:
Mr. Mike Reid
Missouri Ethics Commission
P. O. Box 1254
Jefferson City, Missouri 65102
Telephone: (573) 721-2020
Toll Free: (800) 392-8660
Mr. Rodney D. Brown
Region Counsel
General Electric Capital Corporation
Commercial Equipment Financing
44 Old Ridgebury Road
Danbury, Connecticut 06810
Telephone: (203) 796-1064
- 19
S71.-63B592.10
794
Mr. Mike Wolff
Professor of Law
St. Louis University Law School
3700 Lindell Boulevard
St. Louis, Missouri 63108
Telephone: (314) 977-2774
Mr. Richard E. Haferkamp
Rogers, Howell & Haferkamp, L.C.
7733 Forsyth, #1400
Clayton, Missouri 63105
Telephone: (314) 727-5188
Mr. Frank J. Elpers
Elpers & Inman, P.C.
601 Market Street
P. O. Box 404
Ste. Genevieve, Missouri 63670
Telephone: (573) 883-5000
Mr. Bradley A. Winters
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
Telephone: (314) 552-6000
Mr. Richard A. Riezman
Riezman £ Blitz, P.C.
120 South Central Avenue
Clayton, Missouri 63105
Telephone: (314) 727-0101
The Honorable Edward L. Filippine
319 U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
Telephone: (314) 539-3623
The Honorable Catherine D. Perry
U. S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
Telephone: (314) 539-6192
- 20 -
STL-53e592.10
795
Mr. Richard P. Magurno
Senior Vice President and General Counsel
Trans World Airlines, Inc.
One City Centre; 515 North 6th Street
St. Louis, Missouri 10549
Telephone: (314) 589-3000
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. ) .
I have had the opportunity to handle a number of matters which
I believe served to enhance the St. Louis Metropolitan
Communi ty .
I handled the legal aspects of ballot proposition campaigns
which sought to enhance the economic stability of St. Louis'
Forest Park (Proposition P in 1992) and a bond issue to expand
Lambert St. Louis Airport (Proposition L in 1991) .
I was intimately involved in the negotiations between the City
of St. Louis and Trans World Airlines which allowed TWA to
emerge from bankruptcy protection (the first time) in 1993.
The result of those negotiations also gave the City of St.
Louis more control over the future of the airport.
I am also proud of the role that I have played in mentoring and
training a large number of associates at Husch & Eppenberger.
In addition to the above, there is no other "legal activity"
that compares to my experience in the adoption of our son. An
adoption is obviously an intensely personal experience. But as
a lawyer, I experienced the legal system from a different point
of view. To lawyers, the courthouse and the courtroom become
familiar places, like old friends. As a party to a legal
proceeding, even an adoption, the courthouse becomes an
intimidating place where your future hangs in the balance.
Even in our adoption proceedings, where the result was never
really in doubt, the uncertainty was unsettling.
While the experience did not change the substantive *^practice
of law" for me, I know I am a better lawyer as a result of my
experience as a "party" to my son's adoption.
21 -
STL-536592.10
796
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.
By reason of my prior and present association with Husch
& Eppenberger, I participate in the Husch & Eppenberger
Profit Sharing Plan and Trust of which all my 401 (k)
monies are currently invested with the American Bar
Association Members Retirement Program. My interest in
the plan is fully vested and any future earnings or
payments I would receive are governed by federal law.
By reason of my prior employment by the United States
Congress, I am a participant in the United States
Government Thrift Savings Plan. My interest in the plan
is fully vested and any future earnings or payments are
governed by federal law.
I do not qualify for any retirement benefits from the
Federal Employees Retirement System.
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 conf licts-of-interest
during your initial service in the position to which you
have been nominated.
My affiliation as a partner at Husch £ Eppenberger and
confidential knowledge of specific pending cases will
present conflict issues at least until those specific
cases are resolved.
I will engage in a case by case analysis of each case
that might come before me to determine if
disqualification under 28 USC §455 is appropriate. I
will follow the Code of Judicial Conduct in reviewing any
case for potential conflicts of interest.
- 22 -
STL-S3eS92.10
797
3. Do you have any plans, cominitinents, 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 here.)
See attached Financial Disclosure Report
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
6.
See attached Net Worth Statement
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.
In 1980, I was a Field Director in Thomas F. Eagleton's
re-election campaign to the United States Senate. I was
responsible for general campaign activity in portions of
the St. Louis area and Southeast Missouri.
In 1992, I was involved in Robert L. Holden' s campaign for
Missouri State Treasurer as a general unpaid advisor.
I have not otherwise been personally involved or employed
by or served in an official capacity in any other political
campaigns. I have served as paid legal counsel for several
campaign committees, primarily related to ethics issues.
Z have served as paid legal counsel for the following
campaign committees relating to ballot propositions:
1. Proposition O (ballot proposition for the
construction of facilities for the
Olympic Festival in St. Louis) in 1992
- 23 -
STL-S3e592.10
798
Proposition P (ballot proposition to fund
support for Forest Park) in 1992
Proposition L (ballot proposition for a bond
issue for expansion of Lambert Airport)
in 1991
Proposition A (referendum relating to the
expansion of St. Louis Art Muse\am) in 1992
- 24 -
STL-E3e592.10
799
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR /ii9S}' 1996
1. P«r«on Reporting lUat nan., tint, nMddli Inltl.ll
Slppal, Rodney W.
United states District Court
for the Eastern District o£ Missouri
3 . Date of Report
5 /16 / 97
^. Tltl« (Arilcl* III 3u<)a*c indicate acti^'o or
sanaer status; haqtscrats judges indicate
Cull* or psrt'tlmi)
United States District; Judge - Nominee
5- ficporc Tjrpe (eheO appropriate type)
X Noeiination. Date S /1V97
Initial Juvnual Final
S. Reportina Period .
1 n /96 -12/3V96
7. Oianbcrs or OCCicc Address
100 N. Jroadway, Suite 1300
St. Louis MO 63102
t. on c>ie basis of the information contained in this Report ond
any voditicstlons pcrcainirM theicco. It is. in eiy opinion,
in cootpliancc with applicable lavs and regulations.
ReviavUig Olflcer Hate
IMPORTANT NOTES. The insirucuons accompanying this form miut be followed. Complete all parts,
checlsing the NONE box for each section where you have no reportable ioformation Sign on last page.
L POSITIONS. (Reporting individual only; see pp. 9-13 oflnstructioQS.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (No reportable positions)
Partner Huseh & Eppenbereer
II. AGREE.MENTS. (Reporting individual only; sec pp 14-17 of Instructions.)
DATE PARTIES AND TERMS
n
NONE (No rcporlabic agrccmcnis)
Huach & Eppcnberger Trnployee Profit Sharing Plan & Trust (currencly invested
the ABA Retirement ProBram)
1996
Kusch & Eppenbergcr parcnershlp Income and redemption of partnership
interest as determined by partnership agreement upon temination
Ilia NON-INXTSTMENT INCOME. (Rcponing mdividual and spouse; see pp. 18-Z5 of Instructions.)
DATE SOURCE AND TYPE ^GROSS ^ INC(^^
n
1996 & 1997
NONE (No reportable oon-inveslmeiii income)
Cardinal Glcnnon Children's Hospital
-LM
Husch & Eppenberger (Income)
$157,000 (annt
$
$.
$
800
FINANCIAL DISCLOSURE REPORT
Sippel, Rodney W.
5/16 /97
VII. Page 1 INVESTMENTS and TRUSTS - income, value, transactions (Includes those of spouse
and dependent children See pp. 37-54 of Instraclioos.)
-r '; 'v. ._;■. (including LT-u3t asSftrs} - '. ■ ^'■
:^;lndic»CB:^vhere -applicable,', o^ciT^f --
. .*1J> for^Dlnr owT%«r8Klp^oI report-*^
• J.ng indiviguAl. »n4, fipCTUse/' • (S)* fcr
^,iot o-ncrshlp_by.dcpendtnt,cAll£)... .
.,.'-■-; pi.ce "(Xl •"ifceV 'i3!:^ -i'ssVc' -
,';';'.J.^0Aerapt.-frOHi prior .-diSclDaure.-^ ■;
.'.-,nf;:peE;ioa..f".
■ repon-lt^g
■ - , • ;■', ■ .- ■--'-!.' 0 I 1 "" " "J
■Ml),:.
Codi -
IA-«).
■'-•■■ur.- ■
div ,- ■
■ U 1 ■
':. '
.VtLiue:
Code -
(J-.p)-
111 •
■"type* -
b.^^.lal,
. ,jr not «emp'. fr=ci discloaurt .' ,.]
n.tl'.
■ Ql
Vilue2
code.
-(a-Pi
CiilQ
Code,
I*-- Ml
. ■ -.IdebCity ol . .
,„ .btfvtr/tcllor '
>. ■'.;, <ir;private,4' ^
NONj£^^ (Mo rap.rtj^l.
(E X E M
P T)
» ABA WlCk)
M
I
' Manning Services Scock {S)
D
Div.
K
u
' Exxon Coimon stocK (J)
A
Dlv.
J
I
< Zoom Telephonies Common Stock (J)
A
Dlv.
J
I
5 Alil Comraon Stock (J)
A
Blv.
J
T
St. Louis Teachers
' Credit Union (s)
A
Int.
J
T
Mark Twain Bank
St. Louis. MO (J)
A
Int.
J
I
■
'
ic
-
13
"
»
"
1<
1
"
It
^>■^£^if"£,^£;i ,J:lii«SSi»f;^?;:cn. , |:a6'Sli^L'lilS%oo. g:i!ol°J.!°.«iS?Soo.o.o ^Jk^'^IJJ|i%SS%.=. i
^^' :fS-%^?-'li .■..,,■ 5:5U6?S?i«r.^HS=..o. :^ll!6"?Ji'fo'i;:?SUo ^:SI5e»?i;i%!^Si«S5o '-»---^="»:"« ^
■ ' -';j^^c^'''«i"^°^'"= 8:Jss"vi*i. SiSih^"*' """ ""'''' S:j;usr!S5 ' " T-c,i>/«.rx«
801
FINANCIAL DISCLOSURE REPORT
Name of fcrson Xcporclng
Slppcl, Rodney w.
/" / 97
IV. REIMBURSEMENTS and GIFTS - U«nsportiIion, lodgiag, food, emcruinmenl.
(iDcludcs those to spouse snd dependcBt children, use tie parentheiicali "(S)' and '(DC)" to indicalc reportable
reimbursements and gifts received by spouse and dependent children, respcuively. Sec pp. 26-29 of Instructions )
nSgypCE DESCRIPTION
NONE (No such reportable retmbunemcDt^ or gifts)
D
OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheiicals "(S)* and "(I^C)' to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE DESCRIPTION V-JVLUE
NONE (No such reportable gifts)
n. $
s
5
S
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person respofuibic
for liability by using the parenthetical '(S)' for separate liability of the spouse, *(J)* for joint liability of
reporting individual and spouse, and "(DC)" for liability of a dependent child. Sec pp. 34-36 of Instructions.)
CREPIIOg DESCRIPTION VALUE CODE-
□
NONE (No reponable liabilities)
SIS. 001 • SSO.DOO I. - SSO.OOl - SIOO.
SSOO.ODl - 51.000.000 P - More th*n SJ . 00
802
Fn©NCIAL DISCLOSURE REPORT
NaiTE of Psrscvi Rcpsrting
Sippel, Rodney W.
Qa^e o£ Report
5/16/ 97
Vm. ADDITIONAL INFORMATION or EXPLANATIONS (Indicate part of Rrport.)
K. CERTIFICATION.
In compliance with the provisions of 28 U.S.C § 455 and of Advisory Opinion No. 57 of the Advisory Comminee on Judicial Activiiio,
and to the best of my biowiedge al the time after reasonable Inquiry, I did not perform any adjudicatory fvinction in any litigation during the
period covoBi by this report in which I, my spouse, or my minor or dependent children had a finarKia! interst, as defined in Canon 3C(3XcX
in th; outcome of such litigation
I certify thai all informaion 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 informaiion vet reported was withheld because it met applicable
statutoo' provisions permining non-disclosure.
I fijrther certify that eamexJ 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. agp. 7, § 501 et. seq., 5 U.S.C § 7353 and Judicial Conference regulations
Signature _
b^
-WHO
US CA. svp. 7, § 501 et. seq.,
^fXOuj lb)
99?-
NOTE; />lNY INDrVTOU/iJ. \W)0 KNOWINGLY AND WILFULLY FALSIHES OR FAILS TO HLE THIS REPORT MAY BE SUBJECT
TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA APR 6, § 104.)
RLING INSTRUCTIONS:
Mail signed original and 3 additional copies to'
CommiOee on Financial [>isdosure
Administialive OflRcE of the
United Stales Courts
One Columbus Cirde, N.E, Suite 2-301
Washington. DC 20S44
803
A ONE- PAGE FINANCIAL STATEMENT - NET WORTH DOCUMENT IS
AFTER PARAGRAPH 5 AND BEFORE SECTION III.
- 25 -
STL-S36592.10
804
FINANCIAL STATEMENT
NET WORTH
Provide a compleu, current rinancial net worth siaiement which itemiKj in detail
ill assets (including bank accounts, reaJ estate, securities, trusts, invesanents, and other rmanciaJ
holdings) aU liabilities (including debts, mongages, loans, and other financial obligations) of
yourself, your spouse, and other immediate memben of your household.
ASSETS
UABUJnEs 1
Cuh oe hmd wi in bvOu
23
000
Kouj payibW IS banSd-MCuid
2
267
VS. Ce«unmcoi Mouilia-t^
Khedulc
KoKi piytbk 10 btnki-uniKURd
Littad uanitt-tM KheduU
24
uo
Koui piytbk le rtluiva
Unliitftd ie£iriUei-4dd t<>ic4jU
52
400
Koiu piyiblt 10 otfttn
Aeeooiu tnd M'^ii re£<iviblt:
AccouflU >nd biUi dut
4
000
^t tnffl nlttjvci t/td fivndi
Unptid income tu due 6/15/97
13
500
Due (rem eihcti
Oiiu unpaid lu and initi««(
Doubtful
Rial ciuic roon{i|ci piyiblc-idd
Ktxdula
223
900
Rul wuu eimcd-tdd idtedult
310
000
Oiaod atonmci and olha liani pay-
abb
X») nuu mori|i|ti tectivtbU
^ha 4<b(*-itemiu:
38
500
Advance Carpet
4
200
Cwh vtluc-lifi intiuwict
U
007
Otiict uitu-iumiu:
tOKk)
149
105
,
U.S. GoveriOTcnt Thrift Savings Plai
7
500
Tool babOitioi
247
867
NaWottt
361
985
Tout AiMU
609
)52
Total GabOitkat and M( weitk
609
852
C0NT1NCEN7 UASOITIES
CE^TIUL ISrORMAnON
Ai udorxr, eomikw or fuuulor
0
An any awu ptadgatfT (Add Khod-
vk.)
Nol
Ob biMi or oennca
0
An you dcfcodant is tay iBiu or Ictil
•ciioaaT
No
Lcfil Cliiini
0
K>v« y«g r>fi ttl-ce buifauplcy?
No
PteoiiJMi fof F«l<tiJ lnccm< Tu
0
OvhR ipuitl d«b<
0
_
__
_
-^
1 Pledge of automobile is reflected in Notes Payable to Bank - Secured
805
RODNEY and MARY SIPPEL
ACCOUNT VALUATION*
NO. OF MARKET
SHRS. SECURITY VALUE*
100 AT&T $ 3,375
100 ARAKIS ENERGY CORP. $ 365
200 EXXON CORP. $11,700
32 LUCENT TECHNOLOGIES, INC. $ 2.000
800 ZOOM TELEPHONICS, INC. $ 6,700
$24,140
*As of close of .business 5/6/97; subject to murJcet flncn*tion.
806
Unlisted Securities:
Manning Services, Inc. $ 20,000
Husch & Eppenberger partnership interest $ 32,400
Real Estate Owned;
Kirkwood, Missouri 63122 $ 310,000
Real Estate Mortgages Payable;
Countrywide Homes Loans (on residence) $ 223,900
P. 0. Box 67009
Dallas, Texas 75267-0009
807
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 amount of time devoted to each.
Legal Services for Eastern Missouri Volunteer Program:
In response to a request by Legal Services of Eastern
Missouri and Husch & Eppenberger' s managing partner, I
started and organized a program by which the firm began
accepting "referrals" on a pro bono basis from Legal
Services. From 1990 through 1993, I supervised the firm's
pro bono programs. Specifically, I supervised and handled
at least 33 domestic matters for indigent individuals in
abusive marriages. My work included drafting motions and
petitions for protection, and court appearances as needed.
Flood of 1993:
During the Flood of 1993, I coordinated community outreach
efforts as part of my job responsibilities with
Congressman Gephardt. This outreach included involving
and coordinating efforts with the Legal Services of •!
Eastern Missouri. I also dealt with a large number of
regulatory issues presented by FEMA and HUD, and other
federal agencies, during the disaster and the subsequent
recovery efforts .
Campaign to enhance the public perception of Missouri's
Judges :
Circuit Court Judges in Missouri's metropolitan areas as
well as all Missouri Court of Appeals and Supreme Court
Judges are selected pursuant to what is known to as the
"Missouri Plan". Under the Missouri Plan judges are
selected by a non-partisan court commission and then
appointed by the Governor. A judge continues to serve
subject to a "retention" vote of the people. Judges stand
for retention on a separate judicial ballot, without party
designation. The issue submitted to the electorate is
whether the particular judge should be retained in office
by a vote of yes or no.
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STL-53e592.10
808
In 1992 I assisted in an educational cainpaign sponsored by
the Missouri Bar to educate the public about the Missouri
Plan and the judiciary in general. No individual judge's
retention was advocated. The goal was to enhance the
overall public perception of Missouri's judicial branch of
government.
Missouri Valley Athletic Conference:
I served as a volunteer during the past seven seasons at
the annual Missouri Valley Conference Basketball
Tournament held in St. Louis.
2. The American Bar Association's Conunentary 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 the practical
implementation of membership policies? If so, list, with
dates of membership. What you have done to try to change
these policies?
No
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) .
No. I provided inaterials to Congressman Richard A.
Gephardt similar to materials provided to the ABA and the
Senate Judiciary Committee. I was then interviewed by
Congressman Richard A. Gephardt. Congressman Gephardt
forwarded the background materials which I provided to him
to Senator Christopher Bond and Senator John Ashcroft. On
February 6, 1997, I met with staff members for Senator Bond
and Senator Ashcroft. Since that time, I have provided
materials to and met with representatives of the United
States Department of Justice, the Federal Bureau of
Investigation, and the American Bar Association.
- 27 -
STL-63e592.10
809
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-
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
c. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
There is no role for "judicial activism" in the Federal
judiciary. "Judicial activism" undermines the
appropriate balance of authority among the three branches
of our Federal government.
- 28 -
STL-53e592.10
810
It is important to remember that the fundamental legal
doctrine of stare decisis controls the decisions of the
District Court. The p>ersonal opinion of a District Court
Judge of what the law should be must be set aside and the
previous holdings of appellate courts must be followed.
As a result, the proper scope of the District Court's
authority is to apply the law to the facts of the cases
which are properly before the court.
Further, while the District Court has an obligation to
protect individual rights and liberties, the Court should
not do so by sitting as a ^^super legislature," or by
substituting the Court's judgment for that of the
Legislative and/or Executive branches.
Additionally, each case must be initially reviewed to
determine whether Federal jurisdiction exists. Cases
which properly belong in state courts should be dismissed
or remanded as the procedure dictates. This initial
analysis is important because it allows the District
Court to not only preserve the appropriate balance of
power among the branches of the Federal government, but
also preserve the appropriate jurisdictional authority
among the state, local and Federal governments.
In order to avoid unnecessary and far reaching opinions,
it is also important for the District Court to determine
whether the parties have standing to bring the claims
presented and whether such claims are ripe for
adjudication.
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571.-536592. 10
811
OUESTIONMAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used).
Norman Kenneth Moon
2. Address: List current place of residence and office address(es).
Residence:
Lynchburg, Virginia
Office:
Court of Appeals of Virginia
Central Fidelity Bank Building
18th Floor
Ninth and Main Streets
Lynchburg, Virginia 24504
Office Mailing Address:
Court of Appeals of Virginia
Post Office Box 657
Lynchburg, Virginia 24505
3. Date and place of birth.
November 4, 19 36
Lynchburg, Virginia
4. Marital Status (include maiden name of wife, or husband's name). List
spouses occupation, employer's name and business address(es).
Barbara Wooldridge Moon
Not employed outside our home.
5. Education: List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
University of Virginia School of Law
Master of Laws (Judicial), 1986 - 1988; Degree: May 22, 1988
University of Virginia School of Law
Bachelor of Laws, 1959 - 1962; Degree: June 3, 1962
University of Virginia
Bachelor of Arts, 1955 - 1959; Degree: June 2, 1959
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.
812
Court of Appeals of Virginia: Judge, January 1, 1935 - present; Chief
Judge, May 1, 1993 - present. (I was re-elected to serve a second term as
Chief Judge, beginning May 1, 1997).
Twenty-fourth Judicial Circuit of Virginia: Judge, April 15, 1974 -
December 31, 1984; Chief Judge, July 1, 1983 - December 31, 1984.
Edmunds, Williams, Robertson, Sackett, Baldwin & Graves: Partner, January
1, 1970 - April 15, 1974.
Air Pollution Control Board of the City of Lynchburg: Chairman, July 1,
1972 - April 15, 1974. I was appointed to the Board by the City of
Lynchburg City Council and elected by the other board members as chairman
for this unpaid position.
Williams, Robertson & Sackett: Associate, June 4, 1962 - December 31, 1966
(except during military service); Partner, January 1, 1967 - December 31,
1969.
United States Army, 1st Battalion, 35th Artillery: First Lieutenant,
February 17, 1963 - January 28, 1965.
State Farm Mutual Automobile Insurance Company: Claims adjuster, June 1 -
August 3, 1961.
Wooldridge Motor Company: Car salesman, June 1 - August 15, 1960.
Hoco Oil Company: Service station attendant, June 1 - August 15, 1959.
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.
Yes, I served in the military.
Date: February 17, 1963 - January 28, 1965
Branch of service: U.S. Army (Artillery)
Rank: 1st Lieutenant
Serial No: 05207642
Present Status: Retired
Discharge: Honorable
Honors and Awards: List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
William J. Brennan, Jr. Award, awarded by University of Virginia School of
Law for excellence in teaching trial advocacy, 1997.
William Folkes Scholarship, University of Virginia, 1955-59.
Intermediate Honors, University of Virginia, 1957.
Norman K. Moon
813
Raven Society, 1958.
Omicron Delta Kappa, 1958.
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.
National Council of Chief Judges, Executive Committee: Treasurer 1996 -
present. Secretary 1995-96, member 1993 - present.
Virginia Bar Association, Judicial Section: Vice Chairman 1997, member
1995 - present.
Judicial Council of Virginia: 1993 - present.
State-Federal Judicial Council for Virginia: 1993 - present.
Boyd-Graves Conference, Steering Committee: 1986 - present.
Judicial Conference, Judicial Administration Committee: Chairman 1985-87.
Model Jury Instructions Committee: Chairman 1983-86, member 1981-86.
Committee to Draft the Rules for the Court of Appeals of Virginia: 1983-
84.
Virginia State Bar: 1962 - present.
E-thics Committee, Sixth District: Chairman 1972-74, memiier 1971-74.
Virginia Bar Association.
Judiciary Committee: 1972-74.
Insurance Committee: 1969-74.
Young Lawyers Section: Southside Regional Vice-President 1968-69,
member 1963-73.
American Bar Association: 1972 - present.
national Institute of Trial Advocacy: 1996 - present.
Aaarican Judicature Society: 1974 - present.
Institute of Judicial Administration: 1985 - present.
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.
Lobbying Groups :
Commission on Family Violence Prevention (previously Commission Against
Norman K. Hoon
814
Ooasstic Violence): 1993 - present.
Virginia Bar Association: 1962 - present.
Aaarican Bar Association: 1972 - present.
Other Memberships:
National Council of Christians & Jews: Board Member 1989-94.
Poakland Baptist Church: Finance Committee 1992-93, Executive Committee
Chairaan 1989-90, Board of Deacons 1971-73, 1987-89.
Thirteen Club: November 20, 1974 - present (no bylaws).
John Lynch Society: 1967 - present (no bylaws).
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.
Supreme Court of Virginia - June 4, 1962
United States District Court for the Western District of Virginia - June
7, 1965
Onited States Court of Appeals for the Fourth Circuit - October 7, 1972
United States Supreme Court - May 29, 1967
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 ptiblished 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 .
VIRGINIA MODEL JURY INSTRUCTIONS (Micbie 1986) (four volumes, updated
annually) (contributed to the 1981-86 voltunes) .
A Proposal to Simplify Virginia Burdens of Proofs, 12 George Mason Law
Review 1 (1989) .
Virginia Bar Association, Continuing Legal Education: Tips for Getting the
Judge to Try Your Case and Hot You (July 18, 1997) (handout).
I have made some informal talks that touched on constitutional law and
legal policy. I spoke from notes.
See Attachment A ("Publications") for a copy of the article, the CLE
handout, and speech notes.
Health; What is the present state of your health? List the date of your
last physical examination.
Norman K. Moon
815
I am in excellent health. I had my last physical examination on July 3,
1997.
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.
Court of Appeals of Virginia, Chief Judge, 1993 - present. Judge, 1985 -
present. (I was re-elected by the members of the Court to serve a second
term as Chief Judge, beginning May 1, 1997). I was elected to the Court
by the General Assembly of Virginia. The Court of Appeals of Virginia is
an intermediate court of appeal with jurisdiction over appeals from
criminal cases in which capital punishment was not imposed, domestic
relations cases, worker's compensation cases, and administrative agency
appeals that were first appealed to a circuit court.
Twenty-fourth Judicial Circuit of Virginia, Chief Judge, 1983-84, Judge,
1974-85. I was elected to the Court by the General Assembly of Virginia
and was elected Chief Judge by the other judges in the circuit. The
Circuit Courts of Virginia are trial courts of general jurisdiction.
15. Citations: If you are or have been judge, provide: (1) citations for the
ten most significant opinions you have written; (2) a short suxamary of and
citation 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) The ten most significant opinions I have written.
Williams v. Williams. 24 Va . App. 778, 485 S.E.d 651 (1997).
Walton v. Commonwealth, 24 Va . App. 757, 485 S.E.2d 641 (1997).
Mills V. Commonwealth, 24 Va . App. 95, 480 S.E.2d 746 (1997).
Horen v. Commonwealth. 23 Va . App. 735, 479 S.E.2d 553 (1997).
Tench V. Commonwealth. 21 Va . App. 200, 462 S.E.2d 922 (1995).
Barfield v. Commonwealth. 20 Va . App. 447, 457 S.E.2d 786 (1995).
Hughes v. Commonwealth, 18 Va . App. 510, 446 S.E.2d 451 (1994).
Broady v. Commonwealth, 16 Va . App. 281, 429 S.E.2d 468 (1993).
Farmer v. Commonwealth. 12 Va . App. 337, 404 S.E.2d 371 (1991).
Jones V. Colonial Williamsburg Foundation, 10 Va . App. 521, 392 S.E.2d 848
(1990) .
(2) A short summary of and citation for all appellate opinions where my
Norman K. Moon
816
decisions were reversed or where my judgment was affirmed with significant
criticism of my substantive or procedural rulings.
Cases I decided as a circuit court judge in Virginia's 24th Judicial
Circuit (none of which were written decisions) which were reversed by the
Supreme Court of Virginia:
1) Alls v. Alls, Circuit Court of Campbell County (June 15, 1975)
reversed by Alls v. Alls. 216 Va . 13, 216 S.E.2d 16 (1975).
As trial judge in a divorce proceeding, I awarded a husband a
divorce on the ground of desertion and awarded him custody of the couple's
child. The Supreme Court reversed, holding I erred in finding that a
wife's departure from the family home one day after her suit for divorce
alleging cruelty was filed, constituted desertion on the wife's part, for
one spouse is not guilty of legal desertion in separating from the other
after the institution of a suit for divorce or during its pendency. The
Supreme Court also ordered that the custody determination be reconsidered.
2) Early Settlers Ins. Co. v. Jordan, Circuit Court of Nelson County
(June 13, 1975) reversed by Early Settlers Ins. Co. v. Jordan, 217 Va .
462, 229 S.E.2d 871 (1976).
Plaintiff was injured by his contact with his car which he was
driving when the car struck a tree. His father's insurance policy
provided medical coverage if plaintiff was struck by an automobile. I
held that bis injury was covered. The Supreme Court reversed.
3) Watson v. Shepard. Circuit Court of Campbell County (Nov. 24, 1976)
reversed by Watson v. Shepard, 217 Va . 538, 229 S.E.2d 897 (1976).
As a trial judge, I denied a petition by the natural mother to
regain custody because she was unfit. I allowed adoption by the
"psychological parents" who had custody of the child and their own child,
who looked upon the adoptive child as its sibling. The Supreme Court
reversed, holding that it was error to approve adoption by a couple while
they were divorcing. The Court held that the irrevocable step of
terminating the natural parent's rights, even though no question was
raised about the adoptive parents' fitness as parents, should not be taken
at a time when the adoptive parents were separated and their marital
problems were unsettled.
4) Cole v. Waynesboro, Circuit Court of the City of Waynesboro (July 8,
1976) reversed by Cole v. Waynesboro, 218 Va . 827, 241 S.E.2d 765 (1978).
Landowner challenged a grant of a special use permit to allow
construction of a ten-story apartment building for elderly and handicapped
residents in a block zoned for general business and residential use. As
trial judge, I entered judgment against the landowners, upholding the
granting of the permit because the evidence did not show that the city
clearly abused its power in exercising its legislative power. The Supreme
Court had previously held this to be the standard. Byrum v. Board of
Supervisors. 217 Va. 37, 225 S.E.2d 369 (1976).
Reversing my decision, the Supreme Court held that not withstanding
Norman K. Moon
817
the issuance of a special permit a legislative action must comport with
good zoning practices or the purpose of the city ordinances.
5) Baker v. Commonwealth. Circuit Court of Campbell County (July 25,
1978) reversed by Baker v. Commonwealth, No. 781235 (Va. Apr. 13, 1979).
Baker, a prisoner, was convicted of escape. On appeal, it was
determined that he was prosecuted under the wrong escape statute because
he was technically a prisoner in a jail not a part of the Department of
Corrections.
6) Woodson V. Lynchburg Div ■ of Social Servs., Circuit Court of the City
of Lynchburg (Sept. 23, 1980) reversed by Woodson v. Lynchburg Div. of
Social Servs. , 223 Va . 235, 288 S.E.2d 410 (1982).
As a trial judge, I terminated the residual parental rights to the
illegitimate child of a biological father and authorized the social
service agency to place the child for adoption. The father, who had not
supported the child or had any meaningful contact, had numerous other
illegitimate children whom he was not supporting. The father intervened
in the proceeding after the natural mother was found unfit and was about
to have her parental rights terminated. I believed his intention was to
delay adoption and to leave the child in the custody of the unfit mother.
The Supreme Court reversed, holding that: (1) the statute
permitting termination of parental rights of a parent or parents who,
without good cause, have been unwilling or unable within a reasonable
period to remedy substantially the conditions which led to the child's
foster care placement eliminated the necessity for specific finding of
parental unfitness in termination proceedings between parents and social
service agencies; (2) finding that the factors listed in the statute exist
is tantamount to a finding of parental unfitness; and (3) where an
unmarried father was not offered services of a rehabilitative agency prior
to the termination of his parental rights, order would be reversed and
father would be given the opportunity to show what progress he could make
with the assistance of rehabilitative agencies toward establishing, within
a reasonable period, a suitable home for the child subject to the
termination order.
7) Kern v. Freed Co., Circuit Court of Nelson County (Jan. 8, 1980)
reversed by Kern v. Freed Co. , 224 Va. 678, 299 S.E.2d 363 (1982).
As trial court judge, I held that a homeowner was indebted to the
seller on the sale of household appliances and entered judgment
accordingly. The Supreme Court reversed, holding that a principal is not
bound when an agent acts beyond its authority and that no unjust
enrichment was shown in an implied contract to pay for goods.
8) School Board v. Hurley. Circuit Court of Amherst County (Apr. 29,
1983) reversed by School Board v. Burley, 225 Va . 376, 302 S.E.2d 53
(1983) .
Vendors brought suit against school board for specific performance
for sale of real estate. As trial judge, I held that under the facts and
circumstances of the case, the school board was estopped from interposing
as a defense that the contract was not in writing and was therefore
Norman K. Moon
818
8
unenforceable. I ordered specific performance. The Supreme Court
reversed, holding that an oral contract for the purchase of land by a
school board under former Code Sec. 22-150 (now superseded by Code Sec.
22.1-128) is ultra vires and void and that there was no estoppel against
the Board to raise defense of lack of writing.
9) Pierce v. Martin. Circuit Court of Campbell County (Oct. 24, 1980)
reversed by Pierce v. Martin. 230 Va . 94, 334 S.E.2d 576 (1985).
Truck driver sued car driver for contribution to recover one-half of
amounts paid by the truck driver to the car passengers in settlement of
the injury claims. I entered judgment for truck driver. The Supreme
Court reversed in part and affirmed in part, holding that some, but not
all, of the injured parties were prohibited by their own testimony from
recovering against the defendant.
Cases decided by a three-judge panel of the Court of Appeals of Virginia
in which I wrote the decision for the panel and the decision was reversed
by either the Court of Appeals sitting en banc or the Supreme Court of
Virginia:
1) National Linen Service v. McGuinn, 3 Va . App. 73, 343 S.E.2d 42 (1986)
reversed by National Linen Service v. McGuinn, 5 Va . App. 265, 362 S.E.2d
187 (1987) (en banc) .
The Court of Appeals en banc affirmed the decision of the Workers'
Compensation Commission and reversed my panel decision. The Court held
that the commission correctly determined that because of the employer's
failure to execute and file a memorandum of agreement, its payment of
compensation to the employee for a period of thirteen months, and its
failure to contest the compensability of the injury, the employer could
not be placed in a better position than it would have been in had it
complied with the provisions of Code Sec. 65.1-93. The Court further held
that there was credible evidence to support the commission's finding that
the employee reasonably believed that he was entitled to compensation
because the employer paid benefits for thirteen months without executing
a memorandum of agreement.
2) Clinebell v. Commonwealth, 3 Va . App. 362, 349 S.E.2d 676 (1986)
reversed in part by Clinebell v. Commonwealth, 235 Va . 319, 368 S.E.2d 263
(1988) .
We held that certain hearsay statements of a child victim under
Virginia law were inadmissible to impeach the child's testimony. The
Supreme Court adopted a new exception to the hearsay rule and reversed.
3) Hill City Trucking v. Christian, 7 Va . App. 78, 371 S.E.2d 572 (1988)
reversed by Hill City Trucking v. Christian, 238 Va. 735, 385 S.E.2d 377
(1989) .
This was a worker's compensation claim in which Christian, a long-
distance truck driver, was shot by robbers who, pretending to be police
officers, stopped his truck at 3:00 A.M. on a deserted road. We held that
the injury arose out of a risk of Christian's employment and was
Norman K. Moon
819
compensable. The Supreme Court reversed, holding that the risk of being
robbed and shot at 3:00 A.M. on a highway was not proven to be greater for
a truck driver than the ordinary citizen, and thus the injury did not
arise out of a risk of his employment.
4) Jimenez v. Commonwealth, 10 Va . App. 277, 392 S.E.2d 822 (1990)
reversed by Jimenez v. Commonwealth. 241 Va . 244, 402 S.E.2d 678 (1991).*
Jimenez was charged and tried for the statutory offense of
defrauding a person under a construction contract. One of the elements of
the charged offense was that the victim had made demand for repayment in
writing. The Commonwealth failed to prove a written demand. On appeal,
we held that because Jimenez did not object to the finding instruction and
the evidence was sufficient to prove the crime of obtaining money by false
pretenses, of which he was found guilty, he was barred on appeal from
raising as an issue the Commonwealth's failure to prove that a letter was
sent by the victim demanding repayment. The Supreme Court reversed,
holding that Jimenez had been convicted of an offense that was not a
crime.
5) Campbell v. Commonwealth, 13 Va . App 33, 409 S.E.2d 21 (1991) reversed
by Campbell v. Commonwealth, 14 Va . App. 988, 421 S.E.2d 652 (1992) (en
banc) .
Defendant was convicted of forging a public record. On appeal he
argued that the trial court erred in instructing the jury. The panel
decision held that he could not raise the issue because he had not
objected to the instruction. Reversing my panel decision, the Court of
Appeals en banc held that the trial court erred, and that the ends of
justice exception to Rule SA:18 allowed the Court to consider the issue on
appeal .
6) Commonwealth v. Woodward, 17 Va . App. 526, 438 S.E.2d 77 (1993)
reversed by Commonwealth v. Woodward, 249 Va . 21, 452 S.E.2d 656 (1995).
We held that an injured prisoner, who had signed a contract of
employment with the Virginia Department of Highways, was covered by
worker's compensation. The Supreme Court reversed, holding that a
prisoner was legally incompetent to contract; therefore, he was not
employed under a contract of hire and was ineligible for compensation.
7) Cem Fahrettin Curmak v. Commonwealth of Vircrinia, No. 0037-94-2 (Va.
Ct. App. Mar. 14, 1995) (memorandum opinion) reversed by Cem Fahrettin
Curmak v. Commonwealth, No. 950975 (Va. Feb. 16, 1996) (per curium).
We affirmed the circuit court decision refusing to order a bill of
particulars. The Supreme Court reversed.
8) Braithwaite v. Commonwealth, No. 0790-94-2 (Va. Ct . App. Aug. 15,
1995) reversed by No. 0790-94-2 (Va. Ct. App. Apr. 23, 1996) (en banc)
(order) .
Panel held that lying on a pillow with a large revolver and drugs
beneath it was sufficient circumstantial evidence to support conviction of
Norman K. Moon
820
10
possession of a firearm and drugs . The Court of Appeals en banc adopted
the panel dissent, holding that evidence was insufficient to support
conviction.
Cases decided by a three-judge panel of the Court of Appeals of Virginia
in which I voted with the majority of the panel but did not write the
decision and the decision was overturned by either the Court of Appeals
sitting en banc or the Supreme Court of Virginia:
1) Lambert v. Commonwealth. No. 0438-86-3 (Va. Ct . App. Apr. 9, 1987)
reversed by Lambert v. Commonwealth, No. 870469 (Va. Mar. 18, 1988).
The Supreme Court reversed our determination that Lambert had not
timely filed his notice of appeal in the trial court.
2) Johnson v. Chesterfield, 5 Va . App. 15, 359 S.E.2d 833 (1987) reversed
by Johnson v. Chesterfield, 237 Va . 180, 376 S.E.2d 73 (1989).
We affirmed the Industrial Commission and held that the injury
sustained by a claimant who fell down steps while turning was compensable
under the Workers' Compensation Act. The Supreme Court reversed, holding
that traversing steps was not a risk of employment and was not, therefore,
compensable .
3) Llamera v. Commonwealth, No. 0322-90-4 (Va. Ct . App. June 4, 1991)
(memorandum opinion) reversed by Llamera v. Commonwealth, 243 Va . 262, 414
S.E.2d 597 (1992) .
We affirmed the trial court order which found the defendant guilty
of possession with intent to distribute cocaine. The Supreme Court
reversed, holding that prejudicial error occurred when a police officer
was allowed to testify over objection that in bis opinion, the quantity of
cocaine "would suggest" that the owner of the cocaine was a person who
sold cocaine and that such quantity was inconsistent with personal use,
thereby expressing an opinion on the ultimate issue in the case.
4) Stevenson v. City of Falls Church, No. 1956-89-4 (Va. App. Apr. 23,
1991) (memorandum opinion) reversed by Stevenson v. City of Falls Church.
243 Va. 434, 416 S.E.2d 435 (1992).
A police officer found the defendant asleep inside a motor vehicle,
behind the steering wheel, with the key in the ignition. When the officer
woke the defendant, it was apparent to her that the defendant was
intoxicated. Defendant was charged and convicted with drunk driving under
the city's drunk driving ordinance. On appeal we affirmed, holding that
the defendant was the "operator" of his car within the meaning of the
relevant statute, because he was in actual physical control of the motor
vehicle.
The Supreme Court reversed, holding that for the purposes of the
city ordinance, which invoked statutory definitions from the Virginia
Code, an "operator" of a vehicle does not include an intoxicated occupant
of a car who is merely seated behind its steering wheel with the key in
the ignition switch.
Norman K. Moon
821
11
5) Reid V. Reid. 14 Va . App. 505, 419 S.E.2d. 398 (1992) reversed by Re id
V. Reid, 245 Va . 409, 429 S.E.2d. 208 (1993)
We held that husband could seek restitution of spousal support paid
pursuant to an order that had been reversed. The Supreme Court held that
trial court did not have statutory or inherent authority to order
restitution of spousal support already paid.
6) Henrico County School Board v. Bohle. 14 Va . App. 801, 421 S.E.2d 8
(1992) reversed by Bohle v. Henrico County School, 246 VA. 30, 431 S.E.2d
36 (1993).
We reversed a decision of the Workers' Compensation Commission
suspending an employee's benefits until such time as the employee had
incurred a specified sum of compensation benefits and expenses computed
based upon the amount of the net third-party recovery. We held that under
the circumstances, the commission erred in determining both the amount at
which further benefits would accrue and the method by which further
benefits would be calculated.
The Supreme Court reversed, holding that the Court of Appeals
applied the wrong method for apportioning attorney's fees and expenses
when payment of compensation benefits had been suspended following a
settlement between the employee and the third-party tortfeasor.
7) In re Baskins. 16 Va . App 241, 430 S.E.2d 555 (1993) reversed by
Jamborsky v. Baskins. 247 Va . 506, 442 S.E.2d 636 (1994).
A juvenile filed application for a writ of prohibition to prevent
the circuit court from trying him as an adult on felony charges. We held
that: (1) date of "receipt" of a case from the juvenile court, as
contemplated by statute providing that circuit court should, within 21
days after receipt of case from juvenile court, enter an order either
remanding the case to the juvenile court or advising the attorney for the
CoBUBonwealth that he may seek an indictment, was the date the circuit
court takes physical possession and control of the file from the juvenile
court, and (2) the statute was mandatory.
The Supreme Court reversed, holding that: (1) compliance with the
21-day time period provided in the statute setting the procedure for
transfer of the juvenile to the circuit court for trial as an adult was
directory and procedural rather than mandatory and jurisdictional, and (2)
the juvenile did not suffer any prejudice as a result of the three-day
delay in the circuit court's assumption of jurisdiction over his felony
charges .
8) Kelley v. Kellev. 17 Va . App. 93, 435 S.E.2d 421 (1993) (en banc)
reversed by Kelley v. Kelley, 248 Va . 295, 449 S.E.2d 55 (1994).
Husband appealed the decision of the circuit court that invalidated
a portion of a property settlement agreement that previously had been
incorporated into the divorce decree. We held en banc that upon passage
of twenty-one days from the entry of the final decree, the trial court
lacked jurisdiction to modify the terms of the decree.
The Supreme Court reversed, holding that because the property
settlement agreement involved the rights of children to support, and such
rights cannot be impinged by contract, the decree was void and could be
attacked and vacated in any court at any time, directly or collaterally.
Norman K. Moon
822
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9) Bottoms V. Bottoms. 18 Va . App . 481, 444 S.E.2d 276 (1994) reversed by
Bottoms V. Bottoms, 249 Va . 410, 457 S.E.2d 102 (1995).
He held that the evidence was insufficient to support a trial
judge's decision that a lesbian mother was an unfit parent and his award
of custody of her biological child to her mother. The Supreme Court held
that the evidence was sufficient to support the trial court's finding of
unfitness, reversed the Court of Appeals, and reinstated the trial court
decision.
10) Barrett v. Commonwealth, 18 Va . App. 773, 447 S.E.2d 243 (1994)
reversed by Barrett v. Commonwealth, 250 Va . 243, 462 S.E.2d. 109 (1995).
We held that a police officer, who observed Barrett's truck stopped,
turned around and went to inquire if help was needed and then saw the
truck slowly moving with its wheels partially on the shoulder of the road
and partially in the road, had the right to stop the truck in the exercise
of the "community caretaker function" articulated in Cadv v. Dombrowski,
413 U.S 433 (1973). The Supreme Court reversed, holding that the
circumstances did not justify the stop.
11) Stenrich Group v. Jemmott, No. 1910-94-2 (Va. Ct . App. April 4, 1995)
(memorandum opinion) reversed by Stenrich v. Jemmott, 251 Va . 186, 467
S.E.2d 795, 17 O.S.H. Cas. (BNA) 1573 (1996).
We held that credible evidence supported a finding that Jemmott 's
carpal tunnel syndrome was a condition characterized as a "disease." The
Supreme Court reversed, holding that job-related impairments resulting
from cumulative trauma caused by repetitive motion, however labeled or
however defined, are, as a matter of law, not compensable under the
present provisions of the Workers' Compensation Act.
12) Donald v. Fairfax County Dept . of Hum. Dev . , 20 Va . App. 155, 455
S.E.2d 740 (1995) (en banc) reversed by P'airfax County Dept. of Hum. Dev.
V. Donald. 251 Va. 227, 467 S.E.2d 803 (1996).
In child abuse/neglect proceeding, sitting en banc, we reversed the
trial court's denial of attorney fees and remanded for determination of
reasonable attorney fees. Holding that the appeal from the trial court
was untimely, the Supreme Court reversed, holding that attorney fees could
only be awarded in matters "properly before" the court, and that when an
appeal was not taken within ten days of the trial court's final order, the
matter was not "properly before" the circuit court and therefore fees
could not be awarded.
13) Allen V. Commonwealth. 20 Va . App. 630, 460 S.E.2d 248 (1995)
reversed by Allen v. Commonwealth, 252 Va. 105, 472 S.E.2d 277 (1996).
We affirmed the decision of the trial court, holding that the
appellant had waived his double jeopardy objections.
On grant of limited review, the Supreme Court reversed.
14) Griswold v. Commonwealth. 21 Va . App. 22, 461 S.E.2d 411 (1995) (en
banc) reversed by Griswold v. Commonwealth. 252 Va. 113, 472 S.E.2d 789
Norman K. Moon
823
13
(1996) .
Defendant was convicted in the trial court of driving under the
influence of alcohol after having previously been convicted of a like
offense. On appeal, sitting en banc, we affirmed the trial court. The
Supreme Court reversed, holding that (1) the defendant's prior misdemeanor
DUI conviction was invalid because defendant had not been properly
represented by counsel; (2) allowing the jury to convict the defendant
based on a prior invalid conviction was reversible error; but (3)
defendant's other unrepresented misdemeanor conviction for which defendant
spent no time in jail was valid.
(3) Citations for significant opinions on federal or state constitutional
issues:
Williams v. Williams. 24 Va . App. 778, 485 S.E.d 651 (1997).
Walton V. Commonwealth. 24 Va . App. 757, 485 S.E.2d 641 (1997).
Horen v. Commonwealth. 23 Va . App. 735, 479 S.E.2d 553 (1997).
Tench v. Commonwealth. 21 Va . App. 200, 462 S.E.2d 922 (1995).
Hall V. Commonwealth, 12 Va . App. 972, 406 S.E.2d 674 (1991).
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.
I was Chairman of the Air Pollution Control Board of the City of Lynchburg
from its inception on July 1, 1972 until April 15, 1974. I was appointed
to the Board by the City of Lynchburg City Council and elected by the
other board members as chairman.
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;
I did not serve as a clerk.
2. whether you practiced alone, and if so, the addressed and
dates;
I did not practice 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;
Norman K. Moon
824
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June 4, 1962 to December 31, 1969 - Williams, Robertson & Sackett,
709 Krise Building, Lynchburg, Virginia 24503 (from January 1 to
December 31, 1969, the address was 816 Main Street, Lynchburg,
Virginia 24503). I was an associate with the firm except during the
two years spent in the Army. I became a partner on January 1, 1967.
On January 1, 1970, the firm of Williams, Robertson & Sackett merged
and became Edmunds, Williams, Robertson, Sackett, Baldwin & Graves,
of which I was a partner until April 15, 1974, when I became a judge
for the 24th Judicial Circuit.
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?
The majority of my practice involved tort litigation in which I
primarily represented defendants. During the last three years of my
practice, I was also involved in employment discrimination cases and
frequently consulted with business clients regarding their
compliance with federal employment law. I practiced before both
state and federal courts.
On April 15, 1974, I became a judge for the 24tb Judicial Circuit of
Virginia. I was elected Chief Judge by the other judges in the
circuit on July 1, 1983 and served in that capacity until my
selection to the Court of Appeals of Virginia on January 1, 1985.
On May 1, 1993, I was elected by the other members of the court to
serve as Chief Judge, and I continue to serve in that capacity.
2. Describe your typical former clients, and mention the areas,
if any, in which you have specialized.
A typical client was the insured of a liability insurance company.
With my partners, 1 regularly represented State Farm Mutual
Automobile Insurance Company, Allstate Insurance Company, The
Travelers Insurance Company, Lumbermens Mutual Insurance Company,
and Royal Globe Insurance Company. We also represented the Southern
Railway Company, the C & O Railroad Company, and the Lynchburg
Transit Company. From 1962 to 1963, before my military service, I
defended mostly property damage claims, did some real estate work,
and defended indigent persons charged with crimes.
From 1965 to 1969, I specialized in representing defendants in
personal injury litigation. After 1970, in addition to the other
insurance companies, I represented several major employers in labor
natters, principally discrimination claims. Among my clients were
Babcock & Wilcox Company, General Electric Company, Gould National
Battery Company, Limitorque Corporation, and the City of Lynchburg.
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.
Yes. From the beginning of my practice I appeared in court
frequently .
2. What percentage of these appearances was in:
Norman K. Moon
825
15
(a) Federal courts: Approximately twenty percent of my time
in court was in federal courts, but less than twenty percent
of my cases were federal cases.
(b) State courts of record: Seventy-five percent.
(c) Other courts: Five percent.
3. What percentage of your litigation was:
(a) civil: Ninety percent.
(b) criminal: Five percent.
(c) other: Five percent.
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 tried approximately two hundred cases to verdict or judgment. In
seventy-five percent of them, I was sole counsel. In fifteen
percent, I was chief counsel, and in ten percent, I was associate
counsel .
5. What percentage of these trials were:
(a) jury: Sixty percent.
(b) non-jury: Forty percent.
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 of 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.
1. Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972).
Summary of substance of case:
Calvin A. Cox brought a class action against Babcock & Wilcox
Company, claiming that he personally had been discriminated against
on account of his race in both his hiring and firing. Be also
claimed that he was a proper person to represent the class
consisting of others similarly discriminated against.
Significance of case:
No man K. Moon
826
16
The case, although not uniquely, stands for the proposition that
although there may be an overall pattern of discrimination, all
persons within the discriminated class are not entitled to recovery
unless they were personally discriminated against. It was the first
significant employment discrimination case in the area.
Party I represented:
Babcock & Wilcox Company.
Mature of my participation:
On behalf of Babcock & Wilcox I conducted all of the discovery,
prepared for trial, and tried the case in bifurcated proceedings.
I was assisted by Babcock & Wilcox's corporate counsel in discovery
and trial preparations .
Trial Decision:
An advisory jury found in favor of Babcock & Wilcox. The trial
court entered judgment for the defendant which was appealed to the
Fourth Circuit .
Appellate Decision:
The Fourth Circuit affirmed the trial court but provided that some
person, other than Cox, appropriate to represent the class could
intervene to represent the class.
a) Dates of Trial: November 9, 1971 - November 10, 1971;
Deceaiber 13, 1971 - December 14, 1971.
b) Name of Court and Judge:
United States District Court for the Western District of Virginia,
Lynchburg Division, before the Honorable H. Emory Widener.
c) 1) Names, address, and phone number of co-counsel:
John R. Lewis
Assistant General Counsel, Babcock & Wilcox Technologies, Inc.
Route 7 26, Mt . Athos
Lynchburg, Virginia 24506
(804) 522-5021
2) Names, address, and phone number of counsel for other parties:
Trial:
Charles M.L. Mangum
2058 Garfield Street
Lynchburg, Virginia 24501
(804) 845-3431
Henry B. Binton
RD2360
Worchester, Vermont 05682
(802) 828-3168
Norman K. Moon
827
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Appaal:
William L. Robinson
Dean, University of District of Columbia
4250 Connecticut Avenue
4th Floor, Washington D.C. 20008 >
(202) 274-7400
2. Anderson v. Denny. 365 F. Supp. 1254 (W.D. Va . 1973).
Suaaary of substance of case:
Denny directed the plaintiffs, Mrs. Anderson and Mrs. Long, to
vacate their apartments. Both were served with unlawful detainer
warrants.
The suit challenged the constitutionally of Virginia's eviction
proceedings .
Significance of case:
Virginia eviction procedures held to be constitutional.
Party I represented:
L. John Denny.
Nature of my participation:
I served as chief counsel and handled all of the federal court
proceedings .
Trial Decision:
Judgment for the defendant.
Appellate Decision:
The case was not appealed.
a) Date of Trial: August 7, 1973.
b) Name of Court and Judge:
The case was tried in the United States District Court,
Charlottesville Division, before the Honorable James C. Turk.
c) 1) Names, address, and phone numbers of co-counsel:
John A. Dezio
414 E. Jefferson Street
Charlottesville, Virginia 22902
(804) 295-4138
Dezio handled collateral state court proceedings.
2) Names, address, and phone number of counsel for other parties:
Norman K. Moon
828
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Por Anderson and Long:
Ronald R. Tweel
Suite 300, 500 Court Square
Charlottesville, Virginia 22902-0298
(804) 977-3390
3. Howell V. San Miguel. Mo. 71-C-4S-L (W.D. Va . Sept. 17, 1973).
Summary of substance of case:
Howell, a guest in San Miguel's car, sustained a head injury when
San Miguel lost control of his car and it overturned.
Significance of case:
The District Court upheld the constitutionality of Virginia's gross
negligence statute applicable to guests who sued their host drivers.
Party I represented:
Peter Frank San Miguel.
Matur* of ay participation:
Z represented the defendant during discovery, briefing of the
coastitutional issue, and trial.
Trial Decision:
Jury verdict for the defendant.
Appellate Decision:
The case was not appealed.
a) Date of Trial:
September 17, 1973
b) Name of Court and Judge:
U. S. District Court, Western District of Virginia, Lynchburg
Division, before the Honorable James C. Turk.
c) 1) Names, address, and phone number of co-counsel:
Hone.
2) Mames, address, and phone number of counsel for other party:
Barl C. Dudley, Jr.
tfilliams, Connolly t Calif ano
1000 Hill Building
Washington, D.C. 20006
Mom at University of Virginia School of Law
Honutn K. Moon
829
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580 Massie Road
Charlottesville, VA 22903
(S04) 924-8813
4. Mrs. Giles County Kitchen, Inc. v. National Biscuit Co.. No. 68-C-
386-L (W.D. Va. Apr. 7, 1971).
Summary of substance of case:
Mrs. Giles County Kitchen, Inc., a processor of salads and sandwich
spreads, purchased from National Biscuit Company pimentos which were
used in production of pimento cheese. After customers complained of
glass in their pimento cheese, Mrs. Giles recalled and destroyed all
of the pimento cheese in stock and on the shelves of its
distributors. The suit alleged that the glass was in the pimentos
and thus Nabisco breached its warranty and was negligent in the
processing of its pimentos.
Significance of case:
The questions in the case were whether the glass came from Nabisco
pimentos, whether Nabisco was negligent in its processing, the
reasonableness of Mrs. Giles in destroying all of the pimentos in
stock and on the store shelves, and the measure of damages.
Party I represented:
National Biscuit Company.
Nature of my participation:
I conducted most of the discovery and shared in the trial with Henry
M. Sackett, Jr.
Trial Decision:
There was a verdict for the plaintiff in the sum of $17,277.60.
Appellate Decision:
The case was not appealed.
a) Date of Trial:
April 6-7, 1971.
b) Name of Court and Judge:
United States District Court for the Western District of Virginia,
Lynchburg Division, before the Honorable H. Emory Widener, Jr.
c) 1) Name, address, and phone number of co-counsel:
Henry M. Sackett, Jr. (deceased).
2) Name, address, and phone number of counsel for other parties:
S.J. Thompson, Jr. (deceased) .
Norman K. Moon
830
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5. United Services Automobile flss'n v. Epperson, No. 68-C-27-L (W.D.
Va. June 2, 1969) .
Summary of substance of case:
In a declaratory judgment action, USAA sought a determination of
whether it must provide coverage to Robert H. Epperson, Jr., a
former insured, who was ineligible to be reinsured but had
represented himself to a USAA agent as being an insured and thus
obtained a confirmation of insurance coverage. When USAA discovered
that Epperson was not entitled to be reinsured, its agent by
telephone notified him that his coverage was not in force. Within
twenty-four hours, Epperson was involved in an automobile accident
seriously injuring a number of persons. Epperson denied that he was
notified that he had no coverage.
Significance of case:
The case established that an insurer is not required to provide
coverage to one who obtained coverage knowing that he was not
entitled to be insured, where the insurer, upon discovery of its
mistake, forthwith notified the person that he was not covered.
Party I represented:
United Service Automobile Association.
Nature of my participation:
I was sole counsel in the case. I conducted the discovery, deposed
the witnesses, helped negotiate settlement of the collateral state
court personal injury cases, and represented USAA at the final
hearing.
Trial Decision:
There was a determination that USAA did not provide coverage to
Robert H. Epperson, Jr.
Appellate Decision:
The case was not appealed.
a) Date of Trial:
June 2, 1969.
b) Name of Court and Judge:
United States District Court for the Western District of Virginia,
Lynchburg Division. (Final hearing of case was in the United States
District Court at Richmond, Virginia, before the Honorable John
HacKenzie) .
c) 1) Name, address, and phone number of co-counsel:
None.
No rman K . Moon
831
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2) Name, address, and phone number of counsel for other par-ties:
For Robert B. Epperson, Jr.:
Paul H. Coffey, III
CCR Title
1134 Thomas Jefferson Road
Forest, Virginia 24551
(804) 525-0041
For Virginia Farm Bureau Insurance Company:
S.J. Thompson, Jr. (deceased)
For Aetna Casualty & Surety Company and Edward Houston Moore:
William Rosenberger, Jr.
1915 Quarry Road
Lynchburg, Virginia 24503
(804) 384-3681
For the Injured Parties:
For Clyde Washington Fincham, Sr., Administrator, Phillip
Eugene Kerr, and George Westley Kerr:
W.H. Overbey, Jr.
Courthouse Square
Rustburg, Virginia 24588
(804) 332-5155
For Carlton G. Meador, Administrator, Brenda K. Meador, and
Linda Fay Meador:
Thomas L. Phillips
Irongate At Spring Hill
Rustburg, Virginia 24588
(804) 821-5022
Lacey E. Putney
305 Otey Street
Bedford, Virginia 24523
(540) 586-0080
6. Estate of John G. Hamilton, Jr. v. Stapleton, No. 70-C-45-L (W.D.
Va. Apr. 12, 1971) .
Summary of substance of case:
This was a wrongful death action arising out of an automobile
accident. John G. Hamilton, Jr. was a resident of Patrick Henry
Boys Plantation and had substantially been abandoned by bis mother
who would have benefited from a plaintiff's verdict.
Significance of case:
The questions were whether Stapleton was driving, whether he was
guilty of gross negligence, and whether any part of a recovery
Norman K. Moon
832
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should be awarded to his mother.
Party I represented:
George Warren Stapleton (the driver) .
Nature of my participation:
I was sole counsel for the defendant. I conducted the discovery and
tried the case.
Trial Decision:
There was a verdict for the plaintiff in the sum of $15,500.
Appellate Decision:
The case was not appealed.
a) Date of Trial:
April 12, 1971.
b) Name of Court and Judge:
United States District Court for the Western District of Virginia,
Lynchburg Division, before the Honorable Ted Dalton (deceased) .
c) 1) Name, address, and phone number of co-counsel:
None.
2) Name, address, and phone number of counsel for other party:
W.H. Overbey, Jr.
Courthouse Square
Rustburg, Virginia 24588
(804) 332-5155
7. Travelers Indemnity Co. v. Michigan Mutual Liability Co., 259 F.
Supp. 606 (W.D. Va. 1966).
Summary of substance of case:
The issue was whether Michigan Mutual, which had issued a fleet
policy to a Virginia insurer specifically covering an automobile
driven by the Virginia insurer's employee, was subject to Virginia's
uninsured motorist provisions.
Significance of case:
It established that a fleet insurer must provide primary uninsured
motorist coverage for the driver of its insured vehicles and that
the insurer of the driver's personal vehicle only must provide
excess coverage in accordance with the terms of the policy.
Party I represented:
Norman K. Moon
833
23
Travelers Indemnity Company.
Nature of my participation:
I solely represented The Travelers Indemnity Company, conducted the
discovery, filed a memorandum of law, tried, and argued the case.
Trial Decision:
Decision in favor of Travelers Indemnity Company and Fidelity and
Casualty Company of New York.
Appellate Decision:
The case was not appealed.
a) Date of Trial: July 29, 1966.
b) Name of Court and Judge:
United States District Court for the Western District of Virginia,
Lynchburg Division, before the Honorable A.D. Barksdale (deceased).
c) 1) Names, address, and phone number of co-counsel:
None .
2) Names, address, and phone number of counsel for other parties:
For Travelers Indemnity Company:
S.J. Thompson, Jr. deceased
For Michigan Mutual Liability Company:
R.W. Duling . , i
800 E. Marshall Street
Richmond, Virginia 23219
(804) 780-6511
For Robert F. Lawhorne, Clarence George, Jr., and State Farm Mutual
Automobile Insurance Company:
Shuler A. Kizer (deceased)
William T. Robey, III
131 W. 21st Street i. : r -
Buena Vista, Virginia 24416
(540) 261-2575 ■=■ - y ■ ^ .
8. Sun Oil Co. V. Lawrence. 213 Va . 596, 194 S.E.2d 687 (1973).
Summary of substance of case:
Dale Lynn Lawrence, an employee of an independent service station
dealer that sold Sun Oil products, sustained an injury during the
course of his employment. His direct employer had no worker's
compensation insurance. Lawrence filed a claim in the Industrial
Norman K. Mooa
834
24
Commission of Virginia (now Worker's Compensation Commission)
claiming that he was a statutory employee of Sun Oil because Sun Oil
operated four service stations in Virginia which had employees doing
the same type of work that he did.
Significance of case:
Distributors, who also bad minimal retailing operations, were held
not thereby to be a statutory employer liable for worker's
compensation claims from the employees of all the independent
dealers who purchased and sold the distributors' products.
Party I represented:
Sun Oil Company .
Nature of my participation:
I represented Sun Oil before the Deputy Commissioner, and later
before the Full Commission. I appealed the case to the Supreme
Court, wrote the brief, and argued the case.
Irial Decision:
The Industrial Commission found in favor of Lawrence and assessed
attorney's fees against Sun Oil for defending the proceedings
"without reasonable grounds."
Appellate Decision:
The Supreme Court of Virginia reversed the decision and dismissed
the claim.
a) Date of Trial: March 5, 1973.
b) Name of Court and Judge:
The Industrial Commission of Virginia, by the Honorable M.E Evans,
Commissioner, and later by the Full Industrial Commission.
The case was appealed to the Supreme Court of Virginia.
c) 1) Names, address, and phone number of co-counsel:
None.
2) Names, address, and phone number of counsel for other parties:
For Lawrence:
Robert L. Dolbeare
700 East Main Street
Richmond, Virginia 23219
(804) 780-2900
For the employer:
Marshall Frost (deceased)
Norman K. Moon
835
25
Younger v. Appalachian Power Co.. 214 Va. 662, 202 S.E.2d 866
(1974).
ry of substance of case:
There were four plaintiffs in the case, all insured by State Fara
Mutual Automobile Insurance Company, whose automobiles at different
times struck and damaged wooden electric line poles owned by
Appalachian Power Company. Appalachian Power Company contended that
its poles did not depreciate, and therefore, no depreciation should
be recognized in its recovery for damages. We were able to
demonstrate that the poles did have a certain life expectancy that
Appalachian Power Company had admitted to under other circumstances.
Significance of case:
The case established that Virginia trial courts should recognize
that power line poles depreciate. The case set a formula for
determining depreciation and other damages to electric power and
telephone companies whose property was damaged as the result of
negligence .
Party I represented:
All four defendants.
Nature of my participation:
I had the cases, which were pending in various circuit courts,
consolidated and tried in the Circuit Court for the City oJF
Lynchburg. I was the sole attorney in the case. After a verdict
for Appalachian, I appealed the case to the Supreme Court, wrote the
brief for the appellants, and argued the case before the Supreme
Court.
Trial Decision:
There was a verdict for the plaintiffs.
Appellate Decision:
The Supreme Court reversed the trial court and remanded for a new
trial.
a) Date of Trial:
December 13, 197 2.
<
b) Name of Court and Judge:
Circuit Court for the City of Lynchburg, before the Honorable
William W. Sweeney.
c) 1) Names, Address, and Phone No of Co-Counsel:
None.
2) Names, address, and phone number of counsel for other parties:
Norman K. Moon
836
26
For Appalachian Power Company:
William Rosenberger , Jr.
1915 Quarry Road
Lynchburg, Virginia 24503
(804) 384-3681
10. Woody V. Commonwealth, 214 Va . 296, 199 S.E.2d 529 (1973).
Suamary of substance of case:
Woody was charged with burglary as an accessory before the fact.
Significance of case:
It established that a juvenile witness is subject to the same scope
of cross-examination as any other witness and that publication
prohibitions relating to juvenile records may not override the
constitutional right to cross-examination.
Party I represented:
Charles P. Woody.
Matura of my participation:
I was sole counsel in the case. I investigated and tried it and
appealed it to the Supreme Court of Virginia.
Trial Decision:
There was a verdict for the Commonwealth.
Appallata Decision:
Ravarsed and reaanded.
a) Dates of Trial:
Bmptmmbar 8, 1972.
b) Haaa of Court and Judge;
Circuit Court for the City of Lynchburg, before the Honorable O.
Raymond Cundif f (deceased) .
c) 1) Names, address, and phone number of co-counsel:
Nona.
2) Names, address, and phone number of counsel for other parties:
Trial i
Royston Jester, Jr. (deceased)
Appeal :
Norman K. Mooa
837
27
Linwood T. Wells, Jr.
Assistant Attorney General
101 North Eighth Street
Richmond, Virginia 23219
(804) 786-4642
Because the majority of the cases are more than five years old, here are
the names, addresses and phone numbers for twelve members of the legal
comaunity who have had recent contact with me:
John R. Alford
2306 Atherholt Road
Post Office Box 6360
Lynchburg, Virginia 24505
(804) 846-2731
Mary V. Barney
7 IS Court Street
Post Office Box 739
Lynchburg, Virginia 2450S
(804) 528-0411
Edwin R. Burnette, Jr.
Suite 400, 800 Main Street
Post Office Box 958
Lynchburg, Virginia 24505
(804) 846-9000
Judge Saa W. Coleman, III
109 North 8th Street
Rich»>nd, Virginia 23219-2305
(804) 371-2458
John B . Falcone
801 Main Street
Post Office Box 957
Lynchburg, Virginia 24505
(804) 528-1058
Judge Johanna L. Fitzpatrick
Suite 200, 10201 Main Street
Fairfax, Virginia 22030-2403
(703) 359-1158
A. David Hawkins
Courthouse Square
Post Office Box 38
Rustburg, Virginia 24588
(804) 332-S15S
Justice Barbara Milano Keenan
Suite SOI, 2101 Parks Ave.
Virginia Beach, Virginia 2345 1
(757) 491-S472
Arelia S. Langhorne
2700 Langhorne Road
Post Office Box 2453
Homan K. Moon
838
28
Lynchburg, Virginia 24501
(804) 528-1S60
Daniel J. Meador, Professor of Law Emeritus
University of Virginia School of Law
580 Massie Road
Charlottesville, Virginia 22903-1789
(804) 924-3947
Kent Sinclair
Suite 104, 1928 Arlington Blvd.
Post Office Box S104
Charlottesville, Virginia 22903
(804) 924-4689
Kenneth S White
Suite 400, 800 Main Street
Post Office Box 958
Lynchburg, Virginia 24505
(804) 846-9000
Legal Activities: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial
or legal nmtters 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 privilege has been waived) .
Boyd-Graves Conference, Steering Committee: 1986 - present.
The Boyd Graves Conference studies issues relating to Virginia civil
procedure. It makes recommendations to the General Assembly for statutory
changes and makes recommendations to the Virginia Supreme Court for rule
changes that would affect civil procedure.
Judicial Conference, Judicial Administration Committee: Chairman, 1985-87.
The Judicial Administration Committee studies issues affecting the
administration of justice in the Conunonwealth of Virginia. It studies
legislation pending before the General Assembly that would affect the
administration of justice and recommends to the Judicial Conference
whether the Conference should ask the Judicial Council to support or
oppose the legislation.
Model Jury Instructions Committee: Chairman, 1983-86; Member, 19 81-86.
The Model Jury Instruction Committee drafted model jury instructions to be
used in Virginia criminal and civil cases. The committee is a standing
committee that reviews statutory changes and judicial decisions that
require amendment of the instructions. The committee prepares annual
supplements reflecting changes in the instructions.
Committee to Draft the Rules for the Court of Appeals of Virginia: 1983-
84.
The committee drafted proposed rules of court that were approved by the
Judicial Council and the Supreme Court of Virginia to be used in the Court
of Appeals of Virginia which started operation January 1, 1985.
Norman K. Moon
839
29
Virginia State Bar: 1962 - present.
The Virginia State Bar is the governing body of the legal profession in
Virginia. Every practicing lawyers is required to belong and judges are
ex officio members. The Virginia State Bar conducts continuing legal
education programs. I have lectured or have been a panel member at its
programs .
Ethics Committee, Sixth District: Chairman, 1972-74; Member, 1971-74.
The Committee investigates charges of professional misconduct and made
recommendations to the Supreme Court of Virginia concerning whether
disciplinary action should be taken against accused lawyers.
Virginia Bar Association: 1968 - present.
The Virginia Bar Association is a voluntary organization of Virginia
lawyers and judges who serve as ex officio members. The Bar Association
conducts continuing legal education programs. I have lectured or have
been a panel member at its programs.
Young Lawyers Section, Southside Area: Vice-President, 1968-69; Member
1963-73.
The Young Lawyers Section prepared and distributed handbooks for young
lawyers and presented programs in the public schools. The committee also
initiated a program for presenting Liberty Bell Awards to non-lawyers who
had made a substantial contribution to the respect for and maintenance of
the rule of law. During my tenure as Piedmont Regional Vice-President, I
directed the Liberty Bell Award program and the high school educational
programs .
Norman K. Mooa
840
30
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, clients, or customers. Please describe the arrangements
you have made to be compensated in the future for any financial or
business interest.
I have a 401 (k) Plan, its value being $100,826. I am eligible to
withdraw the amount without penalty. The source of the funds I
contributed to this 401 (K) was from my employment with the law firm of
Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, which employment
terminated April 15, 197 4. The Keogh Plan which the law firm bad was
invested with Central Fidelity Bank. I rolled over into a 401 (K) with
United Services Automobile Association, Cornerstone Strategy Fund.
I have a vested interest in the Virginia Supplemental Retirement
System by virtue of my employment as a judge in the State of Virginia
Judiciary System. The vested amount in the plan today is $ $119,114.
Should I retire from the Virginia Judiciary System, I am eligible to
receive benefits of up to seventy-five percent of the average of my last
three years salary which would be 81,936 annually.
Explain how you will resolve any potential conflict of interest, including
the procedure you will follow in determining these area 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 would follow the Code of Judicial Conduct. If I perceive any interest,
real or apparent, in any matter before the court, I will recuse myself.
The only potential conflict I can imagine occurring during my initial
service would come from an appellant filing a writ of habeas corpus in the
district court who previously had an appeal reviewed by the Court of
Appeals when I was a judge. I would recuse myself form consideration of
the writ of habeas corpus.
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 am committed to teach trial advocacy at the University of Virginia Law
School at the Fall 1997 session and Spring 1998 session. Compensation is
at $4,000 for each session. Should I be appointed and confirmed for this
position, and there are no legal prohibitions or conflicts with my
judicial duties, I would anticipate keeping my commitment.
List sources and amounts of all income received during that 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 $500.00 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 Attachment B ("Financial Disclosure Report").
Norman K. Moon
841
31
Please complete the attached financial net worth statement in detail (Add
schedules as called for) .
Please see Attachment C ("Financial Statement: Net Worth")
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.
From 1965 to 1974, I was involved in almost every political election in
Lynchburg, frequently as a campaign manager for one of the candidates.
For most of that time, I was a member of the City Democratic Committee.
I managed both Lynchburg senatorial campaigns for William B. Spong, Jr.,
in 1966 and 1972. In 1966, I served as Co-Chairman of the Byrd-Spong
ticket. I managed William Battle's 1969 Lynchburg campaign for Governor,
as well as Andrew Miller's 1973 campaign for Attorney General.
Noman K. Moon
842
32
QUESTIONNAIRE FOR JUDICIAL NOMINEES
III. GENERAL (PUBLIC)
Aa ethical consideration under Canon 2 of the American Bar Association' s
Coda 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 comply with the canons of judicial ethics which prohibit any such
participation or solicitation.
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 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 own membership in any organization that discriminates on the
basic of race, sex, or religion. I belonged to Boonsboro County Club from
1968 to 1996. I believe that the club discriminated into the 1970s. In
1984 following an incident calling into question the Club's policy, a
formal resolution of non-discrimination was adopted. To the best of my
knowledge a clear policy of non-discrimination has existed since then.
During the entire time I was a member of the club, I advocated to members
of the board that the club pursue a policy of non-discrimination. I was
one of the persons who sponsored the first African-American for membership
and was instrumental in persuading him to join.
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) .
Senator Robb appointed a commission to review nominations. It is my
understanding that the commission recommended me. When Judge Jackson Riser
announced that he was taking senior status, I contacted several members of
the bar and asked them to sound out others members of the bar to determine
if my candidacy would be favorably looked upon by the lawyers who
practiced before me as a trial judge before I went on the Court of
Appeals. They reported that the bar was generally enthusiastic. These
bar members also approached former State Senator Elliott Schewel and
former Congressman Watkins H. Abbitt to determine if they could support my
candidacy. When they reported they could, I decided to apply for the
position. As a candidate, I have also been reviewed by the Department of
Justice, the Federal Bureau of Investigations, and the American Bar
Association.
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
Norman K. Moon
843
33
that could reasonably be interpreted as asking how you would rule on such
case, issue, or questions? 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-solution rather
than grievance-resolution;
b. A tendency by tne 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.
Judicial activism is an attack upon the prerogatives of the
legislative and executive branches. Courts should grant full legal relief
to litigants, but when courts become unduly creative in their remedies
they upset the balance of power between the branches of the government.
Furthermore, the law is always best created by the legislative branch.
The legislature has the ability to investigate and develop laws which are
most compatible with society's needs and beliefs. Ideally, the law should
be so clear that if the parties can agree upon the facts, then a good
lawyer, with reasonable certainty, can predict the outcome of a dispute
without going to trial. The law, as enacted by the legislature, carries
with it a presumption of regularity. When a judge fails to follow
precedent or unduly expands the law, he not only does an injustice to one
immediate party, but encourages litigation that would not have been
brought had the judge complied with stare decisis .
Norman K. Moon
844
38
ATTACHMENT B
Financial Disclosure Report
II. FINANCIAL DATA AND CONFLICT OF
INTEREST (PUBLIC)
Question 4.
Norman K. Moon
845
AO-IO IW)
R€y.»/96
FINANCIAL DISCLOSURE REPORT
Nomination Report
Report Required by Ihe EOtict
Reform Acl 0/1989. Pub L No.
101194. November 30. I9S9
(5 U.S.C. App. 4 . Sec. 101112)
Moon, Norman K.
2. Court or Ofganinlinn
Western District of Virginia
3. Dale of Report
10/03/1997
4. TKk (ArttcU mjuigei Imdicau active or
senior ttaau; magUtrau jttdges indicau
fitU- or pan-time)
U.S. Dist. Court Judge Nominee
S. Rtiwrl Ty^ (check typol
X Nominauon, Dale / /
Initul Annual rinil
«. Refottini Period
01/01/1996
/ /
7. CkMlxn or OAk* Kiinm
Post Office Box 657
Lynchburg, Virginia 24S0S
8. Ou Ibc (Hois or the inrocmalioii cooumed in Iba Rcpoft ond ■ay
modificatioas peruininc thereto, it if ia my opinioa, in aMipliance
with appticable laws and regulations.
Renewina OfTicer D«l«
MPOKTANT NOTES: Ihe inslmciions accompanyiiti this foim mmt be followed. CompUu oU pcitt.
I. POSITIONS meportlmi littUMiul only.
POSITION
NONE (No reponable p«itio<u.)
Chief Judge
e pp. 9-13 o/ Ittstructions)
□
NAME OF ORGANIZATION / ENTITY
Court of Appeals of Virginia
2 Locturar
University of Virginia School of Law
n. AGREEMENTS l1lepoRlii(MMdwilai<y.«rp)>J4-y7o/h«n<c«Mi,l
DATE PARTIES AND TERMS
n
NONE (No rtpoftabla a((«eiaeau.)
Virginia Supplemental Retirement System (no control)
in. NON-INVESTMENT INCOME
DATE
□
dtepoeUng individual and tpoure; see pp. 18-25 o/Instruaioiu.)
PARTIES AND TERMS
NONE (Ho wportabto noo-ioveitmeal income.)
I 1997 Court of Appeals of Virginia, salary YTD
GROSS INCOME
(yourt, not apooae'i)
2 1997
tJVA School of Law, Trial Ad Lecturer, salary YTD
1996
Court of Appeals of Virginia, salary
Wh School of Law, Trial Ad Lecturer, lalary
Court of Appeals of Virginia, salary
8,000.0'^
107,151.01
846
! Name of P«non Reponing
FINANCIAL DISCLOSURE REPORT 1 Moon, Norman K.
Due of Report
10/03/1997
IV. REIMBURSEMENTS and GIFTS - tnuporuuon. lodging, food. emcfUiiimeai.
fincludes those to tpome and dependent ehildrm; use the paremheacals '(S) ' and '0C) ' to mdicau reponabU reimbunemenu and glJU received by tptmu
and dependent chitdren. respectively. See pp. 26-29 of Im
SOURCE
NONE {No nich rcpotubk retmbunementi or gifU)
DESCRIPTION
V. OTHER GIFTS
(Includes those to spouse and dependent children; use the parentheticals '(S) * and '(DC) ' to indicate other gifts received by spouse and dependent children,
respectively. See pp. 30-33 oflnstructioru.)
□
SOURCE
NONE (No nich raporuble gifts)
DESCRIPTION
VI. LIABILITIES
(Includts those of spouse and dependera children: iruhcme where appUcabU. perzon responsible for liability by using the parenthetical '(Sj 'for separate
liability of the spouse, '(J) 'for joint liability of reporang individual and spouse, and '(DC) 'for liability of a dependent child. See pp. 34-36 oflru
CREDITOR
NONE (No repoiuble liabililiei)
DESCRIPTION
VALUE CODE'
1 First Federal Sav.
& Loan
(J)
2 Creetar Bank
3 American Expreee
^
5
6
^
Mortgage on personal residence
Personal line of credit
Charge Card
'VALCODESJ = $15.000orleii K-J15.001-$50,(XXI L = S50.001 lo $100,000 M = $100.001-S250.000 N = $25O.OOl-$50O,OOO
D=$500.001-$1.000,000 PI =$1.000,001-$5.000,000 P2 = $5.000.001-J25,000.000 P3 = S15.0CO,001-J50.000.aOO P4 =$50.000,00 1 ot more
847
Name of Penon Reporting
FINANCIAL DISCLOSURE REPORT I Moon, Norman K.
Dale of Report
10/03/1997
VII. Page IINVESTMENTS and TRUSTS
- income, value, iransacaons fincludes those of spouse and
dependent children. See pp. 37'S4o/Ini
A.
Dcfcription of AueU
Injicale where appUcabU. owner of
At asset try ustng the pareruhetical
'(J)'/orjotru owr\tnhip of reporting
inji\iduai and spouse. '(S) 'for sep-
erou ownership by spouse , '(DC)'
Jbr ownership by depejtdeiu child.
Place '(XI ' after each asset
exempt from prior disclosure.
B
Income
during
reporting
period
C.
Grois value
■t end of
reporting
period
D.
Tranuclions during reporting period
(1)
Ami.
Code
(A-
C2)
Type
(e.g..
dividend.
inlereit)
(1) m
(1)
Type
(e.g..
buy, Kll.
merger,
redemp-
lion)
If not exempl from discloture
Code
(J-P)
MeUiod
Code
(Q-W)
(2)
Dale:
Monlh-
D.y
(3)
Value
Code
(J-P)
Gain
Code
(A-H)
(S)
Identity of
buyer/seller
(if private
tnoaaction)
j NONE (no repoiuble iacome.iueu. or
I USAA 401(K} Account - Cornerstone
Strategy Fund
E
Dividend
L
T
EXEMPT
2 USAA Account - Cornerstone Mutual
Fund
C
Dividend
J
T
EXEMPT
3 Lynchburg property. Lot
None
K
T
EXEMPT
i Crestar Bank Checking Account •!
{Jl
None
J
T
EXEMPT
^5 Crestar Bank Checking Account K2
IJ)
None
J
T
EXEMPT
6 Crestar Bank Money Market Account
{SI
A
Interest
J
T
EXEMPT
T Centrai Fidelity Bank Money
Market Account (S)
A
Interest
K
T
EXEMPT
e First Federal SSL Money Market
Account ( S )
B
K
T
EXEMPT
9 One Valley Bank CD (SI
D
Interest
L
T
EXEMPT
10 Nations Bank CD (SI
D
Interest
L
T
EXEMPT
11 Central Fidelity Bank CD (SI
"^
Interest
L
T
EXEMPT
12 Crestar Bank CD 11 IS)
C
Interest
L
T
EXEMPT
13 Crestar Bank CD 12
B
Interest
K
T
EXEMPT
14 First Federal Bank Corp. Common
Stock (SI
B
Dividend
L
T
EXEMPT
ISOne Valley Bank Common Stock (SI
B
Dividend
K
T
EXEMPT
16 Bristol Myers Squibb Common Stock
(SI
A
Dividend
"^
T
EXEMPT
n Mobil Oil Common Stock (SI
A
Dividend
J
T
EXEMPT
llnc/GainCote: A=S1.000orleii B=$l,001-$2.500 C=$2,301$5.0OO D=$3.0Ol-$15.0OO E-$15.001-$50.000
(Col. B1.D4) F=J50.001-$100.000 O=J100,001-JI.000.000 H1=J1. 000.00 1-$5. 000.000 H2=$5,000.0Ol of more
2VilCode.; J-$I5.000or lea K-S15.OOI-S50.000 L=$50.0Ol-S10O.0O0 M=S10O.O01-S230.0OO N-$25O.OOl-$50O.OOO
(Col,Cl.D3) O-$S00.001-J1.000.000 P1-S1.000.001.J5.000.000 P2=$5.000.001-$25.000.000 P3=$25.0O0.0Ol-$30.0OO.0OO P4.$50.0O0.0Ol ormore
3 Val Mlh Codes: Q- Appraisal R-Cost (real esuie only) S-Aisesstienl T-Caih/Maikel
(Col.C2) U-Book Value V=Olher W=EHinme<i
848
FINANCIAL DISCLOSURE REPORT
Name of Person Reponing
Moon, Norman K.
Date of Report
10/03/1997
- income, value, transacaons {includes those of spouse and
VII. Page 2 INVESTMENTS and TRUSTS ^p^,«c*yu«n &,pp J7-«<,//»„™:p««.>
A.
Descriplion of AsaeU
Indicau where appUcabU. owner of
the asset by using the parenthetical
'(J}'forjoiru ownership of reporting
individual and spouse , '(S)'forMep-
erale ownership by spouse . '{DC}'
for ownership by dependent child.
Place '00 ' after each asset
exempt from prior disclosure.
B.
Income
during
reponing
period
C
Gross value
at end of
reporting
period
D.
Tiansaciions dunng repotting penod
(1)
Aim.
Code
(A-
H)
0)
Type
(eg.
dividend,
rem or
interest)
(1)
Value
Code
<J-P)
Q)
Value
Method
Code
(Q-W)
(1)
Type
(e.g..
buy, sell.
merger,
redemp-
tioD)
If not exempt from disclosure
Date:
Month-
Day
(3)
Value
Code
(IP)
(4)
Gain
Code
(AH)
(5)
Identity of
buyer/seller
Of private
transaction)
tranuctiont)
18 Coca Cola Common Stock (SI
A
Dividend
J
T
EXEMPT
19 Campbell County property, 52.6
None
K
S
EXEMPT
20 Amherst County Parcel » 1 (S)
None
J
S
EXEMPT
21 Amherst County Parcel »2 'SI
None
J
s
EXEMPT
.22 Note, creditor Barbara W. Moon,
debtor Donald P. Brooks (SI
C
Interest
K
T
EXEMPT
23 Great Dames Investment Club iSl
A
Dividend
*^
T
EXEMPT
24 Virginia Supplemental Retirement
System
None
M
T
EXEMPT
I toc/G»in Codes: A=$1.000orleii B=$l.O01-S2.3O0 C=$2.501-S5.0O0 D=S5.00I-S15.000 E=S13.OOI-$50.O0O
(Col BI. D4) F-$30.001-$100.000 G=$100.001.S1.000,000 HI=SI.OOO.OOI-S5.000.000 H2=$5.000.00I ormore
2V»lCo<k«: J=$I 5.000 or IcM K=$15.0Ol-$50.O0O L=J50.00I-$100.000 M=$100.00I-$250.000 N=S230,001-$iOO.OOO
(CoI.CI.D3) O=$500.00»-$1.000.000 P1=$I.OOO,OOI-$5.000.000 P2=$5.000.0Ol.$25.00O.OO0 P3=$25.0O0.O0I-J50.0O0.OO0 P4=$50.0OO.OOl orn»ore
3 Val Mth Codes; Q=AppraiMl R=Cost (real esuie only) S=Assessmeni T=C*sh/Markel
(CoLC2} U-Book Value VOther W-Estimaied
849
FINANCIAL DISCLOSURE REPORT
Nime of Penon Reporting
Moon, Norman K.
Dale of Report
10/03/1997 1
(Ind)ca(e pan of report.)
Vin. ADDITIONAL INFORMATION OR EXPLANATIONS.
NONE (No addilionai infonnatioo or explanauons.)
VII-A
Campbell County property, 52.64 acres, assessed value is $24,483.00
Amherst County property. Parcels #1 and ((2 are assessed together at $1,200.
850
NHBofPlciiaaRcponinc DMcofRqxxl
FINANCIAL DISCLOSURE REPORT Moon, Nonnan K. ' 10/03/1997
SECTION HEADING, n-hcu. i>«i of i.p«u)
SECTION 3. NON-INVESTMEKT INCOME (confd.) •
Li. Date Parties and Terms Gross Income
UVA School of Law, Trial Ad Lecturer, salary
851
FINANCIAL DISCLOSURE REPORT
Nime of Person Repotting
Hoon, Norman K.
Date of Report
10/03/1997
IX. CERTinCATION
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 at 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
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the 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 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 bee
reported are in compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial
Conference regulations.
Signature
_^
X^>^.
W7/f7
Any individual who knowingly and wilftiUy falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative OfTice of the United States Courts
One Columbus Circle. N.E.
Suite 2-301
Washington, D.C. 20S44
852
39
ATTACHMENT C
Financial Statement
Net Worth
II. FINANCIAL DATA AND CONFLICT OF
INTEREST (PUBLIC)
Question 5.
Norman K. Moon
853
FINANCIAL STATEMENT
NET WORTH
1 ASSETS 1
1 LIABILITIES II
Cash on hand and in banks
73
600
Notes payable to banks - secured
0
U.S. GoTemment securities - add
schedule
1
000
Notes payable to banks -
unsecured
0
Listed securities - add schedule
137
346
Notes payable to relatives
0
Unlisted securities - add schedule
16
220
Notes payable to others
0
Accounts and notes receivable
0
Accounts and bills due
SCO
Due from relatives and friends
0
Unpaid income tax
0
Due from others
3
000
Other unpaid tax and interest
0
Doubtful
0
Real estate mortgages payable -
add schedule
83
400
Real estate owned - add schedule
460
683
Chattel mortgages and other
liens payable
0
Real estate mortgages receivable
64
500
Other debts - itemize:
Autos and other personal
property - approximately
155
000
Crestar Bank credit line
17
000
Cash value - life insurance -
approximately
8
000
American Express
Nations Bank Credit Card
6
3
000
600
Other assets - itemize:
Crestar Bank Credit Card
5
000
USAA 401(K) Account,
Cornerstone Strategy Fund
100
826
USAA Savings Bank Credit
Card
5
000
Virginia Supp. Ret. System
119
114
Total liabilities
120
500
USAA Account, Cornerstone
Strategy Fund
7
722
Net worth
1
337
Oil
Certificates of Deposit
310
000
Total liabilities and net worth
1
457
511
Total Assets
1
457
511
CONTINGENT LLVBILITIES
GENERAL INFORMATION
As endorser, comaker or
guarantor
0
Are any assets pledges? (Add
schedule)
No
On lease or contracts
0
Are you a defendant in any suits
or legal actions?
No
Legal claims
0
Have you ever taken
bankruptcy?
No
Noman K. Moon
45-964 98-28
854
Provision for Federal Income
Tax
0
Other special debt
0
OUESTIOKWAIRE FOR JTTOICIAL NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULES
U.S. Govemaent securities:
- fifteen $200 Series EE savings bonds, value $100 each, total value $1,500
Listed securities;
- Coca Cola Common Stock, 16 shares, value $982
- Mobil Oil Common Stock, 200 shares, value $14,912
- Bristol Myers Squibb Common Stock, 200 shares, value $17,237
- One Valley Bank Common Stock, 1047 shares, value $38,215
- First Federal Bank Corporation Common Stock, 2000 Shares, value $66,000
Unlisted securities:
- <3reat Dames Investment Club, 1/15 interest in present portfolio value of
$243,303.72 consisting of:
AT&T, 258.513 shares
Abbott Labs, 302.201 shares
Biomet, 100 shares
Bristol Myers Squibb, 231.7761 shares
Cisco Systems, 200 shares
Coco Cola, 272.919 shares
Dieboid Inc., 250 shares
DuPont, 241.6838 shares
Exxon, 217.249 shares
PFVA Financial Corp., 100 shares
OE, 315.2276 shares
Oiilette Co., 100 shares
H.J. Heinz, 191.0035 shares
Lucent Technologies, 117.4194 shares
McDonalds, 100 shares
Microsoft, 200 shares
Phillip Morris, 338.203 shares
Motorolla Inc., 100 shares
Sara Lee Corp., 151.4552 shares
Washington Gas & Light, 113.2778 shares
Real estate owned:
* Personal residence, Lynchburg, Virginia, value $395,000
- Lot adjacent to personal residence, value $40,000
- Campbell County property, 52.64 acres, Campbell County, Virginia,
assessed value of $24,483.00
- Amherst County property, two parcels, 1.5 acres, assessed together at
value of $1,200
Norman K. Moon
855
SCHEDDLES - PAGE TWO
LIABILITIES
Raal estate mortgages payable:
- Personal residence, origioal mortgage $100,000, IS year tern, 6.75%
interest rate, $83,955.06 presently owed
No man K. Moon
856
ODESTIONNAIRE FOR JUDICIAL NOMINEES
1. Full Name: Ann Louise Aiken
2. Address: Residence: 2510 Highland Drive, Eugene, OR 97403
Office: Lane County Courthouse, 125 East 8th
Avenue, Eugene, OR 97401
3. Date and place of birth.
December 29, 1951 in Salem, Oregon
4. Martial Status: List spouse's occupation, employer's name
and business address.
Married to James Richard Klonoski, Professor Emeritus of
Political Science, University of Oregon, Eugene, Oregon.
Retired from tenured position December 15, 1994.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
a. Juris Doctor, 1976-1979
University of Oregon School of Law
Eugene, Oregon
Degree Received: May 19, 1979
b. Master of Arts, Political Science, 1975-1976
Rutgers University
New Brunswick, New Jersey
Degree Received: October 1, 1976
c. Bachelor of Science, Political Science, 1970-1974
University of Oregon
Eugene, Oregon
Degree Received: August 1974
d. School of Nursing, Summer of 1972
Oregon Health Sciences University,
Portland, Oregon
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.
857
a. Circuit Court Judge February 1993-Present
b. District Court Judge July 1988-January 1993
c. Attorney October 1983-July 1988
Thorp, Dennett, Purdy, Golden & Jewett PC
d. Chief Clerk December 1982-August 1983
House of Representatives
e. Fundraiser/Field Staff August 1982-November 1982
Kulongoski for Governor
f. Attorney August 1980-August 1982
Sahlstrom & Dugdale PC
g. Law Clerk August 1979-August 1980
Hon. Edwin E. Allen
h. Law Clerk (part time) 1978 - 1979
Public Defender Services, Inc.
i. Law Clerk (part time and concurrent to above)
May 1978 - January 1979
Legal Counsel to the Governor
j. Office Clerk/Lobbyist February 1977 - July 1977
Democratic Party of Oregon
k. Researcher July 1977 - September 1977
University of Oregon School of Law
1. Organizer July 1977 - September 1977
Jarl Associates
m. Office Clerk 1976 - 1977
Democratic Party of Oregon
n. Researcher One week December 1976
Office of Congressman James Weaver
o. Staff July 1976 - November 1976
Weaver For Congress Committee
p. Administrative Assistant May 1976 - July 1976
Office of Congressman James Weaver
q. Administrative Assistant December 1974 - July 1975
Speaker Pro Tern Albert Densmore
r. Salesclerk January 1975 - December 1974
Jas-Ko-Skiing & Sport, Inc. ** Out of Business
s. Field Staff August 1974 - November 1974
Betty Roberts for U.S. Senate
(2)
858
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.
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.
Eagleton Fellowship at Rutgers University, 1975-76
Health, Education & Welfare (H.E.W.) Public Service
Education Fellowship, Rutgers University, 1975-76
Outstanding Young Oregonian for Lane County, 1989
Outstanding Young Oregonian, 1989
Outstanding Service Award as a Lane County District
Judge, 1993 - Awarded by the Chair of the Lane County
Board of Commissioners
Recipient of the Woman of Achievement Award, 199 3
Presented by the State of Oregon Commission for Women
Certificate of Appreciation, April, 1994 - Presented by
the United States Department of Justice, Office of
Justice Programs for outstanding dedication and service
on behalf of crime victims
The White Rose, Woman of Achievement Award, 199 5
Presented by the March of Dimes, Lewis & Clark Chapter
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you
are a member and give the titles and dates
of any offices which you have held in such groups.
Judicial Branch (Appointments by Chief Justice Wallace
Carson) :
a) Member, State Court Study Advisory Committee, appointed
August 1994. (Authorized by OBRA 1993 to study how
courts handle proceedings related to foster care and
adoption. )
b) Member, Advisory Committee on Budget Matters for the
Judicial Department, chaired by the Hon. Greg Foote,
1991-94
— Member, Subcommittee on Legislative Matters, 1991-94
-- Member, Subcommittee on Staffing, 1991-94
— Member, Subcommittee on Retirement, 1991-94
(3)
859
c) Member, Judicial Conference Committee on Retirement,
1991-Present
d) Member, Judicial Conference Committee on Family and
Juvenile Law, 1991-Present
e) Member, Oregon State Bar Association, 1980-Present
— Member, Judicial Administration Committee, 1982-85
f) Member, Lane County Bar Association
— Lobbyist on behalf of the Lane County Bar
Association, 1981
— Member, Judicial Administration Committee,
1989-Present
— Member, Lane County Board of Directors, 1981-8 3
— Chair, Judicial Administration Committee, 1990-92
— Member, Pro Bono Committee, 1991-92
— Member, Law Day Committee, 1987-88; 1991-92
— Member, Juvenile Law Committee, 1992-94
— Member, Family Law Committee, 1992-94
— Member, Nominating Committee, 1990-94
— Member, Alternative Dispute Resolution
Committee, 1995-present
— Member, Federal Court Committee, 1995-present
— Member, Family and Juvenile Law, 1995-present
Member, Steering Committee
g) Team Leader, Roland K. Rodman Inn of Court, Eugene
Chapter, 1990-Present
h) Member, Governor's Task Force on Juvenile Justice,
1994-Present
— Co-chair, Sub Committee III (Dependency
jurisdiction/Juvenile court authority and
function/Substantive law and procedures for delinquent
youth 13 years old and under)
i) Vice Chair, State of Oregon Juvenile Justice
Advisory Committee, 1989-91
j) Charter Member, Oregon Women Lawyers, 1990-Present
-- Director, Board of Oregon Women Lawyers, 1990-91
k) Secretary, Circuit Judges' Association, 1993-94
1) Treasurer, Circuit Judges' Association, 1994-95
m) Member, Steering Committee for Court Appointed Special
Advocate Program (CASA) , 1993
n) Member, CASA Board of Directors, 1994-96
(4)
860
o) Member, Lane County Domestic Violence Council,
1993-94
— Member, Subcommittee on Criminal Justice,
1993-94
— Member, Subcommittee on Civil Justice, 1993-94
p) Member, Lane County Bar Association Committee on
Racial/Ethnic Issues in Judicial System, 1994-present
q) Member, Governor's Commission on Pregnant Substance
Abusers, 1990-91
r) Member, The National Council of Juvenile and Family
Court Judges, 1994-Present
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 the following organizations that are active in
lobbying:
a) Oregon Circuit Court Judges' Association
b) Oregon Judicial Conference
c) The Relief Nursery
d) State Court Study Advisory Committee
I belong to the following other organizations:
a) YMCA--family membership
b) Advisory Board to the Junior League of Eugene
c) Roland K. Rodman Inn of Court
d) International Women's Forum
e) American Leadership Forum
f) Oregon Women Lawyers Association
g) Lane County Women Lawyers Association
h) Parent Teacher Organization for Fox Hollow French
Immersion School
i) Parent Teacher Organization for Roosevelt Middle School
j) Parent Teacher Organization for International High
School at South Eugene High School
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 Oregon, 1980
United States Federal Court, 1981
(5)
861
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.
Report of the Governor's Commission on School Funding Reform
entitled "Small Steps to a Distant Goal." Chaired by Robert
Ridgley.
Report of the Governor's Commission on Pregnant Substance
Abusers. Chaired by the Honorable Betty Roberts.
A subcommittee report entitled "Effective Advocacy for
Dependent Children: A Systems Approach" prepared by
Subcommittee 3 of the Governor's Task Force on Juvenile
Justice. Chaired by Attorney General Theodore R.
Kulongoski .
Report of Governor's Task Force on Juvenile Justice.
Chaired by Attorney General Theodore R. Kulongoski.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent. February 27, 1995.
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.
Lane County Circuit Court Judge, 1993 to present. Appointed
by Governor Barbara Roberts, February, 1993, and sworn in
March 15, 1992. Elected to the Lane County Circuit Court
May 1994, to serve a six year term commencing January 1,
1995. This is the general jurisdiction trial court in
Oregon.
Lane County District Court Judge, 1988 to 1992. Appointed
by Governor Neil Goldschmidt, May 1988, and sworn in July 7,
1988. Reappointed to fill a term beginning January 1, 1989.
Elected to the District Court May 1990, to serve a six year
term beginning January 1991. The District Court is a court
of limited jurisdiction consisting of civil claims not
exceeding $10,000.00, misdemeanor criminal matters, traffic
violations and small claims.
(6)
862
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written. If any of the opinions listed were not officially
reported, please provide copies of the opinions.
In the Oregon district and circuit courts, the standard
practice is for judges to make findings of fact and
conclusions of law on the record rather than prepare written
opinions in the event of an appeal. The appellate courts
use a transcript of the trial and the briefs submitted by
the parties to decide the issues on appeal. Therefore, with
the exception of an opinion letter I wrote in City of Eugene
V. David Henry Miller, case no. 90-50053, aff 'd, 114 Or.
App. 271, 835 P. 2d 144 (1992), I do not have any written
opinions.
(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;
State of Oregon v. David Allen Gilbertson, Case
No. 89-20630, conviction affirmed; judgment vacated and
case remanded to reconsider probation conditions 4a and
4b, 101 Or. App. 241, 789 P. 2d 19 (1990) (per curiam
opinion) . Defendant was convicted on a charge of
telephonic harassment. I suspended imposition of
sentence and placed Defendant on probation. I informed
Defendant of the conditions of probation, including
restrictions on drug and alcohol use. The Court of
Appeals concluded that condition 4a, which required
Defendant to abstain from the use of intoxicants, was
inconsistent with condition 4b, which prohibited
Defendant from "using intoxicants to excess." The
Court of Appeals held that there was a basis for
imposing the restrictions, but remanded for
clarification of the inconsistent terms of probation.
State of Oregon v. Gary Warren Johnson, Case No.
88-20829, aff'd in part; vacated in part, 96 Or. App.
641, 773 P. 2d 812 (1989) (per curiam). While on
probation, Defendant committed criminal mischief in the
third degree and disorderly conduct. I revoked
Defendant's probation, imposed a fine, and sentenced
him to a period of incarceration. Additionally, I
ordered "Defendant shall be rereferred to Lane County
Mental Health for evaluation and treatment." On
appeal, the state argued that the court should treat
the mental health rereferral as a "sentencing judge's
nonbinding recommendation that Defendant submit to
mental health treatment." The Court of Appeals held
that the mental health rereferral exceeded the maximum
sentence allowed. ORS 138.500. The court upheld the
case in all other respects.
(7)
863
state of Oregon v. Mehran Montazer, Case No. 10-93-
07185, conviction affirmed; remanded for resentencing,
133 Or. App. 271, 891 P. 2d 662 (1995). Defendant was
convicted of sexual abuse in the first degree. I
sentenced Defendant as an 8-1, using Oregon's
sentencing guidelines, which has a presumptive sentence
of 16 to 18 months. I stated that Defendant's term of
imprisonment was "not to exceed eighteen months."
Defendant argued that the trial court erred in
admitting certain evidence and in not sentencing him to
a definite term of imprisonment. The Court of Appeals
held that a range is not a presumptive sentence and
that the trial court did not err in admitting the
evidence. Therefore, the court upheld the conviction
but remanded so that the trial court could sentence the
defendant to a definite term of incarceration. On
remand, the defendant was sentenced to 18 months in
prison.
State of Oregon v. Sindy Lynn Lyman, Case No. 10-93-
02538, judgment vacated and case remanded after
reconsidering its earlier decision, 133 Or. App. 600,
891 P. 2d 24 (1995), affirming without opinion a
conviction for possession of a controlled substance.
The Court of Appeals ordered the trial court to make
further findings regarding the tenants' authority to
enter defendant's upstairs/ front room, accompanied by
law enforcement, without defendant's permission. 134
Or. App. 212, 894 P. 2d 1219 (1995). The appellate
court also ordered the trial court to make a ruling on
defendant's motion to suppress consistent with those
findings. On remand, the defendant advised the court
that the tenants did not have authority to enter the
defendant's private premises without her permission,
and the state did not oppose. Therefore, the state
moved to dismiss the indictment and judgment, and the
court granted the motion.
State of Oregon v. Morton/Evans, reversed and remanded
on charges against defendant Morton, but otherwise
affirmed, 137 Or. App. 228, 904 P. 2d 631 (1995) (en
banc) . These cases were consolidated for appeal
because the state raised the same legal issue in both
cases. Both defendants moved to suppress evidence
seized from an arrest made pursuant to an allegedly
unauthorized warrant. The warrant was based on
Morton's failure to appear on a citation for a traffic
infraction. While the police were arresting Morton on
the warrant, a plastic container fell from her jacket.
She denied ownership and knowledge of the container.
The detective found a controlled substance and drug
paraphernalia in the container. The officer then
arrested Evans, who was with Morton, and searched him.
(8)
864
The trial court granted Morton's motion to suppress
because the statute cited as the basis for the warrant
only authorizes warrants for failure to appear on
traffic crimes, not traffic infractions. The trial
court also found the arrest of Evans was unlawful
because there was no testimony showing that the state
had probable cause to arrest Evans.
The Court of Appeals found that the warrant was void
because the statute only authorized warrants in cases
involving traffic crimes; nonetheless, because Morton
had disclaimed any and all interest in the container,
she had no legal standing to challenge its seizure.
Id. at 234, 231-32. Thus, the court reversed and
remanded on charges against Morton.
As for Evans, the appellate court held the warrant for
Morton's arrest was unlawful; the state failed to argue
at trial that Evans lacked standing to contest the
seizure of the container; and a lack of standing
argument against Morton does not preserve the same
argument against Evans. Id. at 237. Therefore, the
trial court did not err in granting Evans' motion to
suppress.
(3) citations for significant opinions on federal and state
constitutional issues, together with the citation to
appellate court rulings on such opinions.
City of Eugene v. David Henry Miller, case no. 90-
50053, aff 'd, 114 Or. App. 271, 835 P. 2d 144 (1992.
Defendant demurred on first amendment and equal
protection grounds.
The following is a list of attorneys who have appeared
before me in either circuit or district court:
1. Jan T. Baisch, Paulson & Baisch Trial Lawyers PC, 1000
SW Broadway, Suite 1660, Portland, OR 97205.
Telephone 503-226-6361.
2. Larry A. Brown, Brown, Roseta, Long & McConville, 210
Northbank Building, 44 Club Road, Eugene, OR 97401.
Telephone 503-686-1883.
3. Win Calkins, Calkins & Calkins, 1163 Olive Street,
Eugene, OR 97401. Telephone 503-345-0371.
4. Don E. Corson, Johnson, Clifton, Larson, & Corson, PC,
975 Oak Street, Suite 800, Eugene, OR 97401.
Telephone 503-484-2434.
5. Robert Eraser, Luvaas, Cobb, Richards & Eraser, PC,
#300 Forum Building, 777 High Street, Eugene, OR
97401. Telephone 503-484-9292.
(9)
865
6. David L. Jensen, Jensen, Fadeley & Elmore, PC, 1399
Franklin Blvd., Suite 220, Eugene, OR 97403.
Telephone 503-342-1141.
7. Shaun McCrea, McCrea, PC, 1147 High Street, Eugene, OR
97401. Telephone 503-485-1182.
8. Terri Wood, 804 Pearl Street, Eugene, OR 97401,
Telephone 503-484-4171.
9. Bruce E. Smith, Cleaves, Swearingen, Larsen, Potter,
Scott & Smith, 975 Oak Street, Suite 800, Eugene, OR
97401. Telephone 503-686-8833.
10. William G. Wheatley, Jaqua & Wheatley, PC, 825 E. Park
Street, Eugene, OR 97401. Telephone 503-686-8485.
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 Party Precinct Person, 1984
Delegate to the 1984 Democratic Convention in San Francisco,
California
Appointed and elected Chief Clerk, House of Representatives,
State Capital, Salem, Oregon, December 1982 to August 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
period you were a clerk;
Law Clerk, 1979-1980
Honorable Edwin E. Allen, Presiding Judge, Lane County
Circuit Court, 125 E. 8th Avenue, Eugene, OR 97401
2. whether you practiced alone, and if so, the
addresses and dates;
No, I did not practice as a sole practitioner.
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;
(10)
866
Associate Attorney, 1980-1982
Sahlstrom & Dugdale, PC, 915 Oak Street, Suite 300,
Eugene, OR 97 4 01
Fundraiser/Field Staff, Kulongoski for Governor
August to November 1982
Chief Clerk, House of Representatives, 1983
Oregon State Capitol
Salem, OR 97310
Associate Attorney, 1983-1988
Thorp, Dennett, Purdy, Golden & Jewett PC,
644 North "A" Street, Springfield, OR 97477
District Court Judge, Lane County, 1988-93
Lane County Courthouse
125 E. 8th Avenue
Eugene, OR 97401
Circuit Court Judge, Lane County, 1993-Present
Lane County Courthouse
125 E. 8th Avenue
Eugene, OR 97401
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 with the firm of Sahlstrom and Dugdale, PC,
in 1981-82 consisted primarily of family law matters.
I tried dozens of cases for the firm in the two years I
worked there. In addition, I tried and assisted in
some personal injury matters and several criminal
cases. Predominantly, my cases involved custody and
visitation issues. Occasionally, I handled a matter in
juvenile court for a long-standing client and an
adoption.
In the late summer of 1982, I took a leave from the
practice of law to serve as a fundraiser and field
staff person on gubernatorial candidate Ted
Kulongoski 's campaign staff. After the campaign ended,
I was nominated by the Speaker and elected by the full
membership of the House of Representatives of the
Oregon Legislature to serve as Chief Clerk. My
responsibilities included overseeing the clerk's staff,
publication of daily schedules and calendar,
maintaining the journal of all proceedings, and serving
as the body's parliamentarian.
Following the end of the 1983 legislative session, I
was hired by Thorp, Dennett, Purdy, Golden & Jewett,
PC, to take over the firm's Domestic Law practice.
(11)
867
During the years at the firm, I handled a range of
domestic matters from simple dissolutions to complex
domestic matters that included substantial amounts of
property and assets. In addition, I assisted several
of the partners in general litigation preparation. I
co-counseled work in a variety of areas including
criminal law, municipal law, and general civil
litigation.
In 1988 Governor Neil Goldschmidt appointed me to fill
a vacancy on the Lane County District Court bench. A
year later, upon the recommendation of the Oregon
Supreme Court's chief justice, I served as presiding
judge for the district court. As such, I managed
thousands of cases and worked closely with
constituencies of the court to ensure timely and
economical resolution of pending cases. I also shared
responsibility for arraignments and sentencing. I
continued in that capacity until my appointment to the
Lane County Circuit Court in 1993.
As a circuit court judge, I hear a variety of civil and
criminal matters. Additionally, in my first year on
the circuit court bench, I presided over out of custody
circuit court arraignments and served as a primary
sentencing judge. Most recently, I am serving as the
managing show cause judge and back-up juvenile judge.
Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My specialty was complex domestic matters and child
custody cases. My former clients included men and
women from every economic condition, state criminal
defendants, private individuals, and municipalities.
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 tried cases on a fairly regular basis. I was
generally scheduled to try 4-5 cases per month with the
expectation most would settle. In addition, I
generally had court hearings on the show cause docket
weekly to resolve pendente lite orders. In the
practice of family law, the majority of cases
are resolved through settlement negotiations, which
was the result with most of my cases.
2. What percentage of these appearances was in
(a) Federal courts — 0%
(b) State courts of record — 99%
(c) Other courts — 1%
(12)
868
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.
I cannot tell you the number of cases I tried to
verdict or judgment, however, I would estimate that
I tried 2 or 3 per month in the seven years I was in
private practice,
5. What percentage of these trials was
(a) Jury — 2%
(b) Non-jury — 98%
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.
I was in private practice for seven years before coming
on the bench. From 1980-82 I worked for Sahlstrom &
Dugdale in Eugene, Oregon. From 1983-88 I worked for
Thorp, Dennett, Purdy, Golden & Jewett, P.C. in
Springfield, Oregon. At both firms, my area of
practice was family law. In family law cases, the goal
is to reach a reasonable resolution, preferably out of
court, so most of my cases settled prior to trial.
From those cases that did not settle, I have picked ten
that I believe are fairly representative of the kinds
of family law matters I routinely handled. I tried all
of these cases in Lane County Circuit Court as the
attorney of record. Child custody, child and spousal
support, insurance, income tax exemptions for dependent
children, and property distribution were the issues in
all of these cases.
(13)
869
In Sharon I. Callahan v. Daniel Callahan. 15-81-00196,
tried on October 21, 1981 before the Honorable Edwin E.
Allen, I represented the Petitioner Sharon I. Callahan.
Opposing counsel was David West, whose address and
telephone number are Suite 215, 500 W. 8th St.,
Vancouver, WA 98660; (206) 737-0415. Callahan is
significant because it was the first case tried in Lane
County under the child support guidelines set out in
Smith V. Smith, 290 Or. 675, 626 P. 2d 342 (1981). The
Smith court stated that child support should be figured
by a ratio of the non-custodial parent's income to thfi
income of the custodial parent. I won custody for the
Petitioner and spousal and child support from the
Respondent.
In Josephina E. Pereyra v. Gregorio P. Pereyra. 15-85-
04876, tried from February 5-12, 1986 and on February
17, 1986 before the Honorable F. Gordon Cottrell, I
represented the Respondent Gregorio P. Pereyra.
Opposing counsel was James M. O'Kief of Morris &
O'Kief, whose address and telephone number are Suite
350, 400 Country Club Road, Eugene, OR 97401; 503-344-
4010. This was a complex child custody matter with
allegations of abuse. Despite an explicit statutory
provision prohibiting the court from giving weight to
the mother for the very reason she is the mother, in
1986 it was still difficult for a father to prevail.
The young age of the little girl in this case made an
award of custody to my client, the father, even more
doubtful. Nearly fifty witnesses testified in a week
long trial. At the conclusion of the trial the judge
took the case under advisement for almost six weeks.
Ultimately, the judge awarded custody to my client.
In Sharon Lavelle Willis v. Larry Dean Willis. 15-85-
08624, tried on April 4, 1986 and between April 8-11,
1986 before the Honorable Maurice Merten, I represented
the Respondent Larry Dean Willis. Opposing counsel was
E. B. Sahlstrom, whose address and phone number are
P.O. Box 10427, Eugene, Oregon 97440; (503) 687-1718.
This was a complex custody case involving two young
boys close in age, one of whom was adopted and had
learning disabilities. The wife was diagnosed with
bipolar disorder (manic depression) . The parties owned
an ultralight airplane business, which the wife
ransacked and destroyed. Due to the mother's potential
to cause harm, obtaining custody for the father was
essential to the well-being of the boys. The day after
my client was awarded custody, he died in a mysterious
ultralight plane crash. A guardian was named for the
boys and many of the issues from the dissolution
proceeding were revisited.
(14)
870
In. Donald D. StaTaleton v. Sharon Ann Sfcapleton. 15-85-
03273, tried on December 11, 1985, December 13, 1985,
and between December 17-20, 1985 before the Honorable
Maurice Merten, 1 represented the Respondent Sharon Ann
Stapleton. Opposing Coiinsel was Idnda Wilson, whose
address and phone number are 1397 Willamette St.,
Eugene, OR 97401; (503) 343-1242- This case was
complex becaxise the parties had substantial assets
including interest in a timber operation. I brought in
an accountant to "audit" the business records and
provide an expert opinion on the value of the parties'
interest. X then presented a sixty— page trial
memoreLndum outlining all of the assets and interests.
Petitioner's counsel claimed the assets were so
encumbered that the value was substantially lower than
our expert's opinion. Judge Merten ruled in favor of
my client.
In Geoffrey S. SJTrnnons v. c^^^^>^^ f>*>n T, SiTrnnonSr 15-82-
04151, tried between March 20-22, 1984, before the
Honorable George Woodxich, I represented the
Petitioner. Opposing cotinsel was Doug McCool, whose
address and phone number are 400 Country Club Road,
Suite 210, P.O. Box 7372, Eugene, OR 97401; (503) 485-
8114. Doug Dennett, Dennett & Fredericlcs, P.O., 199 E.
5th Avenue, Eugene, OR 97401; (503) 345-4704, and I
were CO— counsel in an action to modify a dissolution
decree. By applying the analysis set out in two cases
that I had argued before the Oregon Court of Appeals,
Carter v. Carter, 54 Or. App. 86, 634 P. 2d 265 (1981)
and Schaffer v. Schaffer, 57 Or. App. 43, 643 P. 2d 1300
(1982) , I was able to convince the court that the
support was not property, but alimony. Had the court
found that the support was property, then the award
would have been inalterable, but because the covurt held
that the support was alimony, the court was able to
consider the wife's present standard of living.
Respondent had remarried and was living at a higher
standard of living than she was when she was living
with our client. Consequently, Petitioner's spousal
support obligation terminated by order of the court.
Our client estimated that we saved him approximately
$100,000.
In Sandra Minasian Stenius v. Ranier Konrad Stenius.
15-83-08690, tried between March 26-28, 1985 before the
Honorable William Beckett, I represented the Petitioner
Sandra Minasian Stenius. Opposing counsel was Laura
Parrish of Hutchinson, Anderson, Cox & Teising, P.C.,
whose address and phone mrmber aire P.O.Box 3219,
Eugene, OR 97403; 503-485-6162. Petitioner was the
primary parent, maintained the home, cind contributed
financially. Respondent had a long history of alcohol
abuse and unemployment. Consequently, Petitioner was
(15)
871
able to overcome a rebuttable presumption under Oregon
law that both parties equally contributed to the
marriage, which is a difficult presumption to overcome.
In Sarah Lynn Wina v. Leonard David Wing. Jr.. 77-5638,
tried on January 14, 1986 before the Honorable Greg
Foote, I represented the Respondent Leonard David Wing,
Jr. Opposing counsel were Jim Palmer and Denise
Fjordbeck, whose addresses and phone numbers are Suite
403, 44 W. Broadway, Eugene, OR 97401; 503-343-8281;
Department of Justice, 450 Justice Building, Salem, OR
97310; 503-378-6313. This was another complex custody
modification proceeding. Petitioner, the custodial
parent, remarried and agreed to move herself and her
two daughters to New York with her new husband without
giving notice to the Respondent. On behalf of
Respondent, I moved for a change of custody and an
order restraining Petitioner from removing the children
from the state before a hearing could be held. Judge
Foote granted custody to my client due to a substantial
change in circumstances. In a later proceeding before
the Honorable William Beckett on November 27, 1987, the
court found that Ms. Wing's changed status from
unemployed to employed coupled with my client's
increased need to receive support amounted to a
substantial change in circumstances. Again, my client
prevailed, this time overcoming the presumption that a
mere increase in income does not satisfy the test of a
substantial change in circumstances.
In Emma E. Boiler v. John J. Boiler. 87 Or. App. 550
(1987), tried between March 5-10, 1986 before the
Honorable George Woodrich, I represented the Petitioner
Emma E. Boiler. Opposing counsel was Russell D.
Bevans, whose address and phone number are Suite C 17 5,
895 Country Club Road, Eugene, Oregon 97401; (503)
484-0332. This case represents the many cases
involving substance abuse and domestic violence.
Respondent had a history of drug and alcohol abuse and,
on occasion, he physically and emotionally abused my
client and the two children. Ultimately, Respondent
abandoned Petitioner and his two children on a rural
piece of property with no means of support. The court
agreed that my client should receive the greater share
of the assets in lieu of spousal support because
Respondent had not made any temporary support payments,
even though the court had ordered him to do so.
Respondent appealed. I briefed and argued Petitioner's
case before the Court of Appeals. The court issued a
per curiam opinion affirming the trial court decision
as modified. The court modified one provision of the
decree regarding a china cabinet to "further the
disentanglement of the parties."
(16)
872
In Christian Peter Stehr v. Gisela Hildeaard Stehr. 15-
79-00192 tried on July 2, 1981 before the Honorable
Maurice Merten, I represented the Petitioner. Opposing
counsel was Doug McCool, whose address and phone are
400 Country Club Road, Suite 210, P.O. Box 7372,
Eugene, Oregon 97402; (503) 485-8114. The case was
highly charged, the client was difficult to handle, and
the financial matters were complex. Opposing counsel
was an extremely experienced attorney. Mr. McCool and
I negotiated at length. Finally, we reached a
resolution and put the settlement on the record.
Rather than sign the decree prepared in accordance with
the settlement put on the record. Respondent moved to
set the settlement aside. After a hearing on the
motion, Judge Merten concluded that we had negotiated
the agreement in good faith. Consequently, he signed
my proposed decree.
In Pamela D. Delker v. Thomas W. Delker. No. 15-84-
07223, tried on October 17 and 18, 1985 before the
Honorable George Woodrich, I represented the Petitioner
Pamela D. Delker. Opposing counsel was Marc Perrin,
whose address and phone number are 777 High Street,
Suite 110, Eugene, OR 97401; 503-345-0003. The wife
worked part-time at an unskilled position, took care of
the young children and managed the household. The
husband worked full time with greater opportunity for
career advancement because his duties at home were less
on account of the wife bearing the majority of those
responsibilities. Respondent contested Petitioner's
need for and right to the spousal and child support
that would enable her to provide adequately for their
minor children. Despite lengthy settlement
discussions, the case went to trial and my client
prevailed. My client received enough support to
complete the Forestry program at a local community
college so that she could become self-sufficient while
continuing to raise the children.
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.)
From the time I graduated from law school, I have given
great attention to ways in which the law can and should
improve the lives of children and protect the well-being of
families. I developed a strong understanding of the needs
of children and families while practicing as a domestic
(17)
873
relations attorney. When I was appointed to the bench, I
noted early on that criminal activity was often a
consequence of problems stemming from cycles of abuse and
neglect, drug and alcohol use, and poor education. I also
realized that there was a lack of resources for defendants
to use to address drug and alcohol abuse, child abuse and
neglect, lack of parenting skills and lack of education.
Governor Neil Goldschmidt and Governor Barbara Roberts
recognized my commitment to finding solutions to these
problems. They were aware, as well, of my role in bringing
competing governmental entities and constituencies together.
For example, as presiding judge of the district court, I
developed a jail arraignment process and model plea
negotiation system that saved countless dollars and time.
Consequently, they appointed me to implement a system that
would address the increase in drug and alcohol affected
babies; to create a profile for children at risk of abuse
and neglect and develop a system for effectively intervening
in the families by studying the factors that led to the
deaths of thirty-two children in Oregon in 1992; to serve as
vice-chair of the Oregon Juvenile Justice Advisory
Committee; and to participate in the Governor's Task Force
on Juvenile Justice.
Most recently, the Chief Justice of the Oregon Supreme Court
has appointed me to the State Court Advisory Committee
authorized under OBRA 1993 to study how courts handle
proceedings related to foster care and adoptions.
Additionally, I co-chaired a subcommittee mandated to report
to the 1995 Oregon Legislature on what Oregon should do to
meet the American Bar Association guidelines for effective
representation of children in dependency cases. I enjoyed a
strong working relationship with William Wheatley, immediate
past president of the Oregon State Bar, who served as a
member of the committee.
On a local level, I am a former member of the Commission on
Children and Families for Lane County charged with devising
a long-term strategic plan for the healthy development of
children and families. Over the last eight years, I have
served in various capacities on the Board of the Lane County
Relief Nursery, which is dedicated to finding and
implementing effective methods for intervening in the lives
of high risk families.
(18)
874
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 am a member of the Public Employees Retirement System.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas on 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 will fully comply with 28 U.S.C. § 455. I will recuse
myself from any proceeding in which I have an actual or
apparent conflict. I do not foresee any categories of
litigation or financial arrangements that will
present a potential conflict of interest.
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 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 attached Financial Disclosure Form AO-10 incorporated by
reference herein.
Please complete the attached financial net worth statement
in detail (add schedules as called for) .
See attached forms.
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.
(19)
875
1. Betty Roberts for Governor, 1973-1974
I served as the University of Oregon campus coordinator for
the Lane County campaign and at some point in the Fall of
1993, I was named co-chair of the Lane County Campaign. My
responsibilities included organizing and supervising all the
canvassing, lawn signs, local fundraising events, staffing
the headquarters and local advance work. The campaign
manager was Leonard Bergstein and I ran Lane County as a
volunteer.
2. Betty Roberts for U.S. Senate, 1974
Senator Wayne Morse died in the summer of 1974 and Betty
Roberts was selected by the State Central Committee to
replace the Senator. The campaign hired me to assist with
the field organization. I lived and worked out of Portland.
Later in the campaign, I was reassigned as the candidate's
driver and personal staff. I worked from August, 1994
through the general election on the first Tuesday in
November, 1974.
3. Kulongoski for U.S. Senate, 1980
I was a volunteer in the campaign in Lane County. I stuffed
envelopes and performed general office work for the campaign
with my new baby, Jake, over a six week period before the
November 1980 election. Linda Lynch was the County
Coordinator.
4. Kulongoski for Governor, 1982
In December 1981, Ted Kulongoski decided to run for Governor
and came to tell me in my hospital room where I had just
given birth to my second son. I performed volunteer work
under Linda Lynch, County Organizer, throughout the primary
and during the summer. In the late summer, the campaign
needed staff and asked me to consider the job. I commuted
to Portland initially to do scheduling, but was reassigned
to fundraising and field work.
5. Neil Goldschmidt for Governor, 1986
In 1986, Neil Goldschmidt called a group together to decide
whether he should run for Governor. My husband and I were
included in the discussion. I worked as a volunteer
throughout the primary and was named one of three Lane
County co-chairs for the general election. My
responsibilities included grassroots organization, staffing
the office, advance, lawn signs, and participation in the
local fundraising activities. The other co-chairs were
Dorothy Chase and Maury Jacobs (now deceased) .
6. Hans Linde for the Supreme Court, 1984
Justice Linde was challenged in his re-election to the
Oregon Supreme Court. As a former student, he asked for my
help. I was a volunteer coordinator of the local lawn sign
effort.
(20)
876
7. Debra Ehrman for City Council, 1984
I served on the steering committee for Debra Ehrman 's
successful city council race. I volunteered to canvas,
helped with lawn signs, mailings and did some fundraising.
8. Jim Weaver for Congress, 1976
I served as a field organizer for Mr. Weaver's congressional
campaign. My responsibilities included managing volunteers,
advancing the candidate, coordinating lawn signs and
canvassing.
9. As a precinct committee person and part time office
staff to the Democratic party, I did volunteer work for
dozens of legislative, local and statewide races. I would
canvass a precinct, stuff envelopes or help with campaign
strategy.
(21)
877
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 amount of time devoted to each.
Guest Lecturer, Interdisciplinary Doctoral Program Seminar,
College of Education Division for Special Education and
Rehabilitation, Professor Dan Close. (Lectured yearly
since 1988) .
Guest Lecturer, Foundations of Disability (Master's
Program) , College of Education Division for Special
Education and Rehabilitation, Professor Dan Close.
Guest Lecturer, Psychology of Exceptional Children (Master's
Program) , College of Education Division for Special
Education and Rehabilitation, Professor Dan Close.
(Lectured twice yearly from 1988 to 1993) .
Guest Lecturer, Supreme Court and Civil Rights and Civil
Liberties, Department of Political Science, University of
Oregon, Professor James Klonoski.
Courthouse Tours/Mock Trials. Since 1988, I have
presided over the Thurston High School mock trial
sponsored by the Honor Society. The event is a popular
school activity that requires hundreds of volunteer hours on
the part of local lawyers and teachers. The mock trial is
featured in an all school performance and has expanded to
two trials.
In addition, I have coordinated literally hundreds of
school tours for elementary through secondary school
students. During my term on the Law Day Committee, we
conducted a four hour in service day for middle and high
school social science teachers. This informal arrangement
has been extremely popular.
As a member of the Lane County Bar Association Pro Bono
Committee, I recommended the creation of the Andrew Clement
Pro Bono Award. The award was named after my colleague
following his death after serving two months on the Lane
County District Court. The award is given annually to an
individual for exceptional pro bono service to person of
limited means.
I have been involved in the Relief Nursery, which is an
effective family-centered program aimed at ending the
devastating cycle of child abuse and neglect. The
(22)
878
therapeutic preschool and family services have been a
lifeline to so many people in Lane County. The therapeutic
preschool serves 170 children a week and many more families
through outreach and the drug and alcohol programs.
Families with children at risk of serious abuse and neglect
are served by highly trained staff cind teachers who are
literally changing the lives of families daily. (The Relief
Nursery has been replicated in Portland, Klamath Falls,
Cottage Grove and we are in the beginning stages of
negotiations with Deschutes and Marion Counties) .
In July of 1993, the Relief Nursery consolidated the four
classrooms located in donated church space around town and a
fifth site which housed the administrative staff into a new
13,000 square foot, 1.9 million dollar building designed
specifically to meet the needs of our families. The
building has been described as the "finest children's
facility in Oregon".
I serve on the steering committee of the Court Appointed
Special Advocates (CASA) program. Starting in January 1994,
we created the program, hired two staff directors, wrote
three grants (received funding for two) , recruited 140
applicants, and screened and trained our first class of
volunteers. This program means children and families will
have a true public advocate to ensure they receive
appropriate services and court intervention to arrive at a
permanent family placement. Most recently Gwyneth Hamacker,
Program Coordinator, has requested that I serve on the CASA
of Lane County Foundation Board to ensure the smooth growth
of the program.
I have supervised, as well, a cadre of young people who have
given volunteer time for the Courts under my supervision
each year. Since 1988, I have had 4 to 6 students from
various high schools participate in a structured yet
flexible community service project. Four of the students
were so experienced and talented that they have been paid
judicial employees between semesters at college and over the
summer. The split is approximately about half women and
half men. I maintain contact with each student and have
appreciated all they have given the judicial system as
volunteers.
I also serve as a mentor for students at the University of
Oregon School of Law and Roosevelt Middle School. I have
been involved in these programs since my appointment to the
bench.
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
(23)
879
you currently belong, or have you belonged, to any
organization which discriminates -- though either formal
membership requirements or the practical implementation
of membership policies?
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) .
A Judicial Selection Advisory Committee appointed by members
of Oregon's congressional delegation and Governor Barbara
Roberts was convened to conduct interviews and recommend
candidates for nomination. The committee was comprised of
twelve lawyers and two state court judges. The committee
included members of racial minorities. There were three
past presidents of the Oregon State Bar.
The committee reviewed the written applications of all
applicants and selected 13 finalists to be interviewed.
Background checks were done by committee members on the
finalists prior to interviews. On October 21, 1994, and
October 22, 1994, interviews of the finalists were
conducted. Following the interviews the committee
recommended four names to Oregon's Congressional delegation
for nomination.
Congressman Ron Wyden and Governor Barbara Roberts conducted
a second round of interviews. Thereafter, Congressman Wyden
consulted with all members of the Oregon Congressional
delegation and Governor Roberts and prepared the letter to
President Clinton recommending my name. In addition, I have
been interviewed by a panel of attorneys at the Department
of Justice, the Federal Bureau of Investigation, and a
representative 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?
No
5. Please discuss your views on the following criticism
involving "judicial activism".
(24)
880
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 role of the judiciary in American government is to
decide justiciable cases and controversies. Congress
decides the limits of a federal court's jurisdiction. The
judiciary's primary task is to apply the law created by
Congress. In doing so, the judiciary should always abide by
the constitutional requirements for standing, invoke the
prudential doctrines of mootness and ripeness, and rely on
case law precedents.
Always the judiciary should consider whether the issue
before the court is a political question better left to the
other branches of government for resolution. When applying
these doctrines of justiciability, a federal district court
judge should limit her ruling to the grounds necessary for
resolving the controversy.
To make the ruling, a federal district court judge in Oregon
should first consider the relevant legal precedent of the
Ninth Circuit Court of Appeals and the United States Supreme
Court. Second, a federal district court judge should
fashion a resolution that takes into account the
preferability of legislative and executive solutions and the
constitutional guarantees of individual freedom, limited
government, private property, and the Bill of Rights.
(25)
881
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 19 95//^^^
Rcporc Acquired bv the E
~ Act of 1969. Pub
rJ?S™
November Jo
Aiken,, Ann L.
U.S. District Court,, Oregon
12 .17 ,95
Article HI Judge (Active)
S Report Type (check Appropriate type!
JL Nomination. Date / /
Initial __ Annual Final
6. Reporting Period
1 /1/96-12/1&96
Lane County Courthouse
125 E. eth Avenue,, Eugene,, OR 97401
e On Che basis of the information contained in this Report and
any modifications pertaining thereto, it is, in my opinion,
in compliance with applicable laws and regulations.
Reviewing Officer Date
IMPORTANT NOTES The instructioni accompanying Ihis form musl be followed Coraplele ail parts,
checking ihc NONE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only, see pp 9- 13 of Instructions )
POSITION NAME OF ORGANIZATION/ENTITY
NONE (No reportable positions)
Director
Rplipf Niirspry f NInn-prnf i t- ) Rn^irri nf ni rof hnrg
Rpljpf tvliir.qpry f Nnn-prnf i t- 1 RnArd nf 9t-Pi.r.=<rHg
II. ACREEMF.NTS. (Rcponmg individual only, see pp 14-17 oflnslruclions )
DATE PARTIES AND TERMS
n
NONE (No reportable agreements)
1995-96 F>iihli(- Rmplnypp<; Rot-irpmpnl- .qydt-pm fP.F R..';.) fnr ^hp q^-a^o ^f n,-o^r^r.
ill. NON-IN\TSTMENT INCOME. (Reporting individual and spouse, see pp 18 25 of Instructions )
n
1995-iqqfi
SOURCE AND TYPE
NONE (No reportable non-investment income)
State Board of Higher Educal:ion-State of Oregon
HROSS INCOM
F.fAtp nf nrpgnn-.TnHirial Rr.^nr-h
1995-1996 Public Employees Retirement System (P.E.R.S.)
882
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 26-29 of Instructions )
SOURCE DESCRIPTION
□
NONE (No such reportable reimbursements or gifts)
OTHER GIFTS. (Includes those to spouse and dependent children, use the parcnihclrcals "(S)" and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively Sec pp 30-33 of Instructions )
SOURCE DESCRIPTION
Q
NONE (No such reportable gifts)
s
LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint liability of
reporting individual and spouse, and "(DC)" for liability of a dependent child See pp 34 36 of Instructions )
CREDITOR DESCRIPTION VALUE CODE'
NONE (No reportable liabilities)
883
FINANCIAL DISCLOSURE REPORT
Aiken/, Ann L.
i2A7 /96
VII. Page 1 INVESTMENTS and TRUSTS -- income, value, transactions (Includes those of spouse
and dcpendenl childreo. See pp. 37-54 of InsCructioas.)
D«scripcion o£ Assets
(includlns crust •ssettl
Indicate where applicable, owner o(
the asset by using the parentheticsl
•IJl- lor lolnt oJnerahlp of report-
ing Individual and spouse. '(SI* for
separate ownership by apouse •(DCl-
for ownership by dependent child.
Place -Kl* after each asset
e«eiept from prior disclosure.
during
repomng
c
Gross value
at end of
reporting
Transac
Ions dur
ing reporting period
1
111
Code
(A-M)
111
Type
111
Value
Code
IJ-PI
121
Value
KethodJ
Code
lO-xl
111
Type
bu^'iell,
merger.
redemp-
If not exempt from disclosure |
121
Day
HI
Value!
Code
(J-PI
Kl
Code
(A-H
ISI
Identity of
buyer/seller
(it private
NONE (No reportable
U-Lane-O Credit Union
'Savings (DC)
A
INT
J
T
U-Lane-0 Credit Union
'savings (DC)
A
INT
J
T
0-LaneHD Credit Union
'savings (DC)
A
INT
J
T
U-Lane-0 Credit Union
'Savings (DC)
A
INT
J
T
U-Lane-0 Credit Union
''Savings (DC)
A
INT
J
T
Teachers Insurance Annuity
'Association (TIAA (S)
D
DIV
K
E
Oppenheimer Funds
' Investment Account
C
DIV
L
T
U-Lane-0 Credit Union
'(J)
A
INT
K
T
9 Common Stock -$tate Bank
Saunemin/ Illinois
A
NONE
J
U
I.R.A. (Jackson National
"Life)
C
DIV
K
T
^p.R.E.F. (Equity Account)
F
DIV
K
T
u
11
..
IS
le
1'
1,
' is^r?^f"s/r^5i, ^:iii°§§.°[o'ii§.ooo r.ihr.r.oHiii^.o i:ii.r.o\\iyroo..ooo Ersirfihis ii^?s°ooo
' ^lircSr!. . Di, i:moT..'lo'nto.ooo S:ni6°SJ,'?o1?:?SS.ooot:^?i°t^SM'?S6°?So -s'oo— -"""°
1 v.,ue^K..0d,C0des. g-Jpprais.l^ J.Cost.re.l estate only, S-Xs.es^nt X.C.Sh.»ar.,t |
884
FINANCIAL DISCLOSURE REPORT
Hane of Person Reporting
Aiken/, Ann L.
Date of Report
12/17/96
Vni. ADDmONALINFORMATION or EXPLANATIONS. (Indicale pan of Report.)
1. Pursuant to my mother's will,, I hold the stock but my father receives the dividpnrt-s
from the stock until his death.
DC CERTIFICATION.
In compliance wiih ihe provisions of 28 U S C § 455 and of Advisory Opinion No 57 of (he Advisory Commiiiee on Judicial Aciivmes,
and 10 ihe best of my knowledge ai ihc time aAer reasonable inquiry. I did nol perform any adjudicatory function in any liiigaiion during the
pcnod covered by this report in vvhich I, my spouse, or my minor or dependent children had a financial interest, as defined in Canon 3Q3Xc),
in the outcome of such liligalioa
I certify thai all information given above (including information pertaining to my spouse and minor or dependent childrea if any) is accurate,
true, and complete to the best of my knowledge and belief, and that any infomiallon not reported was withheld because it met applicable
statutory provisions permitting norxjisclosure.
I further certify that earned income from outside employmenl and honoraria and the acceptance of gifts which have been reported are in
compliance with the provisions of 5 USC A app 7, § 501 el seq , 5 U.SC § 7353 and Judicial Conference regulations
NOTE ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIRES OR FAILS TCHnLE THIS REPORT MAY BE SUBJECT
TO CIVIL AND CRIMINAL SANCTIONS (5 U S C A APP 6, § 104 )
RLING INSTRUCTIONS:
Mail signed onginal and 3 additional copies to Committee on Financial Dsclosure
Administrative Office of iJie
United Stales Courts
One Columbus Orcle, N E , Suite 2-301
Washington. DC 20544
885
FINANCIAL STATCNtENT
NET WORTH
Provide a complete. currcJit financial net worth statement which itemizes in detail
all assets (including bank accounts, real estate, securities, trusts, investments, and other financial
holdings) all liabilidcs (including debts, mortgages, loans, and other financial obligadons) of
yourself, your spouse, and other immediate members of your household.
1 ASSETS
liaehxties
Cuh on h&A^ and in buikx
8
50C
00
Nolei payable 10 banlri-tr cured 1 7
000
00
VS. Govanmcm t£cundes— «^
sc^ed^lc
Nofej payable to banks -4uuecured
4
500
00
I inni teauiaci-Add schedule
Noui payable to rclazivcs
UnUltcd Kcwnuc^-Ailj tche^le
Notd payable to others
AocovtiXs aiuj notes re^xivible:
Aocounti and billi doc
Due from i^ltivei tad friends
Unpaid i»»me bu
D\ic from oiheri
Oibex onpaid tax artd ifltcrut
Doubtful ^
Keal eauie moil^ajci payable— a^
ached ule
244
873
00
R<aJ csui£ ovow^a^d sche^lc
332
280
00
able
KuJ nwc montHd receivable
Other debu-itcnuze:
Aatoi and other penoo^ properly
50
1
000 00
Credit Cards
6
750
00
Cuh value -life inmranoe
13
000 00
Olhcr uieb-iumi2e:
Oppenheimer Funds Investment
AECount
75
000' 00
TIAA/CREF
65
000
90
PERS (Jim-approxitnately)
191
000
00
Total babtLties
263
123
00
PERS (Ann-approximately)
63
000
00
Net Worrh
564
657
00
TculAoeu (See attached also)
827
780
00
Tola! LabUidu and i>et wonh
827
780
00
CONTINGENT UABIUTIES
CENTRAl, INFORMATION
Ai cn^rter. comaker or fuuvitcr
None
Are ary ai«u plodgejl? (Add tehod-
ulc.)
No
On kxut o; contrxru
None
Art yoo defendant in any stuts or le|il
aedorj''
No
L>|iJ Qaimi
None
Hive )TOi oa taken banluupci?
No
ftoriiion for Federal Income Tax
None
O-Jkt ipcclal debt
None
_
886
* OTHER ASSETS CONTINUED
IRA (Arm-approximately) $ 28,000.00
Shares: State Bank of Sauneniin, Illinois (Family Owned Bank) $ 2,000.00
Public Employees Retirement System (PERS). My husband retired
December 1 5, 1994. He began drawing a monthly defined benefit of
$3,200.00 in January 1995. (Life annuity with 100% survivorship).
**REAL ESTA TE OWNED
2510 Highland Drive, Eugene, OR (Residence) $332,280.00
887
QUESTIONNAIRE FOR .niDICIAL NOMINFFS
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name ( include any former names used.)
Jerome Barry Friedman
"Jerry"
Address: List current place of residence and office address(es).
Residence;
Virginia Beach, VA 23456
Office:
Circuit Court Judges' Office
2305 Judicial Blvd.
Building 10, Fourth Floor
Virginia Beach, VA 23456
Date and place of birth.
February 19, 1943
Newark, New Jersey
Marital Status ( include maiden name of wife, or husband's name). List spouses
occupation, employer's name and business address(es).
Sandra Katz Friedman
Teacher
Kempsville High School
5194 Chief Trail
Virginia Beach, VA
Jerome B. Friedman
888
Education: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
9/65 to 6/69 - Wake Forest School of Law - Degree J.D. 6/69
''''Please note that I had to leave school for one year due to illness of my father in
order to help my parents. I was supposed to graduate in 1968 and most
correspondence from law school indicates that I was in the Class of 1968,
although I graduated in 1969.
9/61 to 6/65 - Old Dominion University - Degree B.S. in Finance 6/65
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 6/65 - 8/65 - Shoe Salesman
Hofheimer Shoe Company
Norfolk, VA
Summer 7/66 to 9/66 - Taxi Driver
Norfolk Taxi Company
Norfolk, VA
Summer 1967 - Worked in Winston-Salem, North Carolina for Attorney Walter
Holton, who is now deceased.
1/68 to 5/68 - Management
Astro TV (My father's business)
Norfolk, VA
5/68 to 1/69 - Trust Administrator
First Union National Bank
Grreensboro, NC
Est. 6/69 to 9/70 - Assistant Trust Officer
First Union National Bank
Greensboro, NC
Jerome B. Friedman
889
9/70 to 1/71 - Associate in Law Firm
Steingold & Steingold
Norfolk, VA
1/71 to 5/71 - Associate in Law Firm
Shapero, Levine & Abraham
Norfolk, VA
5/71 to 12/71 - Associate in Law Firm
Shapero & Levine
Norfolk, VA
1/72 to 1/74 - Partner in Law Firm
Shapero, Levine & Friedman
Norfolk, VA
1/74 to 12/82 - Partner in Law Firm
Levine & Friedman
Virginia Beach, VA
1/83 to 6/85 - Partner in Law Firm
Pender & Coward
Virginia Beach, VA '
6/85 to 1/91 -Judge. Juvenile & Domestic Relations District Court
Juvenile & Domestic Relations District Court
Virginia Beach, VA
1/91 to Present - Circuit Court Judge
Circuit Court Judges' Office
Virginia Beach, VA
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.
No.
Jerome B. Friedman
890
8. Honors and Awards; List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
During my senior year at Old Dominion University I was elected first runner up
as Mr. Troubadour for general achievements. At Wake Forest I was elected
District President of Phi Alpha Delta Law Fraternity.
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.
I was a member of the Virginia Beach Bar Association, Norfolk and Portsmouth
Bar Association, Virginia State Bar, Virginia Bar Association, Virginia Trial
Lawyers Association and the American Bar Association while I practiced law.
I now hold judicial memberships in some of the above groups. I also previously
held a judicial membership in the I'anson-Hoffman American Inns of Court. I
am a member of the Judicial Conference of Virginia.
Prior to becoming a judge, I was a member of the 2nd District Grievance
Committee of the Virginia State Bar from 1983 to 1985.
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.
At this time I do not belong to any organization. Some of the bar groups listed in
question number 9 may, on a small scale, lobby in the Virginia General Assembly.
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.
Upon passing the bar exam in 1969, 1 was admitted to practice in all state courts
in Virginia. I was also admitted to practice before the United States District
Court for the Eastern District of Virginia on March 22, 1971, and United States
Court of Appeals, 4th Circuit, on August 15, 1975.
Jerome B. Friedman
891
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 have not written any articles to the best of my knowledge. I have made speeches
to Bar groups, civic groups, high school and college classes; however, I do not
have copies of the speeches and did not retain my notes.
13. Health; What is the present state of your health? List the date of your last
physical examination.
My health is fine. My last complete physical examination was about one year ago.
I had a partial examination on March 24, 1997.
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.
■Tulv 1985 to Januarv 1991
Judge - Virginia Beach Juvenile and Domestic Relations District Court
I was elected by the Virginia General Assembly for a full six year term. This
court hears all cases involving juveniles, either as defendants or victims to
conclusion. In some cases this court determines probable cause for felonies.
Abuse and neglect cases are heard including termination of parental rights. The
court determines support and custody matters not associated with a divorce.
January 1991 to Present
Judge - Virginia Beach Circuit Court.
I was appointed for an interim statutory term to this court by Governor L.
Douglas Wilder until the next session of the General Assembly. At that session
the General Assembly elected me for a full eight year term. The Circuit Court
is Virginia's court of general jurisdiction and is a court of record.
15. Citations: If you are or have been judge, provide: (1) the following are the ten
most significant opinions I have written. The opinions are attached. (2) a short
summary of and citation for all appellate opinions where your decisions were
Jerome B. Friedman
892
reversed or where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; (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 ofTicially reported, please
provide copies of the opinions.
(1) the following are the ten most significant opinions I have written. The
opinions are attached.
Wilshire Credit Corporation v. H. Webster Brown
Docket No.; CL96-2103
Johnny E. White v. James L. Miller and Gary Samuel White
Docket No.: CH96-3555
Robert L. Johnson. Executor, etc.. et al v. George S. Walsh and A. Jackson
Mason
Docket No.: CL96-2077
Russell H. Carter v. Food Lion. Inc.
Docket No.; CL95-1048
Pamela M. Veit Administratrix of the Estate of Andre Maurice Veit v. Lakeside
Construction Corporation, et al
Docket No.: CL94-3087
Robert E. Hudson v. First Union National Bank of Virginia
Docket No.: CH96-1380
Charles W. Austin. Jr. v. Norris <& St. Clair. P.C.
Docket No.: CH95-632
Kiera Inman Redd, et al v. Commonwealth of V^irginia
Docket No.: CL95-3248
Arlene M. McCord. Administratrix v. John C. Gribble. d/b/a/ G«&G Cycle
Works, et al
Docket No.: CL94-900
Jerome B. Friedman
893
Frances C. Hayes v. Hamid Hambaz
Docket No.: CL94-1367
(2) a short summary of and citation for all appellate opinions where your
decisions were reversed or where your judgment was affirmed with significant
criticism of your substantive or procedural rulings;
Although I have been affirmed many times by the Supreme Court of Virginia and
the Court of Appeals of Virginia in published and unpublished opinions, the
following is a brief description of all reversals by these courts:
Cohn-Phillips. Ltd. v. Marina Shores. Ltd., Marina Shores. Ltd. v. Cohn-Philips.
Ltd.. 246 Va. 222, 435 S.E. 2d 136 (1993). This case involved a breach of a lease,
tortious interference and civil conspiracy. The Supreme Court ruled that I
should have granted the possession to Marina Shores, Ltd. because the lease was
breached by Cohn-Phillips, Ltd. for not paying rent on time. I ruled that Cohn-
Phillips, Ltd. did not breach the terms of the lease when rent was tendered by
them late.
Curtis A. Brandon v. Commonwealth of Virginia, 22 Va. App. 82, 467 S.E. 2d 859
(1996). When this robbery case was first tried, during the cross-examination of
a prosecution witness, the Commonwealth's Attorney strongly objected to a
question about the witness' alleged conviction of rape in the Juvenile and
Domestic Relations District Court. The Commonwealth's Attorney indicated to
me that this witness was very important to the Commonwealth and since the
question had been asked improperly, he asked me to declare a mistrial. After
some thought, I did. Prior to the next trial, the defendant's attorney moved that
this matter be dismissed on double jeopardy grounds. I denied the motion and the
defendant was tried and convicted. The Court of Appeals reversed stating that
I should have allowed the cross-examination in order to show bias. The Court
ruled that the record did not support the Commonwealth's claim of manifest
necessity for a mistrial to be declared.
David A. Parker Enterprises v. Templeton. 251 Va. 235, 467 S.E. 2nd 488 (1996).
The Supreme Court, in a 5 to 2 opinion, ruled that I should not have allowed two
doctors to testify that in their opinion a motor boat propeller was rotating when
the plaintiff was injured.
Jerome B. Friedman
894
Dan L. Harris v. Citv of Virginia Beach. 19 Va. App. 214, 450 S.E. 2d 401 (1994).
The defendant was driving a motor vehicle and was involved in two accidents
about a mile apart. One police officer charged the defendant with reckless
driving and another charged the defendant with driving under the influence. The
defendant was found guilty in another court of reckless driving. I found the
defendant guilty of the DUI. The Court of Appeals reversed my conviction in
accordance with Virginia Code Section 19.2-294.1, stating that both offenses grew
out of the same continuous, uninterrupted course of operation of the motor
vehicle.
E. Hawlev Brooks v. Carolvn M. Rogers. 18 Va. App. 585, 445 S.E. 2d 725
(1994). The Court of Appeals affirmed most of my rulings in this cause. They
reversed my decision to impute some extra income to Mr. Brooks and remanded
the cause for redetermination of child support.
Monette Hoffman v. Joseph A. Love. 245 Va. 311, 427 S.E. 2nd 357 (1993). In
this 4 to 3, decision the Supreme Court ruled that although liability was admitted,
I should have allowed the jury to decide whether the plaintiff was entitled to
punitive damages based on the defendant's intoxication.
Christopher Associates. L.P. v. J.C. Sessions. Jr.. et al.. 245 Va. 18, 425 S.E. 2nd
795 (1993). The Supreme Court ruled that I wrongly construed a certain term
of a real estate contract.
Mary Ellen Guilfovie v. Joseph Charles Guilfovle. 95 Vap. Unp 0561941 (1995).
The Court of Appeals affirmed many rulings, but reversed my lump sum spousal
award in favor of periodic spousal support. They also said there should be a
division of a certain certificate of deposit.
Walter Lee Cherry. Jr. v. Commonwealth of Virginia. 21 Va. App. 132, 462 S.E.
2nd 574 (1995). The Court of Appeals affirmed this case. One judge dissented
stating that he believed the search of the defendant's house exceeded the scope of
the anticipatory search warrant and was unreasonable under the Fourth
Amendment.
Jerome B. Friedman
895
(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.
Curtis A. Brandon v. Commonwealth of Virginia. 22 Va. App. 82, 467 S.E. 2d.
859 (1996).
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 clerk;
No.
2. whether you practiced alone, and if so, the addressed and dates;
No.
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;
9/70 to 1/71 - Associate in Law Firm
Steingold & Steingold
Norfolk, VA *
Jerome B. Friedman
896
1/71 to 5/71 - Associate in Law Firm
Shapero, Levine & Abraham
Norfolk, VA
5/71 to 12/71 - Associate in Law Firm
Shapero & Levine
Norfolk, VA
1/72 to 1/74 - Partner in Law Firm
Shapero, Levine & Friedman
Norfolk, VA
1/74 to 12/82 - Partner in Law Firm
Levine & Friedman
Virginia Beach, VA
1/83 to 6/85 - Partner in Law Firm
Pender & Coward
Virginia Beach, VA
6/85 to 1/91 - Judge. Juvenile & Domestic Relations District Court
Juvenile & Domestic Relations District Court
Virginia Beach, VA
1/91 to Present - Circuit Court Judge
Circuit Court Judges' Office
Virginia Beach, VA
What has been the general character of your law practice, dividing
it into period with dates if its character has changed over the years?
General practice with an emphasis in civil litigation (plaintiff and
defense), real estate, domestic relations, criminal, collections,
bankruptcy.
Jerome B. Friedman
897
2. Describe your typical former clients, and mention the areas, if any,
in which you have specialized.
I represented some insurance companies such as Old Republic
Insurance Company and The Hartford and some small
corporations. Most clients were average people in the general
practice of law.
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.
Generally, I appeared in court two to three days a week.
2. What percentage of these appearances was in:
(a) federal courts;
Approximately 10%
(b) state courts of record;
Approximately 45% .e, ,
(c) other courts.
Approximately 45%
3. What percentage of your litigation was:
(a) civil;
80%
(b) criminal;
15%
Jerome B. Friedman
898
(c) other;
5%
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.
Since I have been a judge for 12 years this is difficult to answer.
My best recollection over the years is about 50 cases, mostly as chief
counsel.
5. What percentage of these trials were:
(a) jury;
10%
(b) non-jury.
90%
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 of 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.
Jerome B. Friedman
899
Herbert Cherry v. Paul Robinett and Portsmouth General Hospital
Portsmouth Circuit Court
Docket No.: L79-956 (1979)
Presiding Judge: Lester E. Schlitz
This was a serious and difficult medical malpractice case. I filed
suit against a very prominent surgeon and the hospital. The
negligence alleged occurred during and after surgery to remove a
tumor from Mrs. Cherry's thyroid gland. There was a protracted
medical malpractice review panel hearing and we prevailed.
Shortly before trial this case was settled for $400,000.00. Mrs.
Cherry remained in a coma until she died several months after the
settlement. I was lead counsel for the plaintiff and co-counsel was
Glenn McClanan, Esquire, Kempsville Professional Center, 425
South Witchduck Road, Virginia Beach, VA 23462, (757) 497-9451.
Opposing counsel was Thomas J. Harlan, Jr., Esquire, 1200
Dominion Tower, 999 Waterside Drive, Norfolk, VA 23510. His
phone number is (757) 625-8300.
Robert James Drury v. Catherine C. Drury
Virginia Beach Circuit Court
In Chancery No.: CH84-2198: Ended # : C2322-84 (1984)
Presiding Judge: Kenneth N. Whitehurst, Jr.
Commissioner in Chancery; Edward T. Caton, P. O. Box 6,
Virginia Beach, VA 23458, (757) 428-4681
This was an interesting and important divorce case because it was
probably the first equitable distribution case in Virginia Beach.
There were no legal precedents in Virginia at that time and I had
to rely mostly on New Jersey law. The court did not agree with my
argument concerning equitable distribution. My client, Mr. Drury,
did not want to appeal the ruling. Several years later the statute
was changed and with the change we would have prevailed. The
case was heard by the Commissioner in Chancery and the
exceptions which were filed to the Commissioner's Report were
heard by Judge Whitehurst. Opposing counsel was Glenn R.
Croshaw, Esquire, One Columbus Center, Suite 1010, Virginia
Beach, VA 23466, (757) 628-5625. I was the only counsel for Mr.
Drury.
Jerome B. Friedman
900
Commonwealth v. Danny Lea
Norfolk Circuit Court
Docket No.: F77-1198 (1977)
Presiding Judge: Alfred W. Whltehurst
This was a high profile murder case. The defendant and some
others killed a man on a bridge and threw him into the water. After
several days of trial, the jury convicted the defendant of second
degree murder and not first degree murder. We were able to prove
that the defendant was intoxicated and not capable of
premeditation. I was sole counsel for Mr, Lea. He thought his
conviction for second degree murder was a victory. Representing
the Commonwealth of Virginia was Lawrence Lawless who is now
a General District Court Judge in Norfolk, 811 East City Hall
Avenue, Norfolk, Virginia 23510, (757) 664-2583.
Mildred S. Bales, in her own right. Mildred S. Bales.
Administratrix of the Estate of Benny E. Bales v. Old Republic Life
Insurance Company
Hampton Circuit Court
Docket No.; 9500(1971)
Presiding Judge: Nelson T. Overton
This was an emotional trial involving litigation over the proceeds of
a group mortgage life insurance policy against my client. Old
Republic Life Insurance Company. The plaintiff was the wife of the
decedent. We alleged that Mr. Bales, a police officer, falsely
answered questions of a material nature relating to his health. This
case was important because the Supreme Court of Virginia clarified
the issue of our proper burden of proof. We did not prevail at trial,
but the Supreme Court of Virginia reversed and remanded the case
because the judge improperly instructed the jury on the burden of
proof. My partner at the time, William Shapero, and I tried the
case. When we argued the case before the Virginia Supreme
Court, Mr. Shapero argued first and I made the rebuttal argument.
Mr. Shapero later became a judge in the Norfolk General District
Court and is now retired and lives in Florida. His address is 2701
N. Ocean Boulevard, Apt. E-406, Boca Raton, Florida 33431, and
his phone number is (561) 391-5435. Opposing counsel was
George C. Overman, Esquire, 739 Thimble Shoals Boulevard, Suite
Jerome B. Friedman
901
507, Newport News, VA 23606, (757) 873-1188. The Virginia
Supreme Court cite is. Old Republic Life Insurance Company v.
Mildred S. Bales, etc.. et al. 213 Va. 771 (1973).
James M. Walker. Lenore Walker. Pealage P. Walker. IV. v. Grace
Walker Schmucker
Norfolk Circuit Court
Docket No.: C80-1180; Ended U: C1350-81 (1980)
Presiding Judge; Thomas R. McNamara
My client was the trustee of a testamentary trust created by her
mother. The remaindermen of the trust filed a bill for declaratory
judgment alleging the trust purposes had been accomplished and
asked that the trust be terminated and the trust property be
delivered to them. My client asserted that the trust should not be
terminated. A major issue in this case was whether this trust was
active or passive. We lost this case at trial but successfully appealed
and the Supreme Court of Virginia reversed the trial court and
entered final judgment for my client. I was the only counsel for my
client. Opposing counsel was Stanley G. Bryan, Esquire, 801 S.
South George Washington Highway, Chesapeake, Virginia 23323.
The Virginia Supreme Court cite is, Grace Walker Schmucker v.
Pealage P. Walker. IV. et al. 226 Va. 582 (1984).
James E. & Janet Walker v. Chester & Gloria Gifford
United States District Court for the Eastern District of Virginia
Docket No.: C/A 78-344-N (1978)
Presiding Judge: J. Calvitt Clarke, Jr.
This was a case filed under Title 42 U.S.C. § 1982, Discrimination
under the Federal Fair Housing Law. My clients were black and
attempted to rent a house from the defendants who were well known
business people in the area. The evidence at trial was that once the
defendants determined that my clients were black, they declined to
rent their house to them. At one point, there was a third party
defendant, Woodard Realty Company, that was dismissed from the
case prior to trial. This case was a bench trial and the judge found
for plaintiff. The plaintiff was awarded compensatory damages in
the amount of $2,000.00, punitive damages in the amount of
$1,000.00, attorney's fees in the amount of $1,000.00, and all
taxable costs. Although this was not a large verdict, the issues were
Jerome B. Friedman
902
very significant. I was sole counsel for the plaintiffs. Counsel for
the Giffords was originally Robert G. Jones, Esquire, whose address
is 128 South Lynnhaven Road, Suite 100, Virginia Beach, Virginia
23452, and his phone number is (757) 486-0333. Mr. Jones
withdrew from the case and the Giffords were represented at trial
by Michael S. Weisberg, Esquire, whose address is 101 West Plume
Street, Suite 5, Norfolk, Virginia 23510 and his phone number is
(757) 622-7740.
John W. Gee v. City of Norfolk, a municipal corporation. H. I.
Watkins. W.I. Moore. Dwight Minyard and Charles D. Grant.
Chief of Police
United States District Court for the Eastern District of Virginia
Docket No.; CA82-753 - N (1982)
Presiding Judge; Walter E. Hoffman
This was a police brutality suit filed under Title 42 U.S.C. § 1983.
The case was a two-day jury trial. The jury found in favor of the
defendants. Prior to trial on December 22, 1982, defendants. City
of Norfolk and Charles D. Grant, Chief of Police, were dismissed
from the case by consent order. My client was hurt rather
seriously; however, liability was difficult to prove. We felt it was
important that the judge allow the issues to go to the jury, but
unfortunately their verdict was for the defendant. I was sole
counsel for the plaintiff. Philip R. Trapani, Esquire, was the
attorney for all of the defendants. His address is Office of the City
Attorney, 908 City Hall Building, Norfolk, VA 23510, and his
telephone number is (757) 664-4529
Susan Adams v. United States of America
United States District Court of the Eastern District of Virginia
Docket No.: CA79-606-N (1979)
Presiding Judge; J. Calvitt Clarke, Jr.
This was a suit filed under Title 28 U.S.C. § 2671, the Federal Tort
Claims Act. It was a personal injury suit which alleged negligence
during surgery. The case never went to trial. A stipulation for
compromise settlement was presented to the Court on February 26,
1980, and an order dismissing the case based on the stipulation was
entered on April 3, 1980. I was sole counsel for the plaintiff in the
case. The U. S. Attorney, Justin W. Williams, and Assistant U. S.
Jerome B. Friedman
903
Attorney John F. Kane represented the defendant. The address for
the U. S. Attorney's Office is 101 West Main Street, World Trade
Center, Suite 8000, Norfolk, Virginia 23510, and the phone number
is (757) 441-6331. However, Justin W. Williams is now with the
U.S. Attorney's Office in Alexandria. Misaddress is 2100 Jamieson
Avenue, Alexandria, Virginia 22314, and his phone number is (703)
299-3700.
William Charles Simpson, individually and trading as Simpson
Home Improvement Co. v. Clarence Love
Virginia Beach Circuit Court
Docket No.; 16932 Ended No.: 20145 (1971)
Presiding Judge: George W. Vakos
This was a breach of contract case. The plaintiff was seeking as
damages the amount owed on the contract for home improvement
work performed at the defendant's residence. The defendant filed
a counterclaim claiming that plaintiff failed to complete such work
and sums of money were expended to correct defective work that
had been performed. The case was tried before a jury and the jury
found in favor of the defendant on the plaintiffs motion for
judgment, and found in favor of the plaintiff on the defendant's
counterclaim. Neither side received any monetary award. When
we tried to settle this case, Ms. Brydges and I recommended to our
clients exactly what the jury ultimately did. A significant issue
arose in this two-to-three day trial involving possible heart
problems incurred by the defendant because of the aggravation he
had during the time the parties were having their problems.
Originally, Aldine J. Coffman, Jr., Esquire, represented the
plaintiff. I was substituted as counsel and solely represented the
plaintiff at trial. Janet B. Brydges, Esquire, represented the
defendant. Her address is 1369 Laskin Road, Virginia Beach, VA
23451, and her phone number is (757) 428-6021.
Robert M. Cole v. Hardees Food Systems. Inc.
Virginia Beach Circuit Court
Docket No.: L-4479; Ended No.; 23431 (1971)
Presiding Judge: George W. Vakos
Mr. Cole alleged that his supervisors at Hardees in South Carolina
defamed him when they fired him for taking money without their
Jerome B. Friedman
904
permission while he was an employee. There was extensive
discovery. This case was very important to my client because of the
potential ramifications if they lost including adverse publicity. If I
recall correctly, this case was settled just prior to trial for a very
small sum for economic reasons. I was sole counsel for Hardees.
Glenn B. McClanan, Esquire, was counsel for plaintiff. His address
is 425 South Witchduck Road, Virginia Beach, Virginia 23462-3614.
His phone number is (757) 497-9451.
Please find listed below the names, addresses and phone numbers of 12 members
of the legal community who have had recent contact with me.
Mary M. Kellam, Esquire
Slipow, Robusto & Kellam, P.C.
2625 Princess Anne Road
P. O. Box 6304
Virginia Beach, VA 23456
(757) 427-5094
Glenn R. Croshaw, Esquire
Willcox & Savage, P.C.
One Columbus Center, Suite 1010
Virginia Beach, VA 23466-1888
(757) 628-5625
Moody E. Stallings, Jr., Esquire
Stallings & Richardson
2101 Parks Avenue
Suite 801, Pavilion Center
Virginia Beach, VA 23451
(757) 422-4700
Richard G. Brydges, Esquire
Brydges, Mahan & O'Brien, P.C.
1369 Laskin Road
Virginia Beach, VA 23451
(757)428-6021
Jerome B. Friedman
905
John Franklin, III, Esquire
Taylor & Walker, P.C.
1300 First Virginia Tower
555 Main Street
Norfolk, VA 23514
(757) 625-7300
Hunter W. Sims, Jr., Esquire
Kaufman & Canoles, P.C.
One Commercial Place
P. O. Box 3037
Norfolk, VA 23514
(757) 624-3272
Jerrauld C. Jones, Esquire
Jones & Carlson
Suite 300, 125 St. Paul's Blvd.
Norfolk, VA 23510-2708
(757) 627-6568
James O. Broccoletti, Esquire
Zoby & Broccoletti, P.C.
6663 Stoney Point South
Norfolk, VA 23502
(757) 466-0750
Robert J. Humphreys, Esquire
Commonwealth's Attorney
2305 Judicial Blvd., BIdg. lOB
Second Floor, Judicial Center
Virginia Beach, VA 23456
(757) 427-8978
Peter T. Legler, Esquire
Office of the Public Defender
Municipal Center
Virginia Beach, VA 23456
(757) 427-4657
Jerome B. Friedman
906
Fay F. Spence, Esquire
Spence & Whitlow
1630 Dominion Tower
999 Waterside Drive
Norfolk, VA 23510
(757) 624-9649
Charles R. Hofheimer, Esquire
Charles R. Hofheimer, P.C.
Ocean Plaza Corporate Center
303 34th Street, Suite 8
Virginia Beach, VA 23451
(757) 425-5200
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 privilege has been waived).
I handled some interesting social security appeals, one involving carpel tunnel
syndrome, and we prevailed. I have also handled over 100 real estate closings,
some of which were very unusual and time consuming. In addition, there were
many interesting and complicated divorce matters and most settled without
contested hearings. While in practice I served on the Virginia State Bar's Second
District grievance committee.
I was Chief Judge for four years in the Juvenile and Domestic Relations District
Court. While I was Chief Judge I implemented a CASA program, a driving
school for juveniles and their parents, and a street law program. I have been
Chief Judge of the Circuit Court since July 1, 1994. The Chief Judge is
responsible for handling numerous administrative matters, dealing with local
governing bodies, budgets, assignments of cases and some personnel matters.
Jerome B. Friedman
907
QUESTIONNAIRE FOR JUDICIAL NOMINEES
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, clients, or
customers. Please describe the arrangements you have made to be compensated
in the future for any financial or business interest.
Under the JRS Retirement System, if I continued In my present position, it is
estimated that my retirement benefits on February 1, 1999 would be
approximately $4,850.00 per month. Early retirement benefits can be collected
beginning at age 55. At this time, if confirmed by the Senate, I do not know
whether I will request early benefits upon reaching age 55.
Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these area 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.
As far as I know there should be no conflict of interest. I have always followed
the Code of Judicial Conduct and will continue to do so.
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 that 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 $500.00 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.)
Jerome B. Friedman
908
My income and my wife's income and any interest received from savings account
and bonds are the sources of all income received. See attached Financial
Disclosure Report.
Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See Attached Statement.
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 worked at the polls for one or two local political candidates approximately IS
years ago. I have never been on anyone's campaign staff. Prior to becoming a
judge, I probably have not contributed more than $300.00 to all candidates I
supported. I have not been involved in politics at all since becoming a judge.
Jerome B. Friedman
909
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.
While practicing law I always was on various court appointed lists to represent
indigent defendants. I was a cub scout den leader for two years. I was a member
of the Rotary Club for several years. I served on the Board of Directors for
Temple Israel for many years and the Hebrew Academy of Tidewater as Vice
President. While a judge in Juvenile and Domestic Relations District Court, I
was a mentor in a program established by the school system for three years.
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 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 have never belonged to any such organizations. For several years while I
practiced law and until approximately 1986, 1 was a member of the Rotary Club.
At that time only males were allowed membership. Several years after I resigned
from the club, the Rotary Club began admitting females.
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).
Senator Robb selected a screening committee and I, along with others, appeared
before it in January, 1997. I was one of three recommended. The Senator
arrived at a list of five candidates and I was included. The Norfolk-Portsmouth
Jerome B. Friedman
910
Bar Association rated me and two others as "highly qualified." (Note: This bar
association has about 1500 members). I was recommended by the Virginia Bar
Association, the Virginia Trial Lawyers Association, and the Virginia Women's
Attorneys Association. The most important bar recommendation was from the
Virginia State Bar. The five candidates were interviewed by and entire
committee in February 1997. I, along with two others, were given their highest
endorsement On March 15, 1997, 1 had a very thorough interview with Senator
Robb in Washington before he recommended me. In addition, the Department
of Justice, the Federal Bureau of Investigation and the American Bar Association
have completed their respective evaluations concerning my candidacy. On June
10, 1997, 1 had a meeting with Senator John W. Warner in Washington.
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."
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;
Jerome B. Friedman
911
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.
A judge has to make many difficult decisions. It can be especially difHcult when
the law, as applied to a particular state of facts, results in what appears to be a
harsh or unfair result. It is at those times the temptation can arise to "bend" or
"creatively interpret" the law in order to achieve a more palatable result. It is
my firmly held belief that when a judge gives into such a temptation, he crosses
the line from being a judge (whose job it is to apply the law) to becoming a
legislator (whose job it is to create the law).
After 12 years as a judge, I am well aware that sometimes it is difficult to
interpret what the law is or the meaning of the statutes. That is when the trial
court judge must rely on well-established rules of statutory construction and stare
decisis, always with the goal of carrying out the intention of the legislature. It is
never proper for a judge to use a case before him to advance his own personal
social agenda.
Jerome B. Friedman
912
nNANOAL 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.
ASSETS
LIABILITIES
Cash on hand and in banks
Notes payable to banks - secured
U.S. Government securities - add
schedule - see schedule "A"
Notes payable to banks -
unsecured
Listed securities - add schedule
Notes payable to relatives
Unlisted securities - add schedule
Notes payable to others
Accounts and notes receivable
Accounts and biUs due
Due from relatives and friends
Unpaid Income tax
Due from others
Other unpaid tax and interest
Real estate mortgages payable -
add schedule - see schedule **E**
Real estate owned - add schedule -
see schedule "B"
260,000
Chattel mortgages and other liens
payable
Real estate mortgages receivable
Other debts - itemize:
Autos and other personal property
- approximately
Pledge to Temple Israel
4,000
Cash value - life insurance -
approximately
5,000
Balance due on leased automobile
- approximately
Other assets - itemize: see schedule
"C
215,034
Balance due on auto and home
insurance
See schedule "D"
Pledge due United Jewish
Federation
Total Uabilities
232,420
329,114
561,534
Total liabilities and net worth
561,534
CONTINGENT UABfLITIES
GENERAL INFORMATION
As endorser, comaker or
guarantor
Are any assets pledges? (Add
schedule)
On lease or contracts
Are you a defendant in any suits
or legal actions?
Legal claims
Have you ever taken bankruptcy?
Proviston for Federal Income Tax
Other special debt
Jerome B. Friedman
913
QUESTIONNAIRE FOR JUDICIA!. NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULE A
U. S. Savings Bonds $3,000.00
U. S. Treasury Note - My wife just
purchased at auction in May, 1997. $10,000.00
$13,000.00
Jerome B. Friedman
914
QUESTIONNAIRE FOR .nJDICIAL NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULE B
Personal residence owned with
my wife - approximate value $260,000.00
Jerome B. Friedman
915
\
QUESTIONNAIRE FOR JUDICIAL NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULE r
Checking Account jointly owned with
my mother (her funds)at Crestar Bank $4,800.00
Money Market account jointly owned with
my mother (her funds) at BB«&T $3,300.00
Two Certificates of Deposit jointly owned with
my mother (her funds) at Life Savings $45,000.00
Checking Account jointly owned with my
mother-in-law, Cenit Bank $9,900.00
Money Market Account jointly owned with
my mother-in-law (her funds) $19,000.00
Judicial Checking Account at Signet Bank.
Only to be used for judicial purposes, not for
personal use. $6,800.00
Certificate of Deposit at Cenit Bank owned
jointly with my mother-in-law,
(her funds) and my wife. $39,265.00
Certificate of Deposit jointly owned by my
mother-in-law, (her funds) and
my wife. $65,912.00
Two Money Market Accounts at Cenit Bank
jointly owned by my wife and mother-in-law,
(her funds). $3,170.00
$7,695.00
Money Market Account at Signet Bank jointly
owned by my wife and mother-in-law, her funds $10.192.00
Total $215,034.00
Jerome B. Friedman
916
QUESTIONNAIRE FOR JUDICIAL NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULE D
Under the JRS Retirement System it is estimated that my retirement benefits on
February 1, 1999 would be approximately $4,850.00 per month.
Jerome B. Friedman
917
QUESTIONNAIRE FOR JUDICIAL NOMINEES
FINANCIAL STATEMENT - NET WORTH
SCHEDULE E
Mortgage on residence with
GE Capital Mortgage Services Approximately $172,000,00
Jerome B. Friedman
NOMINATIONS OF JAMES S. WARE (U.S. CIR-
CUIT JUDGE); LYNN S. ADELMAN, CHARLES
R. BREYER, FRANK C. DAMRELL, JR., MAR-
TIN J. JENKINS, MICHAEL P. McCUSKEY,
G. PATRICK MURPHY, AND FREDERICA
MASSIAH-JACKSON (U.S. DISTRICT JUDGES)
WEDNESDAY, OCTOBER 29, 1997
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:02 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Jon Kyi presiding.
Also present: Senators Specter, DeWine, Sessions, Kohl, Fein-
stein, Feingold, and Durbin.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR
FROM THE STATE OF ARIZONA
Senator Kyl. Good afternoon. This Senate Committee on the Ju-
diciary judicial nominations hearing will now begin.
In order to expedite the process — we have a lot of candidates
today — we will follow a procedure which will divide our witnesses
into three panels. The first panel will be Members of the Senate
and House who will introduce candidates. Sometimes in the past,
we have had the candidates come forward at the same time. We
will not do that this afternoon. We will hear the Members of the
House and Senate first.
Then the second panel will be the bulk of the candidates who will
come forward and be seated at the table and I will administer the
oath at that time to all of the candidates and then proceed to ask
questions seriatim. In that second panel, we will begin with a
nominee for circuit court. The third panel will do the same with
nominees for the district court, and the fourth panel will consider
a district court nominee who was carried over from a hearing yes-
terday.
We will necessarily, because of the presence of certain Senators
and absence, take these nominees not necessarily in any particular
order but as the Members of the House and Senate appear.
I might also indicate to the people who are in the audience that
we might be able to use a little judicial help here on the Senate
floor. We are in a bit of a procedural snafu at the moment and I
do not expect that we will have any votes, but there will be Sen-
(919)
920
ators missing as a result of what is occurring and there are also
some Senators who are occupied elsewhere.
Finally, in order to conclude our hearing today in an expedited
way, I would ask all witnesses to be very brief, if you would,
please. I learned very early on in my judicial career that when you
are ahead, the best thing to do is to keep it short and sit down.
I think all of these witnesses, by virtue of their qualifications, are
certainly ahead by virtue of their being here today and so I would
urge all the witnesses to be brief in their presentations.
We have Senators from some of the States who are present here,
and since both Senators from Wisconsin are here, let me call upon
Senator Kohl and Senator Feingold to make their introduction here
first.
Senator Kohl.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM
THE STATE OF WISCONSIN
Senator KOHL. Senator Kyi, Mr. Chairman, let me thank you for
holding this hearing so promptly and let me take this opportunity
to tell you why Lynn Adelman, the President's nominee for the
U.S. District Court for the Eastern District of Wisconsin, is such
a fine choice to fill the vacancy created when Judge Curran took
senior status.
First, Lynn Adelman has a record of unquestioned skill and un-
equaled experience in his 30 years of practice. His dedication, his
hard work, and his intelligence have been displayed in both civil
and criminal cases before the Wisconsin Supreme Court and before
the Supreme Court of the United States.
Second, Lynn Adelman has spent a life devoted to public service.
He has dedicated a great deal of his professional time to disadvan-
taged clients, and rather than pursue his private practice full time,
he has simultaneously served in public office. As a State senator
for 20 years, much of the time serving as chairman of the Judiciary
Committee, Adelman has championed the causes of families, crime
victims, and government accountability.
Of course, a few have suggested that legislators generally should
not be trusted to serve as judges or that Mr. Adelman, who has al-
ways held strong opinions, will not be able to resist making law
from the bench. In fact, precisely the opposite is true. Like so many
former elected officials who have proved themselves worthy Federal
judges, people like Charles Evans Hughes, William Howard Taft,
and the current District Court Judges Bob Warren and John
Chabazz of Wisconsin, Lynn Adelman understands the distinction
between judges and legislators. The role of a judge is to enforce and
to interpret laws and not to make them.
Based on this outstanding record, Lynn Adelman received high
marks from the nonpartisan commission that Senator Feingold and
I established with the State bar and his nomination has bipartisan
support, including the endorsement of Wisconsin's Republican Gov-
ernor Tommy Thompson. Although they have not always seen eye
to eye. Governor Thompson wrote that, "Lynn is thoughtful, fair,
and open minded, as well as someone who is sensitive to and has
respect for the principle of separation of powers." Adelman under-
921
stands the proper role of each branch of government. Mr. Chair-
man, I request that the Governor's letter be placed in the record.
Senator Kyl. Without objection, so ordered.
[The letter of Governor Thompson follows:!
GrOVERNOR, STATE OF WISCONSIN,
March 21, 1997.
Hon. Herbert H. Kohl,
U.S. Senator, Hart Senate Office Building,
Washington, DC.
Hon. Russell D. Feingold,
U.S. Senator, Hart Senate Office Building,
Washington, DC.
Dear Senator Kohl and Senator Feingold: I am writing to express my support
for the appointment of State Senator Lynn Adelman to fill the Judicial vacancy in
the Eastern District of Wisconsin.
I have worked with Lynn Adelman for many years both in my capacities as Gov-
ernor and as State Representative. He is thoughtful, fair and open-minded. He is
also independent, and a very hard worker.
As a State Senator and a lawyer, Lynn Adelman has had a distinguished career.
For the past twenty years Lynn has led Wisconsin's efforts to combat drunk driving.
He authored the state's comprehensive drunk driving law which has saved many
lives.
Lynn Adelman has also been an effective advocate for crime victims. He authored
an amendment to the Wisconsin Constitution to protect the rights of crime victims.
He has also championed legislation aimed at compensating crime victims, ensuring
them access to the criminal justice system, and protecting them from reprisals.
For many years, Lynn Adelman has served as the Chair of the Senate Judiciary
Committee. In that capacity he has demonstrated that he is an able and skilled leg-
islative craftsman. For example, recently Ljmn crafted an anti-stalking law that sat-
isfied both battered women concerned about their safety and pro-life activists wor-
ried that the law might limit their right to demonstrate peacefully.
While we do not always agree, I have worked vdth L5mn Adelman on many issues.
For example, we have worked together to enact a number of important anti-crime
measures. During may first term as Governor, Lynn helped to enact what has come
to be known as the "Life Means Life" law. For many years a life sentence in Wiscon-
sin was not really a life sentence because of the way in which the parole system
worked. I proposed permitting judges to set specific dates for parole eligibility so
that a life sentence would truly be a life sentence. Lynn served on the conference
committee which approved the final version of the bill, and he actively worked for
its passage. Since this law was enacted, hundreds of dangerous offenders have re-
mained in prison, and, as a result, Wisconsin is a safer place.
Lynn Adelman and I also worked together in an effort to fight drug use in Wiscon-
sin. In 1989, I called a special session of the legislature and proposed a sweeping
bill that increased penalties for possession of heroin, cocaine, and other drugs. My
bill also established drug courts in Milwaukee County and contained numerous
other anti-crime and anti-drug provisions. Lynn worked with me to ensure this bill
was enacted.
In 1993, I proposed an omnibus crime bill to address the problem of gang-related
crime and a number of other criminal justice problems. Lynn Adelman worked vdth
me to help pass this bill.
LjTin Adelman was the only Senate Democrat to vote for my 1995-97 state budget
because it provided property tax relief to Wisconsin residents. He was one of only
three Senate Democrats to support construction of a new stadium for the Milwaukee
Brewers because he believed it was essential to keep major league baseball in Wis-
consin. He is one of only a handful of Democrats who has consistently supported
my welfare reform initiatives over the years, and he voted for W-2 because he be-
lieved it was an effective step toward eliminating dependency.
Ljrnn Adelman is sensitive to and has respect for the principle of the separation
of powers. He understands the proper role of each branch of government.
I am pleased to support Lynn Adelman for appointment to the federal bench. If
I can provide you with any additional information, please do not hesitate to contact
me.
Sincerely,
Tommy G. Thompson, Governor.
922
Senator KOHL. Finally, let me conclude on a personal note. My
family has known the Adelman family for over 30 years and I have
known Lynn personally for more than 20. I know that he has the
capacity, integrity, and the skill that will make him a valuable ad-
dition to the bench. I look forward to his testimony and to his
speedy confirmation and I thank you for this opportunity, Mr.
Chairman.
Senator ASHCROFT. Thank you, Senator Kohl.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman.
It is such a pleasure to hear the fine words of my senior col-
league, Senator Kohl, on behalf of Lynn Adelman. I want to join
in those words.
I was extremely pleased to hear of President Clinton's choice of
Lynn Adelman from the various names that were submitted to
him. After Senator Kohl and I received the recommendations of the
committee, we asked to look at this issue. I believe that when the
members of this committee have an opportunity to hear Lynn
Adelman's record and to hear from him directly, you will reach the
same conclusion that Senator Kohl and President Clinton and peo-
ple all across Wisconsin and I have reached, and that is that Lynn
Adelman will be an exemplary jurist for the citizens of Wisconsin
and for the country.
Lynn Adelman was bom in Milwaukee and is a graduate of
Princeton University and Columbia Law School. He graduated with
honors from both of these excellent institutions. After a brief period
working in New York, he returned to Wisconsin and began what
to this day has been a career of dedicated public service to the peo-
ple of our State.
Lynn worked in private practice in Wisconsin beginning in 1972
and continues to do so today as a partner in the Milwaukee law
firm of Adelman, Adelman, and Murray. His wife, Elizabeth, is also
a partner in this successful firm.
He was elected in 1977 to the Wisconsin State Senate for the
28th District. In the 20 years that Lynn has represented that dis-
trict, he has been a leading voice in the Wisconsin legislature. I can
tell you this because I served with him myself for 10 of those years
as a member of the Wisconsin State Senate and as one of the mem-
bers of the Wisconsin State Senate Judiciary Committee, which he
chaired.
Lynn's legislative record and commitment to the people of his
district and the State of Wisconsin has earned him a great deal of
bipartisan praise. I just want to reiterate what Senator Kohl said.
He has been warmly and strongly endorsed by our very prominent
Republican Governor Tommy Thompson, who writing in support of
the nominee, again, I want to repeat, characterized Lynn Adelman
as thoughtful, fair, and open minded. The Governor notes how he
and Lynn worked hand in hand to ensure the passage of important
legislation, ranging from anticrime and antidrug legislation to wel-
fare reform. I think that is a significant bipartisan statement.
923
As I mentioned earlier, Lynn is also a very successful attorney.
During the 20 years he has served in the Wisconsin Senate, he has
continued to practice law. During his legal career, Lynn has ap-
peared frequently in both criminal and civil cases in both State and
Federal courts and Lynn's considerable skills also resulted in him
arguing a case before the U.S. Supreme Court in 1993. At the same
time, he has been very respected in the State legislature.
Mr. Chairman, in light of your admonition that our remarks
should not be too long if we are, indeed, ahead, which I believe we
are on this issue, let me ask that the remainder of my statement
be placed in the record.
Senator Kyl. Without objection.
[The prepared statement of Senator Feingold follows:]
Prepared Statement of Senator Russell D. Feingold
I am pleased today to join with my colleague, Senator Kohl, in recommending
Lynn Adelman to this Committee for confirmation to the federal judiciary. I was
pleased to see President Clinton choose Lynn Adelman's name from the three for-
warded to him by the nominations committee that Senator Kohl and I have estab-
lished to review potential nominees for Wisconsin's federsd bench.
I believe that when the Members of this Committee have an opportunity to review
Lynn Adelman's record and to hear from him directly, you will reach the same con-
clusion that Senator Kohl, President Clinton, people all across Wisconsin and I have
reached. That being that Lynn Adelman will be an exemplary jurist for the citizens
of Wisconsin.
Lynn Adelman was bom in Milwaukee and is a graduate of Princeton University
and Columbia Law School. He graduated cum laude from both of these excellent in-
stitutions. After a brief period working in New York, Lynn returned to his native
Wisconsin and began what to this day has been a career of dedicated public service
to the people of our State. Lynn worked in private practice in Wisconsin beginning
in 1972 and continues to do so today as a partner in the Milwaukee law firm of
Adelman, Adelman and Murray. His wife Elizabeth is also a partner in this success-
ful firm.
In 1977, Lynn was elected to the Wisconsin State Senate for the 28th District.
In the twenty years that Lynn has represented the 28th District, he has been a
leading voice in the Wisconsin Legislature. During his tenure in the Wisconsin Sen-
ate, Lynn has served on the Judiciary Committee and chaired that important panel
on two separate occasions, first from 1979 through 1993, and then again from 1995
until today. I had the distinct honor of serving with Lynn for ten years while I was
a Wisconsin State Senator and worked with him on the Judiciary Committee.
Lynn's legislative record and commitment to the people of his district and the
State of Wisconsin has earned him bi-partisan praise. In fact. Republican Governor
Tommy Thompson, writing in support of this nominee, characterized Lynn Adelman
as ". . . thoughtful, fair and open-minded . . ." The Governor goes on to note how
he and Lynn worked hand in hand to ensure the passage of important legislation
ranging from anti-crime and anti-drug legislation to welfare reform. This bi-partisan
praise is a significant statement and illustrates what those of us who have known
and worked with Lynn all know. That being that during his career, he has always
placed the best interests of the people of Wisconsin above politics and partisanship.
Lynn's efforts have also garnered him recognition from many civic groups as well.
In 1995, for example, he received the Lifetime Achievement Award for Leadership
Against Drunk Driving from Mothers Against Drunk Driving. Lynn has also been
a tireless leader in the fight to set high standards of ethics in government. His hard
work has resulted in open records laws and ethical codes for elected officials. Ljoin's
work in this important area has helped to preserve and ensure the integrity of rep-
resentative government in the State of Wisconsin.
As I mentioned earlier, Lynn is also a successful attorney. During the twenty
years he has served in the Wisconsin Senate, he has continued to practice law. Dur-
ing his legal career, Lynn has appeared in both criminal and civil cases, in both
State and federal courts. Lynn's considerable skills also resulted in him arguing be-
fore the United States Supreme Court in 1993. At the same time he has been an
influential leader in the State senate, he has also been, and continues to be, a sig-
nificant and well-respected voice in the Wisconsin legal community.
924
Mr. Chairman, there can be little doubt that Ljmn Adelman's career makes him
well suited to sit on the federal judiciary. He has served with distinction in the leg-
islative branch and understands, first-hand, the constitutionally based principle of
separation of powers — a principle which is essential to preserving our democratic
form of government.
His considerable experiences in the courtroom will also be an asset to him on the
bench. He has a unique understanding of our legal system which will provide him
with the temperament necessary to treat everyone who comes before him with the
respect they deserve and should expect from all judges. In short, he has all the tools
necessary to serve the people of Wisconsin with distinction. As that is the standard
that has marked his illustrious career to date, I have no doubt it will continue to
do so following his confirmation.
I want to congratulate Lynn and Elizabeth and their family on this nomination.
The people of Wisconsin, in my view, deserve nothing less than the best when it
comes to those who sit on the federal bench in our State. I believe Lynn Adelman
meets this high standsird. I give my strongest possible support for the nomination
of Lynn Adelman and I look forward to working with you and other Members of the
Committee as this nomination moves through the Committee and the fiill Senate.
Thank you.
Senator Feingold. I would also like to ask that in addition to
the letter from Governor Thompson, which Senator Kohl had
placed in the record, I have a number of letters of support from
people all across our State, Democrats and Republicans alike, in-
cluding Jim Doyle, our attorney general, and many of Lynn's Sen-
ate colleagues, such as Republican State Senator Michael Ellis. I
ask that these letters be placed in the record at this time.
Senator Kyl. Without objection, so ordered.
[Senator Feingold submitted the following letters:]
925
COPY
United States District Court
Oiamttrs of Eastern District of Wisconsin
John W. Reynolds 296 U.S. Courthouse (4 14) 297-31 88
Judge 517 E. Wisconsin Ave. fax (414) 297-3191
Milwaukee, Wisconsin 53202-4583
January 9, 1997
WISCONSIN FEDERAL NOMINATING COMMISSION
Dear Commissioners:
I am pleased to be able to recommend and attest to the
qualifications of Lynn Adelman for the vacancy on this court. I have
known Lynn for almost thirty years, during which time he has
practiced law in this court, devoted his life to public service as a
member of the State Senate, and he has been a good friend. He is
a very capable and dedicated human being.
He would bring to the position not only the dedication and
commitment to justice, but a judicial temperament and a sensitivity
to the rights of human beings. And so, it is a pleasure for me to
recommend him for this position.
Sincerely yours.
^-^t^"^ «^-<3i>-^Y--.-*^C4-
John W. Reynolds
Judge
926
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
JAMES E. DOYI-E ' '■* £"<• State Capitol
ATTORNEY GENERAL PO. Boi 7857
Madison. WI 53707-7857
Bumeatta L. Bridge 608^66-1221
Deputy Attoroey General V/TTY 608/267-8902
January 13, 1997
Wisconsin Federal Nominating Commission
Dear Committee Members:
I understand that Lynn Adelman has expressed an interest in
being appointed as a federal judge for the U-S. District Court,
Eastern District of Wisconsin. I have known Mr. Adelman for many
years, as a lawyer, a legislator and a friend.
As an attorney in private practice, I worked together with Mr.
Adelman on several matters. As Attorney General, I have been on
the opposite side from Mr. Adelman in a number of important issues.
Most notably, Mr. Adelman and I argued the opposing positions
before the United States Supreme Court in State v. Mitchell, the
challenge to Wisconsin's hate crimes statute.
Mr. Adelman is an attorney of great skill, creativity and
tenacity. His legal work, as a litigator, writer and legislator,
manifests his strong commitment to the Constitution. While a
strong litigator, he has always shown courtesy and respect for the
other side. He has an inquisitive mind with the ability to clearly
analyze a legal issue. I believe that he would be a fine judge.
Mr. Adelman' s legislative career has also shown his devotion
to the law. He has been the main architect of Wisconsin's statutes
designed to curb drunk driving; he has been the acknowledged
legislative leader in the area of open meetings and public records;
he has been committed to ensuring that Wisconsin courts are
accessible to the people of this state -
Thank you for your consideration- If I can provide any
further information, please let me know.
Sincerely
JED : j s
927
January 17. 1997
Wisconsin Federal Nominating Committee
Dear Members of the Committee:
It is my understanding that your office is currently in the process of screening candidates to
fill a vacancy on tlie United States District Court for the Eastern District of Wisconsin. I am writing
to strongly encourage the consideration of Wisconsin State Senator Lynn Adflman for an
appointment to this Court.
The Wisconsin Coalition Against Domestic Violence has been involved in policy
development at the state legislative level lor over llfteen years. We have promoted passage of
victims rights' laws as well as proposals to provide safety and protection for battered women and
their children. There have been occasions when our opinions as victims rights' advocates and those
of Senator Adelman have differed. However, Senator Adelman has been consistent in his
representation of the position that we will never gain rights for one segment of society by taking
away the rights of another segment of society. His reputation for being a friend of the Constitution
precedes him wherever he goes. Senator .Adelman has always maintained integrity, regardless of
the power and influence of the opposing view.
We have worked with (and sometimes in opposition of) Senator Adelman on a number of
occasions. With each experience we ha\'e left with a greater appreciation and respect for the need
to balance the constitutional rights of all persons. This was evident as we worked on developing a
"stalking law" for Wisconsin. After intense negotiations with many powerfiil groups, it was Senator
Adelman's revision that gained our support and, in the end, passage. Regardless of whether or not
his stand was popular, it always reflected the need to acknowledge the rights of all participants in
our system of justice.
The Wisconsin Coalition Against Domestic Violence wholeheartedly endorses Senator
Adelman's consideration for a federal judgeship. If he is selected, our only regret will be our loss
of a fine statesman in the Wisconsin State Senate.
^•^ ^^^
1400 EAST WASHINGTON AVENUE 1 SUITE 232 | MADISON. WISCONSIN 53703
608|255|0539 | FAX: 608(255 | 3560
928
UNIVERSITY OF
WISCONSIN
MADISON
February 25, 1997
Wisconsin Federal Nominating Commission
c/o George Brown
State Bar of Wisconsin
402 W. Wilson St.
Madison, WI 53703
Dear Members of the Commission,
Wisconsin State Senator Lynn Adelman asked if I would write to
the Commission to describe my experience in working with him on
substantive legal issues. I am happy to do so.
Over the past five or ten years I have had several
opportunities to work closely with Sen. Adelman on criminal law
issues. He has taken a strong interest in several questions of
substantial importance, such as the revision of sexual assault
laws, modification of the so-called rape shield statute, and review
of the need for legislation relating to battered spouses. On each
occasion. Sen. Adelman's interest and understanding of the
substantive issues has impressed me very favorably. He has shown
a solid grasp of complex legal issues and an ability to engage in
the often difficult work of translating policy judgments into
statutory language that will carry them out. This indicated to me
not only a high degree of interest and commitment, but also the
ability of a first-rate lawyer to understand challenging problems
and to propose solutions for them. Of equal importance, he showed
great fairness in attempting to balance the interests of victims
and defendants.
My experience with Sen. Adelman has been limited to working
with him on criminal law issues like those mentioned above. With
respect to those issues. Sen. Adelman has demonstrated substantive
knowledge and legal ability that indicates he would be well
qualified to address then as a federal district judge.
Sincerely,
David E. Schultz \)
Associate Dean
Professor of Law
Continuing Education and Outreach
Law School
975 Bascom Mall, Room 2348 Madison, WI 53706-1399 608/262-3833 1-800-355-5573 FAX; 608/263-3472
929
MllllfSllLrOO ■ ^?: - OFFICE: 1840 N. FARWELL AVENUE (SUITE 400) MILWAUKEE, Wl 53202
I I WQU t\CC /-TfeS.. PHONE: 14141 273-2515
POLICF
Bradley OeBraska William P. Ward Patrick Doyle >
President Vice-Presidenl Secretary/Treasurer
A^SOf iSfrlOn ^^-*^^«^ Trustees:
' »«-'»-'>-'^'*-'LIV^II <3^,c;- Gary J. Brazgel John P. Harrington Edward Heidemann James Nisiewicz
Local »2I lUPA-AFL-CIO David Stelter Michael J. Zivicki
Office Secretaries:
Debra Schneider Candy Mahler
FAX: (414) 273-7237
COPY
March 17, 1997
Senator Herb Kohl
330 Hart Senate Office Building
Washington, DC 20510
Attention: Jon Liebowitz
Senator Russell D. Feingold
502 Hart Senate Office Building
Washington, DC 20510
Attention: Susanne Martinez
Dear Messrs. Kohl and Feingold:
This is to let you know of our support for the
appointment of Lynn Adelman to the vacant judicial post in
the Eastern District of Wisconsin. Our organization knows
Lynn Adelman well both as a senator and as an attorney who
has frequently represented police officers.
Lynn Adelman would make an outstanding district court
judge. He is a street-smart, no-nonsense type of person.
He is tough on crime, and he would follow the law. You can
be sure the Lynn Adelman would not be a judicial "activist."
He has great respect for the law and for the proper roles of
the different branches of government.
If I can provide any additional information please do
not hesitate to call.
Sincerely,
MILWAUKEE POLICE ASSOCIATION
Bradley DeBraska
President
Local #21, lUPA, AFL-CIO,
930
Karen M. Ordinans
Milwaukee County
Chairman
County Board of Supervisors
March 25, 1997
The Honorable Mr. Clinton
President of the United States of America
1600 Pennsylvania Avenue
Washington, D.C. 20515
Dear President Clinton:
1 am writing to express my support of the nomination of Wisconsin State Senator Lynn Adelmjin
to the United States District Court - Eastern District of Wisconsin.
I have known Senator Adelman for ten years and have always found him to be hard working,
honest and fair. The qualities that have made him an excellent lawmaker— analytical thinking,
balance, and a commitment to the common good-will serve him well in the Judiciary. The type
of unbiased, thoughtfiil deliberation that Lynn has brought to the legislature will be an asset on
the Federal bench.
While the State of Wisconsin will miss his leadership and expertise, the United States of
America will gain a genuine public servant who values her Constitution and the rights and
responsibilities of her citizenry. I give Lynn Adelman my endorsement and respectfully request
that you give every consideration to his nomination.
Sincerely,
Karen M. Ordinans
Chairman
Milwaukee County Board of Supervisors
KMOswr
^OpWi 201, COUMCHpU5E •. 901 NORTH 9TH STREET • MILWAIJKEE, WISCONSIN 53233 • TELEPftbNE ^f^'^i?! VFAjH^iri??^
Slwnft
LeverGlt F. Baldwin
March 26, 1997
931
County ol Milwaukee
Office of the Sheriff
821 West State Street • Milwaukee, Wisconsin 53233 • 414-278-4766
/
The President
The White House
1 600 Pennsylvania Avenue
Washington, DC 20500
Dear Mr President:
I am writing in support of Senator Lynn Adelman's candidacy for appointment to a federal
judgeship in Milwaukee
1 have personally known Lynn Adelman for many years and highly recommend him for this
position The Senator would bring honesty, integrity and compassion to the Federal Bench
Any consideration you can give toward the Senator's appointment would be greatly appreciated
Respectfully yours,
Leverett F. Baldwin, Sheriff
Milwaukee County, Wisconsin
LFB/jmk
cc: Senator Lynn Adelman
Service to the Community Since 1835
932
PATRICK T SHEEOr
ChMlJudge
Tslephone (414)278-51 12
THOMAS P. OOHERnr
0«puty ChMt Judge
Talaphone (414)276-5113
FREO R. COOPER
Distilct Court Administmor
ralaphont (414)278 5113
MICHAEL G. NEIMON
Assl. Omhd Coud Administralor
T1«phon« (414)278-5113
STATE OF WISCONSIN
FIRST JUDICIAL DISTRICT
MILWAUKEE CX)UNTY COURTHOUSE
901 NORTH NINTH STREET, ROOM 609
MILWAUKEE. WISCONSIN 53233-1425
FAX (414) 223-1264
March 27. 1997
Mr. Charles Ruff
Counsel to the President
The White House
Washington, D.C.
Dear Mr. Ruff:
I have known Lynn Adelman for many years. At this time, I know he has been in
practice for 29 years; and I believe that I have had dealings with him during all those years.
Lynn is an excellent State Senator and an excellent attorney. Lynn practices in all areas of law
and does an extremely creditable job.
Also, I have had opportunities to examine his briefs, and they are done in a scholarly
manner. I certainly believe that he would be an asset to any court.
In addition, his interest in the administration of justice is laudatory. This is a prerequisite
of a good ju^g^iSday.
1 free to call upon me if you wish further information.
Very truly ygt^s,
j^Patrick T. Shed^y
Chief Judge
PTS:mm
933
Assembly Speaker
BEN BRANCEL
April 2, 1997
Mr Charles Ruff
Office of Wfiite House Counsel
The Wfiile House
IGOO Pfinnsylvania Avenue. N W
Wasfiiogton, DC P0500
Dear Mr. Ruff
Tttis letter serves to endorse the nomination of Senator I ynn Adolrnan to fill tin;
vacancy on the United States District Court in the Eastern District of Wisconsin
I have served in the Legislature with State Senator Lynn Adelman for many
years. Altfiough we differ on many issues, Senator Adelman would bring to the court
much experience Lynn is a legislator and an attorney who not only does his
homework, researching issues in depth, but is able to articulate his position well
The experience he has gamed serving on the Senate Judiciary Committee as well as m
Ills private law practice would be an asset to the court. Lynn certainly has the
qualifications and credentials needed to be a federal judge.
Please know, that if President Clinton decides to nominate I ynn Adelman to fill
the vacancy in the Eastern District, I will do whatever I can to insure his spr^edy
confirmation.
Very truly yours,
Ben Brancel
Speaker
BB;
cc: U.S. Senator Russell i eingold
U S Senator Herbert Kohl
'.•L ■ Poji Or^ict Bo" n*»*i7. '
934
33rd District Marga|fe|SA|yFarrOW state senator
April 3, 1997
Mr. Charles Ruff
Counsel to the President
The White House
1600 Pennsylvania Avenue
Washington, DC. 20500
Dear Mr. Ruff:
As a leader in the Republican caucus of Wisconsin's State Senate and as a local official
prior to this role, I have known Lynn Adelman as an individual who is dedicated to the
law and its significance in the lives of our citizens. He has been a zealous defender of the
rights of people in the manner in which law and government affects their lives.
His Senate district is contiguous to mine and we have worked together on a number of
issues in a true bipartisan manner.
I would encourage your serious consideration of him for an appointment to the Federal
Bench in this district.
Sincerely,
Senator Mifgaret Farrow
Republican Caucus Chair
OFFICE: PC Box 7882. Madison. WI 53707-7882 • 608-266-9174 • Toll-free. 1-800-863-8883 • E-mail: Sen.Farrow<9lcgis.slatt.wi US
LEGISLATIVE HOTUNE (toll-ftce): I -800-362-WlSC (9472)
Pilnlcd on Recycled Paper
935
Wisconsin Senate Assistant Republican Leader
Senator Brian O. Rude
-ApnlTI7T997
Charles Ruff
Counsel to the President
The White House
Washington, DC 20500
Dear Mr. Ruff:
I am writing to you today on behalf of State Senator Lynn Adelman, my colleague in the
Wisconsin State Senate. I support the nomination of Senator Adelman for the position of District
Court Judge in the Eastern District of the State of Wisconsin. I believe Senator Adelman would be an
excellent choice for this position.
I am a Republican State Senator, while Senator Lynn Adelman is a Democrat. We differ on
many issues, and bring different philosophies to our work in the Legislature and to the political process
in general Yet, 1 admire Senator Adelman for his tenacity, his honesty, his incredible level of energy
and hard work, and most of all for his willingness to speak out for the issues he believes in. The
qualities 1 have seen in his legislative work are qualities which I believe would translate into an
excellent background for the judiciary, specifically for the position of District Court Judge in the
Eastern District.
Senator Adelman has never been one to shy away from tough or controversial issues. He votes
his conscience, even when it is clear he is in a distinct minority There are times when his actions in
Legislature are very unpopular, and yet he always carries through with the causes, concerns and
philosophies he believes in. This dedication to principle, philosophy and values would serve Senator
Adelman well were he to become a judge.
Thank you for the opportunity to comment on this nomination. I believe you would find
Senator Adelman to be a thoughtful and effective judge. It would be a fitting tribute to his many years
of service to the people of Southeastern Wisconsin if he were to continue that service by becoming a
judge. I think he would be a very strong appointment which would be universally praised on both sides
of the aisle and by the people of our state.
I would welcome the opportunity to personally discuss the appointment of Senator Lynn
Adelman to this distinguished post. .
Briarr D. Rude
State Senator
BDR/mq
Madison Office PO Box 7882. Madison. Wl 53707 7882 ■ (608) 266 54901 Fax (608) 267 5173
OiSIf kl OITicc llSSIh Avenue South. §4 14. La Ctosse. Wl 54601-40181(608) 789 4607
Toll free I (800) 385 3385 I E mail Sen Rude@leeis stair wi ii<
936
Executive Director
Jan Steinbergs
Wisconsin Troopers' Association, inc.
PO Box 769 • East Troy. Wl 53120
1-800-2321392
April?, 1997
Charles Ruff Counsel to the President
White House
1600 Pennsylvania Ave
Washington, DC. 20510
Dear Mr. Ruff,
1 has come to my attention that Wisconsin State Senator Lynn Adelman is under consideration
for appointment to the judicial vacancy in the Eastern District While I do not always agree with
Senator Adelman's position on various issues, I do know him to be an individual of uncommon
deiermmation, integrity, courage and hard work. His reputation as a fighter against all odds has
me conclude that he is a person of powerful commitment. If the criteria for selection include any
of the above. Senator Lynn Adelman would be the choice.
Sincerely,
/j
//Jan Steinbergs
NTC
Proud Member of the National Troopers Coalition
937
MICHAEL G. ELLIS
SENATE REPUBLICAN LEADER
I9TH SENATE DISTRICT
April 8, 1997
Charles Ruff
Counsel lo the President
1600 Pennsylvania Avenue
Washington, DC 20500
Dear Mr. Ruff;
I am writing to offer my recommendation and support for Wisconsin State Senator Lynn Adelman for the
appointment to District Court Judge in the Eastern District of Wisconsin
Lynn Adelman and I have been colleagues in the Wisconsin Legislature for more than 20 years We
belong to different political parties and we have not always seen eye lo eye on the issues we have debated
over the years Whether or not we have agreed on a particular issue, however, I have always considered
Lynn lo be a highly principled, honest and intelligent public servant
Lynn Adelman possesses an independent, but decidedly principled, spirit that I believe makes him uniquely
qualified lo be a judge This has been demonslraled repeatedly as he. a good Democrat, has been elected
and reelected by a heavily Republican constituency
In the Legislature. Lynn Adelman always judges an issue on its ments before considering partisan matters.
He has been a Senate leader in such areas as demanding high ethical standards for government and
protecting free speech and other civil liberties
I believe Lynn Adelman has all the qualifications and more to serve as a federal judge. I am convinced he
is as deserving of this appointment as anyone else you may consider Lynn Adelman will make a fine judge
and I do not hesitate lo offer my strong recommendation for such an appointment.
Thank you for your consideration If you have any further questions, please let me know.
MICmCLTi ELLIS
Republican Leader
Wisconsin State Senate
MGE/mfb
The Honorable Senator Orin Hatch
The Honorable Senator Herbert H Kohl
The Honorable Senator Russell D Feingold
Home OfTice: 101 West Canal Street. Neenah. WI 54956 • 414-?a9-480l
Capitol Omce: P O. Box 7882. Madison. Wl 53707-7882 • 608-266-0718
938
Wisconsin. State Senator
April 8, 1997
Mr. Charles Ruff
Counsel to the President
White House
1600 Pennsylvania Avenue
Washington, D.C. 20500
Dear Mr. Ruff:
I am a Republican State Senator representing the northern portion of Milwaukee County
and parts of Waukesha, Washington and Ozaukee Counties. Lynn Adelman and I have
worked together in the state legislature for over six years. I have the highest regard for
his legal expertise and integrity. Lynn would be an astute, conscientious and effective
judge on the United States District Court, Eastern District of Wisconsin.
During our time in the legislature together, Lynn and I have had our disagreements yet I
respect his vast knowledge of judiciary and consumer matters. Lynn has been a
passionate and articulate advocate for consumers and open government. He is one of the
few practicing attorneys in the Senate and brings an applied knowledge to many laws
being debated.
In addition, the fact that he has been re-elected five times to a conservative. Republican
majority district speaks highly of his respect from and ability to work with people from
all political persuasions.
Lynn Adelman is a consummate student and practitioner of good law and good
government. I have every reason to believe that he will continue to uphold the highest
standards of law in a court. His unique perspective as a lawmaker and practicing attorney
make him an excellent candidate for the opening on the U.S. District Court.
Sincerely,
Alberta Darling 0
State Senator
g"" Senate District
'^°°°'"«~ Cjpliol otikt: pymaonto: Hoa»:
Educailon and niunclal Inslllullons. Chair PC Bo» 7882 PO Box 1 7952 1325 Wtel Dun Road
Judiciary Madison. Wisconsin. 53707-7882 MIlwaukM. Wl 532I7<I952 River Hills. Wisconsin. 53217
Business. Economic Development Phone, 608-266-5830 Phone; 414-352-7877 414052-0390
and Urban Allairs Fax 608-266-7038 Fax: 414-352 2818
Slate & Federal Relations Toll-tree l-80t>^63-l 113
Joint Committee lor the Review ol
939
REPRESENTATIVE
FOTI
Assembly
Majority Leader
April 8. 1997
Mr. Charles Ruff
Office of the White House Counsel
The White House
1600 Pennsylvania Avenue, N.W.
Washington. D.C. 20500
Dear Mr. Ruff:
Legislative Hotline:
I (8001 362 9472
Home:
1117 DicWNS Diuvi
OcONOMOwoc. Wl S3066
(4M) 567-5324
This letter endorses the nomination of State Senator Lynn Adelman to fill
the vacancy on the United States District Court in the Eastern District of
Wisconsin.
Through his tenure in the State Legislature, I have had the opportunity to
work with Senator Adelman on several issues facing Wisconsin. I have
found Senator Adelman to be a judicious legislator who is responsive to
his constituents. In addition, he has consistently demonstrated a zealous
attention to detail that serves him well as a legislator and as an attorney.
His talents and strengths would match the requirements of a federal judge.
Sincerely,
Madison Office:
Room 215 West
SlATl Catitoi
STEVE FOTI
Wisconsin State Representative
Assembly Majority Leader
Daniel M. Finley
County Executive
940
Waukesha
COUNTY
OFFICE OF COUNTY EXECUTIVE
Aprils, 1997
Charles Ruff
Counsel to the President
The Whitehouse
Washington, D.C.
Dear Mr. Ruff:
1 am pleased to offer my strong recommendations on behalf of Wisconsin State Senator
Lynn S. Adelman for appointment to the position of District Court Judge in the Eastern District
of Wisconsin. He will make an outstanding jurist.
Senator Adelman has long been a champion of open government and justice related
issues. Wisconsin state government reflects the many victories that Senator Adelman has won in
making us more open and responsive to the people and to the rights of individuals.
He has served Waukesha County well in the Wisconsin State Senate. He has, for the
better part of his time in public office, been the only Democratic representative from this highly
Republican County. He has always persevered because of his strong record of service to his
constituents and thoughtful law making. As a Republican myself, 1 am proud to support his
nomination.
If I can offer any further help to you in this selection process, please don't hesitate to
contact me. Senator Adelman has been a great champion in his career for the cause of good and
open government and would make an excellent jurist for the Eastern District.
Sincerely,
Daniel M. Finley /
County Executive u
DMF:sh
1320 Pewaukee Road
Waukesha. Wisconsin 53188
(414) 548-7902
Fax: (414) 548-7913
TDD (414) 548-7903
941
SCOTT KLUG
SlCOW OS"*'- WiKON!
COMMERCE COMMITTEE
Congrfgg of tt)c Unitfb ^tatc£^
jK^ousc o( i^cprcsrntatibcs
JBSHagljington. ffiC 20515^902
April 9, 1997
Mr. Charles Ruff
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. Ruff:
I am writing on behalf of State Senator Lynn S. Adelraan.
Senator Adelraan has been recommended to the President for
nomination to a federal district judgeship for Wisconsin's
eastern district.
Senator Adelraan has served in the Wisconsin State
Legislature since 1976. During that time, he has been a member
of the Senate Judiciary Committee, where he has earned a
reputation as a strong, aggressive advocate of the judicial
system. He is widely recognized as someone who is hard working
and scholarly. He's willing to extend a cooperative hand to find
a balance in making public policy decisions and has the kind of
studious teraperament that would make him an excellent judge.
Thank you for your time and consideration of my comments.
Sincerely,
,^l>u^ ■
PLEASe RESPOND TO
□ 1113 Lo«Gwo«iM Mouse Orrm Buio
WASKmcTOM. OC 205 15-4902
(?02) J»-»06
Q 16 No*»rH Ca»ihoh Si
Room 600
Maoison.WI 53^03
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THOMAS E. PETRI
944
Congress of tfjc WinittXt States
^oujfe of JRcprcsfentatitjEg
OTaStjington. 30«t 20515^906
April 14, 1997
Charles Ruff
Counsel to the President
The White House
Dear Mr. Ruff,
I am writing to support the candidacy of Lynn Adelman for appointment to the US
District Court for the Eastern District of Wisconsin. I have known Lynn for nearly twenty
years and have worked closely with him for three of those years.
While Lynn and I have our political differences, he has my respect.
Lynn Adelman is honest, bright and conscientious. I believe he has the brc.idth of
experience, intellect and judgment to be a fine judge for the Eastern District.
I strongly urge you to recommend his selection by the President.
Petri
Member of Congress
945
Wisconsin Professional Pouce Associahon
April 16, 1997
The Homxsble Russell D. Feingold
United Sutes Senate
S02 Hart Sonats Office Building
Washington, DC 205KM904
Dear Senator Feingold:
On behalf of tbe 7000 members d(\tbe
this opportunity to recommend S<
Appeals seat for the 7th Circuit
'olicc Association, I want to take
e vacant United States Court of
We have worked with Smator/Aoelman ^f^^SS^KI^ for,a>ntl^^ber of years aixl as an advocate.
We have found him to be a coilsti^tiouS,lnj^^^^m'iMe t^^iA^ with groups of people with
diverse points of view aiKlreaciikamtet^uspA, '(^c.
Here in Wisconsin, Senalor Adehnan hkk^^
urge you to sedously consider him for tfae^
Thank you for yotv considetalion.
~" Sinoerely.
John B. Chaiewicz
President, WPPA
JEC:jep
cc: Senator Adebnan
L man of sincerity and integrity. We
I of Appeals Position.
Ceiunl Openbons: 7 N. Pindoiey Street f220 • M<<iuon, Wl S37CD • (tOB) 2S603M • 1-800-367-8838
Lm Enfrwra>efU Employee Relations: 9730 W. Bluemnind R<Md • Vtbuwatou. Wl S3Z26 • (414) 257-4000 • 1-aOO-236-«00?
946
Professional Fire Fighters of Wisconsin, Inc.
7 North Pinckney Street • Suite 135 • Madison, Wl 53703-2840 • 608/251-5832
Fax 608/251-8707
MarkD. Zeier Michael Dobish Rick Gale
state President State Vice President State Sec. Treas
April 17, 1997
CHARLES RUFF
COUNSEL TO THE PRESIDENT
THE WHITE HOUSE
WASHINGTON DC
Dear Mr. Ruff:
It is with great entfiusiasm that I write to express the recommendation of the
Professional Fire Fighters of Wisconsin for State Senator Lynn Adelman for the position
of District Courl Judge in the Eastern District of Wisconsin.
We have worked well with Senator Adelman throughout his long and distinguished
career in the Wisconsin State Legislature. He has been a tireless advocate for working
people, and has authored landmark legislation in the fields of ethics, marital property
and open records.
His public service background alone would not be sufficient, however, to recommend
him for a position as a District Court Judge. As an attorney. Senator Adelman has
demonstrated the courage and commitment to stand up for his progressive phnciples.
His leadership in such cases as the overtuming of the "gag rule" for public employes,
and the challenges to the bail and hate crime provisions of state law, establish his legal
credentials very well.
We are honored that you would consider our opinion on this matter, and we urge you to
strongly consider Senator Adelman for this position.
Sincerely,
Mark D. Zeier
State President
947
R05ENZWEI(3
State Senator. 5th Senate District
April 28, 1997
Charles Ruff
Counsel to the President
The White House
1600 Pennsylvania Avenue
Washington, DC. 20500
Dear Mr. Ruff;
1 heartily recommend Wisconsm State Senator Lynn Adelman for appointment to the
United States District Court's l:asicrn District of Wisconsin judgeship.
Though Senator Adelman and I sii on opposite sides of the partisan aisle, I have greatly
admired his independence aiui sense of fairness during my 15 years in the Wisconsin
Legislature His ability to Lonsidcr all sides of an issue without preconceptions or
personal bias would be a line assei on the federal bench. He brings the demeanor of a
judge to eacli legislative session aiul hearing, and he commands the same measure of
respect. No Wisconsin lawmaker kiuiws more about the law.
Lynn Adelman's appointment would be applauded by conservatives and liberals.
Republicans and Democrats alike He merits your utmost consideration.
Sincerely
vZ5 V^
PEGGY KOSENZWEIG "^ O
PEGGY Kq^ENZWEIG
Slate Senator - Wisconsin
5th District
PR/rs
Slate Capitol PO Box /882. Madison. Wl 53707-7882 608 266-2512
6236 Upper ParkMit North Wauwalosa. Wl 53213 414 258 4664
948
Fred Risser
:?!JU^
President
Wisconsin State Senate
May I, 1997
Charles Ruff
Counsel to the President
The White House
1600 Pennsylvania Avenue
Washington, DC 20500
Dear Mr. Ruff,
I am writing to express my strong support for the appointment of Lynn Adelman to the
judicial vacancy in the United States District Court in the Eastern District of Wisconsin.
I have served with Senator Adelman in the Wisconsin Senate since he was first elected in
1976 During most of that time, I have also served as President of the Senate. While Lynn has
chaired the Judiciary Committee, he has been an integral part of the Democrats' leadership team
in the Senate and I have worked closely with him m developing our caucus' legislative agenda. I
have always found Lynn to be a thoughtful and hard-working legislator deeply committed to
Democratic principles, and I think that Lynn will make an excellent federal judge.
Although Senator Adelman will be sorely missed in the legislature for his attention to
detail and ability to forge compromises on difficult issues, his talents and background certainly
qualify him to serve as a judge. I am pleased to provide any additional information about Senator
Adelman's qualifications for the federal bench.
jx3>--i
Risser
Senator
Senate District
P.O Box 7882, Madison. WI 53707-7882 •
(608) 266-1627 E-Mail: Sen.Risser@legis.state.wi.us • Fax (608) 266-1629
Prtnled on recycled paper
949
COUNTY EXECUTIVE
JEAN M JACOBSON
RACINE COUN
, '931
730 VVisconsm Avenue
53403
PHONE 4M-636-31 18
Racine. County Courthouse Toll Free
1-800-242-4202
May 1, 1997
Charles Ruff
Counsel to the President
White House
Washington, D.C.
Dear Mr. Ruff:
I am writing to endorse the appointment of Lynn Adelman to serve as a
judge in the Eastern District of Wisconsin. State Senator Adelman is
thoughtful, hard-working and honest. He has served our district with
distinction in the State legislature, and he would serve with distinction as a
federal judge.
Thank you for your consideration of my recommendation.
Very truly yours.
Jean M. Jacobson
County Executive
Racine County Uses lOO°/o Recycled Paper
4S.QA^ QB
950
State of Wisconsin
Lieutenant Gk)vernor sco« McCaiium
Ijculcnajii Governor
State Capitot. Room 22 East • Madisoa, Wisconsin 53 AJ2
608/266 3516 Fax 267 3571
Mays, 1997
Charles Ruff. Counsel to the President
The White House
West Wing. 2"" Roor
1600 Pennsyivaiua Avenue. N W
Washington. D C 20iOO
Dear Mr Ruff
1 am writing to reconrxnend State Senator Lynn S Adelnun for appointment to the
United Stales District Coun for the F-astem District of Wisconsin Senator Adelman's
background and expenence make him eminently qualified for this judgeship
I have known I.ynn Adelman since 1976 when we both were elected to the
Wisconsin State Senate Through the last several years Senator Adelman has served as
chairman or ranking minority leader of the Senate committees related to the judiciary
Furthermore, he has long been actrve in revising and updating the laws of this state
Cuncntly. he is working toward the recodification of Wisconsin's criminal laws Lynn
Adelman's intellect and abilities are respected by his colleagues on both sides of the aisle
Given his long and distinguished service to the State of Wisconsin and his
thorough knowledge of the law, I beheve Lynn Adelman is an excellent and logicaJ
candidate for the federal bench Therefore, I urge the Clinton Administration to give
Senator Lynn S Adelman scnous consideration for appointment to the I ) S Distnct Court
for the Eastern District of Wisconsin
Thank you for your attention to this matter
/^incerely,
l^^con McCallum
lieutenant Governor
951
Senator Kyl. The Chair will announce at this time that the
record will remain open for 3 days for submission of any material
that the members would like to submit.
On the assumption that these are the two introductions of Mr.
Adelman, Mr. Adelman, would you please stand so at least we can
all see who these nice words have been spoken about. We will call
you forward in a moment. I thank both of the Senators from Wis-
consin for that introduction.
Since we have another member of the committee, and I see at
least one House Member, from the State of Illinois for the purpose
of making introductions of the Illinois nominees, Senator Durbin,
could I ask you to make the next introduction, please?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator DuRBlN. Mr. Chairman, can Congressman Evans join me
at this point?
Senator Kyl. Yes; he certainly can. Representative Evans from
Illinois, as well.
Senator DURBIN. Thank you, Mr. Chairman and members of the
Judiciary Committee. It is my pleasure to introduce to you two
nominees for the Federal district courts in Illinois, Michael
McCuskey and Pat Murphy. Judge Michael McCuskey is the nomi-
nee for the central district and Pat Murphy is the nominee for the
southern district. Both men possess the necessary qualities to
make outstanding judges.
In an effort to abbreviate my remarks, to follow the chairman's
admonition, I would only add that Senator Carol Moseley-Braun
and I went through an extensive process, entertaining nominees
from across the State for the various vacancies, and after their
clearance by a commission, professional commission, we narrowed
it down to these two finalists in central and southern Illinois, I
think for good reason.
I think they bring more than legal ability to the job. Mike
McCuskey is well known throughout central Illinois and Peoria for
his work with children in local grade schools and reading projects
and also with senior citizens. Pat Murphy, we came to learn during
the course of our review of his background. He is not only a veteran
but really gives of himself unstintingly on behalf of veterans and
he has a policy in his office — ^you do not make much money with
this policy, but he has given local veterans pro bono representation
whenever they walk through the door.
Indeed, if you hear their stories, you can understand why Sen-
ator Carol Moseley-Braun and I were so impressed. Pat Murphy
was born and raised in Marion, IL. He enlisted in the Marine
Corps at the age of 17. He arrived in Vietnam to celebrate his 18th
birthday, where he served a tour of duty as an enlisted man in the
1st Marine Corps weapons platoon. When he returned to Illinois,
he earned his college degree and law degree with the help of the
G.I. bill, and after both his parents passed away, he helped to raise
his four younger siblings, although as he puts it, they all raised one
another.
Since beginning to practice law, Mr. Murphy has tried almost
100 cases before juries and another 200 before the bench. He has
952
represented banks, municipalities, school boards, insurers, and in-
dividuals in both civil and criminal matters. Mr. Murphy is mar-
ried and has three children. I am sorry that they could not be here
with him today. Two are in school, one of them has to be at work,
and Mrs. Murphy is at home keeping an eye on the kids.
Mike McCuskey's story is no less impressive. For the last 9
years, he has served as a State court judge, for 2 years a circuit
judge in the 10th judicial district, and since 1.990, been a justice
with the Third District Appellate Court. Born in Peoria, before
going to law school, he worked for the local high school as a history
teacher and a baseball coach. During law school, he paid his bills
by working as a security guard. After graduating, he started his
own law firm.
Judge Mike McCuskey has an extraordinary reputation. I am
sure that Senator Carol Moseley-Braun was struck, as I was, by
the type of people who came forward to say, this man is fair, he
is firm, he has exactly the kind of temperament that we need on
the Federal bench. His family could not be with him today, but he
has a wife and two children and the children are in school and his
wife is home with them.
I am pleased to introduce these two individuals and to defer to
my colleague here. She will reiterate, I am sure, the need to fill
these vacancies as quickly as possible. In the Southern and Central
District, we have four judges allocated for each and two vacancies
in each of the districts, so they have been declared judicial emer-
gencies. I think it is very important that we move forward as
quickly as we can and I am pleased that we could bring two such
qualified nominees to the committee for consideration.
Senator Kyl. Thank you very much. Senator Durbin.
We are now joined by Senator Moseley-Braun. Would you like to
make the next introduction?
Senator Moseley-Braun. I would, Mr. Chairman. However, Con-
gressman Evans, who is here to speak on behalf of the nominees,
has a vote on the House side and I would just as soon let him go
forward.
Senator KVL. I would be happy to defer to Lane Evans.
STATEMENT OF HON. LANE EVANS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Evans. Thank you. Senator. Thank you, Mr. Chairman.
I am very proud to be here to testify in support of the nomination
of Michael McCuskey for U.S. district judge for the Central District
of Illinois. I have known him for over 16 years as a former constitu-
ent, as a lawyer, and as a judge. I believe he possesses the skills
and background we seek in Federal judges.
The Peoria Journal Star called his performance as judge of the
10th Judicial Circuit of Illinois exceptional. He was recognized for
running a fast-paced courtroom. He has worked long hours to re-
duce the backlog of criminal cases. He dispensed tough sentences
and always considered the rights of victims. He insisted on court-
room order, but he was also known for his engaging personality.
These qualities are the reasons he received the highest score of
all attorneys in 21 Illinois counties in a poll of candidates for the
appellate and supreme court judge positions. On the appellate
953
bench, Judge McCuskey has continued to display great legal skill
and made important contributions to the administration of justice.
In 1991, the supreme court appointed Judge McCuskey to the ad-
ministrative committee of the Illinois court. He also was selected
to serve as presiding judge of the third appellate district during
1993. His public speaking appearances, particularly in the area of
criminal law, demonstrate the high respect fellow judges and the
bar have for his skills and legal ability. A graduate of high school
with only a senior class of 16 students, he knows the value of hard
work. A former teacher and coach, he understands the importance
of rules and the impact law has on citizens and communities.
He is an excellent choice for the Federal bench. I salute my two
Senators for nominating him and I know he will be a great judge.
Thank you, Mr. Chairman.
Senator Kyl. Thank you very much. Representative Evans.
Senator Moseley Braun.
STATEMENT OF HON. CAROL MOSELEY-BRAUN, A U.S.
SENATOR FROM THE STATE OF ILLINOIS
Senator Moseley-Braun. Thank you very much, Mr. Chairman.
I am very pleased to be here this afternoon as the Senate Judici-
ary Committee considers the nominations of G. Patrick Murphy
and Michael McCuskey, both nominees for the U.S. District Court
of Illinois. These two men represent the highest caliber of public
servants. They are here today because they possess the legal cre-
dentials, the experience, and temperament necessary to serve as
Federal judges. I believe that their broad legal backgrounds will
help them serve the litigants of Illinois, as well.
As you may know, Mr. Chairman, Senator Durbin and I estab-
lished a judicial nominations commission to help us locate the most
qualified persons to fill vacancies on the Central, Southern, and
Northern District courts. The commission publicized the U.S. dis-
trict court vacancies widely, thoroughly considered the question-
naires of all the applicants, extensively interviewed and inves-
tigated the candidates, and recommended three candidates to us
for each of the two vacancies. After this extensive process, our per-
sonal interviews, we personally interviewed the finalists for each
vacancy and we were pleased to forward to the President the
names of Mr. Murphy and Judge McCuskey.
As you have heard already, G. Patrick Murphy is a Vietnam vet-
eran whose level head and sound moral judgment have shaped his
legal reputation. During his 19 years in private practice, Mr. Mur-
phy has displayed outstanding legal expertise in both the Federal
and State courts. Colleagues, former adversaries, judges, and em-
ployees alike hold him in extremely high regard, both personally
and professionally. He has always shown a deep respect for the law
and an acute ability to make tough decisions.
As a judge in the Illinois court system since 1988, Michael
McCuskey has earned a reputation for being tough, but fair. He is
known statewide as being the first judge from Peoria to sentence
a criminal to Peoria's boot camp. Throughout his legal career,
Judge McCuskey has displayed the highest standards of personal
honesty and professional ethics. In the courtroom, his manner is el-
954
oquent, his opinions are well organized and well written, and he in-
sists on moving his docket along.
While their backgrounds may differ, these men share a common
desire to give back to their communities. They are both well known
for their community outreach and their public service. In the
course of their nomination, I came to know Mr. Murphy as an avid
worker for the American Red Cross and someone who has a passion
for working with and for children. Judge McCuskey, in kind, is
known throughout central Illinois for his immense volunteer work
on veterans' issues.
The challenges that these two men will face are formidable.
Every district in our State, in Illinois, is facing serious problems as
a result of not operating with a full bench and the Southern and
Central Districts are no exception. In the Southern District, the
Chief Judge has not been able to hold a civil trial for over a year,
and even as I speak to you, a major civil trial is being delayed in
the Central District, again, because of understaffmg of the bench.
I am confident, however, that Judge McCuskey and Mr. Murphy
understand the challenges that they face and that they have the
qualifications, the temperament, and the compassion necessary to
meet those challenges.
I want to thank you, Mr. Chairman, sincerely for calling these
nominations forward. For all of what goes on around the nomina-
tions process, the fact is that the American people need to have
these positions filled so that the judiciary can do what it is sup-
posed to do, which is to administer justice and recognizing the dis-
tinction between the legislative branch and the judicial one, rec-
ognizing that they are kind of two different orbits. The fact is that
this particular orbit really does touch the lives of Americans in a
particular way and the people of our State, of all the States that
are involved with this nominations process, deserve to have these
nominations acted upon expeditiously.
So I want to thank you, Mr. Chairman, for calling these nomina-
tions forward, for moving them forward. It is a step in the direction
of getting the Federal bench filled with competent, qualified, and
good people who will see to it that the laws of this country are fair-
ly administered and appropriately administered for all the people.
Thank you.
Senator Kyl. Thank you. Senator Moseley-Braun. You have my
assurance, and I am sure I speak for the chairman of the full com-
mittee, that the purpose for this hearing today is to get this process
moving to the next step so that we can proceed to get the nominees
confirmed, at least voted on confirmation as quickly as possible.
Senator Moseley-Braun. Thank you.
Senator Kyl. I should also mention that Congressman Ray
LaHood has been detained on the floor. His statement of introduc-
tion will be submitted for the record.
[The prepared statement of Mr. LaHood follows:]
Prepared Statement of Hon. Ray LaHood, a Representative in Congress
From the State of Illinois
Thank you, Mr. Chairman, for allowing me to be present here today for the nomi-
nation of Judge Michael McCuskey to the federal judiciary. I believe Judge
McCuskey will be an outstanding addition to the ranks of the federal judiciary, and
it is truly an honor to be here to provide introductory remarks.
955
Judge McCuskey, who is a lifelong resident of Illinois, has tirelessly and selflessly
served his community well as a teacher, an advocate, lawyer and a judge. All of
these experiences will serve him well as a member of the federal judicial branch.
His legal background includes service as the Marshall County Public Defender, Cir-
cuit Judge of the 10th Judicial Circuit, and his present position as a Judge of the
Third District Appellate Court. In 1991, in recognition of his hard work, he received
the Illinois Public Defender Association's Award of Excellence and Meritorious Serv-
ice. His service as a felony court judge in Peoria, Illinois earned him a listing in
"Who's Who in Law Enforcement." In addition, he is the senior member of the Ad-
ministrative Committee of the Illinois Appellate Court and was Chairman of the Ap-
pellate Court Executive Committee.
Judge McCuskey's public service has not been limited to the legal arena. From
1989 to 1995 he was a member of the Board of Directors of the Central Illinois
Chapter of the American Red Cross. He also serves as a member of the Peoria
League of Women Voters and the Peoria Rotary Club. And, before attending the law
school at Saint Louis University, he taught history and coached baseball at Ottawa
Township High School.
Mr. Chairman, I am proud to join my distinguished colleagues in the Senate, Sen-
ators Carol Moseley-Braun and Dick Durbin in introducing Judge McCuskey to your
committee. If Judge McCuskey's past service is any indication, and it should be, we
will all benefit greatly from his confirmation to the federal bench. Thank you.
Senator Kyl. Could I ask these two nominees now to stand? First
of all, Judge McCuskey, would you stand? Thank you very much.
We will hear from you more in just a moment. And Mr. Murphy,
Mr. Patrick Murphy? Great. Thank you for those fine statements
of introduction.
Now, since we have Senators from two other States, Senator
Feinstein being a member of the committee, I am going to ask her
for the first nomination and then we will see what other members
come forward at that time. Senator Dianne Feinstein. Senator
Boxer, please take one of those chairs. Thank you.
Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much. Senator Kyl and Sen-
ator DeWine, Senator Feingold. I want to begin by thanking Chair-
man Hatch for scheduling these hearings. I am very appreciative,
and I am honored and delighted to recommend to the committee
three district judges and one Federal appellate court nominee from
my home State, California.
Let me just begin alphabetically with the two that I nominated
to the President, the first being Charles Breyer, known as Chuck
Breyer. He has a broad range of experience in both criminal and
civil law. He is extremely well qualified for the appointment. He
served as a special prosecutor during Watergate. He has prosecuted
violent felons for 7 years as an assistant D.A. in San Francisco and
he has worked to reduce youth violence as the current chairman of
the Juvenile Probation Commission of San Francisco. He is also ex-
perienced in civil trials and he is a partner of a top law firm.
He graduated cum laude from Harvard in 1963. He earned his
J.D. from Boalt Hall, the University of California, in 1966. He
clerked for Judge Oliver Carter in the district court in northern
California for a year following his graduation. From 1967 to 1972,
he was assistant district attorney for the city and county of San
Francisco, something my daughter has been, where he prosecuted
more than 50 felony trials, including numerous homicide cases. He
956
returned to the district attorney's office in 1979 to serve as the
chief assistant, where he supervised 90 attorneys.
He was appointed by Archibald Cox to serve as Assistant Special
Prosecutor on Watergate from 1973 to 1974. During his 2 years in
Washington, he also conducted grand jury proceedings into crimi-
nal allegations of abuse of power by White House employees. He
has served with his present law firm, Coblentz, Cahen, McCabe,
and Breyer, since 1975, except for a 1-year leave of absence for the
return to the D.A.'s office. His practice focuses primarily on com-
plex litigation matters, both civil and criminal, in both the State
and Federal courts.
I mentioned he served as president of the Juvenile Probation
Commission. He was recommended to that spot by the San Fran-
cisco Superior Court.
His strong record as a prosecutor has earned him the respect of
many law enforcement officers. Of the finalists recommended to me
for this appointment, Charles Breyer was the No. 1 choice of the
California Narcotics Officers Association and he was also endorsed
by the San Francisco Police Officers for this position.
He is, quite simply, an outstanding man, a proven leader, and a
person of high integrity. I am very proud to recommend him to this
committee.
I would also like to recommend Frank Damrell to the members
of the committee in hopes that he will be confirmed to serve on the
Federal District Court for the Eastern District of California. Mr.
Damrell is widely respected in the Central Valley and Sacramento
areas of our State. His 30-year career in the legal profession has
included both extensive experience in civil courts and several years
of criminal trial experience as a deputy district attorney and a dep-
uty attorney general in California.
After graduating from Yale, he returned to California from 1965
to 1967, worked as a State deputy attorney general in the San
Francisco office. In only his second year in the office, he was the
first deputy assigned to the newly created consumer fraud unit. In
1966, he moved back to his home town of Modesto and became a
senior trial deputy in the Stanislaus County district attorney's of-
fice. He has handled numerous jury trials, including three murder
trials, during his time.
From 1968 to 1980, he opened his own law office, which is prob-
ably the largest law firm in the Central Valley. Over the years, the
Damrell firm has grown to become one of the most respected legal
firms in the State. The practice is primarily civil, with a broad
range of business litigation matters.
Since 1988, his legal practice has focused again on complex busi-
ness litigation. His clients include publicly owned corporations,
closely held family corporations, public entities, and individuals.
Their businesses include farming, trucking, food processing,
wineries, construction, and manufacturing companies, distributor-
ships, and professional corporations. He has also had specific expe-
rience in securities fraud and antitrust law.
Former Senator John Danforth wrote, and I quote,
Frank has all the qualifications that are important for the bench. He is smart,
he is experienced, he is sensible, and he is dedicated to doing good. He has no trace
957
of what could become "federalitis", and he is not the kind of person who would use
his position to grind some personal or political ax.
Former Agriculture Secretary Dick L3mg wrote, "Frank Damrell
is exceptionally well qualified to serve in this post. * * * I believe
[he] will be an outstanding judge." And it goes on and on, Mr.
Chairman. Ann Veneman, the secretary of the California Depart-
ment of Food and Agriculture, is a supporter, as are presiding
Judge Hugh Rose of the Stanislaus County Superior Court, Sheriff
Les Weidman of Stanislaus County— and I would like to submit for
the record a number of letters supporting his candidacy.
Senator Kyl. Without objection, those letters will be considered
a part of the record. • ■
[Senator Feinstein submitted the following letters:]
958
SIAIE Of CALIFORNIA
DEPARTMENT OF FOOD AND AGRICULTURE
1220 N Street, Rm. 409
Sacramento, CA 95814
(916) 654-0433
January 17, 1997
The Honorable Dianne Feinstein
United State Senator
525 Market Street, Suite 3670
San Francisco, CA 94105
Dear Senator Feinstein:
It was ruce to see you this week in Mcinteca during your visit with the
victims of our recent floods.
As you well know, an advisory committee has submitted Frank Damrell's
name to your office for consideration of an appointment to the United States
District Court for the Eastern District of California. I believe, Frank would be an
extraordinary choice to fill this vacancy on the bench.
I have personally and professionally known Frank Damrell for over
twenty years. 1 am routinely impressed by Frank's ethical nature, sound
judgment and professional ability.
Frank is exceptionally learned in the law. He began his career as a Deputy
Attorney General in San Francisco and returned home to Modesto to work for
Stanislaus County as a Deputy District Attorney where he prosecuted numerous
felony jury trials.
In 1968, Frank began a solo law practice that has grown to become one of
the premier law practices in the San Joaquin Valley, with a current staff of 18
attorneys. Frank has practiced in federal courts and also has a strong knowledge
of public policy issues. Throughout each of his professional accomplishments,
Frank has demonstrated the highest level of ethics and personal integrity.
Yet, there is no other accomplishment that Frank is more proud of than
his own commitment to his family cmd community. Frank is a dedicated
husband, father and grandfather. He is also a leader of his community,
contributing both time and resources to numerous Stanislaus County charitable
organizations and causes.
I am reminded that since 1945, only two Stemislaus County residents have
been appointed to the federal bench. In fact, the last federal appointment to the
bench from Stanislaus County was over 17 years ago.
1 have enclosed a recent Modesto Bee profile on Frank that I feel accurately
details his spirit and commitment. I believe Frank would serve the United States
District Court with distinction and honor. I would appreciate your consideration
on this matter.
Sincerely,
Enclosure
959
>..■ Mcd.Mo n,~,.
l)«:,nil»> 1'.. I '.I'
A dream believer
Daim^ell
turns vision
into reality
Frank C Damrcll Jr s
favonte photographs sil tn
frBmes in his home
ibrarj- Here is Frank Damreil
!nledaming Jimmy Carter in his
iTonl yard on Wyciiffe There he
IS shaking hands v,"ilU Joe
Montana, talking to Muhammad
^1. posing with Jerry Brown,
eaiing dinner with President
Clinton
The diplomas are reserved for
his office walls. Damreil. 58, is a
lawyer, a graduate of Yale Law
School He has one of the largest
law practices in the Central
Valley The five-siory office
building he buUt three years ago
in downiowTi Modesto is named
after his father. Fraak C.
Damreil Sr . who was a labor
law and tnaJ anomey and
Stanislaus County judge
Family portraits hang on
nearly every wall of lus home
and his office There's his great-
grandfather, who came west to
California in 1849. and
innumerable photos of Damrell's
wife, four children, vwo
grandchildren and dog Bo
Ask anyone who knows him
w'ell. and thcyll say Frank
Damreil is a famih man and a
lawyer wth fncnds in high
places Moreover, he's a thinker,
an unassuming man of vision
and action, which is something
that can't be captured in a
picture frame
"To me. Frank is a
Renaissance man." says Rav
Simon, a county super\'isor who
has been a fncnd for .3S years
"I've never known .inyonc with
an interest m so ni.nny things
And for Frank, there is no such
thing as a casual mieresi "
There's a sens, ,,i Dnmrcll's
vision in downtc.wr Modesto — I
Street in paniiu:,i: For Damrcll.
I Street is more man a pan of
the onginal alph.:hi t grid It is a
symbol for Mod. ■.!., s
p . _ 'Bart Ari VoaThe Bf
f-ranK c. Damreil Jr.'s Interests and loves are captured on the walls of his Modesto home
revitalLZation And it is more
After all. Frank Damreil
stancd his lite just off I Street
V. Title Damreil was grovnng up
in old Modesto dunng the post-
World War II years, he would
stand at one end of the long,
tree lined 1 Street at dusk with
his sister Mane, and his dog.
Mickey They would watch their
father make his sidewalk
commute from hf; office at lOth
and I to the house with the from
yard flagpole on Kimble Street
For the young Damrcll. I
and Ih<- small town blocks
1 eilhc
*h(il
ed hi:
. erteci world There was
tlu- hospital where he was born,
the streets where he plaved ball
the ni.;\or s house where his
(athr-r talked politics, the
S'-c B.ick Pag.? Vision
NEWSMAKERS
This is another in an
occasional series protilmg
people who make the
news
Name: Frank C Damreil
Jr
Age 58
Job Aiiorney wMh
Damrcll. Nelson, Schnmp
PaM'OS and Ladme
Years m profession 3i
Educalion. Gradua":' of
>.-,io Law School Umversirv
n) California at Befkcici, and
Modesio High School Also
jiinnded Sacred He-n
Novilale seminary and Sanl
Clara Untversity
Family. Wile. Ludy
Damretl, sons. Frank Damro
III and Jim Damreil. ■
daughters. Ua Damrell-
McKeon and Anne Damreil
grandchildren Cap and
Kalhenne. stsief. Mane
GallQ
Favorite book: Carl
Sandburg s Lincoln '
Favorite music: Classic.-
especaify MozaT
Favorite person Irom
history ADfaham Lmcolr'
Favorite leisure activity
Atlending San Francsco
49er games
Persons he most
admires: Faihc-: Gary Sm<'.t
and Mo:Mer Teresa
960
grammar school, the movie
theater and the library
Fifty years since his first
vigilant watch over 1 Street,
Damrell lakes in the view from
his fifth-floor luxury law office al
16th and I streets He can see the
rooftops of nearly every
downtown store and office
building, the pmnacle of the
McHenry Mansion — and I
Street, still lined with trees
"Growing up, this street was
the center of my universe," he
says. "In my mind, it is still the
heart of old Modesto, but the
downtown has lost a lot of its
luster. Somehow, I feel an
obligation to preserve it. If we let
the downtown decay, our
identity as a community is at
risk, and that affects the soul of
everyone."
What an unexpected twist for
a man who spends his days
practicing civil law and business
litigation to talk about a street
with such passion, to link it with
something as vast as a
"communal soul."
But in Damrell's world. I
Street is an icon — one that led
him out of town after high
school graduation and brought
him back again as an adult —
and more importantly, one that
has an impact on the entire
community.
Four years of silence
When Damrell left Modesto
after high school in 1955. he
went to Santa Clara University.
After a year, he changed his
course in a way that few people
do. He dropped out of school to
lead a secluded life at Sacred
Heart Novitate, a Jesuit
seminary in Los Gatos. where he
studied to become a pnest.
While there, he wasn't allowed
to go home, not at Chnstmas or
Easier or even when his only
sister mamed Robert Gallo.
The seminary experience is
one he shares with Jerry Brown.
who had been his roommate at
Santa Clara
"The seminary was an intense .
education, an experience shaped
by a certain era of Catholicism,
which IS largely faded from the
world today." Brown says "We
lived a life of poverty, chastity,
obedience and spiritual reading
It was a world apart, where
friendships were developed and
perspectives adapted "
Damrell hears how Brown
descnt>es the experience and
chuckles "We didn't just sit
around, meditating, reading and
speaking Latin We worked the
fields and harvested grapes "
Still, it was unlike anything he
had ever experienced in his
pnvileged upbringing
"Seminary life would be pretty
foreign for anyone. especiaJly for
a fellow like me coming out of
Modesto in 1955 "
After four years. Brown and
Damrell realized they weren't
cut out for the cloistered life.
Both enrolled at the University
of California at Berkeley and
then went on to Yale Law
School.
Brown, of course, eventually
became governor of California
and twice ran, unsuccessfully,
for president. Today he lives in
Oakland and does a radio talk
show called "We The People."
And Damrell? He, too, sought
a more worldly alternative to the
priesthood. The theological
training led to law — his father's
profession — which brought him
back to Modesto.
Politics, law and family
Like Brown. Brown's father
and his own father, Damrell was
drawn to politics, both as a
lawmaker-lobbyist and as a
campaign activist.
During the John F. Kennedy
presidential campaign, he had a
chance to talk to Kennedy when
the candidate flew in to Moffett
Field with Brown's father, Pat,
who was governor.
The invitation to Kennedy's
inauguration that followed is one
of Damrell's greatest keepsakes,
but it wasn't his springboard to
the Democratic Party. He had
decided on his party allegiance
long before meeting Kennedy.
"1 grew up thinking it was
perfectly logical to be a
Democrat," he says "It was the
party of my father and of
Roosevelt and Truman and
Kennedy. They cared for the
little guy. the forgotten person,
the oeople left behind."
Over the years, Damrell stayed
behind the scenes in politics.
never running for office himself
Instead he walked precincts zmd
held fund-raisers in his home for
numerous Democratic
candidates, such as Brown and
his sister. Kathleen Brown. Vic
Fazio. Tony Coelho and Dianne
Feinslein. When former
President Jimmy Carter came to
Modesto in 1980. the Damrells
had a Fourth of July fundraiser
in their yard
Today, while partisan lines
have blurred, Damrell still is a
Democrat
"I suppose it's something
that's part of my life, part of my
family's life and part of the
tradition that 1 cany out for my
father. I'm a Democrat and I
always will be a Democrat."
That doesn't mean he doesn't
have Republicans for fnends.
Has has many. Ann Veneman,
for one, says she and Damrell
call each other the day after
every election. She is state
secretary of agriculture and
daughter of the late John
Veneman, assemblyman and
assistant secretaty of health,
education and welfare.
"We're from two different
parties, but we have a strong
bond when it comes to talking
about politics," Veneman says.
"Our tradition is to call each
other on the phone after every
election to hash out the details."
Veneman was the first woman
attorney hired by Damrell's law
firm. She worked there for sever
years before she went to work ai
deputy secretary for the U.S.
Department of Agriculture
during the Bush presidency.
"Somehow, I became part of
the Damrell family while I
worked at the firm." she says.
'I've been gone nine years now,
and it's never changed."
As a colleague, Veneman saw
several sides of Damrell.
"Frank works very hard. When
he's engaged in a case, he works
night and day. He's a big-picture
thinker, and he's very dedicated
to his work."
Law, after all, holds an even
greater interest to Damrell than
politics.
"In law, you're given a set of
facts that are new, you learn
about a business, devise
strategies, and it's kind of like a
mystety or a detective story," he
says "There's a spirit of
competition and an intellectual
challenge of ideas, which
ultimately is what the law is
about — and from that,
hopefully, the truth emerges '
Certainly. Damrell's firm has
been successful With 18
anomeys. it is one of the largest
firms in the Central Valley.
Damrell staned the fuTn in 1968
when he moved back to Modesto
with his wife, Ludy Dykzeul, a
nurse whose family had
migrated to Oakdsje after
working with the Dutch
underground during World War
U. After Damrell Sr., known
even to his grandchildren as
The Judge." retired from the
Stanislaus County Superior
Court bench, he joined his son in
the firm
Mane Gal\o. Damrell's sister,
describes her brother as a chip
961
off the old block Their father
died in 1988. rwo days after the
death of their mother, Honora
Mae Damrell
"My father had a deep, true
love for his community, and my
brother loves this town, too. He
cares about people deeply. At
the same time, there's a
whimsical kid in him."
Damrell, an early riser, reads
four papers every morning and
often attends Mass before he
goes to the office. He loves
books, travel, classical music,
the arts and the San Francisco
49ers. He went to the very first
49er game in 1946 when he was
8 yecirs old.
Frank and Ludy raised four
children in their rambling home
on WycUffe Drive. Now they are
empty-nesters. Ludy Damrell
keeps busy as a volunteer at the
Parent Resource Center, a
facility that worits to prevent
child abuse. She also sings in the
choir and teaches children at SL
Joseph's Cathobc Church.
Their two older children live in
Modesto. Frank Damrell IH is a
stockbroker. He and his wife,
Gayle, have two children. Cap
and Katherine. Lia Damrell-
McKeon is married to a cattle
rancher, Alex McKeon, and is
the commuiuty resources
director for the Center for
Human Services. The two
youngest children are in college
— Anne at Santa Clara
University and Jim at Notre
Dame University Law School.
All four say their father
encouraged them to give
something back to their
communilies-
"Dad instilled in us the
responsibility we have to our
community," says Frank III. who
spent three months working in
an orphanage with Mother
Teresa in India "After I had
graduated from college, he
encouraged me to do some
spinruaJ introspection beyond
the annual retreats we took
together to a Benedictine
monastery That's when I
decided to go to India."
Ua remembers her father's
talks — life's lessons at the
dinner table, more serious
discussions in the library, and
now. conversations over coffee
at her farmhouse m Oakdale
"He's constantly motivating
us," she says "He recently gave
me the book, "The Road Less
Traveled.' He tells us we can be
anythmg we want to be. I think
he has a deep understandmg of
what that is about "
Damrell laments some of the
family trade-offs he made over
the years.
"When I was younger, I was
involved in more boards than I
could count," he says "I was
heavily involved in politics and I
sf>ent a good deal of my time in
Washington and Sacramento "
Says Lia, "He tells us all the
time about how he regrets not
being with us more while we
were teen-agers."
Maybe iha: i why he hearkens
back to I Street, li t."eps him
closer to home
Downtown rebirth
Damrell sees not just the
ghosts of his past along 1 Street,
but the future — a place where
there's a permanent farmers
market and an art gallery that
isn't relegated to the basement
of the McHenry Museum.
"We need a place for public
art. which is something we can
all enjoy. We need to make a
permanent home for the
Modesto Symphony. We need to
celebrate the talent we have in
our community."
He's working on these
projects, and if his friends are
right, he'll find a way to make
them happen.
"Frank is a very persuasive
guy, and his heart is in the nghi
place." says the Rev. Gary Smith,
a friend from Modesto High
School. Smith, a Jesuit pnest,
has a jaiJ ministry and works
with the homeless in Portland.
Ore
"He knows how to wheel and
deal with people, and I use that
term in the best possible sense
He's driven by the big picture.
and that's a pretty tough thing lo
argue with."
Consider the story of
McClatchy Square Damrell saw
the quarter-acre comer with its
abandoned gas pumps as the last
open space on I Street, a place
where people could sit on park
benches in a public rose garden
Altera reception m 1991, he
stood on the front steps of
McHenry Mansion and talked to
the chairman of McClatchv
Newspapers about donating the
land, owned by The Modesto
Bee, for a city park.
"1 wasn't going to let that one
gel away," Damrell says. "I was
gomg to stay with it, no maner
what it took "
It took two years of
persuasion, but McClatchy
donated the property, and for
the next four years. Damrell, city
officials and others worked to
raise the $135,000 to turn the lot
into a park.
Damrell takes little credit.
"One of my happiest days was
takmg this picture with the
construction workers who
donated their time to work on
the park. They are the heroes.
My vision without their sweat
wouldn't mean much "
There's more to be done
downtown, of course, and
Damrell believes the city and
county need to get together to
rebuild the city core. He is a
public member of the City
County Facilities Committee,
which had studied downtown
redevelopment proposals.
Meanwhile, Damrell is
working on ariother project, an
idea he spawned. It is a plaza to
honor filmmaker George Lucas
at the Five Points intersection at
McHenry Avenue. Construction
is expected to begin in the
spring. A focal point will be a
life-size bronze sculpture of two
teen-agers in early '60s clothing
and a '57 Chevy, representative
of the era of cruise celebrated in
the Lucas film, "American
Graffiti."
The George Lucas Plaza
projea shows how Damrell
operates when he gets an idea,
says Mayor Dick Lang.
"Frank initiates the spark that
ignites the fire under us," the
mayor says. "He has a vision that
few people share, and he will
take that on as a personal task
and challenge. He initiates
callmg together panies that he
thinks will be interested in
participating and before you
know it, you've got a committee
and they're off and running."
That's why, Lang says, "When
Frank calls, you listen."
As usual, DamreU is modest
but articulate.
"One thing leads to another,"
he says "You find these
treasures in your community,
like George Lucas, who grew up
in Modesto, and you realize we
need lo celebrate them because- •
that's what gives our community
identity That's a reflection of
our communal soul "
There it is again. Community.
Soul.
DamreU leans back in his
leather chair and takes off his
glasses. He pauses for a
moment.
"What it comes down to is that
rd like to do something that has
permanence, to leave a legacy. I
think I can do that in our
community. 1 think I can do that
on I Street — and beyond."
962
E. & J. GALLO WINERY • Modesto. California
OFFICE •/!*« CHAIRMAN
January 17, 1997
The Honorable Dianne Feinstein
525 Market Street, Suite 3670
San Francisco, CA 94105
Dear Dianne:
I have been advised that Frank Darorell, Jr.
is being considered for a possible appointment to the
United States District Court for the Eastern District
of California.
I have known Mr. Damrell for many years. I
greatly value his abilities as an attorney and have
found his judgement and integrity to be of the highest
order.
I believe he would be an outstanding choice
for this most important office.
Ernest Gallo
EG:om
963
JAN 2 7 1997
CongreEfsf of ttjc Winitth ^tatc£(
J^ougf o( Eeprt£(Entatibc£(
(B®ast)ington, ©C 20515
January 21, 1997
The Honorable Dianne Feinstein
525 Market Street
Suite 3670
San Francisco, California 94 105
Dear Senator Feinstein,
We wiite to you on behalf of Frank C. Damrell, Jr. and urge your highest consideration for his
appointment to the United States District Court for the Eastern District of California
Frank Damrell distinguished himself as a graduate of U.C. Berkeley and Yale Law School, then
went on to become a prosecutor as the Deputy Attorney General in San Francisco and as a Senior
Deputy District Attorney for Slanislaw County.
His private law practice now consists of eighteen attorneys with offices in Modesto, Sacramento,
and Oakdale California He has admission to the United States Supreme Court and the U.S.
District Court of California
Frank Damrell's depth of knowledge on the issues of agriculture, education,, energy,
transportation, and business-related litigation is unsurpassed
He and his wife, Lidwiena, have raised four outstanding children while simultaneously committing
themselves to their community which is legendary in the Central Valley. Frank Damrell's
affiliations and activities read like a "who's who" of citizen leadership. We are enclosing a copy of
this honor roll of service for your perusal
Not since 1979 has any individual been appointed to serve from this region to the U S District
Court for the Eastern District of California
964
The appointment of Frank Damrell would bring great distinction to the court, be a noble addition
to our nation's system of jurisprudence, and would validate what we and people of The Valley
already know and deeply appreciate that Frank Damrell is an extraordinary human being
and a man of great intellect, integrity and accomplishment
We are very proud to support him
W33
965
United States Department of the Interior
OFHCE OF THE DEPUTY SECRETARY
Washington. DC 20240
f'tB 1 2 1997
January' 21, 1997
Honorable Dianne Feinstein
United States Senate
Washington, D.C. 20510 i
Dear Senator Feinstein:
Frank Damrell has been recommended for a judgeship in the Sacramento district. He is well
qualified, well known, and well suited for the appointment. Since we have both worked with
Frank for many years, I am sure you already know that he would be a good, solid
confirmabie appointee.
Please give Frank your flill consideration.
Garamendi
Deput>' Secretary
966
m
Bank of America
Kathleen Brown
January 21,1 037 Somor vice President &
•^ ' Managlno Director
Sales and Markahng Investment
Managamant Services Group
The Honorable Dianne Fcinstcin
525 Market Street
Suite 3fi70
San Francisco, CA 94 1 0?
Dear E|ia)bn||;/\A./^N-^
1 am \wTiting to urge you lo nominate Frank Damrell for an appointment to the United
States District Court for the Eastern District of California.
I have Jovown Frank since he and my brother, Jerry, joined the Sacred Heart Novitiate
over 40 years ago. Thus, I speak with some authority about his character for the court
and his judicial temperament.
Frank is above all a man <if integrity, intelligence and loyalty. He is a family man, a
thinker and a doer. He h;is devoted his life to the prachcc of law and to serving his
community. Unlike many who simply give their name, Frank gives his time, his
resources and his heart to the causes which he supports.
Frank has deep roots in the Eastern District and a track record of serving the p>cople in
that community. He would represent the Court with honor and distinction and make
you proud that he was your noimnec.
As recently noted in an article in the Modesto Bee, Frank Damrtll is "an unassuming
man of vision and action, which is something that cannot be captured in a picture
frame." I enthusiastically urge your affirmative consideration for his nomination.
KB/lou
Bank o( Amenca National Trust and Savings Association
555 S Flower Street Suite 5000 Los Angeles, CA 90071 Phone 213/228-5887 Fax 213/228-9824
967
WA
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NOSSAMAN, GUTBNER, KNOX & ELLIOTT, LLP
TMIBTY. FOURTH FLOOR
SO CALIFORNIA STREET
SAN FRANCISCO. CALIFORNIA 94111-4712
TELEPHONE I41SI JOS 3«00
FACSIMILE (41SI S9a'243a
January 22, 1997
JOHN T. KNOX
iRREN C ELLK
OF COUNSEL
411111-111
The Hon. Dianne Feinstein
United States Senate
SH-331 Hart Senate Office Building
Washington. DC 20510-0504
Dear Dianne:
RE:
U.S. District Court - Eastern District
Frank Damreli. Jr.
Here is a candidate/applicant who is willing to give up a most prominent, most
successful law practice in Central Caiifomia to serve. And here is a most qualified lawyer who,
bar none, is a most wonderful, thoughtful, decent, and fair human being. These are not fancy
adjectives; they are simple true statements.
Obviously Frank is a friend. During a recent chat he mentioned a possible
Judgeship and I volunteered to write to you. Please note UCB and Yale Law School, note the
broad expanse of his volunteer service and of course his very significant Party activities.
I know you know Frank but for your files I enclose a personal and legal
biography. His would be a great appointment and a great addition to the Federal Bench in
California.
Respectfully yours,
William T. Bagley
WTB/hm
Enclosures
cc
San Francisco Office
Frank C. Damreli
SF\97021CX>41
968
VTTA
FRANK C. DAMREM.. .m
PERSONAL: Wife:
Lidwiena J. Damrell
Children and Spouses:
Frank C. Damrell III and his wife. Gaylc
AJida Damrell McKeon and her husband. Alex
Anne Marie Damrell
James Brockton Damrell. who is a law student at Notre Dame
EDUCATION: Santa Clara University' 1955-56
Sacred Heart Novitiate, Los Gates, Calif., a Roman Catholic seminary
for the Jesuit Order 1956-60
University of Califonua. Berkeley 1961 B.A.
Yale Law School 1964 L.L.B.
PROFESSIONAL ADMISSIONS
AND AFFILIATIONS:
Stale Bar of California
Unjted Slates Supreme Court
U.S. District Courts of California
American Bar Association
Sunislaus County Bar Association
Federal Bar Association
PROFESSIONAL
mSTORV:
Upon graduation &om law school, 1 spent four years as a prosecutor, first as a Deputy Attorney
General in San Francisco and then, upon my return lo Modesto, as a Senior Deputy District
Attorney for Stanislaus County where I had numerous felony jury trials, including two murder trials.
I commenced my private law practice as a sole practitioner in 1968, and our firm now consists of
1 8 attorneys v-nih offices in Modesto, Sacramento, and Oakdale, California; My law practice has
been unusually multi-faceted and covers a wide spectrum of clients and cases. The following is a
brief profile of the histor>' of my practice.
For approxmiately the first twelve years, my practice was devoted exclusively lo trial work. This
included criminal defense, plaintiffs personal mjur,' and busmess-relaied litigation 1 also was
engaged m state and federal appellate court practice.
Between 1978 and 1988, in addition lo my trial practice, I spent substantia] time m Washington,
969
D C , as an attorney and lobbyist on behalf of California public and educational entities, agricultural
associations, and the energy and transportation industry. 1 appeared before both the House and
Senate Agriculture Conamittees and the House Interior and Senate Energy Committees and worked
with several federal departments and agencies. During this same period, 1 also represented corporate
clients before stale legislative committees and slate agencies in Sacramento.
Since 1988. 1 have devoted my practice to complex business litigation matters in both federal and
state courts. My clients include publicly ov-Tied corporations, closely held family corporations,
public entities and individuals. My business clients include various wineries, distributorships,
farming enierpnses. trucking, food processing, construction and manufacturing companies.
The balance of my trial practice involves litigation relating to antitrust law and securities fraud 1
have been both lead counsel and co-lead counsel in class actions filed in federal and state couns.
My clients in these cases include private and public entities, such as Stanislaus County.
All of the above litigated matters involve an e.xtensive law and motion practice, as well as
comprehensive pre-trial orders, discover}' plans, and ultimately arbitration or court and jury trials.
AFFILIATIONS AND ACTIVITIES:
Santa Clara University Law School Board of Regents (1986-94)
Sanu Clara University Law School Board of Visitors (1983-94)
Chair of Stanislaus County International Friendship Committee with France and Portugal
(1990-97)
Chair of "I" Street Renaissance Comminee (City of Modesto) (1990-97)
Chair of McCIaichy Square Citizens Committee (Cit>' of Modesto) ) 1994-95)
Chair, George Lucas Plaza Project Comminee (Cit)' of Modesto) (1996-97)
Public Member, City-County Public Facilities Committee (1996-97)
Member of Citizens Study Group (sponsored by The Modesto Bee) to study the "Valley of
the Poor" (1996)
Chair of the California Slate Consumer Advisor)' Council (1975-80)
Member of the California Slate Consumer Advisory Council (1973-80)
President of the Consumer Federation of California (1972-76)
Delegate, Democratic Conventions (1976, 1980)
Democratic National Comminee (1980)
Member of Board of Central Catholic High School Foundation
Member of Board of Directors of Pacific Institute for Communit)' Organizations
County Co-Chair of "Keep the Promise" campaign (University of Calif , Berkeley)
Member of the Board of Directors, California Farmer Consumer Information Comminee
Chair of the Stanislaus County Consumer Protection Comminee
Chair of the Cir\' of Modesto Crime Study Comminee
Member of Citizens for Public Safety Comminee (Proposition 172)
Member of the Board of Directors, Stanislaus County Legal Assistance
Member of the Sickle Cell Anemia Foundation Board
Member of Board of Directors of Learning by Earning
President of the Sportsmen of Stanislaus
Chair of the March of Dimes, Stanislaus County
Ti«^urcr of the Modesto City Schools Bond Campaign for Johar^sen High School
Member of ihe Board of Directors of the Modesto Symphony
Member of the Board of Directors of the Stanislaus Creative Arts Council
Vice President of the Big Brothers of Greater Modesto
970
GOVERNOR'S OFFICE
January 23. 1997
The Honorable Dianne Feinstein
525 Market Street, Suite 3670
San Francisco, CA 94105
Dear Senator Feinstein:
It has come to my attention that Frank Damrell, an attorney and lifelong resident of Modesto
has been nominated for appointment to the United States District Coun for the Eastern District of
California. I have known Mr. Damrell for several years in many capacities - as a member of the
Community, as a wife of a Superior Coun Judge, and as the former Mayor of the Qty of Modesto.
He has exhibited all the quahties and experience which will qualify him to become a seasoned and
thoughtful District Court Judge, able to apply his p)erspective and understanding, as well as his
knowledge of the law to the cases and decisions which will come before him.
Frank Damrell has demonstrated a consistent commitment to the community and has often
used his knowledge of the law and government to serve it As a prosecutor in the Attorney General's
office, and as a Deputy District Attorney, Frank represented the people's interest in law enforcement
He has represented a broad array of clients on a wide range of legal issues and has demonstrated a
record of success in legal representation of some very complicated cases. But more than that, Frank
Damrell has always been available to assist in community projects. He has worked quietly, often
behind the scenes to see that the often underrepresented members of the community received a voice
and assistance when needed.
While 1 served in elected office, and as Mayor of Modesto, Frank provided assistance in
government and legal issues, and supported the City whenever needed.
Though we are of different political parties, I know Frank Damrell to be balanced and fair,
concerned and compassionate, respectful and knowledgeable about the law, its intent and application.
I am sure there will be many qualified applicants for this position, I can think of none who
will bring more to the position and be a greater credit to you and to the Nation. You may certainly feel
free to contact me if you need more information on this important decision.
Sincerely,
C^^?
Carol G. Whiteside
Director
Intergovernmental Affairs
Governor Pete V/iLSON • Sacramento. California 95814 • (916)445-284 1
971
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- _ P*C8IMI1_E: t3l4) 2S
JOHN C. DANFORTH
January 23. 1997
The Honorable Dianne Feinstein
United States Senate
Washmgton, D.C. 20510
Dear Dianne:
I underetand that you are considering Frank Damrell for nomination to the Federal
District Court for the Eastern District of California. In my opinion he would be an excellent
choice.
Frank was one of my closest friends at Yale Law School, and we have kept in touch since
then. He is bright, and beyond his obvious credentials, I can tell you that he is a good person.
He has character and good values. Also, he has a great sense of humor and an abihty to laugh at
himself^ which is preventative medicine to that dread disease of the Federal bench, "Federahtis."
I am certain that being a Federal judge would be a financial sacrifice for Frank It would
also be an opportunity for him to be of service to the country and to people, which is consistent
with his motives.
It was good to see you at the farewell party for departing Senators. Best wishes to you in
your efforts to rebuild the center of the Senate.
Sincerely, f
V^
NANCY PELOSI
eiH DiSTRICT, CALIFORNIA
450 GoaXN Gati AvtNuE
>.CA 94102-3460
.18)556-4662
972
Congres^s^ of tijc Winitth B>tatt^
J^ougt of Ecpre£(EntatibE£(
2iaaaSt)ington. IBC 20515-0508
January 28, 1997
COMMITTEE ON APPROPRIATIONS
SUBCOMMmtES
L*BOR-H£ALn< AND
Human Stnvicts-EooCATiON
f0.t.GN 0^..,>c,NS, E.PCT FlNAMONC
AND RtLAnO PbOCHAJMS
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
COMMITTEE ON STANDARDS
OF ^ICIAL CONDUCT
The Honorable Dianne Feinstein ^ te«oup"-^cwN^CH*m°
Office of Senator Dianne Feinstein <f^ atlargewhip
525 Market Street ^ "
Suite 3670
San Francisco, CA 94105
Dear Ser^^rO^stein:
Frank C. Damrell, Jr. has expressed an interest in an appointment to the United State
District Court for the Eastern District of California. I understand that you will soon
recommend your nominee to President Clinton and I hope you will give Frank Damrell
serious consideration.
Frank Damrell is eminently qualified for this appointment. Prior to his private practice,
Frank served at a Deputy Attorney General in San Francisco and as a Senior Deputy
District Attorney for Stanislaus County. He began his private law practice in 1968 as
sole practitioner and the fimn currently has 1 8 attorneys and two offices.
Frank has experience in trial work including criminal defense, plaintiffs personal injury
and, recently, antitrust law and securities fraud. Frank has worked in Washington, D.C.
as an attomey and lobbyist and has appeared before the House and Senate Agriculture
Committees and the House Interior and Senate Energy Committees.
Frank Damrell is a well respected member of his field and of the community and would
be an asset to the U.S. District Court for the Eastern District of Califomia. I am pleased
to give his candidacy my highest recommendation.
Thank you for your consideration of Frank Damrell's qualifications.
Sincerely,
n
;y pelo^
NANCY
Member of Congress
NP:ljp
THIS STATIONERY PRINTED ON PAPER MADE OF RECYCLED FIBERS
973
COMMrTTEES
APPROPRIATIONS
Senate
California Legislature
INSURANCE
LOCAL GOveRNMCNT
NATURAL RESOURCES
ft WILDLIFE
TRANSPORTATION
SENATOR
PATRICK JOHNSTON
January 28, 1997
The Honorable Diane Feinstein
United States Senate
525 Market Street
Suite 3670
San Francisco, Calif., 94105
Dear Senator Feinstein:
You have before you a number of applications from
individuals requesting your nomination to President Clinton
for an appointment to the United States District Court for
the Eastern District.
It is my understanding that Frank C. Damrell Jr. is one
of those who has submitted his name for consideration.
In my opinion Frank possesses all of stellar qualities
of a federal court judge, namely: legal scholarship, judicial
temperment, intellectual and personal integrity, a strong
work ethic, and an abiding commitment and loyalty to his
community and country.
His interest in che law was born from, his early childhood
observations and admiration of his father's legal career. As
you may know, the senior Frank Damrell 's history of legal and
judicial service to the citizens of the Central Valley of
California is highly regarded and chronicled in local and
statewide records. After many years in private practice
advocating the causes of labor, Frank's father spent years on
the Superior Court before leaving the bench to return to private
practice with Frank Jr.
Frank's education at Santa Clara, U.C. Berkeley, and Yale
Law School gave him a strong foundation upon which to build a
well deserved reputation as both legal scholar and a formidable
litigator .
For almost 30 years Frank has dedicated himself to all
facets of the law. He spent years as a criminal prosecutor.
In civil practice he earned a well deserved reputation as a
superb trial lawyer in complex business litigation cases in
974
both federal and state courts. Before state and federal
regulatory boards and commissions, as well as in a lobbying
capacity, he has earned the respect and admiration of those
he has appeared before. His hallmark is preparation and a
dogged determination to achieve results by finding consensus
through creative thinking.
Members of the local bench and bar associations attest
to Frank's outstanding reputation for integrity and ethical
conduct in professional and personal dealings. It is a
reputation that is well deserved.
Most people who have accomplished as much as Frank has
during his career, would be content to retire or, at the
very least, reduce their work schedule considerably.
Frank's work in the law gives meaning to his life. Being a
federal court judge would bring additional meaning and, I
believe usher in a greater period of service, from Frank, to
his community.
, If a judge should have both a knowledge of the law and
the comtnunity that he serves, Frank is eminently qualified.
Frank was born and raised in the Central Valley. He and
his wife, Ludy, are recognized throughout the area for their
unflagging commitment to charitable and civic causes. The
depth and breadth of their volunteer efforts is unequaled.
The quality of the Eastern District bench will be richly
enhanced by the addition of Frank Damrell Jr.
I mo,st strongly recommend his nomin
of the United States for this appointme
Sincer
ion to the President
PJ:rls
975
ia«nM^ai^ ^/^n^ CCnc^t/' i-Zica^
V^d.-+J«A^ ^'\"^ Mf4Ai:v|-, V-5^^ J)oVTNA-tl\,
Jic^C_^JL^^^,u^ ^ S/:i<^ vr*| U^ Seen •
976
SANTA CLARA UNIVERSITY
OFFICE OF THE PRESIDENT
Febmary6, 1997
The Honorable Dianne Feinstein
525 Market Street, Suite 3670
San Francisco. CA 94105
Dear Senator Feinstein:
It is my understanding that Frank C. Damrell, Jr. is being considered for an appointment to the
United States District Court for the Eastern District of California. I am pleased to write in
support of his appointment.
I have known Frank for many years and can speak of both his legal and personal qualities. His
legal experience has been extensive and varied, from public prosecutor at the State and county
level to private practice involving criminal defense, personal injury and for the last nine years
complex business litigation in both Federal and State courts. His experience has given him both
a practical and theoretical appreciation of the law and its complexities and he is highly regarded
by his peers in the legal profession.
For some ten years of his private practice he also spent time in Washington as an attorney and
lobbyist for a number of public and educational entities, agricultural associations and the energy
and transportation industry. As a result he has appeared before a number of congressional
committees and dealt with various federal departments and agencies.
On the more personal level. Frank has been an active member of his community serving on
numerous civic and county commissions and being heavily involved in a vanety of ways with
charity and not for profit groups in the Modesto area. He served for eight years as a member of
the University' 's Board of Regents, the chief advisory board to the President. In that capacity he
made thoughtful observations and suggestions on almost any item under discussion and proved
himself one of the most valuable members of the Board. He is a person of principled judgement
and high moral character who has always looked to the common good of his commuruty rather
than individual gain or personal advancement. His personal and professional standards are of the
highest caliber.
Frank has both the professional background and the personal integnty to make an outstanding
federal judge 1 am pleased to recommend him with enthusiasm and without reservation for your
consideration.
Sincerely,
-Kyo^d^v^J
Paul Locatelli, S.J.
President
SANTA CLARA CALIFORNIA 950S3 000' (d08) 5S4 4100
977
SAN FRANCISCO 49[RS
f ^6 1 2 1997
SUPER BOWL CHAMPIONS
XVI, XIX. XXIII. XXIV. XXIX
Carmeo A Policy
President
Admimstraltve Office
Mane P DeBanolo Sports Centre
4949 Centennial Boulevani
Santa Clara. California 95054-1229
Telephone 408/ 562-4949
fax 408/ 727-4937
February 7, 1997
Senator Dianne Feinstein
United States Senate
331 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Feinstein,
Please accept this letter as an unequivocal endorsement of Attorney Frank C.
Damrell, Jr. who is seeking your support for an appointment to the
U.S. District Court in the Northern Division of California. Frank is an
outstanding attorney, a phenomenal family man and a major contributor to the
well being of his diverse community. He and his wonderful wife have reared
four beautiful and successful children who are a credit to their parents,
themselves and the State of California.
You will be able to notice from the attached Vita Summary that Attorney
Damrell's professional and public commitments are the essence of his life.
This letter is not intended to be a vehicle for the delivery of voluminous detail.
I simply wanted to acquaint you with the fact that Frank is truly an
outstanding person who is worthy of your consideration and trust. 1 would
appreciate the opportunity to provide you with specific examples of why 1 feel
so strongly about this man and will therefore call your administrative assistant
and try to schedule a personal telephone conversation according to your
convenience.
Please let Gail and me know when you will be in the Bay Area so that we can
attempt to sequester a small portion of your precious time and enjoy your
company in the City. We truly appreciated being included in the Holiday
Reception at your home and we were able to rekindle contacts with people we
hadn't seen for a period of time. Thank you for always thinking of us and
being so gracious. We wish you a healthy and happy 1997 and many more
to come.
Very truly yours
Carmen A. Policy
President
CAP/fjd
fei02O77.lu
978
OFFICE OF THE
DISTRICT ATTORNEY
JAMES C. BRA2ELTON
District Attorney
CounHoose HlhAISO'eets
PO. Bca442 Modasto, Calltomla 9S3S3 Tef (209) S2S-SS50 Fax (209) S25-5S4S
February 14, 1997
Sena'tor Diane Felnstein
United States Senate
331 Hart Building
Washington DC 20510
Dear Senator Feinstein:
Re: Frank C. Damrell, Jr.
I have learned that Modesto attorney Frank C. Damrell, Jr.
has been mentioned as a candidate for appointment to a Federal
judgeship. I would enthusiastically urge such an appointment.
As I am sure you are aware, Mr. Damrell is a life-long
Modesto resident. Hie family has strong roots in the community,
his father having been a judge on the Superior Court bench for
many years. Mr. Damrell and his wife have been very active in
community affairs including a great deal of charitable endeavors.
Recently, Mr. Damrell was instrumental in the development of a
beautiful park near the downtown area of Modesto.
Mr- Damrell and his associates are easily recognized as the
most prestigious law firm in Stanislaus County and perhaps the
entire San Joaquin Valley. Although the Damrell firm handles
very little criminal law, I have had many contacts with Mr.
Damrell and other attorneys in his office. I am highly impressed
with the character and professionalism of Mr. Damrell and his
staff.
Mr. Damrell certainly possesses all of the qualities and
experience required of a Federal Judge. I am confident that Mr.
Damrell would be a very valuable addition to the Federal bench.
JCB/ks
979
Sherif
PO B0XSS8/ 1100 rsTHeei
MOOESTO. CAIIFOHNIA K3S4
TCLEwoftE (2091 ses«ise
artment
LES WEIDMAN
STANISLAUS COUNTY
February 14, 1997
United States Senator Dianne Feinstcin
1 1 30 O Street, Ste. 2446
Fresno, CA 93721
Re: Frank Damrell, Jr.
Dear Senator Feinstcin:
I am writing to virge yoiir favorable consideration for the appointment of Frank Damiell, Jr.
to the Federal Court Bench. I have known Frank personally and professionally for more than 20
years.
Frank is a highly respected lawyer and notable community leader in the Central Valley. He has
earned this respect with honesty and integrity and has the judicial tempci^ment necessary for this
distinguished position. He is immensely qualified to serve based on his prior experiences which
date back to very humble beginnings as a young County criminal prosecutor.
Due to time constraints, I have taken the liberty of garnering the support from Stanislaus County
District Attorney Jim Brazelton, Merced County Sheriff Tom Sawder, and San Joaquin County
Sheriff Baxter Dunn for the appointment of Frank Damrell, Jr. to Federal Judgeship.
1 look forward to our professional relationship.
Sincerely,
UES WEIDMAN, Sheriff-Coroner
Stanislaus County
LW:bjb
cc; District Attorney Jim Brazelton
Sheriff Baxter Durui
Sherifl Tom Sawyer
"KEEPING THE PEACE SINCE 1854'
exw-TTTEE ew OULES -wo tDM|.r:T1UTVM
980
WLnitet ^tate£^ Senate
WASHINGTON, DC 20510-0604
(302)224-3841
February 26, 1997
The Honorable William Jefferson Clinton .
President of the United States
The White House
1600 Pennsylvaiua Avenue ■
Washington, D.C. 20050
Dear Mr. President:
I enthusiastically submit the name of Frank Damrell, Jr. for nomination to the Federal '
District Court for the Eastern District of California. It is my hope that you will forward his
name to the United States Senate for confirmation in the very near future.
Mr. Damrell is widely respected in the Central Valley and Sacramento areas of the
Eastern District. His SO-year career in the legal professional has included both extensive
cjcperience in civil courts and several years of criminal trial experieiKe as a Deputy District
Attorney and a Deputy Attorney General in California. After a careful and thorough
interview process, I can say that Frank Damrell, Jr. is exceptionally well qualified for this
position and would be an outstanding addition to the federal court.
As a managing'pattner and president of the Modesto law firm of Damrell, Nelson,
Schrimp, Pallios & Ladine, Frank Dariirell has personally litigated a wide range of civil cases
that will undoubtedly prepare him for issues confronting the Eastern District. In order to give
a complete description of his noteworthy legal career, I want to outline some of his specific
accomplishments:
♦ ' After graduating from Yale Law School, Mr. Damrell returned to his native California
'and from 1965 to 1967 worked as a State Deputy Attorney General in the San
Francisco OfGce. In only his second year in the office, he was the first deputy
assigned to the newly-created Consumer Fraud Unit.
♦ In 1 966, he moved back to his hometown of Modesto and became a senior trial deputy
in the Stanislaus County District Attorney's office. He handled numerous jury trials,
including three murder trials, during this time
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981
♦ From 1968 to 1980, Mr. Damrell opened his own law office. Over the years, the
Damrel! finn has grov-Ti to become one of the most respected legaJ firms in the State.
His firm's practice is primarily civil, with a broad range of business litigation matters.
♦ From 1980 to 1988, Mr. Damrell's legal practice expanded and he became involved
in a number of major public and private projects. He became counsel for projects
such as several public power plants undertaken by local irrigation districts and public
utilities; the development and funding of the Superconducting Super Collider by the
University of California; and several large real estate developments.
♦ Since 1988, Mr. Damrell's legal practice has focused again on complex business
litigation. His clients include publicly-o\^'ned corporations, closely held family
corporations, public entities, and individuals. Clients include wineries, farming
enterprises, tracking, food processing, construction, and manufacturing companies,
distributor ships and professional corporations. He has also had specific experience
in securities fi-aud and antitrust law.
Frank Damrell knows California. I have provided so many details about Mr.
Damrell's legal career, becaiis: I wanted to make sure you had a sense of his comprehensive
experience. It is also important to note that he is one of the most respected lawjers v.^th high
ethical standards. He is a hands-on leader with proven courtroom experience. And his
additional ejqjerience in the area of criminal law makes him the perfect candidate for this
position. I hope you'll agree and appoint him in the near future.
Mr. Damrell's varied list of clients has also given him strong bi-partisan support
among California and national leaders. I have attached for your review letters I have
obtained as of today. Koteuonhy letters of endorsements include those &om Former United
States Senator Jack Danforth, California Agriculture Secretary Ann Vencman, Stanislaus
County Sheriff Les Weidman, Modesto County District Attorney James Brazelton,
Univcrsitv' of Cahfomia regent Bill Bagley, Ernest Ga^Io of E & J Gallo Winery, Dcput>'
Secretary of Interior John Ga.'arr.endi, San Francisco 49eTs' President Carmen Policy, State
Senator Patrick Johnston, former State Treasurer Kathleen Brown, and six members of
California's Congressional delegation.
Seldom does one Califomiar. generate such broad-besed and bi-partisan support. As
these letters indicate, Mr. Damrel! also has extraordinar>- support among tfie law enforcement
community. He is their No. 1 choice for this position, according to verbal comments by
office received fi-om the major law enforcement organizations.
I hope you'll agree with this recommendation. You won't be disappointed. I am
certain Frank Damrell, Jr. wil! serve on the judiciary with great distinction. Please let me
know if I can be of any further assistance.
1
me Feinstein
United States Senator
45-964 98 - ^:>
982
Leon E. Panetta
P O- Box 42 Carmel Valley. California 93924
April 15, 1997
The Honorable William Jefferson Clinton
President of the United States
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20050
Dear Mr. President:
I wish to recommend the name of Frank Damrell, Jr. for nomination to the Federal
District Court for the Eastern District of California.
Frank Damrell has a 30-year career in the legal profession which includes both
extensive experience in civil courts as well as several years of criminal trial experience as a
Deputy District Attorney and a Deputy Attorney General in California. In 1968 he started
hjs law practice in Modesto and his firm has expanded since then to 18 attorneys with
offices in Modesto, Sacramento and Oakdale, California. Mr. Damrell has spent a
substantia] amount of time in Washington DC as a lobbyist on behalf of California public
and educational entities, agricultural associations, the energy and transportation industry
and worked with several federal departments and agencies on behalf of these interests.
Mr. Damrell is known for being a Democrat who tries to find bipartisan
cooperation which is further evidenced by the broad-based and bi-partisan support for his
nomination to the Federal Court. With his solid record of community
involvement and a reputation for being a key player in helping those in need and the
community at large. I believe that Frank Damrell has the personal qualities as well as the
legal experience needed to be an understanding but independent decision maker with any
issue that would come before him as a Federal Distnct Court Judge.
Thank you for your consideration of Frank Damrell, Jr. for this Federal District Court
position.
^__^ Panetta
LEP: CO
983
JAMES R. DIGNAN, C.P.A.
2225 Plaza Parkway C-3
Modesto, California 95350
(209) 544-2093
(209) 526-6109 Fax
April 17, 1997
Senator John Ashcroft
Committee on the Judiciary
224 Dirksen ^Senate Office Bldg
Washington, -'.iDC 20510-6275
Dear Senatojf* Ashcroft : ^
'J
I am writijigS to offer my personal recommBndation in behalf of Mr. Frank Damrell
of Modesto, falifornia to the Federal Court Bench.
I have known. and worked with Frank both personally and professionally for the
last ,J:hirteen years and I can attest to his integrity, his professionalism,
and his great concern for the entire community. ^
Frank' is a successful business person and has created one of the most presti-
gious law firms in the Central Valley of California. He is a solid Catholic
and an outstanding husband and father. 1 cannot recommend him highly enough
for such a special appointment.
With all the possibilities of other individuals being considered for Federal
judgeship, Frank is a conservative American, with strong moral roots and has
demonstrated the highest standards of honesty and integrity.
Thanking you for your attention to this possible nomination. I am confident
that Mr. Frank Damrell would be a very valuable appointment to the Federal
Court Bench.
Very truly yours.
984
/\MADOR Valley High School
A Califoniia Distinguished School
1155 Santa Rita Road- Pleasanton. CALif=ORNi a 94566-6176
(510)846-2818 • FAX (510) 462-6333
MlCMAEl O'Uahv
April 21, 1997
Diane Feinstein, United States Senator
331 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Feinstein:
I am vriting in regard to your recent nomination of Franlc
Damrell, Jr. to the Federal District Court in Northern
California. I have l<nown Mr. Damrell on a personal basis for
forty years. Congratulations on an extremely wise choice.
I have taught Civics in California for the past thirty-three
years. Therefore, I am well aware of hov the system worlds. I
realize that Mr. Damrell's association with the Gallo family
and business could create an obstacle in this nomination. I
do not have any connection to the Gallo's, nor have I ever
had need for Mr. Damrell's professional services. I )cnow
Frank only as a friend and as a person of impeccable
character .
I would be more than happy to testify in Mr. Damrell's
behalf if it was felt that I could be of sone benefit.
Though coming to VJashington would create a fev; challenges as
I am in a v;heelchair , I would be more than willing to do so
at my own expense. I Icnow of Fran)< ' s interest and concern
in a broad spectrum of social issues, and in the plight of
people less fortunate than hir.i. Please htve ycur office
contact me if I can be of any help in this matter.
Thank you.
Sincerely,
Everett J. (Skip) Mohatt
939 Kolln St.
Pleasanton, CA 94566
UMrirn Si iiodi Diumn
MAftC ^OCH^
L JUKTICC
985
Cmtrt nf ^Appeal
MARATHON PUAZA - SOl^H TOwCA
303 SECOND S 1 WU. I. 3UITC QOO
BAN FBANCISCO, CA 0AIO7
AprU23, 1997
The President
The White House
Washington, DC 20500
Re: Frank C. namrell. Jr.
Dear Mr. President:
This letter is btended as corroboration of the soundness of Senator Diannc
Fcinstcin's nomination of Frank C. Damrell for appointment by you to the U.S. District
Court for the Eastern District of California.
1 have known Frank and his family well for over forty years. It aU began in 1955
when he checked into college and I was assigned as hi.s senior counselor. His work,
abilities, achievements and professionalism arc all matters of which T have personal,
hands on, knowledge and profound admiration. They don't make them any better in life
or in law than Frank. In my judgment his appointment to the federal judiciary at any
level will greatly enhance the reputation, integrity and intelligence of our nation's coints.
^parcntly, the only criticism of Senator f einstein's choice is that somehow
Frank's sister's husband's father will influence his judicial decisions. That curious
conclusion is bottomed solely on a letter of recommendation by which praised Frank's
judgment and integrity as being of ihe "highest order." A.s I know you arc aware that is
also the reputation of the letter writer, F.mesi Gallo. In my line of work we characterize
such appeals to prejudice as frivolous. 1 urge you to do the same.
Sincerely,
Marc B Poche
cc: Senator Dianne Feinstein
Jonathan Yarowsky, Rsq.
bcc: Frank C. Damrell, Jr.
TOTAL P. 01
986
BOARD OF SUPERVISORS
llOOHSTREET MODESTO, CALIFORNIA 95354 (209)525-4445
RAYMOND CLARK SIMON
District Four
Apnl24, 1997
The President
The White House
Washineion, D C 20500 ~
Dear Mr President
t
I am \^Titine to you on behalf of Frank Damrell who is Senator Feinstein's nominee to fill a vacant Federal
District Court Judgeship in Cahfomia
I, as a Republican official in local government have enthusiastically endorsed Mr Damrell's nomination to
this high position
I was, however, appalled to see an article in the Los Angeles Times inferring that his nomination might be
a conflict because of his familial relationship to the distinguished Gallo family
It is patently ndiculous to believe that Mr Damrell would not recuse himself if any conflict might arise over
any Gallo association
1 have known Frank Damrell for 24 years and he is an individual of the highest integrity and morals His
standing in our community as a quality lawyer is unchallenged FLs contributions to the social, political and
economic welfare of our community are well known and respeaed He is truly a person who desires to serve
his community and his fellow man
I was also deeply offended about the inferences in that article thai the Gallo family would orchestrate any
interference in judicial matters In the 24 years of my elected public service, the Gallo family has never
demanded of me preferential treatment in my conduct of affairs that may have effected them
I feh compelled to write this letter after reading the article in order to convey a viewpoint expressed to me
a number of times over the past weeks by individuals in our local community It seems strange that the Los
Angeles area would take such an interest in this issue by interviewing people known to have little or no
knowledge of the Gallo family and/or Mr Damrell as well as some individuals in the article who have had
their own personal difficulties with the winer>' business I can assure you that these people are in the
minority
I would sincerely hope that you would look favorably upon his noTnination because he is one individual who
will never embarrass his stipponers in this endeavor to serve
\ Sincerely
V->
ay Simon
Supervisor, Fourth District
Stanislaus County
RS/gh
CO Jonathan Yarowsky - Special Associate Counsel of the President
987
^upprtor (Court of thf ^latc of (Halifornia
COUNTY Of STANISl AUS
mCC-ES^O CALiCOflNI* 9!Jii
huGm BOSE III juoo«
TEcEPHONt
(209) 525-6<2S
April 25. 1997
The President
The White House
Wa-hington, D C 20500
re: Nomination of Frank Damrell to the vacancy at the US District Court for the
Eastern District of California
Dear Mr President;
This letter is written in support of Mr Frank Damrell for the above-referenced position
By way of background I am the presiding judge of the Stanislaus County Superior Court
and have been on the bench for 21 years I have known Mr Damrell since we were in the District
Attorney's Office together in 1966 I was his supervisor and had the pleasure of supervising his
handling of complex criminal and civil litigation. He has been a member of our local legal
coi.omunity since then and I have, of course, observed him in and out of the courtroom over these
maoy years
Mr Damrell is a highly respected and valued member of our local bar association and our
community at large. He has outstanding experience as a trial law^'er His ethics are above
reproach A recent article with a I-os Angeles Times by-line questioned his appointment as a
result of the marriage of his sister to Robert Gallo, president of the Gallo Winery Mi Damrell
indicates that he would recuse himself on any case involving the Gallos or any other case where
there would be even the appearance of impropriety. There is no question that he would so do and
to suggest otherwise is absurd He has even represented Fred Franzia of the Franzia Winery (a
Gallo competitor) in wine litigation
He has ideal judicial temperament He is even-handed and fair with moderate views With
his educational background, his experience at the California Attorney General's Office, our
Di>trict Attorney's Office, and his varied civil trial experience Mr Damrell is eminently qualified
to sit on the Federal bench and would be outstanding in that position I, without reservation, urge
his appointment.
If there are any questions I may answer I would be pleased to do so.
Very truly yours,
?GH ROSE IIlTPresiding Judge
Stanislaus County Superior Court
HR/dd
cc Jonathan 'Varowsky, Esq
Ftank Damrell, Jr
fTT'e^ H OOOOHAM
Ser ator Diane Feinstein
United States Senate
Ha>t Senate, Room 331
Wa-.hington, DC 20510
988
LAW OFFICES
SHUGHART
THOMSON
& KILROY
A pTxyftjsioiMji CorpQTouon
Twelve Wyandone Pb«»
120 «-ejT 12* Street
Koiuoi Qir. MUjouiI MI05-1»J9
(616)^213355
FAX (816) 3740509
32 Coiponte WocKk. Suite 1 100
V225 bdien C™«1 Palwty
Oxeriind Put fUrea: 66210-2011
(9131 «1 3355
FAX (»U) ■151-3361
WCAlBOt »c^-To-
nUAtSTllA-CCAOMOKU
April 25, 1997
Re:
Frank C Damrell, Jr.
United States District Court Nominee
De^ir Senator Feinstein:
This is a completely unsolicited letter, I have just learned that you have nominated Frank C
Da.nrell, Jr. to fill a vacancy on the United States District Court in Sacramento, California.
I have recently finished a lengthy trial defending my client, Rubbermaid Incorporated, in a
lawsuit in which Mr Damrell was the attorney for the plaintiffs. I must .'lay that he is an absolutely
OuVstanding candidate for the Federal bench I found Mr Damrell to be extremely bright; his legal
theories and legal work were outstanding He was a lawyer of total and unimpeachable integrity.
Al'iiough we had never met before the case was filed (because I practice in Missouri and he practices
in California), I soon learned that his word was his bond, nothing during the two years of pre-trial
discovery nor the three weeks in the San Francisco courtroom of the Honorable William Orrick (in
a hard-fought jury trial) ever occurred which gave me the slightest concern about his honesty, his
integrity or his character
I am certainly pleased to learn that he has been nominated for such an important position, and
would feel remiss in my duties as an officer of the Court if I didn't express my profound and
unqualified support for his nonination. I ui^ favorable action by the Senate Judiciary Committee
on his nomination
y^ty truly yours.
GEORGE E LEONARD
Gi-Xbl
cc Senator Christopher Bond
989
CITY of MODESTO
Richard A. Lang, Mayor - 801 llth Street, p. O. Box 642, Modesto, CA 95353
(209) 577-5230 FAX (209) 571-5128 p-PD (209) 526-9211 Hearing and Spetch Impaired only)
April 30, 1997
The President
The White House
Washington D.C. 20500
Dear Mr. President:
Those of us who reside in the Central Valley of California are a
very proud and hard-working group of people. We are very pleased
when "one of our own" is recognized for achievement in whatever
profession or field they choose. Such was the case when Frank
Damrell was nominated for a federal judgeship. Senator Feinstein
said it all when she suggested that Frank Damrell was "eminently
qualified" to sit on the federal bench. I can say with great
certainty that we totally agree.
Frank Damrell has distinguished himself in legal circles and has
all the necessary attributes to effectively serve on the federal
bench. People of all political persuasions are behind Frank
Damrell one hundred percent because of what he represents and the
level of professionalism that he has exhibited over these many
years .
Recently there was an article in the Los Angeles Times and the
Modesto Bee in which they inferred that his connection to the Gallo
family through marriage may in some way hinder his objectivity on
the bench. Nothing could be further from the truth. In fact,
Frank Damrell has been ultra-conscious when taking part in any
discussions regarding the Gallo family and their interests. As a
federal judge he would simply step down in all issues that were ,
even remotely connected to the Gallo family or their business
interests .
The community of Modesto and the entire northern San Joaquin Valley
urge you to proceed with the nomination of Frank Dcuurell for the
federal judgeship. I assure you that America's interests will be
best served by such an appointment.
Mr. President, as you know, one of the most important legacies of
any President is the type and quality of people he appoints to the
federal bench. You have here a unique and special opportunity to
serve your administration and country well by the appointment of
Frank Damrell.
Very truly yours.
'(ylcA-^
Richard A. Lang
Mayor
RALrlas
Jonathan Yarowsky, Esq.
Special Associate Counsel to the President
The White House
130 Old Executive Building
Washington, D.C. 20500
990
^u^etiar (Exxvai
eiAINE WATTERS COUNTY OF SOMOMA
JUDQE HALL OF JUSTICE
COURTROOM 11 900 ADMINISTRATION DRIVE
(707) 627-2964 8AMTA ROSA. CALIFORNIA 95403
FAX (707) 527-1163
May 1, 1997
The President .
The White House
Washington; D.C 20500
Re: Appointment of Franlc C Damrell to the U.S. Distria Courts Eastern District of
California
Dear Mr. President
This letter is written in strong support of Franlc C Damrell, an outstanding candidate for the
U.S. District Gsurt, Eastern District of California. This ietcer is unsolicited. Rather, when I
learned from a newspaper article of his nomination, I volunteered to support his candidacy
solely out of a desire to see a highly qualified attorney appointed to the federal bench.
I am a lifelong Democrat, and a 1 992 Governor Pete Wilson appointee to the SOToma County
Superior Court. As a trlai attorney, my background was exclusively in dvil litigation, mostly
complex business cases.
Thus It was with great interest that In July 1993 I was assigned as trial Judge to try a
muitiminion dollar, legally complex case between large wineries. Frank Damrell represented
the Franzla family, owners of the J F) Bronco Winery, which after a loigthy Jury trial was
awarded $2.5 million for the financial damages It suffered when Glen Ellen Winery {now
owned by HeuHeln) terminated a six-year business relatiOTship. It was no^ however, a one-
sided victory for the Franzias. The Jury also ordered the Franzias to pay $ 1 .5 million to the
Benzlger farnily, owners of Glen Ellen Winery, for finandal Injuries inflicted on Glen Ellen whai
the Franzias refused to deUver bulk wine after the breakup of their btisiness relationship in
1991.
The point, of course, is not who won (though It b clear the Franzias came out on top) so
much as the excdient lawyering 1 observed in Frank Damrell throughout the case. Despite
representing what might charitably be termed a 'difficuh^ client Frank was able to maintain
as much client control as possible under the circumstances. Frank dkplayed a keen grasp
of difficult legal concepts, submitted well-wrftten, incisive briefe and conducted himself »rtth
calm decorum, even when provoked by his opponents. . In short, I observed in Frank many
qualities one needs as a Judge: intelligence, good writing skills, fairness, patience, the ability to
communicate, decisiveness, open-mfndedness, dignity and honesty. He was also extremely
well prepared.
Mr. Presideit, I higher recommend Frank Damrell for Judge on the U.S. Distria Court,
Central Distria of California. The residoits of that district, will, I am sure, be forever grateful
for your appointment of someone of his stature.
Very truly yours.
Elaine Watters
cc: Hon. Dianne Feinstein
Jonathan Yarowsky, Esq.
991
31559 Lobo Canyon Rd.
Agoura, California 91376
Tel (818) 735-6640
June 11, 1997
Senator Orrin Hatch
Committee on the Judiciar>
224 Dirksen Senate Office Building
Washington, D.C. 20510-6275
Dear Senator Hatch:
I am v^Titing to express mv unqualified support for Frank DamrcU's nomination to
the Federal Court Bench.
I was able to witness Mr. Damrell's legal skills fuTSt hand when he represented our
corporation in Northern California several years ago. He effectively mediated a
seemingly "intractable" dispute in a manner that satisfied all parties.
Prior to working \vith him, 1 knew him only by reputation; afterward 1 felt he
more than deserved plaudits he received from associates in the legal community. He sized
up the case quickly and solved it much sooner than 1 had anticipated anyone could.
Mr. Damrell's rcstime speaks for itself His extensive community activities round
out an impressive profe.<;.s)ona] profile. ObN-iously, he has spent a great deal of time
getting to know the people in his diverse community. That is ju.st one reasons why I
believe he would make an excellent judge
As you know. I am a lifelong Republican. Obviously, partisanship is not an issue
here. T support Frank Damrcll because he impresses me as being a man who weighs
matters carefully. I also believe he would exercise judicial restraint in his rulings.
Again. I urge you to confirm Frank Damreirs nomination to the Federal Court Bench
^--¥t5nrs truly.
oJr^
Patrick J. Frawlev, Jr
992
RD
RESOURCE
DEVELOPMENT
August 29, 1997
Senator Urrin Hatch
131 Russell Senate Office Building
Washington, DC 20510
Re: Pending appointment of Frank Uamrel 1 to Federal Court
Dear Senator Hatch:
I am a lifelong member of the Republican Party, dating back to my
first Eisenhower rally that 1 attended in the early 1950's.
I am also a longtime (30 years) friend and associate of Mr. Frank
Damrel ! whose Federal Court appointment rests with your
comm i t tee .
Frank is one of the most honorable gentlemen that I know. He
ranks at the very top of the attorney roster in our community, he
knows the law and he is a very fair businessman.
Frank has made major, consistent contributions to out community,
supporting each and every project which has enhanced our city of
Modesto .
Perhaps the only negative that 1 can share is when he is
confirmed it will mean that Modesto has lost one of its finest
citizens to the city of Sacramento. We do not have enough Frank
Damrells in this town and we will miss him.
He has my ver^ highest endorsement
\lBry tr uM y
R i chard Hag
2020 STANDIFORD AVE , BLDG E-1
MODESTO. CA 95350
TEL (209) 527-7466
FAX (209) 527-7565
COMMITTtf OH ACAICULTVWt
993
SUBCOMtrmi OM LfVCSTOOl. OAmr.
AMD ^OULTDV
iiACOMMrrm on
ICONOMIC OIKnYm. NATUIUl.
ftaOUfias. AMD RtOUUTOflT A^AIKS
»«J»COMMnTH0«
NATlOMAk zeCUKVf. •ifrCIINAnOMAL
GARY A. CONDIT
18th Disttuct, Caupornia
OIiragrtHB nf tljc Untteii Blat^a
Kouae of EepreBentatineB
Sq>tembcr 2, 1997
OtSTBICT OMKM.
OO is<w SniKT. twTt c
Moeai}- CAIBK4
Oni 071114
Senator Oiiin G. Hatch
Senate Judiciary Committee Chairman
135 Russell Seiwte Office Building
Washington, DC 2051O-W02
Dear Senator Hatch:
We respectfully request you confirm the nomination of Frank Damrell, Jr., to the Federal
District Court for the Eastern District of California.
As elected officials, both Democrat and Republican, rqjresenting California's Central Valley,
we can personally attest to Mr. Damrell's integrity, his commitment to the law, and his ability
to work with others. Frank will be the kind of judge of which all of us will be proud. He
shares our values and our history. That is why his nomination for this post has won universal
praise, including that of law enforcement.
We know Frank Damrell, and are convinced he will establish a record as federal judge that
you, and the Judiciary Committee will find exceptional. His common sense, his hard work,
his sense of fairness, will serve well the people of the Valley, and the nation.
We urge you to act positively and swiftly on Mr. Damrell's nomination. All of us are
available to you and your staff should you have questions or desire any infontiation.
GARY A. <^^IT
Member of Congress
County Board of Supervisors
ths statunmy nMTU Ok pATfn UADE OF otCrcuo mens
994
Senator Hatch
09/02/97
Pagc:2
RICHARD MONTEITH
California State Senator
DENNIS CARDOZA
OilifoxniB St«te Assemblytnxm
LES WEIDMAN
Stanislaus County Sheriff
A^
TOM MAYFIELD, CHAIRMAN
Stanislaus County Supervisor
'AUL CARUSO
Stanislaus County Supervisor
ICHARD LANG
Mayor, City of Modesto
BRAZELTON
'Stanislaus County District Attorney
ILD. ChWiRMAN nick BLOM
NICK BLOM
Stanislaus County Supervisor
(3^
PAT PAUL
Stanislaus County Supervisor
GAC/jm
995
Richard Lyng
September 15. 1997
Hon Orrin G. Hatch
Chairman. Senate Judiciar>' Comminee
131 Russell Senate Office Buildmg
Washington. D.C. 20510
Dear Mr Chairman:
I am writing to you today as an old friend who wishes you to know of my
• strong support for the confirmation of Frank Damrell. Jr. to be U.S. District Court
Judge for the Eastern District of California.
i
Frank Damrell is exceptionally well qualified to ser\'e in this important
'^judicial post As a life-time resident of Modesto. California, who was privileged
'to serve in high level positions at the United States Department of Agriculture
'(Secretary-, 1969-1972). 1 believe Frank Damrell will be an outstanding judge in
■ one of the most sicnificani courts in the United States.
Best personal regards.
Richard Lyng
829 Brady Avenue • Modesto, Californio 95352
996
Western Growers Association
Struing the Califomlo and Arizona Frvsh Produce Industry
Ocl0ber22,1997
The HoDonble Jon Kyi
United States Ssnite
Hmt SmBTf Office Building Fscsimile TimsmiMJon
Wtshington. DC 205 10-0204 (202) 22&-1239
Dear Senator Kyi:
It is with a greet deal of plceswc thit I em writing to strongly recommend that you coniiim the
appoiotmem of Fnnk Dimrell, Jr. to the United States Distria Court for tbe Eaitcra District of
Califoraia.
In my view, Frank Datmell has severai unique qualities that will make him die perfect Eastern
Distria Ccun Judge. His extensive legal practice spaiming ova 30 yean has taken him from
duties as a California Deputy Attorney OMeral and Depxity District Attorney to a Washington,
D. C. agricultural lobbyist, to the head of his ovvn law firm headquartered in Modesto, Colifort^a.
He has great judgment, enjoys ajudicial demeorwr, and it one of the more ethical people I have
had the pleasure to know.
Not unimportant to me or to Western Growers Associarioo, Frank possesses great knowledge
about California agriculture. His firm represents many agricultural enteiptises and has
represented agricultural interests both in Sacramento and in Washington, DC This familiarity
with sgricuhure, combitted with his wied legal experiences, makes him ideally suited for the
Eastern District appointment which handles numerous agricultural matters. Frank is also
community m'^'^'^ and has geDciousty devoted much of his time to civic aad charitable
activities.
Frank Dsmiell truly deserves your support for a well earned nomination and confirmation.
Please give Frank your strongest consideration when he is before the Senate Judiciary Commitue
for confirmation.
DAVID L. MOORE
Presidem
be I Thomas OIHere
Mulling Atldttss: P.O. Bax 2/30. Ne^pan Beoth. CA 92658 • Stretrr Addnrsr 17620 Firc/i St.. fnilir. CA 926N
(714) iM-lOO() • FAX. (714) 863-9028 • Irutnin Addreu: hrrp:ll»y,-KMgu.<.om
e-d SiOIOi© MblLS^I UdflrtB 2.6. ZP- ""^
997
^: Valley
y
Heart """•'•^
1S40 Florida Avenue
Modesto, CA 9S3S0
Associates ^AZ:'dV.
medical group. Inc. Fax pos) 579-7246
To: Hon. Orrin G Hatch
13 1 Russell Senate 0£5ce Building
Waihington, D.C. 20510
1(202)224-5251
Fm.: L. Stephen Endsley MJ3.
Valley Heart A£sc>ciates
Dear Senator OfUr ft Hatch,
I am writing this unsolicited letter to support the confirmation of Frank C. Damrcll Jr. to be a
Federal Judge in the Eastern District of California. I have known Frank Danircll for about fifteen
years in his role as a leader in community and charitable causes.
rve discussed with him often about solving problems in our community and his love of the law. I
have found him to be serious, honest, and hard working, dedicated to people and helping solve
their problems. I find him to be highly knowledgeable about the law, but with a sensitive touch
about people and their issues. I would strongly recommend him to the Federal Bench.
For your rnformation I am not associated politically to him, or have no business or legal
relationships with Frank Damrell.
Sincerely,
L. Stephen Endsley M.D.
998
Senator Feinstein. I thank you.
In addition to Chuck Breyer and Frank Damrell, Senator Kyi,
there are two other candidates, and I know my colleague will par-
ticularly speak on one. However, I do want to recommend to the
committee Judge James Ware, the administration's nominee for the
Ninth Circuit Court of Appeals. I am delighted that this is
calendered. As you know, over one-third of that bench is vacant. Its
cases have grown dramatically and there are real problems.
He is a fellow Stanford alumnus. He went to Stanford Law
School in 1972. He served as a member of the Stanford Board of
Trustees. He attended Compton College, earned his B.A. degree
from California Lutheran University in 1969, and has served in the
Army Reserve.
He has been a State and Federal judge. In 1990, he was ap-
pointed by President George Bush to the U.S. District Court for the
Northern District, a position which he currently holds. Prior to
that, he served for 2 years on the Superior Court for Santa Clara
County. Before his judicial appointment, Judge Ware had 15 years
of experience in private practice, including significant in-court ex-
perience.
I will leave to Senator Boxer her nominee, Judge Martin Jenkins,
but I just want to say that at the same time Senator Boxer's com-
mittee was screening him, mine was as well, and she beat us to
the punch. I can assure you that Martin Jenkins is also well quali-
fied, and I will leave the specifics to my friend and colleague. Sen-
ator Boxer.
[Additional remarks of Senator Feinstein follows:]
Additional Remarks of Senator Dianne Feinstein
I wish to note for the record that the statement given above predated pubUc dis-
closure that Judge Ware fabricated a critical incident in his past. I would like to
file for the record an article that appeared in the Washington Post on November
7, 1997.
[From the Washington Post Nov. 7, 1997]
U.S. Judge Admits Lie, Withdraws as Nominee
APPEALS COURT CHOICE CLAIMED HE WAS BROTHER OF YOUTH SLAIN IN 1963
(By Joan Biskupic)
A federal judge withdrew his name from consideration for a California-based ap-
peals court seat yesterday after he admitted lying about being the brother of a black
youth shot to death after a 1963 church bombing in Birmingham.
U.S. District Judge James Ware, a 1990 trial court appointee of President George
Bush who had been nominated by President Clinton for a seat on the 9th U.S. Cir-
cuit Court of Appeals, said yesterday, "I regret my lack of honesty."
The Birmingham tale had become a signature of Ware, 51, as he rose through the
legal profession. In many public appearances, he claimed that he was the older
brother of Virgil Ware, 13, who was shot by two white teenagers in the aftermath
of the notorious Sixteenth Street Baptist Church bombing, in which four black girls
were killed.
"When I went through the death of my brother I came very close to becoming
someone who could hate with a passion," he said in a 1994 interview with the San
Jose Mercury News. "What happened to me was a defining experience, a turning
point in my life." In a talk this year, he vividly recalled riding his bike to a football
game with Virgil on the handlebars when the shots were fired: "The shots knocked
us off the side of the road, and he died there by the side of the road."
Ware's nomination, put forward by Clinton in June, had not run into any prob-
lems until this. White House counsel Charles F.C. Ruff said yesterday the adminis-
999
tration's overriding response to Ware's extraordinary admission was one of sadness.
"An3^ime a man who has had a distinguished career is caught up in a situation like
this," RufT said, "you can't help but feel sad." He said he did not know how the false-
hood had remained undetected through background checks.
Ware did not return phone calls to his San Jose office late yesterday but acknowl-
edged to the Associated Press earlier in the day that he had lied. In a letter to the
White House, he wrote, "I am deeply committed to the cause of civil rights and do
not wish to be seen, as is being suggested, as using the unfortunate tragedy which
befell Virgil Ware as trjang to better myself at someone else's expense."
He first admitted the lie after the Brimingham News pubhshed a story yesterday
in which family members of the slain youth disputed the judge's claims.
The Birmingham News quoted Virgil Ware's real brother, also named James, as
sajing, "I couldn't believe a judge would do something like that, being a man of the
law. I think it was wrong. He was trying to better himself off somebody else's grief"
According to the Birmingham News, James Ware, the brother of Virgil, has
worked for an Alabama coal mining company for 20 years.
The episode also was another peculiar twist for the 9th Circuit, which with its
liberal-leaning rulings, had been a constant target by conservatives on Capitol Hill
and the circuit most often reversed by the Supreme Court. Anyone nominated to the
court — covering nine western states— draws particular attention, but usually for his
or her legal decisions.
Ware's reputation appeared solid. A graduate of Stanford's law school, he was a
state judge in California from 1988 to 1990, when he was appointed to the trial
court for the northern district of California.
As word of his fabrication spread yesterday, senators from both parties urged him
to withdraw. Sen. Dianne Feinstein (D-Calif), who earlier had supported Ware's
nomination, called his admission "a very serious matter. This does not appear to be
a youthful indiscretion or misunderstanding about a tragic event that happened
many years ago."
Ware, who was bom in Birmingham, said he was in the city during the racial up-
heaval of 1993. He told the Associated Press, "My father had told me he had a son
about my age with another woman whose name was James. At one time he told me
she had another child named Virge. He told me that we were related to other Wares
in Birmingham. I did suffer the death of a sister by shooting at about this same
time. I used my tenuous connection with the Wares and my own feeling of loss as
a basis for malang a speech about Virgil Ware's death.
"After a great deal of soul searching, I request that my nomination be withdrawn
from consideration for appointment to the Ninth Circuit Court of Appeals at this
time. I am sorry that my misstatements about my background have caused such un-
intended consequences."
Senator Kyl. Thank you very much, Senator Feinstein.
I would note that Representative Gary Condit also planned to be
here. He, too, has been on the House floor, but he has submitted
a statement of introduction for Frank Damrell and that, of course,
will be included in the record.
[The prepared statement of Mr. Condit follows:]
Prepared Statement of Hon. Gary A. Condit, a Representative in Congress
From the State of California
I want to thank you and the committee for the opportunity to appear before you
today.
I'm here to urge your confirmation of my friend, Frank Damrell, to the United
States Federed Court.
Mr. Damrell is well known to the people of California's central valley. He and his
family have established a long record of community service and commitment.
Mr. Damrell's nomination for this position is supported by all the California state
legislators representing our area — Democrats and Republicans alike.
In addition, our law enforcement and local government officials also urge Frank's
confirmation. For us in the valley, the nomination of Frank Damrell is not con-
troversial. Rather, we view it as expected, and overdue. That is why his nomination
has such universal support.
Frank Damrell will bring fairness, common sense, and independence to the bench.
Frank Damrell will prove to be an exceptional jurist for California and the nation.
1000
It is also important, Mr. Chairman, that this nomination move swiftly through the
process. The federal court in Sacramento will soon be engaging in what is expected
to be a lengthy trial in the unibomber case.
The commitments of this trial will delay other federal court activity in the East-
em District. Moving this appointment swiftly is essential to addressing the judicial
backlog facing our district.
I respectfully request your committee's positive consideration of Mr. Damrell's
nomination.
Senator Kyl. Might I ask these three people who have been
mentioned right now to stand? Let me start with Mr. Breyer. Mr.
Breyer, would you please stand, and we will have you come for-
ward in just a moment. Next, Mr. Frank Damrell. Thank you, sir.
And finally. Judge James Ware. Judge, we will call you forward as
the next panel, all by yourself.
But first, let me ask Senator Boxer now to make her statements
of introduction.
STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Boxer. Thank you so much. Let me, before my col-
league leaves, compliment her on her recommendations to the
President. I happen to know Frank Damrell and Chuck Breyer
quite well and they are fine human beings. They will make great
judges. I am very, very pleased that they are here today. I send
them my best wishes.
I also want to add my words on behalf of Judge Ware. I think
it is really crucial we move on that ninth circuit. We have a third
of those seats that are vacant. This is a great choice.
Mr. Chairman, I am so proud to be here today to introduce Judge
Martin Jenkins for the U.S. District Court in the Northern District
of California. Senator Feinstein alluded to him, and I know she is
going to the Senate floor because we have to be there to fight for
McClellan Air Force Base, so I will say goodbye to her and see her
on the floor.
I wanted to say that Judge Martin Jenkins, this was kind of a
race because Senator Feinstein's group thought he was a great
choice and my group did, as well, and we did come out first. I
would ask if he would stand at this point, and I think his dad is
with him. Would his dad stand, as well? We are so proud that you
could be here.
Senator Kyl. Senator Boxer, you beat me to the punch. For
those who have not introduced families, I am going to give you all
that opportunity in just a moment, so do not think I forgot. But
thank you. Senator Boxer.
Senator Boxer. Good. I recommended Judge Jenkins to the
President on May 5, 1997, because I found him to be eminently
qualified for the position, as did my northern district judicial advi-
sory committee. Judge Jenkins has a distinguished legal career.
Currently, he serves as a California State Superior Court judge in
Alameda County. He was appointed to that position by Republican
Governor Pete Wilson.
For years prior to his service on the State superior bench, he
served as an Alameda County Municipal Court judge, having been
appointed by Republican Governor George Deukmejian in 1989.
Judge Jenkins received his Juris Doctorate degree from the Univer-
1001
sity of San Francisco School of Law and his undergraduate degree
from the University of Santa Clara.
Early in his career, he was a deputy district attorney in Alameda
County and an attorney for the U.S. Department of Justice in the
Civil Rights Division for 2 years under President Reagan. Prior to
his service as Municipal Court judge, he was an attorney for Pacific
Bell.
For years. Judge Jenkins has been involved in numerous profes-
sional activities. He was appointed to the prestigious California
State Federal Judicial Council by Chief Justice Ronald George. Ad-
ditionally, he is a member of the California Supreme Court's Advi-
sory Committee on Judicial Ethics and has been active in a variety
of education activities for judges, lawyers, and law students.
Judge Jenkins has also been involved in numerous community
activities. He was appointed to the Board of Regents for the Uni-
versity of Santa Clara, as well as to the Board of Governors for the
University of San Francisco School of Law. He sits currently on the
Board of Directors for the University of San Francisco "Street Law
Project" and has been active in his church, working with young
adults.
Mr. Chairman, this is a man who has support from Republicans
and Democrats alike. I urge the members of this distinguished
committee to vote Judge Jenkins out of committee in hopes that
the full Senate may have the opportunity to act quickly on his
nomination. I think that his intelligence, his judicial temperament,
his broad experience in professional life and community service and
his deep commitment to justice qualify him to serve the people of
California and the people of this Nation with great distinction, and
I so appreciate this opportunity to introduce such a fine human
being to you. Thank you very much.
Senator Kyl. Thank you very much, Senator Boxer.
We have now a final panel from Pennsylvania. We will be calling
the judicial candidates forward after we have finished with our
Members of the House and Senate.
Senator Rick Santorum, Congressman Tom Foglietta, and Con-
gressman Chaka Fattah, and I believe that Senator Specter may be
here later, so we will go forward with the panel. This is for the
nomination of Frederica Massiah-Jackson. Let me begin. Senator
Santorum, with your statement of introduction.
STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you. Senator. I would say that Judge
Massiah-Jackson has an impressive lineup of a Senator, a Con-
gressman, and an Ambassador all here.
Senator Kyl. An Ambassador-in-waiting.
Senator Santorum. An ambassador-in-waiting, all here to intro-
duce her to the committee. Let me say also that Senator Kyl men-
tioned that Senator Specter, I am sure, if he is not here in time
to introduce her before she is here, has certainly been very active
in supporting Judge Massiah-Jackson. Senator Specter and I have
been requesting . the committee to hold a hearing to consider her
nomination.
1002
Usually, I play second fiddle to Senator Specter, and so anticipat-
ing that, I do not have any of the judge's credentials in fi'ont of me,
because he usually goes through that. So I apologize in advance for
that.
But I do know she was raised in Philadelphia and attended col-
lege there and was elected to the Court of Common Pleas at Phila-
delphia in 1983, where she served initially in the criminal division
and then later about an equal amount of time in the civil division
in the Philadelphia courts.
As the committee knows. Senator Specter and I have set up a
nonpartisan, I believe, very much unbiased committee to review
nominees for all of the district courts in Pennsylvania. We now
have four vacancies in the eastern district and our committee met
and convened and recommended three recommendations for each of
the positions open.
Judge Massiah-Jackson was recommended as qualified by the
committee. We have, as I said, very rigorous committee qualifica-
tions and she met those qualifications, and as a result, I am glad
the committee has moved forward, given our recommendation from
our committee and Senator Specter's and my recommendation to
hold a hearing on Judge Jackson. I know there was some hold-up
on that, but I am glad that Senator Hatch and the committee has
decided to move forward and to give discussion.
I am going to be very candid, and I know the committee has
some concerns. Senator Specter and I have the very strong feeling
that the judge should be here to be able to hear those concerns and
respond to those concerns, and so I am very pleased that the com-
mittee decided to hold this hearing and give the judge the oppor-
tunity to be heard on her record and on her accomplishments.
I thank the committee for their consideration and recommend ac-
tion. Thank you.
Senator Kyl. Thank you very much. Senator Santorum.
Congressman Foglietta.
STATEMENT OF HON. THOMAS M. FOGLIETTA, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Foglietta. Thank you, Mr. Chairman. Let me say at the
outset that I am pleased to be here before a committee that you
are chairing, after having served with you for so many years on the
Armed Services Committee over in the other body.
Second, let me say that although I have been nominated as the
Ambassador to Italy and confirmed by your honorable body, I am
happy, in a way, that I have not been sworn in yet because it gives
me the opportunity to be here before you to tell you that I am not
only pleased but I am honored to recommend to you Frederica
Massiah-Jackson, an eminent jurist for your confirmation as a
member of the U.S. District Court for Eastern Pennsylvania.
Judge Jackson has the qualities that I respect, the qualities that
I think that we need in jurists on our Federal bench. She is a per-
son of great intellect. She has a keen commitment and a keen un-
derstanding of the law, and most importantly, justice and how jus-
tice is to be dispensed. She believes with every iota of energy and
soul in her body that she believes in equal justice for all persons.
1003
regardless of their race, regardless of their financial condition, and
regardless of their position in life.
She has served on the Philadelphia Court of Common Pleas since
1983, and during that time, she has certainly earned the respect
of her peers on the bench, members of the bar throughout Philadel-
phia, and most importantly, the citizens of Philadelphia during
those years. Her knowledge of the law and her very, very high ethi-
cal standards are evidenced by her service on the Board of Gov-
ernors, the Pennsylvania Bar Association, and the hearing commit-
tee of the Disciplinary Board of the Supreme Court of Pennsyl-
vania.
She has served on many, many other committees, working with
the community in the city of Philadelphia to try to alleviate the
suffering that so many of the citizens of our city have because of
their financial situation — training programs for young people, edu-
cational programs, so many of the things that I admire in an indi-
vidual, but most importantly, admire in a judge who has so many
other responsibilities and time-consuming duties, that she gives of
her time and of herself for these wonderful, wonderful causes.
So I really deem it an honor to be able to join my good friends.
Senator Rick Santorum, Congressman Chaka Fattah, and I see just
arrived my very dear friend and colleague for many, many years.
Senator Arlen Specter, in their praise. I am happy to be able to join
them in their praise and their support to respectfully urge that you
and your committee consider favorably Judge Massiah Jackson for
her confirmation to the district court.
Senator Kyl. Thank you very much, Representative Foglietta.
Senator Specter, a distinguished member of the committee, has
arrived and if it is all right with you. Congressman, we will defer
to the senior Senator.
Mr. Fattah. Absolutely.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator SPECTER. Thank you very much, Mr. Chairman.
We are having Governmental Affairs hearings right down the
corridor and I had intended to wait until Judge Massiah-Jackson
came, but when I heard that Senator Santorum and Congressman
Foglietta and Congressman Fattah were here, I came right over. I
did not want to be absent during this important part of the pro-
ceeding.
We had a hearing for Judge Frederica Massiah-Jackson in Phila-
delphia, attended by Senator Santorum, Senator Biden, and myself,
and all the testimony at that time was very positive about her. The
key witness for Judge Massiah-Jackson, in my opinion, is Mayor
Rendell. He was the district attorney during the first 3 years of her
tenure and he has been the Mayor for the last 5 years of her tenure
and was in Philadelphia at the time and attests to her strong
qualifications as a judge.
He pointed out that, of all of the matters taken under her sen-
tencing issue, that only one was appealed, and on that, she was
sustained. I know that Mayor Rendell is tough on sentencing be-
cause I taught him. He was an assistant district attorney in Phila-
delphia. I gave Ed Rendell his first job, as an assistant district at-
1004
torney, when he graduated from law school in 1967. He was a
tough prosecutor, was chief of the Homicide Division.
So I make these remarks just briefly. I would like to have admit-
ted into the record a letter which was sent to Senator Hatch on the
subject.
Senator Kyl. Without objection.
[The letter of Senator Specter follows:]
1005
United States Senate
GRAIN G. HATCH. UTAH CHAIRMAN
STBOM THURMOND. SOUTH CAROUNA
CHARLES E GRASSLEY. tOWA
ARLEN SPECTER. PENNSYLVANIA JOSEPH R 8I0EN, Jtt.. DELAWARE
FRED THOMPSON. TENNESSEE HERBERT KOHL, WISCONSIN
JON KYL. ARIZONA 0<ANNE FEINSTEIN. CALIFORNIA
MIKE OeWINE. OHIO RUSSELL D FElNGOLD. WISCONSIN
JOHN ASHCROFT. MISSOURI RICHARD J- DURBIN. ILUNOIS
Je^f^Is^^STa^'^'iS^"""* B06ERTGToflRic£.u. new jersey COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275
OctolDer 8, 1997
The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510
Dear Orrin:
On Friday, October 3, Senator Biden, Senator Santorum and I conducted a hearing
which lasted a little over two hours in Philadelphia concerning the qualifications of
Judge Frederica Massiah- Jackson .
Ten witnesses appeared who voiced strong support for Judge Massiah- Jackson.
Five of the witnesses were Common Pleas Judges who know her work in detail. They
were: President Judge Alex Bonavitacola, Administrative Judge John Herron, Judge John
Young, Judge Richard Klein and Judge Victor DiNubile.
The testimony as to Judge Massiah- Jackson' s sentencing record was summed up by
President Judge Bonavitacola who said that her comparisons with the statutory guideline
ranged from 70% to 86% over the years when the statistics were maintained compared to
a 72% to 82% rating for the other Philadelphia Common Pleas Judges.
President Judge Bonavitacola characterized Judge Massiah-Jackson' s record as
"excellent . "
The other five witnesses, including Clifford Haines, Chancellor of the
Philadelphia Bar Association, also testified in strong support of Judge Massiah-Jackson.
While Mayor Rendell could not be present because of a prior commitment in Salt
Lake City, he had advised in advance of the hearing that he thought Judge Massiah-
Jackson had an exemplary record on sentencing. He stated that he was District Attorney
during the first three years of her tenure; that lie was very concerned about sentencing
and that he was satisfied with her sentencing record.
Mayor Rendell further noted that Judge Massiah-Jackson had only had one appeal
taken from the District Attorney's office based on her sentencing and on that one, she
was affirmed.
With this letter, I am enclosing prepared statements from Mayor Rendell, Clifford
Haines, President Judge Alex Bonavitacola, Judge Richard Klein and Samuel Evans,
Chairman, AFNA National Education k Research Fund.
Police Commissioner Richard Neal declined our invitation to testify saying that
he had nothing to say one way or another. District Attorney Lynne Abraham also declined
our invitation.
In advance of the hearing, we had invited people to come if they had anything
adverse or favorable to say.
There was no adverse witness .
I believe it is very important that we have a prompt hearing on Judge Massiah-
Jackson so that Senators are in a position to make a decision on her nomination before
we adjourn in mid-November.
Thanks very much for yOMj: consideration of this request
Enclosures
HAND DELIVER
ion or tnis request . . j ^^ , ^
L .... ,. /try A/^n^T ^^^*-^*^
1006
Senator Specter. I think a hearing is important. I have heard
comments about Judge Massiah-Jackson raising questions as to
sentencing, and that is inevitable when you have a person on the
bench for a long period of time. I have said that anybody who has
anything to say, let them come forward. Let us hear what they
have to say. Let us make an evaluation. Let us have a hearing.
The reason that Senator Santorum and Senator Biden and I
went to Philadelphia was to give people a chance to come in and
speak up, and they have a chance to have a hearing now. Let us
see what the facts are.
I am going to excuse myself now, Mr. Chairman, to go back to
Governmental Affairs. I will return when Judge Massiah-Jackson
is up for questioning.
Senator Kyl. Thank you very much, Senator Specter.
Congressman Fattah.
STATEMENT OF HON. CHAKA FATTAH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Fattah. Thank you, and let me thank the two Senators from
the great State of Pennsylvania, Senator Specter and Senator
Santorum, for pursuing this nomination. It is a great honor for me
to be supportive of President Clinton's nominee for one of the va-
cancies in the Eastern District of Pennsylvania.
As Senator Santorum mentioned, there are a number of vacan-
cies there, but a vacancy that has existed since the inception of the
court is that with this nomination, this would be the first time that
an African-American woman would serve in that capacity.
Now, Judge Jackson is extraordinarily qualified. I think you will
find through this hearing process that any concerns raised about
her record are being raised by people who are not informed. She
has handled thousands of cases, and as Senator Specter has just
indicated, there was only one appeal and that was sustained.
So I think that this hearing process will provide an opportunity
for light to be shone onto her record. It is one in which all who re-
side in our great State are extraordinarily proud and I want to just
join with my colleagues in urging this committee to favorably rec-
ommend to the full committee and to the — I used to serve in the
Senate in Pennsylvania and we called ourselves the "upper cham-
ber" in comparison to the House. Here, it is only referred to as the
"other chamber."
So whatever the case may be, I am sure that the wisdom of the
Senate will be pointed out
Senator Kyl. Flattery will get you everywhere. [Laughter.]
Mr. Fattah [continuing]. In terms of this nomination and I do
appreciate the time and consideration that this committee is pro-
viding to my constituent for this hearing.
Senator Kyl. Thank you very much for that. In fact, all of the
introductory statements, of course, have been very fine statements.
Judge Jackson, would you please stand so everybody here can see
you. We will be calling you forward after a bit, too. Thank you very
much. And thank you very much to the panel.
I hope that this process will, as I said, enable us to conclude this
hearing today. I apologize for not having each of the people who
1007
were introduced at the table when the introductions were being
made, but I think this will expedite the process.
Let me now call James J. Ware, Judge Ware of California, to
come forward and be the first panel. He is nominated for the U.S.
Circuit Court, the ninth circuit. Mr. Ware, will you please stand
and be sworn first?
Do you swear that the testimony you give in this hearing shall
be the truth, the whole truth, and nothing but the truth, so help
you God?
Judge Ware. I do.
Senator Kyl. Thank you. Please be seated.
Judge, if you would like to make any kind of a statement, you
are welcome to do that. Otherwise, the committee will begin its
questioning. I see that my colleague has departed, so it may be me
asking you the questions, but you are welcome to make a state-
ment if you would like, and I would also like you when you are
done to introduce the members of your family who might be here
or anyone else you would like to introduce.
TESTIMONY OF JAMES S. WARE, OF CALIFORNIA, TO BE U.S.
CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Judge Ware. Thank you, Mr. Chairman. I do not have a pre-
pared statement, but I would wish to take this opportunity to ac-
knowledge the absence of my wife, Susan, who would very much
wish to be here, and my son, Jeremy. They are home in Mountain
View, CA. But I am fortunate that my daughter, Carlie, who is a
sophomore at Yale, was able to fly down from New Haven to be
with me here today.
Senator Kyl. Welcome to the committee.
Judge Ware. I also would wish to acknowledge the presence of
Jan White, who is a local attorney here in Washington, a classmate
of mine from Stanford. We just had our reunion at Stanford and
she came, as well, to be supportive.
questioning by senator kyl
Senator Kyl. Thank you for coming. We appreciate the attend-
ance of all of the people in the audience, friends and family alike.
Judge, you come highly recommended. You have had some won-
derful statements said about you and it is the intention of the com-
mittee, and I know I speak for the chairman in indicating it is our
intention to try to fill these positions. The ninth circuit is the cir-
cuit of my State, as well, and we understand how important it is
to fill these positions, so you certainly have our commitment to try
to move this along as quickly as possible.
Let me ask you a couple of questions. If other members arrive,
then, of course I will call upon them to do so.
In a recent article, you criticize the operation of mandatory mini-
mum sentences as inconsistent with the sentencing guidelines
scheme. Specifically, you wrote, and I am quoting now, "The judi-
cial branch, charged with imposing a sentence according to law, is
empowered to exercise its discretion to modify rigid rules if war-
ranted by circumstances in a particular case." That was in the arti-
cle, "A Clash of Sentencing Policies: Sentencing Guidelines Versus
Mandatory Minimums."
1008
Do you believe that if the sentencing guidelines would prescribe
a sentence below a mandatory minimum sentence, that you could
ignore the statutory minimum?
Judge Ware. No, Senator. I should say, it was not a recent arti-
cle. It was an article written very soon after the guidelines had
been passed. It had an invitation to write a piece for a meeting of
the State Bar of California at one of the annual meetings. There
was going to be a discussion of the sentencing guidelines and I was
asked to write a piece to be submitted to provoke a discussion
about the guidelines and how the policies of the guidelines com-
pared with those of mandatory minimums.
Senator Kyl. I appreciate the correction for the record. Could you
give us a rough time frame of when that was written, then?
Judge Ware. I believe it was around 1990. The guidelines came
into effect in the mid-1980's and this was an article that was sub-
mitted in approximately 1990.
Senator Kyl. Could you explain, then, your view of what a judge
should do when the guidelines and the mandatory minimums
clash?
Judge Ware. Well, there is no clash, quite frankly. The manda-
tory minimum sentence, if it is required by law, is the one that a
court must impose. I would follow, and I have followed, the law in
that respect in the sentences that have been handed down by me
during my tenure as a district judge.
Senator Kyl. And I gather it would be your intention to continue
to do so?
Judge Ware. Yes, sir.
Senator Kyl. In the absence of controlling precedent, how would
you characterize your approach to interpreting the Constitution?
Judge Ware. Well, in the absence of precedents, I presume that
I would be involved in applying the Constitution to a statute of
some sort. It is my belief that statutes passed by Congress should
be presumed constitutional. If there are no cases upon which I
could rely construing that statute, I would do my best to find as
closely analogous a situation that would apply to the case. And in
any event, I would attempt to try to decide the case as I believe
the Supreme Court would decide it if the case were before it.
Senator Kyl. For those who are not schooled in the law, that is
kind of a quick question, properly answered, because, of course, in
every case the lawyers argue that there is some precedent of some
kind or some statutory or other reference to which the judge can
make for a decision, and I appreciate that answer.
Can you think of cases that you think were — and I am talking
now in the area of constitutional law — where strictly as a matter
of first impression, do you think the U.S. Supreme Court improp-
erly departed from the text or the meaning or history of the U.S.
Constitution?
Judge Ware. Well, it is difficult to think of a recent case. In our
history, I would bring to mind the case of Plessy v. Ferguson, which
is a case where the U.S. Supreme Court endorsed the separate but
equal doctrine. Quite frankly, I believe that the Supreme Court, in
making that decision, was attempting, in its own view, to interpret
the constitution. But since that case and over time, we have come
to a position where the Supreme Court has indicated that separate
1009
but equal is inherently unequal. That is now the law of the land
and that is the law which I apply.
Senator Kyl. And, of course, as a member of the circuit court of
appeals, it is your obligation to apply the law as interpreted by the
Supreme Court.
Let me ask you a question about an issue that is becoming im-
portant in recent years and ask you to set forth your views on
whether, when there is no evidence of past acts of employment dis-
crimination directed at either identifiable individuals or any par-
ticular minority groups, and no evidence that members of a par-
ticular minority group are underrepresented in an employer's work
force, whether an employee may, under the Equal Protection
Clause of the 14th amendment or title VII of the 1964 Civil Rights
Act, use race, national origin, or gender as the basis for employ-
ment decisions.
Judge Ware. You said whether an employee may. I presume you
meant employer.
Senator Kyl. I misspoke. Employer, you are right.
Judge Ware. The case that I would bring to mind in response to
your question is the Adarand decision of the U.S. Supreme Court,
which, to my understanding, holds that in the absence of past acts
of discrimination, race may not be used, that it is a suspect classi-
fication and that it is subject to strict scrutiny, the highest con-
stitutional standard available, and it must be measured against
whether there is a compelling governmental interest. But in the ab-
sence of a case of past discrimination, where race is being used to
remedy that, that race may not be used as a basis.
Senator Kyl. And that is the standard that you would apply?
Judge Ware. That is the standard I would apply.
Senator Kyl. There being no other Senators here, I will ignore
the red light and proceed. But what I would like to do is, instead
of asking you all the questions which have been prepared by mem-
bers and staff of various members, perhaps ask one more, since
Senator Kohl is now here, and then submit a couple of questions
for the record for you to answer. Let me just ask you one more
question, and then if Senator Kohl has questions, I will call upon
him.
Please state your best independent legal judgment, irrespective
of existing U.S. precedent on the constitutionality of capital punish-
ment.
Judge Ware. Capital punishment is constitutional, Mr. Chair-
man, and that is the law as enunciated to us by the Supreme Court
and I have no personal or philosophical beliefs that would in any
way interfere with my applying capital punishment. I would not re-
joice at the prospect, but in a proper case, I would not hesitate to
oblige.
Senator Kyl. Thank you very much.
Senator Kohl, do you have questions for the witness?
Senator KOHL. No.
Senator Kyl. There are, as I said, a variety of other questions,
but frankly, based upon the answers to the questions that you have
provided thus far, all of which exhibit a very sound understanding
of the law as I understand it and a desire to apply the law as enun-
ciated by the Supreme Court, which is the duty of a member of the
1010
circuit court, I would prefer simply to submit these other questions
for the record. They are not unlike the questions that I have just
been asking and that way we can move on to some of these other
nominees.
I want to tell the people in the audience
Judge Ware. Thank you very much.
Senator Kyl. If I could, while you are just seated here. The effort
here, and you have heard reference to it by a couple of the Sen-
ators, to urge the Senate to hurry up and get some nominees ap-
proved, confirmed, so that these individuals can take their position
on the bench, is well taken and our effort here today is to try to
expedite that process.
I fear that our effort could be misinterpreted as a lack of interest
in each individual nominee and in rushing through, without ade-
quately considering factors pertinent to their nomination or an un-
willingness to listen to them and to hear them, I want to assure
all of the people in the audience that that is absolutely not the
case, that to the extent we proceed quickly through this hearing,
it is because of the qualifications of the nominees, that they have
satisfied the preliminary tests that the administration and that the
Senate staff and that the members themselves have applied to the
nominations and that the lack of questions is really a testament to
their qualifications and to the probability that the committee will
act quickly on the nomination.
So please do not take our failure to hold the witnesses here for
1 hour and subject them to a long line of excruciating questions
here as a lack of interest but rather a confirmation of the signifi-
cant qualifications that they bring, and certainly. Judge Ware, that
applies in your case.
Judge Ware. Thank you, Mr. Chairman.
Senator Kyl. Senator Kohl, do you have anything else?
Senator KOHL. No.
Senator Kyl. Thank you very much for your presence here and
we will look forward to seeing you again.
The next panel is a large panel, and let me ask each of you to
please come to the table — Mr. Lynn Adelman, of Wisconsin, nomi-
nated to be U.S. district judge for the Eastern District of Wiscon-
sin; Mr. Charles Breyer, of California, to be U.S. district judge for
the Northern District of California; Mr. Frank C. Damrell, Jr., of
California, to be U.S. district judge for the Eastern District of Cali-
fornia; Judge Martin J. Jenkins, of California, to be U.S. district
judge for the Northern District of California; Judge Michael P.
McCuskey, of Illinois, to be U.S. district judge for the Central Dis-
trict of Illinois; and Mr. G. Patrick Murphy, of Illinois, to be U.S.
district judge for the Southern District of Illinois. Please stand and
raise your right hand.
Do you swear the testimony you shall give in this hearing shall
be the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Adelman. I do.
Mr. Breyer. I do.
Mr. Damrell. I do.
Judge Jenkins. I do.
Judge McCuskey. I do.
1011
Mr. Murphy. I do.
Senator Kyl. Senator Kohl has asked, Mr. Adelman, that we
begin the questioning with you. I might say prehminarily that be-
cause of the size of the panel, when I ask you questions, I may ask
it of one and then ask each of the members of the panel, in turn,
to respond to that same question. But there may be one or two
questions that are unique to individual nominees, and, therefore,
we can certainly handle it that way.
Mr. Adelman, let me begin with you and Senator Kohl can begin
the questioning.
QUESTIONING BY SENATOR KOHL
Senator KoHL. Thank you very much.
Mr. Adelman, would you give us some of the background in your
life, your family experience, some of your philosophy which leads
you here today to want to be a Federal judge and which makes you
feel that you would be a good Federal judge?
Senator Kyl. May I interrupt for just a moment? I forgot to ask
each of these nominees to introduce friends and family who are
here, and since that is probably pertinent to that question you just
asked, let me ask Mr. Adelman, first of all, to introduce the mem-
bers of his friends or family here who he would like to introduce,
and may I also, then, ask each of the other members of the panel
to do the same and then we will return to that question, Mr.
Adelman, if that is all right with you. Senator Kohl.
TESTIMONY OF LYNN S. ADELMAN, OF WISCONSIN, TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN
Mr. Adelman. Thank you, Mr. Chairman. First, I would like to
introduce my wife, Betty, Betty Adelman, who is also my law part-
ner, and my mother, Edie Adelman, and my father, OUie Adelman,
and my brother, Craig Adelman.
Senator Kyl. Welcome to all of you. I gather you are the senior
partner in the firm. [Laughter.]
Thank you. Mr. Breyer.
TESTIMONY OF CHARLES R. BREYER, OF CALIFORNIA, TO BE
U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA
Mr. Breyer. Thank you very much. I would like to introduce my
wife, Sydney Goldstein, and my son, Joseph Goldstein-Breyer, and
my daughter, Kate Goldstein-Breyer, and also my godson, Collin
Streck, who is here.
Senator Kyl. Great. All of you, welcome.
TESTIMONY OF FRANK C. DAMRELL, JR., OF CALIFORNIA, TO
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
CALIFORNIA
Mr. Damrell. Mr. Chairman, let me introduce my wife,
Lidwiena, my son, Jim, who is a third-year law student at Notre
Dame, my daughter, Ann. Two children of ours could not make it,
Frank and Alida. They are in California. I have some friends here
in Washington who have also attended the hearing I would like to
introduce, as well.
1012
Senator Kyl. Please.
Mr. Damrell. First, close family friend, Ann Veneman, who is
the Secretary of Agriculture for the State of California. Charlie
McBride, Cheryl Shelby, and Mel Herwitz.
Senator Kyl. Welcome to all of you, and to Notre Dame, good
luck.
Judge Jenkins.
TESTIMONY OF MARTIN J. JENKINS, OF CALIFORNIA, TO BE
U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA
Judge Jenkins. Thank you, Mr. Chairman. I would like to intro-
duce my father, James Jenkins, and a close family friend I have
known for about 25 years, Mr. Jim Gilyard, and right behind him,
I have some relatives from Philadelphia who have journeyed here
today. I have a cousin. Can you stand, Jeff Junior, and Jeff Junior's
father, Jeff Senior, and his wife, Angela, and their new child, Jerry,
who are right outside. Thank you.
Senator Kyl. Great. Thank you very much and welcome to all of
you.
Judge McCuskey.
TESTIMONY OF MICHAEL P. McCUSKEY, OF ILLINOIS, TO BE
U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLI-
NOIS
Judge McCuskey. Thank you, Mr. Chairman.
Unfortunately, as Senator Durbin mentioned, my wife, Brenda,
and my son, Ryan, who is a 3-year-old, cannot be here, and my
daughter, Melinda, has mid-terms at Southern Illinois University,
so I have no one from my family, but I do have some friends I
would like to introduce, if possible.
Senator Kyl. Please.
Judge McCuskey. Bill and Tilla Hancock, who live here in the
District. Bill is originally from my area of the State of Illinois, and
his wife are both lawyers and have resided here in the District for
many years.
Senator Kyl. Welcome to both of you.
Judge McCuskey. Could I ask, Mr. Chairman, if Congressman
LaHood was going to be here and also give introductions today, and
the last time I noticed, he was in the chair presiding over the
House of Representatives. Will he be afforded the opportunity in
the next 3 days to file remarks?
Senator Kyl. Absolutely. In fact, I was handed a note that he
could not be here because of that. His statement and any other in-
formation that he would like to submit will, of course, be made a
part of the record.
Judge McCuskey. Thank you very much. I appreciate the bipar-
tisan support.
Senator Kyl. That is the way this process has to work.
Mr. Murphy.
1013
TESTIMONY OF G. PATRICK MURPHY, OF ILLINOIS, TO BE U,S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS
Mr. Murphy. Good afternoon, Mr. Chairman. I am here alone,
but I trust my children are in school and diligently applying them-
selves and my wife is working. Thank you.
Senator Kyl. Great. Thank you.
Now, Senator Kohl had asked Mr. Adelman a question. Please
proceed.
Mr. Adelman. I practiced law for 30 years and served as a legis-
lator. I see serving as a judge as a continuation of public service.
I think that the role of a judge would be much different than the
roles I have played in the past, but I think my experience as a
State legislator has made me very sensitive to the doctrine of sepa-
ration of powers and to the limited role of a judicial officer.
Senator Kohl. One other question, Mr. Adelman. Many people
are concerned that there is too much confidentiality in litigation
today, and altogether too often secrecy agreements prevent real
dangers to public safety from being disclosed. For example, settle-
ment agreements often require a plaintiff injured by a defective
product to take a vow of silence even though the product is still
being used by the public.
My question to you is before signing a protective order to con-
fidentiality agreement regarding the public health or safety, would
you carefully scrutinize whether such secrecy is needed? How im-
portant do you think this issue is?
Mr. Adelman. I think it is very important. I would carefully
scrutinize whether a secrecy agreement was warranted and I would
apply the law as it existed in the Seventh Circuit and provided by
the Supreme Court.
Senator Kohl. Thank you, Mr. Adelman. Thank you, Mr. Chair-
man.
Senator Kyl. Senator Feingold.
QUESTIONING BY SENATOR FEINGOLD
Senator FEINGOLD. Thank you, Mr. Chairman.
Mr. Adelman, in addition to your successful law practice, you
served with distinction in the Wisconsin State Senate for 20 years,
but obviously the role of the legislature is much different, but
equally important as that of the judiciary.
Would you please share with the committee your understanding
of the separation of powers and how your role will be different on
the bench than in the Wisconsin State Senate?
Mr. Adelman. It will be very different. As a legislator, one is a
policymaker. As a judge, one decides cases before them fairly based
only on the facts. Judges do not make policy, and the policymaking
is the province of the other branches and I am very sensitive to
that limitation.
Senator FEINGOLD. Thank you, Mr. Chairman.
Senator Kyl. Thank you.
Senator Durbin.
QUESTIONING BY SENATOR DURBIN
Senator DURBIN. Thank you, Mr. Chairman.
1014
Judge McCuskey, we often wrestle with the issue of sentencing
guideHnes, and clearly those guidelines have been established at
the Federal level. You have probably dealt with the same phenome-
non in State law. I would like to hear your experience and thoughts
on sentencing guidelines, what you feel about those in terms of
your practice on the bench.
Judge McCuskey. Well, one of the things that strikes me is that
my entire law practice has been in a determinant sentence situa-
tion. When Governor Thompson came into office, Illinois moved to
determine its sentences. So we are not a parole State. We do not
have extremely large parameters in sentencing, maybe not as nar-
row as the Federal sentencing guidelines, but we have a statute in
Illinois that narrows the range of sentences for judges. And that is
what I grew up with as an attorney, as a circuit judge, and now
in reviewing sentences.
The Federal sentencing guidelines may contain a narrower range
for a Federal district judge, but I am certainly used to working
within guidelines and realize that the power of the judiciary is lim-
ited by statute and that we must look at the statute and apply the
appropriate sentence to the facts.
Senator DURBIN. Mr. Murphy, your practice as an attorney has
been on the other side of the bench, and one of the issues that I
can recall from my own private practice of great interest was judi-
cial temperament. We are looking for people who are firm and fair
and get about their business. I would like you to reflect on the
judges that you practiced before without naming names and talk
about the elements or qualities that you think are important if you
are successful in being confirmed to the Federal bench.
Mr. Murphy. Senator Durbin, Mr. Chairman, in practicing in
front of many judges, Federal and State, all over the Midwest, I
have been in front of judges that were just extremely difficult. They
were difficult for the lawyers, they were difficult for the litigants,
and they were difficult for the people that worked around them.
On the other hand, I have been around judges who were gra-
cious, courteous, professional, and moved the cases along. Some
people, it seems, have a personality such that, if given power, they
do not handle it well, and when they don't, it makes the litigation
process much more difficult than it should be. It is very important,
I think, for a judge to be firm, but courteous.
If there is one virtue that comes to me naturally, it is humility,
and if anyone knows anything about my background, you would
know there are a hundred reasons why that is the case. I have
served with men in war. I believe I understand how to get along
with people and work with people and lead people, and I know that
I can be courteous and firm at the same time and I think that is
critical, particularly in the Federal courts.
Senator DURBIN. Judge McCuskey, since you have had this op-
portunity, without being self-critical, could you comment on this
element of a judge's performance?
Judge McCuskey. I think that judicial temperament is the single
most defining quality of a judge. Congressman Evans paid me a
compliment and I had even forgotten about it. In 1990, 800 lawyers
rated my qualifications as a circuit judge in the 21 counties when
I ran for the appellate court and I received the highest score on
1015
legal ability. But what made me feel the best was I received the
highest score, an exceptionally qualified rating, on judicial tem-
perament, which was my highest score.
I think that a judge in the decisionmaking qualities has to han-
dle what I call the four F's. You have to be fast, you have to be
fair, you have to be firm, and a judge must be friendly. People do
not always enjoy litigating cases. Jurors certainly don't like lengthy
Federal district court jury duty, and we have to remember that the
people come before a court and look to the judge for an attitude.
And if that attitude is not fair and friendly, that is what they take
home, that is what they tell people about the system. And I think
it is my responsibility to make them have the best feeling about
the court experience and what happens in the courtroom.
Senator Durbin. Mr. Chairman, I will add in closing that Mr.
Murphy here received a very kind and generous letter from Judge
Phil Gilbert, who is a Federal district court judge in the southern
district. Judge Gilbert was appointed under a Republican adminis-
tration. I knew his father when his father was a Republican State
senator. It is a wonderful family.
And Judge Gilbert had the highest praise for Pat Murphy, who
practiced before him, for his knowledge of the law and his fairness,
too. And I don't want this to continue to sound like a cheering sec-
tion, but both Senator Carol Moseley-Braun and I are very proud
to present these nominees.
Thank you.
Senator Kyl. Thank you, Senator Durbin.
In order to make this not appear to be too easy, let me ask Mr.
Adelman a question, if I could. In the October 1993 issue of Wis-
consin Lawyer magazine, you authored an article titled "Wisconsin
Should Not Reverse 140 Years of History by Reinstating the Death
Penalty." In that article, you enumerated a list of arguments
against the death penalty, including that it disproportionately ap-
plied to racial minorities, it is arbitrarily imposed, it does not effec-
tively deter future crimes, it is unduly expensive, and it reflects
badly on the United States vis-a-vis other Western democracies.
Given your forceful personal opposition to the death penalty, do
you believe you can effectively and fairly decide capital cases on the
Federal bench?
Mr. Adelman. Yes, Mr. Chairman, I do. In that article, I was
serving as an advocate of a legislative position which has actually
been the law in Wisconsin for many, many years. However, my job
as a judge would be very different and it would be — the Supreme
Court has found that the death penalty is constitutional. It would
be my job to uphold the law as a district court, and there is nothing
in my personal beliefs that would in any way impair me from fol-
lowing the law as decided by the Supreme Court and the seventh
circuit.
Senator Kyl. So notwithstanding those personal views, you
would apply the law and, if necessary, in appropriate cir-
cumstances, be willing to apply the death penalty?
Mr. Adelman. That is correct.
Senator Kyl. Thank you. May I just ask if any of the other mem-
bers of the panel have a personal or moral position which would
not enable them to apply the death penalty, if warranted, in an ap-
1016
propriate case? And if you don't, then I will take your silence as
a statement that you would not have such a problem.
[No response.]
Senator Kyl. Mr. Breyer, since I don't think anyone has picked
on you yet, in the absence of controlling precedent, how would you
characterize your approach to interpreting the Constitution?
Mr. Breyer. Well, again, let me say that I think that you would
take a look at the case in front of you. If it were a State statute
or an initiative, you would start with the fact that there is a pre-
sumption of constitutionality, that the State legislature or that the
public, the people and the voters, have enacted a constitutional en-
actment.
Second, I think you have to take a look at the plain meaning of
what it is that they are saying, and then, if necessary, if you have
to go for a further analysis, in those rare cases then I think you
could take a look at legislative intent.
Senator Kyl. Let me ask if any of you on the panel feel con-
strained to add anything or whether that answer essentially ex-
presses your view of how you would interpret cases as well. And
if you don't add anything, I will assume that your response would
be roughly along the same lines.
[No response.]
Senator Kyl. All right. I asked a case before of Judge Ware and
let me — Mr. Damrell, I forgot whether you have been asked a ques-
tion or not, but we will just go right down the line here. This had
to do with the affirmative action issue that I asked Judge Ware
and my question was where there is no evidence of past acts of em-
ployment discrimination directed at either identifiable individuals
or particular minority groups, and no evidence that members of a
particular minority group are underrepresented in an employer's
work force, then may the employer, under the equal protection
clause of the 14th amendment and title VII of the Civil Rights Act,
use race, national origin, or gender as the basis for emplojrment de-
cisions?
Mr. Damrell. Mr. Chairman, I could simply say I agree with
what Judge Ware said, but I think I could at least add to that my
own personal words, and that is that I would follow the Adarand
case. It would appear that based on that case, any race-based clas-
sification must be strictly construed, strictly scrutinized, and if
there is found to be a compelling interest, which there wouldn't ap-
pear to be in this factual context, then, of course, it would be very
narrowly construed. But I would think Adarand would control
under those circumstsinces.
Senator Kyl. Do any of you have anything you would like to add
to that? And if you do not, I will assume that your answer would
be roughly the same as Judge Ware and Mr. Damrell.
[No response.]
Senator Kyl. All right. Well, Judge Jenkins, let me ask you one
question, since I don't think you have been asked a question yet,
and then we will wrap this up. This has to do with fifth amend-
ment takings under the Constitution. Of course, the amendment
provides that private property may not be taken by the government
for public use without payment of just compensation to the owner.
1017
Would you state for us your best independent legal judgment on
whether a property owner is entitled to just compensation when
the Government, through wetlands designation or through other
land use, environmental, or endangered species statues or regula-
tions, for example, substantially limits or prohibits an owner's
other lawful use or development of his or her property?
Judge Jenkins. Mr. Chairman, my understanding of the U.S. Su-
preme Court precedent in that regard is that it certainly is possible
that that could be construed as a taking. There are several dif-
ferent standards. One is that if the limited use of the property in
question has substantially and materially impacted alternative
uses, then, in fact, that would be a public taking for which com-
pensation would be due.
Senator Kyl. Do any of you have a different understanding of the
law or would you like to add anything to that answer?
[No response.]
Senator Kyl. Senator Kohl, do you have any additional ques-
tions?
Senator KOHL. Just one request of you.
Senator Kyl. Sure.
Senator KOHL. Senator Leahy has asked that his statement be
made part of the record and I recommend that it be done.
Senator Kyl. Certainly. Without objection.
[The prepared statement of Senator Leahy follows:]
Prepared statement of Senator Patrick J. Leahy
I commend the Chairman for holding this confirmation hearing for judicial nomi-
nees this afternoon. This is the second hearing held for judicial nominees in two
days and if we are able to proceed with these 13 nominees, the Committee will
make some progress toward reducing the backlog of judicial nominees pending be-
fore the Committee and awaiting their hearings.
I want to apologize to Lynn Adelman, who I understand was told to fly to Wash-
ington Monday evening and to be available for a hearing on Tuesday morning at
which he was not included.
I am delighted to see Judge Ware included at today's hearing. He is another of
the well-qualified nominees for a judicial emergency vacancy on the Ninth Circuit
Court of Appeals. That circuit is being forced to operate without 10 judges, which
are more than one-third of the Court. The Senate received Judge Ware's nomination
over four months ago. It was received before the nomination of Ronald Oilman and
three months before the nomination of Stanley Marcus, yet each of them has had
a hearing and Mr. Oilman was reported by the Committee on October 10.
While I am encouraged that the Committee is today proceeding with a hearing
on these eight nominees, there remains no excuse for the Committee's delay in con-
sidering the nominations of such outstanding individuals as Professor William A.
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret
McKeown, and Ms. Susan Oki Mollway, to name just a few of the outstanding nomi-
nees who have all been pending all year without so much as a hearing. Professor
Fletcher and Ms. Mollway had both been favorably reported last year. Judge Paez
had a hearing last year but has been passed over so far this year. Professor Fletch-
er, Judge Paez and Ms. McKeown are all nominees for judicial emergency vacancies
on the Ninth Circuit, as well.
After this hearing, the Committee will still have pending before it over 30 nomi-
nees in need of a hearing from among the 73 nominations sent to the Senate by
the President during this Congress. From the first day of this session of Congress,
this Committee has never had pending before it fewer than 20 judicial nominees for
hearings. The Committee's backlog had doubled to more than 40 and will dip below
40 with this week's hearings for 13 of those nominees.
The Committee still has pending before it 10 nominees who were first nominated
during the last congress, including five who have been pending since 1995. Thus,
while I am delighted that we are moving more promptly with respect to some of
1018
the nominees being considered today, I remain concerned about the other vacancies
and other nominees.
I hope that the Committee will now proceed without delay to consider these nomi-
nations as well as the nominations of Clarence Sundram and Judge Sonia
Sotomayor and the other nominees who participated in yesterday's hearing. We
should be moving promptly to fill the vacancies plaguing the federal courts. Twenty-
two confirmations in a year in which we have witnessed 115 vacancies is not fulfill-
ing the Senate's constitutional responsibility.
At the end of Senator Hatch's first year chairing the Committee, 1995, the Senate
adjourned having confirmed 58 judicial nominations and leaving only 49 vacancies.
This year the Senate has confirmed less than half of the number confirmed in 1995
but will adjourn leaving almost twice as many judgeships vacant.
At the snail's pace that the Committee and the Senate are proceeding with judi-
cial nominations this year, we are not even keeping up with attrition. When Con-
gress adjourned last year, there were 64 vacancies on the federal bench. In the last
10 months, another 50 vacancies have occurred. Thus, aft;er the confirmation of 22
judges in 10 months, there has been a net increase of 28 vacancies, an increase of
almost 50 percent in the number of current federal judicial vacancies. Judicial va-
cancies have been increasing, not decreasing, over the course of this year and there-
in lies the vacancy crisis. The Chief Justice of the United States Supreme Court has
called the rising number of vacancies "the most immediate problem we face in the
federal judiciary."
I commend Senator Hatch's effort to hold two days of hearings this week and to
accelerate the pace at which nominations are moved through the Committee. Unfor-
tunately, this is only the eighth confirmation hearing for judicial nominees that the
Committee has convened all year.
Since no regular Executive Business Meeting of the Committee was noticed for
this week and none has yet been noticed for next week, which may be our last be-
fore adjournment, the Committee may not have an opportunity to report any of the
13 fine judicial nominees who participated in hearings this week or the nomination
of Bill Lee to be Assistant Attorney General for the Civil Rights Division.
I have urged those who have been stalling the consideration of these fine women
and men to reconsider and to work with us to have the Committee and the Senate
fulfill its constitutional responsibility. Those who delay or prevent the filing of these
vacancies must understand that they are delaying or preventing the administration
of justice. Courts cannot try cases, incarcerate the guilty or resolve civil disputes
without judges. The mounting backlogs of civil and criminal cases in the dozens of
emergency districts, in particular, are growing more critical by the day.
Senator Kyl. Senator Feingold.
Senator FEINGOLD. No, thank you, Mr. Chairman.
Senator Kyl. Senator Durbin.
Senator Durbin. I have no other questions.
Senator Kyl. Well, again, they all passed the test, you see, and
I think it unnecessary for us to continue to ask questions. We may
want to submit some questions for the record. Other members who
can't be here may want to do that.
But in view of the distinction of these nominees and the quali-
fications that they have each brought to their nomination, I don't
think it necessary to continue the oral examination here. Therefore,
unless any other — Senator Sessions, I know you have just joined
us, but if you have no questions of — I know I am catching you off
guard — of this panel, we are pretty well through, I think.
Senator SESSIONS. Mr. Chairman, I don't think I have any ques-
tions at this time. I might want to submit a written question, but
I don't have anything now.
Senator Kyl. Well, let me thank all of you again. You are distin-
guished nominees and we hope we can get through the confirma-
tion process very quickly. Thank you very, very much.
Now, our final panelist is Judge Frederica Massiah-Jackson.
Would you please come forward? I will just leave you standing as
1019
I administer the oath, if I could. We will wait until it kind of clears
here a little bit.
Do you swear the testimony you shall give at this hearing shall
be the truth, the whole truth and nothing but the truth, so help
you God?
Judge Massiah-Jackson. Yes, Senator, I do.
Senator Kyl. Thank you. Please be seated.
I should by way of explanation note that Judge Jackson was to
be on the panel yesterday. We have carried her over to today. Sen-
ator Specter wanted to be here and we are hoping that he can come
back. And I must announce I have an appointment. I will have to
leave in approximately 7 minutes, so I would like, if I could, begin
questioning and then turn the gavel over to Senator Sessions or
whoever else might be here to continue the hearing to conclusion.
TESTIMONY OF FREDERICA A. MASSIAH-JACKSON, OF PENN-
SYLVANIA, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
Judge Massiah-Jackson. Thank you, Mr. Chairman.
Senator Kyl. Let me begin by asking you, Judge Jackson, to in-
troduce members of your family or friends who might be here so
that we can see them.
Judge Massiah-Jackson. Yes, Senator. My brother, Louis
Massiah, is here from Philadelphia today.
Senator Kyl. Welcome.
Judge Massiah-Jackson. And my husband was not able to be
here today, with the change in schedule. My daughter, who is a
freshman at Wesleyan University, is in the middle of mid-terms.
And my son, who is a freshman at Carver High School for Engi-
neering and Science, is in the middle of mid-terms. So neither one
of them were able to join us today, but they all extend their greet-
ings and thanks for you and the Senate giving me this opportunity
to be here. Thank you.
Senator Kyl. Thank you. Now, if you would like to make any
kind of a statement, please do so. Otherwise, I will just begin some
questioning, if that would be acceptable.
Judge Massiah-Jackson. Senator — Mr. Chairman, I do not have
a statement.
questioning by senator kyl
Senator Kyl. All right. Let me ask you, you have heard the ques-
tions that I have asked other panelists specifically relating to dis-
crimination cases, to capital punishment, to takings, and to decid-
ing cases where there may be a lack of precedent or an unclear
precedent. You have heard the
Judge Massiah-Jackson. Yes.
Senator Kyl [continuing]. Answers that have been given by both
the circuit court and district court nominees. In order to save some
time, do you have any different answers or anything you would like
to add to any of those answers?
Judge Massiah-Jackson. No, Mr. Chairman. I listened carefully
to what Judge Ware, as well as the other panelists had to say and
I agree with what their position was.
1020
Senator Kyl. All right. Let me ask you now some specific ques-
tions. In each case, as you know, we have some general questions
and then some specific questions that may in some respect rep-
resent criticism or writings or the like in your record.
Now, it is my understanding that copies of material relating to
cases that you submitted to the committee — that this material was
reviewed by you, and among those materials was the transcript of
a case in which you used profanity in open court. Would you please
tell the committee whether you believe that conduct of that nature
is consistent with proper demeanor of a sitting judge and whether
there was any action, any ethics action taken or any sanction ac-
tions taken as a result of that comment?
Judge Massiah-Jackson. Mr. Chairman and Senator Specter,
Senator Sessions, I made a mistake. It was my first or second year
on the bench and I did make an intemperate comment at a side
bar proceeding. While it was in open court, it was at a side bar
talking to counsel. I apologized profusely to that attorney, and I be-
lieve in her mind, in my mind, it has been resolved. We have
worked together since then. I was admonished by our judicial re-
view board for using intemperate language at the side bar proceed-
ing.
Senator Kyl. Now, my understanding is that that case was in
1985. Is that your recollection?
Judge Massiah-Jackson. It was early — it was either 1984 or
1985, but, yes. Senator.
Senator Kyl. And is that the only instance in which you have
used — to your recollection, that you have used such language on
the bench?
Judge Massiah-Jackson. I may have, you know, mumbled some-
thing to myself, but in open court, as far as I can recall, to any par-
ticular individual, that would be the best of my recollection, yes.
Senator Kyl. And in the particular case that I was speaking of,
I don't know the circumstances. Did you believe that the behavior
of the attorney to whom you spoke was disrespectful or incorrect?
Judge Massiah-Jackson. There is never an occasion when the
behavior of an attorney would warrant the kind of language that
I used, Mr. Chairman.
Senator Kyl. OK, thank you. In a case of Commonwealth v. Don-
ald Powell, the Commonwealth's brief on appeal indicates that you
wrote letters to both the district attorney's office and to the appel-
late court in an effort to discourage or dismiss the government's ap-
peal. Do you think it is appropriate for a judge to express such
strong opinions that he or she is viewing as acting as an advocate?
Judge Massiah-Jackson. Mr. Chairman, my recollection of that
case was I had an interest in judicial economy. I had ordered a new
trial and it seemed to me that rather than waiting for 3 hours —
I am sorry — for 3 years on appeal, that a new trial could have been
ordered within a matter of weeks or within the next 30 days. I had
ordered a new trial, so I simply wanted to go forward with that.
Senator Kyl. Well, what instances do you think it is appropriate
for a judge to attempt to discourage a party from exercising a right
to appeal?
Judge Massiah-Jackson. Oh, it is not appropriate for a judge to
be an advocate under any circumstances. I simply wanted to try
1021
and move on with that case so that defendant could have another
trial.
Senator Kyl. I am going to ask you one more question and then
I will have to excuse myself and turn the Chair over to Senator
Specter.
In a case of Commonwealth v. Jerome Gray, which involved a de-
fendant who had beaten his girlfriend in 1989 so severely that she
had to be taken to a hospital where she was admitted for three
cracked ribs, a collapsed lung and ruptured spleen which had to be
removed, the police report shows that the defendant's record check
revealed that he had five prior arrests. You gave him 24 months'
reporting probation, presumably no jail time.
Could you explain the reasoning in that particular case?
Judge Massiah-Jackson. What is that, 24 month, 2 years' proba-
tion?
Senator Kyl. Yes, 24 months' probation.
Judge Massiah-Jackson. Mr. Chairman, to the best of my recol-
lection, the victim was not available to testify in court. I believe
that person had died some time between the time of the offense
and the time of the trial. I have to only assume that based on that
factor, I considered that as part of the sentence because I would
have sentenced within the guidelines, or certainly given expla-
nations as to why I sentenced outside the guidelines. I simply don't
know that specific set of circumstances for that sentence.
[Pause.]
Senator Kyl. I have explained to Senator Specter where we are
in the proceedings here. Please allow me to excuse myself. Again,
I want to thank all of the members of the famJly and friends who
are here, Judge Jackson, and I will turn the hearing now over to
Senator Specter.
Judge Massiah-Jackson. Thank you, Mr. Chairman.
Senator Specter [presiding]. Judge Jackson, Senator Kyl is say-
ing that because I am the senior Senator remaining, but I am going
to yield to Senator Sessions for two reasons. One is he was here
earlier and, second, he is not the Senator from your State. So I
think it might be a better line for Senator Sessions to question you
now.
Senator SESSIONS. Thank you. Senator Durbin maybe
Senator Specter. Senator Durbin, do you want to contest that
sequencing?
Senator Durbin. No. I think it is a good idea.
Senator Specter. Senator Sessions.
questioning by senator SESSIONS
Senator SESSIONS. On the matter of the Jerome Gray case, some-
times there are reasons, I know, that judges would rule the way
they did. But are you saying that the district attorney had agreed
to this lighter sentence because of a lack of being able to prove the
case, or did you impose this sentence over the objection of the pros-
ecutor or with the prosecutor's consent?
Judge Massiah-Jackson. Senator, I have no recollection of why
the sentence was imposed as it was imposed.
Senator Sessions. You just don't have a recollection?
1022
Judge Massiah-Jackson. I accept the fact that it may have been
2 years of probation, but I don't know what the circumstances of
that particular incident or the background of the defendant which
would cause that sentence. I just don't know. My record on these
types of cases is very, very clear. I take these cases very seriously.
Senator Sessions. Would you say — were there sentencing guide-
lines in Pennsylvania and this would fall out of that guideline?
Judge Massiah-Jackson. Senator, I don't know enough about the
background, but, yes, we do
Senator SESSIONS. He had four prior arrests or charges. That
would probably fall outside of the guideline, would it not?
Judge Massiah-Jackson. Well, the sentencing guidelines take
into effect — take into account convictions. I don't know how many
convictions that person had. He may have been arrested a mul-
titude of times, but I just don't know the number of convictions. I
really don't know.
Senator SESSIONS. I would like to follow up a little bit — I hate
to; I think we just need to
Judge Massiah-Jackson. Sure.
Senator SESSIONS [continuing]. On the comments you made that
you have apologized for. I think that is a fact that I will consider,
and I know there was some disciplinary action taken for mis-
behavior by you in that regard.
Judge Massiah-Jackson. Yes.
Senator Sessions. What troubled me a little bit about it — it
seemed to me it was a little more than that. Maybe it was at a side
bar, but you said to Ms. McDermott, referring to the prosecutor,
"Would you shut your blank mouth."
Judge Massiah-Jackson. Yes, Senator.
Senator SESSIONS. And then when asked about it by the Phila-
delphia Inquirer, you said, quote, "Maybe I would suggest that it
offended Ms. McDermott, but I can't imagine the defendant was of-
fended." Do you recall saying that to the newspaper?
Judge Massiah-Jackson. I have confidence in the Philadelphia
Inquirer.
Senator Sessions. Well, I guess my point is that suggests that
you weren't too contrite or apologetic about it, at least, at that
point.
Judge Massiah-Jackson. Oh, I was very contrite and I did, in
fact, apologize to Ms. McDermott.
Senator Sessions. It was in the Burgos case, I believe, you re-
sponded to a prosecutor's motion with the following comment, "I
don't give a blank." Do you recall that?
Judge Massiah-Jackson. I agree with what you are saying, but
I don't specifically recall it. Senator.
Senator SPECTER. Senator Sessions, is that a case in the memo?
I am trying to follow your questions.
Senator SESSIONS. Yes, sir. I have the title of the case Common-
wealth V. Burgos, B-u-r-g-o-s.
Senator Specter. B-u-r-g-o-s?
Senator SESSIONS. Yes. I am not sure that
Senator SPECTER. Well, I will ask the staff if they can find that
for me.
1023
Senator SESSIONS. As a prosecutor myself and having worked
with investigators and prosecuted cases, I know it is a tough job.
The defense lawyers earn their pay many times being very aggres-
sive, but it is really frustrating if the judge takes sides against you,
too. And, to me, in a lifetime Federal appointment. Federal judici-
ary, we have to be sure that you will give the State a fair trial,
as well as the defendant a fair trial. It is particularly true, since
the government can't appeal. So they have no right of appeal, so
a judge — the prosecutors are at the mercy, for the most part, of a
Federal judge's ruling.
In Commonwealth v. Ruiz, you acquitted a man accused of pos-
sessing $400,000 worth of cocaine, it is reported to me, because you
did not believe the testimony of two undercover officers. In an ear-
lier case, you pointed out those same undercover officers to a public
courtroom and told the onlookers to "take a good look at the under-
cover officers and watch yourself."
Do you recall that and do you have an explanation for that?
Judge Massiah-Jackson. Senator, my recollection of the Ruiz
case — and I have submitted a written response to the committee
about that news article — is that there was a question about wheth-
er or not the defendant actually owned the house or lived in the
house where the drugs were found, and there was a question about
his actual possession of the drugs.
I have the highest regard for law enforcement officers. Over the
years when I was in criminal court — and as you know, it has been
over 6 years since I have sat in criminal court, but over those years
and the more than 4,000 cases that I handled involving criminal
matters, I have developed a tremendous respect for police, for the
prosecutors, and for law enforcement units.
Senator SESSIONS. If you are confirmed as a Federal judge, pros-
ecutors are pretty much at the mercy of a Federal judge and the
judge cannot be removed or have their pay docked or anything like
that. And so I think it is important for us to feel comfortable that
they will get a fair trial.
With regard to that issue, I was troubled and thought it extraor-
dinary that most of the cases you tried, the defendants waived a
jury trial and asked to be tried by you without a jury. In my expe-
rience, most defendants feel like they will have a better chance —
a jury has to be unanimous, all 12. There is always a chance on
any case that one of those three will say no and they won't be con-
victed. That would indicate to me that you have a reputation as not
being very tough on crime.
Judge Massiah-Jackson. Well, I appreciate your concern, Sen-
ator. In Philadelphia, unlike any other part of Pennsylvania, actu-
ally, we have a special program called our criminal list or Felony
Waiver Program. The majority of our cases in Philadelphia — we are
so overwhelmed with our criminal calendar, the majority of our
cases are handled in this Felony Waiver Program where the de-
fendants, with their attorneys, even before arraignment, I believe,
or some early stage of the proceeding many months or even years
before trial, they make a decision that they want to have their trial
without a jury.
And during my first 3 years on the bench, I would get a list.
There were 10 courtrooms of judges with a list of 10 to 15 cases
1024
each day and I would hear 10 to 15 cases each day either by trial
or by plea or — ^but the defendants were not permitted to have a
jury trial.
Senator SESSIONS. When they made that filing at that time
under the case processing procedure in the court, was it known
that you would be the judge?
Judge Massiah -Jackson. Oh, no. All new judges go to felony
waiver unit.
Senator SESSIONS. I guess what I am saying is when a person
waived a jury trial, would they know whether it would be tried by
you or some other judge?
Judge Massiah-Jackson. They would not know. They simply
elect to go to a specific program, and that program was called the
Felony Waiver Program and that is where I sat for the first 3
years.
Senator SESSIONS. My time is up, Mr. Chairman.
Senator Specter. Senator Sessions, if you want more time, why
don't you take some more?
Senator SESSIONS. I would ask a couple of more questions, I
think.
Search and seizure and rulings from the bench can be devastat-
ing to a prosecutor's case. This is what is reported, as I understand
the facts, in Commonwealth v. Jenkins. The police arrived at the
scene of an armed robbery within minutes. They were given de-
tailed descriptions of the robbers and told the subjects had run
north on a particular street. The descriptions were broadcast over
the radio.
Soon thereafter, other police officers arrested a black male
matching the description IV2 blocks from the crime. When ap-
proached by the police, the subject withdrew a roll of cash from his
pocket and threw it on the ground. When it came before you on a
motion, you ruled that probable cause to arrest did not exist and
suppressed the stolen cash. You also suppressed the in-court and
out-of-court identifications. In your findings of fact, you suggested
that the police stopped the subject simply because he was a black
male running on the streets in Philadelphia.
Would you like to comment on that and explain that case?
Judge Massiah-Jackson. Yes, Senator. My recollection of that
case is that the only description that was given was black male,
black jacket, and there was a codefendant, black male, blue jacket.
That was my recollection.
Senator SESSIONS. Of course, he was IV2 blocks away. He was
apparently running and a roll of cash fell out of his pocket. Would
that not give an officer a basis to make an investigatory stop?
Judge Massiah-Jackson. Senator, the appellate court agreed
with you and I was reversed.
Senator Sessions. Another case that troubled me, because this
kind of thing can happen in any court — a defendant was charged
with robbery — and this case is Commonwealth v. Hicks, H-i-c-k-s —
involving theft and receiving stolen property, aggravated assault,
and simple assault. The defense made a motion for a continuance
because the police officer was not available to testify, apparently,
for the defense, even though he had been subpoenaed.
1025
You ruled that the officer was under the State's control and
forced the State to nol pros the case. When the prosecutor refused
to nol pros the case, you dismissed the charges against them, and
that ruling was reversed by the court of appeals. The appellate
court noted that the prosecution was ready to try the case and that
the only motion before the court was a defense request for a con-
tinuance.
You could have simply granted the defense motion to continue in-
stead of dismissing the cases, it seemed to me, and apparently the
appellate court thought so. Do you have any comment or expla-
nation on that situation?
Judge Massiah-Jackson. No, Senator, I don't. I overwhelm-
ingly— of the 4,000 cases that I tried — and as you indicated, many
of them were bench trials. The defendants went to jail. There were
convictions and they are serving substantial time.
Senator Specter. Senator Sessions, that is the Hicks case?
Senator SESSIONS. The Hicks case, H-i-c-k-s.
Those were some cases that, to me — I am concerned not that —
I am concerned that it suggests a pattern of lack of sufficient re-
spect for the prosecutor's responsibilities, burdens and problems as
much as it does the defendant's burdens and constitutional rights
and burdens.
As I say, so often the prosecution may never get a chance to ap-
peal. If you keep certain evidence out and there is a jury verdict
of acquittal, there may be no appeal, or a ruling on an evidentiary
motion that can deny critical evidence and once a verdict has been
rendered and jeopardy is attached, the prosecutor has no right to
appeal.
So those are my concerns there and I wanted to ask you about
those. I think I agree with you that the kind of language we re-
ferred to here is not acceptable on the bench, and if you were to
be confirmed, I would hope that you would adhere to that. We sim-
ply have to maintain decorum and respect in a court of law.
Judge Massiah-Jackson. I agree.
Senator SESSIONS. The judge has got to give a fair shake to both
the prosecutor and their problems, as well as the defendant.
Judge Massiah-Jackson. Senator, I would like to reassure you
and the entire committee that I take this position very seriously.
This process has been a very humbling one and there is no ques-
tion in my mind that I would not disappoint you.
I believe that I have a very — the track record indicates that of
the 60-some appeals that took place during the time I was in crimi-
nal court, 55 of those appeals were from defendants who thought
their sentence was too long or that they were wrongfully convicted.
And I don't believe that a close reading of my record would indicate
any pattern, but I do understand your concerns. Thank you.
Senator Sessions. I don't know if the prosecutor can appeal a life
sentence, can he?
Judge Massiah-Jackson. Yes.
Senator Sessions. Or if they do, they are reluctant to do so in
a lot of instances. But defendants will certainly take their oppor-
tunity to appeal one they consider too heavy.
Judge Massiah-Jackson. Thank you.
1026
Senator Sessions. I think, Mr. Chairman, that is what I would
Uke to ask about at this point.
Senator Specter. Well, thank you very much. Senator Sessions.
Judge Massiah-Jackson. Thank you.
Senator Specter. Senator Durbin.
QUESTIONING BY SENATOR DURBIN
Senator Durbin. Thank you very much. I appreciate your being
here today, and I would just like to ask three very brief questions.
I think there is an express concern, as I mentioned to the Illinois
nominees, about judicial temperament, and I am comfortable with
the responses that you have given to Senator Sessions about mis-
takes you have made.
Let me ask you, have you ever been disciplined by bar associa-
tions or others beyond this one reference that was made?
Judge Massiah-Jackson. Oh, no. Senator, just that one time. I
learned my lesson.
Senator DURBIN. We all do make mistakes.
The second question relates to your reversal rate and I have been
trying — in reading the responses which you have given here, you
have said that you considered about 4,000 different cases in your
career as a judge.
Judge Massiah-Jackson. Yes.
Senator Durbin. According to the information given to the com-
mittee, some 95 were appealed, but those were 95 civil cases, if I
am not mistaken.
Judge Massiah-Jackson. No. That was criminal and civil.
Senator DURBIN. Criminal and civil?
Judge Massiah-Jackson. Yes.
Senator DURBIN. And of those, 14 were reversed in whole or in
part, is that correct?
Judge Massiah-Jackson. That is correct, 14 overall, criminal
and civil.
Senator Specter. May interrupt just a minute. Senator Durbin?
I am going to make a couple of comments. Senator Sessions has
to leave. I just wanted to make a couple of comments before Sen-
ator Sessions left, and I am looking at all of these documents for
the first time. In the Jenkins case, which was a suppression mat-
ter, there was an appellate right in that case. If evidence is sup-
pressed, under Pennsylvania procedure — and I think generally, but
know Pennsylvania procedure — there is a right of appeal, so that
that order was taken up on appeal and Judge Massiah-Jackson was
reversed. So, that was an appellate issue.
Judge Massiah-Jackson. That is right.
Senator Specter. And on the case — and I am just taking a look
at this case of Commonwealth v. Hicks, and I think we ought to
make this brief a matter of the record, and also the Hicks judg-
ment.
[The brief and the judgment referred to follow:]
1027
CCMilOHWEALTH OF PENNSYLVAfJi;
Appellant
ROBERT HICKS,
Appellee
IN THE SUPERIOR COURT Or
PENNSYLVANIA
No. 2004 Philadelphia 1987
Appeal from the Order entered June 12, 1987, in
the Court of Common Pleas of Philadelphia County,
Criminal, No. 86-10-180-182.
BEFORE: McEWEN, OLSZEWSKI, and CERCONE , JJ.
MEMORANDUM:
FILED AUG - 1 1388
The Commonwealth appeals from an order dismissing charges
against appellant, asserting that the trial court abused its
discretion in dismissing the charges. We agree that the trial
court abused its discretion and, therefore, we reverse the order
of the lower court and remand the case for further proceedings.
On September 13, 1986, appellant was arrested and charged
with robbery, theft, receiving stolen property, aggravated
assault and simple assault as the result of an attack that took
place on September 6, 1986. Following a preliminary hearing on
October 2, 1986, appellant was bound for trial on all charges.
Several defense continuances and a crowded court docket delayed
the trial until June 12, 198*^. On that date, counsel appeared
before the Honorable Frederica Massiah-Jackson and the following
dialogue ensued:
[BY THE COURT]: Robert Hicks, what's the status
of the Commonwealth?
1028
MS. SUTTER [FOR THE COMMONWEALTH]: We are reaay.
Judge.
THE COLTRT: What's the status of the defense?
MR. CHEW [DEFENSE COUNSEL]: We need a
continuance. Your Honor.
THE COURT: I can't hear you.
MR. CHEW: Your Honor, we need a continuance to
get the police officer in.
THE COURT: I thought the Commonwealth subpoenaed
the police officer.
MR. CHEW: Well, apparently he didn't receive it
or there was some foul up somewhere.
THE COURT: Ms. Sutter.
MS. SUTTER: I did subpoena the officer. Mr. j
Chew asJced me to do so and yesterday our court
notices go over at 2:30 in the afternoon and at
about 1:30 I put it in the batch that gets taken
over here to Courr Attendance. I put it in the
notice and apparently the officer is on his
regular day off.
N.T. 6/12/87 at 2-3. The court officer then informed the judge
that he had contacted the police officer's supeirvisor at the 24th
District^ and was told that no cour^ notice was received by
^ In the original notes of testimony the court officer stated
that he called the 24th Police District to verify receipt of the
subpoena. N.T. 6/12/87 at 4. During the proceedings, the court
also referred to the officer's district as the "24th." Id- at 8.
After the charges were dismissed, the Commonwealth noted in a
motion for reconsideration that the police officer was assigned
to the 25th Police District, not the 24th District. According to
the record, the trial court then contacted the the court clerk.
Acting upon the court's request, the clerk drafted a latter dated
July 9, 1987, and filed of record on July 13, 1987, in which he
states that he had called the 2Sth Police District, Also, in a
letter to the court stenographer dated July 9th. the judge noted
her own recollection that the court officer had telephoned the
25th Police District and requested that the stenographer review
(continued on next page)
1029
thaz office. The court officer spaced t.lac personnel at Cour":
Attendance also informed hisi Ciat no court notice was received.
Id. at 3-4. Thereafter, the court stated:
THE COURT: This case is going to be marked as a
Commonwealth request for continuance.
MS. SUTTER: Well, Judge, (defense] counsel asked
me to subpoena him. I did it at counsel's
request.
THE COURT: No, no; according to — this is a
witness under the control of the Commonwealth,
solely and exclusively under the control of the
Commonwealth. There is no way for a police
officer to come to court unless the District
Attorney brings that person to court-
MS. SUTTER: That is not correct. Judge. Defense
attorneys subpoena police officers all the time^
THE COURT: But under this particular
circumstance this witness is under control of the
Commonwealth because you have taken it upon
yourself to subpoena him.
This case is almost eight months old. It's
going to be a Commonwealth request and I assure
you, Ms. Sutter, you will lose on Rule 1100
because the Commonwealth request to March of 1988
is way, way beyond 180 days.
(continued from previous page)
the notes of the proceeding. In response to the judge's letter,
the stenographer "corrected the error in the transcription" by
changing the references to the "24th District" to the "25th
District." See Correction by court reporter dated 7/13/87.
We offer no comment on this sequence of events as the judge
later acknowledged the Commonwealth's documentation that a
subpoena had indeed been issued to the police officer. Sfi*
Opinion denying the Commonwealth's motion for reconsideration
dated 1/4/88 at 12-13.
1030
Well, Connonwealtli, the defendant is in
custody as a result of this case and now you are
going to make him wait until April of '88 rthe
next available trial date].
We can't let a man sit in custody until April
of '88 when the Comnonwealth didn't do what it
was supposed to do.
Well, we can nolle pros [the case]. . . .
And then if the Comnonwealth gets the witness,
we'll give it a trial date. That's what we'll do
then. I can't let somebody sit in jail. We
don't know if he's guilty or not.
MS. SUTTER: I'm ready to proceed, Judge.
THE COURT: But you didn't bring in the Defense
witness and he's under your control. . . .^
Well, it can't be any plainer than that, Ms.
Sutter. Nolle pros, Robert Hicks.
MS. SUTTER: Judge, I will not make a motion to
the Court to nolle pros.
THE COURT: It's made on the Court's own motion.
MS. SUTTER: You mean then you. are discharging
the case. I think that's the difference.
I'm not going to nolle pros. I '_m ready for
trial. I'd like the record to reflect that.
THE COURT: You didn't bring in the witness.
That's the third case on today's list. Discharged
then. Fine. It's got to be discharged. I was
going to give you the opporttinity for a nolle
pros, Ms. Sutter, and if you'd like to, you could
take it. I don't want to let you lose the
opportunity. Then once you get the Defense
witness and your Commonwealth witnesses together,
you could petition for a new trial date, but with
a discharge, you the Commonwealth won't have that
opportunity again. *
1031
td. ac 5-12. Having disc^arqed the case, the trial judce
-id")ourned court. A notation on the docket sheet reflected that
the trial court disniissed the case because a Commonwealth witness
failed to appear.
On July 9, 1987, the commonwealth filed a motion for
reconsideration, presenting documentation that the Commonwealth
had indeed subpoenaed the police officer. The lower court
refused to hold a hearing on the natter but, in an opinion
denying the motion, stated that the charges had been dismissed
because the "Court simply did not believe that the Commonwealth's
attorney had subpoenaed the necessary police witness." Opinion
filed 1/4/88 at 9. The court refused, however, to reinstate the
charges, finding that the Commonwealth had "abandoned and Waived
its opportunity and responsibility to reinstate the charges" by
declining the court's invitation to nolle pros tiie charges. I^.
at 13 (emphasis in original) . This timely appeal by the
Commonwealth followed. 2
Having carefully reviewed the record, we are unable to
determine the basis for the trial court's decision to discharge
the defendant. Indeed, the trial court was unable to justify its
decision by citation to rule or law.^ According to the record,
2 Although the appeal was filed 31 days after the order was
entered, the appeal is timely because the final day for filing
the appeal was a Sunday. See Commonwealth v. Revrai. Pa.
, , 532 A. 2d 1, 10 (1987) (excluding weekends and
holidays pursuant to 1 Pa.C.S. §1908 when computing a time period
under the Rules of Criminal Procedure) .
^ A court may not on its own motion enter a nolle pros pursuant
to Pa.R.Crim.P. 313; such a request is only made upon the motion
of the attorney for the Commonwealth. Commonwealth v- Lord. 23 0
(continued on next page)
1032
however, the only request presented to the courr was one fav the
dc . ise for a continuance. Pursuant to Pa.R.Crim.P. 301, such a
request nay be heard and granted "in the interests of justice"
if "the reasons justifying the granting or denial of the
continuance" are contained in the record. Nothing in the record
evidences a ruling on the merits of the defense request for a
continuance in accordance with the provisions of Rule 301. When
the police officer failed to appear, the court should have either
ruled upon the defense motion or formally attempted to secure the
officer's attendance. The sua sponte dismissal of the charge,
however, was in error.
Further, we decline to accept the conclusior^ that by
rejecting the court's recommendation to nolle pros the charges,
the Commonwealth "chose'* to accept a discharge of the case. As
we noted above, the only motion before the court was a defense
request for a continuance. Contrary to the statement by the
court, the Commonwealth had repeatedly asserted that it was ready
to try the case that day; it never requested a dismissal of the
case. Consequently, the Commonwealth did not "choose" to have
the charges dismissed.
We also reject the court's determination that the
Commonwealth must accept the consequences of dismissal of the
(continued from previous page)
Pa. super. 96, n. 3, 326 A. 2d 455, 458 n. 3 (1974).
Similarly, pursuant to Pa.R.Crim.P. 315, the court nay dismiss a
case "[u)pon motion" by defense counsel where the Connonwealth
has failed to file an indictment or ^information within a
reasonable time.
1033
cfiAvqes because it assumed the responsibiiity for the wic.-.ess's
appearance at trial. ** In this regard, we again stress that
according to the record, the Comnonweaith was prepared for trial
despite the officer's absence. Under the circumstances present
here, disnissal of the charges was a drastic remedy given chat a
continuance could have been granted. £i. Cowwonvealth v. Vn«;r
348 Pa. Super. 297, 502 A. 2d 216 (1985) (dismissal of charges was
inappropriate remedy for discovery violation when a continuance
would have been appropriate) .
Further, we find irrelevant any implication that the due
diligence of the Commonwealth was being tested pursuant to the
mandate of Pa.R.Crim.P. 1100. Simply stated, no request for Rule
1100 relief was before the court. See Commonwealth v. Bulling.
331 Pa. Super. 84, , 480 A. 2d 254, 261 (1984) (Rule 1100
claim waived if no motion to dismiss is presented by the
defense) .
In any event, we would reverse the order dismissing the
charges even if we accepted the lower court's erroneous theory
that a discharge is warranted where the Commonwealth fails to
sulspoena a defense witness. The uncontroverted evidence of
record shows that the Comnonweaith did, in fact, subpoena the
defense witness but that the officer was on an extended vacation
* This is not to say, however, that the Commonwealth may
purport to subpoena a witness for the defense and then
deliberately fail to do so. Instantly, the record shows that the
Commonwealth agreed to issue a subpoena as a matter of
professional courtesy; the record also shows that such a subpoena
was, in fact, timely issued but the the officer was vacationing
at the time and failed to receive it.
1034
at the ti-e and failed t= personally receive it. Hence," t^e
Lower court's reasoning tor disnissing the case is underr.inei.
Indeed, the lower court acknowledged the Connonwealth ' s proc:
that the subpoena had been issued and admitted that the
"Commonwealth could have easily met its burden" at a Rule lioo
hearing. Opinion dated 1/4/88 at IS.
Finally, we reject the trial court's suggestion that t.ne
order dismissing the charges could not be reconsidered and
reinstated because the Commonwealth had insisted on appealing the
order rather than accepting the courr's recommendation to nolle
pros the case. 5 it is well-established that the Commonwealth
has the right to appeal from the dismissal ot a charge. See .
e.g. ■ CoTnwonwealth v. Revtai. Pa. , 532 A. 2d 1 (1987);
COTtiwonwealth v. Wjmberlv. 488 Pa. 169, 411 A. 2d 1193 (1979).
For the reasons stated above, the order dismissing the
charges is reversed, the charges are reinstated and the case is
remanded for further proceedings. Jurisdiction is relinquished.
^ The court expressed some concern that double jeopardy would
have attached. This concern is misplaced. The further
prosecution of a defendant is not barred by the double jeopardy
clause if a dismissal was granted on grounds unrelated to a
factual finding of guilt or innocence. Commonwealth v- Adans.
349 Pa. Super. 200, , 502 A. 2d 1345, 1352 (1986).
1035
COMMONWEALTH OF PENNSVLVANIA,
Appellant
ROBERT HICKS,
Appellee
IIJ THE SUPERIOR COURT -OF
PEMNSYLVANIA
No. 2004 Philadelphia 1987
JUDGMENT
On Consideiutton Whoieof, it is now here ordered and adjudged by this Court
that the judgment of the Court of Conunon Fleas of ' FHUADELFHIA County
be, and the same is hereby THE OKBER DISMISSING THE CHARGES IS REVEHSED.
TH? CHARGES ARE REINSTATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS.
JTOISDICTION RELINQUISHED.
Bt tbe Court:
PnaTHONOT.
na»^- AUGUST 1. 1988
1036
Senator Specter. I am only looking at this for the first time, and
apparently Judge Jackson suggested a nol pros. The prosecutor re-
fused to do so. Judge Jackson dismissed the case. There was an ap-
peal taken and there was a reversal, which raises a question in my
mind as to whether there isn't double jeopardy here, but the court
ruled that on the totality of these facts, there was a legal issue
raised. So they reversed her there and the case went back for trial.
I don't need to get into the question of whether there had been
a trial on the merits. If you went to trial, then you couldn't have
an appeal, but they treated it as a legal error and she was reversed
and the case went back for trial, so that the Commonwealth had
its rights of appeal in both of these cases.
I just wanted to point that out.
Senator Sessions. You are a very knowledgeable prosecutor and
I think those are good points to make. And I didn't mean to suggest
that these could not have been appealed. I think it came in my
questioning that there had been reversals.
But, Mr. Chairman, what I am saying is that these are the ones
that have been in the record that we know about. They raise trou-
bling questions about an approach to criminal law. My point is that
there are many rulings in the midst of a trial that we will never
see in the appeals books because they are not appealable by the
prosecutor. That is what is really dangerous. If you can get an ap-
peal, an error by a judge can always be corrected. But as to the
prosecutor particularly, they are vulnerable to rulings for which
they may never have a right to appeal.
Senator SPECTER. Senator, you are absolutely right. Evidentiary
rulings are not appealable and acquittals are not appealable. It is
a relatively rare judicial ruling which is appealable, and when you
raise a question inquiring as to whether there is a pattern, 1 re-
spect your line of inquiry on that. I just wanted before you left to
raise these two procedural issues because you and I are both law-
yers and have had some experience in the field, you with a loftier
position. You were attorney general. I was just a prosecutor.
Senator Sessions. I am not sure which is more lofty. You han-
dled a lot more cases that I did, I am sure.
Senator Specter. Well, you do if you are in Philadelphia.
Senator Durbin.
Senator DuRBiN. Senator Specter, let me just say as a former de-
fense attorney, it is great to hear two prosecutors at odds here.
Senator Specter. I noticed you kept quiet.
Senator DURBIN. My final question to you relates to an experi-
ence I had in Chicago recently when I spent a day with some Chi-
cago policemen on some of the meanest streets in our town. And
I talked about drug arrests and the like, and they told me stories
about taking their arrests down to the State's attorney's office and
then to the court. And we talked a little bit and they said, of
course, there was one judge, who I won't name — they said it is just
hopeless when you go before that judge; you are never going to
prosecute a drug case in front of that judge, and every defense at-
torney knows it and does their best to get in that courtroom.
I want to make sure that the record is clear here if there was
any impression created that you were the forum where defense at-
1037
torneys would race to because they felt that they would always get
a break or could be hopeful that they would get better treatment.
Can you shed some light on your experience in that regard deal-
ing with drug prosecutions or any serious criminal prosecutions?
Judge Massiah-Jackson. Well, over those 8 years when I have
sat in criminal court, a total of 4,000 cases — several hundred of
them were drug prosecutions and the majority of those prosecu-
tions were convictions; the same with other violent offenses — rob-
beries; burglaries; rapes; you know, aggravated assaults. And I
have already submitted to the committee my computer printouts,
the raw data of the numbers and statistics relating to sentencing,
as well as to the convictions. But there is no question. Senator, the
overwhelming majority — you know, 85, 90 percent were convictions,
yes.
Senator DURBIN. Well, thank you for your testimony and I appre-
ciate it. I note that you received high marks from former Senator
WofTord, as well as Senator Specter and Congressman Foglietta. I
have the highest respect for all three of those and I am glad you
came before our committee. Thank you.
Judge Massiah-Jackson. Thank you.
QUESTIONING BY SENATOR SPECTER
Senator Specter. Judge Jackson, I am going to ask you a num-
ber of questions because this record is going to be reviewed, per-
haps, by a number of people, so that I believe that there ought to
be as full a record as we can make on the relevant matters, al-
though there are limitations. It is now 3:47 and I have a 4 o'clock
conference, which has just been put off for 30 minutes, and the
Governmental Affairs hearing I just left on campaign finance re-
form, and some appointments are waiting in the anteroom, which
is par for the course. But this is a matter which I think we ought
to develop the record on just a bit.
Senator Kyi told me that he had explored with you briefly judi-
cial philosophy and I would like to go over a bit of that. I could
not be here at the very start.
Judge Massiah-Jackson. Right, yes.
Senator Specter. There is a lot of concern about activist judges,
whether judges are going to make law as opposed to interpreting
the law. And, obviously, that is a subject that you know a lot about
on the philosophical, ideological level.
How would you characterize yourself as a judge with respect to
strict construction, broad construction? Do you believe a judge
should very narrowly interpret the law without a view to making
law?
Judge Massiah-Jackson. Mr. Chairman, I believe that a judge
should be very narrow in constructing precedent, in constructing
the particular case that is in front of me. It is inappropriate, with
the separation of powers, for a judge to try and make the law.
Rather, our role is to apply the law that the legislature has en-
acted.
Senator Specter. All right. Now, could you specify an3rthing in
your career which would support your action in support of those
principles?
1038
Judge Massiah-Jackson. Well, Mr. Chairman, in following the
sentencing guidelines, that is legislation from our State legislature
which I follow. And imposing mandatory minimum sentences — that
is legislation from our State legislature which I follow.
Senator Specter. Senator Kyi told me that he had asked you
about the death penalty, and there have been references in some
of the materials about some speeches you have made on the death
penalty. The death penalty is the law of Pennsylvania. As a judge,
have you enforced the law of Pennsylvania as written?
Judge Massiah-Jackson. Yes, I have enforced the law. I have
not had the occasion up to this point to impose a death penalty be-
cause I have not sat in our homicide program in Philadelphia,
which certainly, as you know, is a separate subdivision of the
criminal division.
In the speeches, I was specifically asked by our State legislature
to give comments of the practical effects of the death penalty, and
I do so at their request. But I have nothing in my personal philoso-
phy which would prevent me from imposing the death penalty if
called upon to do so.
Senator Specter. Would you amplify what you said by way of
personal philosophy on the death penalty?
Judge Massiah-Jackson. The State legislature was considering
certain crime bills in Pennsylvania and invited several judges, as
well as other individuals, to come forward and present testimony.
And I simply quoted from one of — a former Supreme Court Justice
indicating his opinion on the death penalty and I specifically said
that we do not want to coddle criminals. I said that in the same
speech. I take a very strong view on law enforcement and keeping
crime off the streets.
Senator Specter. The question has arisen as to your sentencing,
and we have a lot of statistics and I am always very leery, frankly,
of citing statistics. In hearings, we cite facts without the kind of
precision which has to go on in the courtroom. But the record that
has been presented to me shows that in 1984 you had 551 — these
are criminal cases; 1985, 736 cases; 1986, 653 cases; 1987, 591
cases; 1988, 241 cases; 1989, 354 cases; 1990, 447 cases; 1991 says
"N/A," apparently meaning not applicable; 1992 to 1995, 60 to 100
cases a year, and then in 1996, 200 civil dispositions.
The total on the specific cases from 1984 to 1990—1 totaled 3,573
cases, and you have referred to more than 4,000 cases. What is
your best evaluation or approximation as to the total number of
criminal cases you have tried?
Judge Massiah-Jackson. From January 1984 through December
of 1991, I think it is about 4,000.
Senator Specter. Are all those waiver, that is nonjury cases?
Judge Massiah-Jackson. Most of them were, yes.
Senator Specter. Do you sit on jury trial rooms ever?
Judge Massiah-Jackson. Oh, yes; oh, yes, very — there were oc-
casions when defendants requested jury trials and I did sit on jury
trials.
Senator Specter. How many jury trials did you sit on, if you can
quantify that?
Judge Massiah-Jackson. On the criminal side, probably less
than 10; on the civil side, every week, one a week, since 1991.
1039
Senator Specter. Well, when you had the jury trials, were you
in a specific jury trial room?
Judge Massi AH -Jackson. I was in a room where a defendant
could request a jury trial, yes.
Senator Specter. Do they still have the procedure in Philadel-
phia of having waiver rooms where you may not ask for a jury
trial?
Judge Massiah- Jackson. Oh, yes. During — ^yes.
Senator Specter. And jury trial rooms where you may ask for
a jury?
Judge Massiah-Jackson. Yes.
Senator Specter. But you don't have to ask for a jury?
Judge Massiah-Jackson. That is correct, yes, Mr. Chairman.
Senator Specter. Now, the issue was raised as to whether you
were a lenient sentencer because people were more interested in
trying to you on a waiver. When you sat in jury trial rooms, how
frequently did the defendants ask for a jury trial, contrasted with
how frequently did they seek to waive a jury trial?
Judge Massiah-Jackson. Most of the times, the defendants ei-
ther waived their jury trial or they pled guilty.
Senator Specter. In the jury trial room?
Judge Massiah-Jackson. Yes, sir.
Senator Specter. But you did try some jury cases?
Judge Massiah-Jackson. Oh, yes; oh, yes.
Senator Specter. Do you have any judgment or sense as to why
they asked for jury trials in those cases?
Judge Massiah-Jackson. No, no, Mr. Chairman. There were
many judges. I think the defendants were simply trying to get their
cases moving and that was a way to do it.
Senator SPECTER. Well, why did the defendants ask for jury
trials in the cases where they asked for them?
Judge Massiah-Jackson. I have no idea. I didn't explore that
with them.
Senator SPECTER. According to information provided — and this is
from your records. I have asked how many appeals were taken as
to your cases and the information you have provided says that
there were 95 appeals filed with the Superior Court of Pennsyl-
vania and you were reversed in whole or in part 14 times. Is that
accurate?
Judge Massiah-Jackson. That is correct; over 14 years, that is
correct.
Senator Specter. Were you ever reversed on a sentence?
Judge Massiah-Jackson. Not to my knowledge. It is just the one
time, in 1995 or 1996.
Senator SPECTER. On a sentence?
Judge Massiah-Jackson. On a sentence. I was not reversed. I
was affirmed on a sentence.
Senator Specter. Mayor Rendell told me that you were never re-
versed on a sentence. Do you think he was wrong?
Judge Massiah-Jackson. I was not reversed on a sentence. I was
appealed on that sentence that one time.
Senator Specter. OK, but the question was reversed. Judge
Jackson, not appealed.
1040
Judge Massiah-Jackson. I apologize. To the best of my knowl-
edge, I have never been reversed.
Senator SPECTER. There was one case where there was an appeal
from your sentence.
Judge Massiah-Jackson. Right.
Senator Specter. And on that case, you were not reversed?
Judge Massiah-Jackson. That is correct. I apologize.
Senator Specter. So Mayor Rendell is not wrong?
Judge Massiah-Jackson. No, no, he is not.
Senator Specter. OK. Judge Jackson, had you been informed
prior to coming here today that you would be asked questions
about any specific cases?
Judge Massiah-Jackson. I had a general knowledge of some of
the cases.
Senator Specter. Did you know, for example, you would be
asked about the Jenkins case which involved this question about
identification suppression?
Judge Massiah-Jackson. Yes.
Senator Specter. You knew you would be asked about that?
Judge Massiah-Jackson. Yes.
Senator Specter. How did you know you would be asked about
that?
Judge Massiah-Jackson. I received information from the De-
partment of Justice.
Senator Specter. Did you know you would be asked about the
Burgos case?
Judge Massiah-Jackson. Yes, yes.
Senator Specter. So you had an opportunity to prepare on that
case?
Judge Massiah-Jackson. Yes, I did, Senator.
Senator Specter. You have been questioned about language
which you used in two cases. Judge Jackson. On the one case
which was involved with Ms. McDermott
Judge Massiah-Jackson. Yes.
Senator Specter [continuing]. That case was taken to the Judi-
cial Board of Inquiry and Review?
Judge Massiah-Jackson. That is correct.
Senator Specter. And who took the case to that board?
Judge Massiah-Jackson. As far as I know, she did. I don't know.
They don't tell us who brings
Senator Specter. And was there a hearing on that case on the
record?
Judge Massiah-Jackson. No, simply a— just a letter submitted.
Senator Specter. And was any sanction imposed on you for that?
Judge Massiah-Jackson. I received a letter indicating I was ad-
monished for using intemperate language at a side bar proceeding,
just a letter.
Senator SPECTER. Have you ever used that word in open court
smce
9
Judge Massiah-Jackson. No, Senator.
Senator Specter. Have you ever used that word in any judicial
proceeding other than in open court?
Judge Massiah-Jackson. No, Senator.
1041
Senator Specter. Ms. Jackson, you have already apologized for
it, but I think that there may be some greater interest. And I don't
want to unduly prolong it and I have accepted your apology, as far
as I am concerned, but I think others might be interested in a little
fuller explanation.
Why did you say that? I know it is a long time ago and I read
in the record that you were perturbed and that counsel was push-
ing you, and lawyers do that to judges and judges do respond. But
why did you use that kind of language?
Judge Massiah-Jackson. I don't have an answer. I was frus-
trated. Senator, and it just blurted out.
Senator Specter. Senator Thurmond always asks nominees for
the bench — I heard him do this for the first time when Judge — she
wasn't a judge — when Carol Mansman was up in 1982 with
Stapleton, and Senator Thurmond said, "Do you promise to be cour-
teous?" And I thought to myself, what kind of a question is that?
What does he expect them to say? And they said, "yes."
And he said in his inimitable southern accent, "Do you promise
to be courteous?" And they said, "yes." And then he said, "Because
the more power a person has, the more courteous that person has
to be." And I have come to view those statements as very, very pro-
found statements, and when Senator Thurmond is not here I al-
ways repeat Senator Thurmond's admonition to nominees. Many,
after the fact, have told me how they think about Senator Thur-
mond's admonition.
You were challenged on your language in another case, the — see,
they told you about these cases before you got here, but they didn't
tell me about the cases before I got here. Judge Jackson. And if
they had, it wouldn't have done any good; I would have waited
until I got here anjrway.
The Ruiz case where you said "I don't give a blank" — why did
you use that expression?
Judge Massiah-Jackson. I believe that was something I mum-
bled under my breath that I was just tired.
Senator Specter. Well, it says here she said, quote, "In a staged
whisper while motioning the court reporter to stop recording,
quote, 'I don't give a blank.'" Have you ever said that again?
Judge Massiah-Jackson. No, I have not. Senator.
Senator SPECTER. Why did you say that?
Judge Massiah-Jackson. I have to say I don't specifically re-
member that incident and I don't know why. I guess I was
Senator SPECTER. Is the language pretty tough in the Court of
Common Pleas in Philadelphia?
Judge Massiah-Jackson. It is very tough. I have learned words
that I never knew before I was a judge.
Senator Specter. How could that be. Judge Jackson? You grew
up in Philadelphia.
Judge Massiah-Jackson. I grew up on the streets of north Phila-
delphia, but I was —
Senator Specter. I didn't know there were any words that
weren't used in Philadelphia, especially on the streets of north
Philadelphia.
1042
Judge Massiah-Jackson. I was blessed with a family and strong
support and I was not — I didn't live on the streets, as many of the
defendants and the victims did.
Senator Specter. Judge Jackson, I want to make a part of the
record for you the memorandum which has quite a number of other
cases in it which you have not been questioned about. But before
I do, the Hicks case — why did you force the — do you recall the
Hicks case where you, in effect, forced the prosecutor to go on trial?
Judge Massiah-Jackson. Yes. It was my recollection that had
been continued several times earlier by the prosecution and I made
a ruling on what we call our rule 1100, or speedy trial issue, saying
the defendant had not come to trial on time.
Senator Specter. Well, you could have dismissed the case based
on that.
Judge Massiah-Jackson. That is what I did do. I dismissed it
based on rule 1100.
Senator Specter. You dismissed the case based on an 1100 rul-
ing?
Judge Massiah-Jackson. Yes, and that is why-
Senator Specter. Do you have your opinion in the case, because
I don't have it before me here?
Judge Massiah-Jackson. I don't believe I do. I don't what
the
Senator Specter. I was district attorney when that rule was put
into effect. It started out being 270 days. Then it was
Judge Massiah-Jackson. Now, it is 180.
Senator Specter. We did it for a brief period of time to give us
an adjustment period of 270 later. It was 180.
Why did they reverse if the 180 days had run?
Judge Massiah-Jackson. It is my recollection, Senator, that the
superior court felt that there should have been one more oppor-
tunity for that defendant to go to trial.
Senator Specter. Well, but there is no mention here of the 180
days. Well, if this issue is to be carried further, it may be that we
will need a further statement from you. I don't know that we will.
Judge Massiah-Jackson. OK.
Senator Specter. And I want to make available to you a memo-
randum which has a number of cases which you haven't been asked
about today.
Judge Massiah-Jackson. OK.
Senator Specter. But I would like for you to review your records
and be in a position to respond on these matters if anybody wants
to know about them.
On a total number of cases of more than 4,000, and 95 appeals
and 14 reversals, there may not be an issue relating to pattern of
conduct, or somebody may raise an issue of pattern of conduct. So
I think you ought to be prepared to deal with that.
Judge Massiah-Jackson. OK.
Senator SPECTER. Why do you want to be a Federal judge. Judge
Jackson?
Judge Massiah-Jackson. I believe that I do have the tempera-
ment, the intellect and the ability to move from the State court to
the Federal court. I enjoy the law and I feel that the Federal bench
will give me an opportunity to deal with the complex issues that
1043
are involved in the law, rather than the rush that we go through
on the State court.
Senator SPECTER. You are tired of being rushed?
Judge Massiah-Jackson. I would like to have time to reflect on
serious and complex issues.
Senator Specter. Your background will be different on the U.S.
District Court for the Eastern District of Pennsylvania than any
other judge there now. Do you know the judges' lunch room is at
the Federal court?
Judge Massiah-Jackson. I have visited there, I believe.
Senator SPECTER. Have you had lunch there?
Judge Massiah-Jackson. One time, I believe.
Senator SPECTER. Somebody said you would add a new dimen-
sion to the lunch room.
Judge Massiah-Jackson. I don't know what that means.
Senator Specter. It means they have conversations at lunch,
they talk, and that you would bring a little different back-
ground
Judge Massiah-Jackson. I eat at my desk now.
Senator Specter [continuing]. To the lunch room.
Judge Massiah-Jackson. Well
Senator SPECTER. I have had lunch there. They could use some
differing backgrounds. They don't need any Senators, but they
could use some differing backgrounds.
Judge Massiah-Jackson. Thank you, Senator.
Senator Specter. Also, the food is not so good.
I am going to just take a minute to talk to one of the lawyers
here.
Judge Massiah-Jackson. Sure.
[Pause.]
Senator SPECTER. In the case of Commonwealth v. Jahon, the de-
fendant, so I am told, was charged with first-degree aggravated as-
sault, an offense that carries a mandatory sentence, and you found
him guilty of second-degree aggravated assault, a charge that does
not carry a mandatory sentence. You found the defendant used his
body as a deadly weapon in an effort to satisfy the deadly require-
ment of the second-degree offense. The transcript states that you
said the defendant, quote, "used his body by bumping the victim
with his stomach and then tossing him with his hands," close
quote.
Are you able to explain your reasoning in that case?
Judge JVLassiah -Jackson. For the verdict?
Senator Specter. For the verdict or your statement.
Judge Massiah-Jackson. It is
Senator Specter. Do you recollect the case?
Judge ]VIassi AH -Jackson. Yes.
Senator Specter. OK. If you recollect the case, then I think it
is a fair question.
Judge IMassiah-Jackson. OK.
Senator Specter. Go ahead.
Judge Massiah-Jackson. Oh, yes. In Pennsylvania at the time —
and I don't know if the case law has changed since those years, but
there was a real question as to whether or not one punch or one
hit is sufficient to sustain a verdict of aggravated assault of the
1044
first degree. And so I found the defendant guilty of F-2, a felony
of the second degree.
Senator Specter. Well, did you deliberately ignore evidence of a
greater charge to find the defendant guilty of a lesser charge to
avoid the necessity for a mandatory sentence? I think that is the
import of the committee question?
Judge Massiah-Jackson. No, no, Senator. I don't look at the sen-
tence when I am listening to the case. I consider the facts of the
case before I impose whatever the degree of guilt is. Just as a jury
would not be considering a sentence before the trial is over, I don't
do that either.
Senator Specter. Excuse me?
Judge Massiah-Jackson. Just as a jury would not consider a
sentence before a trial is over, as a sitting judge at a bench trial,
I don't consider the sentence.
Senator Specter. Judge Jackson, are you saying that in all cases
you isolate those facts and never consider whether there is a man-
datory sentence to be imposed if you make a finding of guilt of a
certain category?
Judge Massiah-Jackson. That is what I do. I listen to the facts
and make a decision based on the facts that are in front of me.
Senator Specter. All right. We are going to make these ques-
tions available to you, and we will make a part of the record the
Commonwealth's brief in the case of Commonwealth v. Patrick Jen-
kins,'^ and the opinion of the court in Commonwealth v. Hicks,^ su-
perior court, 1987, and a memorandum dated November 7, 1988,3
and the 5 pages which is an extract of a larger memo made for the
chairman of the committee. And it is with respect to this larger
memorandum that we are asking you to take a look at it and be
in a position to respond to questions about the balance of the cases,
if that need should arise.
Judge Massiah-Jackson. OK, thank you.
[An extract of the memorandum referred to above follows:]
1 Retained in Committee files.
2 See p. 1027.
3 Retained in Committee files.
1045
Nomination of Judge Massiah-Jackson
Committee's Review of certain cases:
Included among the numerous materials reviewed for the above-named nominee are
the following cases: Commonwealth v. Willie Hannibal: Commonwealth v. Donald Powell;
Commonwealth v. Patrick Jenkins and Phillip Mavberry; Commonwealth v Norman
Nesmith; Commonwealth v. Gregory Johnson; Commonwealth v. Flovd Decker;
Commonwealth v. Jerome Gray Commonwealth v Jav Hahn; Commonwealth v. Edward
Baker Below is an excerpt or a summary of specific matters in each of these cases.
In Commonwealth v Willie Hannibal, during a discussion with the prosecution,' page
1 7 of the transcript;
Ms. McDermott: For the record. Your Honor ~
THE COURT: That's all I want to hear from you right now.
Ms. McDermott; I request that the Court ~
THE COURT: Keep your mouth shut at this point because we are trying to deal with
this defendant's right to have a trial, and that is why we are here. Just stop talking.
Ms. McDermott: Your Honor, with all due respect —
THE COURT: You won your motion Please keep quiet, Ms McDermott.
Ms. McDermott: Your Honor, 1 can't —
THE COURT: Please keep quiet, Ms. McDermott
Ms. McDermott: Will I be afforded —
THE COURT: Ms McDermott, will you shut your fucking mouth
'In Hannibal, the defendant decided at the last minute to not plead guilty to narcotics
and assault charges, choosing instead to go to trial. After some discussion, the defense stated
that they were not ready to try the case because their witnesses were not present. The
Commonwealth argued that it was ready to proceed and the Assistant District Attorney
objected to a continuance.
/Il OA/I QO 1A
1046
Footnote 6 in the Commonwealth's brief in the case of Commonwealth v. Donald
Powell implies that Judge Massiah-Jackson tried to persuade the Commonwealth to dismiss its
appeal. That note states in pertinent part:
* ♦ *
Initially, Judge Massiah-Jackson refused to give the Commonwealth a thirty-day
continuance so that the Commonwealth could decide whether to appeal her new
trial order, informing the assistant district attorney that if the Commonwealth
did appeal she would "deal with that if it comes to that. There are a variety of
ways to deal with it." Those "ways" apparently included her letter to the
Commonwealth suggesting that the appeal be discontinued, her subsequent
letter to this Court, after the Commonwealth indicated it would proceed with
the appeal, demanding that the President Judge be informed if the
Commonwealth withdrew before disposition; her Opinion filed in this matter, in
which she recharacterized the legal issue in an attempt to obfuscate the plain
appealability of her order; and finally, her "recommendations"to this Court [the
appellate court] that, upon dismissing the appeal, it (1) assess costs of the
appeal against the Commonwealth; (2) order that the charges against defendant
be dismissed if, upon retrial, defendant cannot locate his missing witness (who
refused his request to appear at his preliminary hearing and who could not be
found at trial) and (3) order that the time between . (the date of the
Commonwealth's response to Judge Massiah-Jackson indicating that it would
proceeds with this appeal) and defendant's new trial be counted against the
Commonwealth for Rule 1100 purposes [Pennsylvania Speedy Trial Act]."
In the Commonwealth's brief of the case of Commonwealth v. Patrick Jenkins and
Phillip Mavberrv. the government appealed Judge Massiah-Jackson finding that probable cause
to arrest defendants did not exist, and her suppression of evidence and her suppression of the
victim's identification of the defendant. In arguing that the judge mistakenly found that the
officers had stopped the defendant because he was simply a black man the Commonwealth
cited the Judge's comment that relied on popular "movies" rather than evidence before the
court
Apparently, because Officer Blanche did not testify at the hearing, the court felt
free to suggest, in its findings of fact, that the officers stopped Patrick Jenkins
simply because he was a running black male in Philadelphia. As support for
this "factual finding," the court cited a movie (Opinion, Finding of Fact No.
30; R. 21a). Despite this injection of racial overtones in a case where none
existed, the testimony of other officers on the scene was more than sufficient
that both officers were acting properly pursuant to Officer McLaughlin's police
radio broadcast.
Commonwealth's brief, Page 21, n. 10.
1047
In the case of Commonwealth v. Norman Nesmith. the defendant was charged with 7
criminal violations [simple assault, aggravated assault, criminal conspiracy; recklessly
endangering another person; accident involving death or personal injury - duty to stop,
identify self and render assistance; simple assault, aggravated assault] and waived jury trial.
Defendant was found guilty by Judge Massiah-Jackson of seven of the above offenses on May
23, 1991; however, she allowed defendant to remain free and reduced his $10,000 bail bond
to "release on his own recognizance." Over the next three years, his sentencing was deferred
approximately 13 times during which time he reported to the court and paid various amounts
restitution to the victims as ordered. When defendant was finally sentenced on July 14, 1994,
he received 2 years probation only to run concurrently for all seven convictions well below
any standard guideline range. Furthermore, because defendant had a extensive prior record he
would have been eligible for a sentence in the aggravated range.
The District Attorney's Office appealed the sentence of two years probation, but lost
on appeal because the state sentencing guidelines are discretionary only.^
Commonwealth v. Gregory Johnson, defendant was charged with robbery first degree;
theft, receiving stolen property, violation Uniform Firearm Act; possession instrument of
crime. Defendant waived jury trial and was found guilty of offenses by judge on April 26,
1990. Sentencing was deferred until June 5, 1990. Judge Massiah-Jackson found the
defendant guilty of the lesser included offense of Robbery in the Second Degree.
Commonwealth v. Floyd Decker, defendant was charged with robbery first degree, and
criminal conspiracy, and other offenses Defendant confessed that he participated in robbery
along with two other individuals by driving get-away car from scene. The other individuals
robbed the victim at gun point and forced victim to relinquish his possessions: $200.00
glasses, and sneakers. Defendant was charged with First Degree Robbery. Judge Massiah-
Jackson found the defendant guilty of misdemeanor theft, unlawful taking, and criminal
conspiracy only. Defendant received 12 months of probation on each charge to run
concurrently with one another.
In the case of Commonwealth v. Jerome Gray, victim was taken to hospital for three
cracked ribs, collapsed lung, ruptured spleen [which had to be removed] as a result of being
beaten by the defendant [her live-in boyfriend of 4 years ] on December 15, 1989. Victim
was discharged from hospital on January 5, 1990. Sometime, around February 27, 1990, after
her hospital release, the victim called the police to report that the defendant had threatened to
^The appeals court held that the guidelines were not intended to trump judicial
discretion and that it was not an abuse of discretion for the judge to consider defendant's
remorse [by his payment of approximately $4,000 in restitution to the victims], nor was it
unreasonable for her to consider that all prior convictions were misdemeanor offenses [simple
assault and sentenced to 1 1 1/2 to 23 month in county jail], or that the victim had a blood
alcohol level of .2 when she stepped in front of defendant's car and was hit.
1048
kill her, and had come over to her house. An arrest warrant was issued, and, thereafter,
defendant turned himself in to law enforcement on March 1, 1990. Defendant denied striking
victim with his fists and stated that she was hurt as a result of a fall during an argument.
Defendant waived jury trial, and opted for bench trial on charges: Recklessly
Endangering Another Person, Terroristic Threats, Aggravated Assault First Degree; Simple
Assault. On May 14, 1991, he was found guilty of REAP, Aggravated Assault Second
Degree, and Simple Assault, and acquitted of other charges. The defendant was given a
sentence of 24 months reporting probation. Later, on October 24, 1 99 1 , defendant violated
his probation and was given a sentence of between 1 1 1/2 months and 23 months.
In Commonwealth v. Jay Hahn. the defendant was accused of injuring a 78 year old
male. Defendant was parking his car in frony of victim's house, when victim requested that
he park somewhere else because he was waiting for his wife to return from the grocery store.
Defendant told victim to "Go Fuck Yourself and got out of the car Defendant then threw
victim face first onto the concrete steps in front of a house. Victim had to be treated at a
hospital for a broken nose, and received stitches for other facial injuries
Defendant was charged with Recklessly Endangering Another Person [REAP],
Misdemeanor in the Second Degree, Aggravated Assault, Second Degree, Simple Assault.
Defendant waived jury trial. On February 15, 1991, he was found guilty of charges. His bail
was revoked and his sentencing was deferred until April 30, 1991. He was given a sentence
of between 6 months and 23 months. Defendant was paroled that same day from his
sentence.
Second Degree Aggravated Assault does not require a mandatory sentence, unlike a
charge of First Degree In order to convict a defendant of a charge of Second Degree a
deadly weapon must be used. Page 28 of the Hahn transcript shows that Judge Massiah-
Jackson found that the defendant's body was a deadly weapon.
THE COURT: I think that the way Mr Hahn used his body by bumping him
with his hands would either be considered a deadly weapon, the choice Mr.
Knochak [defense counsel] is yours and your client, or it was reckless conduct
under circumstances manifesting extreme indifference to the value of a 78 year
old person's life So that's the choice
Defendant's parole was revoked on October 13, 1992 because the defendant violated
his conditions and the remainder of his time was reinstated. On November 2, 1993, he was
again recommended for parole after having served 21 months, despite committing an
infraction [fighting while in prison] for which he received 14 days punitive segregation.
In Commonwealth v Edward Baker, the defendant robbed his victim at knife point
and took $284.00. He was charged with Robbery, criminal conspiracy. Theft, Possessing
Instruments of Crime; Possessing Concealed Weapon; Recklessly Endangering Another
1049
Person; Terroristic Threats; Simple Assault. Defendant waived jury and proceeded to bench
trial. He was adjudged guilty of Criminal Conspiracy, Theft, Concealed Weapon charges, and
not guilty of Simple Assault, Terroristic Threats, REAP. Defendant had an extensive prior
criminal history including charges of statutory rape, multiple assaults, larceny, starting from
1 97 1 , [last offense charged prior to offenses in this case were in 1 989] defendant sentenced to
2 1/2-5 years.
Sentencing Information Received From Pennsylvania Sentencing Commission
The Pennsylvania Sentencing Commission data shows that Judge Massiah-Jackson's
sentencing falls most often within the standard guideline range. It is comparable to that of
other Philadelphia judges. However, the information also shows that when she has departed
from the standard guideline range she has deviated below the guidelines by over 98%, and has
deviated only 1.26% above the guidelines. This sentencing deviation is comparable to other
Philadelphia and Pennsylvania judges around the state.
According to the Philadelphia Sentencing Commission, it is mandatory that judges
report their sentencing information to the Commission. However, a comparison of the
number of criminal cases reported to the commission against the information received from
the Court of Common Pleas showing the number of criminal cases handled by Judge Massiah-
Jackson reveals a huge discrepancy. For example, the information received from the Court
shows that she handled over 500 criminal cases for most years. In contrast, the Commission
reports total criminal cases handled as follows: 1985-56; 1986-153, 1988-54; 1989-107; 1990-
145; 1991-89. At the suggestion of the Director of the Commission, the information received
from the Commission for each of the years reported was combined in order to have enough
data to analyze.
Criminal case information received from the Court of Common Pleas shows that for
the years that Judge Massiah-Jackson served on the criminal bench [1984 to 1991] she
handled very few jury trials — less than 20 total — compared to the thousands of cases that
she tried non-jury.
1050
Senator Specter. Thank you all very much, and that concludes
our hearing.
[Whereupon, at 4:10 p.m., the committee was adjourned.]
[Submissions for the record follow:]
1051
SUBMISSIONS FOR THE RECORD
I BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name: (Include any former names used.)
Willie James Ware. The name I currently use is James Ware. I also use Jim
Ware. In the past I used W. James Ware.
2. Address: (List current place of residence and office addresses).
Office: United States Courthouse
280 South First Street
San Jose, CA 95113
(408) 535-5454
Home: Mountain View, CA 94040
3. Date and place of birth
November 2, 1946; Birmingham, Alabama
4. Marital Status: (Include maiden name of wife, or husband's name.) List spouse's
occupation, employer's name and business addresses.
Married; Susan Ware (nee Susan Stoll)
Deputy County Counsel
Santa Clara County Counsel's Office
70 W. Hedding Street, E. Wing, Fl. 9
San Jose, CA 95110
5. Education: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
Institution
Compton College
California Lutheran
University
Stanford Law School
Dates of Attendance
1/65-6/66
9/66-6/69
9/69-6/72
Degree or reason
for leaving
Transferred to four-year
institution
B.A. 1969
J.D. 1972
1052
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 ft'om college.
YEAR ORGANIZATION
1969 The American Lutheran Church
East Palo Alto
POSITION
Guide (I led inner city
teens on backpacking trips
through the Sierras and
counseled them on
personal development)
1969
Stanford University
University Library
Worker (Work-Study
Program)
1970 O'Melvany & Myers
Law Offices
Los Angeles, California
Summer Associate
1970 United States Army
Fort Knox, Kentucky
Active Duty Reserves
Basic Training
1971 United States Army
Fort Lewis, Washington
Active Duty Reserves
Advanced Basic Training
1971 Kadison, Phelzer, Woodard & Quinn
Law Offices
Los Angeles, California
Summer Associate
1972 United States Army
Fort Gordon, Georgia
Active Army Reserve
Military Police School
1973-81
United States Army Reserve
San Jose, California
Inactive Army Reserve
Military Police
1972-77 Blase, Valentine & Klein
Law Offices
Palo Alto, California
Associate Attorney
1973-83 Urban Coalition
Mid Peninsula Chapter
Fair Housing Program
Member
Volunteer Attorney
1977-88 Blase, Valentine & Klein
(Now Ritchey, Fisher, Whitman & Klein)
Law Offices
Palo Alto, California
Partner/Shareholder
1053
1980
California Lutheran University
Thousand Oaks, California
Visiting Professor
Administration of Justice
& Business Departments
1980-82 YMCA
Palo Alto Area
Law Offices
Palo Alto, California
Member
Board of Directors
1983-88
Stanford University
Member
Board of Trustees
1984-86
Stanford University Hospital
Member
Board of Trustees
1988-90
1990-
present
1990-
present
State of California
County of Santa Clara
Martin Luther King Papers Project
Stanford University
United States Government
Judge
Superior Court
Member
Advisory Board
United States District
Judge, Northern District
of California
1991-93 American Leadership Forum
Silicon Valley Chapter
1993-96
California Lutheran University
Thousand Oaks, California
Member
Board of Directors
Member
Board of Regents
1992-
present
Lincoln Law School of San Jose f
San Jose, California
1996- Santa Clara University
present School of Law
Santa Clara, California
Member
Faculty
Member
Adjunct Faculty
1054
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.
Dates: September 1972 - December 1972
Branch: United States Army
Active Duty for Training
Military Police School
Fort Gordon, Georgia
Rank: Second Lieutenant
Serial No.: 416-58-1395
Status: Graduated
Discharge: Honorable Discharge from Active Duty
Dates: 1973-1987
Branch: United States Army Reserve
Rank: Captain
Serial No.: 416-58-1395
Status: Discharged upon completion of service - 1987
Discharge: Honorable
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you believe would be of
interest to the Committee.
Doctor of Laws (Honorary Degree)
California Lutheran University
Fulbright Fellowship for Lectures on American Legal
System in the Middle East
Fellowship by the German-Marshall Fund to study at
Atlantik-Bruecke Conference in West Berlin
Martindale-Hubbel Law Directory, a. v. rating
1997
1996
1987
1987
1055
Community Service Award, Urban Coalition 1982
Award from the International Academy of Trial Lawyers for
Appellate Advocacy 1970
Graduated Most Outstanding Senior
California Lutheran University 1969
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 Member
Santa Clara County Bar Member
Association
1973-88
1973-88
Palo Alto Area Bar Association Member
Charles Houston Bar Association Member
Santa Clara County Bar Member
Association
Board of Trustees
1972-88
1974-
present
1981-82
Santa Clara County Bar
Association
Member
Judicial Evaluation
Committee
1981-82
Palo Alto Bar Association
Chairman
Law for Laymen
Committee
1983-84
United States District Court for
the Northern District of
California
Member
Merit Selection Panel
for recommending
individuals for
appointment to a
position as a
Magistrate Judge
1982
Administrative Office of the
United States Courts
Chairman
Chambers and
Courtroom Umbrella
Group for
Automation and
Technology
1992-97
1056
Court of Appeals for the Ninth Chairman
Circuit
Court of Appeals for the Ninth Member
Circuit
Committee on Model 1995-
Jury Instructions present
Task Force on Race, 1995-
Religion and Ethnic present
Fairness
United States District Court for
the Northern District of
California
Chairman
Local Rules
Committee
1994-
present
United States District Court for
the Northern District of
California
Member
Space Committee
1994-
present
United States District Court for
the Northern District of
California
Member
Court Technology
Committee
1994-
present
United States District Court for
the Northern District of
California
Member
Unappropriated
Funds Committee
1997-
present
Santa Clara County Superior
Court
Member
Long Range Planning
Committee
1988-89
Santa Clara County Superior
Court
Member
Research Attorneys
Review Committee
1988-89
Santa Clara County Superior
Court
Member
Computerization of
the Court Committee
1988-89
1057
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 am not a member of any organization that is active in lobbying before public
bodies.
I am a member of the following organizations:
California Lutheran University Alumni Association
Stanford Law School Alumni Association
Martin Luther King Papers Project Advisory Committee
American Leadership Forum Senior Fellows
Federal Judges Association
Lincoln Law School of San Jose Faculty
Santa Clara University Adjunct Faculty
Charles Houston Bar Association-Judicial Council
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 Court of Appeals
For The Ninth Circuit 1972
United States District Court
Northern District of California 1972
Central District of California 1973
Eastern District of California 1975
California Supreme Court 1972
1058
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.
Books
Co-author, California Residential Landlord-Tenant Practice. CEB 1986 (Excerpt
attached as Exhibit "A-1").
Sole author, Chapter 29 "Selection of Tenants," California Residential Landlord-
Tenant Practice. CEB 1986 (See copy attached as Exhibit "A-1").
Articles
"Adopting an Educator Habit of Mind: Modifying What It Means to 'Think Like a
Lawyer'," 45 Stanford Law Review. 1993 (See copy attached as Exhibit "A-2").
"A Clash of Sentencing Policies: Sentencing Guidelines Versus Mandatory
Minimums," State Bar of California. 1993 (See copy attached as Exhibit "A-3").
"An Assessment of the California Drug Diversion Program, CAJC Forum. Oct/Nov
1974 (See copy attached as Exhibit "A-4").
"Earning the Daubert Seal of Approval for Expert Witnesses," ABTL Newsletter,
1995 (See copy attached as Exhibit "A-5").
Speeches
I often speak to various community and legal groups regarding the administration
of justice. The speeches are extemporaneous and are not published. In all speeches, I
adhere to the Canons of Judicial Conduct. Copies of formal speeches I have given are
attached as Exhibit "A-6"
1059
13. Health: What is the present state of your health? List the date of your last
physical examination.
Excellent.
My last physical was March 28, 1997.
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
From October 1988 until October 1990 I served as Judge of the Santa Clara County
Superior Court The California Superior Court is the court of general jurisdiction in the
State of California.
In October, 1990 I was appointed by President George Bush to the position of
District Judge of the United States District Court for the Northern District of California.
The United States District Court derives its jurisdiction from Article lH of the Constitution
of the United States to the extent authorized by Congress. The Congressional grant of
jurisdiction for the District Court is found in Title 28 of the United States Code Sections
1331, 1332, 1346, 1367 and 1441. I currently serve as a District Judge.
1060
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) The ten most significant opinions I have written are as follows. Copies of the
unpublished opinions are attached as Exhibits "B"
(a) Earle v. State Farm Fire & Casualty Company. 935 F.Supp. 1076 (N.D. Cal. 1996)
(b) Yukivo Ltd. v. Shiro Watanabe. 1996 WL 756803 (N.D. Cal. 1996) (See copy attached
as Exhibit "B-1")
(c) Wiener v. NEC Electronics. Inc.. 1995 WL 429204 (N.D. Cal. 1995) (See copy attached
as Exhibit "B-2")
(d) Bell Atlantic Business Systems Services. Inc. v. Hitachi Data Systems Corp..
1995 WL 798932 (N.D. Cal. 1995) (See copy attached as Exhibit "B-3")
1995 WL 798935 (N.D. Cal. 1995) (See copy attached as Exhibit "B-3")
(e) Bell Atlantic Business Systems Services. Inc. v. Hitachi Data Systems Corp..
1995 WL 836331 (N.D. Cal. 1995) (See copy attached as Exhibit "B-4")
(0 Engler v. City of San Jose et al.. 1995 WL 767816 (N.D. Cal. 1995) (See copy attached as
Exhibit "B-5")
(g) U.S. V. Hopkins. 1996 WL 61152 (N.D. Cal. 1996); 1996 WL 101195 (N.D. Cal. 1996)
(See copy attached as Exhibit "B-6")
(h) George, et al. v. UXB International. Inc.. 1996 WL 241624 (N.D. Cal. 1996) (See copy
attached as Exhibit "B-7")
(i) Wilson V. United States. 1996 WL 297051 (N.D. Cal. 1996) (See copy attached as Exhibit
"B-8")
(j) Nordvke v. County of Santa Clara. 933 F.Supp. 903 (N.D. Cal. 1996)
10
1061
(2) A short summary of and citations for all appellate' opinions where my decisions were
reversed or where my judgment was affirmed with significant criticism of your substantive or
procedural rulings are as follows:
(Copies of the unpublished opinions are attached as Exhibits "C")
Unless otherwise indicated, citations are to the Federal Reporter, 3rd Series. Any
Ninth Circuit decision issued without a published opinion is identified as a "Decision
Without Published Opinion" and is attached as an Exhibit.
If the appeal was from a written order in a file which is still maintained by the
Clerk's Office, I have also included a copy of the order. Some appeals were taken from
rulings made on the record during trial or from the entire trial record which is
voluminous, or from orders which are no longer contained in the files of the Clerk of
Court. Trial records not maintained are archived at the Federal Records Center. I am in
the process of obtaining the records archived from the Federal Records Center.
(a) Yukiyo. Ltd. v. Shiro Watanabe. et al. No. 97-1115 (Fed. Cir. 1997) ( Decision Without
Published Opinion)
Yukiyo is a multi-district patent litigation action in which Plaintiff is the
assignee of a patent for the fabrication of porcelain restorations. The
inventor named in the patent is Dr. Gerald McLaughlin. Plaintiff filed
a series of lawsuits against various dental laboratories throughout the
United States alleging that the labs infringed the patent for porcelain
restorations. Phase One of the trial, the validity of the patent, was tried
before a jury. The jury returned a verdict in favor of Plaintiff, finding
that the patent was valid. On a motion for judgment as a matter of law,
or for a new trial, the Court found that the verdict was not supported
by the evidence in the case. Rather, the Court found that the undisputed
evidence at trial proved that the patent was invalid because, prior to the
filing of the patent application, articles were published in professional
journals disclosing the method claimed in the patent for fabricating
porcelain restorations. Therefore, the Court entered judgment in favor
of Defendants. On appeal, the federal circuit determined that there was
substantial evidence to support the jury findings and that the Court's
decision to grant judgment as a matter of law was improper.
(See copies of my order, as well as the Federal Circuit's order, attached as Exhibits
"C-1")
(b) United States v. Clinton Watson. 1997 WL 367384 (9th Cir. 1997)
(Published Opinion, Not Yet Available in F.3d).
Defendant was tried and convicted by a jury for cellular telephone cloning.
Prior to trial, the Court granted Defendant's motion to suppress evidence
11
1062
obtained by the government's seizure of a safe Trom Defendant's home. The
Court ruled that the safe had been improperly seized and that neither the safe
nor its contents could be used at trial. However, during Defendant's opening
statement, reference was made to the illegal seizure of the safe. Based on
such statement, the Court permitted the government to question its witness about
such seizure. Although Defendant's conviction was affirmed on appeal, the
Court was criticized for permitting evidence regarding the seizure of the safe
to be introduced during the government's case-in-chief, since it found that
the door had not been opened by opening statement remarks, since such
remarks are not evidence in the case.
(See copy of the Ninth Circuit opinion attached as Exhibit "C-2")
(c) Reynolds v. Gomez. 108 F.3d 338 (9th Cir. 1997) (Decision Without Published Opinion)
Petitioner Lee Anthony Reynolds filed a habeas petition, claiming that he
was denied a fair trial because his co-defendant was shackled during various
portions of the trial. Petitioner also alleged that identification evidence was
impermissibly admitted, that details of a prior robbery conviction were
impermissibly admitted, and that an omission in the jury instructions
rendered them constitutionally inadequate. The district court denied his
petition. The Ninth Circuit vacated the district court's judgment and
remanded the case only as to whether the shackles denied Reynolds his right
to a fair trial.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits
"C-3")
(d) Moore v. Gerstein. 107 F.3d 16 (9th Cir. 1996) pecision Without Published Opinion)
Pro se plaintiff Judy Moore sued Dr. Gerstein under Section 1983, alleging
that she had been subjected to an unconstitutional seizure and detention at a
mental treatment facility for 48 hours. The district court dismissed the claim
because Plaintiff had not alleged facts showing that Gerstein "acted with
malicious intent or was grossly negligent" in order to overcome Gerstein's
entitlement to qualified immunity. The Ninth Circuit reversed because the
trial court had applied an incorrect standard for qualified immunity, and
because the defense of qualified immunity was not established on the face of
the complaint.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits
"C-4")
(e) Logan v. Gomez. 81 F.3d 169 (9th Cir. 1996) (Decision Without Published Opinion)
Logan, a California state prisoner, filed a petition for habeas corpus relief,
asserting that his due process rights were violated because he was shackled
during his trial. The trial court denied the petition. The Ninth Circuit found
12
1063
that the shackling was prejudicial and could have tipped the balance in this
closely decided case. The Ninth Circuit vacated and remanded the matter
for the district court to conduct an evidentiary hearing on the petition.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits
"C-5")
(0 Kimes v. Stone. 84 F.3d 1121 (9th Cir. 1996)
Plaintiffs brought a Section 1983 action against a superior court judge and
several attorneys. Plaintiffs alleged that the defendants conspired against
them to "overturn" a jury verdict, thus depriving plaintiffs, without due
process of law, of property they would have otherwise received from their
father's estate. The trial court granted defendants' motion to dismiss,
relying on Cal. Civ. Code § 47(b), which immunizes parties involved in
litigation from civil liabilities for communications made in the course of that
litigation. The Ninth Circuit affirmed the trial court's dismissal in favor of
defendant Judge Stone and reversed the dismissal in favor of the attorney
defendants. The Ninth Circuit reasoned that conduct by persons acting
under color of state law which is wrongful under Section 1983 cannot be
immunized by state law.
(See copy of my order attached as Exhibit "C-6")
(g) United States v. Mallorv. No. 95-10352, (9th Cir. 1996) (No Published Opinion)
Defendant pled guilty to conspiracy to manufacture methamphetamine and
for carrying an altered firearm in the commission of a conspiracy to
manufacture methamphetamine. The trial court accepted the guilty plea,
but deferred deciding whether to accept the plea agreement until a later date.
Subsequently, Defendant filed a motion to withdraw his guilty plea and a
motion to dismiss the superseding indictment. The trial court denied the
motions, accepted the guilty plea, and sentenced Defendant to 288 months
imprisonment. The Ninth Circuit held that the trial court abused its "*
discretion in denying Defendant's motions, and accordingly reversed the
Defendant's convictions and remanded the matter to the trial court so that
Defendant could enter a new plea.
(See copies of my order, as well as the Ninth Circuit's opinion attached as Exhibits
"C-7")
(h) IBM V. Zachariades et al. 70 F.3d 1278 (9th Cir. 1995) (Decision Without Published
Opinion)
IBM sued Dr. Zachariades for breach of an employment agreement,
contending that he wrongfully refused to assign seven patents to IBM. On
summary judgment, the trial court held that IBM's claims were time barred
because the statute of limitations for all of IBM's claims commenced with the
issuance of the first of the patents-in-suit in May 1986. The Ninth Circuit
13
1064
held that a separate limitations period began to run upon the issuance of
each patent to Zachariades.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibit
"C-8")
(i) Jensen v. County of Santa Clara. 69 F.3d 544 (9th Cir. 1995) (Decision Without
Published Opinion)
Plaintiff sought damages from the County and Instar Pest Consultant for
injuries allegedly resulting from pesticide exposure in the work place. The
district court dismissed PlaintifTs eighteen personal injury claims against
Instar as time-barred by California's one-year statute of limitations for
personal injury actions, California Civil Procedure Code Section 340(3). On
appeal, the Ninth Circuit reversed, holding that Plaintiffs personal injury
claims were not time barred because her complaint was filed within one year
from the time she discovered the cause of her injury.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits
"C-9")
G) U.S. Fidelity & Guaranty Co. v. Riggs. 51 F.3d 284 (9th Cir. 1995) (Decision Without
Published Opinion)
Defendant Mr. Riggs was found to be negligent as an architect in this
insurance contribution action. The Ninth Circuit reversed judgment and
remanded the matter to the district court for further proceedings to allocate
responsibility between Mr. Riggs in his capacity as a homeowner and Mr.
Riggs as an architect. The matter was also remanded for a determination of
reasonable attorney's fees.
(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits
"C-10")
(k) Bud Antle. Inc. v. Barbosa. 45 F.3d 1261 (9th Cir. 1994)
Bud Antle, Inc. ("Bud Antle") sued the members and executive secretary of
the California Agricultural Labor Relations Board ("ALRB"), claiming that
the National Labor Relation Act ("NLRA") ousts the ALRB of jurisdiction to
adjudicate various unfair labor practice charges which were pending before
the state board at the time. Bud Antle sought injunctive relief to prohibit the
ALRB from continuing its proceedings. The district court concluded that the
NLRA did not preempt ALRB's jurisdiction over the charges. The district
court also held that it was required to abstain pursuant to Younger v. Harris.
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 669 (1971). The Ninth Circuit reversed,
reasoning that the "Garmon preemption," named for San Diego Building
Trades Council v. Garmon. 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959),
preserved the primary jurisdiction of the NLRB by prohibiting the states
from regulating activities that are at least arguably protected by §7 of the
14
1065
NLRA or arguably prohibited by §8 of that statute. Accordingly, the Ninth
Circuit also held that the second prong of the Younger doctrine test, that the
state proceedings implicate important state interests, was not met.
(See copy of my order attached as Exhibit "C-11")
(1) Berg V. Leason. 32 F.3d 422 (9th Cir. 1994)
After successfully defending himself in a federal court action alleging
violations of federal securities and racketeering laws. Berg brought a
malicious prosecution action in state court. Defendant removed the action to
federal court on the basis of federal question jurisdiction. The district court
declined to remand the case. The Ninth Circuit reversed, holding that a
malicious prosecution claim did not arise under federal law simply because
one element required proof that the underlying federal action was legally
untenable.
The files of the Clerk's Office containing the underlying record have been
archived. Therefore, no copy of my order is attached at this time. Once the
records have been retrieved from the Federal Records Center, I will submit a
copy of this order.
(m) Kanemoto v. Reno. 41 F.3d 641 (Fed. Cir. 1994)
Kanemoto, a United States citizen of Japanese ancestry, appealed to the
district court the Office of Redress Administration's denial of her claim for
restitution. The government moved to dismiss the complaint or transfer the
case to the Court of Federal Claims, contending that because Kanemoto
sought monetary damages from the United States in excess of 510,000, the
Tucker Act, 28 U.S.C. §1491, precluded jurisdiction in the district court. In
pertinent part, the trial court denied the government's motion to transfer
reasoning that Kanemoto did not seek "monetary damages," but rather
"reparation payments" incidental to her claim for equitable relief. On
appeal, the Ninth Circuit reversed, holding that a case which seeks
reparation payments falls within the jurisdiction of the Court of Federal
Claims under the Tucker Act.
(See copy of my order attached as Exhibit "C-12")
(n) United States v. Saldana. 12 F.3d 160 (9th Cir. 1993)
The Government and Saldana entered into a plea agreement providing that
Saldana would plead guilty to three charges of cocaine distribution, and in
exchange, the Government would move to dismiss the twelve remaining
charges for food stamp fraud. The plea agreement also required Saldana to
stipulate to certain facts for purposes of the sentencing guidelines. The
presentence report calculated a base offense level of twelve and a two level
reduction for Saldana's acceptance of responsibility, for a total offense level
of ten. The Government challenged the presentence report for disregarding
15
1066
the twelve food stamp counts in calculating the base ofTense level. The
district court held that it had the discretion to decide whether it would take
into consideration the stipulated food stamp counts in determining the
offense level, and it declined to do so. The Ninth Circuit vacated the district
court's decision and remanded for resentencing of Saldana, holding that the
trial court had an obligation under the Sentencing Guidelines to consider the
stipulated facts establishing the food stamp fraud offenses in determining the
base offense level.
The files of the Clerk's Office containing the underlying record have been
archived. Therefore, no copy of my order is attached at this time. Once the
records have been retrieved from the Federal Records Center, I will submit a
copy of this order.
(o) Murphy v. T. Rowe Price Prime Reserve Fund et al. 8 F.3d 1420 (9th Cir. 1993)
Plaintiff, the executor of an account holder's estate, sued the defendant
investment company for the interest accrued on funds from an uncashed
check issued to close out the account. One of the plaintiffs theories for
recovery was that the investment company was bound by an oral agreement
to return all but 18 percent of the interest. The investment company
countered that the purported agreement was unenforceable for lack of
consideration because the company had a clear statutory right to retain the
interest. Without deciding whether there had in fact been an oral agreement,
the district court held that Plaintiffs claims were legally invalid and
therefore did not constitute consideration for the alleged oral agreement.
The Ninth Circuit reversed, reasoning that the district court erred in
equating the potential validity of the Plaintiffs claim ex ante with its own ex
post conclusion as to the merits of the claim. Further, the Court held that
under California law, a relinquishment of a colorable claim constitutes valid
consideration; that Plaintiffs claim was colorable; and therefore, the
agreement was not completely invalid.
(See copy of my order attached as Exhibit "C-13")
(p) United States v. $434.097.70 In U.S. Currencv. 1 F.3d 1247 (9th Cir. 1993) (Decision
Without Published Opinion)
In this civil asset forfeiture proceeding, the Ninth Circuit held that the trial
court erred in its application of the doctrine of issue preclusion.
In the first forfeiture proceeding, the district court found probable cause to
forfeit the cash and an automobile seized from a drug dealer named Michael
Miroyan. The decision was appealed, and the Ninth Circuit held that the
district court had improperly exercised in rem jurisdiction over the cash
because the cash had already been the subject of state forfeiture proceedings.
On the merits, the Ninth Circuit upheld the district court's finding of
probable cause for the forfeiture of the automobile. After the appeal, the
16
1067
United States re-filed the forfeiture action against the cash. The district
court ruled in favor of the government's motion for summary judgment on
the grounds that Miroyan had already had a "full and fair" opportunity to
litigate the issue of probable cause in the first forfeiture action. The Ninth
Circuit reversed.
(See copy of the Ninth Circuit's opinion attached as Exhibit "C-14")
The files of the Clerk's Office containing the underlying record have been
archived. Therefore, no copy of my order is attached at this time. Once the
records have been retrieved from the Federal Records Center, I will submit a
copy of this order.
(q) Martin by and through Martin v. United States. 984 F.2d 1033 (9th Cir. 1993)
Jennifer Martin was abducted and raped while on an outing from a day care
center operated by the government. Her claim for negligent supervision
went to trial and she was awarded S200,000 in economic damages and
S600,000 in non-economic damages. On appeal, the government argued that
the trial court incorrectly determined that California Civil Code Section
1431.2(a), which mandates apportionment of non-economic damages, does
not apply to actions where one tortfeasor is intentional and the other is
negligent. The Ninth Circuit reversed, holding that Section 1431.2(a) applied
to any personal injury action.
(See copy of my order attached as Exhibit "C-15")
(r) Payne v. Robert Borg. Warden. 982 F.2d 335 (9th Cir. 1992)
Petitioner Payne was found guilty in state court of first degree murder and of
a special circumstance that the murder was committed during the course of a
burglary. Payne filed a petition for writ of habeas corpus, contesting only
the validity of the special circumstance finding, which resulted in a sentence
of life imprisonment without the possibility of parole. The district court
granted habeas relief, finding that there was insufficient evidence to prove,
beyond a reasonable doubt, that Payne had the necessary intent to support
his special circumstance conviction. The Ninth Circuit reversed.
The files of the Clerk's Office containing the underlying record have been
archived. Therefore, no copy of my order is attached at this time. Once the
records have been retrieved from the Federal Records Center, I will submit a
copy of this order.
(s) Atari Corporation v. Ernest & Whinnv. 981 F.2d 1025 (9th Cir. 1992)
Atari initiated a plan to acquire Federated. Atari's chief financial officer,
Greg Pratt, attempted to evaluate Federated's finances and came to the
belief that Federated's assets were overstated. Even so, Pratt was not sure of
this fact without an audit and, therefore, he proceeded with the deal. After
17
1068
the deal was closed the results of Coopers and Lybrand's audit were released
identifying adjustments of S43 million dollars, resulting in a reduction of
Federated's net worth by S33 million. Atari sued Federated's auditors for
violations of RICO. The district court ruled that the indemnification
provision of the parties' agreement did not provide for indemnification for
expenses arising out of an action brought by Atari, but only for
indemnification for suits brought by third parties. The Ninth Circuit
reversed.
The files of the Clerk's Office containing the underlying record have been
archived. Therefore, no copy of my order is attached at this time. Once the
records have been retrieved from the Federal Records Center, I will submit a
copy of this order.
18
1069
15(3). Citations for significant opinions on federal or state constitutional issues, together with
the citation to appellate court rulings on such opinions are as follows:
(a) Nordyke v. County of Santa Clara. 933 F. Supp. 903 (N.D. Cal. 1996); 110 F.3d 707
(1997)
(b) Wilson V. United States.et al.. 1996 WL 297051 (N.D. Cal. May 31, 1996); 1995 WL
77506 (N.D. Cal. 1995); 878 F. Supp. 1324 (N.D. Cal. 1995) (See copies of my unpublished
decisions attached as Exhibit "B-8"); 60 F.3d 1411 (9th Cir. 1995)
(c) George v. UXB International. Inc.. 1996 WL 241624 (N.D. Cal. 1996) (See copy
attached as Exhibit "B-7")
(d) United States v. Hopkins. 1996 WL 101195 (N.D. Cal. 1996); 1996 WL 61152 (N.D.
Cal. 1996) (See copies attached as Exhibit "B-6")
(e) Engler v. City of San Jose. 1995 WL 767816 (N.D. Cal. 1995) (See copy attached as
Exhibit "B-5")
(0 Helmet Law Defense League v. State of California. 1996 WL 297038 (N.D. Cal. 1996)
(See copy attached as Exhibit "B-9")
(g) Hunter v. Vasquez. 1995 WL 429242 (N.D. Cal. 1995) (See copy attached as Exhibit
"B-10")
(h) Choice Hotels International. Inc. v. Patel. 1994 WL 706270 (N.D. Cal. 1994); 1994 WL
621668 (N.D. Cal. 1994) (See copies attached as Exhibit "B-11")
(i) Ridgewav v. Flagstar Corp.. 1994 WL 665243 (N.D. Cal. 1994); 1994 WL 665414 (N.D.
Cal. 1994); 1994 WL 665250 (N.D. Cal. 1994); 1994 WL 564571 (N.D. Cal. 1994); 1994 WL
525553 (N.D. Cal. 1994) (See copies attached as Exhibit "B-12")
(j) Yin V. State of California. 1994 WL 594043, 5 NDLR P 470 (N.D. Cal. 1994) (See copy
attached as Exhibit "B-13"); 95 F.3d 864 (1996)
(k) Nanut v. Kimberly-Clark Corp.. 1994 WL 570561 (N.D. Cal. 1994) (See copy of my
unpublished decision attached as Exhibit "B-14"); 1996 WL 344607 (9th Cir. 1996) (See
copy of the Ninth Circuit opinion attached as Exhibit "B-15")
(I) Mission Oaks Mobile Home Park v. City of Hollister. 788 F. Supp. 1117 (N.D. Cal.
1992); 989 F.2d 359 (1993)
19
1070
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.
Other than judicial ofTice, I have held no elected public ofTices. From 1983 until
1988 I was a Notary Public of the State of California. Notary Publics are appointed by the
Secretary of State of the State of California. I did not renew my commission after I was
appointed Judge of the Santa Clara County Superior Court.
I have not been an unsuccessful candidate for elective public office.
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, 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.
After graduating from law school and fulfilling my active duty military
requirement, I became an associate attorney with the law firm of Blase, Valentine & Klein,
a Palo Alto law firm which was founded in 1965. I joined the firm as an associate in
December 1972. I became a partner in January 1977. I remained with the firm until my
appointment to the Superior Court in November 1988. At some time after I left the firm
and after the firm's senior partner retired, the firm changed its name to Ritchey, Fisher,
Whitman & Klein. The current address of the law firm is:
Ritchey, Fisher, Whitman & Klein
A Professional Corporation
1717 Embarcadero Road
Palo Alto, California 95050
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?
20
1071
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My practice involved significant in-court experience in federal and state courts,
primarily in Northern California. I also handled major commercial arbitrations and
mediations, as well as other alternative methods of dispute resolution. I represented
individuals, partnerships and publicly traded and privately held corporations in a wide
variety of business litigation matters.
I gained significant experience in handling intellectual property and unfair
competition cases (representing both employers and former employees), wrongful
termination of employment cases (also representing both employers and former
employees), construction disputes, breach of warranty cases, and partnership and
corporate dissolution disputes. My legal work in technical fields included cases of license
termination and royalty disputes, semiconductor and computer trade secret disputes, and
the professional liability defense of architects, engineers and geologists.
During the first seven years of my practice (1973-1980), criminal defense, involving
felonies and misdemeanors, comprised approximately one-third of my caseload. Most of
the criminal cases were assigned to my ofTice through the San Mateo County Bar
Association Private Defender Program. An illustrative case was People v. Haysbert. a
defendant convicted of possession of a large quantity of cocaine for distribution. I was sole
defense counsel. The case was tried before a jury. Judge Robert E. Carey, San Mateo
County Superior Court, presiding. Haysbert was convicted.
Although the primary nature of my practice was business litigation, I represented
plaintiffs in civil rights cases on a pro bono basis.
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 appeared in court on a regular basis. During the early years of my practice, it was
not uncommon for me to try several cases during any given year. During the last half of
my practice, the complexity of the cases led to fewer trials.
2. What percentage of these appearances was in:
(a) federal courts; 30%
(b) state courts of record, 70% ^^.^^
(c) other courts. 0%
3. What percentage of your litigatn
(a) civil, 90%
(b) criminal. 10%
21
1072
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.
During the course of my sixteen years of practice, I tried approximately IS cases to
verdict or judgment.
I tried 12 cases to verdict or judgment as sole counsel
I tried 1 case to verdict as chief counsel
I tried 2 cases to verdict as associate counsel
What percentage of these trials was:
(a) jury; 40%
(b) non-jury. 60%
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.
22
1073
CASE No. 1: Mary Sullivan. M.D. v. The Sequoia Hospital District
COURT: United States District Court for the
Northern District of California
CITATION: [Unreported, Docket No. C 87-5127 SC]
JUDGE: Honorable Samuel Conti
450 Golden Gate Avenue
San Francisco, California 94102
(415) 522-2077
CLIENT: Anesthesiologist Group of Sequoia Hospital
I served as lead counsel.
ASSOCIATE
COUNSEL:
James Wagstaffe
Cooper, White & Cooper
201 California Street
San Francisco, California 94111
(415) 433-1900
OPPOSING
COUNSEL:
DATE:
Clyde Butts
1225 Alpine Road, Suite 204
Walnut Creek, CA 94696
(415) 943-1850
1987-88
DESCRIPTION:
I represented a group of anesthesiologists who were members of the medical staff at
Sequoia Hospital. My clients were sued by Dr. Sullivan, another anesthesiologist on the
hospital staff. Dr. Sullivan claimed that my clients and the Sequoia Hospital, which she
also sued, conspired to restrict her privileges. She claimed that the restrictions were
imposed to restrict competition by physicians who were not members of the medical group,
in violation of federal and state antitrust and civil rights.
I was a key draftsman and strategist in a motion for summary judgment to dispose
of the case prior to trial. The joint defense motion demonstrated that the restrictions about
which Dr. Sullivan complained were placed upon her by a Medical Review Board, which
determined that the restrictions were appropriate after two life-threatening incidents
occurred involving patients of Dr. Sullivan. The case required the Court to resolve
whether physicians taking actions pursuant to medical review proceedings enjoyed a
qualified privilege against the type of claims brought by Dr. Sullivan.
Judge Conti granted judgment was entered in favor of all defendants.
23
CASE No. 2:
COURT:
CITATION:
JUDGE:
OPPOSING
COUNSEL:
CLIENT:
DATE:
1074
Ampex V. Tandon Corporation
Santa Clara County Superior Court
[Unreported - Docket No. 557299]
Honorable Peter Anello (now deceased)
James N. Penrod
B. Thomas French
Hassard, Bonnington, Rogers & Huber
50 Fremont Street, Suite 3400
San Francisco, CA 94105
(415) 543-6444
William C. Morison-Knox
Pillsbury, Madison & Sutro
P.O. 7880
San Francisco, CA 94120
(415) 983-1000
Tandon Corporation
I served as lead counsel.
1984-86
DESCRIPTION:
This was a lawsuit by Ampex alleging that Tandon had infringed trade secrets and
proprietary information. The alleged stolen technology involved methods for placing a
thin magnetic layer on hard disks so that these disks could be used to store information for
use in computers.
I managed a team of four attorneys and three paralegals. To prepare for the case, I
was required to acquire a working knowledge of the technology for manufacturing
computer "hard disks," the metallic media used in "hard disk drives" for storage of data.
The case also involved complex legal issues with respect to whether certain skills or
information acquired by an engineer while working with one employer could be used by
the engineer while employed at a subsequent employer.
As a means of settlement, a minitrial was conducted before Judge Anello on the
issue of the ownership of the technology. A ruling by Judge Anello that a substantial
amount of the disk coating skills and information, which Ampex claimed to be proprietary,
was in the public domain led to a settlement of the case favorable to Tandon Corporation.
24
CASE No. 3:
COURT:
CITATION:
JUDGE:
CLIENT:
1075
Daggett Assembly v. Union Street Investment Co.
San Francisco Superior Court
[Unreported - Docket No. Unavailable]
Honorable John Dearman
San Francisco Superior Court
633 Folsom Street
San Francisco, California 94107
(415) 554-5790
Daggett Assembly
I served as sole counsel
OPPOSING
COUNSEL:
DATE:
James H. Pooley
Fish & Richardson
2200 Sand Hill Road
Menlo Park, California 94025
(415) 322-5070
1982-84
DESCRIPTION:
This was a lawsuit in which I represented a general contractor in an action against
the owner/developer of a San Francisco Victorian building for recovery of the balance
owed for construction fees. The case was factually and legally complex because, in the
course of the project, the owner decided to restore the exterior of the building so that it
would be historically accurate but wished to have an ultra-modern interior. These changes
doubled the cost of construction and, because they were made during the period of
construction, they also delayed the time of completion.
When the construction was completed, the owner refused to pay the contractor and
asserted a SI million cross-complaint, claiming that the delay had caused him to miss a
"market window" and had caused him to incur substantial interest expenses.
The case was tried to a jury, which returned a full verdict for my client, the
plaintiff. The jury awarded nothing to the defendant on the cross-complaint.
25
CASE No. 4:
COURT:
CITATION:
JUDGE:
OPPOSING
COUNSEL:
CLIENT:
DATE:
1076
Servamatic Solar Systems v. Eleanor Garcia
Santa Clara County Superior Court
[Unreported - Docket No. Unavailable]
(Settled before assignment to a Judge)
Richard GofT
Heller, Ehrman, White & McAulifTe
333 Bush Street
San Francisco, CA 94104
(415) 772-6000
Eleanor Garcia, Class Representative
I served as sole counsel for the Class
1982-84
DESCRIPTION:
I represented Eleanor Garcia, who had purchased a solar hot water heater ("solar
system") from Servamatic. Mrs. Garcia refused to pay for the solar system because it did
not perform as the salesman had represented. Servamatic sued her in Municipal Court to
collect. She retained me to defend her. The sales literature that she had been given stated
that she would experience energy cost savings that were grossly disproportionate to her
actual savings. These misrepresentations were apparently a standard practice in all sales
by Servamatic.
I removed the case to Superior Court and filed a cross-complaint, alleging a class
action against Servamatic for consumer fraud in the sales of solar systems. Servamatic
settled the case on the eve of a hearing on my motion to certify the class. The motion
contained declarations, photographs and documents demonstrating that Servamatic
systematically misrepresented that its system would supply 75% of a consumer's annual
PG&E costs on a 68-degree day. In fact, the test used by Servamatic to calculate this 75%
savings was done in the middle of the Arizona desert on a 99-degree day.
Under the terms of the settlement, Servamatic was required to rebate to each
customer the difference between the price of the system and its fair market value.
26
1077
CASE No. 5:
COURT:
CITATION:
JUDGE:
CLIENT:
Jenine Perrignon et al. v. Bergen Brunswig Corp.
United States District Court for the
Northern District of California
(1978) 77 FRD 455, Docket No. C 77-0069 CR
Honorable Charles Renfrew (Now Retired)
LeBoef, Lamb, Greene & MacKae
1 Embarcadero Center
San Francisco, California 94111
(415) 951-1100
Jenine Perrignon
I served as co-counsel
Lead Counsel
Paul C. Valentine
400 Capitol Mall
Sacramento, California 95814
(916) 449-3948
OPPOSING
COUNSEL:
DATE:
Howard R. Lloyd, Jr.
Hoge, Fenton, Jones & Appel
60 South Market Street
San Jose, CA 95113
(408) 287-9501
Chris A. Tarkington
Tarkington, O'Connor & O'Neill
One Market Plaza
Spear Street Tower
19th Floor
San Francisco, CA 94105
(415) 777-5501
1977-78
DESCRIPTION:
I represented Mrs. Perrignon and her daughter in an action for violation of their
rights to privacy and intentional infliction of emotional distress by Mrs. Perrignon's
former employer. Mrs. Perrignon's home was burglarized. She received harassing and
threatening telephone calls and her home and office telephone lines were tapped. The
lawsuit alleged that these acts were done at the direction of the defendant to discourage
Mrs. Perrignon from cooperating with U. S. Senate investigators. A subcommittee of the
Senate was investigating whether governmental officials responsible for awarding contracts
1078
for the administration of Medicare and Medicaid programs were being paid kickbacks by
companies in exchange for contract awards. A subsidiary of Bergen Brunswig was the
target of the investigation. Mrs. Perrignon was employed at the Bergen Brunswig
subsidiary and saw checks for large amounts of money made out to government officials.
The case involved complex issues of federal and state privacy and agency laws. The
case was tried to a jury. However, it was settled favorably to my client, the plaintiff, before
it was submitted for decision.
--0-
CASE No. 6: People v. Superior Court (Ho)
COURT: San Mateo County Superior Court
CITATION: (1974) 1 1 Cal. 3d 59
JUDGE: Honorable Gerald E. Ragan
CLIENT: Lawrence Ho
I served as sole counsel.
OPPOSING
COUNSEL:
DATE:
DESCRIPTION:
Rodney J. Blonien
Office of the California Attorney General
[Mr. Blonien's current business address]
Whitman, Breed, Abbott & Morgan
1121 L. Street No. 507
Sacramento, California 95814
(916) 441-4242
1973-74
I represented Mr. Ho, a defendant charged with possession of drugs. Since this was
his first offense, he was eligible to have his case "diverted" from the criminal justice system
under Penal Code Section 1000.2, a statute which went into effect on the day of Mr. Ho's
arrest. Under the program, first offenders would be placed on pre-trial probation for a
period of time. If they successfully completed the program, the charges would be expunged
and they would be treated as if no criminal charges had been brought against them.
I requested the court to admit Mr. Ho to the diversion program. The court decided
to grant my motion. However, the statute gave the prosecutor the power to veto the
judge's decision. When the prosecutor vetoed the diversion, I argued that the provisions
allowing a prosecutorial veto were unconstitutional as a violation of the separation of
powers provision of the California Constitution. The trial judge agreed with my argument
28
1079
and ordered diversion. The prosecutor appealed.
The case was appealed to the California Court of Appeal. However, because the
case involved an important issue of California constitutional law, it was taken for hearing
by the California Supreme Court. I argued the case on appeal to the California Supreme
Court. The Supreme Court sustained my argument that once the prosecutor has exercised
the prosecutor's discretion to charge an offense, all proceedings with respect to disposition
of the case are judicial in nature and may not be made the subject of a prosecutorial veto.
The California Supreme Court declared unconstitutional those provisions of Section 1000.2
giving the prosecutor a veto. (The statute was subsequently amended by the California
Legislature to delete the unconstitutional provision.)
-0-
CASE No. 7: Jupiter Engineering v. Union Carbide
COURT: San Mateo County Superior Court
CITATION: [Unreported; Docket No. 1 Civ. 49045]
JUDGE: Honorable G. Brooks Ice (Retired)
CLIENT: Union Carbide Corporation
I served as lead counsel.
OPPOSING
COUNSEL:
DATE:
Vincent P. Finigan
Brobeck, Phleger & Harrison
One Market Plaza Spear Street Tower
San Francisco, CA 94105
(415) 442-0900
1979-80
DESCRIPTION:
Jupiter Engineering sued Union Carbide for damages resulting from an allegedly
defective railroad carload of defective thermoplastic resin called "polysulfone." Jupiter
used the polysulfone resin to manufacture plastic coffee-makers. Jupiter claimed that
defects in the polysulfone caused coffee makers to delaminate and fail during use. Jupiter
claimed that in one instance the delamination caused a short-circuit in the electrical system
in the coffee maker, which caused it to overheat and caused an oflice fire.
On behalf of Union Carbide, we filed a cross-complaint for recovery of the price of
the product. By tracing the batch numbers to other customers who purchased this
particular polysulfone and through expert analysis of retained samples, we proved that the
resin was not defective. We showed that delamination of the coffee-makers was caused by
29
1080
an aerosol spray used by Jupiter to prevent the molded parts from sticking to the injection
molding machine. Union Carbide had supplied Jupiter and its other customers with a
warning against use of this particular mold release spray. The case was tried for two weeks
before a jury, which returned a defense verdict.
I also represented Union Carbide on an appeal by Jupiter to the 1st Appellate
District, Division 4, No. I CFV 49045. The judgment was sustained in all respects.
-0-
CASE No. 8: Julius and Hertha Kessler v. Las Hadas Apartments
COURT: United States District Court for the
Northern District of California
CITATION: [Unreported, Docket No. C 80-3716 SW]
JUDGE: Honorable Spencer Williams
280 South First Street
San Jose, California 95113
(408) 535-5355
CLIENTS: Julius and Hertha Kessler
I served as sole counsel.
OPPOSING
COUNSEL:
DATE:
Bronson, Bronson & McKinnon
Bank of America Center
555 California Street
San Francisco, CA 94104
(415) 986-4200
1975-76
DESCRIPTION:
The Kesslers, who are Jewish, were tenants in the Las Hadas Apartments. The
owners hired a new manager. Coincidental to the hiring of the new manager, the Kesslers
started to experience harassment. They were told that their minor great grandson could
not stay overnight in their apartment, a restriction which was not placed on other tenants.
Furthermore, their complaints about broken fixtures were ignored. One day, when they
were at the pool in the apartment complex with their great grandson, the manager ordered
the child out of the pool. When the Kesslers questioned the manager, she told them that
the hours for children in the pool had been changed to Saturdays only. When Mr. Kessler
protested the new rule, words were exchanged with the manager, who said that she wished
Mr. Kessler had been killed in a gas chamber. This caused Mr. Kessler, an immigrant
from Poland and an internee in a concentration camp, and his wife to suffer emotional
30
1081
distress.
Believing that they were being discriminated on the basis of their religion and
ethnicity, the Kesslers complained to a nonprofit fair housing agency. The agency sent
"testers" to the apartment, posing as potential tenants. Black, Jewish and white testers
investigated the practices at the apartment complex. The differential treatment of the
testers led the agency to conclude that the complex treated white apartment-seekers
differently from black and Jewish apartment-seekers. The case was referred to me as a
volunteer attorney.
On behalf of the Kesslers, I filed an action in the district court claiming a violation
of the 1968 Civil Rights Act by Las Hadas Apartments. Judge Williams refused to allow
the testimony of the testers on the ground that treatment of prospective apartment-seekers
was not relevant to alleged discriminatory treatment of existing tenants. The jury returned
a verdict in favor of the defendants.
I represented the Kesslers on appeal from the judgment on the ground that it was
error for the trial court to refuse to permit the fair housing testers to testify. The case was
settled by a consent decree under which Las Hadas agreed to eliminate the rules which
were the source of the conflict, and the appeal was dismissed.
-0~
CASE No. 9: Rainer Schuiz v. Computer Curriculum Partnership
COURT: Santa Clara County Superior Court
CITATION: [Unreported-Docket No. unavailable]
JUDGE: Honorable Tsketsugu Takei (Retired)
CLIENT: Rainer Schuiz
I served as sole counsel.
OPPOSING
COUNSEL:
DATE:
Sherwood M. Sullivan
Hopkins & Carley
ISO Almaden Boulevard
San Jose, CA 95113
(408) 286-9800
1982-83
DESCRIPTION:
I represented Mr. Schuiz, a member of a real estate investment partnership. The
31
1082
corporate general partner attempted to terminate his interest under a provision of the
partnership agreement. However, the termination notice was defective under the provisions
of the agreement. Consequently, Mr. Schuiz did not receive notice of deadlines for taking
actions to protect certain rights given to him as a partner. In addition, even if his interest was
properly terminated, we contended that the partnership accounting was defective and the
appraisal of his interest substantially understated. The case was estimated to require one week
to try. I made a motion to bifurcate the case in order to first have a trial on the issue of the
effectiveness of the notice before proceeding to a trial on the complex issues of evaluating the
worth of his interest. The second issue would not need to be reached if improper notice had
been given. The court granted the bifurcation motion.
After one day of trial, the court ruled that the notice was ineffective to terminate Mr.
Schuiz' partnership interest. Consequently, Mr. Schuiz was able to retain his partnership
interest and the complex and time-consuming appraisal issues were rendered moot.
-0-
CASE No. 10: Motorola Computer Systems v. Phoenix Leasing
COURT: Santa Clara County Superior Court
CITATION: [Unreported - Docket No. 621947]
JUDGE: Honorable Homer Thompson (deceased)
CLIENT: Motorola Computer Systems
I served as sole counsel.
OPPOSING
COUNSEL:
DATE:
John Graham
Frandzel & Share
8383 Wilshire Boulevard Suite 400
Beverly Hills, CA 90211
(213) 852-1000
1986-87
DESCRIPTION:
Phoenix Leasing purchased computer equipment from Motorola Computer Systems,
a wholly owned subsidiary of Motorola, Inc., for lease to customers of Phoenix Leasing.
Motorola leased equipment to these same customers directly. In order to avoid confusion by
customers as to whom payment should be sent. Motorola collected all payments and remitted
to Phoenix Leasing its pro rata share. In the course of auditing the account. Motorola
determined that it had overpaid Phoenix Leasing S4.6 million beyond what was owed to it.
When Phoenix Leasing was advised of the mistake and of Motorola's intention to adjust the
account between the two companies to correct the overpayment. Phoenix Leasing objected and
claimed that the payment was actually owed to it. Motorola advised Phoenix Leasing that no
32
1083
further payments would be made on the account until the overpayment was exhausted. In
retaliation. Phoenix Leasing notined Motorola customers to send all lease payments directly
to Phoenix Leasing.
Motorola, Inc., was an existing client of my law firm. I was retained to represent
Motorola. I filed a motion for a preliminary injunction to prevent Phoenix Leasing from
contacting or collecting from Motorola's customers. Judge Thompson granted the motion.
Because of the complexity of the case, it was referred to Retired Judge J. Barton Phelps,
as a Special Master for all discovery disputes. In the course of proceedings before the Special
Master, the parties were able to reach a settlement of the case. Retired Judge Phelps may be
contacted at:
J. Barton Phelps
1755 Embarcadero Road
Palo Alto, California 94303
(415) 858-1414
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.)
1992
Association of Business Trial
Lawyers
Annual Seminar
Panel Participant
Alternative Dispute Resolution in
the Federal Courts
1992
1993
California Continuing Education
of the Bar
Federal Practice Program
American Intellectual Property
Law Association
Mid-Winter Institute
Judicial Faculty Participant
Panel Member
New Developments in Intellectual
Property Law
1993
ALI-ABA
Seminar
1994-
Chairman
present
1995
United States/Jordan Legal Study
Project
1994-
Committee on Model Jury
present
Instructions for the Ninth Circuit
Panel Member
New Directions in Antitrust Law
Local Rules Committee
U.S. District Court
Northern District of California
Judicial Participant
Member and current Chairman
33
1084
n. 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.
I do not anticipate receiving any income From previous business relationships,
professional services, firm memberships, former employers, clients or customers. I
currently receive income as an adjunct faculty member at Lincoln Law School of San Jose
and the Santa Clara University School of Law for teaching one evening class.
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.
I will follow the Judicial Code of Conduct with respect to the resolution of any
potential conflict-of-interest. I am unaware of any categories of litigation or flnancial
arrangement that are likely to present potential connicts-of-interest during my initial
service in the position of Circuit 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.
If permitted by the Chief Judge of the Circuit, I plan to continue to teach a class on
Civil Procedure at the Santa Clara University School of Law in its Evening Division. The
class meets for two and one-half hours, once a week between September and May. I
receive a modest compensation for teaching.
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 AO-10 Report attached as Exhibit "D"
34
1085
5. Please complete the attached financial net worth statement in detail (Add schedules as
called for).
See attached Exhibit "E"
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.
In the 1968 presidential campaign, I was a regional organizer for former President
Richard M. Nixon. During 1968, 1 worked as a consultant to the Minority Affairs
Committee of the Republican National Committee. At various times, I have worked as a
local campaign worker in the Congressional campaigns of Tom Kuechel, Pete McCloskey,
Tom Campbell, Don Edwards and in the Supervisorial campaign of Anna Eshoo. I have
held no official campaign position.
35
1086
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.
As described above, up until my judicial appointment, I was a member of the
Stanford University Board of Trustees. As a Trustee, I participated in numerous meetings
and conferences designed to improve the quality of education for disadvantaged students.
Approximately one-third of my time was devoted to Stanford or educational matters while
serving as a Trustee. This was one of the most rewarding experiences I have ever had.
I am a participant in the Santa Clara County Department of Education "Adopt A
School" Program. The goals of this program are to increase knowledge and understanding
of the fundamental principles and processes of our legal system among elementary and
high school teachers and students and to increase opportunities for students to interact
with positive adult role models. I have adopted and regularly participate with three
schools in Santa Clara County.
From 1980 until 19S2, 1 was a member of the Board of Directors of the Palo Alto
Area YMCA. I am still a Sustaining Member.
I attend United Methodist Church in Los Altos, CA, led by Rev. John Dodson.
My interest in civil rights litigation led me to serve as a volunteer attorney in a pro
bono program to represent victims of housing discrimination. From 1973 until 1983, 1
represented numerous plaintifls in approximately 70 fair housing cases. Most of the cases
were filed in the U.S. District Court for the Northern District of California.
As a result of my work, the fair housing program in which I participated was
approved by the Board of Governors of the California State Bar as a Certified Lawyer
Reference Service.
The extensive experience in federal procedure which I gained early in my career,
through my participation in litigation of fair housing cases, was extremely beneficial to me
later in my career when my practice came to involve litigation of intellectual property cases
in federal court.
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 you
belonged, to any organization which discriminates — through either formal membership
requirements or the practical implementation of membership policies?
No.
1087
If so, list, with dates of membership. What you have done to try to change these
policies?
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).
I am unaware of a formal commission. In March, 1997 I received a call from Chief
Judge Procter Hug inquiring about my interest in being considered for a position as a
circuit judge. I told him of my interest. Afterward, I wrote a letter to President Clinton
requesting consideration. I have been interviewed by ofTicials of the Justice Department,
the Office of the White House Counsel, the Federal Bureau of Investigations 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 marmer 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 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 ioosening
1088
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.
As the term is described above, judges should not be "activist." The function of the
judiciary is to decide the cases presented to the court. The decisions should be made
strictly according to the facts of the cases and the applicable laves. Judges should not make
decisions based upon fear or favor. In the exercise of discretion, judges should act
conservatively.
38
AO-IOtM)
R»v. e/9e
1089
FINANCIAL DISCLOSURE REPORT
Nomination Report
Rtpoit Required by ffi» EtfKcs
Relorm Act of 19S9, Pub L No.
101-194. November 30. »989
(5 use. App. 4 . Sec. 101-112)
n Reporting (Last name. *st mk**. mmaO
WAiui, JAMES .
2. Court or Organlutlon
O.S. COURT 07 APPEALS, 9TH CIR
). Date o( Report
07/01/1997
4. Title (Article III Judges Indhale active or
senior stetvs: me^strele Judges IntScete
fui- orpart-Ome}
O.S. CIRCUIT JUDGE
6. Report Type (check type)
X Non,ln^ M. 06,'27/1997
Initial Annual Final
6. Reporting Period
01/01/1996
to
06/27/1997
7. Chamber* or Office Addms
U.S. COURTHOUSE
280 SOUTH FIRST STREET
San Jose, California 95113
t. On ttie basis of the Informallon contained In this Report and any
modifications pertaining thereto, it Is In my opinion. In compliance
with applicable laws and regulations.
IMPORTANT NOTES: The Instivcttons accompanying tilts form must be fotowed. Complete at parts,
cfiecking the NONE box for eacti section wtiere you tiave no reportable information. Sign on ttte last page.
NAME OF ORGANIZATION / ENTITY
I. POSITIONS (Repotting InrtvMual onlf. see pp. 9-13 of InstnicHons)
□ POSITION
NONE (No reportable positions.)
^ Member of Governing Board California Lutheran University
AGREEMENTS (Reporting IndMdual only: see pp.14-17 of instructions.)
DATE PARTIES AND TERMS
□
NONE (No repoftable sgreements.)
NON-INVESTMENT INCOME
DATE
□
(Reporting indr/idual and spouse: see pp. 1S-25 of Instructions.)
PARTIES AND TERMS
NONE (No reportable norvlnvestment Income.)
1 1996 LINCOLN LAW SCHOOL-COMPENSATION AS INSTRUCTOR
GROSS INCOME
(yours, not spouse's)
3,140.00
2 8/1S/96 University of Santa Clara Law School-Instructor
5,777.76
1090
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
WARE, JAMES .
Date of Report
07/01/1997
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment
(
thoss to spouse and dependent chidnn: use the perenthedcels '{S}' and '(DC)' to indcate nportabia nimtHjrsements and yits received by spouse
endent ct)idren. respectively. See pp. 26-29 of Instnjctions.)
D
SOURCE
NONE (No such reportable reimbursements or gifts)
DESCRIPTION
^ Exempt
V. OTHER GIFTS
(lnckid9S thosB to spouse and dependent chkinn; usa thm pannlhedcals '(S)' and '(DC)' to bxicata othar ^fts ncwvad by spouse and dapandant chidran.
nspacOvaty. Saa pp. dO-JO of Instructions.)
n
SOURCE
NONE (No sucb reportable gilts)
DESCRIPTION
VI. LIABIUTIES
Qnciudas thosa of spousa and dapandant chidran; indcata wtmra appicabla. parson /wponsbto tbr labtty by using ttta paranthaUca/ '(S) ' for saparata
iabStyofO)aspous».'(J)' for joint tabtty of rapoftng kxSviduai and spousa. and 'ipC)' foriabSty ot a dapandant chid. Saa pp. 24-36 of Instructions.)
H
CREDITOR
NONE (No reportable MiObae)
DESCRIPTION
VALUE CODE*
■VALCOOES:J>S1S.000orlm« K>$1 5,001 -SSO.CXX) L-SSO.OOI to $100,000 M*$1 00.001 .$250,000 N-$250.001 .$500,000
0=$S00.00141 .000.000 PI Ml .000.001 .$5,000,000 P2^$5.000.001.«25.ao0.a00 P3=$25.000.001 -$50,000,000 P4=$50.000,001 or mora
1091
FINANCIAL DISCLOSURE REPORT
Nanw o( Person Reflating
WARE, JAMES .
Date or Report
07/01/1997
VII. Page
- IncofTw. valuB. transactions findudes those of spouse and
1 INVESTMENTS and TRUSTS dependent chidnn. See pp. 37-54 of instructions.)
A.
^ptk» or Assets
Indcatv when apfiMcabie. owner of
the essel by using me perenthedcal
B.
during
reporting
C.
Gross value
at end or
reporting
0.
Transactions during reporting period
'(J)' tor joint ovmerzhip of reporting
Intfvlduat and spouse, '(S)' for sep-
erete ownen/tlp by spouse, •(DC)'
tor ownership by dependent chid.
PItce '00' alter each asset
exempt from prior dKclosure.
(1)
Arrt.
Cod
a
(A-
H)
(2)
Type
(e.g..
dividend,
rent or
Interest)
(f)
Value
Code
(J-P)
(2)
Value
Methoc
Code
(Q-W)
(1)
Type
(eg.,
buy, sen,
merger,
redemp-
tion)
ir no* exempt from disclosure
(2)
Date:
Month-
Day
P)
Value
Code
(J-P)
{*)
Gain
Code
(A-H)
(5)
Identity or
buyer/seller
or private
transaction)
NONE (no reportable lncome,assets. or
transactions)
1 Dean Hlcter IRA
A
Interest
J
T
Exempt
2 USAA IRA
A
Interest
J
T
Exempt
3 General Motors
A
Dividend
J
T
Exempt
r in Codes: A-$I,000 or less B-Sl.OOl-K.JOO C-K.50I-J5.000 I>S5.001-$13,000 E-SIJ.OOI^SSO.OOO
,D4) F-$30,001-J:00,000 0-$100,001-JI.OOO.OOO HI-$1,000,001-$3.000,000 [U-53.000.001 or more
JValCoda: J-J 15,000 or leas K-$13.0Ol-S50,OOO L-$50,0Ol-$10O.0OO M-$I0O.0Ol.$23O.OOO N-S230.001 -$300,000
(CoLCl.D3) 0-$300,001-SI,000.000 Pl-J1.000,001-$3,000,000 P2-$3,000.001-J23,000,000 P3-$23,000,001-$30,000.000 P4-$30.00O.0OI or more
3 Val Mth Codes: Q-Appt»iMl R=Cosl (real estate only) S-Assessmem T=Cash/MaAel
(CoLC2) U-Book Value VOther W=EsliimIed
1092
FINANCIAL DISCLOSURE REPORT
Name of Penon Reporting
WARE, JAMES .
Date of Report
07/01/1997
IX. CERTIFICATION
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 knovs^ledge at the time after reasonable inquiry, I did not perfonfn any
adjudicatory function in any litigation 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 the 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 that any
information not reported was wnthheld 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. app. 4, section 501 et. seq., 5 U.S.C. 7353 and
Judicial Conference regulations.
'ignature .
(L
Y
(a Ja^fJi —
ilffV
Note:
Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCnONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
1093
FINANCIAL DISCLOSURE REPORT
Name at Panon Raporting
WARE, JAMES .
VIW. ADDITIONAL INFORMATION OR EXPLANATIONS.
NONE (No addltionaJ Inromatian or explarations.)
one of Report
07/01/1997
(Indicate part or report.)
1094
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, seciuilies, trusts, investments, and otlier 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
$4,300
Notes payable to banks-secured
0
U.S. Govenunent securities-
Schedule 1
150
Notes payable to banks-unsecured
0
Listed Securities-Schedule 2
70
Notes payable to relatives
0
Unlisted secunties-Schedule 3
31,000
Notes payable to others
0
Accounts and notes receivables:
Accounts and bills due
0
Due from relatives and friends
85,000
Unpaid income ta.\
0
Due from others
0
Other unpaid ta.\ and interest
0
Doubtfiil
0
Real estate mortgages payable-
Schedule 5
325.000
(.eal estate-Schedule 4
715,000
Chattel mortgages and other liens
payable
65.000
Autos and other personal property
55,000
Other debts-itemize:
Cash value-life insurance
10,000
Consumer Credit
20,000
Other assets-itemize:
Education Loans
40,000
Boat
30,000
Household Furnishings & Personal
Effects
200,000
Total Liabilities
450.000
Net Worth
595,520
Total Assets
1,045,520
Total liabilities and net worth
1.045,520
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
None
Are any assets pledged?
No
On leases or contracts
None
Are you defendant in any suits or legal
actions''
Yes (See
Biographical
Questionnaire)
Legal Claims
None
Have you ever taken bankruptcy?
No
revision for Federal Income Tax
Payroll
Withholding
Other special debt
None
1095
SCHEDULE 1
United States Savings Bond
Face Amount
Current Cash Value
$250.00
150.00
SCHEDULE 2
Common Stock General Motors
2 Shares (Approximate Value)
70.00
SCHEDULE 3
Thrift Savings Plan
IRA Account
Dean Witter
USAA Mutual fund
$15,000
9,000
7,000
SCHEDULE 4
1223 Arbor Court
Estimated Fair Market Value
R Ranch Time Share
$700,000
15,000
SCHEDULE 5
Great Western Savings & Loan
$325,000
1096
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Lynn S . Adelman
2. Address: List current place of residence and office.
Home: Waterford, Wisconsin
Office: Adelman, Adelman & Murray, S.C. law firm
308 East Juneau Avenue, Milwaukee, WI 53202
3. Date and place of birth.
October 1, 1939, Milwaukee, WI .
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Married since April 23, 1976 to Elizabeth (maiden name
Halmbacher) Adelman. She is an attorney and partner in
Adelman, Adelman & Murray, S. C, 308 East Juneau Avenue,
Milwaukee, WI 53202.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Princeton University, A.B. , 1961.
Attended 1957-61, A.B. received 1961
Columbia University Law School, L.L.B., 1965.
Attended 1962-65, L.L.B. received 1965
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.
1961-1962: Sales, Kirby Distributing Company, Trenton, NJ.
1097
1962: Management trainee, Holland Laundry/ Philadelphia,
PA.
Suiraner, 1963: Law Clerk, Law firm of Pellettieri fi
Rabstein, Trenton, NJ.
Sununer, 1964: Law clerk to Attorney John Pratt, National
Council of Churches, New York, NY.
1965-1966: Research assistant to Professor Monrad G.
Paulsen, Columbia University Law School, New York, NY 10027.
1966: Law clerk to Attorney Richard H. Kuh, New York, NY.
1967-1968: Trial attorney. Legal Aid Society, Criminal
Courts Division, New York, NY.
1968-1972: Sole practitioner. Law Office of Lynn S.
Adelman, New York, NY.
1972-1973: Associate, Law Office of Coffey, Lerner &
Murray, Milwaukee, WI .
1973-1978: Partner, Law Office of Lerner & Adelman,
Milwaukee, WI .
1978-1983: Sole practitioner. Law Office of Lynn Adelman,
Milwaukee, WI .
1983-1988: Partner, Law Office of Adelman & Adelman,
Milwaukee, WI .
1988 to present: Partner, Law Firm of Adelman, Adelman &
Murray, S. C, Milwaukee, WI .
1977-Present: Wisconsin State Senator, 28th Senate
District, State Capitol, Madison, WI .
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.
None.
1098
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Graduated cum laude from Princeton University and cum
laude from Columbia Law School .
Award from Legal Action of Wisconsin for outstanding
pro bono publico service as a dedicated attorney and public
servant (1994) .
Freedom of Information Award for contribution to
freedom of the press and First Amendment rights from the
Wisconsin Society of Professional Journalists (1990) .
Leadership Award for tireless efforts in setting high
ethical standards for Wisconsin state government from Common
Cause of Wisconsin (1988) .
Lifetime Achievement Award for Leadership Against Drunk
Driving from Mothers Against Drunk Driving (1995) .
Sheridan-McCabe Memorial Award for service in the
consumer interest from the Wisconsin Chapter of the Consumer
Federation of America (1987) .
Eunice Edgar Award for Lifetime Achievement on behalf
of civil liberties from the Wisconsin Chapter of the
American Civil Liberties Union (1994) .
Award for work on behalf of people with disabilities
from Full Citizenship Initiative of Waukesha County for
(1990) .
Full of Heart Award for being a good employer from the
Wisconsin Chapter of 9 to 5, Inc. (1991).
Conservationist of the Year from the Waukesha County
Conservation Alliance (1991) .
Award for contributions to community based corrections
from Wisconsin Corrections Coalition (1992) .
Clean 16 Award for work on behalf of the environment
from Wisconsin Environmental Decade (numerous times between
1977-1994) .
1099
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.
Wisconsin Bar Association, 1972-present.
Wisconsin State Senate Judiciary Conunittee, 1977-present,
Chair 1979-1993; 1995-present .
Wisconsin Judicial Council, 1979-1993; 1995-present.
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.
a . None .
b. Temple Emanuel -Waukesha, Wisconsin, Racine County and
Wisconsin Democratic Party, Waukesha Environmental Action
League, Greendale Historical Society, Little Muskego Lake
Association, New Berlin Prospect Lions Club and American
Jewish Committee.
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 in membership. Give the same information for
administrative bodies which require special admission to
practice .
Admitted to practice in the State of New York, 1967
(membership lapsed when I moved to Wisconsin but has been
renewed) .
Admitted to practice in United States District Court for the
Southern District of New York, 1969.
Admitted to practice in State of Wisconsin, 1972; admitted
to practice in United States District Court for the Eastern
District of Wisconsin, 1972; Court of Appeals for Seventh
Circuit, 1972; United States Supreme Court, 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 Committee.
1100
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 readily available
to you, please supply them.
Bad Lavs Make Hard Cases: Hate Crime Lavs and the
Supreme Court's Opinion in Wisconsin v. Mitchell, 29 Gonzaga
Law Review 1 (1994) .
Child Abuse Reporting Legislation, Some Legislative
History, 34 George Washington Law Review 482 (1966) .
Departures from the Uniform Marital Property Act
Contained in the Wisconsin Marital Property Act, 68
Marquette Law Review 390 (1985) .
Introduction, 69 Marquette Law Review 159 (1986) ,
Volume dedicated to articles on drunk driving.
Should Wisconsin Lover the Blood Alcohol Content to . 08
for Driving Under the Influence? Yes, Wisconsin Counties
Magazine (May, 1992) .
Revriting the Crime Lavs is a Precondition of 'truth in
sentencing' , Wisconsin Lawyer (June, 1997).
Campaign Finance Reform, Wisconsin Medical Journal
(May, 1997) .
The Presumption of Release in Bail Decisions, Wisconsin
Lawyer (July, 1989) .
A Study of James Weldon Johnson, Journal of Negro
History, Vol LII, p. 128 (1967).
Wisconsin Should Not Reverse 140 Years of History by
Reinstating the Death Penalty, Wisconsin Lawyer (May, 1993) .
13. Health: What is the present state of your health? List the
date of you last physical examination.
Good. 1997.
1101
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 sununary of and citations for all
appellate opinions where your decision 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.
I have been Wisconsin State Senator, 28th Senate District
since 1977. I was first elected in November, 1976 and re-
elected in 1980, 1984, 1988, 1992 and 1996.
I ran unsuccessfully for the House of Representatives in
November 1974 in the 9th Congressional District and in the
1982 and 1984 Democratic primaries in the 4th Congressional
District.
17 . Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school including:
1. whether you served as clerk of a judge, and if so,
the name of the judge, the court and the dates of
the period you were a cleric; No
2. whether your practiced alone, and if so, the
addresses and dates; See No. 3 below
1102
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;
1965-1966: Research assistant to Professor Monrad
G. Paulsen, Columbia University Law School, 435
West 116th Street, New York, NY 10027.
1966: Law clerk to Attorney Richard H. Kuh, now
at 555 5th Avenue, New York, NY 10017.
1967-1968: Trial attorney. Legal Aid Society,
Criminal Courts Division, 100 Centre Street, New
York, NY 10013.
1968-1972: Law Office of Lynn S. Adelman, 401
Broadway, New York, NY 10013.
1972-1973: Law Office of Coffey, Lerner & Murray,
152 West Wisconsin Avenue, Milwaukee, WI 53202.
1973-1978: Law Office of Lerner & Adelman, 152 W.
Wisconsin Avenue, Milwaukee, WI 53202.
1978-1983: Law Office of Lynn Adelman, 411 East
Mason Street, Milwaukee, WI 53202 and 1840 North
Farwell, Milwaukee, WI 53202.
1983-1988: Law Office of Adelman & Adelman, 828
North Broadway, Milwaukee, WI 53202.
1988 to present: Law Firm of Adelman, Adelman &
Murray, S. C, 308 East Juneau Avenue, Milwaukee,
WI 53202.
1977-Present: Wisconsin State Senator, 28th
Senate District, State Capitol, Madison, WI
53702.
What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
1967-1972 practice was primarily a criminal trial
practice.
1103
1972-1997 practice has been approximately 75%
civil and 25% criminal .
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
I represent individuals, non-profits and small
businesses. In the cases involving individuals I
do primarily personal injury and criminal work. I
have been involved in many cases involving
constitutional issues. I have a number of
business clients and my business practice is
primarily a litigation practice. I also do
considerable work in the area of administrative
law, particularly zoning.
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.
Frequently.
2. What percentage of the appearances was in:
(a) federal courts;
10%
(b) state courts of record;
80%
(c) other courts.
Local administrative agencies - 10%
3. What percentage of your litigation was:
(a) civil;
75%
(b) criminal.
25%
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^proximately 80 cases tried to judgment in which
I was sole or lead counsel .
1104
5. What percentage of these trials was:
(a) jury;
12%
(b) non-jury.
88%
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 of parties whom you
represented; describe in detail the nature of your
participation in 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.
1. Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993). This
case involved a challenge to the Wisconsin hate crime law.
I filed an amicus curiae brief in the Wisconsin Supreme
Court arguing that the law punished thought in violation of
the First Amendment. The Wisconsin Supreme Court held that
the law was unconstitutional and relied heavily on my brief.
I then became Todd Mitchell's lawyer and argued the case in
the United States Supreme Court on April 21, 1993. The
Supreme Court reversed the decision of the Wisconsin Supreme
Court. Co-counsel were Kenneth Casey, 161 W. Rockwell
Street, Jefferson WI 53549, (414) 674-2800; Pamela
Moorshead, 400 North Executive Drive, Brookfield, WI 53005,
(414) 821-5559; Susan Gellman, 138 South Third Street,
Columbus, OH 43215, (614) 280-1000. Opposing counsel was
Attorney General James Doyle, State Capitol, Madison, WI
53702, (608) 266-1221.
2. Citizens Utility Board, et al. v. Klauser, 194 Wis. 2d
484 (1995). As lead counsel, I represented the plaintiffs
in a challenge to the Governor's attempt to execute a
"write-in" veto. I brought the case to the Wisconsin
Supreme Court on an original jurisdiction theory, which is
used when cases raise significant public issues. The
Governor struck an appropriation amount in the budget bill
9
1105
of $350,000 and wrote in a different amount, $250,000. The
Supreme Court, in a 4-3 decision, upheld the write-in veto
of an appropriation amount. I argued the case in the
Wisconsin Supreme Court on April 26, 1995. Opposing counsel
was Alan Lee of the Attorney General's Office, 123 West
Washington Avenue, Madison, WI 53702, (608) 266-0020.
3. Risser, et al. v. Klauser, 207 Wis. 2d 177 (1997).
This case also involved a challenge to the Governor's
partial veto power and was also brought as an original
action. As lead counsel, I represented several legislators
and citizens. Here, the Governor attempted a write-in veto
of a non-appropriation aunount, namely an amount of revenue
bonding authority. The Governor deleted the amount set by
the legislature and wrote in a figure $40 million dollars
lower. The Supreme Court held in a 4-3 decision that the
Governor exceeded the scopt of the write-in power authorized
in Citizens Utility Board and struck down the Governor's
attempted veto. This is an historic case for it is the
first veto case that the Supreme Court decided in favor of
the legislative branch of government. Opposing counsel were
Bruce Harms and Michael Modi of 2 East Mifflin Street,
Madison, WI 53701, (608) 257-5661. I argued the case in
the Wisconsin Supreme Court on October 29, 1996.
4. Joni B. and Richard S. v. State of Wisconsin;
Malmstadt, et al. v. State of Wisconsin, 202 Wis. 2d 1
(1996) . In this case, I represented two parents and seven
Milwaukee County trial judges, including Chief Judge Patrick
Sheedy (telephone (414) 278-5112) in a challenge to a
Wisconsin statute prohibiting courts from appointing lawyers
for parents in cases involving alleged neglect of children.
Our position was that the statute violated both the
separation of powers principle and due process of law. The
Supreme Court ruled unanimously in our favor on both
grounds. I argued this case in the Wisconsin Supreme Court
on May 3, 1996. Co-counsel were David Harth, 150 E. Oilman
Street, Madison, WI 53701, (608) 258-4210; and Paula Doyle,
121 South Hamilton Street, Madison, WI 53703, (608) 255-
6627. Opposing counsel was Michael Modi of 2 East Mifflin
Street, Madison, WI 53701, (608) 257-5661.
5. Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d
649 (1992). As lead counsel, I represented the plaintiff in
a challenge to the misdemeanor bail schedule used throughout
Wisconsin to set bail at night and on weekends when judges
10
1106
are unavailable. The plaintiff was held for five days in
the Milwaukee County jail on money bail for a minor traffic
case. He had no previous record and substantial ties to the
community. The plaintiff's contention was that the bail
schedule did not conform to the statutory requirement that
money bail could not be imposed except to ensure the
defendant's return to court. The Wisconsin Supreme Court
unanimously upheld the plaintiff's challenge and required
the Judicial Conference to promulgate a new bail schedule.
I argued this case in the Wisconsin Supreme Court, which had
original jurisdiction, on January 3, 1992. Co-counsel was
Evelyn Mazack, 17 South Fairchild Street, Madison, WI
53707, (608) 264-8574. Opposing counsel was Ray Taffora, 1
South Pinckney, Suite 900, Madison, WI 53703, (608) 257-
3501.
6. Wisconsin Prof. Police Assoc, v. Public Service
Commission, 205 Wis. 2d 60 (Ct. App. 1996). As lead
counsel, I represented a number of organizations and
individuals concerned about the loss of privacy involved in
Caller I.D. telephone service. The staff of the Public
Service Commission had made recommendations adverse to my
clients. I challenged the recommendations, and the case was
tried before a hearing examiner employed by the Commission.
The three-member Commission upheld the recommendation of its
staff. The Circuit Court of Dane County (Hon. Moria
Krueger) reversed the decision of the Public Service
Commission. The Public Service Commission appealed to the
Wisconsin Court of Appeals, which reinstated the decision of
the Public Service Commission (Dyckman J.). I argued the
case in the Court of Appeals on June 25, 1996. Opposing
counsel was Steve Levine, 610 Whitney Way, Madison, WI
53707, (608) 267-2890. The Wisconsin Supreme Court denied
my petition for review.
7. Barnett v. Wisconsin Ethics Board, 817 F. Supp. 67
(E.D. Wis. 1993). This case involved a challenge to a
statute known as the "gag law" which prohibited state
employees from making requests to legislators for
appropriations for their agencies. As lead counsel, I
represented the plaintiff, a professor at the University of
Wisconsin-Milwaukee who sought a declaratory judgment that
the law violated his First and Fourteenth Amendment rights.
The United States District Court for the Eastern District of
Wisconsin (Hon. John W. Reynolds) granted declaratory relief
striking down the law. The case was decided on briefs. The
11
1107
opposing counsel was Assistant Attorney General Alan Lee,
123 West Washington Avenue, Madison, WI 53702, (608) 266-
0020.
8. United States v. Hasivar, 299 F.Supp 1053 (1969). I
was counsel for the defendants in this federal criminal
case. The charge was that the defendants assaulted federal
narcotics agents by intervening in an altercation between
the agents and other individuals. I argued two sets of
motions in this case. First, I successfully argued for a
lengthy adjournment on the grounds that necessary witnesses
would be unavailable because of pending charges against
them. Later, I moved to dismiss the indictment because the
statute making it a crime to assault federal employees
omitted employees of the Bureau of Narcotics and Dangerous
Drugs. The Federal District Court (Hon. Dudley Bonsai)
dismissed the indictment. I argued the dispositive motion
in 1970. The Government sought a direct appeal to the
Supreme Court bypassing the 2nd Circuit Court of Appeals.
Ultimately, I persuaded the Government to drop the appeal.
The opposing counsel was Sterling Johnson now United States
District Judge in the Southern District of New York, 40
Centre Street, New York, NY (212) 791-1140.
9. PecJt V. Meda-Care Ambulance, 156 Wis. 2d 662 (Ct. App.
1990) . In this case. Peck, a lawyer, sued Meda-Care for
legal fees. I represented Meda-Care which counterclaimed,
alleging negligence. Peck's alleged negligence consisted,
among other things, of violating the Code of Professional
Responsibility by being a witness in the same case in which
he served as counsel. After a jury trial in August, 1989,
the Circuit Court (McMahon, J.) set aside the verdict and
granted Meda-Care summary judgment. The Court of Appeals
(Fine, J.) reversed. The Wisconsin Supreme Court denied a
petition for review. The case raised the issue of the
relationship between the Rules of Professional
Responsibility and the standard of care in a malpractice
case against a lawyer. The case is widely discussed at
seminars for lawyers concerning ethical issues. The
opposing counsel was John DeStefanis, 1011 North Mayfair
Road, Milwaukee, WI 53226, (414) 257-1800.
10. Krug v. Zeuske, 199 Wis. 2d 406 (Ct. App. 1996) This
case involved a successful challenge to five state statutes
that appropriated over $300,000 to road building
contractors . As lead counsel , I represented a number of
12
1108
legislators, taxpayers and local government officials, who
contended that the payments constituted "extra compensation"
to the contractors in violation of Article IV, Section 26,
of the Wisconsin Constitution, which prohibits the
legislature from granting "any extra compensation to a...
contractor after the services have been rendered or the
contract has been entered into." After a hearing in /^ril
of 1995, the trial court (Northrup J.) granted summary
judgment for the defendants. The Court of Appeals (Eich
C.J.) reversed and held that the statutes were
unconstitutional. The case was decided on briefs. Opposing
counsel were Assistant Attorney General, Gerald S. Wilcox,
123 West Washington Avenue, Madison, WI 53707, (608) 267-
2222 and Carl Sinderbrand, 2 East Gilman Street, #300,
Madison, WI 53701, (608) 257-5335.
In addition to the foregoing, the following individuals
are familiar with my legal abilities: Attorney General
James Doyle, State Capitol, Madison WI 53702, (608) 266-
1221; Judge James Gramling, 951 North 7th Street, Milwaukee,
WI 53233, (414) 278-3800; Chief Judge Patrick Sheedy, 901
North Ninth Street, Milwaukee, WI 53233, (414) 278-5112;
Chief Justice Shirley Abrahamson, 231 East State Capitol,
Madison, WI 53702, (608) 266-1885; Judge Fred Kessler, 3432
North Shepard Avenue, Milwaukee, WI 53211, (414) 332-6647;
Judge Robert Landry, 224 5 West Greenwood Road, Milwaukee, WI
53209, (414) 228-1914; Assistant Attorney General Alan
Lee, 123 West Washington Avenue, Madison WI 53707, (608)
266-0020; Attorney David Harth, 150 East Gilman Street,
Madison WI 53701, (608) 258-4210; Attorney Paula Doyle, 121
South Hamilton Street, Madison WI 53703, (608) 255-6627;
Attorney Ken Casey, 161 West Rockwell Street, Jefferson WI
53549, (414) 674-2800.
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.)
Other important legal activities in which I have been
involved fall into three broad categories: building a
successful law firm, handling a variety of significant cases
other than those identified in the answer to question 18 and
13
1109
shaping Wisconsin law as a state senator.
Building a Law Firm.
I have been primarily responsible for the creation,
development and management of the law firm of Adelman,
Adelman & Murray. This firm has grown from two lawyers to
ten lawyers in the last thirteen years. I have had the
experience of building a small business and meeting a
payroll . This experience has given me a good sense of the
concerns of small businessmen and of ordinary people who
have legal problems. This "real world" experience will be
an asset to me as a judge.
Shaping Wisconsin Law as a State Senator.
As a state senator I have had a substantial impact on
Wisconsin law. As chair of the Senate Judiciary Committee
from 1979-1993 and again from 1996-Present, I have shaped
legislation concerning the civil and criminal justice
systems. My job as chair has been to ensure that any bill
which left the committee was defensible as policy and
technically sound.
In addition, I have been the principal author of
numerous important laws. Some of these laws are listed
below under appropriate categories .
Making government more accountable to citizens.
• Ethics code for state and local public officials. This
code creates strict standards of conduct for public
officials and requires full disclosure of significant
economic interests.
• Lobbying law which establishes the principle that
public officials can take nothing of value from
lobbyists or principals. The law also requires full
disclosure of expenditures designed to influence
government action.
Wisconsin open records law. This law establishes the
presumption that all government records are accessible
to the public and creates an enforcement procedure.
14
1110
Laws Protecting Public Safety While Respecting Individual
Rights.
• Amendment to Wisconsin Constitution prohibiting further
expansion of gambling.
• Amendment to Wisconsin Constitution delineating the
rights of victims of crimes. This is a balanced
measure which promotes participation of victims in the
judicial process but protects the rights of defendants.
• Wisconsin drunk driving law. This law establishes an
objective standard, defining drunk driving provides
strong penalties for violations and requires
appropriate education and treatment for all drunk
drivers .
• Anti-stalking legislation. I crafted a compromise
between anti-domestic violence and pro-life groups by
persuading both groups to agree to the model anti-
stalking law proposed by the National Institute of
Justice.
• A law which provides that subpoenas rather than search
warrants be used to obtain personal papers from persons
not suspected of any wrongdoing.
• Comprehensive reform of municipal court procedures.
This law stresunlines procedures for prosecuting
municipal violations while protecting the rights of
defendants .
Judicial Council Bills.
The Wisconsin Judicial Council is an agency of the Supreme
Court the purpose of which is to propose improvements in
judicial procedures. I have been a member of the Council
for over 15 years. I sponsored and defended all
legislation which came out of the Council including major
changes in laws regarding venue, statutes of limitation,
guardians ad litem, appellate practice, probate, peremptory
writs, contempt of court, judge substitution, the insanity
defense, small claims procedure, sentencing, restitution and
earnings garnishment.
15
1111
Laws Regarding Families.
• The Wisconsin marital property law establishes the
principle that marriage is an economic partnership and
recognizes the economic contribution that a non-wage
earning spouse makes to a marriage.
• A reform of police and prosecutorial procedures in
handling domestic violence cases. The law is designed
to get police to arrest and prosecutors to prosecute
cases of spousal abuse.
• Paternity law making HLA blood test admissible in
evidence thereby improving capacity to identify fathers
and collect child support.
• Laws which establish the rights of adoptees, cut red
tape in adoption of foreign children and improve
procedures in adoption cases.
16
1112
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.
1. Wisconsin Deferred Compensation Plan, value of interest
is approximately $80,000, payable on separation from state
service.
2. Wisconsin Retirement System, value of interest is
approximately $175,000, payable in form of annuity after
separation from state service.
3. IRA Account at Everen Securities, approximate value of
$40,000.
4. Adelman, Adelman & Murray, S.C., accrued bonus, buy-out
of interest in law firm, value will be determined and paid
out within one year.
5. Rent from premises at 308 East Juneau Avenue,
Milwaukee, WI 53202, $45,000 per year.
6. Mortgage due from Milwaukee School of Engineering on
property at 1202 North Broadway, Milwaukee, WI 53202
payable by January, 1998. Amount due is $38,000.
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.
I will follow the appropriate rules, guidelines and canons
of ethics to resolve any potential conflicts of interest,
including the Code of Judicial Conduct. I will make full
disclosure and/or recuse myself where appropriate. Because
my financial involvements are relatively limited I
1113
anticipate few, if any, conflicts.
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. (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 Financial Disclosure Report attached hereto.
Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See attached Net Worth Statement.
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 campaign,
your title and responsibilities.
Candidate for state senate 1976, 1980, 1984, 1988, 1992 and
1996.
Candidate for Congress 1974, 1982 and 1984.
1114
FINANCIAL DISCLOSURE REPORT
FOR CALENDAiJ YEAR 19 96
Raporl. Jcwijef bv ch« tchic.
I Tcraon Report 1.09 IL^ac r\«m« . fi rai . middle .n.el*"
Adelman, Lynn S.
J Cowct or OrgAnlE^don
District Court -
Eastern District of Wisconsin
> Date of R.pott
09 / 09/ 97
\- Title (Article III Judges i.'vdic-te active or
full- or pArt-clnel
U.S. District Judge Nominee
s Report Type (check Appropr Ktc type!
JL Nclwion. 0«e / /
Initi«l Mutual F.Ml
6 Reporting Pcnoo
i'i'96 yq/g?
7 Chambera or Office Address
308 East Juneau Avenue
Milwaukee WI 53202
a On the b*ilf of the inCorsation contained In thie Report .Ad
jny nodi(ic«tLOn9 pertaining thereto, vt t« In my opinion.
\n compliance -ith applicable lawj jnd ccgwlaeiona
Revle«inq OCIioec Date
IMPORTANT NOTCS; The instruclioni accompanying this form must be followed Coraplclc all parts,
checking the NONTt box for each section where you have no reportable iaformalion Sign on last page.
I POSITIONS. (Reporting individual only^, see pp 913 of Instructions.)
POSITION NAME OF ORGAN I ZATrON/ENTITY
X NONE (No rcporcablc posiuons)
State Senator
State of Wisconsin
Adelman, Adelman & Murray S.C.
II. AGREEMENTS. (Reporting iml.vidual only, sec pp 11.) 7 of Instructions.)
DATE PARTIES 7VND TERMS
n
NONE (No reportable agreements)
Sum certain will be paid out within one (1) year.
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; sec pp 18 25 of Instructions.)
DATE SOURCE AND TYPE
a
1995
1995
1995
iqqfi
1996
1996
1996
NONE (No reportable oon invcstoent tneomc)
State of Wisconsin - legislative salary
Adelman. Adelman f. Hurray S.r. - s^ilary and rent
Spouse employed as attorney for firm of Adelman. Adelman
& Murray S.C.
State of V.'isconsin - legislative salary
Adelman. Adelman & Murray S.C. - salary and rent
Milwaukee School of Engineering (sale of building)
Spouse employed as attorney for firm of Adelman. Adelman
& Murray S.C.
nRO.qs INCOME
% 38,000
$- 125.000
s.. iB.onn
20.000
fi( down payment
1115
FINANCIAL DISCLOSITRE REPORT
Jamc or Person Rsportinq
Adelman, Lynn S.
09/ 09^ 97
rV. REIMBURSEMENTS and GIFTS transpotuiion. lodging, food, cmertainmein
(locludci those 10 spouse »nd dcpcodcnl children; use the paicnIhelicAU "(S)' «nd "(DC)' to mdiciie repotlable
reimburscmcots wid gifts teceived by spouse and dependent children, respectively See pp. 26 29 of Insiruclioos.)
SOURCE DESCRIPTION
NONE (No such reportable rcunbursemeDts or gifts)
Exempt
u
V. OTHER GIFTS. (Includes those to spouse and dcpcndcnl children; use the parcnihcilcals "(S)' and -(DC)" to
indicate other gifts icccivtd by spouse and dependent cluldren, rcspcaivcly. Sec pp 30-33 of Iiislruclions )
SOLTRCE DESCRIPTION
NONE (No such reportable gifts)
Exempt _ S-
$.
. s_
s_
VI. LIABILITIES. (Includes those of spouse and dcpcndcnl children, indicate \»hcrc applicable, person responsible
for liability by using the parenthetical '(S)' for separate liability of the spouse, '())' for joint liability of
reporting individual and spouse, and '(DC)' for Lability of a dependent child. Sec pp. 34-36 of Instructions )
CREDITOR DESCRIPTION VALUE CODE*
m
NONE (No reportable liabilities)
■T-91S,000 or lc>s K-$ls,a
0-J50Q.001-S1.,«00,000 Pl-Sl.O
W-$<t.OO«.601-»i0,e»0.00D K-tS».
1116
FIMANCIAL DISCLOStJRE REPORT
NifiK oC P«r«on Report in
Adelman, Lynn S.
o«te of Katiort
09 / 09/ 97
Vtl. Page t INVESTMENTS and TRUSTS • income. v»luc. transactions (Includes iho^^c of spouse
and dependent children Sec pp 17 S<l of Instructions.)
OcactiPCLOn of Ajsacca
(IncluiJins cruit <a>et>l
Indicate -here applicable. o-Acr of
Che aasct by uatng Che prtrenchet .cal
•(Jl- for lo.ne o«c>erah\p of ceporc
xnq Individual and rpooat. "(SI' lor
for ownership by Sep';ndenc child
eiMpc froo prior d.acloaurc
Ick:o-«:
reporting
per LOd
C
Croaa -alue
ac end of
reporcinij
period
Transacclona durln9 reporting period
(11
AOL.l
Code
d^.'
(11
value
Code
(J-Pl
value
Hoc hod 1
Codr
lO-")
(11
Type
buy! lell.
tt ru>c exc«vc froai dtacloaurc 1
(21
0.y
valued
Code
(J-Pl
O»lol
Code
(n-«l
(SI
Tdencity of
buyer/acllcc
(if private
trutaaocloni
NONE (HO raporcable
crantacclona)
EX£
Tipt
' Amcap Fund, Inc. (J)
D
div.
D
T
J Delaware Group
Value Fund fJ)
n
div.
n
T
Limited Term
Municioal Fund M)
int.
1
T
' MFS Fund (J)
c
int.
L
T
■• Morgan Stanley Fund (J)
^ Washington Mutua 1
Fund (.)!
B
div .
L
M
T
D
div.
T
, Growth Fund
nf Amprica (.1)
0
div.
M
T
u Templeton Emerging
Markpf<; Fi.nri (.1)
B
div.
J
T
Paul Halmbacher
Family Trust (S)
NO INC
IMF
(see
nil)
Huerto Kico Electric
'"Power Authority
NO
NCOME
K
T
>•
"
11
»
IS
»
.'
'•
1 Ir>c/Cau< Cda A.S1.0OO or less
tCol. Bi.M) r«$sa.ooi-sioo.ooo
S-J'lS'l" *°° C-SJ.SOl-SS.OOO O.SS.OOISIS.OOO K.SIS.OOI-SSO.OOO
C-51Q0.001-S1.000.000 Kl-;i. O0O,O0l-SS. 000. 000 H2>$S.OOO.00A or fOre
J val cda: J-SIS.OOO or leaa
(Col- C1.03I o-isoo,ooi-ci.ooo.ooo
PJ-52S.000.001JSO.000
K-SIS.OOI.SSO.OOO L.550.001-J101.000 K-SlOO . 00 1 . 5 JSO, 000 ■-: JSO. 001 -SSOO. 000
... "-j'lOoo.Soi.ss.ooo.ooo pj-ss.ooo.oSi-sSs.ooo.ooo
.000 P«-iS0.00a.001 or KOre
1 Val Mth Cd. 0-«pi>rii.al
IOpX- C71 U-Book Vjl>.e
K-Ca<c(real eseaco cnly) S-*»««a«Kt« T.<U»h/Mar*«
v.oUxr ,' «;ctuuc«d
^
1117
FINANCIAL DiaCLOSCTRE REPORT (COnC'd)
Adelman, Lynn S.
O't. ot Kept
09/09/97
vm. ADDITIONAL INFORMATION OR EXPLANATIONS (indict, part of Report.)
My spouse is a beneficiary of the Paul Halmbacher Family Trust. This Trust is
presently in probate and will probably be distributed within the next sixty days.
The Trust consists primarily of stocks.
IX. CliRTIFICATION.
lo compliance with (he provisions of 28 U.S C § 455 aiid of Advisory Opinion No 57 of the Advisory Committee on JudjctaJ
Acuviucs. and to iJic best of my IcQowicdgc at the time after reasonable inquiry. 1 did twt pcii'oiTn any adjudicatory function in any litigation
dunnfi Ibc period covered by this rcpon id wluch I. my spouse, or ray minor or dependent childfcn had a ruiancial imcresl. as defined m
CaooD 3C(3)(c). in the outcome of such liiiEalion
I certify that all information given above (includine mformation pertaining to my spouse and minor or dependent children, if any) n
accurate, true, and cwrapleie to the best of my tnowlcdgc and belief, and that any information not reported was withheld because it met
applicable statutory provisions permittmg iwn disclosure
I further ocnily that camed income from cmtside employment and honoraiia and the acceptance of gifts which have been reported are
in compliance with the provisions of 5 U S C.A app 4. § SOI et set) . 5 U.S.C. { 7353 and Judicial Conference tcgulatiofu.
Sigalure «^-^^vAAs (^XjZlJM'^JJIA
'lull
Vf(/f7
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR PAILS TO FILE THIS RETORT MAY BE
SUBJECT TO CrVIL AND CRIMINAL SANCTIONS (5 U S C App 4, $ 104.)
PILING INSTRUCTIONS:
Miit signed ori^al and 3 additiomil c»pics (o
Cammiaer on FinandU Disclosnic
UxuieU StaK« Coons .
Stiitei-IOl
Ctae ahmibm eittJe.-fl^E,.,
• .;.:. .;._-i::r ;;.■•■ • ■ . .-': ..,'
.W«simi^,T).C:; r^] ':
•«~;- -lAins..;^ - . .. -■ _. rill' '""■■;:
.:-.- .■ - i.^-^i,- ■:- .^-i:-^....:- '-; --■-•.:::;"
1118
FINANCIAL STATEMENtr
NET WORTH
GENERAL INFORMATION
Are any assets pledged?
Are you a defendant in any
suits or legal actions?
Have you ever taken
bankruptcy?
Liabilities
Cash on hand and in banks
U.S. Government Securities-
add schedule
Listed securities-add
schedule
Unlisted securities -
add schedule
Accounts t notes receivable
(Shepherd Express Newspaper)
Due from relatives and
friends
Due from others
Doubtful
Real estate owned -
add schedule
Real estate mortgages
receivable
Autos and other
personal property
Cash value - life insurance
Other assets-itemized
State Pension
Deferred Compensation
IRA
Spouses beneficial interest
in Paul Halmbacher Family
Trust and Estate of Dorothy
Halmbacher, presently in
probate
877,000
None
2,000
None
None
None
400,000
20,000
None
175,000
80, 000
40,000
Notes payable to banks-secured
Notes payable to banks-unsecured
Notes payable to relatives
Notes payable to others
Accounts i bills due
Unpaid income tax
Other unpaid tax s interest
Real estate mortgages payable-
add schedule
Chattel mortgages and other
liens payable
Other debts
None
None
None
None
None
None
None
None
None
Total Assets
2,242,000
Total Liabilities
NET WORTH
CONTINGENT LIABILITIES
2,242, 000
None
NET WORTH
TOTAL LIABILITIES &
NET WORTH
2,242,000
2,242,000
1119
SCHEDULE 1 - MUTUAL FUNDS & SECURITIES
Amcap Fund $ 140,000
Delaware Group Value Fund 116,000
Growth Fund of America 158,000
Limited Term Municipal Fund 90,000
MFS Fund 107,000
Washington Mutual Investors Fund 150,000
Templeton Emerging Markets Fund 15,000
Morgan Stanley Asian Growth Fund 71,000
Puerto Rico Electric Power Authority 30,000
TOTAL $ 877,000
REAL ESTATE SCHEDULE
Residence :
Waterford, Wisconsin $200,000
Office Building:
308 East Juneau Avenue, Milwaukee, WI 53202 $200,000
Total $400,000
1120
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 amount of time devoted to each.
I do a substantial amount of pro bono work almost all of
which is designed to serve the disadvantaged. I spend about
20% of my professional time on cases which benefit the
disadvantaged. Many of the cases discussed previously are
of this type. For example, the case of Demmi th v. Wis.
Judicial Conference, 166 Wis. 2d 649 (1992) benefitted all
indigent defendants charged with minor offenses. The
purpose of my efforts was to eliminate a bail schedule which
imposed money bail on poor people even when it was
unnecessary to ensure their return to court.
Similarly, the purpose of the case of Joni B. , et al. v.
State, 202 Wis. 2d 1 (1996) was to ensure that, where
appropriate, courts can appoint lawyers for parents of
children who are subject to CHIPS proceedings. Such parents
are usually poor and otherwise disadvantaged. In both the
Demmi th and Joni B. cases my work was volunteered.
I also do pro bono work in more ordinary cases. For
example, I recently represented a young man with AIDS in a
very difficult personal injury case largely because he
needed a lawyer. Similarly, I recently represented a high
school student who was wrongly denied a college scholarship
because of the negligence of the Milwaukee School District.
In both cases the work required far exceeded the potential
compensation. I took both cases because I thought I could
help ensure that justice was done.
I also encourage all the lawyers in my firm to do pro bono
work.
I have also tried to serve the disadvantaged as a
legislator. I have worked hard on such issues as child abuse /
prevention and domestic abuse prevention which are important
to disadvantaged persons. I have been involved in efforts
1121
to improve state health insurance programs. I have also
supported an effective Public Defender System in Wisconsin.
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 the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
No.
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) .
Yes, yes. In January, 1997, I learned that there would be a
vacancy in the Eastern District of Wisconsin. I applied for
the position. I was asked to submit an application to the
Wisconsin Federal Nominating Commission established by
Senators Kohl and Feingold. This Commission was chaired by
the Dean of the Marquette Law School and consisted of two
appointees by the State Bar and four by each of the
senators. I was asked to fill out a questionnaire and was
interviewed by the Commission. I was one of five candidates
recommended by the Commission. In addition, my
qualifications and background have been reviewed by the
Department of Justice, the Federal Bureau of Investigation,
and the American Bar Association.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you an 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.
1122
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 been subject
to 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 role of the courts is to adjudicate cases between
litigants. Courts are not legislatures, and they
should not legislate. As one who has served as a
legislator, I am sensitive to the differences between
the legislative and judicial functions. Judges ought
to resist each of the above-described tendencies toward
judicial activism. Judges should scrupulously respect
the limits of judicial power. The role of a judge is
to decide cases correctly, based on the facts.
1123
I eiin also sensitive to the different duties of the
three branches of government because, as a lawyer, I
have worked on many cases involving separation of
powers issues. It is important for judges to pay
careful attention to the separation of powers
principle. This means that judges should understand
that policy-making is the province of the legislative
and executive branches of government, not the judicial
branch .
Moreover, judges must be sensitive to such doctrines as
standing, ripeness and abstention which serve the
function of keeping courts from resolving issues which
may not be properly before them. These doctrines
reflect the important proposition that District Courts
are courts of limited jurisdiction.
Because of my work as a legislator and my work as a
lawyer in cases involving conflicts between branches of
government, I have a highly developed sense of the
appropriate roles of the different branches of
government and particularly of the limited role of the
judicial branch.
1124
I. BIOGRAPHICAL INFORMATION (PUBLICO
Full name (include any former names used.)
Charles Roberts Breyer
Address: List current place of residence and office address(es).
Home: San Francisco, CA
Office: Coblentz, Cahen, McCabe & Breyer
222 Kearny Street, 7th Floor
San Francisco, CA 94108
Date and Place of Birth.
Novembers, 1941; San Francisco, California
Marital Status (include maiden name of wife, or husband's name).
List spouse's occupation, employer's name and business
address(es).
Married.
Spouse:
Sydney Goldstein
Executive Director
City Arts & Lectures.
1415 Green Street
San Francisco, CA 94109
Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates degrees
were granted.
Colleges and
Law Schools Attended
Frpm
IQ
Degree
Received
Harvard College
Boalt Hall,
University of California
1959
1963
1963
1966
A.B. cum laude
in economics
(June 1963)
LLB. (June 19(
-1-
1125
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.
Employment:
Summer 1963
Playground Director
San Francisco Unified School District
San Francisco, California
Summer 1964
Law Clerk
Lewis & Rouda
San Francisco, California
Summer 1965
Group Leader
Experiment in International Living
Putney, Vermont
August 1966-Julv 1967
Law Clerk to Judge Oliver J. Carter
Chief Judge
U.S. District Court for the Northern District of California
July 1967-September 1967
U.S. Army Reserve
Fort Ord, California
October 1967-December 1967
Juvenile Hall Project
Legal Aid Society of San Francisco
December 1967-Auaust 1973
Assistant District Attorney
San Francisco District Attorney's Office
August 1973-November 1974
Assistant Special Prosecutor
Watergate Special Prosecution Force
Department of Justice, Washington, D.C.
-2-
1126
December 1974 to December 1979
Jacobs, Sills & Coblentz
(now Coblentz, Cahen, McCabe & Breyer)
San Francisco, California
1979
Chief Assistant District Attorney
City and County of San Francisco
1980 to Present
Coblentz, Cahen, McCabe & Breyer
San Francisco, California
Board of Directors. Non-Profit Organizations:
1977
Travelers Aid
1979
Spring Opera
1980
Friends of the San Francisco Public Library
1983-1985
Northern California Chapter of the American Civil Liberties Union
1986-1989
Lawyers Committee for Human Rights
1996-1997
Lawyers Committee for Human Rights, Advisory Council
1995-Present
San Francisco Conservation Corps
1127
7. Military Service: Have you liad any military service? If so, give
particulars, including the dates, branch of service, rank or rate, serial
number and type of discharge received.
1966-1972— U.S. Amfiy ER 1 9856060
1966-1969— P.F.C.
1969-1972 — Captain, Judge Advocate General's Corps.
Honorable Discharge
8. Honors and Awards: List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would
be of interest to the Committee.
I have received citations in connection with my services as Assistant
District Attomey and Assistant Special Prosecutor. I am also a Fellow of
the American College of Trial Lawyers, a recognition conferred by my
peers in the practice of trial law. I was selected as a lawyers'
representative to the Judicial Conference of the Ninth Circuit from 1989 to
1991 . In my youth I was an Eagle Scout and the recipient of the Harvard
College Hansen Award.
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 tities and dates of any offices which you have held in
such groups.
American Bar Association, 1975 to present.
San Francisco Bar Association, 1975 to present.
Chairperson, Ethical Considerations in the Prosecution and Defense of
Criminal Cases (American Bar Association), 1976-1982.
Member, Advisory Committee to the United States District Court, Northem
District of California. Tnis committee, established by Act of Congress,
was appointed by the judges of the District Court to serve as an advisory
committee on the implementation of the "Speedy Trial Act" (1975).
Member, Penal Reform Committee, San Francisco Bar Association,
(1970).
San Francisco Civil Investigative Grand Jury (1975).
San Francisco Juvenile Probation Commission (1996).
Co-Chair, Special Bar Committee, San Francisco Bar Association,
investigation of San Francisco District Attome/s office (1976).
American College of Trial Lawyers, Federal Rules of Criminal Procedure
Committee (1997).
1128
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.
(a) Lobbying:
American Bar Association
American College of Trial Lawyers
State Bar of California
San Francisco Bar Association
*****
(b) Other:
California Tennis Club (Copy of By-Laws attached as Exhibit A)
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.
U.S. District Court for the Northem District of Callfomla. 1966
U.S. District Court for the Central District of California, 1980
U.S. District Court for the Southem District of Callfomla, 1982
U.S. District Court for the Eastern District of California, 1985
U.S. District Court for the District of Columbia, 1973
U.S. District Court for the District of Kansas, 1987
U.S. District Court for the Northem District of Illinois, 1985
U.S. District Court for the Southem District of New Yori<, 1988
U.S. District Court for the Northem Mariana Islands, 1986
U.S. Tax Court, 1978
U.S. Supreme Court, 1974
U.S. Court of Appeals for the Ninth Circuit, 1966
Califomla Supreme Court, 1966
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 and 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.
Over-crowding In the San Francisco County Jail published in the San
Francisco Bar Association Journal (1970). (Unable to locate a copy.)
1129
PUBLICATION
DATE
TitLE
San Francisco Chronicle
5/16/82
Condemning the U.S.
Justice System (Book
Review)
San Francisco Chronicle
9/12/82
A Country Lawyer's Fear
of Rejection (Book
Review)
San Francisco Chronicle
12/18/83
Two Versions of A
Lawyer's Art (Book
Review)
San Francisco Chronicle
1983
Legal Victory At Nearly
/^y Cost (Book Review)
San Francisco Chronicle
4/1/84
Constitutional "Niceties"
Were Just Inconvenient
(Book Review)
San Francisco Chronicle
6/2/85
Flawed Study of a
Murderer (Book Review)
San Francisco Chronicle
7/30/89
The Power of Life and
Death (Book Review)
San Francisco Chronicle
12/3/89
A Pursuit of Justice
(Book Review)
San Francisco Chronicle
2/25/90
A Supremely Pragmatic
Court (Book Review)
San Francisco Chronicle
3/13/91
Medical Testimony with a
Novel View (Book
Review)
San Francisco Chronicle
5/19/91
"Chutzpah" Is His Middle
Name (Book Review)
San Francisco Chronicle
12/1/91
Washington's Power
Lawyer (Book Review)
San Francisco Civil Investioath/e
Grand Jury
Grand Jury Reports
1975
The Office of the Mayor
Grand Jury Reports
1975
San Francisco Police
Department
Grand Jury Reports
1975
Sheriffs Department
Grand Jury Reports
1975
Strike Report
45 964 1694
1130
Grand Jury Reports
1975
Electronic Data
Processing
Grand Jury Reports
1975
The Art Commission
Grand Jury Reports
1975
San Francisco's Legal
Services
Grand Jury Reports
1975
Minority Report on the
Office of the District
Attorney
Copies of the above-referenced materials are attached as Exhibit B.
13. Health: What is the present state of your health? List the date of
your last physical examination.
Excellent. May 28, 1997
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) 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 copses of the opinion.
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 1975 I was appointed by the Presiding Judge of the Superior Court to
serve as a member of the San Francisco Civil Investigative Grand Jury.
We issued detailed reports on local governmental operations, including
the County jail facilities, management of the Controller's Office, and the
Public Health Service. The term of service was for one year.
-7-
1131
In 1994 I was appointed by Frank Jordan, Mayor of the City and County of
San Francisco to the Board of Directors of the San Francisco
Conservation Corps. My term of service is through 1998.
In 1996 I was appointed by the Mayor of San Francisco, upon the
recommendation of the San Francisco Superior Court, to the Juvenile
Probation Commission for a four-year tenm. I presently serve as the
President of the Commission. This Commission sets policy for the
administration of the Juvenile Justice System. The term of service is
March 1996 through January 15, 2000.
17. Legal Career:
(a) Describe chronologically your law practice and experience
after graduation from law school including:
(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 cleric;
August 1966-Julv 1967
Law Clerk to Judge Oliver J. Carter
Chief Judge
U.S. District Court for the Northern District of California
(2) whether you practiced alone and, if so, the addresses
and dates.
I have never practiced as a sole practitioner.
(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;
October 1967-December 1967
Juvenile Hall Project
Legal Aid Society of San Francisco
1663 Mission Street
San Francisco, California 94103
I served as counsel to indigent juveniles at the Youth
Guidance Center in proceedings before Court
commissioners and Superior Court judges.
1132
December 1967-Auaust 1973
Assistant District Attorney
880 Bryant Street
San Francisco District Attorney's Office
San Francisco, California 94103
I served as trial counsel representing the State of California
in the prosecution of criminal offenses, both misdemeanors
and felonies. These offenses ranged from traffic offenses to
multiple homicides, for which the death penalty was
imposed. I tried over 50 felony jury trials and was certified
as a criminal law specialist by the State Bar of Califomia.
Auoust 1973-November 1974
Assistant Special Prosecutor
Watergate Special Prosecution Force
Department of Justice, Washington, D.C.
I was the second chair in the prosecution of the White
House "plumbers" for violation of the civil rights of Dr. Louis
Fielding. I also conducted grand jury proceedings into illegal
wiretaps and illegal campaign contributions.
December 1974 to December 1979
Jacobs, Sills & Coblentz
(now Coblentz, Cahen, McCabe & Breyer)
222 Keamy Street, 7th Floor
San Francisco, Califomia
I joined the firm in December 1974, and became a partner in
1975. Since that date I have specialized in civil and criminal
complex litigation.
1979
Chief Assistant District Attomey
City and County of San Francisco
880 Bryant Street
San Francisco, California 94103
1980-Present
Coblentz, Cahen, McCabe & Breyer
222 Keamy Street, 7th Floor
San Francisco, California 94108
-9-
U33
(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 year?
And
(2) Describe your typical former clients, and mention areas
If any, In which you have specialized.
I have a general litigation practice specializing in the trial of
cases. From 1967 to 1974 as a prosecutor, I appeared in
court on a daily basis and was certified by the State Bar of
California as a criminal law specialist. Upon entering private
practice, I have represented defendants in criminal matters
with an emphasis on "white collar" offenses. In civil matters
I have tried a wide variety of cases including matters relating
to construction defects, tnjsts and estates, securities,
entertainment law and real estate. I have no "typical" client.
My clientele ranges from private individuals to publicly-held
corporations and financial institutions.
(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 date.
I have appeared in court frequently throughout my practice
As an Assistant District Attomey, I appeared in court daily.
As a private practitioner, I appear at least once a week and
more often if I am in trial.
(2) What percentage of these appearances were In:
(a) federal courts: 60%
(b) state courts of record: 30%
(c) other courts: 10%
(3) What percentage of your litigation was:
(a) civil: 50%
(b) criminal: 50%
(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 tried between 75 to 100 jury trials as an Assistant
District Attomey serving as sole counsel. As a private
practitioner, I have tried numerous cases along with co-
counsel.
-10-
1134
(5) What percentage of these trial were:
(a) jury:
(b) non-jury:
(Approximately) 75%
25%
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.
United States v. John P. Ehrlichman. et a!.. 546 F.2d 910 (D.C. Cir. 1977).
Judge: Opposing Counsel:
Honorable Gerhard A. Gesell
(deceased)
William Snow Frates
4745 South West 76th Terrace
Miami, PL
305/666-2553
Co-Counsel:
William H. Merrill
(Address Unknown)
Henry L. Hecht
University of California
Boalt Hall. School of Law
Berkeley, CA
510/642-1787
As a Watergate Assistant Special Prosecutor, I tried high govemment
officials for conspiracy to violate the civil rights of Dr. Lewis Fielding
(psychiatrist to Daniel Ellsberg, an author of the Pentagon Papers). This
case, which involved the White House "Plumbers" — G. Gordon Liddy,
Howard Hunt, David Young and Egil Krogh — and Special Assistant to the
President, Charles Colson — demonstrated that no purported "National
Security" defense excuses the violation of a citizen's rights. The Grand
Jury proceedings lasted eight months and the trial lasted one month. I
was second chair. All defendants were convicted in July of 1974.
-11-
1135
There were, of course, numerous other activities investigated in
connection with this matter, including the use of wiretaps on the press,
attempts to stop the publication of the Pentagon Papers, and improper
contacts by the White House with the judiciary in an effort to influence the
court. This case, in which the verdict was obtained before President
Nixon's resignation, brought to public view a multitude of governmental
abuses of power.
People of the State of Califomia v. Sandoval. San Francisco Superior
Court Case Numbers 78G58, 78331
Judge: Opposing Counsel:
Honorable Robert J. Drewes John Nash
(deceased) P.O. Box 22032
San Francisco, CA 94122
[No telephone number available]
In 1972 I prosecuted Enrique Sandoval on two counts of murder. The trial
lasted approximately four months with the jury retuming verdicts of guilty
on both counts. Upon completion of the penalty phase, the defendant
was sentenced to death. This case was the first capital judgment
rendered by a San Francisco jury in more than 10 years. I was sole
government counsel. Subsequently, in People v. Anderson. 6 Cal. 3d 628
(1972) the Califomia Supreme Court nullified all capital sentences.
Mr. Sandoval was then sentenced to life in Imprisonment.
People of the State of Califomia v. Poole. San Francisco Superior Court
Case Number 82901
Judge: Opposing Counsel:
Honorable John Ertola (Ret.) Joe R. McCray
433 Turi< Street
San Francisco, CA 94102
415/775-3900
As an Assistant District Attomey, I prosecuted Junious Poole for the
murder of a police officer. The trial lasted approximately 2 months in
which the defense of diminished capacity was presented. After extensive
psychiatric testimony, this defense was rejected by the jury. The
defendant was sentenced to life imprisonment.
People of the State of Califomia v. Simmons. San Francisco Municipal
Court
No Judge Opposing Counsel:
Stanley J. Friedman
13255 San Pablo Avenue
San Pablo, CA 94806
510/215-7888
-12-
1136
As Chief Assistant District Attorney in 1979, 1 presented evidence to the
Grand Jury of laundering of political contributions by the defendant. This
investigation covered a six-month period, at which time the Grand Jury
returned an indictment to which the defendant plead guilty. This was the
first case brought in San Francisco involving violation of the laws relating
to the reporting of political contributions.
United States v. David Weiss (N.D. Cal. 1988, Case Number CR 88
20047 WAI).
Judge:
Honorable William A. Ingram
United States District Court
Opposing Counsel:
Terry Lee
Santa Clara District Attorney's Office
70 West Hedding Street
San Jose, CA 95110
408/299-7503
People of the State of California v. Weiss (Santa Clara County Superior,
Case Number 603123).
Honorable John S. Pasco
Santa Clara Municipal Court
Opposing Counsel:
William Larsen
Santa Clara District Attorney's Office
70 West Hedding Street
San Jose, CA 95110
408/299-7503
In 1988, Weiss, charged with income tax evasion, was the contractor for
the San Jose Transit Mall. He was the target of investigations conducted
by more than ten govemmental agencies and had acquired an extremely
negative reputation in the community. The grand jury investigation was
two years in duration and the trial lasted several months. Weiss was
acquitted because; in my opinion, the jury followed the law and did not
permit the community's feelings to influence the verdict. In the companion
state cases, after lengthy motions, there was a dismissal of the principal
charges by the District Attomey.
Donna L. Whitnev. et al. v. David W. Mitchell, et al.. State of Minnesota,
County of Hennepin, Court File No. 89-15980
Judge:
Honorable Thomas H. Carey
Judge of the District Court
for Hennepin County
Opposing Counsel:
Herbert Stern
David Stone
Stem & Greenberg
75 Livingston Avenue
Roseland, NJ 07068
201/535-1900
-13-
1137
Co-Counsel:
Richard G. Wilson
Maslon, Edelman, Bomian & Brand
3300 Nonwest Center
Minneapolis, MN 55402
612/672-8200
This legal malpractice matter involved a claim in excess of fifty million
dollars. Pre-trial matters consumed many months, including summary
adjudication and motions. The court followed the unusual procedure of
requiring counsel to preview their opening statements before "opposing"
counsel and clients. Subsequent to this presentation, the matter settled.
Estate of Elvis Presley v. Col. Tom Parker. Court: Labor Commissioner,
State of California, Case Number 4-82.
Opposing Counsel:
Edmund S. Schaffer
1801 Century Park E., Ste. 2222
Los Angeles. CA 90067
310/522-1707
Co-Counsel:
L. Peter Parcher
Parcher, Hayes & Liebman
500 Fifth Avenue
New York, NY 10010
212/382-0200
! was retained by the Presley Estate to bring this case against the late
artist's unlicensed manager, requiring disgorgement of all fees received
during the manager's representation of the artist. The case incorporated
the doctrine set forth in Buchwald v. Katz 8 Cal.3d 493 (1972), in which I
participated on behalf of the Jefferson Airplane once the case was
remanded for trial. These cases protected the rights of artists who are
often ill-equipped to exercise control over their commercial benefits. I was
co-counsel with L Peter Parcher in these matters which ultimately settled
without a hearing.
-14-
1138
Max Sobel Wholesale Liquors v. Commissioner of Internal Revenue 630
F.2d 670 (9th Cir. 1980) C.J. Choy. Tang and D.J. Reed.
United States Court of Appeals for Opposing Counsel:
the Ninth Circuit
Edward B. Simpson
Internal Revenue Service
160 Spear Street, 9th Fl.
San Francisco, CA 94105
415/744-9208
My client included the cost of promotional merchandise (extra bottles of
liquor) in the cost of goods sold although the sale of this promotional
merchandise was in violation of state liquor laws. The 9th Circuit upheld
the tax court's ruling that the Revenue Code is neutral in its application of
accounting practices. Thus, even if the sale of the promotional
merchandise was illegal, it was not for the taxing authorities to attempt
either directly or indirectly to enforce state laws which are criminal in
nature. I served as trial counsel with my tax partner in the tax court in a
two-day trial and as the advocate before the 9th Circuit.
United States v. Harris. (N.D. Cal. 1991, Case Number CR 90-0456 CAL).
Judge: Opposing Counsel:
Honorable Charles A. Legge Scott McKay
United States District Court Department of Justice
Northern District of California 950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
202/514-2000
Co-Counsel:
Robert P. Feldman
Wilson, Sonsini, et al.
650 Page Mill Road
Palo Alto, CA 94304
415/493-9300
Jeff Chanin
Keker & Van Nest
710 Sansome Street
San Francisco, CA 94111-1704
415/391-5400
My client, Ronald Schultz, was accused of bribing a foreign ofTicial in an
effort to obtain a contract for telephone equipment in violation of the
-15-
1139
Foreign Corrupt Practices Act. The significance of this case lies in the
degree of preparation required in order to defend against a two-year
governmental investigation spanning three continents. After a three-week
presentation by the Government of its case in chief, the Court directed
verdicts of acquittal as to all defendants.
People of Micronesia. Inc. et al. v. Continental Airlines. Inc.. et al. U.S.
District Court for the Northern Mariana Islands, Civil Action No. 85-0002.
Judge: Opposing Counsel:
Honorable Alfred Laureta Peter Donnici
Saipan, CNMI Dennis Ken/vin
Donnici, Kenwin & Donnici
One Post Street, Suite 2450
San Francisco, CA 94104-5228
415/986-8881
Co-Counsel:
Donald C. Williams
Carismith, Wichman, Case, Mukai
and Ichiki
P.O. Box 241 CHRB
Saipan, CNMI 96950
671/322-3455/56
In 1985, a default was entered against Continental Airiines based upon a
complaint seeking more than fifty million dollars in damages. I was
retained for the purpose of seeking relief from the default Our motion to
set aside the default required two extensive hearings before the Court
over a six month period. Prior to the Court's ruling on our motion, the
matter was settled.
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).
I have represented clients on numerous occasions who were under
investigation for alleged criminal activities. Many of these matters did not
result in indictment.
In addition to representing clients, I believe that my teaching is of some
significance in serving the legal community. Fifteen years ago, along with
two of my colleagues, developed a course for lawyers on the subject of
-16-
1140
trial preparation. This course, under the auspices of the California
Continuing Education of the Bar, has been given every other year since its
inception. We present our program which is entitled "Preparing a Case for
Trial in the Last One Hundred Days" throughout Northern California.
I also have participated in panel discussions under the auspices of the
Practicing Law Institute, Hastings College of Trial Advocacy, Harvard Law
School Evidence Project and the California Association of Business Trial
Lawyers. All these services were provided on a eeq bono basis.
-17-
1141
II FINANCIAL DATA AND CONFLICT OF INTEREST rPUBLIC^
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
See attached Exhibit C.
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.
I believe a full disclosure to litigants and their counsel of any relationship,
business or othenwise, should be made at the first available opportunity. I
would follow the procedure for resolving potential conflicts set forth in the
Canon of Ethics and applicable judicial procedures. I would not hear
matters involving my law firm.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with court? If so, explain.
None.
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 attached Exhibit D.
Please complete the attached financial net worth statement in detail
(add schedules called for).
See attached Exhibit E.
-18-
1142
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.
No.
-19-
1143
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 am presently on the Board of Directors of the San Francisco
Conservation Corps and provide legal sen/ices to that organization.
The San Francisco Conservation Corps is a non-profit job training and
education program serving youth ages 12-24. Program participants,
called Corpsmembers and Junior Corpsmembers, develop job skills,
academic and leadership abilities, and environmental awareness as they
serve the diverse communities of San Francisco through their work on a
variety of education, conservation and community service projects. These
individuals also participate in education programs which include academic
enrichment studies, leadership development, GED preparation for adults,
environmental education, and computer training.
In 1996 I was appointed by the Mayor of San Francisco, upon the
recommendation of the San Francisco Superior Court, to the Juvenile
Probation Commission for a four-year term. I presently serve as the
President of the Commission. This Commission sets policy for the
administration of the Juvenile Justice System, which addresses the
problems of disadvantaged youth.
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
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?
In 1 967, 1 joined a San Francisco social club known as "The Family" as a
participant in their performing arts (singing) section. In the late 1980s, I
advocated a change in the gender discrimination policy. Unfortunately,
this policy was not discontinued, and I resigned in 1990.
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).
-20-
1144
Senator Dianne Feinstein established a Judicial Selection Commission to
interview candidates for this position. I have been interviewed by a sub-
committee of two members, and then by the full commission on two
separate occasions. I understand that my name was fonwarded to
Senator Feinstein in 1994 and again this year for her consideration. Upon
the fonwarding of my name on both occasions, I was interviewed by
Senator Feinstein. After my name was forwarded to the President, I was
interviewed by the Department of Justice, the Federal Bureau of
Investigation, and the Standing Committee on Federal Judiciary 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 the 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.
(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.
I believe that the judge's job is to apply and to uphold the law, following
the Constitution, the statutes as written by Congress, and applicable rules
and regulations — all as interpreted by governing precedent. This latter
role is the role the Constitution foresees for a judge; it is the role that he or
she promises to play in the oath of office. A judge fulfills this role by
discharging his or her judicial duties with integrity and objectivity.
-21-
1145
I also believe that a judge should interpret statutes, apply case law, and
administer the law in individual cases, with an eye to the basic purposes
of the law— Congress's ultimate purpose in respect to statutes; and the
basic purpose of a precedent or rule or regulation as well.
-22-
1146
CALIFORNIA
TENNIS
CLUB
BY- LAWS
Founded in 1884
1147
ARTICLE I
NAME AND PURPOSE
SECTION 1. Name and Purpose.
The corporation shall be known as the CaUfornia Tennis Club, hereinaf-
ter referred to as "the Club." The purpose of the Club Is to promote
the game of tennis by providing tennis and social facilities principally
for its Members.
SECTION 2. Non- Profit.
The Club is a non-profit corporation organized under the Non-Profit
Corporation Law of the State of California.
ARTICLE II
MEMBERSHIP
SECTION 1. Classiiication.
Membership of the Club shall consist of the following classifications:
A. REGULAR MEMBERS. Regular Members are those men and women,
age eighteen (18) or over (excluding Junior Members), who are
admitted into Regular Membership in the Club. The total number
of Regular Members shall not exceed four hundred seventy-five
(475); however, a marginal temporary increase in said number re-
sulting from reinstatement to Regular Membership of Non-Resident
Members a» provided in these By-laws may be allowed at the
discretion of the Board of Directors. A Regular Member shall pay
such initiation fee, dues, other charges and assessments as may be
established for Regular Members from time to time by the Board of
Directors .
B. REGULAR/I MEMBERS. The total number of Regular/I Members
shall not exceed twenty-five (25). Regular/I Members are entitled
to full Membership privileges, including voting rights, except they
may play tennis at the Club only eighteen (18) times in any calen-
dar year. Unlike Social Members, however. Regular/I Members
may play tennis without being guests of Regular Members (or Dther
Regular/I Members) and may bring their own guests. Dues in this
category shall be set midway between Regular Membership dues
and Social Membership dues. In addition, a Regular/I Member
shall pay such other charges and assessments as may be estab-
lished for Regular/1 Members from time to time by the Board of
Directors.
A Regular Member in good standing may, at any time and for any
reason, request transfer to Regular/I Membership status by giving
a written request to the Board of Directors. Provided that there
are fewer than twenty-five (25) Regular/I Members at the time,
the Board shall immediately grant the request. A Regular Member
By-Laws
1148
making such transfer must remain in Regular/I status for at least
one year. Thereafter, said Member may request the Board of
Directors to reinstate him or her to Regular Membership status.
Said Member shall not be required to make a formal reapplication
nor shall said Member be required to pay any additional initiation
fee. Provided that said Member is in good standing at the time of
requesting reinstatement, said Member shall be immediately re-
admitted as a Regular Member or, if there are no openings for
additional Regular Members at that time, the name of said Member
shall be immediately placed on the list of those waiting to be
admitted as Regular Members as is provided in Subsection 2(G) of
this Article II.
C. SPECIAL SENIOR PENDING VACANCY. Individuals accepted to
Regular Membership in the Club for whom openings are not avail-
able may elect to become a Special Senior Pending Vacancy while
awaiting an opening. The total number of Special Seniors Pending
Vacancy shall not exceed twenty-five (25). Members in this cate-
gory are entitled to full Social Membership privileges, including
voting rights, and to use of the courts during specific limited
hours of play as set by the Board of Directors. Members in this
category who violate the time limitations on playing privileges shall
suffer immediate expulsion from the Club and forfeiture of their
Membership. Individuals accepting Membership in this category
shall pay one-half the initiation fee then prevailing for Regular
Membership and their dues shall be set midway between Regular
Membership dues and Social Membership dues. At the time the
individual becomes a Regular Member, he or she must pay the
remaining one-half of said initiation fee. In addition. Members in
this category shall pay such other charges and assessments as may
be established for this category from time to time by the Board of
Directors. At the time the individual becomes a Regular Member,
he or she must pay the remaining one-half of said initiation fee.
In addition. Members in this category^ shall pay such other charges
and assessments as may be establish^4,* for this category from time
to time by the Board of Directors. When an opening in Regular
Membership occurs for a Special Senior Pending Vacancy, such
Member must become a Regular Member by paying the balance due
of his or her initiation fee within a period of thirty (30) days
after receipt of written notice from the Club of such opening or
his or her Membership in the Club shall automatically be terminated.
D. JUNIOR MEMBERS. Junior Members are those, men and women who
have not attained the age of twenty-five (25), (excluding Regular
Members who elected to apply for Regular Membership after attain-
ing the age of eighteen (18)). No application for Junior Member-
ship may be made after the eighteenth (18th) birthday of the
applicant and the total number of Junior Members shall not exceed
one hundred eighty-five (185). Junior Members shall pay such
initiation fee, dues, other charges and assessments as may be
established for Junior Members from time to time by the Board of
Directors. Upon attaining the age of twenty-five (25), Junior
Members shall be given the opportunity to apply to become Regular
Members as provided hereinbelow in this Subsection 1(D); pro-
By-Laws
1149
vided, however, that any Junior Member may apply to become a
Regular Member at any time after attaining the age of eighteen
(18) and prior to reaching the age of twenty-five (25) by giving
written notice to the Membership Committee. Promptly after re-
ceipt of such notice, the Membership Committee shall send to the
applicant instructions for making an application for Regular Mem-
bership status. Such application shall be governed by the proce-
dures and requirements set forth below in Subsections 1(D)(2)
through 1(0)(5) of this ArUde II.
The procedures and requirements for a change in status from a
Junior Member to a Regular Member are as follows:
1. The Club shall send written notice to each Junior Member
promptly after the twenty-fifth (25th) birthday of such Mem-
ber. This notice shall give the Junior Member ninety (90)
days to request and complete an application for change In
status to Regular Membership. In the event that a completed
application for Regular Membership is not received by the
Membershi;^ Committee from such Junior Member within said
ninety (90) day period (or such longer period as the Member-
ship Committee may approve upon a showing of good cause),
such Member's Membership in the Club and his or her eligibil-
ity to advance to Regular Membership from Junior Member
status shall automatically be terminated.
2. Upon timely filing of a completed application with the Member-
ship Committee, the application shall be processed In the same
manner and using the same criteria as for all other applica-
tions for Regular Membership status in accordance with the
admission procedures set forth in Subsections 2(B) through
2(r) of this Article II.
3. Within thirty (30) days after notice of approval of his or her
application by the Board of Directors, the applicant shall
make payment of at least twenty percent (20%) of the differ-
ence between the then current initiation fee for Regular Mem-
bers and the amount of the initiation fee paid by the appli-
cant to become a Junior Member. If no opening is then avail-
able in the Regular Membership, the applicant will be posi-
tioned on the Regular Membership waiting list In such place
and in such order of advancement as shall be established by
resolutions duly adopted by the Board of Directors^.
4. While waiting an opening to be admitted as a Regular Member,
the applicant shall have the status of a Junior Pending Va-
cancy and shall pay all dues, charges and assessments char-
geable to Regular Membership, and shall be entitled to all
privileges of Regular Membership except that of voting in
Club elections.
5. Upon advancement of the applicant to Regular Membership,
the balance of the required initiation fee shall be immediately
due and payable. At the Member's request, the balance due
By-Laws
1150
may be paid in equal monthly installments over a period of up
to four (4) years; provided, however, that if the Member
elects to pay the balance due over a two (2) year period, the
total payment required shall equal one hundred twenty per-
cent (120%) of the balance due; if the Member elects to pay
the balance due over a three (3) year period, the total pay-
ment required shall equal one hundred thirty percent (130%)
of the balance due; and if the Member elects to pay the bal-
ance due over a four (4) year period, the total payment re-
quired shall equal one hundred forty percent (140%) of the
balance due.
SOCIAL MEMBERS. Social Members are entitled to all Membership
privileges except use of the tennis-playing facilities (which they
may use only as guests of Members who have tennis-playing privi-
leges). A Social Member shall be a fully qualified voting Member
of the Club and entitled to election to the Board of Directors, in
accordance with these ByLaws. A Social Member shall pay such
initiation fee, dues, other charges and assessments as may be
established for Social Members from time to time by the Board of
Directors. The number of Social Members shall not exceed ninety-
five (95) although the Board of Directors shall have authority to
increase the limit temporarily in order to reinstate Non-Resident or
Inactive Social Members, or to accommodate Regular or Regular/I
Members desirous of changing to Social Membership Status.
A Regular Member or Regular/I Member in good standing may, at
any time and for any reason, request transfer from Regular or
Regular/I Membership to Social Membership and shall be entitled to
reinstatement to such Member's former Membership category as
provided below in this section 1(E).
Should any Social Member, other th^n one who was a Regular ')r
Regular/I Member immediately before ^becoming a Social Member,
transfer to Regular Membership, th« additional initiation fee shall
consist of the difference between the Social Member's original
initiation fee and the Regular Membership initiation fee in existence
at the time of transfer.
Any Social Member who was a Regular or Regular/I Member immedi-
ately before becoming a Social Member and who has remained in
Social Membership status for at least one year may thereafter
request reinstatement to his or her former Membership category by
giving a written request for reinstatement to .the Board of Direc-
tors. Such Member shall not be required to make a formal reappli-
cation nor shall said Member be required to pay any additional
initiation fee. Provided that said Member is in good standing at
the time of requesting reinstatement, said Member shall be imme-
diately readmitted as a Regular or Regular/I Member or, if there
are no openings for additional Regular or Regular/1 Members at
that time, the name of said Member shall be immediately placed on
the list of those waiting to be admitted as Regular or Regular/I
Members as is provided in Subsection 2(G) of this Article II.
By-Laws
1151
NON-RESIDENT MEMBERS. A Regular, Regular/I, or Social Mem-
ber, whose principal residence is at least one hundred (100) miles
away from the Club, may elect to become a Non-Resident Member
by giving a written notice to the Board of Directors explaining the
reason for the requested change in Membership status. Such
Non-Resident Members shall pay dues of not less than fifty percent
(50%) of the dues in their former Membership category hnd such
other charges and assessments as may be established for Non-
Resident Members from time to time by the Board of Directors.
Non-Resident Members shall be entitled to all privileges of their
former Membership classification with the exception of voting.
If the principal residence of a Non-Resident Member changes so
that said Non-Resident Member no longer qualifies for Non-
Resident Membership, said Non-Resident Member shall so notify the
Board of Directors within thirty (30) days of such change. Any
Non-Resident Member failing to notify the Board of such change in
accordance with this provision shall be subject to having his or
her Membership in the Club revoked. Effective as of the date of
such change, 'the Non-Resident Member shall be required to pay
this full amount of the dues and other charges payable by indi-
viduals in the category of Membership to which the Non-Resident
Member will be returning.
Non-Resident Members in good sunding will immediately be eligible
for reinstatement to their former Membership category upon giving
the required written notice of change of principal residence to the
Board of Directors and approval of reinstatement by the Board of
Directors. Provided said Member is in good standing at the time
he or she makes a request for reinstatement, said Member shall be
immediately readmitted to Membership in his or her former Member-
ship category. However, if there are no openings in such Mem-
bership category at that time and the Board of Directors does not
exercise its discretion to increase temporarily the maximum allowed
number of Members in such category under Subsections 1(A) or
1(E) of this Article, the Board shall place the Member in the
temporary status of Non-Resident Member Pending Change of
Status to Regular, Regular/I or Social Membership, and the name
of said Member shall then have priority on the waiting list over all
other applicants for the Membership category to which said Member
is returning. During any such period of temporary status, said
Member shall pay the dues, charges and assessments payable by a
Member in the Membership category to which he or she is waiting
to return: and said Member shall have all of the privileges of a
Member in such Membership category.
INACTIVE MEMBERS. The Board of Directors has the discretion
to grant Inactive Member status to any Member of the Club for any
reason deemed appropriate by the Board. If Inactive Member
status is granted, the Member so affected must remain in said
status for a minimum of six (6) months. An Inactive Member shall
have all of the privileges of such Member's former Membership
category except tennis-playing privileges. An Inactive Member
shall pay dues which shall be not less than fifty percent (50%) of
By-Laws
1152
Ihe dues in such Member's former category, and such olher char-
ges and assessments as may be established for Inactive Members
from lime to time by the Board of Directors.
Inactive Members may be reinstated to the Membership category
held at the time of being granted inactive Member status upon
written application to and approval by the Board of Directors, but
only as openings occur within the specified limits of the appropri-
ate Membership category. If there is no opening at the time for
an additional Member in the Membership category to which an
Inactive Member is eligible to return, the name of said Member
shall be Immediately placed on the list of those waiting to be
admitted into such Membership category as is provided in Subsec-
tion 2(G) of this Article. II
H. SPECIAL MEMBERS. The Board of Directors shall have authority
to grant Special Membership to outstanding amateur or professional
tennis players, high government officials, foreign diplomats, or
distinguished public figures. Except for outstanding tennis play-
ers, no Special Membership shall be available to permanent resi-
dents of the nine-county San Francisco Bay Area.
Each Special Membership shall be granted for a period not to
exceed one year, subject to annual renewal on review and approval
by the Board of Directors. Payment of the initiation fee or a por-
tion thereof may be waived by the Board of Directors, but the
dues of a Regular Member (and such other charges and assess-
ments as may be established for Special Members from time to time
by the Board of Directors) shall be paid by each Special Member
throughout the term of such Membership.
I. LIFE MEMBERS. Any Member who has beeif a dues-paying Mem-
ber for fifty (50) years may elect to Convert to this Membership
Status. Life Members shall not have* (o pay dues, nor shall they
be subject to any Board of Directors imposed charges or assess-
ments. Life Members shall be voting Members and shall have full
tennis- playing privileges.
SECTION 2. Admission Procedures.
A. For an applicant to receive an application form, a written request
must be made to the Membership Committee by. tivo (2) Club Mem-
bers in good standing.
B. When the application form has been issued, completed by the
applicant, and filed with the Membership Committee, the name of
the applicant shall be posted on the Club bulletin board for a
period of thirty (30) days and transmitted in writing to the Club
Membership.
C. Should the Board of Directors receive from ten (10) or more Regu-
lar, Regular/I or Social Members signed and stated objections to
the application within thirty (30) days after posting, the appli-
cation will be rejected. The applicant may reapply on approval of
By-Laws
1153
the Board of Directors, provided that an interval of at least twelve
(12) months shall have elapsed since the original rejection.
D. After the thirty (30) day posting period, provided that the appli-
cation has not been rejected as provided in Section 2(C) above,
the Membership Committee shall review the application, interview
the applicant and submit its recommendation to the Board of Direc-
tors.
E. Should the recommendation of the Membership Committee be affirm-
ative, the Board of Directors shall vote upon the application at its
next regular meeting. Should two (2) or more Directors vote
negatively on the application, the application will be denied and
may not oe reconsidered before an interval of twelve (12) months.
r. Should the vote of the Board of Directors be affirmative, the name
of the applicant will be placed in its proper sequence on the
admission waiting list.
G. Regular/I Members eligible to be readmitted to Regular Member-
ship, Social Members eligible to be readmitted to Regular or Regu-
lar/I Membership and Inactive Members eligible to be readmitted to
Regular, Regular/I or Social Membership as provided in Section 1
of this Article II, for whom openings are not available in the ap-
propriate Membership category when such Member becomes eligible
to be readmitted, shall be placed on the appropriate waiting list
above (and shall thereby have priority over) all Non-Member
Applicants on said list. In addition, any Non-Resident Members
eligible to be readmitted to Social, Regular or Regular/I Member-
ship shall at all times be placed or remain above and thereby have
priority over all other Members then or thereafter placed upon the
waiting list for such Member's former Membership category. As
between Soci^ Members, Regular/l Members- and Inactive: Members
whose names are placed on the waiting list for an opening in any
Membership* category, priority on the waiting list shall be given to
the Member making the . earliest request or application for rein-
suteroent as determined by the date of recejpt thereof by the
Board of Directors. Likewise, as between two (2) or more Non-
Resident Members, priority at the top of the appropriate waiting
list shall be given to the Non-Resident Member whose notification
of change of principal residence is first received by the Board of
Directors.
SECTION 3. InitiaUon Fees.
Before becoming a Member in good standing entitled to the privileges of
the Club, the newly elected Member must pay the required initiation fee
within thirty (30) days after notice of election to Membership has been
mailed to the post office address entered on the application form.
Exception: Junior Members advancing to Regular Membership may
arrange for installment payments as stipulated in Subsection 1(D) of
this Article II.
By-Laws
1154
SECTION 4. Membership Rights.
Membership In the Club shall be non-proprietary. Upon a Member's
death or other termination of Membership, all rights of such Member
and/or his or her heirs shall terminate.
SECTION 5. Disciplinary AcUon.
Any Member considered guilty of unbecoming or offensive conduct, or
dishonesty, or who fails to abide by Club rules and regulations, may be
requested by the Board of Directors by means of registered mall to
appear before the Board for a private discussion of the conduct prompt-
ing the request. The Member shall be notified of the conduct under
consideration and that he or she has the right to present any facts or
testimony by way of defense, excuse or mitigation of said conduct.
The aforementioned notice to the Member shall be given not less than
fifteen (15) days prior to said discussion. Should the conduct or
attitude of such Member be considered Intransigent or unacceptable, the
Board of Directors may, by majority vote, expel or suspend such Mem-
ber and such action shall be final and without recourse on the part of
such Member.
ARTICLE III
FINANCIAL MATTERS
SECTION 1. Changes in Dues, Initiation Fees, and Other Charges.
The Board of Directors shall have, at all times, the power to Increase
or decrease Initiation fees, dues and other charges of all classes of
Membership and within any class of Membership, provided that at least
thirty (30) days' notice In writing of any Increase or decrease shall be
given all Members. ,
The Board of Directors may also levy assessments to meet the require-
ments of the Club. The Members shall not be per^nally liable for such
assessments but If any Member falls to pay any assessment within the
time prescribed, his or her Membership shall automatically be forfeited
without further notice.
SECTION 2. Payment.
Monthly dues of all classes of Membership shall be payable In advance,
together with any Indebtedness Incurred during the pirevlous month. If
payment of dues, fees, charges and other Indebtedness Is not made In
full on or before the twenty-first (21st) day of the month for which the
dues are billed, they shall become past due and the Member shall be
informed in writing by the Club.
SECTION 3. Delinquencies.
A. If all indebtedness to the Club, including new charges and dues,
has not been paid by the fifteenth (15th) day of the month suc-
ceeding the past due month, the amount thereof shall become
By-Laws
1155
delinquent, and persona] notice of the same must be given by the
Manager in writing to all delinquent Members and their names
posted at the Club; and if any Member shall not make payment
within ten (10) days after the receipt of such notice, such Member
shall be barred from use of the Club. Reinstatement at any time
within three (3) months thereafter may be made by the affirmative
vote of a majority of the Board of Directors and payment in full of
the amount due plus a ten percent (10%) penalty on the delinquent
amount. If payment in full of the delinquent amount does not
occur within said three-month period, such Member's Membership
will be terminated.
Personal notice shall be deemed to have been given to any Member
when mailed by certified mail to the Member's last known address.
During the period the Member is barred from the use of the Club,
the delinquent Member shall be charged with monthly dues, other
charges and assessments and the applicable penalty.
B. The Board of Directors may, upon a showing of good cause,
extend, limit or deny credit to any Member or defer termination of
Membership of a delinquent Member for such time and under such
conditions as it deems appropriate.
ARTICLE IV
OBLIGATIONS AND PRIVILEGES
SECTION 1. Resignations.
Any Member who is not indebted to the Club may resign his or her
Membership. Members wishing to resign must so notify the Board in
writing . Should such written notification be received prior to the
twentieth (20th) day of the month, the resignation will become effective
at the end of that month on condition that any outstanding charges
must be paid by the resigning Member by the twenty-first (21st) day of
the following month. Resigning Members whose accounts are not cleared
by that date shall be subject to monthly dues until their account is
cleared; however, they shall not be entitled to any of the privileges of
Membership following the effective date of their resignation.
SECTION 2. Family Social Privileges.
The immediate household family of any Member shall be entitled to the
social privileges of the Club, but only when accompanied by such
Member.
SECTION 3. Tennis-Playing Guests.
A. Members with tennis-playing privileges may invite guests, not
exceeding three (3) in number at any one time, to play tennis
upon paying the prescribed fee for each guest and provided that
such guests play in the company of the host Member. No indivi-
dual may be a playing guest more than eighteen (18) times in any
calendar year.
By-Laws
1156
B. Members shall register their guests by name prior to playing.
Failure to do so will result in a penalty equivalent of three (3)
times the prescribed guest fee, and repeated occurrences of such
failure shall be considered cause for disciplinary action by the
Board .
C. Tennis-playing privileges may be granted to non-resident guests
upon written application initiated by a Member and approval of the
Board of Directors or the Club. These privileges shall entitle the
holder to the privileges of the Club for a period of one month.
Each such guest shall pay in advance 1-1/2 times the Regular
Member monthly dues for all persons twenty-five (25) and over
and 1-1/2 times the Junior monthly dues for persons under the age
of twenty five (25). Renewal, extension, or reissue of these
privileges shall be subject to the approval of the Board of Direc-
tors, and shall in no event exceed six (6) months in any given
five (5) year period.
D. Members inviting guests or applying for guest privileges shall be
responsible for all debts to the Club incurred by their guests and
for all damage done by them.
E. The Board of Directors shall have the right to make special rules
for guests involved in tournament play. It shall likewise prescribe
the rules governing the inviting of guests to the Club for social
purposes only.
SECTION 4. Compensation of a Member, Director, or Officer.
No Member, director, or officer shall receive any salary or compensation
from the Club for services or expenses except where authorized by the
Board of Directors in writing.
SECTION 5. Address Changes. .* »
• ;
All Members must immediately notify the Club of any change of address,
and failure to do so shall constitute a waiver of any right to notice
provided by these By-laws and rules of the Club.
ARTICLE V
DIRECTORS AND OFFICERS:
POWERS, DUTIES, AND MEETINGS.;,
SECTION 1. General.
1'he management of the affairs of the Club shall be vested in a Board of
Directors consisting of nine (9) of its resident Members one (1) of
whom may be a Social Member. Three (3) Directors are to be elected
each year serving for three (3) years each. In addition .th$.Boat:d may
delegate the day-to-day management of the Club to a Manager who shall
be an employee of the Club. The Club year for purposes of accounts,
reports and terms of office shall be the calendar year.
10 By-Laws
1157
SECTION 2. Powers.
The Board of Directors shall have all powers not inconsistent with the
laws of the State of California and the By-laws of the Club, to establish
rules for Club and court use, and to control and manage the affairs
and property of the Club, subject, however, to the following restric-
tions:
A. The Board of Directors shall have no authority to subject the
property of the Club to any mortgage, lien, or other encumbrance
without first obtaining the approval of a majority of the voting
Members of the Club of the proposed action.
B. Even though no encumbrance is imposed on the Club, the Board of
Directors shall have no authority to subject the Club to an indebt-
edness or expenditure in excess of $25,000, except for maintenance
or resurfacing of tennis courts, without prior approval of a major-
ity of the voting Members of the Club. The debt limit of $25,000
is intended to be exclusive of indebtedness presently existing or
any remaining portion thereof.
C. The Board of Directors shall have no authority to acquire by pur-
chase or otherwise any real property for an amount exceeding
$25,000, or to dispose of any real property of the Club for an
amount exceeding $1,000, unless such transaction has first been
approved by a majority of the voting Members of the Club.
D. The Board of Directors shall have no authority to liquidate or
distribute the assets of the Club, or to dissolve the Club, unless
at least eighty-five percent (85%) of the voting Members of the
Club have first approved such action.
SECTION 3. Duties.
A. The President shall:
1). preside at all meetings of the Board of Directors and of the
Club, shall call such meetings as are herein provided, shall
see that these By-laws and such rules and regulations as may
be adopted by the Board of Directors are enforced, shall su-
pervise generally the affairs of the Club, and shall make an
annual report to the general Membership.
2). sign jointly with the Secretary or Treasurer all contracts,
bonds and other instruments in writing which have first been
approved by the Board of Directors.
3). shall appoint chairpersons of standing committees who shall be
Members of the Board, subject to confirmation by the Board
and shall be an ex-officio Member of said committees. Chair-
persons of committees shall by February 1st of each year,
submit to the Board a list of their committee Members for
approval of the Board. In particular, the Membership Com-
mittee shall consist of not less than eight (8) Members, of
whom at least two (2) shall be Directors.
By-Laws H
1158
B. The Vice President shall perform all the duties of the President in
the tatter's absence or inability to serve.
C. The Secretary shall keep a record of all proceedings of the Board
of Directors and of the Club. If both the President and the
Vice-President are absent, the Secretary shall call the meeting to
order and a temporary chairperson shall be chosen.
D. The Treasurer shall have charge of the funds of the Club, and
shall be responsible for the keeping of proper records of all re-
ceipts and disbursements of the Club funds and proper accounts of
its assets, liabilities, expenses and income.
SECTION 4. Meetings.
A. The Board of Directors shall hold at least three (3) regular meet-
ings each quarter. Regular or special meetings may be called at
any time on order of the President or two (2) Directors. Each
Director shall be given notice of such meeting at least one (1) day
prior to the day of the meeting, either orally or in writing. The
minutes of all Directors' meetings and all meetings of the Members,
on being read and approved, shall be conclusive on the question
of service of notice. Five (5) Directors shall constitute a quorum.
No action may be taken by the Board without a quorum and a
majority vote of those present shall be required for the Board to
take any action.
B. The Annual Meeting of the Club shall be held in November on a
date to be set by the Board of Directors. Twenty-five (25) Mem-
bers entitled to vote shall constitute a quorum and a majority vote
of those present shall be required for the Membership to take any
action. i ,
ARTICLE VI* •
NOMINATING COMMITTEE
SECTION 1. Selection.
The Nominating Committee shall consist of five (5) voting Members.
The Chairperson shall be the most recent past Pf^esident of the Club
who is not a Member of the Board of Directors! .-The election of the
four (4) remaining members of the Nominating Committee shall be con-
ducted in accordance with the following rules:
A. Any voting Member is eligible for election, provided that no Mem-
ber may at the same time serve on the Board of Directors and the
Nominating Committee.
B. Nominating Committee Members shall serve for one (1) calendar
year, and are not eligible for re-election until after the lapse of
one (I) year from the year thai they served on the Committee.
12 By-Laws
1159
C. Nominations shall be made from the floor at the Annual Meeting.
If more than four (4) Members are nominated, voting shall be by
secret ballot of all voting Members present at the meeting. Each
voting Member may cast four (4) votes but may not cast more than
one (1) vote for any one (1) candidate. The four (4) candidates
receiving the largest number of votes shall be declared elected.
Two (2) Judges of Election shall be appointed by the President to
count the ballots and announce the results thereof.
0. Should any Member of the Nominating Committee cease to be a
Member of the Club, or should a vacancy in the Committee other-
wise occur, prior to the completion of such Committee's duties as
herein provided, such vacancy shall be filled by appointment by
the Board of Directors.
SECTION 2. Responsibilities.
The Nominating Committee, prior to the Annual Meeting, shall invite
voting Members of the Club to submit recommendations for candidates
for the Board of Directors. Such recommendations may be submitted in
writing if the Member prefers. The Nominating Committee shall then
submit a number of nominees at least equal to the number of vacancies
on the Board of Directors to be filled for the ensuing calendar year.
The names selected by the Nominating Committee shall be posted on the
bulletin board of the Club at least three (3) weeks prior to the Annual
Meeting. These names shall be designated as nominations of the Nomi-
nating Committee.
ARTICLE VII
ELECTIONS
SECTION 1. Board of Directors.
A ballot containing names of candidates selected by the Nominating
Committee shall be circulated by mail to the voting Members at least
three (3) weeks prior to the Annual Meeting, with a request that the
ballots be returned at least five (5) days prior to the Annual Meeting.
Space shall be provided on the ballot for write-in candidates.
A. Two (2) Judges of Election shall be appointed by the President.
They shall count and certify the ballots, and report the results of
the election to the incumbent President, who shall publish the
results.
B. In case two (2) or more candidates shall have received an equal
number of votes, and all cannot be elected, selection shall be made
by secret ballot at the Annual Meeting.
C. Directors shall not be eligible for reelection until after a lapse of
one (1) year after the expiration of their term of office, except as
provided below. Vacancies occurring on the Board of Directors
from any cause other than expiration of a Director's term shall be
filled by vole of the Board. In the event a Director resigns, or
By-Laws 13
1160
when for any reason a substitule Director is elected by the Board,
the substitution shall be for the unexpired term of the Director
replaced, and Directors selected in this manner .may be renomi-
nated dt the expiration of their term.
SECTION 2. Officers.
At the November meeting, the Board of Directors shall elect a President
from the Members of the Board who have one or two years remaining to
serve. Also before the Annual Meeting, and following the election of
the new President the six continuing Directors, the three outgoing
Directors and the three newly elected Directors shall elect a Vice-
President, Secretary and Treasurer from among the Directors who will
be serving during the forthcoming year.
ARTICLE VIII
AMENDMENTS AND APPEALS
SECTION 1. Amendments.
A. Adoption.
Power to repeal or amend any of these By-laws and to adopt new
By-laws is delegated to the Board of Directors. This power shall
not be exercised in any case except upon three (3) weeks' written
notice mailed to each voting Member of the Club at his or her last
known address. Such notice shall briefly describe the subject
matter of any By-law intended to be repealed or adopted, and if it
is intended to amend the By-laws, a brief description of the amend-
ment. A copy of the existing By-law^ ^hall be forthwith posted
upon the bulletin board and made avai^^l^le to any voting Member
upon request. With respect to amendments, a copy of the By-law
as it will read when amended shall also be posted on the bulletin
board and delivered to any voting Member upon request.
B. Objections.
If at least twenty-five (25) voting Members, before the meeting of
the Board of Directors at which these By-laws are, to be repealed,
adopted or amended , notify the President in wibiting that they
object to the repeal, adoption or amendment, these By-laws shall
not be repealed, adopted or amended except by majority vote of
the Members who vote in a mail ballot. Within twenty (20) days
after the objection is filed, ballots will be mailed to all voting
Members. The ballot shall contain the text of the challenged
By-Law changes; brief statements (less than 250 words) for and
against the changes to be written, respectively, by a proponent
and an opponent selected by the President; the deadline set by
the Board for return of the ballots (which shall be at least twenty
(20) days after the ballot is mailed to the voting Members). Only
those ballots which are marked and returned to the President at
the Club by the specified deadline will be counted as votes in the
referendum. In the absence of such objection, the Board of
14 ^ By-Laws
1161
Directors shall have the power, at said meeting, to repeal, adopt
or amend any By-laws described in the notice mailed to all voting
Members in accordance with such notice.
SECTION 2. Appeals.
The decision of the Board of Directors is final with respect to all inat-
ters within its power, including the interpretation of its rules and
By-laws, subject, however, to an appeal of voting Members which meets
the following requirements:
A. The appeal shall be considered only if at least twenty-five (25) of
the voting Members shall file a written appeal with the President
within ten (10) days after the publication of the challenged deci-
sion of the -Board of Directors. If such an appeal is filed, the
Board of Directors shall submit the challenged decision to a refer-
endum by mail of the Membership.
B. If two-thirds (2/3) of the voting members vote to reverse the
decision of the Board of Directors, the Board shall reverse the
decision in question. If less than two- thirds (2/3) vote to reverse
the decision, the decision shall stand.
By-Laws 15
1162
[EXCERPT]
COBLENTZ, CAHEIM, McCABE & BREYER, LLP
AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
AS OF NOVEMBER 9, 1995
VIII.
PAYMENTS TO A TERMINATED PARTNER
8.1 (a) A "Terminated Partner" shall mean any partner whose
Partnership interest has been terminated, whether by withdrawal (including disability),
expulsion or by operation of bankruptcy under Section VII above, death or retirement,
and shall include the successors in interest of a deceased partner or in the case of a
professional corporation, the sole shareholder of any corporate partner or the
successor in interest thereto.
9999/408.N2
11/13/95 l2.
1163
(b) A Terminated Partner shall not remove from the Partnership
premises any Partnership property and shall promptly deliver to the Partnership all of
the Partnership property in his/her possession.
8.2 The Partnership's Profits and Losses for the portion of the fiscal year
in which a Terminated Partner terminates shall be determined on an interim closing of
the books method on the date,. the Partnership year closes with respect to the
Terminated Partner. In the event a Terminating Partner's date of termination is other
than the last day of the month, the date upon which the Partnership shall close its
books with respect to the terminated partner shall be either (i) the last day of the
month which immediately precedes the month in which such termination occurs or
(ii) the actual date upon which the Terminated Partner's partnership interest
terminates, in the sole discretion of the partnership (or, in the case of that partner's
bankruptcy, the date of the bankruptcy filing) ("Valuation Date"). All Profits and
Losses shall be allocated to the capital accounts of the partners as though such
interim closing of the books constituted the end of the Partnership's fiscal year. For
purposes of the preceding sentence, the Partnership's Profits and Losses for such
period shall reflect as operating expenses of the Partnership all items of accrued
expenses, prepaid expenses, and other i*ems required in accordance with
Section 706(d)(2) of the Internal Revenue Code of 1986, as amended. In addition,
accrued expenses shall specifically include a reasonable provision for accrual of a pro-
rata share of typical year end expenses, and any other expenses which are not
incurred equally throughout the year, including, but not limited to, employee
9999/408.N2
11/13/96 13-
1164
compensation, fringe benefits and bonuses, and preparation of Partnership tax and
pension returns. The stationery and supplies on hand shall not be included in prepaid
expenses. Any life insurance (specifically including insurance on the life of the
deceased partner for the purpose of calculating that partner's interest) shall be carried
at its cash surrender value and not at its maturity value.
8.3 Upon terminatipfi of a partner, other than a partner subject to the
provisions of Article X, the Terminated Partner shall sell, and the continuing
Partnership shall purchase, the Terminated Partner's interest in the Partnership as of
the Valuation Date for a purchase price equal to the sum of the following items, as
determined pursuant to Section 8.4 hereof:
(a) The Terminated Partner's capital account as of the Valuation
Date;
(b) One-half ( 1 /2) of the Terminated Partner's Percentage of all
accounts receivable as of the Valuation Date; and
(c) One-half ( 1 /2) of the Terminated Partner's Percentage of all
contingency matters and statutory fee probate estates as of the Valuation Date, as
provided in Section 8.4(c).
(d) In the event the Partnership has either fixed or contingent
liabilities as of the Valuation Date in excess of $25,000 which are not included on the
balance sheet (other than salaries but including any obligation owing to any other
Terminated Partner), said purchase price shall be reduced by an amount equal to the
Terminated Partner's Percentage of such liability, provided that said purchase price
9999/408.N2
11/13/95 14.
1165
shall not be less than the Terminated Partner's capital account as of the Valuation
Date. If such liability is contingent, the amount of such reduction, if any, shall be
determined at such time that the liability becomes fixed and the Partnership may in its
discretion establish a reasonable reserve for such contingent liability. Rent payable
for the Partnership's offices for the three (3) months immediately following the
Valuation Date shall be considered, as a liability of the Partnership; provided, if such
three (3) month period falls within a period when Partnership office rent is waived or
substantially reduced (a "free rent" period), the liability for rent shall be determined as
if rent was payable during the free rent period at the rate payable immediately after
the expiration of the free rent period. Any Partnership furniture or equipment leases
shall be considered as a liability (but not as an asset) and valued at an amount equal
to three (3) months rent, pursuant to said lease.
8.4 (a) The "capital account" of a Terminated Partner's interest in the
Partnership shall mean the capital account determined in accordance with the
customary method of keeping the books of account of the Partnership and after all
allocations of Profits and Losses for the interim period of the fiscal year as determined
under Section 8.2. The determination of the partner's capital accounts shall be made
on a review basis by the accountants regularly employed by the Partnership, shall be
conclusive on all parties thereto and the Terminated Partner shall bear his/her
Percentage of such expense.
(b) Accounts receivable, where used herein, shall mean the
amount of billed but unpaid fees for legal services (excluding client costs advanced)
9999/408.N2
11/13/95 15.
1166
rendered by the Partnership as of the Valuation Date, to the extent that such accounts
receivable are collected by the Partnership within twelve (1 2) months of the Valuation
Date.
(c) Contingency matters shall mean the prorated amount of any
contingency fees to the extent collected by the Partnership after the Valuation Date
with respect to written contingericy fee agreements in existence prior to the date of
the partner's termination. Such fees shall be prorated as follows: The total fee shall
be multiplied by a fraction, the numerator of which is the total value of all attorney
and paralegal time expended on such matter from its commencement until the
Valuation Date, and the denominator of which is the total value for all attorney and
paralegal time expended on such matter from its commencement until its conclusion.
Fees for statutory fee probate estates shall be prorated in the same manner, after
taking into account any partial payments. Payments due hereunder shall be made
within thirty (30) days after receipt by the Partnership of any payments for such
matters.
(d) Attached hereto as Exhibit B is the calculation of the
payment to a hypothetical Terminated Partner whose termination occurs in December,
1 993. Each partner acknowledges that he or she has reviewed said Exhibit B and
understands how such payment was determined.
8.5 As used in this Article 8, a Terminated Partner's Percentage shall be
that existing at the time of termination. A Terminated Partner's Percentage shall not
9999/408.N2
11/13/95 16.
1167
be increased as a result of the termination of any other partner during the same fiscal
year.
8.6 (a) Only a Terminated Partner who has been a member of the
Partnership for a period of forty-eight (48) months or more prior to termination shall
be entitled to full payment under this Section 8 for the Terminated Partner's interest
in accounts receivable and contingency matters of the Partnership as of the date of
termination.
(b) With respect to a Terminated Partner who has not completed
the aforesaid 48 month period, the following schedule of percentage vesting in
accounts receivable and contingency matters shall apply:
NUMBER OF COMPLETE MONTHS AS PARTNER VESTING
0-5 0%
6-12 20%
12-24 40%
24-34 60%
36-48 80%
In the event that a Terminated Partner is not entitled to full payment for the
Terminated Partner's Percentage in accounts receivable and contingency matters, then
such partner's responsibility for liabilities, either fixed or contingent existing prior to
said Terminated Partner's entry into the Partnership shall be limited to the amount of
his/her vested percentage. However, said Terminated Partner shall be responsible for
9999/408.N2
11/13/9S 17.
1168
any and all liabilities arising on or after said Terminated Partner's entry into the
Partnership until the date of such partner's termination.
8.7 The Partnership shall pay for the purchase of the Terminated Partner's
interest (i.e., the Purchase Price) as follows:
(a) 80% of the estimated Purchase Price shall be paid in the form of
monthly installments of $7,500^. beginning at the end of the tirst month following
termination, including interest at the prime interest rate as announced on the first day
of each calendar quarter by The Wall Street Journal on the reducing balances of the
Terminated Partner's capital account, but without interest on the balance of any other
amounts owed to the Terminated Partner. The first payments made to the Terminated
Partner shall be applied toward the purchase of the Terminated Partner's capital
account.
(b) The final 20%, adjusted to reflect actual receivables and any other
appropriate updates to the calculation, shall be paid on the first anniversary of the
termination date.
(c) Notwithstanding anything herein to the contrary, however, in no
event shall the Partnership be obligated to pay in the aggregate under Section 8.7(a)
more than (i) $7,500 per month to Terminated Partners during such time as the
Partnership is not making payments to any other Terminated Partners whose
termination date precedes the date of this Agreement, or (ii) $10,000 per month
during such time as the Partnership is making payments to other Terminated Partners
whose termination date precedes the date of this Agreement. If the monthly payment
9999/408.N2
11/13/95 18.
1169
to Terminated Partners would exceed $7,500 or $10,000, as applicable, but for the
immediately preceding sentence, such monthly payments shall be reduced pro rata,
(d) Notwithstanding the foregoing, the Partnership may elect to pay
the Purchase Price owed to a Terminated Partner by assigning to him an interest
(which may be less than 100%) in one or more receivables not older than 60 days
from clients of the firm which puthorize the transfer of any of their files to the
Terminated Partner.
8.8 For purposes of determining the Terminated Partner's interest in the
Partnership, other than as specifically provided above, no adjustment shall be made
to the book value of the fixed assets, including but not limited to art, equipment, or
tenant improvements and intangibles owned by the Partnership. In addition, the
omission of any provision in this Article 8 for valuation of Partnership goodwill and
work in progress (other than contingency matters) is deliberate. Each partner
knowingly waives the right to receive payment on termination as a partner any amount
for such partner's interest in (i) the goodwill of the Partnership, and (ii) the work in
progress of the Partnership (other than as provided herein).
8.9 All payments under Section 8.3(a) above to a Terminated Partner are
intended to be payments for the Terminated Partner's interest in the Partnership
property under Section 736(b)(1) of the Internal Revenue Code of 1 986 as amended.
All payments for such Partner's interest (other than such partner's capital account)
under Section 8.3(b) and 8.3(c) are intended to be income payments under
Section 736(a) of the Internal Revenue Code of 1 986 as amended. The partners agree
9999/40S.N2
11/13/9B 19-
1170
not to take a position inconsistent with this Section in relation to their individual
federal and state income tax returns with respect to payments under this Article.
IX.
LIFE AND DISABILITY INSURANCE
9.1 The Partnership may e^Jts expense carry life and disability insurance on
each partner naming the Partnership as beneficiary in any amount to reduce the
burden on the Partnership for the payments to the partner's estate and to compensate
the Partnership for the loss of the partner's services. The estate of a deceased partner
shall have no interest in such insurance proceeds. Larger amounts of insurance may
be carried by a partner at his/her discretion and at his/her expense. In addition, in the
event that the Partnership carries insurance on a partner and designates as the
beneficiary the deceased partner's estate or heirs-at-law, then the amount of such
payment to such beneficiary shall be deemed for purposes of this Agreement as a
credit against the Partnership's obligation to pay the purchase price of a Terminated
Partner's interest.
X.
SPECIAL PROVISIONS
10.1 Notwithstanding anything herein to the contrary, it is agreed that with
respect to Allen E. Broussard, (i) his entire compensation, including payments, if any,
upon withdrawal shall be fixed from time to time by the Compensation Committee
y X X
9999/408.N2
11/13/95
20.
1171
TO 36 /rOJUSTED FOR ACTUAL IS94 RECEIPTS ON RECEIVABIES AS Of 12/31/93 ANO VALUE OF
CONTINOENCr ANO STATUTORY FEE PROBATE MATTERS ON THE BOOKS AS OF 12/31/93.
Per paragraphs 8.3 and 8.4 of Partiwnhip Agneinant at of January 1, 1994
Partnarahlp Valuation For A 1YFICAL PARTNER
Valuation Date: 12/31/93
Effective Ownenhlp S a< of 1/1/93: X382%
Collectible Fees Receivable at of Valuation Date:
XSOWNE
Ifa'-'Cno holf <1/I) of tre Term nat'd PalWi®
*/r.*« Ofthe Voluotian Oow
' Pannofthip has ehher^^tKedl^
X ''s of ite,OOClvAiclpu^m^
J ony«bTrg«d<)Sti'<i'^nSjfPi
! b« reduced by <i^ ofMur^S
ty proVKled thet aalif purfi^
fT^«ii«^cBpTteUK^cou6tii*Ip*J^
For purposes of this iduttration GabiCtiea were taken from 12
Item
a Month's Rent
3 Month's Equipment Lease
Totel Non Balance Sheet Liabilities:
AT OWNERSHIP PERCENTAGE =
NET VALUE AS OF:
^,4(bl Accounn receivable. v4«r««i!i!ij hertin^^
^ua!r>o client costs Mvanced) rendered b^tlKJ^^
^^^fctlw Valuation date, to the extentliia^^"^'^^^
^^mfttliiftheVatuationOate ■
For purposes ol this estimate, this value was calculated as: Total fees receivable al 12y3I/9 3 ((2.163,6831
leas an over 120 days past due (749.7401: the actual payout wia be based on doUars collected in
1994 on recehrables as ol 12/31/93.
NOTE: Shaded i
i quoted directly from Partnership Agreement.
EXHIBIT B
1172
Nomination Report
ncpan luqmrtd by tite EOitcM
Kfff>mAatifl9»9.PubLNo.
101-194. nntmberiO. 1919
(SV.S.C.App.4.Sec Ul-lli)
I* Pcfioa Rcportint (Last fi
Breyer, Charles R.
r.Jtnr, middle InUal)
2. Crart or Oftanlxatiaa
U.S. District Court
N.D. of California
3.Datceritc|iait
07/25/1997
i. kepoctiiit Mod '
01/01/1996
la
06/30/1997
4. Too (AnIcU mjudget Indlaac aca\K or
untor aatus; magtaraie Judge* tndtcau
^- or pcn-limt)
OS District Judge, Nominee
5. Report IVpe (duck type)
X No«J«.tioo, DM 07mtUl17
7. ChanUicfi or Office Address
222 Kearny Street, 7th Floor
San Francisco, Ca. 94108
8. On the basis of the loforputioa ronfifafd la lUs Report end way
mmfificatioas pertilnlnt thereto. It b fai niy opinion, la complUuicc
%viUi opplicsble lam and regnlatinm.
Reiiewinf Officer
lUIVKTANT NOTES: The Imtnictlonx accompanyint Ms form mua bt JdlUmtd. CompUu all para,
duektng the NONE box for «athiecttOH¥4\ert you have r\oreporubUU\formadan. Sgn on the lass page.
NAME OF ORGANIZATION / ENTITY
I. POSITIONS (Kepoitlng Indlvlduol only; lee pp. 9-n tiflnjtructloas)
POSITION
NONE (No reporuble posilioiu.)
^ Partner Coblentz, Cahen, McCabe 6 Breyer (CCMSB)
2 Trustee
Edward 6 Dorian Goldstein Trust
Helen Roberts Trust
n. AGREEMENTS ateponlng individual onfy; tee pp.l4-l7tirtial7uetlons.)
DATE PARTIES AND TERMS
n
NONE (No fcpoitable igreemenu.)
I 12/31/97
2 Current
Termination Agreement - CCM&B (no control)
CCMGB - Pension and Profit Sharing Plan
in. NON-INVESTMENT INCOME
DATE
□
NONE (No repOfUble ooo-iovetfineBC in
(Reporting Individual tmd spouse; tee pp. 19-23 o/tnstruettons.)
PARTIES AND TERMS
City Arts & Lectures, Inc. (S)
GROSS INCOME
(youn. no! cpotue'i)
3 1995
CCMfiB partnership income
City Arts & Lectures (S)
COl&B partnership income
450,000.00
A30.000.00
1173
HNANCIAL DISCLOSURE REPORT Breyer, Charles R.
I 07/25/1997
VII. Page 4 INVESTMENTS and TRUSTS
— tncamc, vtdue, Inmsaetioni (Unetudcs those oftpoase end
dependent cMldren. Set pp. J7-S4o/tnstnsctions.J
A.
Deacripltoa of Asset*
Indlcau m^rt appUccbU, oviner of
ihe esstt by using du partnthetical
B.
Income
during
period
C.
Grass value
SI end or
repodiflf
period
0.
Tniissctioas during reponin; period
Ui^vtduat end tpouse, '(Sj'Jorup-
tnae «¥mnJtlp by spouie, '(DC) '
Place '00 ' (tfUr rach asset
exempt from prior disclosure.
(1)
Am.
Cnic
(A-
H)
(2)
Type
(«.!..
RMOr
iottml)
(1)
Value
Code
a-n
(J)
Value
Method
Code
«}-W)
(1)
TjTK
(e.f..
buy, seU,
meixer,
redemp-
tion)
If nM etenipt bom diackMure 1
(2)
Date:
Monlli-
Dsy
0)
Value
Code
a-P)
«)
Osln
Code
(A-H)
(5)
Identity of
buyer/seller
Cr private
iranssction)
NONE (no refKHUble lacoincasseu, or
traasaclioos}
EXEMPT
S2 Condo, Silverado, Callfornlji
None
N
H
53 Apartment, Comstock Apartments,
San Francisco, California
None
0
H
5< Charles Breyer 40lk Account
S5 Hlqhmark Money Market Fund
A
Dividend
K
T
S6US Treasury Strips, Due
11/15/2000
None
K
T
51 US Treasury Strips, Due 2/15/2001
None
M
T
Se US Treasury Strips, Due 5/15/2001
None
K
T
59 Alia Sub. Deb. 5. 0001, due
5/01/2006
B
Interest
K
T
60 Masco Corp 5.500%, due 2/15/2012
B
Interest
K
T
61 Park Electro Chem 5.5001, due
3/01/2006
B
Interest
K
T
62 TCI communications, preferred
stock
A
Dividend
K
T
63Abbott tabs, conmon stock
A
Dividend
K
T
64 Aictouch Communications, common
stock
None
K
T
65 Allegiance Corp, common stock
A
Dividend
K
T
66Afflerlcan Greeting Corp, common
stock
A
Dividend
K
T
67 Amerltech Corp, common stock
A
Dividend
K
T
68 AMP Inc, common stock
A
Dividend
K
T
lliicA3ainCoila:A-tl.000orlas B-SI.0OI-SXJO0 OS2J0|.S}.000 O-$3.00l-$l3.000 E-SI5.00I-S50.000
(C<iLBI.D4) F-S30.0OI-SI0O.0O0 0-SI 00.00 l-t 1.000.000 HI -SI, 000.00 l-S3.000.000 H]-S5.000.00l ormon
]VaICo<lec J-SI 3.000 or tea K-SI3.aOI-S30.000 L-J50.00I -SI 00.000 M-SI00.0ai-S130.000 N-S25a,OOI-$500.aOa
(ColCl.D3) O-S300.001-Sl.000.000 PI -SI. 000.00 1-S3.000.a00 Pl-$5.000.00l-$23.000.000 P3-S23.a00.0ai-S30.000.0a0 P4-S30.aOO.a01 or more
3ValMlhColec Q-Appnisal RH^M (real cslaU only) S-AascsancM r-CoMMtiba
(ColCJ) U-BookVd»e V-OOier W-&»iinatel
1174
CHARLES R. BREYER FINANCIAL STATEMENT— NET WORTH
Assets
Cash on hand and in banks
$100,000
U.S. Government Securities
None
Listed securities (see schedule)
$286,050
Unlisted securities (see schedule)
$920,000
Accounts and notes receivable:
Dues from relatives and friends
None
Due from others
None
Doubtful
None
Real Estate Owned
$3,007,500
Real estate mortgages receivable
None
Autos and other personal property
$75,000
Cash value-life insurance
$97,500
Other assets — itemized:
Profit-Sharing Sharing Plan
$1,285,000
Total Assets
$5,771,050
1175
Contingent Liabilities
As endorser, comarker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
Other special debt
No
No
No
No
No
Liabilities
Notes payable to banks — secured None
Notes payable to banks — unsecured None
Notes payable to relatives None
Notes payable to others $260,000
Accounts and bills due $10,000
Unpaid income tax None
Other unpaid tax and interest None
Real estate mortgages payable — see schedule $1,1 19,000
Chattel mortages and other liens payable None
Other debts None
TOTAL LIABILITIES $1,389,000
Net Worth
$4,382,050
1176
General Information
Are any assets pledged? No, except for mortgages
Are you a defendant in any suits or legal actions? No
Have you ever taken bankruptcy? No
1177
PHARLES BREYER
ATTACHMENT To FINANCJAL STATEMENT
AS OF JUNE 36. 1997
USTEO SECURITIES:
CAUF PUBUC WORKS COLLEGE SAVINGS PROGRAM
WESTERN INVESTMENT REAL ESTATE TRUST
NIKE
BAYVIEW FEDERAL
RRST BANK SYSTEMS
COKE COLA
PACIFIC GAS AND ELECTRIC
CAUF ST DEPT OF TRAN SER A
135,000
7.500
1.200
13,000
46,600
12.000
26,400
44.350
286,050
On-listed Securities :
FRESNO INDUSTRIAL PARK, GENERAL PARTNERSHIP
AIRPORT COUSEUM, UMTTED PARTNERSHIP
392 FALLON STREET. GENERAL PARTNERSHIP
BACHARACH RAPHAEL, GENERAL Partaershlp
675.000
15,000
15,000
15,000
REAL ESTATE
920.000
PERSONAL RESIDENCE. SAN FRANCISCO
SECOND HOME, LARKSPUR
SKI CABIN. NORDEN
COMMERICAL RENTAL, FRESNO
1,950,000
950,000
7.500
100.000
REAL ESTATE LOANS
3.007.500
.PERSONAL RESIDENCE. SAN FRANaSCO, Ist Nationwide Mortgage
.SECOND HOME. LARKSPUR, Countrywide Home Loans
COMMERICAL RENTAL, FRESNO, Wells Fargo Bank
FRESNO INDUSTRIAL PARK. GENERAL PARTNERSHIP. BREYER SHARE,
Roberts-Packer partnership interest
507.000
407,000
20,000
185,000
1.119,000
U78
UNITED STATES TAX COURT Jq ^^V^
s
^84
Docket No. 13834-84
CHARLES R. BREYER and
SYDNEY GOLDSTEIN,
Petitioners,
V.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.
ANSWER
THE RESPONDENT, in cUiswer to the petition filed in the
cibove-entitled case, admits, denies and alleges as follows;
1 and 2. Admits.
3. Admits, and alleges for clarification that the
negligence penalty is asserted pursuant to the provisions of
I.R.C. §6653 (a) of the Internal Revenue Code of 1954.
4. Denies.
5. (A) (1) Admits.
(2) Denies.
(3) Admits.
(4) Denies.
(B) (1) Denies.
6. Denies.
7. FURTHER ANSWERING the petition, respondent alleges
that the claimed charitable contribution is disallowed because
petitioners have not satisfied the provisions of either I.R.C.
i 170(f) (3) (B) (iii) or I.R.C. § 170 (h) (4) (B) (ii) in that
petitioners have not substantiated that the building located
1179
at 2661 Clay Street, San Francisco, California is located
in a restricted historic district (as defined in I.R.C. §
48(g) (3) (B) ) and is certified by the Secretary of the
Interior as being of historic significance to the district.
8. FURTHER ANSWERING the petition, the respondent
alleges that the petitioners' request for attorneys' fees
is premature because the petitioners have not established
their status as a prevailing party as required by section
7430 (a) of the Internal Revenue Code of 1954 and Rule
34 (b) of the Rules of Practice and Procedure of the
United States Tax Court and that Rule 34 (b) also provides
that a claim for reasoneible litigation costs shall not
be included in the petition in a deficiency or liability
action.
WHEREFORE, it is prayed:
1) That the relief sought in the petition be denied;
2) That the deficiency in income tax for the taxable
year 1980, as set forth in the statutory notice, be in all
respects approved;
3) That the addition to tax for the taxable year 1980
under the provisions of I.R.C. § 6653(a), as set forth in the
statutory notice be in all respects approved.
-2-
1180
4) That the Court determine that the petitioners*
request for attorneys' fees under I.R.C. § 7430 is premature.
FRED T. GOLDBERG, JR.
Chief Counsel
Internal Revenue Service
Dated: JUL 0 3 1984
By:
(S»gned) Eugene H. Ciranni \ £?Y—
EUGENE H. CIRANNI
Assistant District Counsel
OF COUNSEL:
BENJAMIN C. SANCHEZ
Regional Counsel
THEODORE GARELIS
Attorney
Internal Revenue Service
Two Embarcadero Center, Suite 900
San Francisco, California 94111
Tel. No. (415) 556-7855
-3-
1181
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing paper
was served on Jeffry A. Bernstein, Esq. , by mailing the same
oi^ JUL 0 3 1984 in a postage-paid wrapper addressed to
him at Coblentz, Cahen, McCabe & Breyer, 35th Floor, One
Embarcadero Center, San Francisco, California 94111.
This is to further certify that the original of the
aforementioned paper was mailed to the Tax Court on
JUL 0 S 684
Dated: jul o3 1984
THEODORE GARELIS
Attorney
1182
UNITED STATES TAX COURT
Charles R. Breyer and
Sydney Goldstein,
Petitioners,
vs.
Commissioner o£ Internal Revenue,
Respondent .
F'
UNITED STATES
TAX COURT
n n (73
'OCT 2 1985
Docket No. 13834-84
PETITIONERS' MOTION FOR CONTINUANCE
Petitioners Charles R. Breyer and Sydney Goldstein, pur-
suant to Rule 134 of the Rules of the Tax Court, request the
Court to grant a Continuance in the above-captioned case and
state the following as reasons therefor:
1. This case has been calendered at the session of the
Court beginning November 12, 1985 in San Francisco, California;
2. Petitioners have met with Mr. Ken Laverty, IRS
Appellate Conferee and in response to the meeting Petitioners
have been actively obtaining various factual material to support
their position and to clarify the issues. These materials have
been submitted to the IRS, but petitioners need additional time
to obtain other supporting material.
3. This case contains complex factual issues including
an issue regarding the valuation of property contributed to a
qualified charity. Negotiations are in progress with the IRS
2934-001
U.S. TAX COURT
GRANTED
OCT 0 4 1985
(Sijped) ARTHUR L. NIMS,
JUOCt
1183
Appellate Conferee and it would be an unnecessary utilization of
the resources of the Court and of counsel were this case to be
tried at this time rather than allowing the parties the oppor-
tunity to settle.
4. Counsel for Petitioners will not be available for
trial since he will be out of the country on a business trip
conunencing the end of October and extending through the trial
date.
5. This motion was discussed with Mr. Ken Laverty, IRS
Appellate Conferee and he has indicated no objection to this
Continuance being granted. Counsel for Respondent has indicated
that he is opposed to a Continuance being granted.
6. Petitioners have not received any prior Continuance
of the trial in this case.
7. In the event an adverse decision is proposed by the
Court, Petitioners request a telephone conference with the Court.
For the foregoing reasons, it is respectfully submitted
that the Petitioners cannot adequately prepare for trial nor ade-
quately present its case if this matter should remain on the
2.
2934-001
1184
November 12, 1985 trial calendar. Therefore, the Motion should
be granted.
Dated: September 30, 1985
Mfry A. Bemstem
Je£fry A. Bernstein, Counsel
for Petitioners
COBLENTZ, CAHEN, McCABE & BREYER
35th Floor, One Embarcadero Center
San Francisco, California 94111
(415) 391-4800
3.
2934-001
1185
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing
paper was served on Benjamin C. Sanchez, Esq. and Theodore
Garelis, Esq., by mailing the same on September 30, 1985
in a postage-paid wrapper addressed to them at Internal
Revenue Service, 160 Spear Street, San Francisco, CA 94105.
This is to further certify that the original of
the aforementioned paper was mailed to the Tax Court on
September 30, 1985.
Jefhy A. Bernstein
Dated: September 30, 1985 JEFFRY A. BERNSTEIN
Attorney
1186
CHARLES R. BREYER and
SYDNEY GOLDSTEIN
%. ^^^^
'U.
^
■^SX
Docket No. 13834-8A
Pet Icloners,
V.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.
DECISION
Pursuant to agreement of the parties in the above-entitled
case, it is I
ORDERED and DECIDED: That there is a deficiency in income
tax due from the petitioners for the taxable year 1980 in thej
amount of $4,704.00.
That there is no addition to the tax due from the petitioners
for the taxable year 1980, under the provisions of section 6653(a)
of the Internal Revenue Code of 1954.
(Signed) SAMUa B. STERfiETT
Judge.
Entered: <(0V 2 5 t985
It is hereby stipulated that the Court may. enter the foregoing
decision in the above-entitled case.
It is hereby stipulated that, effective upon the entry of
this decision by the Court, petitioners waive the restrictions
contained in section 6213(a) of the Internal Revenue Code of
1954 prohibiting assessment and collection of the deficiencies
(plus statutory interest) until the decision of the Tax Court
has become final.
By:
FRED T. GOLDBERG, JR.
Chief Counsel
Internal Revenue Service
^^RNSTEIN
t'Co/yis^el /fdr Petitioner
^ColJlifntfe ,' Cahen, McCabe & Breyer
35rth Floor, One Embarcadero Center
San Francisco, CA 94111
Tel. No. (415) 391-4800
^VV.i.^-^
EUGHNE H. CIRANNI
As^stant District Counsel
Internal Revenue Service
160 Spear Street, Room 504
San Francisco, CA 94105
Tel. No. (415) 974-9271
Dated :
/ i
-^d
Dated:
'//?/ts
1187
UNITED STATES TAX COURT
CHARLES R. BREYER and
SYDNEY GOLDSTEIN,
Petitioners,
COMMISSIONER OF INTERNAL REVENUE,
Respondent.
Docket No.
- \.. kLAA COURT
1303/f--di^
PETITION
Petitioners hereby petition for a redetermination of the
deficiency set forth by the Commissioner of Internal Revenue in
his Notice of Deficiency (Service Symbols: 411 -Field- 90D San
Francisco), dated February 17, 1984, and as the basis for their
case allege as follows:
1. Petitioners are husband and wife with legal resi-
dence now at 2661 Clay Street, San Francisco, California 94115-
Petitioners' Social Security Numbers are as follows:
Breyer - 562-48-3508
Goldstein - 550-66-0013
Petitioners timely filed a joint income tax return for the
calendar year 1980 with the Office of the Internal Revenue
Service at Fresno, California.
//
1188
2. The Notice of Deficiency (a copy of %»hich, including
so much of the statement and schedules accompanying the notice as
is material , is attached and marked Exhibit A) , was mailed to the
Petitioners on February 17, 1984, and was issued by the Office of
the Internal Revenue Service at San Francisco, California.
3. The deficiencies, as determined by the Commissioner,
are in income taxes for the calendar year 1980 in the amotint of
$25,793.00 plus a negligence penalty of $1,290.00, all of which
amounts are in dispute.
A. The determination of tax set forth in the said
notice of deficiency is based upon the following errors:
(A) The Commissioner erred in determining that the
Petitioners are not entitled to a charitable deduction of
$48,000 for a contribution of property because Petitioners
have not established that the property had any value.
(B) The Commissioner erred in determining that
Petitioners are subject to a penalty under Section 6653(a)
(I.R.C.) for negligence or intentional disregard of the
rules.
5. The facts upon which Petitioners rely, as the basis
of their case, are as follows:
(A) (1) Petitioners are the owners of the house
("Property") in which they reside and which Is located at
2661 Clay Street, San Francisco, California.
//
2.
1189
(2) The Property has been determined to be an
architecturally significant structure.
(3) In 1980 Petitioners contributed a
preservation easement interest in the Property to the
Foundation for San Francisco's Architecttiral Heritage
("Foundation"), a tax-exempt public charitable organization
and such contribution was accepted by the Foundation.
(4) The fair market value of the contributed
preservation easement was determined by an independent
appraiser, to be $48,000, which amount was properly deducted
as a charitable contribution by Petitioners in their 1980
income tax return pursuant to Section 170 (I.R.C.).
(B) (1) Petitioners have not been negligent in
their actions nor have they intentionally disregarded the
rules. Accordingly, the imposition of any penalties pursuant
to section 6653(a) is improper.
6. Affirmative Defense.
Respondent's erroneous determination that said
contribution had no value was made without Respondent making any
effort to discuss or meet with Petitioners or their represent-
atives and without reviewing the supporting appraisals and
documentation. Respondent's representatives have denied
Petitioners their right to exhaust their administrative remedies,
resulting in undue prejudice and cost to Petitioners. Such
//
1190
denial of Petitioners' right to exhaust their administrative
remedies is contrary to Respondent's rules and polices.
WHEREFORE, Petitioners pray that this Court may try this
case and determine that there are no deficiencies in income taxes
and that no penalties should be imposed and to give such other
and proper relief, including costs and attorneys fees as in the
premises the Court may deem fit and proper.
Dated: May lj_, 1984
JZFFI
GQPiiENTfz / CAHEN , McCABE St BREYER
One /Enparcadero Center
35th ^loor
San Francisco, California 94111
(415) 391-4800
4.
1191
T&x Year Bidea Def iciencj' Penclty -
Section
&H1
?3(fl)
Deceuciec 31, 1980 S
_25,793.00 S
1,290
.00
s
s
s
s
s
$
s
- ?.
S
s
$
s
s
5
s
s
s
$.
S
s
s
s
s
s
$
s
s
s
I'i^
CEHTIFIED IML Person to Contact:
Charles K. Breyer Hotioes Unit
Syoney Goldstein Contact Telephone NCinfcer:
2661 Qay Street (415) 556-0294
San Francisco, CA 94115
Dear Ta^cpayer:
Vfe have determined that there is a deficiency (increase) in j-our inoorae tax as diown above
This letter is a ICTICE OF DEFlCIENCir sent to you as required bj' law. . Bie enclosed stateaen
dKVS hew we figured the deficiencj'.
If you want to contest tliis deficiency in court before niakijig any peynent, you have 90 day
from tiie above nailing date of this letter (150 days if addressed to you outside of the Unite
States) to file a petition with the United States Tax Court for a reoetencination of the def i
ciency. "Qie petition ^wuld be filed with the United States Tax Court, 400 Secona Street H7.
Washington, D.C. 20217, and the oopi' of this letter should be attached to the petition. TJ:
tine in vrtiich you nust file a petition with the Court (90 or 150 days as the cSase laay be) i
fixed hj law and ihe Court cannot consider your dsg if your petition is filfifl late^ If thi
letter is addressed to both a husband and wife, and both want to petition the Tax Court, hot
nust sign the petition or each nust file a separate, signed petition.
If you dispute not more than $5,000 for any one tax year, a siii^lified procedure is pr<
vided bi' the "Hax Court for sraali tax cases. You can obtain inforraation about this procedure, .
well as a petition fora you can use, bi' writing to the Clerk of the United States Tax Court ;
400 Second Street W., VJashington, D.C. 20217. You should do this pcoiaptly if you intend
file a petition with the Tax Court.
If you decide not to file a petition with the Tax Court, we would ajyreciate it if y
would sign and return the enclosed waiver forrc. This will permit us to assess the d^icien
quickly and will limit the accuraulation of interest. "Hie enclosed addressed envelope is f
your convenience. If you decide not to sign and return the statement and you do not tiiae
petition the Tax Court, t^ie law requires us to assess and bill you for the deficiency after
days from the above mailing date of this letter (150 days if this letter is euldressed to y
outside the United States) .
If you have any questions, please contact the person **ose nane and telepiione nunbef c
shOrm above.
Sincerely yours,
Roscoe L. Egger, Jr.
Conmissioner
Enclosures: '^ "TTjiOml ^^^
Copy of this letter I'dchael Sassi 'T^
Vfaiver District Director ^
Bwelope
P. O. Box 35040, San Francisco, California 94102 Foro 5601 (Rev. 6-79)
Exhibit A
1192
^ It is cctenained that part or the uncertai'cent of t*::: for the taxable
": year(s) shown on Fora 556'i is due to negligence or intentional disrecard
1 of rules end regulations. Consequently r the 5 per centum addition to tas
«i tax provided bi' section 6S53(a) of the Interral Revenue Cede is
': asserted for this year (s) .
1193
Foon 5278
(Rev. M*v ISS2I
0«o*rim«At ot ti»« Tr«4iw«v - Inwrn.. R««««»« &••*.<•
Statement — Income Tax Changes
Rtfturn Form No
/
Hmvmitt ol Taxpiyerdl
p^ Notice ol Oclicrtncv Q Other ttptdtyl
D Settlement Computation
Tax Yean Ended
.
1. Adiimnwnti lo lncom«
*' <LontYl^VJtlorv-^ - nor\-C/i'-.»^
4> 46,ax:-.oo
\
b.
\
c
\
d.
\
«.
\
1.
\
«'
\
2. T«al adjuftfneflts
t' 4ft,CCO..0O
\
3. a. O T«x«W« lnco(n« Q Adiutted grou tneofn«
b. At (hown in: ^ Tia table incono
D Prellmlnarv l«ner O Not«« of delkitncv iS,""""" •• ••'«>
^.,bM.OO
^
4. O Taublt income u ceviud ^ Ta> lebK income
O Adjuttad flrosi Income as revised as revtied
^/y.-^Sf.oo
\
6. Taa Irom Q Tan tables OT4Xfate
(31 Schedule TC icieduies
^ 3^1,263,00
\
6. Allcfnativc ux if ac
\
\
7. Corfcctcdtax liability r'esser of ;.>» 5 or £;
i 3'1,36.'', 00
\
8 Us>
•- fc>»iticrv\ rrn ViO^n-^vi Creciv^
s'o.fxa
\
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1 1 . Total corrected income tax liabilitr >/">* 9 plus tmounit on hnti
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*. ; 5,2'/:?, 00
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13. Increase or (dacrenal in tax Idilltrtnct 6ant«an linn 1 1 and 12/
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/,>10.CO (*25. 103 .00 X 5 %)
Form 5278 (Rev.S«2l
1194
UNITED STATES TAX COURT
WASHINGTON. D.C. 20217
June 3, 1985
CHARLES R. BREXER AHD SYDNEY GOLDSTEIR
Docket No.:
13834-8A
I'etUUmer.
Trial On: Hoveaber 12, 1985
COMMISSIONER OF INTERNAL REVENUE,
Reispandmt.f Trial At: Room 2021, Federal Building
and Courthouse
450 Golden Gate Avenue
San Francisco, California 94102
NOTICE SETTING CASE FOR TRIAL
The parties are hereby notifled that the above-entitled case is set for trial at the Trial Session beginning on
the date indicated above.
The calendar for that Session will be called at 10:00 a.m. on that date and both parties are expected to be
present at that time and be prepared to try the case. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL
OF THE CASE AND ENTRY OF DECISION AGAINST YOU.
Your attention is called to the Court's requirement' that, if the case cannot be settled on a mutually satisfactory basis,
the parties. before trial. must agree in writing to all facts and all documents about which there should be no disagreement.
Therefore, the parties should contact each other promptly and cooperate fully so that the necessary steps can be taken to
comply with this requirement. YOUR FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE
CASE AND ENTRY OF DECISION AGAINST YOU.
If there are a number of cases to be tried, the Court will fix the time of each trial at the end of the calendar call. The
Court makes every effort to suit the convenience of the petitioners in fixing trial times, but because of conflicting requests
received from petitioners, the flnal determination of trial times must rest in the Court's discretion.
(^^^^y^
Clerk of the Court
To: Counsel for Respondent
To:
Jeffrey A. Bernstein
((XBLEHTZ, CAHEN, MC CABE
AND BREYER)
One Embarcadero Center, 35th Floor
San Francisco, CA 9A111
JUW7 J985
Fann40-SF
(October I onn
1195
UNITED STATES TAX COURT
CHARLES R. BREYER and
SYDNEY GOLDSTEIN.
Petitioners ,
COMMISSIONER OF INTERNAL
REVENUE
Respondent .
F
UNITED STATEa
TAX COURT
n n r73
MAY 14 1984
Docket No.-J_333Lj-d'v
REQUEST FOR PLACE OF TRIAL
Petitioners hereby request that trial of this case be
held in San Francisco, California.
Dated: May /( , 1984
Jeffry A. Bernstein, Esq.
Coblentz, Cahen, McCabe 6e Breyer
35th Floor, One Embarcadero Center
San Francisco, CA 94111
PLEASE tTiNiJ ONLY ORIGIWAL' ^HD '
r -;. ' Vi Jr PEilliOM {RULE 34(d))
C. LESIGNATION OK Plj\CE OF TRIAU
(RULE 140(b)). . ..
U.S. TAX COURT '«tfi|
GRANTED '(
f^AY 1 4 1SS4
mmON SERVED ON RESPONOFWr_
FILING FEE ALSO ACKHOWLEDGEO
MAY 18 1984
1196
. X^ 1^ d ^t^ f'rn I ned Th^tft^^ no<^<^!~^ <^OT^'fc"^"'P^ olgn'meei
6t> A. cmrtfotbie. Gpnmbuho/i in -ftTe. amconf- of- •»4g,ooo ha
JO.,...HTe. Q/TlCOfTr of >4-g^.OOQ,
1197
SENATE JUDICIARY COMMITTEE OUESTIONNATRF,
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used)
Frank Cadmus Damrell, Jr.
Address: List current place of residence and office address(es)
Office: Damrell, Nelson, Schrimp, Pallios & Ladine
1601 I Street, Fifth Floor
Modesto, California 95354
Home: Modesto, California
Date and place of birth.
July 6, 1938, Modesto, California
Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Lidwiena Josephina Dykzeul Damrell
Housewife and volunteer at Parent Resource Center (county-wide agency which serves
families to prevent child abuse and to provide parent and family mentoring).
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
College and Law Schools Attended Dates Degree Received
University of Santa Clara* 1 955-60
University of California, Berkeley 1960-61 B.A., 1961
Yale Law School 1961-64 L.L.B., 1964
*Entered a Roman Catholic Seminary, Sacred Heart Novitiate, which was affiliated
with Santa Clara University, to study for the priesthood. I remained a student there
until leaving the seminary in 1960 to complete my undergraduate studies at U.C.
Berkeley.
1198
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
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.
1962 E. & J. Gallo Law Department, Modesto, CA (summer)
1963 Community Progress Inc. Legal Service, New Haven, CT (summer)
1 964 State of California Attorney General's Office, Law Clerk
1 965-66 State of California Attorney General's Office, Deputy Attorney General
1966-68 Stanislaus County District Attorney's Office, Deputy District Attorney
1 968-70 Law Office of Frank C. Damrell, Jr., Sole Practitioner
1 970-76 Damrell & Damrell, Partner
1 976-90 Damrell, Damrell & Nelson, Partner
1 990-present Damrell, Nelson, Schrimp, Pallios & Ladine, President
1 992-present Tlie Shannon Company, Managing General Partner
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.
None
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorar}' 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.
California Bar Association
American Bar Association - Antitrust Section and Litigation Section
Federal Bar Association
Stanislaus County Bar Association
Stanislaus County Women Lawyers' Association
State Bar Disciplinary Hearing Board
Senator Feinstein's Advisory Committee for the United States District Court, Eastern District
of California
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.
1199
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Aside from the California State Bar Association, I am aware of no such organization that is
active in lobbying.
Other Organizations
Sportsmen of Stanislaus, a family athletic club. A copy of its bylaws is attached as Exhibit
"A."
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.
1 965 Supreme Court of California
1 965 United States District Court, Eastern District of California
1 965 United States District Court, Northern District of California
1 965 United States Court of Appeals, Ninth Circuit
1979 United States Supreme Court
1980 United States District Court, Central District of California
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.
Commentary on the Rules of the United States District Court for the Eastern District of
California, which is in the final editing stage for publication in 1997. The publisher is
Michie Parker Publications, P.O. Box 9040, Carlsbad, CA 9201 8-9040. A copy of the draft
is attached as Exhibit "B."
13. Health: What is the present state of your health? List the date of your last physical
examination.
It is excellent. My last physical examination was January 23, 1997.
1200
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
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
signiricant 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.
I spent several years as a member (1973-80) and as Chair (1975-80) of the California State
Consumer Advisory Council, the advisory committee to the State Department of Consumer
Affairs. I was appointed by Governors Reagan and Brown.
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;
I did not clerk for a judge.
2. whether you practiced alone, and if so, the addresses and dates;
Yes, fi-om 1968 to 1970, I was a sole practitioner at 820 12th Street in
Modesto, California.
1201
SENATE JLDICIARY COMNflTTEE QUESTIONNAIRE
Frank C. Damrell, Jr.
the dates, names and addresses of Ian firms or ofiices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
Employer
Damreli, Nelson, Schrimp
Pallios & Ladine
1601 I Street and 1625 I Street, Modesto
Damreli, Damrell & Nelson
1 625 I Street and
911 13th Street, Modesto, CA
Damrell & Damrell
911 13th Street, Modesto
Law Offices of Frank C. Damrell, Jr.
820 12lh Street
Stanislaus County
11 00 I Street, Modesto
State of California
Office of the Attorney General
50 Fremont St., #300, San Francisco
Position
Cit>
Dates
President
Modesto, CA
1990-97
Managing Partner/
President
Modesto. CA
1976-90
Managing Partner
Modesto, CA
1970-76
Sole Practitioner
Modesto, CA
1968-70
Deputy District
Attorney
Modesto, CA
1966^8
Deputy Attorney
General
San Francisco, CA
1965-66
State of California
Office of the Attorney General
50 Fremont St., #300, San Francisco
Law Clerk
San Francisco, CA 1964
What has been the general character of your law practice, dividing it
into periods with dates if its character has changed over the years?
1965-1968
Upon graduation from law school, I spent four years as a prosecutor, first as
a Deputy Attorney General, then as a Senior Deputy District Attorney for
Stanislaus County. As a Deputy Attorney General, I was just assigned to the
Criminal Appeals Division where I was responsible for approximately 50
appeals, including a number of Habeas Corpus Writs. During my last year.
1202
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
I was assigned as the first Consumer Fraud Deputy for the San Francisco
office. In that capacity, I filed several injunctive actions in the San Francisco
Superior Court and conducted evidentiary hearings. As a Deputy District
Attorney, I tried numerous criminal jury trials (including three murder trials).
I also conducted a number of preliminary hearings and misdemeanor juries
as well.
1968-80
I commenced my private law practice as a sole practitioner in 1 968. Initially,
my practice was exclusively trial work. I tried a number of jury and bench
trials, primarily personal injury, criminal defense, and family law matters.
After several years, however, my litigation practice became more business-
related. When my father retired from the Superior Court in 1 970, he joined
me in the practice of law. Soon thereafter, Duane Nelson joined our firm out
of law school. He remains a partner to this day. In 1 980, our firm grew to
ten lawyers with a satellite office in Los Angeles to assist several important
business clients who were headquartered in the Los Angeles area.
1980-1988
By 1 980 several California-based business clients had asked me to assist their
Washington, D.C. counsel. As a result, during this period, I spent
considerable time in Washington, D.C. as an attorney and lobbyist on behalf
of California public and educational entities, agricultural associations, and the
energy and transportation industry. I appeared before both the House and
Senate Agriculture Committees and the House Interior and Senate Energy
Committees and worked with several federal agencies. On several occasions
during this time, I also represented corporate clients before state legislative
committees and state agencies.
I also represented corporations and institutions relating to large capital
projects. The following are some examples of projects in California. I was
retained by the University of California regarding the possible location in
California of the Superconducting Super Collider. This involved
representation of the University with local citizens groups and communities
in San Joaquin County. I also represented the University in its efforts to
obtain fiinding for the project from the State of California, Congressional
support, and a favorable decision from the U.S. Department of Energy. I also
was retained by a New York-based venture capital group to provide legal
counsel for the development of a resource recovery project, which would
incinerate California's waste tires to produce electric energy. It was the
1203
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
largest facility of its kind in the United Slates. Our firm was retained under
my direction to prepare contracts, to obtain local, state and federal permits,
and to work with bond counsel and underwriters counsel regarding the
issuance and sale of bonds to finance the project. The project was
successfully completed. Our fum represented the same client regarding the
development of a resource recovery facility. This one utilized rice hulls and
straw for energy production. I also represented the builder and operator of
the Stanislaus County Waste Energy Facility, the largest of its kind in
California. This facility was constructed in Stanislaus County to bum all
solid waste fi-om the Cit>' of Modesto and surrounding communities. Again,
I directed the preparation of contracts, obtained local and state permits and
assisted bond counsel regarding issuance and sale of bonds to finance the
project. In addition, I was engaged to represent several clients in the
development of severed large real estate projects.
1988-present
Our fuTO now consists of 1 8 attorneys with offices in Modesto, Sacramento,
and Oakdale, California. My law practice is multi-faceted and covers a wide
spectrum of clients and cases. In 1988, 1 decided to devote full-time energy
to my practice in California. While on occasion I represent clients in disputes
with state and federal regulatory agencies, I have generally confined my
recent legal practice for the most part to major litigated matters.
For the last ten years, I have spent virtually all of my time on complex
business litigation in both federal and state courts. My clients include
publicly owned corporations, closely held family corporations, public entities
and individuals. Such clients include wineries, farming enterprises, trucking,
food processing, construction and manufacturing companies, distributorships,
and professional corporations.
Another significant aspect of my trial practice involves litigation relating to
securities fi^ud and antitrust law. I have been both lead counsel and co-lead
counsel in several federal class actions. My clients in these cases include
individuals, as well as private and public entities. Such cases involve an
extensive law and motion practice, as well as comprehensive pre-trial orders
and discovery plans. Essentially, most securities/antitrust litigation is usually
resolved after pre-trial motions, hearings, and extensive discovery.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
1204
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Agricultural associations - Administrative law. Congressional lobbying
Agricultural production companies - Business litigation, administrative law
Construction - Construction and real estate litigation, lender liability litigation
Consumer product manufacturers - Administrative law, business litigation
Food processing - Administrative law, administrative mandamus,
environmental law '
Public entities - Antitrust litigation, state administrative proceedings,
Congressional lobbying
Resource recover>' companies - Administrative law, business litigation,
environmental law
Retail store companies - Business litigation, advertising laws, liability defense
litigation
Wineries - Business litigation, administrative law, state and federal alcoholic
beverage laws and regulations
In addition, from time to time, I represent or advise numerous individual and
business clients I have known for years, some for a lifetime, on a variety of
business-related legal problems.
Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearance in court varied, describe each such
variance, giving dates.
1965-1980
Initially, most of my litigation experience was in state courts and state
agencies. As a state prosecutor and as a private litigator, I appeared
frequently in court on law and motion matters and bench and jury trials.
From time to time throughout this period, I conducted trials in federal court
and represented clients before state appellate courts and in state
administrative hearings.
1980-1988
Through much of the 1980s, I spent considerable time in Washington, D.C.,
on behalf of various clients. As discussed above, during this time period I
was engaged as counsel for a number of major public and private capital
projects. They included several resource recovery projects; a dispute relating
to off-shore oil leases in the Santa Barbara Channel on behalf of a consortium
of independent oil companies; several public power projects undertaken by
local irrigation districts/public utilities; the purchase of Conrail by a major
transportation company; the development and frinding of the
8
1205
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
Superconducting Super Collider by the University of California; the
development of federal marketing orders for California table grapes; and
several large real estate developments. In addition, I also W£is retained to
represent several California agricultural associations and food processing and
manufacturing companies relating to a variety of legal, administrative, and
legislative issues. As a result, for a period of time, my litigation practice was
somewhat limited. Nevertheless, I made a number of appearances on behalf
of clients in state courts and before administrative bodies and occasional!)' in
federal court.
1988-present
I resumed a full-time business litigation practice, which has recently become
primarily focused in the federal courts of the Eastern, Northern and Central
Districts of California. However, since 1988, I have also made frequent
appearances in state court as well.
2. What percentage of these appearances was in:
(a) Federal courts: 20%
(b) State courts of record: 65%
(c) Other courts: 15%
As noted above, my practice has increasingly involved federal court
matters.
3. What percentage of your litigation was:
(a) Civil: 90%
(b) Criminal: 10%
1965-80
In my early years of practice as a prosecutor, all litigated matters were
crimina]. My first several years in private practice 1 also defended a
number of criminal matters.
1980-present
Since 1980 my practice has been virtually all civil in nature.
4. State the number of cases in courts of record you tried to verdict
or judgment (rather than settled), indicating whether you were
A^ Qf.A oo -3n
1206
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
sole counsel, chief counsel, or associate counsel.
Trials as sole counsel - approximately 100
Trials as chief counsel - approximately 1 5
Trials as associate counsel - approximately 1 5
1965-80
During my years as a prosecutor, I conducted numerous jur>' and
bench trials as well as approximately 40 criminal appeals and writs.
In private civil practice the nimiber of trials decreased as their
complexity' grew.
1980-present
Increasingly, I act as chief coimsel with several attorneys assisting me
in ver}' complex matters.
5. What percentage of these trials was:
(a) Jur>: 25%
(b) Non-jur>: 75%
18. Litigation: Describe the ten most signiHcant 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 summar> 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.
1. Bronco Wine Co. v. Bureau of Alcohol, Tobacco and Firearms, el al.
Summar\': In October 1 996, the Bureau of Alcohol, Tobacco and Firearms summarily and
without notice seized 32,000 cases of Rutherford Vineyards brand wine from our
client. I was chief counsel assisted by several law firms in Sacramento, San
10
1207
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Francisco. Washington, D.C. and New York City. The ATF claimed the label was
in violation of 27 C.F.R. 4.39(i) which provides that wine sold under brand names
incorporating the names of viticultural areas must be produced from the viticultural
area. After months of negotiations, Bronco filed an action for injunctive relief
alleging violation of due process of the Fifth Amendment and the federal APA
(Administrative Procedures Act). A hearing was held on a temporar>' restraining
order, and the court denied the application. An amended complaint has been filed
adding the denial of due process on grounds that 4.39(i) violates 1 5 U.S.C. 1 052(a)
(the Lanham Act), which implements the provisions of the recently enacted Uruguay
Round Agreement Act, 19 U.S.C. 3501, et seq. There has been considerable
discovery. I have conducted virtually all depositions and most hearings on behalf of
the plaintiff The challenge to the federal wine label regulations based on U.S.
trademark law has attracted wide-spread interest throughout California's wine
industr>' and has been discussed in various trade journals and magazines. As a result,
the industr)' has formed a special committee to study the matter as the issue affects
literally hundreds of wine labels.
a. 1 996-present
b. Counsel for Plaintiff
Court: U.S. District Court for the District of California. Eastern District Case No
CV-F-96-6354 REC DLB
Judge: Hon. Robert E. Coyle
c- OppQ?ing CQun?el: Daniel E. Bensing, U.S. Attorney's Office, 1130 O Street,
Fresno, CA 93721, Phone (209) 498-7272
2. Hardy Soderholm and Cheryl Soderholm v. Rubbermaid. Inc.
SMmmarx': This case was filed on behalf of Hardy and Cheryl Soderholm against Rubbermaid,
Inc., in the United States Dismct Court for the Northern District of California for
several hundred thousand dollars for fraud, negligent misrepresentation and punitive
damages. 1 was chief counsel and handled some 30 depositions in California,
Colorado, Ohio, Pennsylvania and New Jersey. I also and handled numerous motions
including a motion to dismiss, summary judgment and some 15 motions in limine.
The jury trial lasted three weeks and resulted in a verdict for the defendant.
Rubbermaid falsely represented to Mr. and Mrs. Soderholm that it supported
Plaintiffs business plan to franchise "Everything" Rubbermaid stores. Upon the
successfiil completion of a test program. Plaintiffs intended to own a number of such
stores themselves. Rubbermaid failed to disclose to Mr. and Mrs. Soderholm its
intention to go into the corporate retail business itself and to use the Soderhohns'
single store as a test for its own corporate program. Rubbermaid withdrew its
11
1208
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
support of the Soderholms" store after they had invested their life savings in the
business plan. The case presented a challenge to this corporation's conduct in
defrauding and misleading these individual entrepreneurs to their substantial
detriment for the benefit of the corporation. Legal issues related to fraud,
promissory estoppel, breach of contract, breach of third party beneficiary contract,
admissibility of hearsay evidence, expert and lay opinion testimony, and character
evidence, determination of the proper measure of damages for fraud and tortious
interference with contractual relations and economic advantage.
a. 1994-1996
b. Counsel for Plaintiffs
Court: U.S. District Court for the District of California, Northern District, Case No.
C94-3583
Judge: Hon. William H. Orrick
c. Opposing Counsel: George E. Leonard, Esq., Shugharl, Thomson & Kihoy, Twelve
Wyandotte Plaza, 120 W. 12th Street, Kansas City, MO 64105-1929, Phone (816)
421-3355
3. Bronco Wine Co. et a!., adw Glen Ellen, ef al.
Summar\': This was a cross-complaint filed in Sonoma County Superior Court on behalf of the
California wine distributor of Glen Ellen wines, the largest selling Chardonnay wine
in America, for wrongful termination of a distributorship, which claimed damages
for failure of plaintiff to honor bulk wine contracts. The case was widely reported
in the wine trade press since it involved important industry issues relating to wine
distributorship and long-term wine supply agreements. I was chief counsel and
conducted virtually all discover}' and motions, as well as the jury trial, on behalf of
the plaintiff. The pre-trial motions included demurrers, motions for injunctive relief,
summary judgment, and some 25 motions in limine. The jury trial lasted three
months and resulted in a verdict on the cross-complaint for $2.5 million, as well as
a verdict against the cross-complainant for several million dollars.
a. 1990-1993
b. Counsel for Defendant Bronco Wine Co.
Court: Sonoma County Superior Court, Case No. 187834
Judge: Hon. Elaine Waters
c. Opposing Counsel: Robert R. Cross, Esq., Broad, Schultz, Larson & Wineberg, One
California Street, 14th Floor, San Francisco, CA 941 1 1-5482, Phone (415) 986-0300
12
1209
SENATE JL^DICIAR'^' COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
4. 5. Martinelli <& Co. v. Department of Conservation, et al.
Surwnao': There was a complaint for writ of mandate and permanent injunction against the
Department of Conservation of the State of California. At issue was enforcement of
a recently enacted Beverage Container Recycling and Litter Reduction Act (knov^n
as the "Bottle Bill") against a major California fruit juice manufacttirer, S. Martinelli
& Co., without hearing or opportunity to explain its legal position that it was legally
exempt from the Bottle Bill. I was chief counsel in this matter. The State contended
Martinelli 's product was no different than a soft drink such as Coke or Pepsi.
Martinelli was ordered to relabel over 300,000 cases of juice which had been
packaged before the enactment of the Bottle Bill. In addition, Martinelli was ordered
to relabel over a million bottles of its products and pay nearly $300,000 in
redemption fees. A hearing was held before Superior Court Judge Cecily Bond in
Sacramento. The case was important to the fruit juice industry. At the hearing I
established that California's Food & Drug Law and parallel provisions of Federal law
exempted undiluted fi^it juice from the definition of "soft drink." As a result, the
court enjoined the enforcement of the Bottle Bill against undiluted fruit juice
products, and Martinelli in particular. 1 was chief counsel in this matter.
a. 1987-1991
b. Counsel for Plaintiff
Court: Sacramento County Superior Court, Case No. 364946
Judge: Hon. Cecily Bond
c- Opposing Counsel: Charles Getz, Esq., Attorney General's Office, 50 Fremont
Street, Suite 300, San Francisco, CA 94105-2239, Phone (415) 703-1308
5. C. Mondavi & Sons v. The Bureau of Alcohol, Tobacco and Firearms, et al.
Sumrpar>': In June 1 997, the Bureau of Alcohol, Tobacco and Firearms (ATF) issued a cease and
desist order against C. Mondavi & Sons, which operates the Charles Krug Winery,
the oldest winery in the Napa Valley. C. Mondavi & Sons does business under the
name CK Mondavi. ATF claimed that CK Mondavi brand wines were labeled in
violation of 27 C.F.R. Section 4.39(k), which is part of the Federal Alcohol
Administration Act (FAA Act). Section 4.39(k) prohibits any statements or
representations on wine labels which indicate an origin other than the true place of
origin of the wine. Since 1995, CK Mondavi brand wines have been made from
grapes grown throughout the State of California, however, the labels contain
references to the "Napa Valley," the location of the winery. As a result of the ATF's
cease and desist order, the Mondavi family was prohibited from selling their CK
Mondavi brand wines in interstate commerce and conducting any further bottling
activities at a substantial loss to the winery. After several unsuccessfiil attempts at
13
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
resolving the matter through discussions with ATF, C. Mondavi & Sons filed an
action in the United State District Court for the Northern District of California for
injunctive relief alleging violations of the due process clause of the Fifth Amendment
and the federal Administrative Procedure Act (APA). The hearing on Mondavi's
application for a temporarj' restraining order was held on Thursday, July 3. The
Court postponed its ruling on the TRO and continued the matter pending further
settlement discussions between the parties. The parties have now negotiated a
settlement of most issues and, in all likelihood, will reach a final settlement
agreement within the next month. I have conducted all of the settlement negotiations
wth the ATF and its counsel.
a. 1997
b. Counsel for Plaintiff
Court: U.S. District Court for the District of California, Northern District, Case No.
97-2375 SBA
Judge: Hon. Saundra B. Armstrong
c. Opposing Counsel: Joann Swanson, Esq., U.S. Attorney's Office, Northern District,
450 Golden Gate Avenue, San Francisco, CA 94102, Phone (415) 556-1 126.
6. Cal-Lina v. Congleton
Summar\': This involves a complex serious of business transactions between Cal-Lina, Inc. and
Vem and Carol Congleton regarding the purchase of real property, a loan of
$325,000.00 by Cal-Lina to the Congletons and an agreement to develop and market
a patented braking system for the trucking industry. I was chief counsel in the matter.
Eventually, the Congletons filed for protection under the bankruptcy laws. In
addition to claims filed b)' Cal-Lina against the debtors, Cal-Lina sought relief fi-om
an automatic stay to pursue its rights to enforce a state court judgment for unlawful
detainer. A hearing was held first to determine whether the debtors' legal and
equitable interest in the real property was terminated under 1 1 U.S.C. 365. The
judge granted relief fi-om the automatic stay, and trial was held for claims for
possession of the real property in question and claims against Cal-Lina for certain
monies owed to the debtors. Cal-Lina prevailed on all issues.
a. 1988
b. Counsel for Cal-Lina
Court: U.S. Bankruptcy Court for the Eastern District of California, Case No. 988-
02504, M88-0619
Judge: Hon. J. W. Hedrick, Jr.
14
1211
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
c- Qpposine Ccwnsgl: Cliff McGhee, Esq., 1130 L Street, Suite B, Modesto CA
95354, Phone (209) 577-8000
7. MidCal Aluminum. Inc. v. Baxter Rice as Director of the Department of Alcoholic Beverage
Control of the State of California: California Retail Liquor Dealers Association. Intervenor
Summ9ry: This case was a mandamus action filed by MidCal Aluminum, a subsidiar>' of E. &
J. Gallo Winery, challenging Califomia's Liquor Fair Trade Law as a violation of the
Sherman Act I was sole counsel through the state appellate process and then ser\'ed
as co-counsel when the petition of writ of certiorari was filed in the U.S. Supreme
Court. The essence of the challenge was that the State of California had no vital
interest or oversight of setting the retail price of wine. Essentially, absent a clearly
articulated state policy, the California wine retailers were engaging in price fixing in
violation of Section One of the Sherman Act. After filing of briefs by Petitioner, the
State of California, and Intervenor, California Retail Liquor Dealers Association, and
after oral argument, Justice Robert Puglia issued an alternative writ of mandate
commanding the stay of enforcement of the wine price posting provisions of the
California Alcoholic Beverage Control Act. After further briefing and oral argument,
the appellate court rendered a imanimous decision finding Califomia's Alcoholic
Beverage Control Law in violation of the Sherman Act and issued the peremptor}'
writ. {MidCal Aluminum. Inc. v. Rice (1979) 90 Cal.App.3d 979). A petition for
rehearing was denied. Inter\'enor then petitioned the California Supreme Court for
hearing. Upon issuance of a stay by the intermediate appellate court, Intervenor then
petitioned the United States Supreme Court for issuance of a writ of certiorari. The
Supreme Court issued the writ. Jack Owens of the law firm of Orrick Herrington
became lead counsel at this time. Mr. Owens argued the case before the Supreme
Court. In an opinion rendered by Justice Powell, the United States Supreme Court
found that California Alcoholic Beverage Act violated the Sherman Act. (California
Retail Liquor Dealers Association v. MidCal Aluminum, Inc., 445 U.S. 97 (1980)).
MidCal is the landmark antitrust case defining the state action doctrine.
a. 1978
b- Co-counsel for MidCal Aluminum: Co-Counsel: Jack Owens, E. & J. Gallo Winery,
P.O. Box 1 130, Modesto, CA 95353 (209) 579-3791
Court: Court of Appeal of the State of California, Third Appellate District, Case No.
3 CIV 17992
Judge: Hon. Robert Puglia
c. Opposing Counsel: Attomevs for Defendant: L. Stephen Porter and George J. Roth,
Attorney General's OfRce, 555 Capitol Mall, Suite 350, Sacramento, CA 95814,
Phone (916) 445-6221; Attomev for Intervenor: William T. Chidlaw, Point West
15
1212
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Executive Centre, 1455 Response Road, Suite 191, Sacramento, CA 95815, Phone
(916)920-0202
8. G W. Hume Company, Zack C. Monroe, et al. v. Merchants Refrigerating Company of
California: Intervenor: California Freestone Peach Assn.
Summan': My client, G. W. Hume Company, was a major cannery which had filed for
protection under Chapter XI of the Bankruptcy Act after an action had been filed in
Superior Court alleging negligence in the processing of a large quantity of peaches
forfi-eezing. I was sole counsel for Hume. Hume was one of California's primary
processors of canned peaches. G. W. Hume delivered over 80,000 cases of canned
peaches to be quick frozen at Merchant Refiigerating Company for delivery to
various U.S. miliiar)' installations. This represented a significant portion of the 1970
peach crop. The peaches spoiled during the fi-eezing process. As a result, claims
were filed by the California Freestone Peach Association against Hume for
improperly canning the peaches . After Hume filed for bankruptcy protection, Hume
filed a claim for damages negligence against Merchants for failure to properly fi-eeze
the peaches. The matter was litigated over a period of several weeks. Several food
processing experts testified, and numerous witnesses testified on both sides as to
harvesting, processing and freezing of peaches. The court found in favor of Hume
and found Merchants liable for damages caused by its negligence and breach of
implied warranty.
a. 1971-72
b. Counsel for Plaintiff
Court: Stanislaus County Superior Court, Case No. 1 1 1 123 and U.S. Bankruptcy
Court Case No. 19189
Judge: Hon. William Zeff (Superior Court) and Hon. Fred Reyland (Bankruptcy
Court)
c. Opposing Counsel: Attorney for Defendant: Jerome F. Downs, Thornton, Taylor &
Downs, 31 1 California Street, San Francisco, CA 94104, Phone (415) 421-8890;
Attorney for Intervenor: William J. Bush, Hanson, Bridgett, Marcus & Jenkins,
Citizens Building, One Keamy Street, San Francisco, CA 94105, Phone (415) 781-
5500
9. Ronald Davis, et al. v. Del Puerto Hospital, et al.
Summar>': I was Plaintiffs counsel for the family of a 16-year-old girl who was found dead in
a bam on the family ranch the morning after her release fi-om the hospital for injuries
sustained in an automobile accident. I was plaintiffs trial counsel. The cause of
death was determined to be trauma to the brain. The hospital's defense was that the
16
1213
SENATE JUDICIARY COMMITTEE QUESTIONTVAIRE Frank C. Damrell. Jr.
r
young woman died as a result of a fall in the bam or foul play. After extensive
discovery and a lengthy jury trial, the jury found 9 to 3 for the hospital.
a. 1978
b. Counsel for Plaintiffs
Court: Stanislaus Superior Court, Case No. 133579
Judge: Hon. Gerald V. Underwood
c. Opposing Counsel: Mario Beltrami, McCormick, Barstow, Sheppard, Coyle &
Wayte, 400 Guarantee Savings Building, 1171 Fulton Mall, Fresno, CA 93721,
Phone (209) 442-1 150
10. Sueanne Smith, et al. v. Nicanor Villanueva Munoz, et al.
Summar\': The Plaintiff was a teenager who was a passenger on a motorcycle operated by one
of the defendants. I was plaintiffs trial counsel. The operator lost control of the
motorcycle in an effort to brake the vehicle. As a result, Sueanne Smith's right leg
was caught under the motorcycle and was extensively damaged. The use of her right
leg was permanently impaired. Defendant Munoz had limited assets and insurance;
however, during the course of discovery, it was disclosed that the motorcycle had
been repaired just prior to the accident by the Sears Roebuck Automobile Repair
Center. The trial turned on the issue of causation of the repair work on the apparent
malfunction of the motorcycle. After extensive testimony of various witnesses,
including plaintiffs expert engineers, plaintiff rested. Defendant Sears Roebuck
decided to pay Plaintiffs demand for damages of several hundred thousand dollars.
a. 1975
b. Counsel for Minor Plaintiff and Mother as Guardian ad Litem
Court: Stanislaus County Superior Court, Case No. 122433
Judge: Hon. Frank Pierson
c. Opposing Counsel: For Defendant Munoz: Cruz F. Portillo, 3 1 6 Bank of America
Building, Stockton, CA, (current address and phone number unknown); for
Defendant Sears. Roebuck & Co.: Kroloff, Belcher, Smart, Ford & Norris, 1044 N.
El Dorado, Stockton, CA, Phone (209) 478-2000; for Defendant J.V.L. Enterprises.
Inc.: Mayall, Hurley, Knutsen, Smith & Green, 37 Hunter Square Plaza, Stockton,
CA, Phone (209) 477-3833; for Defendant Rodnev Blane Farrell: Brunn & Lacey,
928 12th Street, Modesto, CA, Phone (209) 521-2133.
19. Legal Activities: Describe the most significant legal activities you have pursued,
17
1214
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
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.)
1. County of Stanislaus, a public entity, and Mary Grogan, an individual, on behalf of
themselves and all entities and persons similarly situated v. Pacific Gas & Electric
Co.etal.
This was a complaint filed in the United Slates District Court for the Eastern District of
California on behalf of California ratepayers against PG&E and its subsidiaries for violation
of federal and state antitrust laws, which claimed damages of nearly one billion dollars
compensatory damages in addition to treble damages. The complaint alleges that PG&E and
its subsidiaries entered into an illegal agreement in Canada with a cartel of Canadian natural
gas producers to fix the price of gas sold to California businesses and consumers and to
preclude them from purchasing alternate, lower cost Canadian gas from any other supply.
The pivotal legal issues related to the application of the filed rate doctrine {Keogh v. Chicago
& K.W. Railway, 260 U.S. 156 (1922)) and the state action doctrine {California Retail
Liquor Dealers Assn. v. Midcal Aluminum. Inc.. (445 U.S. 97 (1980)). The case has been
closely followed throughout the natural gas industry by industrial users of gas and the
California Public Utilities Commission since it involved significant issues relating to the
purchase and sale of natural gas. The high cost of natural gas in California is often cited as
the reason that many businesses have either left the state or have selected other states to start
their operations. The case involved extensive briefing and oral argument, including motions
to dismiss the original and first amended complaints, as well as subsequent appellate briefs
and oral argument. The Ninth Circuit affirmed the District Court's decision to grant a
12(b)(6) motion on the fu-st amended complaint. Plaintiffs intend to file a petition for writ
of certiorari in the United States Supreme Court. The State of California intends to join as
an amicus petitioner in this matter.
2. Betty L Annoni. et al. v. Gottschalks, Inc.
Gottschalks owns a chain of department stores through California. This case was a class
action filed in the United States District Court for the Eastern District on behalf of a class of
individual purchasers of Gottschalks, Inc. common stock against Gottschalks, Inc., several
of its officers and directors, Ernest and Young, the company's accountant, and various
underwriters of the company's public offerings for violations of Sections 11,12 and 15 of
the Securities Act of 1933, Section 10b of the Securities Exchange Act of 1934 and Rule
lOb-5, as well as various state law causes of action, which claimed several millions dollars
in comp>ensatory and punitive damages. The case was widely reported throughout Northern
California since the case involved serious wrongdoing on the part of a large, local retailer and
its individual officers and directors. Many residents throughout California lost substantial
18
1215
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
amounts of money when the price of Gottschalks' stock dropped upon the announcement by
the company that it had misstated the true condition of the company and made false and
misleading statements regarding its Voluntary Employee Benefits Association Plan.
Criminal proceedings were initiated against various officers of the company. The pre-trial
motions included multiple hearings on motions to dismiss. The case was settled in favor of
the plaintiff class for an amount in excess of $5 million.
3. Bronco 'V^'ine Company / California Department of Agriculture / Annual Grape Crush
Report Administrative Action
Each year wineries are required to furnish the California Department of Food & Agriculttire
(the "department") with certain information pertaining to the annual grape harvest, including
tonnage and price of grapes purchased by grape growing district. The department then
summarizes the information and publishes it in an annual report entitled the California Grape
Crush Report. The department's authority to collect such data and publish the report is set
forth in the State Food & Agriculture Code. These reporting instructions were gradually
changed through a series of private meetings with selected industry members without
following formal rulemaking procedures.
While our client continued to report the same data it had reported for the past twent)' years,
it nov\- found itself in violation of the new reporting instructions. I claimed that the
department's newly adopted instructions, in effect, created a regulatory scheme without
following the formal rulemaking procedures and without authorization of the enabling
statute. When the notice was given to the department that our client refused to follow this
illegal regulation, the department announced that it would not enforce the instructions.
Instead, the department initiated formal rulemaking, proposing a regulation nearly identical
to the previous instructions. Essentially, the proposed instructions sought to change the
character of the report from a statistical tool to a pricing index in direct contravention to the
enabling statute. 1 challenged the original changes to the instructions at the administrative
hearing. All segments of California's wine industry participated. The Administrative Law
Judge concurred with our argument and evidence and declared the proposed regulation
invalid.
4. University of California / Superconducting Super Collider
This involved an effort by the University of California to develop a massive multi-billion
dollar scientific research facility encompassing thousands of acres to be build in San Joaquin
Count}', California. The funding of this project was subject to Congressional appropriations
and the selection of a site among several competing state universities, most notably Colorado
and Texas. The University retained me to coordinate legal aspects of the project with state
and local agencies. It became necessary to conduct meetings with commimity groups
throughout California's Central Valley, to meet with members of California's Governor's
office and legislature regarding the extent of state funding and support, and to coordinate the
19
1216
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. DamreU. Jr.
lobbying activity with various firms in Wasiiington.
5. Coachella Valley Table Grape Growers Association
During the 1980s, I was involved in several Congressional lobbying efforts on behalf of both
public and private entities, including local public utilities, a major transportation company,
and agricultural organizations. An example of one such effort is the Coachella Valley Table
Grape Growers Association.
The Coachella Valley is located in the Palm Spring/Indio region of Riverside County in
Southern California. Because of unique climate and soil conditions, the Coachella Valley
produces the fu-st and largest crop of America's table grapes. It faced competition from table
grapes from Mexico which did not meet the same quality standards as the American grapes.
As a result, I was retained to draft and lobby a federal marketing bill which would require
Mexican table grapes to meet the same quality standards as American grapes. As a result,
I was engaged over a twelve-month period (1) preparing testimony, (2) meeting with
members and staff revising legislation drafts, (3) meeting with representatives of U.S.
Agriculture Department and U.S. State Department, and (4) negotiating with Government
of Mexico and the Washington law firm of Arnold & Porter. In 1983, Congress passed the
bill which enacted the federal marketing order for Coachella Valley table grapes.
20
1217
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
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.
Upon termination of my employment, the firm will purchase my shareholder interests in the
firm pursuant to a firm shareholder agreement. There are several contingent fee class action
matters pending. If fees are realized in these matters, I wall receive a percentage of the fees
earned by our firm that will be set prior to my departure.
It is my present intention to remain as a general partner in The Shannon Company. I would
continue to receive income derived from rents from the property owned by Sharmon. My
wife and I would continue to own an office building currently leased from which we derive
rental income.
I expect to continue as a trustee for a Gallo family trust, the beneficiaries of which are my
nieces and nephews. I receive no compensation as trustee and undertake this responsibility
solely as a family member.
I would recuse myself from all matters in which the above parties or entities or interests are
involved.
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.
I will recuse myself from any matters which include any clients of my firm or members of
my firm, as well as the litigants or attorneys involved in the cases specified in Answer 1
above. I will also recuse myself from any matters involving tenants of the buildings I own
or have an economic interest in. In all matters, 1 will follow the guidelines of the Code of
Judicial Conduct.
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.
21
1218
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
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 attached financial disclosure report attached as Exhibit "C."
Please complete the attached financial net worth statement in detail (add schedules as
called for).
See attached net worth statement attached as Exhibit "D."
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.
Yes. From time to time I have assisted candidates by hosting events and providing informal
advice to several candidates for state and national office. I may have received honorary titles
such as County Chair or Co-Chair or member of a Steering Committee, but I had no official
role in the campaigns.
Jerry Brown for President, 1976 -- Delegate to Democratic National Convention, 1976
Jimmy Carter for President, 1980 - Delegate to Democratic National Convention, 1980
22
1219
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "everj- lawyer, regardless of professional
prominence or professional workload, to And 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.
Pro Bono Activities
Parent Resource Center
811 5th Street
Modesto, C A 95351
Day-to-day advice to volunteer county-wide agency which serves families to prevent
child abuse and to provide parent and family mentoring. On many occasions I
provided legal advice and personal assistance to the Center.
Sickle Cell Anemia Foundation
c/o Mel Williams
704 Spencer Avenue
Modesto, CA 95351
Preparation of corporate documents; review of annual minutes (1978-92). I have
routinely proxided advice to the Foundation's president from time to time.
In addition, I have supervised or provided pro bono legal services to the following:
Haven Women's Center of Stanislaus County
619 13th Street. Suite 1
Modesto, CA 95354
(209)524-4331
I have supervised legal services including review of pleadings filed on behalf of
clients of the Center.
23
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Central Valley Village Corporation (a facility' for those with limited physical fionctions)
c/o Madelyn Amaral
1030 Elm Avenue
Modesto, CA 95351
(209) 578-5780
I met with the Corporation's organizers at the inception of their efforts and provided
legal assistance including drafting of incorporation documents, siting and permitting
of the facility.
St. Joseph Church
1813 Oakdale Road
Modesto, CA 95355
Provided legal counsel to parish priest from time to time and retained on pro bono
basis to advise relating to potential liabilit)' issues.
Townsend Opera Players
P.O. Box 4519
Modesto, CA 95352
Legal advice
Finally, on numerous occasions, 1 advise individuals or groups of minimal or no income in
legal matters for no fee.
Throughout my professional life, I have tried to use my skills and experience for the service
of my community. The following are some examples. Early in my career I assisted in the
creation of a Stanislaus Count}' Consumer Complaint and Advisory position. 1 spent several
years as a member and as Chair of the California State Consumer Advisory Council
(appointed by Governors Reagan and Bro\\'n), the advisorj' committee to the State
Department of Consumer Affairs. This department licenses and regulates much of the
business and professional services from pharmacists to the automobile repair industry. The
Council reviewed complaints from consumers and regulated business regarding the operation
of the Department and made recommendations to both the Department and the Governor.
In my capacity as President of the California Consumer Federation, I led a state volunteer
organization which reviewed all consumer- related legislation and policy for the State of
California.
I have volimteered my time to a variety of local community endeavors. These endeavors
have ranged from the arts to education to social issues and basic human needs such as food
and shelter. I have regularly served and delivered food for the needy and hosted nimierous
ftind-raisers for various charities which assist the disadvantaged.
24
1221
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
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 the practical implementation of membership policies?
If so, list, with dates of membership. What you have done to try to change these
policies?
Initially, the Sportsmen of Stanislaus was an athletic club limited to adult male membership.
There were no other restrictions on membership. Since 1985, it has been open to men,
women and families due, in part, to efforts of our law firm to expand the membership. I was
involved, as were members of our firm, in changing the bylaws to open membership to
women. I have been a member since 1968.
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).
Yes, there is a selection committee.
Yes, the committee recommended me.
In December I was again asked to serve as a member of Senator Feinstein's advisory
committee for judicial appointments to the Eastern District of California. I advised the
Senator's Chief of Staff that I would not be able to serve as I was considering applying for
a newly vacant position myself
I was initially interviewed by the Senator's Advisory Committee in Sacramento. I had only
met one of the committee members previously. I was advised that I was the only candidate
outside of the Sacramento area. (Modesto is some 70 miles south of Sacramento.) I believe
there were four candidates recommended out of many applicants. I was one of the four. I
was then interviewed by Senator Feinstein. She asked me a number of questions, most of
which are contained in this questionnaire. When she asked why I wished to leave a
successful law practice, 1 recounted a similar question I asked my father many years ago
when he left his law practice to become a state trial judge. His answer to me was one word,
"service." According to my father, service to others was the highest form of citizenship. I
can think of no greater honor for any citizen than to serve our country as a federal judge.
Subsequently, 1 was involved in several extensive interviews by representatives of the
25
1222
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.
Department of Justice. Initially, I was interviewed individually on several occasions and
then was the subject of a lengthy interview by four representatives of the Department. I also
had several lengthy interviews with an agent of the Federal Bureau of Investigation. These
interviews encompassed my entire professional life as well as my personal life, including my
association with public activities and individuals, my travels and virtually every aspect of my
life since my high school years.
Most recently, I had a three-hour interview with a representative of the Standing Committee
on Federal Judiciary of the American Bar Association. I was questioned extensively about
my legal experience, my reasons for seeking judicial office and my academic, public, and
personal activities.
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 judiciar>' within the Federal government, and within societ}'
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 judiciarj' 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
26
1223
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.
A tendency by the judiciarj' to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
At the core of Article III jurisdiction are the notions of injury and causation.
The judge who strays from these strictures to solve "problems" tends to
personalize or politicize the judicial process. Not every problem is
susceptible to a judicial solution. Without abdicating the role of the federal
judiciary to ensure compliance with the Constitution, the court must adliere
to the notion that the business of the federal district court is to decide
controversies, not offer pronunciamentos for future generations. In doing so,
the district court must, whenever possible, follow the path of precedent in its
judgment of such controversies.
A tendency to engage injudicial regulation usurps the constitutional authority
of the other branches of government and, in the long run, undermines the
court's own authority. The more broad the order, the more difficult the
compliance and enforcement. In short, the imposition of extensive
affumative duties on litigants and the corresponding oversight responsibilities
of a district court judge should be avoided.
Finally, the "who" and "when" of justiciability are central to federal court
jurisdiction. While the distinction between standing and ripeness is
sometimes blurred, clearly, federal adjudication must be predicated on
present or imminent injury which is at hand and ready for adjudication. The
"loosening" of these basic requirements can only undermine the
Constitutional mandate of Article III jurisdiction.
27
1224
I QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full Name (include any fonner names used.)
Martin Joseph Jenkins
2. Address: List current place of residence and office address(es).
a. Residence.
Oakland, California
b. Office.
Alameda County Superior Court
Juvenile Division, Dept . 25
400 Broadway Street
Oakland, California 94607
3. Date and place of birth.
November 12, 1953; San Francisco, California.
4. Marital Status: (include maiden name of wife, or husband's name).
List spouse's occupation, employer's name and business address(es).
I have never been married or divorced. I am a single and I do
not have any children.
5. Education: List each college and law school you have attended,
including dates of attendance, degrees received, and the dates degrees
were granted.
Colleges and
Law Schools Attended
From
TQ
Degree
Received
City College of
San Francisco
1971
1973
A. A. (6/73)
Santa Clara University
University of San
Francisco School of Law
1973
1977
1976
1980
B.A. History
(12/96)
J.D. (6/80)
1225
6. Rmplnyment 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.
a) JanuEuy 1977- January 1979; Seui Fremcisco Parks and
Recreation Department, Part-time Recreation Director
b) April 1977-AuguBt 1977; Seattle Seahawks Professional
Football Team-Professional Athlete
c) May 1979-August 1979; Alameda County District Attorney's
Office, Student Law Clerk
d) August 1980-July 1983; Alameda County District Attorney's
Office, Student Law Clerk and Deputy District Attorney
e) August 1983 -May 1985; United States Department of
Justice, Civil Rights Division-Criminal Section, Trial
Attorney
f) From May 1985-December 1989; Pacific Bell Con^any Legal
Department, General Litigation Department
g) From December 1989-Jan\iary 24, 1992; Judge of the
Oakland-Piedmont-Emeryville Municipal Court Judge
h) From January 24, 1992 -Present; Judge of the Alameda
County Superior Court.
7. Military Service: 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.
I have never served in the military.
8. Honors and Awards: List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would be
of interest to the Committee.
a) John F. Kennedy Scholarship, University of
Santa Clara (1973-1975)
b) Bronco Bench Athletic Scholarship, University
of Santa Clara (1976)
1226
c) National Collegiate Athletic Association,
Division II All American Team; Honorable Mention 1977
d) George Helmer Scholarship Award; University
of San Francisco School of Law (1978)
e) Judge Harold J. Haley Award; "Awarded annually to
the Dean emd Faculty of the University of
San Francisco School of Law to the member
of the Graduating Class evidencing Exceptional
Distinction in Scholarship, Character
and Activities" (1980)
f) United States Department of Justice Commendation
Award; In Recognition of Outstanding Service
to the Attorney General's Task Force on
Family Violence (1984)
g) Barrister's Clxib of San Francisco, Board of
Directors Award: For Exettplary Contributions
to the Life of the Club and to the Ideals of
Legal Justice and Professional Service (1988)
h) Abraham Lincoln High School "Wall of Fame Inductee" (May
1996)
i) Barrister's Club of San Francisco, Board of
Directors Award: For Exemplary Contributions
to the Life of the Club and to the Ideals of
Legal Justice and Professional Service (1988) .
I have also received letters of commendation from the
Federal Bureau of Investigation, the University of San
Francisco euid local high schools in San Frsincisco eind
Oakland .
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 tides and dates of any offices which you have held in such
groups.
state Bar of California (1981-1990)
American Bar Association (1991-1993)
Alameda Co\inty Bar Association (1989-1994)
California Judges Association (1990-Present)
Association of Business Trial Lawyers (1997-Present)
3
1227
Charles Houston Bar Association (1982-Present)
San Francisco Bar Association Barristers' Club (1985-1989)
Donald R. McCullutn Moot Court Board (1993-Present)
American Inns of Court, Earl Warren Inn (1996 -Present)
University of San Francisco Law Assembly (1994 -Present)
National Institute for Trial Advocacy Teaching faculty (1990-
1993)
California Judicial Council's Family and Juvenile Law Advisory
Committee, Executive Committee Member (June 1996 to June 1997)
Teaching Faculty-California Center on Judicial Education and
Research (CJER) (1990-Present) .
California Supreme Court's Advisory Committee on Judicial
Ethics (March 1995 -November 1996)
California State-Federal Judicial Council (November 1996 to
Present) .
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 which lobby before public bodies:
Other than the California Judges Association and other bar
organizations, I do not belong to any organizations that lobby
before pxiblic bodies. However, from June 1996 through June
1997, I was a member of the Executive Committee of the
California Judicial Council ' s Family and Juvenile Law Advisory
Committee. The Executive Committee occasionally submits
proposed legislation and apprises the legislature of the
impact of pending legislation on the California Juvenile
Courts .
Other wewberships :
Santa Clara University Board of Regents (1990-1995) ;
University of San Francisco Street Law Program, Board of
Directors (1988-Present) ;
Prescott -Joseph Center For Community Enhancement, Board of
Directors (1995-Present) ;
1228
Charles R. Lawrence III Scholarship Conimittee (1985-Present) ;
Abraham Lincoln High School Alumni Association (May 1996-
present)
Board of Directors, University of San Francisco Para-Legal
Studies Program (July 1990 -June 1995) ;
Northern California Football Officiating Association (1985-
1997) ;
Collegiate Officials Association (1992-1997)
1 1 . 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.
California Supreme Court and Intermediate Appellate courts
(May 1981) ;
California Trial Courts (May 1981) ;
United States District Court, Northern District of California
(May 1981) ;
United States District Court, Eastern District of Wisconsin
(May 1984) .
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.
a) California Code of Judicial Ethics and Commentary. (April
15, 1996);
b) Controlling your Courtroom: Voir Dire and Trial
Management Workshop, "Statutes Related to Voir Dire"
(September 29, 1992) .
1229
The final draft of the California Code of Judicial Ethics was
a collaborative effort with Ethics Conmiittee Members and Staff
Attorneys from the California Administrative Office of the
Courts involved in editing the Code. I have also attached an
overview of California Statutes relating to the conduct of
Voir Dire that I routinely give to all participants in my Voir
Dire Workshops. A copy of the materials referenced above are
attached hereto as Exhibit A.
13. Hsiltli: What is the present state of your health? List the date of your
last physical.
The present status of my health is good. My last physical
examination was in April 1997 .
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.
In January 1992, I was appointed by Governor Pete Wilson to
the Alameda County Superior Court and took my oath of office
on January 25, 1992. The Superior Court is the California's
trial court of general jurisdiction where civil cases,
irrespective of amount in controversy, and criminal felony
charges are litigated. There are no limitations on the
jurisdictional reach of the California Superior Courts save
and except those matters heard in inferior courts (i.e.,
municipal and justice courts) and those matters specifically
venued in the Federal Court. I was re-elected to my Superior
Court Office in an uncontested election and began my new six
year term on Jemuairy 1, 1993. In November of 1989, I was
appointed by then Governor George Dukemejian as a Judge of the
Oakleuid-Piedmont-Emeryville Municipal Court and took my oath
of office on December 26, 1989. California Municipal Courts
are courts of limited jurisdiction and, as such, only civil
cases where the amount in controversy is less thsm $25,000.00,
misdemeanor criminal trials and felony preliminary hearings
are heard there. I held my Municipal Court Office until
January 24, 1992, when I was elevated to the Alameda County
Superior Court .
1230
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 our decisions were
reversed or where your judgment was affiimed 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. Ten iDost significant written opinions:
As a Judge of the Superior Court I have not typically
issued written rulings and/or opinions. However, I was
assigned by Malcolm Lucas, Chief Justice of the
California Supreme Court, to sit as a Justice Pro-Tem at
the California Court of Appeal, First District-Division
Three from May 1994 through September 1994. I have
selected ten opinions I wrote during my tenure on the
Court of Appeal for your review. A copy of the
unpublished opinions referenced below are attached hereto
as Exhibit B.
a) Pamela R. DeWitt-Carter at al.. v. Sharon Sharp. As Director.
etc.T et al., California Court of Appeal, First
Appellate District-Division Three, Case No. :
A063985;
b) People V. Stone, California Court of Appeal, First
Appellate District-Division Three Case No.:
A061456. This decision is piiblished and may be
found in the decisions of the California Courts of
Appeal, 27 Cal. App. 3rd 187 (1994);
c) Robert Bushong v. Frank S. Zolin. as Director, etc..
California Court of Appeal, First District-Division
Three, Case No.: A063372;
d) Farrell v. Wolf. California Court of Appeal, First
District-Division Three, Case No.: A061337
e) Samuel Rosario v. Diamond Shamrock Corp. California
Court of Appeal, First Appellate District-Division
Three, Case No.: A059644;
1231
f) People V. Edward Sanders. California Court of Appeal,
First Appellate District-Division Three, Case No.:
A060819;
g) Felzer v. Founders Title Company. California Court of
Appeal, First Appellate District-Division Three,
Case No. : A062989;
h) In re Jason Cecil Bell. California Court of Appeal,
First Appellate District-Division Three, Case No. :
A065285;
i) People V. Jason Bell. California Court of Appeal, First
Appellate District-Division Three, Case No.:
A060970;
j) Roger C. On. v. Raymond Choy et al. . California Court
of Appeal, First Appellate District -Division Three,
Case No. : A063285;
Summary of reversals or affirmance with significant
criticism:
People V. Ehiong L. . California Court of Appeal, First
Appellate District, Division Four, Case No.: A074976.
The minor, Duong L. . and several other minors were
charged with First Degree Robbery. After hearing the
evidence, I found the allegations true and committed the
minor to our County juvenile camp. At the sentencing
hearing I also increased the minor's maximum custody time
from six to eight years because he acted "In Concert"
with several other minors in the commission of the
Robbery. The appellate court reversed only that part of
my decision which siibjected the minor to an increase in
maximum custody time. The court held that the increase
in the minor's potential custody time violated his right
to notice under the Due Process Clause inasmuch as the
petition (complaint) failed to specifically allege the
"In Concert Allegation." A copy of the appellate opinion
in the Duong case is attached hereto as Exhibit C.
Citations for significant opinions on federal or state
constitutional rulings:
1) People V. Stone, case No.: A061456
First Appellate District, Division Three, Case No. :
A061456. This decision is published and may be
found in the decisions of the California Courts of
Appeal, 27 Cal . App. 3rd 187 (1994).
8
1232
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 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;
I have never clerked for a judge.
2. whether you practiced alone, and if so, the addresses and
dates;
I have never praticed as a sole practitioner.
3. the dates, names and addresses of law firms or offices,
companies or govermnental agencies with which you have
been connected, and the nature of your connection with;
August 1980 -Jime 19R3
Alameda County District Attorney's Office, 1225 Fallon
Street-9th Floor, Oakland CA., 94612. I was enployed
initially as a student legal intern euid promoted to the
position of Deputy District Attorney. As a Deputy
District Attorney, I was assigned a docket of criminal
misdemeanor and felony cases for prosecution.
August 1983 -May 1985
United States Department of Justice, Civil Rights
Division-Criminal Section, 950 Pennsylvania Avenue N.W.,
Washington D.C. 20530. I was hired as a Trial Attorney
and prosecuted criminal civil rights cases .
1233
May 19B5 -December 1989
Pacific Bell Conpany Legal Department, 140 New Montgomery
Street, lOth Floor, San Francisco, California 94105. I
was assigned to the General Litigation Department and
represented Pacific Bell in civil litigation matters.
December 19S9-January 1992
Judge of the Oakland- Piedmont -Emeryville Municipal Court,
661 Washington Street, San FreUicisco, California 94607.
As a Judge of the Oakland Municipal court, I presided
over misdemeanor criminal matters, felony preliminary
hearings and civil cases where the amount in controversy
was less than $25,000.00.
January 1992 to Present
Judge of the Alameda County Superior Court, 1225 Fallon
Street, 2nd Floor, Oakland, California 94612, As a judge
assigned to California's trial court of general
jurisdiction, I preside over felony criminal matters and
a wide variety of civil matters.
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?
From May 1985 through December 1989, I was an
attorney in the General Litigation Division of
Pacific Bell ' s Corporate Legal Department . As cui
attorney with Pacific Bell, I represented Pacific
Telesis and other Telesis subsidiaries including;
Pacific Bell, Pac-Tel Mobile Access and Pacific
Bell Directory on a wide variety of legal matters .
My practice involved litigation in the following
areas: contracts, wrongful termination, personal
injury/product liedjility claims, real property,
insurance coverage, and some debtor claims in
bankruptcy court.
In addition, I was routinely called upon to provide
advice and counsel to Telesis subsidiaries in the
following areas: federal and state court ordered
wiretaps, smd telephone fraud investigations
conducted by Pacific Bell, Sprint, MCI and AT&T.
From August 1983 through April 1985, I was en^Jloyed
as a Trial Attorney with the United States
Department of Justice, Civil Rights Division,
Criminal Section in Washington D.C. The Criminal
Section is responsible for the investigation and
prosecution of federal criminal civil rights
10
1234
violations in the following areas: use of excessive
force under color of state law, denial of equal
access to public acconimodations on the basis of
race, and interference with housing rights on
grovmds of race or religious affiliation. As a
trial attorney with the Criminal Section, I
directed the investigation and prosecution of
criminal civil rights from grand jury presentation
through pre-trial motions euid trial. I also
represented the Government in United States v.
Monville et . al . wherein the Justice Department
successfully prosecuted several defendeuits for
conspiring to deprive an interracial couple of
their statutory right, pursuant to 42 U.S.C. 3631,
to rent and occupy their home. The Monville case
was the Justice Department's first successful jury
prosecution of federal statute, 18 U.S.C. 241,
where the vinderlying violation involved a statutory
right to housing. 42 U.S.C. 3631.
During ray employment with the Department of
Justice, I was selected by Assistant Attorney
General Lois Haight Herrington to serve as a staff
member of "The United States Attorney General's
Task Force on Family Violence." The "Task Force"
was commissioned by Attorney General William French
Smith to investigate and recommend more effective
methods and procedures to reduce the growing
incidence of spousal abuse, incest, child abuse and
elder abuse in the United States. I worked with
prosecutorial and other public agencies to identify
and prepare victims of "family violence" to give
oral testimony at public hearings in New York and
several other States. The Task Force's Report was
published in 1984, however I did not participate in
writing or editing the Report .
From May 1981 through July 1983, I was a Deputy
District Attorney in the Alameda District
Attorney's Office. I prosecuted numerous felony
cases involving allegations of rape, robbery,
murder, theft and narcotic offenses. I personally
tried to verdict approximately 50 misdemeanor emd
felony jury and bench trials during my en5)loyment
with the District Attorney's Office. I also
clerked for the Alameda County District Attorney
during and after my graduation from law school.
11
1235
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized?
In my capacity as an attorney with the United
States Department of Justice emd the Alameda
District Attorney's Office, I represented local and
federal law enforcement agencies .
In tny capacity as a litigation attorney with
Pacific Bell, I represented a private investor
owned regional telephone con^any. Pacific Bell was
subject to regulation by the California Public
Utilities Commission and the Federal Communication
Commission.
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 date.
In all of my professional endeavors as a lawyer, I
have regularly appeared in court . As a Deputy
District Attorney in Alameda County, I appeared in
court every day. As a Trial Attorney with the
Department of Justice, I appeared in court during
jury trials and on all motions related to trial.
As an attorney with Pacific Bell, I appeared in
court at least once a week and more often when I
was in trial .
2. What percentage of these appearances were in federal
and/or state courts of record:
a) Pacific Bell (1985-1989) ;
federal courts: 20%
state superior courts: 70%
state municipal courts: 10%
b) United States Department of Justice (1983-
1985) ;
federal courts: 100%
c) Alameda County District Attorney's Office
(1980-1983)
federal courts: 0%
state superior courts: 50%
state municipal courts: 50%
12
1236
3. What percentage of your litigation was:
civil : 60%
criminal: 40%
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 coimsel, or associate counsel.
I have personally tried in excess of 50 cases to
verdict in state and federal courts of record. I
have served as sole counsel in the majority of my
jury trials; however while en^loyed with the
Department of Justice, I was routinely assigned co-
counsel to assist in the preparation cuid trial of
cases.
5. What percentage of these trials were:
(a) jury: approximately 70%
(b) non-jury: 30%
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 the 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.
13
1237
Significant Cases:
1) HALEM V. PACIFIC BELL DTRECTORY
San Francisco Superior Court, Case No.: 865-250
Type of Litigation: Civil Jtiry, Breach of Contract
Trial Dates: May 5 through May 15, 1989
Judge: Honorable Ralph Flageollet -Civil
Attorneys :
For Pacific Bell: Martin Jenkins.
For Plantiff : Michael Sorgen, Attorney at Law
22 2nd Street-Suite 500, San Francisco Ceilifomia
94105 (415) 543-5805.
DESCRIPTION OF CASE: Plaintiff contracted with Pacific
Bell Yellow Pages Directory for a half page advertisement
in the 1985 San Francisco Directory under the business
name "Orient Express Rug Con^any." When the directory
was published in September 1985, Plaintiff's business
address and telephone number were incorrectly listed.
Plaintiff alleged that it suffered losses in excess of
$500,000.00, as a result of the erroneous listing.
During the trial of this matter. Plaintiff called several
economists and marketing experts to substantiate its
damages claim. I was able to demonstrate that any chcuige
in plaintiff's gross profit was due to the relocation of
Plaintiff's store (which coincided with the release of
the directory) . After a two week trial, during which my
client admitted liability, the jury returned a verdict in
Plaintiff's favor in the amount of $5000.00.
2) PACE. AKULTAN A. HARKINS v. PACIFIC BELL
San Francisco Superior Court; Case No. : 863-466
Type of Litigation: Breach of Contract
Unfair Trade Practices and Injunctive Relief
Judge: Ira Brown
Period of Litigation: Septeinber 2, 1986 -September 8,
1987
Attorneys :
For Pacific Bell Directory: Martin JenJcins
For Defendants: Marshall Krause, Krause & Baskin,
1120 Nye Street-Suite 300, San Rafael, California
94901, (415) 456-2500.
DESCRIPTION OF CASE: Plaintiffs sought to advertise in
the 1986 Contra Costa Yellow Pages Directory utilizing
the logo "Divorce for Men Only" . Pacific Bell Directory
refused to print Plaintiffs' advertisement on the grounds
that it was discriminatory in nature and therefore
proscribed under the California Civil Rights Law-The
Unruh Act. Further, as a publisher, my client asserted
14
45-964 98-40
1238
its First Amendment right to regulate the content of the
advertisements appearing in its Yellow Pages Directories .
Plaintiffs sued Pacific Bell seeking injxinctive relief to
con^el Pacific to print their advertisement as requested.
After presentation of legal memoranda and extensive oral
argument, Plaintiffs' request for injunctive relief was
denied. Subsequent to Judge Brown's ruling, Plaintiff
dismissed the lawsuit.
3) CIMA INVESTMENTS v. PArTPTC BELL DIRECTORY
Sonera County Superior Court ; Case No . : 24594
Type of Litigation: Commercial Litigation-
Breach of Contract, Fraud cmd Negligence
Period of Litigation: January 1986-Deceinber 1986
Judge: Honorable Joseph Hardin
Attorneys :
For Pacific Bell: Martin J. Jenkins.
For Cima Investments: Richard Matranga of
Angermillerand Matranga, 270 S. Bsuretta Street #A,
Conora, California 95730, (209) 533-4955.
DESCRIPTION OF CASE: Plaintiff, Cima Investments, owner
of the Twaine Heart Motel contracted for advertising in
the 1985 Pacific Bell Tuolumne Yellow Pages Directory
("Directory") . When the 1985 "Directory" was published.
Plaintiff's advertisement was omitted. Plaintiff sued my
client for general damages emd lost profits in the amount
of $100,000.00. I filed a motion for summary judgment
see)cing a ruling on the enforceability of a limitation of
liability clause contained in Pacific Bell's contract
with Cima Investments . The limiting clause capped
Plaintiff's damages, in case of a breach, to the amount
Plaintiff paid for the advertisement. This case was of
particular significance to xay client inasmuch as there
had been no previous judicial ruling on the validity of
the limiting clause. Judge Hardin ruled that the
limiting clause was valid cuid enforceeible cuid entered
judgment against my client for $750.00, the cost of
Plaintiff ' s advertisement .
15
1239
4) UNITED STATRS v HENRY MONVn.T.F. FT AL..
United States District Court, Eastern
District of Wisconsin. Case No. : 84-CR-70
Type of Litigation: Criminal Federal Civil Rights
Prosecution.
Charges: 18 USC Sec. 241; 42 USC Sec. 3631
Judge: Honorable John Reynolds.
Trial Date{s) : September 4, 1984 to Septeniber 15, 1984.
Attorneys :
For United States of America: Martin J. Jenkins
and the Honorable Patricia Gorrence (formerly Asst.
U.S. Attorney), United States Court House, 517 East
Wisconsin Avenue-Rm 264, Milwaukee, WI, 53202 (414)
297-4165.
For Defendants:
William Burke, 850 Honey Creek Parkway, Watwautosa
WI, 53213, (414) 276-1717;
Martin Love, 6525 West Blue Mound Road, Milwaukee
WI, 53213 (414) 258-5989;
Robert Dvorak, 823 North Cass Street, Milwaukee WI,
53202 (414) 273-0373.
DESCRIPTION OF CASE: In June 1983, Mr. John Smith, a
member of the United States Peace Corps, purchased a home
in rural Crivitz, Wisconsin, and moved there with his
wife and infant son. Mr. Smith, a white male, and his
wife, a black citizen of Liberia, introduced themselves
to their new neighbors after moving to Crivitz . Shortly
after they moved into their new home, the Smiths began to
receive threatening phone calls--including one from an
anonymous caller who suggested that Mr. Smith "take his
bride back to Africa." On the evening of July 10, 1983,
the Defendants drove to the Smiths' residence where they
burned a five-foot cross on the Smiths' front lawn.
The prosecution of this matter was particularly difficult
as there were no percipient witnesses to the cross
burning. Agents of the Federal Bureau of Investigation
were unable to lift any latent finger prints from the
cross found at the victims home. Several neighborhood
children observed the defendeints' build a cross on the
day of the offense. However, when called to testify at
trial, these minors con^letely recanted their grand jury
testimony after being pressured to do so by their parents
and friends of the defendants. After a three-week trial,
during which over 30 witnesses were called, the
defendants were convicted of all charges. All defendants
were sentenced to terms of incarceration in federal
prison.
16
1240
5) JACOBS V. PACIFIC BELL ET AL..
United States District Court -Northern District of
California; Case No.: C68-7169 EFL
Type of Litigation: Civil -PersoneQ. Injury
Period of Litigation: January-October 1987
Judge: Honorable Eugene Lynch
Attorneys :
For Pacific Bell: Maurtin J. Jenkins
For Plaintiff: Stewart I. MacKenzie, 3900 New Park
Mall Road, Newark CA 94560 (510) 791-8113.
DESCRIPTION OF CASE: This case involved the service of
a search warrant by United States Customs Agents. The
agents, in seeking to execute the warrant authorizing the
seizure of illegal drugs, relied upon residence
information obtained from my client's non-p\iblished data
base. Plaintiff, a resident at the location where the
warrant was served, was home when the agents arrived.
Plaintiff's complaint alleged that the Agents stormed her
house and illegally detained her and her minor son during
the course of their search. Plaintiff's complaint
further alleged that Pacific Bell negligently provided
the "Agents with incorrect address information -which led
to the service of the warrant." On behalf of Pacific
Bell, I moved to dismiss Plaintiff's corqjlaint for lack
of subject matter jurisdiction based upon Plaintiff's
failure to allege that my client's action violated any
Federal Constitutional Right or federal statute. After
extensive presentation of legal authorities, the court
granted my client's motion to dismiss.
6) CREATIVE LEISURE v. PACIFIC BELL ET AL..
San Francisco Superior Court; Case No.: 829-499
Type of Litigation: Civil -Negligence -Failure to
adequately protect telephone facilities
Judge: Honoraible Lucy McCabe
Period of Litigation: February 1985 to May 22, 1987
Attorneys :
For Pacific Bell: Martin J. Jenkins
For Plaintiff: Robert Links of Berger, Nadel &
Vanelli, 1 California Street-Suite 2750, San
Francisco, California 94111, (415) 362-1940
DESCRIPTION OP CASE: Plaintiff, a wholesale marketer of
Hawaiian and Mexican vacation packages, conducted its
business with retail travel agents throughout the country
by telephone. Plaintiff subscribed to telephone service
with Pacific Bell. Plaintiff alleged that on several
occasions between September 23, 1982 and April 13, 1982,
Pacific Bell's underground CcQjles were struck by
17
1241
contractors causing interruptions in Plaintiff's
telephone service and a corresponding loss of profit.
Plaintiff further alleged that my client was responsible
for its loss of profits because "Pacific Bell failed to
mark, when requested, the location of its underground
cables." After extensive discovery, I moved for summary
judgment on the ground that ray client's lie±)ility, if
any, was governed by California Public Utilities Tariffs
which limited Pacific Bell's liability for errors in the
provision of telephone service to the cost of the service
during the period of interruption. After extensive
briefing and oral argument, the Court grsuited my motion
for summary adjudication of issues and the matter
ultimately settled on terms favoreible to my client.
7) PEOPLE V. DANE E WOODWARD
Alameda County Superior Court; Case No.: H-2520
Judge: Honorable Jacqueline Taber
Type of Litigation: Criminal Mental Health Re-coninitTnent
Trial Date(s): May 20-May 27, 1983
Attorneys :
Deputy District Attorney: Martin Jenkins;
For Defendant: Albert Wax, 2004 Cedar Street,
Berkeley, California 94709, (510) 548-9800
Description of Case: in ISSI, Mr. woodward allegedly
assaulted and tried to rape thirteen year old Patricia
Maes. Mr. Woodward was charged with felony assault with
intent to commit rape. The con^laint also alleged that
Mr. Woodward had sustained a previous conviction for
molesting a two year old girl . At trial several experts
opined that Mr. Woodward suffered from Organic Brain
Syndrome, a condition that precluded him from controlling
his sexual cuid aggressive desires. After several days of
testimony, the jury found Mr. Woodward not guilty by
reason of insanity and he was committed to Atascadero
State Hospital. In January 1983, just two years after
his commitment to Atascadero, Defendant filed a petition
in the Alameda Superior Court seeking his release on the
ground that his sanity had been restored under Penal Code
Section 1026.2. It was at this juncture that the case
was assigned to me for trial . After a review of the case
file cuid psychological reports, I concluded that Mr.
Woodward was still a danger to the community cind objected
to his release. As such, Mr. Woodward's petition was set
for jury trial . Several psychiatrists, psychologist, and
members of the defendant's family testified at the trial.
The jury concluded that Mr. Woodward was "presently a
danger to himself and others" and he was re -committed to
Atascadero .
18
1242
8) PHQPLE V. BELLARD
Oakland-Piedmont-Bnieryville Municipal Court; Case No.:
177434
Type of Litigation: Criminal Prosecution.
Charge: Penal Code Section 245 a- Assault
Trial date(s) : July 1981
Judge: Honoreible Roderick Duncan
Attorneys :
Deputy District Attorney: Mcurtin J. Jenkins
For Defendant: Scott Sugarman, Sugeinnan & Ccuinon, 1
Kaiser Plaza, Suite 1750, Oakland, California 94612
(510) 465-1932.
Description of Case: The victim was allegedly shot by
defendant, Charles Bellard, after a heated argument on a
North Oakland Street. The defendant shot the victim
because the victim had informed law enforcement
authorities that the defendant was responsible for a rash
of burglaries in the City of Oakland. The victim was
rushed to the hospital after the shooting and doctors
determined that the bullet could not be removed because
of its proximity to the victim's spinal cord. There were
no independent witnesses to the shooting. After a trial
of approximately two weeks, during which the defendant
presented an alibi defense, the jury found the defendant
guilty as charged in July 1981.
9) DORRIS JELAVTCH v. PACIFIC BELL
San Francisco Superior Court; Case No. : 813673
Type of Litigation: Civil Litigation-Products
Liability
Judge: Honorable Stuart Pollack for Motions
Period of Litigation: September 1983 to September 1989
Attorneys :
For Pacific Telephone and Telegraph:
Martin J. Jenkins
For Plaintiff: William Antonioli, 4410 El Camino
Real, Suite 105, Los TLLtos, California 94022, (415)
941-5100.
Description of Case : Plaintiff Dorris Jelavich allegedly
sustained a hearing loss while using a cordless telephone
manufactured by Uniden Corporation. Ms. Jelavich
complained of hearing a loud piercing noise just as she
placed the receiver to her ear. Plaintiff's counsel
opined that the noise she experienced was caused by the
repair of Pacific Bell's switching equipment which
occurred coterminous to her use of the cordless phone .
Plaintiff's medical records established that she had
19
1243
sustained a "sensory- neural hearing loss" over speech
frequency rsmge 1000 hertz to 4000 hertz as a result of
this incident. Investigation of this matter revealed
that while several of my client's customers experienced
distracting noises during the repair of my client's
switching equipment, the soiinds emitted over my client's
network were not of sufficient an5)litude to cause
Plaintiff's injury. As a result of my investigation this
case settled favorably for my client.
10) BAKER ET AL. v. PACIFIC BELL ET AL..
Alameda Co\inty Superior Court, Case No.: H125327
Type of Litigation: Civil -Personal Injury
Period of Litigation: June 1987 -September 1989
Attorneys :
For Pacific Bell: Martin J. Jenkins
For Plaintiffs: R. Lewis Van Blois, 1 Kaiser
Plaza, Suite 2245, Oakland CA 94612, (510) 444-
1906.
DESCRIPTION OF CASE: This wrongful death action was
brought by the parents of Donald Baker, Sue Cox and Guy
Enos {hereinafter "minors") . The con^jlaint in this
matter alleged "that the minors were killed when a 1965
Ford Mustang, in which they were passengers, struck a
telephone pole owned and negligently placed on a public
thoroughfare by my client." I engaged in a course of
discovery which established that my client did not own
nor have any equipment on the pole in question at the
time of the accident. At the conclusion of discovery,
Plaintiffs' counsel dismissed my client from the action.
20
1244
19. Legal Activities: Describe the most sigmficant 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.)
Legal Activities:
As a lawyer, I participated in pro bone activities discussed
below in response to Question 1 of Part III., of this
Questionnaire. As a judge, I have taught in many programs
sponsored by a wide range of organizations. During my tenure
on the Oakland Municipal Court, I was asked by the American
Judicature Society (AJS) to serve as a panelist on its
National Pre-Bench Seminar held in March 1991. The purpose of
the seminar was to orient new judges to ethical issues, (i.e.
ex-parte contacts and rude and insolent behavior by attorneys
and litigants) and to discuss appropriate ways to resolve
them. The seminar was taped by (AJS) and the tape has been
made available to new judges across the country. I have also
been a member of the teaching faculty for the California
Center on Judicial Education and Research (CJER) , Teaching
Faculty from 1990 to the present. I have taught on several
programs sponsored by CJER including, but not limited to:
a) Controlling your Courtroom: Voir Dire and Trial
Management Workshop, (September 2 9 -October 2, 1992)
b) Domestic Violence Seminar: Effective ways of Handling
Domestic Violence Cases, (October, 1992)
c) Wheeler; Race and Gender Bias in the Exercise of
Peremptory Challenges: California Judges Assn. , Midyear
Conference, (May 2-4, 1993)
d) Criminal Law and Procedure: Continuing Judicial Studies
Program (CJSP) , Fall 1995
e) New Judges Orientation: Ethics cind Fairness, California
Judges Education and Research (CJER), 1993-Present .
21
1245
I was also a member of the California Supreme Court's Advisory-
Committee on Judicial Ethics. The Ethics Advisory Committee,
Chaired by Justice Charles S . Vogel of the Second Appellate
District, was asked by the California Supreme Court to assist
the Court in the development and promulgation of the
P-alifnmia Code of Judicial Ethics. The Ethics Advisory
Committee submitted its recommendations to the Supreme Court
in Jcmuary 1996, and the Court approved the publication of the
Committee's proposed Code on April 15, 1996. In November
1996, I was appointed to the California State-Federal Judicial
Council by the Justice Ronald George, Chief Justice of the
California Supreme Court. The Judicial Council is con^rised
of sitting judges from the state and federal courts and
provides a vehicle for direct and personal communication
between judges in these courts regarding matters of mutual
interest and concern.
22
1246
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1 . List sources , amounts and dates of all anticipated receipts from deferred
income arrtingements, stock, options, uncompleted contracts and other
future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, fonner
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 no financial arrcuigement ( s ) or previous business
relationships from which I expect to be compensated in the
future. I mcike monthly contributions to the California Judges
Retirement System (CJRS) and if confirmed, I will be entitled
to reimbursement of all contributions made to the Judges
Retirement Program. I also make monthly contributions to a
Savings Plus Program which is a deferred compensation program
administered by the State of California.
2. Explain how you will resolve any potential conflict of interest,
including the procedure you will follow in determining 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?
If a potential conflict-of-interest arose, I would first
determine whether the conflict necessitated recusal. If the
potential conflict did not mandate per se recusal, I would
disclose the potential conflict cind decide, after hearing the
parties concerns, whether it was appropriate for me to
continue hearing the matter. In order to avoid conflict (s) of
interest, I would list all of my prior major clients euid
engage all parties in discussions that would be reasoncibly
likely to vincover any information that could lead to a
conflict of interest and reassignment of the case.
Do you have any plans, commitments, or agreements to purse outside
en^)loyment, with or without compensation, during your service with
the court? If so, explain.
No.
23
1247
4. List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year,
including salaries, fees, dividends, interest, gifts, rents, royalties,
patents, honoraria, and other items exceeding $500.00 or more (If your
prefer to do so copies of the financial disclosure report required by the
Ethics in Government Act of 1978, may be substituted here.)
See Financial Disclosure Report attached hereto as Exhibit D.
I also officiate high school and small college football games .
I receive $45.00 per game for high school games and $75.00 per
game for small college games. I earn approximately $800.00
annually for officiating football games.
5. Please complete the attached financial net worth statement in detail.
(Add schedules called for)
See Attached Exhibit E.
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 never held a position or played a role in a political
campaign .
24
1248
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 tind 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.
For approximately five years (1985-1989) , as an attorney with
Pacific Bell, I was a cotnmittee member and ultimately co- chair
of the San Francisco Barristers' Clxih "Can I Do It Without a
Lawyer Program." Through this program, the San Francisco Bar
Association provides free legal advice to indigent individuals
in the San Francisco Bay Area in the areas of landlord- tenant
law, consumer law, family law and also presented role plays on
the most effective means of presenting small claims cases. In
addition, from 1981-1989, as a member of the Charles Houston
Bar Association, I participated in law day programs, and free
legal advice clinics annually. I am currently on the Board of
Directors of the "Prescott -Joseph Center for Community
Enhancement. The Prescott Joseph Center is a non-profit
entity that provides a myriad of programs for seniors and
youth in the West Oakland Community, including but not limited
to tutorial programs for youth and senior citizen wellness
programs. I also serve as a mentor for young adults at St.
Patrick ' s Church .
The American Bar Association's Conmientary to its Code of Judicial
Conduct states that it is inappropriate for a Judge to hold a 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 the dates of membership. What you have done to try
to change these policies?
I do not belong, nor have I ever belonged, to any orgeinization
that invidiously discriminates on the basis of race, sex or
religion.
25
1249
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 begiiming to end (including the
circumstances which led to your nomination and interviews in which
you participated).
I received a letter from Senator Boxer's office soliciting
applications from all persons interested in serving as a
federal district court judge. I submitted an application in
February 1997. Thereafter, I was interviewed by the Senator's
judicial nominations committee. The Committee selected me as
a finalist for the position. I was then interviewed by the
Senator's Office. After my interview, I was informed that
Senator Boxer was going to recommend me to President Clinton
for nomination to the Federal District Court. After my name
was forwarded to the President, I was interviewed by the
Department of Justice, the American Bar Association emd
Federal Bureau of Investigation.
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 you how you
would rule on such a case, issue or question.
No.
5. Please discuss your views on the following criticism involving "judicial
activism. "
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 enq)loy the individual plaintiff as
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;
26
1250
JUDICIAL CONFERENCE OF THE UNITED STATES
COMMITTEE ON FINANCIAL DISCLOSURE
Judge Frank Magill, Chair
Judge Robert R. Beezer Judge Ronald R Lagueux One Columbus Circle. NE
Judge Garrelt E Brown. Jr Judge Alan D Lourie Washington, D.C. 20544
Judge Albert J. Engel Judge Richard Mills Telephone: (202) 273-4626
Judge Marvin J, Garbis Judge Manuel L Real Facsimile: (202) 273-1884
Judge Richard W Goldberg Judge Dale E SafTels
Judge Marvin Katz Judge Frederick J. Scullin, Jr
Judge Robert B Krupansky Judge William J. ZIoch
August 11, 1997
Honorable Martin J. Jenkins
Alameda County Superior Court
Juvenile Division, Department 25
400 Broadway
Oakland, CA 94607
Re: Nomination Financial Disclosure Filing
Dear Judge Jenkins:
Thank you for submitting your Financial Disclosure Report in connection with your
appointment as a United States District Judge in the Northern District of California. I have
reviewed your nomination Report and wish to provide you with the following comments on Parts
III and VI.
In Part III, you must report compensation, other than from the United States Government,
in excess of $5,000 in any of the two calendar years prior to the calendar year during which you
file your first report. In addition, you must include the identity of each source of such
compensation and a brief description of the nature of the duties performed or services rendered
by the reporting person for each source. Please inform the Committee if you had any reportable
compensation during the calendar year 1995. You may wish to refer to page 60 of the
Instructions.
In Part VI, line 3, you reported an automobile loan with "Patelco Credit Union." For your
future reference, you are not required to report any loan that has been secured by a personal
motor vehicle. Please refer to page 35 of the Instructions.
Please provide our Committee with three copies of your response to the second paragraph
within thirty days. If you should have any questions about this letter, please contact the Office of
the Committee on Financial Disclosure at (202) 273-4626. Thank you for your cooperation.
Sincerely,
^^nyu^
Frank Magill
Chair
1251
August 19, 1997
Honorable Frank Magi 11
Chair, Committee on Financial Disclosure
Judicial Conference of the United States
One Columbus Circle, N.E.
Washington D.C. , 20544
Re: Nomination Financial Disclosure Filing
Dear Judge Magi 11 :
As requested in your letter of August 11, 1997, by this letter
I hereby inform the Committee on Financial Disclosure that I
did earn income in calendar year 1995, which I inadvertently
failed to disclose in Part III of my 1996-97 Financial
Disclosure Filing. My income for calendar year 1995 is set
forth below:
SOURCE AND TYPE GROSS INCOME
state of California
Superior Court Judge Salary $99,011.00
If you have any further comments regarding my Financial
Disclosure Filing, I can be reached at (510) 268-7384. Thank
you for your cooperation and assistance in this matter.
Martin J. Jenkins
mj /mj j
1252
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 has always been my philosophy to decide cases on an
individual basis and issue rulings in accord with the facts
and legal principles that govern each case. Strict adherence
to Constitutional principles such as standing and ripeness is
important to ensure that the court decides cases when, and
only when, appropriate, and any remedial relief prayed for is
granted only to aggrieved parties. The notion that judges may
use decisions in individual cases to in5)ose broad and
continuing affirmative duties upon governments and agencies
strikes at the very heart of our system of democracy and the
bedrock Constitutional principle: "Separation of Powers."
Often, the solution to societal ills may lie beyond the
purview of the particular statutes or Constitutional
provisions inpacted by the legal issues before the court.
When judges reach beyond the applicable statutes and governing
law of their jurisdiction to decide cases, they are apt to run
afoul of and tip the delicate "Balance of Powers" which is
central to our Constitutional democracy.
1253
MARTIN J. JENKINS NET WORTH FINANCIAL STATEMENT
SCHEDULE D: "ACCOUNTS AND BILLS DUE/OTHER DEBTS"
1. Accounts and bills due/other debts:
a. Chase Manhattan Visa Account Balance: $1300.00
b. Bank of America
Mastercard Account Balance: $3500.00
c . Bank of America
Visa Account Balance: $4000.00
d. American Express
Delta Sky Miles Balance: $1,600.00
e. Patelco Credit Union Account* Balance: $18,500.00
♦This debt is shared by my brother Darrell Jenkins, and my
sister, Monica Jenkins and arises from the purchase of a new
automobile for my father's birthday on October 16, 1995. Our
respective co-pay is $248.00 per month, on a monthly payment
of 743.00.
Total accounts and bills due: $28,900.00
1254
MARTIN J. JENKINS NETWORTH FINANCIAL STATEMENT
SCHEDULE E: "REAL ESTATE MORTGAGES PAYABLE"
1 . Real estate mortgages payable:
a. 1347 Bates Road
Oakland, CA 94610
First mortgage holder: Glendale Federal Mortgage
Corporation
Balance: $282,000.00
Monthly Payment: $2117.00
Second mortgage holder:
First United Seirvices Credit
Union
Balance: $22,000.00
Monthly payment: $419.00.
Total monthly mortgage paid: $2536.00
b. 7 Richards Circle*
San Francisco, CA 94124
First mortgage holder:
Second mortgage holder:
Home Savings and Loan Company
Balance: $169,000.00
Monthly payment: $0.00*
San Francisco Employees Credit
Union
Balance: $24,000.00
Monthly payment: 0.00*
* I ovm this property with Mr. Jimmie Gilyard. Mr.
Gilyard makes all mortgage payments en this property. I
do not receive any rental income from this property and
I do not take any income tax deduction (s) for this
property.
Total monthly mortgage paid: $0.00
Mortgage liability for all real estate owned: $497,000.00
Total monthly mortgage paid**: $2536.00
**I only pay the first and second mortgage on my primary
residence at 1347 Bates Road in OaJdand.
1255
ni. 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.
For approximately five years (1985-1989) , as an attorney with
Pacific Bell, I was a committee member and ultimately co-chair
of the San Francisco Barristers' Clxib "Can I Do It Without a
Lawyer Program." Through this program, the Sein Francisco Bar
Association provides free legal advice to indigent individuals
in the San Francisco Bay Area in the areas of landlord-tenant
law, consumer law, family law and also presented role plays on
the most effective mesins of presenting small claims cases. In
addition, from 1981-1989, as a member of the Charles Houston
Bar Association, I participated in law day programs, and free
legal advice clinics annually. I am currently on the Board of
Directors of the "Prescott -Joseph Center for Community
Enhancement. The Prescott Joseph Center is a non-profit
entity that provides a myriad of programs for seniors and
youth in the West Oakland Community, including but not limited
to tutorial programs for youth and senior citizen wellness
programs. I also serve as a mentor for young adults at St.
Patrick ' s Church .
2. The American Bar Association's Commentary to its Code of Judicial
Conduct states that it is inappropriate for a Judge to hold a 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 inq>lementation of membership policies?
If so, list, with the dates of membership. What you have done to try
to change these policies?
I do not belong, nor have I ever belonged, to amy organization
that invidiously discriminates on the basis of race, sex or
religion.
25
1256
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 die
circumstances which led to your nomination and interviews in which
you participated).
I received a letter from Senator Boxer's office soliciting
applications from all persons interested in serving as a
federal district court judge. I submitted an application in
February 1997. Thereafter, I was interviewed by the Senator's
judicial nominations committee. The Committee selected me as
a finalist for the position. I was then interviewed by the
Senator's Office. After ray interview, I was informed that
Senator Boxer was going to recommend me to President Clinton
for nomination to the Federal District Court. After xa/ name
was forwarded to the President, I was interviewed by the
Department of Justice, the Americeui Bar Association and
Federal Bureau of Investigation.
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 you how you
would rule on such a case, issue or question.
No.
5. Please discuss your views on the following criticism involving "judicial
activism. "
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
vehicle for the inq>osition 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;
26
1257
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 has always been my philosophy to decide cases on an
individual basis and issue rulings in accord with the facts
cuid legal principles that govern each case. Strict adherence
to Constitutional principles such as standing and ripeness is
ittportcuit to ensure that the court decides cases when, and
only when, appropriate, and any remedial relief prayed for is
granted only to aggrieved parties. The notion that judges may
use decisions in individual cases to impose broad and
continuing affirmative duties upon governments and agencies
strikes at the very heart of our system of democracy and the
bedrock Constitutional principle: "Separation of Powers."
Often, the solution to societal ills may lie beyond the
purview of the particular statutes or Constitutional
provisions iit^jacted by the legal issues before the court.
When judges reach beyond the applicable statutes and governing
law of their jurisdiction to decide cases, they are apt to run
afoul of and tip the delicate "Balance of Powers" which is
central to our Constitutional democracy.
27
1258
MARTIN J. JENKINS NET WORTH FINANCIAL STATEMENT
SCHEDULE D: "ACCOUNTS AND BILLS DUE/OTHER DEBTS"
1. Accounts and bills due/other debts:
a. Chase Manhattan Visa Account Balance: $1300.00
b. Bank of America
Mastercard Account
c . Bank of America
Visa Account
d. American Express
Delta Sky Miles
Balance: $3500.00
Balance: $4000.00
Balance: $1,600.00
e. Patelco Credit Union Account* Balance: $18,500.00
♦This debt is shared by my brother Darrell Jenkins, and my
sister, Monica Jenkins and arises from the purchase of a new
automobile for my father's birthday on October 16, 1995. Our
respective co-pay is $248.00 per month, on a monthly payment
of 743.00.
Total accounts and bills due:
$28,900.00
1259
EXHIBIT D: SENATE QUESTIONNAIRE FOR JUDICIAL
NOMINEES, PART II, QUESTION #4 "1996 FINANCIAL
DISCLOSURE REPORT"
1) 1996 Nomination Financial Disclosure Filing.
1260
INANCIAL DISCLOSURE REPORT
Name oE Person Reporting
Jenkins, Martin J.
Dace of Report
07 /27/97
I. Page 1 INVESTMENTS and TRUSTS - income, value, transactions (Includes those of spouse
and dependent children. See pp. 37-54 of Instructions.)
Description of Assets
lincluding trust assets!
Indicate where applicable, owner of
the asset by using the parenthetical
B.
during
reporting
period
C.
Gross value
at end of
reporting
period
Transactions during reporting period
ing individual and spouse. MS)' for
(11
Code
(A-HI
(21
div. .
(11
Value:
Code
(2}
Value
Methods
Code
(Q-WI
buy. sell,
merger,
redemp -
If not exempt from disclosure |
Eor ownership by dependent child.
Place -(Xl- after each asset
exempt from prior disclosure.
(21
Date:
Wonth-
Day
(3)
Value2
Code
(41
Gainl
Code
(A-K!
(S)
Identity of
buyer/seller
(if private
transaction!
NONE (No reportable
California
Savings Plus Program
A
DIV
J
T
EXEMPT
California
Judges Retirement System
D
DIV
L
T
EXEMPT
Bank of America
Savings Account
A
INT
J
T
EXEMPT
United Services Credit
Union Savings Account
A
INT
J
T
EXEMPT
Home Savings and Loan
Mortgage on Co-owned Prop.
None
M
W
EXEMPT
Loan of $5000.00
to Mr. Sidney Hughes*
None
J
W
EXEMPT
'
2
.
.
-'
■'
'
'
1 Inc/Oain CdS: A-Sl.OOO or less B-Sl . 001-S2. 500 CSS. 501-S5, 000 D-S5, 001-S15. 000 S-SIS. 001-S50. 000
ICol.Bl.D4l F-SSO.OOI-SIOO.OOO G-SIOO. 001-Sl . 000. 000 Hl-Sl . 000. 001-SS. 000. 000 H2.S5. 000, 001 or aore
2 Val CdS: J-SIS.OOO or less K-SIS. 001-S50 . 000 L-SSO. OOl-SlOO. 000 M-SIOO. 001-S25C. 000 N.S250. 001-S500. 000
,Col. CI. 03, °:!i°|'°gJiJl°i|6°°°o 000 ?i:li6°SS6°§J;'lr°S2r2°° P2.S5 . 000. 001.S2S. 000. 000
J Val Mth Cds: 0-*Ppraisal R-Cost (real estate onlyl S-Assesment T-Cash/Market
(Col. C2I U-BoSk Value V-Other W-Estimated
1261
INANCIAL DISCLOSURE REPORT (cont'd)
4ame of Person Reporting
Jenkins, Martin J.
<:)iini^i
III. ADDITIONAL INFORMATION OR EXPLANATIONS andicate part of Report.)
art II. AGREEMENTS - The balance in my California Judges Retirement Plan is approximately
$60,000.00. I expect that the State of California will reimburse me for
aU — f nnfT■^hllt-^nng Tna>^o ^f T am f- fMi f < rTn o rl Ky ^^^o tjonat-o
'art VI TTtRTTTTTF"; - *Tho HahiHry .-ofo.-rofl rr, here t-o f cT-pnrcg a i-ociHgnrp Thar T rn-r,t.7n ...i' t
a friend of mine. I do not receive any income nor do I take any tax
deduction fnr rhl'-^ prnpprry. Thlc prnpprt-y ig InrarpH ar 7 RirharHc rir
San Francisco, California 94124. Home Savings and Loan holds the first
mnrrgagp anrl f^an F^-an^^g^-n Fmplnyppg CroAit Ilni nn hnlHg a gprnnH nrnrtga^
on the Richards Circle property.
** This debt is shared by my brother, Darrell Jenkins and my sister,
Mnni'ra — Tpnkins Thig rfpKr ariipg frnm rViP purrhagp nf a npu
automobile for my father, James Jenkins, on October 16, 1995. Our
rpgpppM'vp rn-pay ppr mnnrh 1g $7^H Ofl
'art VII. INVESTMENTS AND TRUSTS - *This refers to a loan I made in 1994 to Sidney Hughes, a
friend of mine who was starting a new business venture
at that time. There is no written agreement to verify
the loan, however I do have the cancelled check. This
is an interest free loan and to date I have not received
~ (layiiiiinc in unoit! or in pare.
X. CERTIFICATION.
In compHance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Commiitee on Judicial
xtivities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory function in any litigation
uring the period covered by this report in which I, my spouse, or my minor or dependent children had a financial interest, as defmed in
'anon 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
ccurate, true, and complete to the best of my knowledge and belief, and that any information not reponed was withheld because it met
pplicable statutory provisions permitting non-disclosure.
1 further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been reported are
1 compliance with the provisions of 5 U.S.C. A. app. 4, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Conference regulations.
Date July 27, 1997
JOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
lUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App. 4, § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the
United States Courts
Suite 2-301
One Columbus Circle, N.E.,
Washington, D.C. 20544
1262
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 19 96
(5 U.S.C. App.
. Person Reporting (Last name, firsc. middle initial)
Jenkins, Martin J.
2. Court or Organization
United States District Court
3 Date of Report
07 In /97
.. Title {Article III judges indicate active or
senior status; ftagistrate judges indicate
full- or part-time)
Article III Judge
5. Report Type (check appropriate type)
_S. Nomination, Dace 7 £4/97
Initial Annual Final
6. Reporting Period
1 / 1/96- 7 /30/97
'. Chambers or Office Address
Alameda County Superior Court
Juvenile Division, Department 25
AOO Broadway, Oakland, CA 94607
e. On the basis of the information contained in this Report and
any modifications pertaining thereto, it is, in my opinion,
in compliance with applicable laws and regulations.
Reviewing Officer Date
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 information. Sign on last page.
POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.)
D
POSITION
NONE (No reportable positions)
NAME OF ORGANIZATION/ENTITY
Board of Directors-Prescott Joseph Center for CnTiimiiniry Knhanr
Advisory Board-Center for Community Legal Education
AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.)
)ATE PARTIES AND TERMS
D
NONE (No reportable agreements)
1996 - 97 Collegiate Officials Association ($75.00 per game officiated. 11 game seasoni
1996-97 Northern California Football Officials Assn. (45.00 per game. 6 gamp spasnni
1996-97 California Judges Retirement System (Reimbursement of SfiO.OOO.nn rnnrrihiirpHI
I. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of InstrucUcns.)
D
SOURCE AND TYPE
NONE (No reportable non-investment income)
State of California, Superior Court Judge. Alameda Countv
Collegiate Qiflficials Association ($75.00 per game)
$109.000.00
$ 925.00
Northern California Fobtball Officials Assn. ($45.00 per game) $ 215.00
$
$
1263
:nAncial disclosure report
Name of Person Reporting
Jenkins, Martin J.
07
/"/
REIMBURSEMENTS and GIFTS - transporlation, lodgmg, 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. 26-29 of Instructions.)
SOURCE DESCRIPTION
J
NONE (No such reportable reimbursements or gifts)
OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals '(S)' and "(DC)" to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE ' DESCRIPTION
D
NONE (No such reportable gifts)
i. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate hability of the spouse, "(J)' for joint Uability of
reporting individual and spouse, and "(DC)" for habihty of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
Z]
NONE (No reportable liabilities)
Home Savings and Loan CorpT
Mortgage on residential property
I Co-ovm with a friend.
tl*_
San Francisco Employees Federal Credit Union 2nd Mortgage on home listed ahnvp li*
Patelco Credit Union Auto loan on vehicle purchased for mv dad %*
•Value Codes
00.000 P4-
-$S0.000 L-S50.
.001-S5.00Q.OOO
SIOO,001-S2SO.COO N-S2SO,001-S500.000
.001-S25.000,00
1264
UNITED STATES SENATE
Committee on the Judiciary
Washington DC 20510-6275
Questionnaire for Judicial Nominee
Michael Patrick McCuskey
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Michael Patrick McCuskey
Michael P. McCuskey
Mike McCuskey
Address: List current place of residence and office
address (es) .
Residence:
Washburn IL 61570
Office:
124 SW Adams Street
Suite 595
Peoria IL 61602
Date and place of birth.
June 30, 1948
Peoria IL
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and business
address (es) .
Married to Brenda H. McCuskey (Maiden name is Huber)
Homemaker
Education: List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
Illinois State University, Normal IL
1966-1970
B.S. in Education June 6, 1970
Saint Louis University School of Law, St. Louis MO
1972-1975
Juris Doctor May 10, 1975
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations.
i26r
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
06/01/70-08/31/70: Employed as a Security Guard for
Hiram Walker & Sons, Inc., Peoria IL.
09/01/70-05/31/71: Employed as a High School History
Teacher and Baseball Coach at Ottawa Township High School,
Ottawa IL.
06/01/71-08/31/71: Employed as a Security Guard for
Hiram Walker & Sons, Inc., Peoria IL.
09/01/71-05/31/72: Employed as a High School History
Teacher and Baseball Coach at Ottawa Township High School,
Ottawa IL.
06/01/72-08/31/72: Employed as a Security Guard for
Hiram Walker & Sons, Inc., Peoria IL.
06/01/73-08/31/73: Employed as a Security Guard for
Hiram Walker & Sons, Inc., Peoria IL.
06/01/74-08/31/74: Employed as a Security Guard for
Hiram Walker & Sons, Inc., Peoria IL.
06/01/74-08/31/74: Employed as a Law Clerk for Michael
M. Mihm, then State's Attorney of Peoria County IL.
08/01/75-11/30/88: Partner in law firm of Pace, McCuskey
& Galley, Lacon IL. Managing Partner from 1980-1988.
1975-1978: Member of the Board of Directors of
the Lacon-Sparland Emergency Ambulance Service, Lacon IL.
06/01/76-11/30/88: Public Defender of Marshall County,
Lacon IL.
1977-1981: Member of the Board of Directors of
the Quad-County Counseling Center in Princeton IL.
01/78-11/30/88: Member of the Board of Directors of
the St. Joseph's Nursing Home, Lacon IL.
01/81-11/30/88: Member of the Board of Directors of
Evans Mutual Insurance Company, Varna IL.
01/81-11/30/88: Member of the Board of Directors of
The First National Bank of Lacon IL.
1266
12/05/88-12/02/90: Circuit Judge of the Tenth Judicial
Circuit, Peoria IL.
1989-1995: Member of the Board of Directors of
the Central Illinois Chapter of the American Red Cross,
Peoria IL.
12/03/90-present: Justice of the Third District
Appellate Court of the State of Illinois, Ottawa IL.
1990-present: Member of the Criminal Justice
Advisory Committee of Illinois Valley Community College,
Oglesby IL.
1991-present: Member of Administrative Committee of
the Illinois Appellate Court.
10/92-present: Alternate member of the Appellate
Division of the Illinois Industrial Commission.
1993: Member of Education Committee of the
Illinois Judicial Conference.
1994: Chair of the Executive Committee of
the Illinois Appellate Court.
1996-present : Member of the Board of Directors of
the Illinois State University Alumni Association, Normal
IL.
1996-present: Member of the Board of Directors of
the Illinois State University Varsity I-Club, Normal IL.
May 15, 1997-present: Member of Board of Directors of the
Illinois Appellate Lawyers Association.
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 never served in the military.
Honors and Awards ; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of Interest to the Committee.
The Illinois Public Defender Association gave me an award
at its annual convention on May 17, 1991, which stated:
"Award of Excellence and Meritorious Service in
Recognition and Sincere Appreciation of the Outstanding
Service to the American Justice System by Devotion and
Duty to the Precepts of the United States Constitution".
1267
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.
I previously was a member of the American Bar Association,
the Illinois Trial Lawyers Association, and the American
Judges Association.
Currently, I am a member of the Illinois Judges
Association, Illinois State Bar Association, Peoria County
Bar Association, Marshall County Bar Association, LaSalle
County Bar Association, Tazewell County Bar Association,
American Inns of Court--Abraham Lincoln Inn whore I serve
as a Master of the Bench, and American Inns of Court--
Clarence Darrow Inn where I serve as a Master of the
Bench. I have been the Treasurer of the Clarence Darrow
Inn since June 1, 1996.
I am a member of the ISBA General Practice Section
Council, 1991-present; Member of the ISBA Criminal
Practice Section Council, 1994-present; Member of the ISBA
Family Law Section Council, 1997-present; Elected Member
of the ISBA Assembly, 1992-Present; Member of the
Credentials Committee of the Assembly, 1996; Chair of
Rules and Bylaws Committee of the Assembly, June 21, 1997-
present.
In 1994-1995, I served on a special ad hoc committee of
the ISBA which recommended legislation to the Illinois
General Assembly creating alternative drug treatment
programs to reduce the imprisonment of non-violent, first-
time drug offenders. A copy of the ad hoc committee's
Rehabilitative Incarceration Program legislation is
attached at the end of the questionnaire.
Also, I am a member of the convention committee of the
Illinois Judges Association and a member of the Speakers
Bureau of the Illinois Judges Association.
On May 15, 1997, I was appointed to the Board of Directors
of the Illinois Appellate Lawyers Association.
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.
The League of Women Voters of Greater Peoria IL, The
Illinois State Bar Association, Illinois Judges
Association, Illinois State Troopers Lodge #41 of the
Fraternal Order of Police, Illinois State Grange-Richland
1268
Chapter (Associate Member) . All of these organizations
lobby before public bodies.
The other organizations to which I belong are as follows:
Illinois State University Alumni Association, Rotary Club
of Peoria, Illinois State University Varsity I-Club,
Italian American Society of Peoria IL (Honorary Member),
Hiram Walker Retirees Club, Sons of the American Legion of
Lacon IL, Ancient Free & Accepted Mason of Illinois-Lacon
Lodge #61 of Lacon IL, Ancient Accepted Scottish Rite-
Valley of Peoria IL, Mohammed Temple A. A. O.N. M.S. of
Peoria IL, and the Illinois Appellate Lawyers Association
(Honorary Member).
The by-laws for these organizations are attached at the
end of the questionnaire.
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.
All Courts of the State of Illinois --
October 15, 1975
U.S. District Court, Central District of Illinois --
September 11, 1987
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.
McCuskey, Trend of Illinois Appellate Court Opinions 1992-
1995*; The Effect of Amended Supreme Court Rule 23 and
Administrative Order MR No. 10343, 111. St. B. A. Sec.
Crim. Jus., Vol. 39, No. 8 (May 1996); 111. St. B. A. Sec.
Gen, Prac, Vol. 24, No. 5 (Apr. 1996). Corrections In
article: 111. St. B. A. Sec. Crim. Jus., Vol. 40, No. 1
(July 1996); 111. St. B. A. Sec. Gen. Prac, Vol. 24, No.
6 (June 1996).
McCuskey, Supreme Court Rule 23 -- Brief Comments on the
New Changes, 111. St. B. A. Sec. Crim. Just., Vol. 38, No.
1269
4 (December 1994); 111. St. B. A. Sec. Gen. Prac . , Vol.
23, No. 3 (November 1994).
McCuskey, Internal Procedures of the Third District
Appellate Court -- Docketing to Decision, Appellate L.
Rev., Winter 1994, at 18; 111. St. B. A. Sec. Gen. Prac,
Vol. 22, No. 5 (May 1994).
McCuskey, Appellate Practice -- 10 Brief Tips, Appellate
L. Rev., Winter 1993, at 34 (Copy Attached); 111. St. B.
A. Sec. Gen. Prac, Vol. 22, No. 2 (Nov. 1993).
McCuskey, The Recent Growth of Appellate Review, 111. St.
B. A. Sec Gen. Prac, Vol. 21, No. 5 (Apr. 1993).
McCuskey, Professionalism in the Practice of Law -- Good
Advice from Honest Abe, 111. St. B. A. Sec. Gen. Prac,
Vol. 21, No. 2 (Nov. 1992).
See attached newspaper articles. There are no speeches
attached because I speak extemporaneously without notes.
13. Health; What is the present state of your health? List the
date of your last physical examination.
Health: Excellent.
Last Physical Examination: May 30, 1997.
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.
Elected Judge of the Third District Appellate Court of the
State of Illinois on November 6, 1990. The court is
located in Ottawa, IL, and handles all appeals from the
circuit courts of 21 counties located in North Central
Illinois. In addition, the Third District Appellate Court
hears appeals from various administrative bodies of
Illinois government, including the Illinois Environmental
Protection Agency, the Illinois Human Rights Commission,
the Illinois Property Tax Appeal Board, and the Illinois
Commerce Commission.
The only limitations upon the jurisdiction of the Third
District Appellate Court are in cases where the Circuit
Court has declared a statute unconstitutional or where the
death penalty has been imposed. These cases go directly
to the Supreme Court of Illinois without appellate court
review.
1270
The Illinois Supreme Court has appointed me to serve as an
alternate member of the Appellate Division of the Illinois
Industrial Commission. This court hears appeals in all
workers' compensation cases filed in the State of
Illinois. As a result of this assignment, I have served
many times over the years as a member of this five-judge
court of review.
Elected Judge of the Tenth Judicial Circuit on November 8,
1988. The Tenth Judicial Circuit of the State of Illinois
is the general trial court for the counties of Peoria,
Tazewell, Marshall, Putnam and Stark. From 1988 to 1990,
I was assigned to the trial court in Peoria County. My
courtroom assignments included Chancery, Equity,
Miscellaneous Remedies, Municipalities, Taxation, Probate
and Misdemeanor. Also from 1988 to 1990, the Chief Judge
of the Tenth Judicial Circuit would assign me to handle
various cases in Marshall, Putnam and Stark Counties when
conflicts arose in those courts.
During 1990, I served as a Felony Court Judge in the
Circuit Court of Peoria County IL.
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.
Explanation for 15(1):
1. People V. Lego, 212 111. App. 3d 6, 570 N.E.2d 402 (1991).
2. In re B.A., 284 111. App. 3d 930, 671 N.E.2d 69 (1996).
3. People V. Nitz, 285 111. App. 3d 364, 674 N.E.2d 802
(1996).
4. Dickman v. E.I. Du Pont, 278 111. App. 3d 776, 663 N.E.2d
507 (1996).
5. W.R. Grace v. Ensey, 279 111. App. 3d 1043, 666 N.E.2d 8
(1996) .
6. Parro v. Industrial Commission, 260 111. App. 3d 551, 630
N.E.2d 860 (1993), aff 'd, 167 111. 2d 385, 657 N.E. 2d 882
(1995) .
1271
7. People V. Raya, 267 111. App. 3d 705, 642 N.E.2d 923
(1994) .
8. In re Marriage of Elliott, 279 111. App. 3d 1061, 665
N.E.2d 883 (1996) .
9. People V. Perez, 111. App. 3d , 681 N.E.2d 173
(1997) .
10. People V. William Courtney, Sr., 111. App. 3d ,
N.E.2d (May 30, 1997), 1997 WL 405335.
Explanation for 15(2):
Appellate opinions that I authored which were reversed by the
supreme court:
1. People V. Kilpatrick, No. 3 — 93 — 0347 (September 9, 1994)
(unpublished order under Supreme Court Rule 23). Supreme
Court citation - 167 111. 2d 439, 657 N.E.2d 1005 (1995).
Trial court originally sentenced defendant to consecutive
terms of 9 years for attempted murder and 6 years for home
invasion. Defendant filed a motion to reconsider
sentence, arguing that consecutive sentences were not
permissible. The trial court granted the motion to
reconsider and imposed a single sentence of 15 years. The
appellate court affirmed in an unpublished order. The
supreme court reversed, finding that the trial court could
not increase a sentence once it was imposed pursuant to
section 5--8 — 1(c) of the Unified Code of Corrections (730
ILCS 5--8--l(c) (West 1994)). Two justices dissenting.
2. People V. Pastewski, 251 111. App. 3d 358, 622 N.E.2d 69
(1993). Supreme court citation - 164 111. 2d 189, 647
N.E.2d 278 (1995). The defendant was found not guilty by
reason of insanity. The appellate court held that the
trial court improperly relied on the extended-term
sentencing statute in calculating the defendant's maximum
period of commitment in a mental institution. The supreme
court reversed, finding that the trial court properly used
the extended-term statute in determining the maximum
period of commitment for an insanity acquittee. Two
justices dissenting.
3. Village of Bolinqbrook v. Citizens Utilities Co., 231 111.
App. 3d 740, 597 N.E.2d 246 (1992). Supreme Court
citation - 158 111. 2d 133, 632 N.E.2d 1000 (1994). The
Village filed complaints against the utility company
claiming it violated its ordinances prohibiting the
unlawful discharge of waste in a natural outlet. The
appellate court affirmed the trial court's dismissal of
the complaints, finding that the Public Utilities Act
8
1272
preempted the Village's ordinances. The supreme court
reversed, holding that the Public Utilities Act did not
preempt the Village's home rule power.
4. People V. Hundley, 227 111. App. 3d 1056, 591 N.E.2d 903
(1992). Supreme Court citation - 156 111. 2d 135, 619
N.E.2d 744 (1993). The appellate court held that evidence
found during a warrantless inventory search of a vehicle
was properly suppressed by the trial court because the
police officer did not open a closed container pursuant to
a standardized State Police procedure. The supreme court
reversed, finding that a general order of the Illinois
State Police was adequate to allow the warrantless search.
Three justices dissenting.
Judgments made when I was a circuit court judge which were
reversed or vacated by the appellate court:
1 . Jack Bradley, Inc. v. Department of Employment Security,
204 111. App. 3d 708, 562 N.E.2d 345 (1990). Supreme
Court citation - 146 111. 2d 61, 585 N.E.2d 123 (1991).
The plaintiff provided persons to work as food
demonstrators for various food vendors and retailers.
These demonstrators signed a written contract stating they
were not employees but were independent contractors. The
Illinois Department of Employment Security determined that
the services provided by the food demonstrators were
"employment" for purposes of the Unemployment Insurance
Act. Accordingly, the Department found that the plaintiff
owed for unpaid unemployment contributions . On
administrative review to the circuit court, I reversed the
Department's decision, finding it was against the manifest
weight of the evidence. On appeal, the appellate court
reversed, finding that the food demonstrators were
employees of the plaintiff and were not independent
contractors. One justice dissented. The supreme court
agreed and affirmed the appellate court.
2. People V. Randle, 213 111. App. 3d 1082, 572 N.E.2d 1207
(1991). Following a jury trial, the jury found the
defendant not guilty of attempted murder but guilty of
armed violence, two counts of aggravated battery, reckless
conduct and unlawful use of weapons. I imposed concurrent
terms of imprisonment for the five offenses the defendant
was found guilty of committing. On appeal, the appellate
court reversed the defendant's convictions, finding the
jury's verdicts were legally inconsistent as the defendant
could not simultaneously possess reckless and knowing
Intent. The cause was remanded for a new trial.
3. People V. Burnside, 212 111. App. 3d 605, 571 N.E.2d 487
(1991). Following a jury trial, the defendant was
1273
convicted of unlawful use of weapons by a felon and
unlawful possession of a controlled substance with intent
to deliver. I imposed sentence for the two offenses. On
appeal, the appellate court affirmed the controlled
substance conviction but reversed the conviction of
unlawful use of weapons by a felon. The court found the
prosecutor had misstated the law in its rebuttal closing
argument. The cause was remanded for a new trial on that
charge. Also, because that conviction was considered in
imposing sentence for the other offense, the cause was
also remanded for resentencing on the controlled substance
conviction.
People V. Moniqan, 204 111. App. 3d 686, 561 N.E.2d 1358
(1990). Following a bench trial, the defendant was
convicted of home invasion, residential burglary and
aggravated battery. On appeal, the appellate court
reversed the defendant's conviction of aggravated battery
because it was based on the same physical acts as the
conviction of home invasion. The sentence imposed for
aggravated battery was vacated. The remaining convictions
and sentences were affirmed.
In re Estate of Smith, 201 111. App, 3d 1005, 559 N.E.2d
571 (1990). After receiving a judgment in its favor, the
plaintiff filed a written motion seeking an award of
attorney fees and other expenses. I held a hearing on the
motion and entered an order denying an award of fees and
expenses. The appellate court noted that the order was
silent as to whether the parties were given an opportunity
to introduce evidence at the hearing. The appellate court
vacated my order and remanded the cause. The court held
that the trial court's order was only entitled to
deference after the trial court conducted an evidentiary
hearing.
Fernandez v. Marqolis, 201 111. App. 3d 47, 558 N.E.2d 699
(1990). The plaintiff, an of ficer with the Illinois State
Police, filed a two-count complaint against the Director
of the Department of State Police. Count I alleged
retaliatory discharge and Count II alleged a failure to
follow the Department's termination procedures. I
dismissed both counts, holding that the substance of the
cause of action was against the State of Illinois, and the
circuit court lacked jurisdiction to hear the cause. The
appellate court affirmed in part, reversed in part and
remanded. The court held that it was error to dismiss
Count II because the plaintiff's discharge was an unlawful
act, which is not immunized by the doctrine of sovereign
immunity or by the Court of Claims Act. The court
affirmed my dismissal of Count I. The court held that a
10
1274
claim for retaliatory discharge is against the State of
Illinois and must be brought in the Court of Claims.
7. Bowers v. Allstate Insurance Co., 192 111, App. 3d 725,
549 N.E.2d 21 (1989). The plaintiffs brought a
declaratory judgment action against the defendant to
determine if the automobile policy issued by the defendant
provided coverage to the plaintiffs at the time of an
accident. The defendant claimed that coverage was not in
effect at the time of the accident because the plaintiffs
did not pay their premium in full on the due date. I
granted the defendant's motion for summary judgment. On
appeal, the plaintiffs' main argument was that the
defendant waived its right to cancel the policy by
accepting late payments after the cancellation date. The
appellate court reversed, finding there were contested
facts concerning the waiver issue. The appellate court
concluded that it was a question of fact whether or not
the plaintiffs were entitled to coverage. As a result,
the appellate court held that summary judgment was
improper .
Explanation for 15(3):
1. People V. Perez, 111. App. 3d , 681 N.E.2d 173
(1997).
2. People V. William Courtney, Sr., 111. App. 3d ,
N.E.2d (May 30, 1997), 1997 WL 405335.
3. W.R. Grace & Co. v. Ensey, 279 111. App. 3d 1043, 666
N.E.2d 8 (1996) .
4. People v. Nitz, 285 111. App. 3d 364, 674 N.E.2d 802
(1996) .
5. In re B.A., 283 111. App. 3d 930, 671 N.E.2d 69 (1996).
6. People v. Portuquez, 282 111. App. 3d 98, 667 N.E.2d 1080
1996).
7. People V. Koutsakis, 272 111. App. 3d 159, 649 N.E.2d 605
(1995).
8. People V. Taylor, 259 111. App. 3d 289, 630 N.E.2d 1331
(1994).
9. Land & Lakes Co. v. Illinois Pollution Control Board, 245
111. App. 3d 631, 616 N.E.2d 349 (1993).
10. People V. Kuhfuss, 241 111. App. 3d 311, 608 N.E,2d 1204
(1993).
11
1275
11. People V. Leinweber, 234 111. App. 3d 748, 600 N.E.2d 901
(1992) .
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.
Marshall County Public Defender from 1976-1988. This
part-time position is appointed by the Circuit Judges of
the Tenth Judicial Circuit of the State of Illinois.
I have never been an unsuccessful candidate for elective
public office.
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;
I did not serve as a clerk to a judge.
2. whether you practiced alone, and if so, the
addresses and dates;
I never practiced law 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;
1975-1988: Law Firm of Pace, McCuskey &
Galley, 414 Fifth Street, P.O. Box 279,
Lacon IL 61540. I was a partner in this
law firm.
1976-1988: Public Defender of Marshall
County, IL, 414 Fifth Street, P.O. Box
279, Lacon IL 61540.
1988-1990; Circuit Judge of the Tenth
Judicial Circuit of the State of
Illinois, c/o Peoria County Courthouse,
324 Main Street, Peoria IL 61602.
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1990-present: Justice of the Third
District Appellate Court of the State of
Illinois. The address for the Third
District Appellate Court is 1004
Columbus Street, Ottawa IL 61350. My
office is located at 124 SW Adams
Street, Suite 595, Peoria IL 61602.
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?
As a general practice trial attorney, I
handled all types of litigation from small
claims to first degree murder. Additionally,
I litigated real estate tax matters, social
security administration disability claims,
and unemployment compensation cases before
administrative law judges throughout Central
Illinois. Also, I represented individuals
and businesses before the Internal Revenue
Service. Moreover, I had an extensive
general law practice covering everything from
real estate to probate law. Finally, I
represented many municipalities, townships
and school boards. The character of my law
practice remained the same from 1975 until I
became a Circuit Judge in December 1988.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My typical former clients included
corporations such as the Deneen River Company
of Lacon, IL; The First National Bank of
Lacon, IL; The Marshall County State Bank of
Varna, IL; Illinois Valley Savings & Loan
Association of Henry, IL; The Daughters of
St. Francis of Assisi of Lacon, IL; St.
Joseph's Nursing Home of Lacon, IL; Evans
Mutual Insurance Company of Varna, IL;
Village of Sparland, Village of Benson,
Village of Washburn, City of Lacon, Sparland
School District #3, as well as numerous
Individuals and businesses in all areas of
general practice. Also, I represented
defendants in criminal cases.
While my trial and law office practice
included everything from A to Z in the
general practice of law, my principal
concentration would be in the area of
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criminal law, taxation, family law, real
estate, probate, estate planning, as well as
advising and representing the various
corporations and governmental agencies listed
above.
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.
From 1975 to 1988, I appeared regularly in
the Circuit Courts of Central Illinois, as
well as the Third District Appellate Court.
2. What percentage of these appearances was in:
(a) federal courts;
1%
(b) state courts of record;
98%
(c) other courts.
1% in the Third District Appellate
Court
3. What percentage of your litigation was:
(a) civil;
50%
(b) criminal.
50%
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.
100-150. Very frankly, at this late date in
my legal career, it is impossible to
determine the exact number. I know that I
tried at least one litigated matter during
each month of my legal career. My former law
office does not maintain client records after
10 years. As a result, I have been forced to
reconstruct my litigation career through
microfilmed records obtained from various
circuit clerks' offices.
5. What percentage of these trials was:
(a) jury;
10%
(b) non-jury.
90%
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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 .
Explanation for Case No. 1:
Estate of Clara M. Evans, Plaintiff, v. First National
Bank of Peoria, n/k/a Commerce Bank, Executor, Defendant,
In the Circuit Court of the Tenth Judicial Circuit, Peoria
County, Illinois, Case No. 82-P-264. I represented the
Estate throughout the proceedings until I became a Circuit
Judge in December 1988. Ultimately, the Estate became
involved in litigation with the Internal Revenue Service
which was litigated in the United States Tax Court in St.
Louis, MO, before the Honorable William A. Goffe. The
United States Tax Court case was Docket No. 9010-87, and
was known as Illinois Masonic Home, et al.. Petitioners,
v. Commissioner of Internal Revenue Service, Respondent,
Case No. 93-TC-15.
Capsule Summary:
Clara M. Evans died testate on April 19, 1982. The First
National Bank of Peoria was named as the Executor in her
Last Will and Testament. The Bank employed me as their
attorney to handle the probate of the Will and give legal
advice during the administration of the Estate. On
January 19, 1983, the Federal Estate Tax Form 706 was
filed along with a payment of $776,116.63 for the Federal
Estate Tax liability. The Commissioner of the Internal
Revenue Service conducted an audit of the Federal Estate
Tax Return, and the parties agreed to an additional tax
liability of $101,392.82. The additional tax was paid on
March 1, 1985. The Commissioner mailed an Estate Tax
Closing Letter, Form 627, on May 13, 1985. The period of
limitations for assessment of additional federal estate
tax expired on January 19, 1986. After the expiration of
the statute of limitations, I advised the estate to
distribute the assets to the beneficiaries. On April 3,
1986, the assets of the estate were distributed. On
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December 17, 1986, the Commissioner executed a Reopening
Memorandum, Form 4505. On January 16, 1987, the
Commissioner issued statutory notices to the beneficiaries
which assessed additional estate taxes, penalty and
interest.
I advised the Executor and the beneficiaries that the
Commissioner was without authority to reopen the estate
tax proceedings. Consequently, I advised the Executor and
the beneficiaries not to pay any additional estate taxes,
penalties or interest. I concluded that case law
supported my position. I believed the Commissioner was
estopped from reopening the estate tax proceedings because
the assets of the estate had been distributed after the
statute of limitations had expired.
Attorney David L. Higgs, 101 SW Adams Street, Suite 800,
Peoria, IL 61602, Telephone: 309/637-4900, was hired by
the Executor and the beneficiaries of the Estate to
proceed in the United States Tax Court because I was a
candidate for Circuit Court Judge and a potential witness
if the case went to trial.
The counsel for the Commissioner of the Internal Revenue
Service was David R. Reed. I have been unable to obtain
his address or any further information concerning his
present location.
Trial took place in the United States Tax Court in St.
Louis, MO, on May 16, 17 and 18, 1989. I testified on
March 17, 1989, as a witness regarding the preparation of
the Federal Estate Tax return. At the time I testified,
I was a Circuit Court Judge in the State of Illinois.
Ultimately, Judge William A. Goffe ruled on August 2, 1989
in favor of the beneficiaries of the Estate and against
the Commissioner of the Internal Revenue Service. The
citation of the reported case is as follows: Illinois
Masonic Home v. Commissioner of Internal Revenue, 93 T.C.
145 (1989). Please note that the actual court case was
designated 93 T.C. 15.
Explanation for Case No. 2:
In the Matter of the Estate of James Tully, Deceased, In
the Circuit Court of the Tenth Judicial Circuit, Marshall
County, Illinois, Case No. 86-P-48. I represented the
Catholic Diocese of Peoria, IL, and St. Joseph's Nursing
Home of Lacon, IL, throughout the probate litigation and
during the appeal to the Third District Appellate Court in
Ottawa, IL. The heirs of the Estate of James Tully,
Deceased, filed a will contest and were represented by
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Alexander L. Haglund, who is now deceased. Haglund's
successor law firm is the Feldman Law Office, 224 E. 3rd
Street, Sterling, IL 61081, Telephone: 815/625-7409. The
co-executors of the Estate were: Lewis Campbell and John
J. Wosik. The co-executors were represented by Michael T.
Mahoney, 1011 North 2nd Street; P.O. Box 295, Chillicothe,
IL 61523, Telephone: 309/274-5451. The will contest and
the appeal to the Third District Appellate Court is
captioned In the Matter of the Estate of James Tully,
Deceased.
Capsule Summary:
On March 14, 1979, James Tully executed his Last Will and
Testament, naming Lewis Campbell and John J. Wosik as co-
executors. Paragraph Two of the Will gave his residence
in Lacon, IL, and its contents to his niece, Margaret
Glassburn. The Third Paragraph of the Will gave and
bequeathed "to St. Joseph's Nursing Home in Lacon,
Illinois, any and all accounts that I may have as savings
accounts and/or certificates of deposit for my care and
maintenance during my lifetime and upon the condition that
in the event that there are insufficient funds that they
not place any claim and/or lien against my dwelling house
hereinabove mentioned so that the same may be devised to
my niece, Margaret Glassburn, in fee simple without any
encumbrances . "
The Will contained no residuary clause. James Tully died
on November 27, 1986. His estate consisted of his
residence and approximately $170,000 in savings accounts.
The Will was admitted to probate on December 17, 1986.
The heirs of James Tully filed a will contest and a
petition to construe the will on June 12, 1987. On behalf
of St. Joseph's Nursing Home and the Catholic Diocese of
Peoria, I filed a motion to dismiss the Will Contest and
a motion for judgment on the pleadings. On July 27, 1987,
Judge Robert Cashen granted my motion for judgment on the
pleadings and dismissed with prejudice the petition to
construe the will. The judge also granted my motion to
dismiss the will contest and gave the heirs 30 days to
file an amended complaint.
The heirs filed a notice of appeal with the Third District
Appellate Court. The heirs claimed that the trial court's
order granting judgment was erroneous.
On June 17, 1988, the Appellate Court issued an opinion
affirming the trial court's judgment in all respects. The
Appellate Court's published opinion is cited as follows:
In re Estate of Tully, 171 111. App. 3d 286, 525 N.E.2d
244 (1988).
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Explanation for Case No. 3:
In re the Marriage of Mary C. Gotten, Petitioner, Counter-
Respondent, Appellant, ' V. Joseph A. Gotten, Respondent,
Counter-Petitioner, Appellee, In the Circuit Court of the
Tenth Judicial Circuit, Marshall County, Illinois, Case
No. 82-D-106. I represented Joseph A. Cotten, Respondent,
throughout the trial proceedings and during the appeal to
the Third District Appellate Court in Ottawa, IL. Mary C.
Cotten, Petitioner, was represented by James Hatcher,
Hatcher & Rose, 321-A Main Street, Peoria, IL 61602,
Telephone: 309/676-1639.
Capsule Sununary:
In 1982, Mary Cotten filed a petition seeking a legal
separation from Joseph Cotten. I was retained by Joseph
Cotten. I filed, on his behalf, a counter-petition for
dissolution of marriage. Eventually, the issues of legal
separation and dissolution of marriage were tried in the
Circuit Court of Marshall County before the Honorable
Charles M. Wilson. Evidence was presented on September 12
and 13, 1984. Final argument was heard on September 27,
1984. Judge Wilson entered a judgment of dissolution of
marriage in favor of Joseph Cotten on October 4, 1984. No
appeal was taken from this judgment.
All issues of property and maintenance for Mary Cotten
were tried before the Honorable James M. Bumgarner,
Retired. Evidence was presented in the Circuit Court on
May 9, 1985; June 17, 1985; June 19, 1985 and August 7,
1985. Final arguments were presented on September 25,
1985. A final judgment was entered by Judge Bumgarner.
The judgment divided the parties' property and denied Mary
Cotten 's claim for maintenance and reimbursement of
attorney fees. On November 6, 1985, the trial court
denied Mary Cotten 's petition for rehearing. Mary Cotten
appealed the judgment to the Third District Appellate
Court in Ottawa. Oral argument took place on June 19,
1986.
On July 31, 1986, the Third District Appellate Court
issued an unpublished decision which affirmed the trial
court in all respects.
Explanation for Case No. 4:
Michael C. Conness and Lucille V. Conness,
Plaintiffs/Counter-Defendants, v. Bernard A. DeRubeis,
Jr., Frank DeRubeis, and Melvin DeRubeis,
Defendants/Counter-Plaintiffs, In the Circuit Court of the
Tenth Judicial Circuit, Marshall County, Illinois, Case
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No. 84-LM-188. I represented the DeRubeis brothers,
Defendants/Counter-Plaintiffs, throughout the trial
proceedings. Michael C. Conness and Lucille V. Conness,
Plaintiffs/Counter-Defendants , were represented throughout
the trial proceedings by: Bruce Thiemann, 627 Commerce
Bank Building, Peoria, IL 61602, Telephone: 309/673-0030.
Capsule Summary:
Plaintiffs sued Defendants for damages allegedly caused by
Defendants' use of an agricultural easement across
Plaintiff's land. Defendants counter-claimed, seeking
injunctive relief against Plaintiffs for allegedly
blocking the Defendants' use of the agricultural easement.
The damage question was tried before a jury on May 20 and
21, 1985. The issue of injunctive relief was heard solely
by James M. Bumgarner, who was also the trial judge. The
jury awarded no compensatory damages to plaintiffs.
However, the jury did award plaintiffs punitive damages in
the amount of $500 against defendant Frank DeRubeis.
Judge James M. Bumgarner granted Defendants' injunctive
relief against Plaintiffs.
Explanation for Case No. 5:
People of the State of Illinois, Plaintiff, v. Timothy W.
Franklin, Defendant, In the Circuit Court of the Tenth
Judicial Circuit, Marshall County, Illinois, Case No.
80-CF-116. I represented the Defendant throughout the
trial proceedings. The People of the State of Illinois
were represented by the State's Attorney of Marshall
County, IL. Donald D. Knuckey was the State's Attorney
who initially charged Timothy W. Franklin and assisted in
handling the extradition proceedings in Canada. His
current address is: Marshall County Courthouse, Lacon, IL
61540, Telephone: 309/246-2028. Edward Zukosky was the
State's Attorney of Marshall County during 1981. Mr.
Zukosky represented the People of the State of Illinois
during the jury trial. His address is: 138 Chestnut
Street, Wenona, IL 61377, Telephone: 815/853-4335.
Capsule Summary:
On May 27, 1980, the defendant was charged with six felony
counts. The offenses alleged included rape, attempted
murder, aggravated battery, unlawful restraint and two
counts of deviant sexual assault. The defendant was a
Canadian citizen who lived in London, Ontario Province,
Canada. Franklin and a companion were charged with
abducting an exotic dancer from Peoria and taking her to
Marshall County where the alleged crimes occurred at a
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residence in rural Lacon. As Marshall County Public
Defender, I was appointed to represent the defendant who
fled to Canada after the incident.
The defendant refused to waive extradition. As a
consequence, international extradition proceedings ensued
between the United States of America and the Canadian
government. An evidentiary hearing was held in Ontario
Province to determine whether extradition to the United
States should be granted. The victim and Marshall County
police authorities were required to testify in Canada.
Extradition was ultimately granted, and the defendant was
extradited to the United States for trial in the State of
Illinois .
The defendant was later indicted by a Marshall County
grand jury on January 14, 1981. He was indicted for rape,
attempted murder and unlawful restraint. A jury trial
took place on March 10, 11 and 12, 1981. It ended in a
mistrial when the jury was unable to render a verdict. My
investigation revealed that only one juror favored
conviction on the charges of rape and attempted murder,
while only one juror believed the defendant was not guilty
of the offense of unlawful restraint. Consequently, prior
to re-trial, the defendant entered into a negotiated plea
agreement with the State's Attorney. The defendant
pleaded guilty to unlawful restraint, while the rape and
attempt murder charges were dismissed. The defendant
agreed to a sentence of 3 years ' imprisonment in the
Illinois Department of Corrections and was given credit
for 310 days served. The trial proceedings were handled
by Judge Edward E. Haugens , Deceased.
Explanation for Case No. 6:
People of the State of Illinois, Plaintiff, v. Russell D.
Turk, Defendant, In the Circuit Court of the Tenth
Judicial Circuit, Tazewell County, Illinois, Case No.
79-Y-216. I represented the Defendant in the circuit
court on the motion to withdraw his guilty plea and during
the appeal to the Third District Appellate Court. Erik I.
Blanc was the Assistant State's Attorney of Tazewell
County who handled the proceedings on behalf of the People
of the State of Illinois. Mr. Blanc is currently an
Associate Circuit Judge of the Tenth Judicial Circuit and
can be contacted at: c/o Peoria County Courthouse, 324
Main Street, Peoria, IL 61602, Telephone: 309/672-6047.
Capsule Summary:
Defendant, Russell D. Turk, was charged with the felony
offense of theft over $150. He entered a plea of guilty
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to the offense. Sentencing was set for a hearing
approximately five weeks later. Turk was released on bond
with the special condition that he continue to reside at
the Stonehedge Drug Rehabilitation Facility in Peoria.
Through this portion of Turk's criminal case, he was
represented by Attorney John Bernardi, 334 Elizabeth,
Pekin, IL 61554, Telephone: 309/347-7764.
Turk failed to appear at the sentencing hearing.
Moreover, he did not appear in the circuit court until he
was arrested on a different offense 18 months later. I
entered my appearance as his attorney. I filed a motion
to withdraw the defendant's guilty plea. The motion
claimed that Turk did not voluntarily enter a plea of
guilty because the trial court failed to strictly follow
the requirements of Illinois Supreme Court Rule 402(b)
when it accepted the defendant's guilty plea. On February
13, 1981, following a hearing. Judge Ivan L. Yontz,
Retired, denied my motion and sentenced the defendant to
an extended term of 7 years' imprisonment. I filed a
notice of appeal on Turk's behalf.
The case was orally argued in the Third District Appellate
Court during the summer of 1981. The issues on appeal
were: (1) whether the defendant should have been allowed
to withdraw his plea of guilty because of the trial
court's failure to fully comply with Supreme Court Rule
402(b); and (2) whether the trial court's sentence was
excessive.
On November 12, 1981, the Appellate Court affirmed the
trial court in an unpublished opinion.
Explanation for Case No. 7:
Illinois Valley Savings and Loan Association, an Illinois
Banking Corporation, Plaintiff-Appellee, v. Vann C.
McPeake and Carole Lee McPeake, Defendants, and Thomas J.
Fallbacher and Yolanda Fallbacher, Defendants-Appellants,
In the Circuit Court of the Tenth Judicial Circuit, Putnam
County, Illinois, Case No. 77-L-73. I served as co-
counsel for Illinois Valley Savings and Loan Association,
Plaintiff-Appellee, with my partner, O. B. Pace, Jr.,
Deceased, during the trial proceedings and on appeal.
Vann C. McPeake and Carole Lee McPeake, Defendants, were
pro se and ultimately defaulted during the trial
proceedings. Thomas J. Fallbacher and Yolanda Fallbacher,
Defendants-Appellants, were represented in the trial court
and on appeal by Attorney Karl G. LaPinske, Deceased.
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Capsule Summary:
Defendants Vann and Carole McPeake built an A-frame home
on a portion of Lot 487 in Lake Thunderbird Hills. The
McPeakes negligently constructed their residence on part
of the wrong lot. The McPeakes owned Lot 486, while Lot
487, which was unimproved, was owned by defendants, Thomas
and Yolanda Fallbacher. The McPeakes were adjudicated
bankrupt on March 24, 1975. As a result of their
bankruptcy, Illinois Valley Savings and Loan Association
(Illinois Valley) received notice of the bankruptcy
proceedings because they had loaned the McPeakes money to
construct the house on Lot 486. On July 1, 1975, the
Fallbachers notified Illinois Valley of the McPeakes'
error. Illinois Valley attempted to resolve the matter
with the Fallbachers by way of negotiation. In the
meantime, on or about March 17, 1976, the Fallbachers
acquired all of the McPeakes' interest in Lot 486 through
a quitclaim deed, along with an easement across that lot.
Thereafter, Illinois Valley filed a foreclosure complaint
against Lot 486 joining the McPeakes and Fallbachers as
Defendants. On June 25, 1979, Judge Edward E. Haugens,
Deceased, granted Illinois Valley summary judgment. On
August 27, 1979, Judge Haugens granted Illinois Valley a
judgment of foreclosure. The judge ordered the sale of
Lot 486 free and clear of the Fallbachers' recorded
easement.
On September 27, 1979, the Fallbachers appealed the trial
court's orders. Oral argument took place in the Third
District Appellate Court during the spring of 1980. The
Appellate Court affirmed the trial court in a published
opinion filed August 8, 1980.
The case is cited as follows: Illinois Valley Savings and
Loan Association, an Illinois Banking Corporation,
Plaintiff-Appellee, v. Vann C. McPeake, Carole Lee
McPeake, Defendants, Thomas J. Fallbacher and Yolanda
Fallbacher, Defendants-Appellant, 87 111. App. 3d 39, 409
N.E.2d 97 (1980) .
Explanation for Case No. 8:
In re the Marriage of Cheryl Peros, Plaintiff, and Alex
Peros, Defendant, In the Circuit Court of the Eleventh
Judicial Circuit, Livingston County, Illinois, Case No.
76-D-162. I represented the defendant in the motion to
vacate the divorce decree and during his appeal to the
Fourth District Appellate Court. The Plaintiff-Appellee
was represented throughout the trial proceedings and on
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appeal by Rodney H. Loy, 207 Crestview Drive, Pontiac, IL
61764, Telephone: 815/842-6568.
Capsule Summary:
On June 23, 1977, Judge William T. Caisley, Retired,
entered a judgment of dissolution of marriage
Incorporating therein the parties' settlement agreement.
Alex Peros claimed that he did not voluntarily enter into
the settlement agreement. As a result, he contested the
trial court's entry of the divorce decree. Alex Peros
retained me to contest the judgment and have the property
settlement agreement vacated. On July 1, 1977, I filed a
motion to vacate the judgment. On August 10, 1977, I
entered my appearance, and a hearing was held on the
motion to vacate the judgment. The trial court denied my
motion, and I filed a notice of appeal to the Fourth
District Appellate Court in Springfield, IL.
During the spring of 1978, I orally argued the case before
the Appellate Court. I argued that Alex Peros had been
denied his constitutional right to effective assistance of
counsel. Based on this claim, I asked the court to vacate
the judgment. The Appellate Court disagreed with my
argument and affirmed the trial court.
The Appellate Court issued its unpublished order on April
21, 1978.
Explanation for Case No. 9:
Roger and Judy Hoskins, Plaintiffs, v. Jerry Abbott,
Marshall County Supervisor of Assessments, Defendant, In
the Circuit Court of the Tenth Judicial Circuit, Marshall
County, Illinois, Case No. 76-MR-172. I served as co-
counsel for the Plaintiffs with my partner, O.B. Pace,
Jr., Deceased. The Defendant was represented by Donald D.
Knuckey, Marshall County State's Attorney, 122 North
Prairie, Lacon, IL 61540, Telephone: 309/246-2028
Capsule Summary:
Plaintiffs were real estate taxpayers whose property taxes
had been re-assessed in successive years by the Marshall
County Supervisor of Assessments. Our law office filed a
complaint seeking a Writ of Mandamus against the
Supervisor, requiring him to rescind the real estate
assessment. The complaint alleged that the Supervisor
lacked legal authority to increase the assessed valuation
of plaintiffs' property in a non-quadrennial year. The
case was presented to the Circuit Court by way of a
stipulated set of facts. As a result, no evidence was
23
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presented to the court other than the stipulated facts of
the parties. Circuit Judge Edward E. Haugens, Deceased,
ordered the Writ of mandamus to issue against the
Supervisor.
The Supervisor appealed the decision to the Third District
Appellate Court. A motion was made by the Supervisor to
transfer the case to the Illinois Supreme Court. The
motion was granted by the Supreme Court. Oral argument
was heard during the spring of 1977. I participated in
all phases of the litigation, including the proceedings
before the Supreme Court.
On November 30, 1977, the Illinois Supreme Court reversed
the judgment of the Circuit Court. The decision was
published and is cited as follows: Roger Hoskins, et al,.
Appellees, v. Jerry Abbott, County Supervisor of
Assessments, Appellant, 69 111. 2d 20, 370 N.E.2d 514
(1977).
Explanation for Case No. 10:
People of the State of Illinois, Petitioner-Appellee, v.
Daryl Wealer, Respondent-Appellant, In the Circuit Court
of the Tenth Judicial Circuit, Marshall County, Illinois,
Case No. 75-F-274. Daryl Wealer, Respondent-Appellant,
was represented in the trial court by my partner, O.B.
Pace, Jr., Deceased. I represented the Respondent-
Appellant on appeal to the Third District Appellate Court.
The People of the State of Illinois were represented in
the trial court and on appeal by then-Marshall County
State's Attorney, Robert A. Barnes, Jr., who is now a
Circuit Judge in the Tenth Judicial Circuit. He can be
contacted at: c/o Peoria County Courthouse, 324 Main
Street, Peoria IL 61602, Telephone: 309/672-6047.
Capsule Summary:
On September 8, 1975, Daryl Wealter, a 16-year-old girl,
burglarized Owen's pharmacy in Henry, IL. Wealer and Lori
Maubach took several thousand pills which they were going
to sell in Peoria. The People filed a petition seeking to
have Daryl Wealer declared a delinquent and a ward of the
court. On December 3, 1975, after a dispositional
hearing. Judge Edward E. Haugens, Deceased, found Wealer
to be a delinquent child and remanded her to the custody
of the Juvenile Division of the Illinois Department of
Corrections. Shortly thereafter, I filed an appeal with
the Third District Appellate Court.
The appellate case was orally argued the summer of 1976.
I appeared on behalf of the minor and argued to the
24
1288
Appellate Court that the statutory requirements of the
Illinois Juvenile Court Act had not been met.
Consequently, I claimed that Judge Haugens ' dispositional
order was against the manifest weight of the evidence and
should be reversed and remanded for a new dispositional
hearing. The Appellate Court agreed with my argument and
reversed the trial court's dispositional order.
The Appellate Court's published opinion was issued on
September 29, 1976. The opinion is cited as follows:
People of the State of Illinois, Petitioner-Appellee, v.
Daryl Wealer, Respondent-Appellant, 42 111. App. 3d 479,
355 N.E.2d 187.
Professional reputation list of 10-12 members of the legal
community who have had recent contact with me:
Honorable Michael M. Mihm, Chief Judge of the United
States District Court for the Central District of
Illinois, Federal Building, 100 NE Monroe, Peoria IL
61602, Telephone: 309/671-7113
Honorable Joe B. McDade, Judge of the United States
District Court for the Central District of Illinois,
Federal Building, 100 NE Monroe, Peoria IL 61602,
Telephone: 309/671-7821
Honorable Robert J. Kauffman, Magistrate Judge of the
United States District Court for the Central District of
Illinois, Federal Building, 100 NE Monroe, Peoria IL
61602, Telephone: 309/671-7140
Honorable Richard Parsons, Chief Federal Defender of the
Central District of Illinois, 401 Main Street, Suite 1500,
Peoria IL 61602, Telephone: 309/671-7891
Honorable Tom M. Lytton, Presiding Justice of the Third
District Appellate Court, 1515 5th Avenue, Suite 503,
Moline IL 61265, Telephone: 309/757-9458
Honorable Kent Slater, Appellate Judge of the Third
District Appellate Court, 219 North Randolph Street, P.O.
Box 554, Macomb IL 61554, Telephone: 309/833-1704
Honorable John Gorman, Chief Judge of the Tenth Judicial
Circuit of the State of Illinois, Peoria County
Courthouse, 324 Main Street, Peoria IL 61602, Telephone:
309/672-6047
Honorable Richard E. Eagleton, Attorney at Law and Former
United States Attorney for the Central District of
Illinois and Retired Chief Judge of the Tenth Judicial
25
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Circuit of the State of Illinois, Hinshaw & Culbertson,
456 Fulton, Suite 298, Peoria XL 61602, 309/674-1025
Honorable Peter J. Paolucci, Attorney at Law and Retired
Chief Judge of the Tenth Judicial Circuit of the State of
Illinois, 414 Fifth Street, P.O. Box 279, Lacon IL 61540,
Telephone: 309/246-6775 '
Honorable Kevin Lyons, State's Attorney of Peoria County
???^^^ County Courthouse, 324 Main Street, Peoria IL
61602, Telephone: 309/672-6900
Mr. Robert V. Dewey, President of the Peoria County Bar
Association, c/o Heyl, Royster, Voelker & Allen, 124 SW
^no^^./V'.^f.^' ^"^^® ^°°' Peoria IL 61602, Telephone:
309/676-0400
Mr. Michael T. Reagan, Attorney at Law and Past President
of the Illinois Appellate Lawyers Association, c/o
Herbolsheimer, Lannon, Henson, Duncan and Reagan, P c
433 LaSalle Street, Suite 409, Ottawa IL 61350
19- Legal Activities: Describe the most significant legal
^W4 w^5^f^ ^°" ^^""^ 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. )
I am very active in the Illinois State Bar Association,
Illinois Judges Association and the American Inns of
Court. I spend numerous weekends each year attending Bar
Association functions. I believe that judges should give
as much time as possible to bar associations to assist in
the improvement of the legal profession. In attempting to
carry out this mission, I participate in numerous Illinois
State Bar Association Committees and frequently lecture at
legal educational seminars. Additionally, I attempt as
much as possible to assist the law schools of the State of
Illinois in preparing law students to be advocates and
litigators.
For the past five years, I have served the Illinois
Appellate Lawyers Association and the Illinois State Bar
Association as one of three judges hearing the final oral
arguments in the All-Illinois Moot Court competition.
Eight law schools in the State of Illinois annually
participate in the competition with the final oral
arguments being heard in the Illinois Supreme Court in
Springfield IL.
26
1290
Also, during the past six years, I have traveled twice a
year to Carbondale, IL, to hear oral arguments at Southern
Illinois University School of Law. Last November, I
judged the National Health Law Moot Court Competition for
Southern Illinois University School of Law. This
competition involved 22 law schools from throughout the
United States. I have been invited back to judge this
year's competition on November 7 and 8, 1997.
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.
State of Illinois Judicial Retirement System:
Pension at age 60
State of Illinois Municipal Retirement System:
Pension at age 62
State of Illinois Deferred Compensation Plan
Fidelity Investments -- IRA
American Century Investments -- IRA
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 conf licts-of-interest during your initial
service in the position to which you have been nominated.
I will strictly follow the Code of Judicial Conduct for
United States District Court Judges. Moreover, I believe
that I have no potential conflicts of interest which would
affect my service as a United States District Court Judge
for the Central District of Illinois.
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,
27
1291
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
See Attached Net Worth Statement and Explanation Schedule.
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 never held a position in a political campaign or
political party. I did play a role in the 1988 and 1990
primary and general elections in Illinois because I was a
candidate for judicial office.
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 amount of time devoted to each.
I served on the Board of Directors of the Central Illinois
Chapter of the American Red Cross from 1989-1995.
In addition, I have served the Red Cross on the Health
Services Committee for the past seven years, and was
recently appointed to serve on the Safe Communities
Advisory Council.
I previously served as a board member of the Red Cross DUI
Awareness Task Force which administered a grant from the
Illinois Department of Transportation. The grant was used
to educate high school students about the effects of
alcohol. Mock crash scenes were re-created at various
high schools. The Illinois Department of Transportation
and the Illinois State Police proclaimed the program a
success.
My American Red Cross activities consume approximately 5-
10 hours a month.
28
1292
I have served many years as a member and Chair of the
Minority Involvement Task Force for the Central Illinois
Chapter of the American Red Cross.
For the past nine years, I have served as the Chair of the
Marshall-Putnam County Fair Association Senior Citizens'
Day Committee. As Chair, I plan the annual Senior
Citizens' Day entertainment and emcee all Senior Citizens'
activities during the fair. This activity consumes about
25 hours per year.
I serve on the Criminal Justice Advisory Committee of
Illinois Valley Community College in Oglesby, IL. I have
served on this Committee from 1990 to the present. The
advisory board assists the Director of the Criminal
Justice Department in developing the public outreach of
the program. Also, I have lectured students of the
college on the importance of a career in law enforcement.
This activity consumes about 10-15 hours per year.
From 1977-1981, I served on the Board of Directors of the
Quad-County Counseling Center in Princeton, IL. This
advisory board assisted psychologists in developing a
mental health treatment program in a four-county area in
Central Illinois.
In 1975, I incorporated the Lacon-Sparland Emergency
Ambulance Service. Also, I served three years on the
Board of Directors, and I assisted raising funds for the
ambulance service. This volunteer organization provides
the only emergency ambulance service available in Lacon
and Sparland IL.
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 the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
No.
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).
29
1293
Yes, there is a selection commission for the United States
District Court for the Central District of Illinois. The
commission recommended my nomination to United States
Senators Carol Moseley-Braun and Dick Durbin.
During the judicial selection process, I completed a
questionnaire and submitted it on March 20, 1997 to the
United States Senate Nomination Commission for the Central
District of the State of Illinois.
On May 3, 1997, I was interviewed in Springfield by the
United States Senate Nomination Commission for the Central
District of the State of Illinois.
On May 5, 1997, the Commission recommended to United
States Senators Carol Moseley-Braun and Dick Durbin my
nomination for the vacancy on the U.S. District Court for
the Central District of Illinois.
On May 9, 1997, I was interviewed in Springfield by the
Illinois State Bar Association Judicial Evaluations
Committee.
On May 12, 1997, I was advised by the Illinois State Bar
Association Judicial Evaluations Committee that I was
found to be well-qualified for the position of United
States District Court Judge for the Central District of
Illinois.
On May 13, 1997, I was interviewed in Washington, DC, by
United States Senators Carol Moseley-Braun and Dick
Durbin.
On May 19, 1997, I was advised by United States Senators
Carol Moseley-Braun and Dick Durbin that they were sending
the President of the United States my nomination for the
judicial vacancy on the United States District Court for
the Central District of Illinois.
On May 20, 1997, I was advised by the Office of Counsel to
the President of the United States that my nomination had
been accepted by the President.
Following my nomination by United States Senators Carol
Moseley-Braun and Dick Durbin, I completed extensive
questionnaires for the Department of Justice and the
American Bar Association.
On June 23, 1997, I was interviewed by the Department of
Justice in Washington, DC.
30
1294
On July 15, 1997, I was interviewed by the American Bar
Association in Chicago, IL.
During the summer of 1997, five special agents of the
Federal Bureau of Investigation conducted a thorough
background check regarding my character and fitness to be
a U.S. District Court Judge.
On July 28, 1997, I was advised by the Department of
Justice that my nomination had been forwarded to the
Office of Counsel to the President of the United States.
On July 31, 1997, I was advised by the Office of Counsel
to the President of the United States that President
Clinton had nominated me to fill the vacancy on the United
States District Court for the Central District of Illinois
and that my nomination had been filed with the Committee
on the Judiciary of the United States Senate.
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-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;
31
1295
A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
A tendency by the judiciary to impose itself upon
other institutions in the manner of an administrator
with continuing oversight responsibilities.
Answer to Question No. 5:
I firmly believe that legal decisions should be
decided on a case-by-case basis with the holding
aimed solely at resolving the conflict before the
court. I do not believe that trial judges should
decide cases with an eye toward achieving a broad
resolution of issues.
A United States District Court Judge should
follow the letter of the law and not attempt to
interfere with the other branches of government.
District Court Judges should resolve the issues
and disputes before the court without attempting
to set policy. Judges in all trial courts in the
United States should follow the constitutional
mandate that the executive, legislative and
judicial branches of government are separate
entitles. Moreover, the judicial branch should
not attempt to usurp the powers granted to the
other two branches of government.
32
1296
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1996
l;;-lS-». X3vta^cr 33. 1919
15 ■--.S.C. Xpp. i, 131.11.JI
NcCuskey, Michael P.
iddle i.-.i:UII
J. C=i;rt cr Crs«.-.l = a-.ion
U. S. District Court —
Central District of Illinois
08 ^1 /97
<. Title lArtlcle in judcej indica-.? a::tvt or
.Mlor »ta:usj .Sagis:catc Juagea lr.iieo;.
full- or pan-tjir.tj
Nominee for U. S. District Court Jud
^ KanLnh
or.. ta-.;2/3]797
fi- R*portlng Period
11/1/96- 7 /I ;97
Cr-a-iisrs or OfSire Addr.
-r. the b«*i.i of cr.e information t
Any ircdif icat io.-va pertainir.c thia
in ccnpliance with applicable la
viewing Oi!i;;?
ai-ed ii-. chi« Repo.
IMPORT ANT NOTES: The iostructioiu accompanying [his form miKt be followed. Complete all parts,
cbcclung the NONE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reportiogindividualonly, see pp. 9-13 of Instructions.)
D
POSITION
NONE (No reportable positions)
Director
NAME OF ORGANIZATION/ENTITY
Illinois State University Alumni Association
Illinois State University Varsity "I" Club
II. AGREEMENTS. CR'POrting individual only, see pp. 14-17 of Instructions.)
DATE PARTIES AND TERMS
□
NONE (No reportable agreements)
Vested Member Illinois Judicial Retirement System
III. NON-INVESTMENT INCOME. (Reporting indi^dual and spouse; see pp. 18-25 of Instniciions.)
n
SOURCE AND TYPE
NONE (No reportable non-investment income)
State of
Illinois ~
Judicial
Sa
lary
State of
Illinois --
Judicial
Sa
larv
My wife is a homemaker. She was
not
eilP
loved
duT
im
1995 and
1996.
1297
UNANCIM. DISCLOSURE REPORT
McCuskey, Michael P.
08 /01/97
REIMBURSEMENTS and GIFTS -- traosponaUoD, lodging, food, enicriainmem.
(lacludss those to spouse and dependent children; use the pareniheticals "(S)' and "(DC)' to indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instruction!.)
SOURCE DESCRIPTION
D
NONE (No such reportable reimbursements or gifts)
OTHER GIFTS. (includes those to spouse and dependent children; use the parentheticals "(S)' and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Insliuaioos.)
SOURCE DESCRIPTION
D
NONE (No such reportable gifts)
-1. LIABILITIES. (Includes those of spou-^e and dependent children; indicate where appliaiblc, person responsible
for liability by using the parenthetical "(S)' for separate liability of the spouse, "(J)" for joint liability of
repotting individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
Q
NONE (No reportable liabilities)
•Vslue CodM: O-SIS.OOJ or leis K'SIS.OOI-SSO.OOO L-SSC.OOI-SICO.OCO X>S10O,Olll-52S3,C0a K.S2S0,«9t-$SCC.3CC
C-5»3O,0Dl-Sl.OO3.OOO ?1-Sl, 300. 0C1-S5. OOO.COO - .P2«S5,COa.O31-S25,CO0.OCO ■
pa-S35.0C0. C01-SSe.000.0C» P<-SS0,C00,031 or ciorc ■ .'. ' ' " ■ ' ' ' ' '■
1298
INANCIAL DISCLOSXJRE REPORT
Kii-.c or ?«r»o- Rcjcrclr.s
McCuskey, Michael P.
08/01 /97
I. Page 1 INVESTMENTS and TRUSTS •■ income, value, trinsactions (Includes those of spouji;
and dependent children. See pp. 37-54 of InslrucUons.)
DovsripcLon of Xfssca
tmcludir.? trust ar.ftecsl
Xndlcacc whsrt 4?D;i=ibl», ovr.er cf
B.
I.-.:OT.s
djrir.c
report i-g
period
c.
Gross value
m end 0!
pirioJ
D.
Trsp.anoelone during report irs period
tr.g ir.divifiuai a.->d ipouss, "(SI'' isi
s«parat« owaersSi? by spousie. • (DC) '
£or o>-r-« = 5.1tp by dejender.i c!-.llij.
Place 'IX)- alfBf eich asjcc
«j<9T?t fron prior clsclosj^e.
111
Ant.l
121
Typs
(1)
cod?''
(21
Ket.^.cd!
code
10-a]
If not cxstet from diacloaurc 1
_(21
(3)
Cede
IJ-fl
HI
Gain
Code
: Id.ntl!i 0:
NONE (NO rcpsriiiU
Ir.coT.!. isaeco. or
crmartio.ns)
EXEM
'T
First National Bank ot
\,acon IL
A
Int
J
T
jPfizer, Inc. Coiranon
Srork (S)
A
Div
K
T
Smith Barney Mutual Fund
c
Div
L
T
'Fidelity Fund IRA
E
Div
M
T
American Century Funds IRA
B
Div
J
T
^Fidelity Puritan Fund
Tav Deferred
D
Div
K
T
Illinois Judicial
Retirement System
Fut
ire
P4
T
.
9
10
n
12
"
»
IS
16
"
19
^cJ?=^i!^&.?-^*:lh?§?i=f:J5!?co S:fh§'5;!?i!??,§:!lo="-"-°" S:fJi°?S;n5i???.o=c.ooo • g;2H:?§5:SIM^'^r,
-■ "•- -BMMm^^i... mami'^-''"-"' .?^--^^^Hi-^??soors^f'°:i^!:"-"= _
^1cS> a!""". S^aSSs'il-Ge : -JllSJi-"' ""'■' ""''"'^ ■■'■.-■■:'•-.• 5:|JJ*S?S' ■ 'vTr^f'h/Kirk?::-.
1299
PINANCIM. DISCLOStmE REPORT (conc'd)
KMit of tr.csor. Repor-.l.-.j
McCuskey, Michael P.
08/01/97
vni. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate pan of Report.)
/
IX- CERTIFICATION.
In compliance with the provisioni 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 at 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 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 roy knowledge and belief, and that any information not reported was withheld because it met
applicable stamtory provisions permitting non-disclosure.
I fiirther ceniiy that earned income from outside employment and honoraria and the acceptance of gifts which have been reported are
in compliance widi the provisions of 5 U.S.C. A. app. 4, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Conference regulations.
Signamre
Micrtael P. McCuskey t*'
Date August 1. 1997
NOTE: ANY INDP/IDUAL WHO KNOWlNdLyAND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App. 4, § 1(M.)
\[ ■ FIUNG INSTRUCTIONS:'
,'■ Maji signed onguial isd 3 additioDal copies to: ' .
Comrmilec on Financial bisclosuie
AdmirnsaiiiveOffice of the ■■
■ United Slates Courts '.,. ■
:Suiiei-301' ' : ;'; .■ -.■.:
' One Columbus ciircle, N.E,, : ,
.: Washington; D.C..20J44'.' .■.. .
1300
nNANOAL STATEMENT
NET WORT«
Provide I complete, cunent flr.wclil net wonh jutement which iiemiKi In delill
tU tssf li (Includiig bink jccounts, tttl e$ut«, lecuritiet, tnjju, invejtmenu, tni other fin»flcii]
holdiflgj) »U Uibillticj (Including detu, mongigei. loini, ind other fminciil obligitiont) of
yourxl/, your jpouse, ind other lmn\e<Ii»t4 membert of your household.
ASSETS 1
UABaJTIEi ]
Cuh on tiud Ui4 in luit
21329
KelM JxjrtWr to Unb-Mcwod
i
U.S. CovuBiscnt Moirilin-tiii
»eh*du]«
HoU4 f iyikli Is hula-<u\sKv.'*i
2000
Liit/4 >ceuniu-M Khtduli
73932
Notti f lyitU 10 rtltu'vM
Vnljltc4 fCCurilki-tM k1i<^)«
Koui piyiib to oOiut
.
AccoiuiU tni MUi rtMlviUc \
Amowu >n4 Mis in*
D\)« bvm MliUrti uid fritAdi
VtfiSi (nc«m« lu
1
Dm« bom olhui
Olhu wpiii M tni inltrtit
Douirful Promissory Note
6000
Kill iiuu reerv^itei fkyMt-M
Khc4ul< First of America
5200
)
1
1
Kcd C4U1C own»i-tdd icht^lt
152000
Oiuu] ewit{qu art 4 olhtr U«ni ; iy<
530
i
Rul (ilitc mMU'lu teccivtlli
Olhei it\ti~\\un3ui
Auloi mi otJitf penootl prepoly
30000
Cuh vtlue-Uft lAittTuioa
OOvtr tutlt-iuiolit:
State o^ Illinois Bonds
40000
t
1
IRA's—See Attached Schedule
164301
Deferred Compensation — See
126448
Totti SAOillH
7730
Attached Schedule
KciWofft
i3670
Teui AsMU
614010
T«t>l libnUu uid net Mxtk
.1401
CO.^mN0E^•T UABnJTIES
CENXRAl INFORMATION
Ai toiotut, totntku or juouilof
■0
Art iny uk'j fte<S(»ifl (Add iched-
<iJt.)
No
On Itutt u oontncU
0
Art yog icttaiu* Ir. tr^ tolu or Ufi
wiiout
No
UcO Clilmt
0
KiT< you cc* UXta tuJovpleyl
Nft
ProviiIoB for Fedeni Ineomt Ttt
0
OlfKr ip«ul <tU
0
^^
1301
ATTACHMENT TO FINANCIAL STATEMENT
OF
MICHAEL P. McCUSKEY AND BRENDA H. McCUSKEY
Listed Securities
Pfizer, Inc. Common Stock 18,688
Smith Barney Mutual Fund 55,244
Real Estate Owned
Personal Residence 135,000
Washburn IL
1/3 Interest In Condominium 17,000
St. Petersburg FL
Individual Retirement Accounts
Fidelity Investments 154,090
American Centry Investments 10,211
Deferred Compensation
With State of Illinois as 22,513
Employer--Invested in
Vanguard Inst. Index Fund
State of Illinois
Judicial Retirement System 93,259
Illinois Municipal Retirement Fund 10,676
1302
BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.) '
George Patrick Murphy
2. Address: List current place of residence and office address(es).
Office: G. Patrick Murphy, Attorney at Law
1 04 W. Calvert, P.O. Box 907
Marion, IL 62959
Home: Marion, IL 62959
3. Date and place of birth.
12/1/48
Carbondale, Illinois
4. Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married to Gail Diane (Sanders) Murphy
Spouse's occupation: Student
5. Education: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
John A. Logan Junior College, 1969 • 1970
Southern Illinois University, 1970 - 1975
Bachelor of Science - May 1 7, 1 975
Southern Illinois University School of Law, 1975 - 1977
Juris Doctorate, Dec. 17, 1977
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.
(1 ) James W. Sanders & Associates 1 978 - 1 982
Associate
1303
(2) Garrison & Garrison 1982-19
Associ!
(3) Winters, Brewster, Murphy, 1983-19
Crosby & Patchett Partn
(4) G. Patrick Murphy, Attorney at Law 1994 - Prese
Self-employ(
Sole practition
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.
Yes.
June 30, 1966 / April 18, 1969
Marines - Viet Nam -K Co 3d Bn 1st Marines
Rank: E4
Serial Number: 2286652
Honorably discharged
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society membership that you believe would be of interest to the
Committee.
Fellow - American College of Trial Lawyers
Member - National Board of Trial Advocacy
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.
Fellow, American College of Trial Lawyers
(Illinois Downstate Committee)
National Board of Trial Advocacy, Member, Civil Section
Illinois State Bar Association, Member
American Bar Association, Member
(Forum on Construction Law,
Tort & Insurance Practice Section, Litigation Section)
Illinois Trial Lawyers Association, Member
The Association of Trial Lawyers of America, Member
-2-
1304
10. Other Memberships: List all organizations to which you belong that are active
in lobbj-lng before public bodies. Please list all other organizations to which
yon belong I am a member of the following organizations and each one is
active in lobbying before public bodies:
Veterans of Foreign Wars
American College of Trial Lawyers
Illinois State Bar Association
American Bar Association
Illinois Trial Lawyers Association
Association of Trial Lawyers of America
Marine Corp League
1 1 Court Admission: List all courts in which you have been admitted lu practice,
with dates of admission and lapses if any such memberships lapsed Plr^se
explain the reason for any lapse of membership. Give the same information lor
Hdmlnlstratlve bodies which require special admission to practice.
lillnols Supreme Court, Illinois Appellate Court, and Illinois trial courts.
May ie, 1978
United States District Court for the Southern District of Illinois, 1 980
United States Court of Appeals for the Seventh Circuit, May 19, 19B5
12 rublished Writings: List the titles, publishers, and dales 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 I hey are readily available to you, please supply them.
I have not spoken on Issues of constitutional law or legal policy.
Southern llllnots University Law Journal Volume 20, Summer 1 098
Survey of lltlnolt Law: Evidence
Southern llllnole University Law Journal Volume 1 3. Bprlng 1 BBB
Civil Procedure
Similar Occurrencee April 10, 1B62
ISBA Law Ed Series
Bloomlnglon, IL
Discovery In a Products Case April 10, 1B92
From the Plaintiff's Perspective
1305
Comparative Negligence April 28, 1984
ITLA
Pretrial Discovery - Tips & Tactics April 8, 1988
Hot Tips November 1 , 1 993
Slip, Trip & Fall Mishaps
Plaintiff Perspective
Anatomy of a Trial April 11, 1994
Civil Practice & Procedure
Pretrial Preparation
ISBA Law Ed Series
Anatomy of a Trial November 1 7, 1994
Part II: Recurring Evidentiary Issues
ISBA Law Ed Series
Bloomington, IL
Current Topics in Injury Victim Advocacy April 8, 1995
Evidence of Previous Injuries
St. Louis, MO
The Future of Health Care: October 22, 1996
Doing More With Less
The Legal Aspects of Managed Care
& Medicare-Medicaid Fraud and Abuse
Collinsville, IL
How to Make Money, Keep Money, and Sleep February 1 2, 1 997
at Night in Handling Plaintiff Litigation
Settlement Offers and Liens
ISBA Law Ed Series
13. Health: What is the present state of your health? List the date of your last
physical examination.
Good. Last Exam: June 19, 1997
14. Tudicial 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 \vritten; (2) a short summary of and
citations for all appellate opinions where your decisions were reversed or where
1306
your judgment was affirmed with significar\t 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.
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 clerk;
No.
2. whether you practiced alone, and if so, the addresses and dates;
I currently practice alone and have done so since January 1 ,
1994.
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;
(1 ) James W. Sanders & Associates 1 978 - 1 982
Associate
(2) Garrison & Garrison 1982-1983
Associate
1307
(3) Winters, Brewster. Murphy, 1983-1893
Crosby & Patchett Partner
(4) O. Patrick Murphy. Attorney at Law 1994 -Present
Self-employed
Sole practitioner
What has been the |>cneral character of your law practice, dividing
it into periods with dates if Its characier has changed over tl\c years?
I have been a trial lawyer sinoe I started practicing law. Initially,
I defended nnunlclpal bodies and school boards In employment
and civil rights litigation. While I was employed at Garrison &
Garrison. I handled personal Injury cases on behalf of Insurers
and their Insureds. While I was a partner at Winters. Brewster.
Murphy, Crosby & Patchett. I divided my practice between
Insurance coverage litigation for the Insured, construction
litigation, and plaintiff's personal Injury litigation. Since I have
been a solo practitioner, I have primarily handled pialntlfTs
personal Ir^ury cases with a sprinkling of Insurance defense
work as well as commercial and construction litigation.
Describe your typical former clients, and ntcntion the areas, if any,
in whiclt you have specialized.
Generally, I represent individuals who have been Injured and are
seeking damages. I also represent banks and businesses In
litigated matters. I have specialized In civil litigation.
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; I am In court on a dally
basis.
What percentage of these appearances was in:
(a) federal courts; 20%
(b) state courts of record; 80%
(c) other courts.
-6-
1308
3. What percentage of your litigation was:
(a) civil; 95%
(b) criminal. 5%
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.
Approximately 250 tried to verdict or judgment as sole counsel.
5. What percentage of these trials was:
(a) jury; 35%
(b) non-jury. 65%
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.
1 . Mid-America Ban/< & Trust v Commercial Union,
587 NE2d 81, 224 III App 3d 1083 (1992)
Summary: A complicated insurance coverage case. The insurer,
Commercial Union, refused to accept a reasonable settlement
demand until the eve of trial, which resulted in a verdict many
times the amount of the coverage. The plaintiff in the underlying
case obtained an assignment from the insured and his lawyer
referred the coverage case to me. The insurer refused to settle
the coverage case and it was tried to a jury. My client, a severely
injured minor, received the entire amount of his original verdict
along with his attorneys' fees.
-7-
1309
Represented:
Detail participation:
Court:
Judge:
Opposing Counsel:
Mid-America Bank & Trust Company, Administrator
of the Estate of Oavid Struempf, a Disabled Adult
Sole counsel
Circuit Court, Madison County
The Honorable Gordon Maag
Michael J. Pitzer
Rabbitt, Pitzer & Snodgrass, P.C.
One Boatmen's Plaza, Suite 2300
800 Market Street
St. Louis, MO 63101-2608
Phone:314-421-5545
2.
People V Bebout
Circuit
(1984) 84-CF-ig0, Williamson County, First Judicial
Summary: A murder case where I represented a young handyman charged
with killing an elderly woman with a garrote. The defendant was
found not-guilty of all charges.
Represented:
Detail Participation:
Date of Trial:
Court:
Judge:
Co-Counsel:
Donald Bebout
Lead counsel
1984
Circuit Court, Williamson County
The Honorable Robert H. Howerton
Brocton Lockwood
Attorney at Law
802 N. Court, P.O. Box 1208
Marion, IL 62959
Phone: 618-997-3202
Opposing Counsel:
Brian D. Lewis
(then Asst. Wmsn. Co. States Attorney)
Attorney at Law
503 W. Jackson
Marion, IL 62959
Phone:618-997-6211
3.
SwinkvKLLM
90-4094, So. Dist. of IL (1990)
Summary: A catastrophic injury case that was tried to verdict in federal
district court for the Southern District of Illinois. Mr. Swink was
struck by a truck while assisting a stranded motorist on the
shoulder of the highway. Although he was severely injured,
there was no offer before trial. The jury's verdict for the plaintiff
resulted in a $13,350,000 judgment that was completely
satisfied by the defendant's insurer.
-8-
1310
Represented:
Detail Participation:
Date of Trial:
Court:
Judge:
Co-Counsel:
Dennis Swink
Lead counsel
1990
U.S. District Court, So. District of Illinois - Benton
The Honorable James L. Foreman
Ronald E. Osman
Ronald E. Osman & Associates
1602 West Kimmel, P.O. Box 939
Marion. IL 62959
Phone: 618-997-5151
Opposihg Counsel:
Jerome E. McDonald
Campbell, Black, Carnine & Hedin, P.O.
108 S. 9th Street
P.O. Drawer C
Mt. Vernon, IL 62864
Phone:618-242-3310
Richard Record
Craig & Craig
1807 Broadway Ave.
P.O. Box 689
Mattoon, IL61938
Phone:217-234-6481
4. County of Massac v United States Fidelity and Guaranty Co.
446 NE2d 584, 113 III App 3d 35 (1983)
Summary: An insurance coverage case. The plaintiff in the underlying
case, Mark Kruger, was injured when his car struck a partially
completed bridge being constructed over a creek. He sued the
construction company and my client, the County of Massac, for
negligently failing to provide adequate warning signs,
barricades, or lighting to alert motorists that the bridge was
under construction. The county's insurer, USF&G, refused to
defend the county on the grounds the applicable policy did not
provide coverage. Later, USF&G took the position that it did not
provide a defense to the county because this would have
created a conflict of interest. The Appellate Court held that
USF&G was estopped from asserting a coverage defense as it
wrongfully refused to defend the county. Moreover, the court
found that there was no conflict of interest.
Represented:
Detail Participation:
Date of Trial:
Court:
Judge:
The County of Massac
Sole Counsel
1983
Circuit Court, Massac County
The Honorable James R. Williamson
-9-
1311
Opposing Counsel: J. C. Mitchell
Mitchell & Mitchell
404 N. Monroe
Marion, IL 62959
Phone: 618-993-2134
5. People V Comille
484NE2d301, 136IlIApp3d 1011 (1983)
Summary: A criminal case where a sheriff was charged with official
misconduct. He was collecting fines and depositing them in his
personal account. He could not account for all of the fines he
collected nor could he account for what he had expended. 1
represented the sheriff and presented a defense consistent with
his assertion that he was using the money to pay informants.
He was found guilty on two of four counts. The guilty
judgments were affirmed on appeal.
Represented: Sheriff Comille
Detail Participation: Sole counsel
Date of Trial: 1983
Court: Massac County, III
Judge: The Honorable William A. Lewis
Opposing Counsel: Special Prosecutor now Associate Judge
The Honorable Rodney A. Clutts
Union County Courthouse
309 W. Market Street
Jonesboro, IL 62952
Phone:618-833-8114
6. Landmark Structures, Inc. v F.E. Holmes & Son Const. Co.
552 NE2d 1336, 195 III App 3d 1036 (1990)
Summary: A commercial case where my client, a general contractor, was
sued by a siding manufacturer because of his failure to pay for
siding. The siding was used on several sets of apartrnent
buildings and ultimately buckled and had to be replaced. My
client counter-claimed and was completely successful in the
trial court. The trial court was affirmed on appeal.
Represented: F.E. Holmes & Son Construction Co.
Detail Participation: Sole counsel
-10-
1312
Date of Trial:
Court:
Judge:
Opposing Counsel:
1990
Circuit Court, Johnson County
The Honorable James R. Williamson
Ronald E. Fuhr
Parker, Seimer, Austin & Resch
P.O. Box 697
307 North Third Street
Effingham, IL 62401
Phone:217-342-9291
7. Kigin v Woodmen of the World Ins.
541 NE2d 735, 185 III App 3d 400 (1989)
Summary: A young girl who was a guest at a Woodmen of the World
summer camp was sexually assaulted by an intoxicated
counselor. The trial court dismissed the case on the pleadings
as there was no allegation that the defendant was aware of the
counselor's intoxication or propensity to take advantage of
young girls. The Appellate Court reversed and remanded the
case for a trial on the merits. The case ultimately settled.
Represented:
Detail participation:
Date of Trial:
Court:
Judge:
Opposing Counsel:
Darlene Kigin, Next Friend of Misty Mitchell, a minor
Sole counsel
1989
Circuit Court, Williamson County
The Honorable Robert H. Howerton
James B. Bleyer
Bleyer & Bleyer
601 W. Jackson, P. O. Box 487
Marion, IL 62959
Phone:618-997-1331
8. Salo V Singhurse
537 NE2d 339, 181 III App 3d 641 (1989)
Summary: A personal injury case arising out of an intersection collision.
My client, Mike Salo, was assessed a percentage of comparative
negligence, a finding from which I prosecuted an appeal. The
case was remanded for a new trial on the issue of liability and
ultimately settled for the entire amount of the damages awarded
in the first trial without reduction for comparative fault.
Represented:
Detail participation:
Date of Trial:
Mike Salo
Sole counsel
1989
-11-
1313
Court:
Judge:
Opposing Counsel:
Circuit Court, Franklin County
The Honorable Loren Lewis
Michael J. Pitzer
Rabbitt, Pitzer & Snodgrass, P.C.
One Boatmen's Plaza, Suite 2300
800 Market Street
St. Louis, MO 63101-2608
Phone: 314-421-5545
Carlisle v Harp
558 NE2d 318, 2001
App 3d 908 (1990)
Summary: A personal injury case arising out of an intersection collision. I
represented the plaintiff, Dorothy Carlisle, who was traveling
west into an intersection. The defendant was traveling north into
the intersection. It was an open intersection and both parties'
visibility was hampered by vegetation. The defendant. Harp,
was carrying out his duties as a mail carrier when the collision
occurred. He admitted driving into the intersection without
knowing what was coming from his right. Shortly before trial,
defense counsel sought to have the plaintiff examined by his
retained expert. This request was denied on the grounds it was
untimely. After trial started, he attempted to assert the defense
of plaintiffs contributory negligence. The court denied his
request to amend his answer and assert this defense. The
plaintiff recovered a verdict in the amount of $40,000 for a back
injury and this verdict was affirmed on appeal.
Represented:
Detail participation:
Date of Trial:
Court:
Judge:
Opposing Counsel:
Dorothy Carlisle
Sole counsel
1990
Circuit Court, Franklin County
The Honorable Terrence Hopkins
Paul Giamanco
Attorney at Law
1008 Jordan, P.O. Box 882
Mt. Vernon, IL 62864
Phone:618-244-5737
1 0 . Murphy v Inter-City Products
93-CV-526, So. District of Illinois
Summary: Raymond Murphy, no relation to Attorney Murphy, was assaulted
by an employee of an outside security agency at a factory
-12-
1314
auction. Mr. Murphy was not physically injured. The security
company and the factory owner tool* the position that since
there was no physical injury, Mr. Murphy was not entitled to
damages. The jury returned a verdict for $20,000.
Represented: Ray Murphy
Detail participation: Sole counsel
Date of Trial: October 12 - 14, 1994
Court: U.S. District Court, So. District of Illinois -
E. St. Louis
Judge: The Honorable Clifford Proud
Opposing Counsel: Stephen C. Mudge
Reed, Armstrong, etal.
101 N. Main, P.O. Box 368
Edwardsville, IL 62025
Phone: 618-656-0257
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.)
Davis V Showa Denko, MDL-865, So. Dist of IL, (1994) settled before trial. My
client, like thousands of other middle-aged American women suffered
rheumatoid type symptoms as a result of using an over-the-counter food
supplement, L-Tryptophan. L-Tryptophan is an amino acid that is essential for
a healthy diet. The Japanese defendant, Showa Denko, devised a method of
synthetically producing L-Tryptophan which was sold to American
distributors through a wholly owned subsidiary, Showa Denko of America.
Inc. Unfortunately the product was not wholesome and thousands of
consumers were injured as a result. This case is significant because the
liability aspect of the case was consolidated and the lawyers for the victims,
working together, put together a solid case that resulted in all of the cases
being settled except for one in California. The case involved multi-
jurisdictional discovery (Germany, Japan, and England) as well as cutting
edge medical science. The case settled on terms very satisfactory to my
client.
The most significant non-litigated matter I have been involved in is acting in
the capacity as Guardian for a disabled minor. I believe my ward, in years to
come, will enjoy a quality of life that she would not have otherwise
experienced but for my efforts.
-13-
1315
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.
I intend to refer all of my open files to other lawyers. I do not expect to
receive any remuneration for legal services that are unpaid as of the date I
am sworn in as a Federal District Judge. I will either rent or sell the building
where my law practice is presently situated. Otherwise, I do not anticipate
receipt of any deferred income, stock options, uncompleted contracts, and
other future benefits.
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.
I virill follow the guidelines of the Code of Judicial Conduct.
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 sales,
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 attached Financial Disclosure Report.
■14-
1316
5. Please complete the attached financial net worth statement in detail (Ad
schedules as called for).
See attached net worth statement.
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 was treasurer for the judicial campaigns of Robert Howerton for
Appellate Court Judge (1991), Terrence Hopkins for Appellate Court
Judge (1994) and Ronald Eckiss for Circuit Court Judge (1994).
■15-
1317
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 amount of time
devoted to each.
I devote approximately 20 percent of my time to pro-bono work. For
instance, I am the court appointed guardian for Amanda MIssine, a
disabled minor. I have served in this capacity since 1990. 1 have not taken
a fee for my services since 1990. 1 manage her estate and approve all
expenditures. Each week, I make decisions as to what services she needs
and what she should pay for those services. I regularly provide services to
members of the Veterans of Foreign wars and their spouses without fee.
Typically, this includes the preparation of a will and a durable power of
attorney. My staff, from time to time, is required to make visits to the V.A.
hospital. To my knowledge, we have never charged a veteran or his
spouse for these services. I am an active member of the VFW Post 1301
Ritual Team and as such I participate in approximately 25 funerals a year
for veterans. Also, I regularly assist indigent or disadvantaged persons in
obtaining divorces without charge. I recently tried a tort case for a young
indigent black man who was sued for property damage arising out of a two
car vehicular accident. This case was prosecuted as an insurance
subrogation matter, my client, Jason Isaacs, was uninsured. I tried the
case to verdict without any fee. He was completely exonerated. I have
never tried to keep a record of the pro bono work that I do because I
provide it on an as-needed basis.
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 the
practical implementation of membership policies? If so, list, with dates of
membership. What you have done to try to change these policies?
No.
-16-
1318
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 circim\stances which led to your
nomination and interviews in which you participated).
I was recommended by a selection committee. I completed a substantial
application and was interviewed by the entire committee. I was
interviewed by Senators Moseley-Braun and Durbin and recommended by
them. I also completed lengthy questionnaires and was interviewed by
representatives of the ABA, Department of Justice and FBI.
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 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 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;
A tendency by the judiciary to impose broad, affirmative duti
governments and society;
ies upon
■17-
1319
A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
The federal courts are courts of limited jurisdiction. A federal court
should not accept Jurisdiction of a case unless the requirements of the
particular statute or the Constitution are clearly met. The function of
a trial judge is to adjudicate actual disputes between real parties in
accordance with the law and the evidence. It is not the function of a
judge to attempt to solve larger social problems when deciding a case.
It is not proper for courts to function as legislators or administrators.
A district judge is bound by precedent. It is not the function of a district
judge to attempt to establish precedent in an area where there is
applicable precedent.
-18-
1320
lO-IO (w)
lev. a/96
FINANCIAL DISCLOSURE REPORT
Nominatioii Report
Report Required by the Ethia
Reform Aa of 1989. PubLNo.
101194. November 30. I9S9
(3 U.S.C. Afp. 4 . Sec. 101-112)
PcnoD Reportiiig (Loit name, first. tnidtBe initiat)
/lurphy, George P.
2. Conrt or Ortinlrarioil
U.S. Dist. Ct. So. Dist.of IL
3. D«U of Report
08/02/1997
6. Reporting Pu
01/01/1996
06/30/1997
. TUc (Artide III judges indicate active or
senior status: magistrate judges indicate
fitU- or part-time)
J.S. District Judge Nominee
S. Report Type (check type)
X Nomimlioii. Dite 07/31/1997
Inidai Annual Fuol
. Chambers or Omce Addrca
104 W.Calvert
=.0. Box 907
Vlarion, IL 62959
8. Go the baiia of the Infoniiatioil contained In this Report and any
modifications pertaining thereto, it Is in my oplnloa. In compliance
with applicable laws and regulations.
Reriewlng Onker
IMPORTANT NOTES: Vu instructions accompanying this form must be followed. Complete ail parts,
checking the NONE box for each section where you have no reportable infomation. Sign on the last page.
POSITIONS (Reporting individual only:
POSITION
X, NONE (No reportable positions.)
epp. 9-13 of Instructions)
NAME OF ORGANIZATION / ENTTTY
[. AGREE^MEINTS (Reporting individual only: see pp. 14-17 <^ instructions. )
DATE PARTIES AND TERMS
^
NONE (No reportable agreements.)
n. NON-I>rVESTMENT ESCOME
DATE
NONE (No repomble
^ 1997 Law practice
(Reporting individual and spouse: see pp. 18-25 of Instruaions.)
PARTIES AND TERMS
2 1996
1995
Law Practice
3 1994-97 G. Patrick Murphy, Attorney (S)
Law practice
GROSS INCOME
(yours, not spouse's)
$ 159,697.35
$ 199,099.00
$ 284.736.00
1321
fANCIAL DISCLOSURE REPORT
Nune ot renoo KcpoiSi^
Murphy, George P.
Due of Repon
08/02/1997
REIMBURSEMENTS and GIFTS - nnsponition. lodging, rood, ciuciuimncu.
luda ihoae lo spouse and deperulaa childrtm use Uie pareiuhelicats '(S)' out '(DQ ' lo indicate reportable reimbunemaus and gifts received by spouse
dependent children, respectivety . See pp. 26-29 of Instructions.)
:
SOURCE DESCRIPTION
NONE (No such reponable rciinburseinents or gifts)
exempt
. OTHER GXFTS
dudes those to spouse and dependent children; use the paremheticals '(S) ' and 'Q>Q ' to indicate other gifts received by spouse and dependent children,
pectivefy. See pp. 30-33 of Instructions.)
3
SOURCE DESCRIPTION VALUE
NONE (No such repomble gifts)
exempt
[. LLVBILITIES
'ncludes those of spouse and dependent children; indicate where applicable, person responsible for liabUay by using the parenthetical '(Sj'for separate
ability of the spouse, '(/)' for joint liability of reporting iruUvidual and spouse, and '(DQ' for liability of a dependent child. See pp. 34-36 of Instructions.)
3
CREDITOR DESCRIPTION VALUE CODE*
NONE (No reponable liabilities)
Bank of Herrin, Herrin, IL Offic:e Building Mortgage
•VALCODES:J=$l5.(X»orless K = $15.(»1-JS0.(X)0 L=$50.001 lo $100,000 M=$100.001J250,000 N=J250.001-$500.000
0=$500.001-S1. 000.000 Pl=$1.000.001-$5.000,000 P2 = $5.0OO.001-J25.0O0.0OO P3=$25.000.001-$50.000.000 P4= $50,000,001 or more
1322
INANCIAL DISCLOSURE REPORT
Nime of t*ersoD Reporting
Murphy, George P.
- income, vatiu. transactions (incUtdes tiuat of spouse and
dependent children. See pp. 37-54 of Instructions.)
DinorRepoR
08/02/1997
01. Page 1 EWESTMENTS and TRUSTS
A.
DescriptioaafAsels
•ulicaie vhtre applicable, owner <>f
'le asset by using the parenthetical
B.
Income
during
repotting
period
C.
Gross value
aiendof
reporting
period
D.
Tntisaclions during repoitiiig period
Uj 'fi>r Joint ownership of reporting
Tdividual and spouse. '(Sl'prsep-
1)
\m.
Code
A-
H)
m
Type
(e.g..
dividend.
interest)
(1)
Value
Code
(I-P)
m
Value
Medxid
Code
(Q-W)
(1)
Type
(e.g.
buy. sell.
merger,
redemp-
If not exempt from disclosure 1
rale ownership by spouse. '(DQ'
or ownership by dependent child.
Place '00 ' t^er each asset
exempt from prior disclosure.
(2)
Date:
Mondt-
Day
3)
Value
Code
J-P)
(4)
Gain
Code
(AH)
(5)
Identity of
twyer/setler
(if private
transaction)
NONE (no repomble locome.asseis. or
transactions)
1 Hearcland Bancsharea - common
IV
Dividend
J
T
exempt
2 Charter Financial Incorporated -
common
B
Dividend
M
T
exempt
3 Heritage Cash Trust Money Market
D
Interest
K
W
exempt
4 Kemper High Yield Fund
H
Dividend
K
W
exempt
SAlB Value Class Mutual Fund
H
Dividend
J
H
exempt
6 Van Kampen Agressive Growth Fund
None
J
H
exeiq>t
7 Modem Hoodmen of Am. Annuity
A
Interest
J
T
exempt
8 SIT Mutual Fund Group
None
J
T
exempt
9 Mercantile Bank money market
A
Interest
J
T
exempt
10 Bank of Hezxln NOW acct
A
Interest
J
T
exempt
11 Chemed Corporation - common
A
Dividend
exempt
12 Compaq Computer Corp - common
None
exempt
13 GTE Corp - common
A
Dividend
exempt
14 Southern Company - common
A
Dividend
exempt
is Monterey Pasta Co . - common
None
exempt
16 Pacific Telesis Group - common
A
Dividend
exempt
n Pepsico Inc. - common
A
Dividend
exempt
Itnc/Gain Codes: A=$1.000 or less B=$1.001-J2,500 C=$2,50l-J5,000 D=J5,001-SIS,000 E-II5.0O1-S5O.00O
(Col.Bl.D4) F=$50,00l-I100,000 0=J 100.001 -J 1,000,000 H1-J1.000.001-$S,000,000 H2=S5,000,001 ot more
2ValCodcs; J-$ 15,000 or less K=$15.001-$50.0OO L-S50.001-$100.0GO M=$100,001-$250,000 N=$250,001-$500,000
(Col.Cl.D3) O=$500,001-$ 1.000.000 Pl=$1.000.001-J5.000.000 P2=$S.000.001-nS.OOO.OOO P3=J25,OO0,0Ol -$50,000,000 P4-J50.000.001 or mote
3 Val MUl Codes: Q=Appr«i5al R=Cost (real esule only) S=Assessmenl T-Cash/Maiket
(Col.C2) U-Book Value VOther W-Eslimaled
1323
NANCIAL DISCLOSURE REPORT
Name of Ferson Keponing
Murphy, George P.
■rw n . n.r..^«..~ ..,.«.« . „_..._„ "- tiKomt, volut, ironiactions (includts lluut of spouse and
n. Page 2 INVESTMENTS and TRUSTS depe„Jen,cluldr«,. Seepp. }7-S4ortn„rucnon.7
Dale of Report
08/02/1997
A.
Deicripdon of Atiea
dicate where appUcable, owner of
e asset by using the parenthetical
dividuai and spouse. '(Si' for sep-
B.
Income
during
reporting
period
C.
Gross value
at end of
reporting
period
D.
Transactions during reporting period
(1)
Ami.
Code
(A-
H)
C)
Type
(e.g..
dividend.
rent or
interest)
(1)
Value
Code
(J-P)
(2)
Value
Method
Code
(Q-W)
(1)
Type
(e.g..
buy. sell,
merger.
tion)
If not exempt from disclosure 1
•me ownership by spouse. '(DQ '
r ownership fry dependera child.
Ptace '00 ' (0er each asset
exempt from prior disclosure.
(2)
Date:
Mouh-
Day
(3)
Value
Code
(J-P)
(4)
Gain
Code
(A-H)
(5)
Identity of
buyer/seller
(if private
transacbon)
NONE (■» tepomble mcome.assels. or
transactions)
1 Wholesome fc Hearty Foods - common
None
exempt
» Bank of Marion - common
A
Dividend
exempt
1 Buropaclfic Growth Fund
A
Dividend
exempt
1
1 Inc/G«in Codes: A=JI ,000 or less B"
(ColBl,D4) F=$50.00l-$100.000 G=J
$I.00I-$2.S00 C=S2.501-$5.000 D=$5.001-$I5,000 E=S 15.001 -$50,000
100,001 -$1,000,000 Hl='$l.000,001-$5.000.000 H2=$5.000.001 ormore
2V»ICodes: J=$ 15.000 or less K=S15.0OI-$50,OOO L=$50.00l-$l00.000 M=JIOO,001-V250,000 N=$250,OOl-$S0O,OOO
(Col CI.D3) O=S500,001-JI,000,000 PI=J1.00O,00!-$5.OO0.0OO P2=J5.000.001-J2S,000,000 P3»$25.0OO.001 -$50,000,000 P4=J50.000,001 or more
3 Val MUi Codes: Q^Appraisil R=Cosl (real estate only) S=Assessment T^ash/Markct
(Col.C2) U=Book Value v=Olher W=Estimated
1324
[NANCIAL DISCLOSURE REPORT
Nunc or Penon Reporting
Murphy, George P.
Dale of Repon
08/02/1997
X. CERXmCATlON
In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory Committee on
idicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
tnction in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
id a financial iruerest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the information given above (including information pertaining to my spouse and minor or dependent
lildren, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported
as 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
sported are in compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial Conference
:gulations.
Signature
V^
Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
at)d criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail original and three additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Suite 2-301
Washington, D.C. 20544
1325
NET WORTH
Provldo • complete, cumnt nnancUl net wonb tuutnent whiflh Itemlzei in detail
au asseit (including bank loeounu. teal eiute, leeurldei, muts. Inveranentt. and other flnueiti
hoidingi) all UtbUIdw Onolodlnc debu. mongtgea, loani, and other flnaoclal obUgadeoi) of
younelf, your speuie, and other ImmedUte membeis of yogr houiehold.
allasseui
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1 CO^r^NOENT LXABUnU
OSNSRAL INFORMAnON
A> luiiiwr. eomaka or futnator
None
An wqr t*Hti plid|*dT {Add vhad.
no
jJonr
An jrw dofaodwi b tnjr tolu at tcfil
MOBMT
no
LcitlClilau
None
no
g PioTulon (or Fsdcnl laeomc Tu
Paid
li Ovher ifKcU) debi
None
1326
G. Patrick Murphy
REAL ESTATE OWNED
Real Estate Address Value
Law office of G. Patrick Murphy 1 04 W. Calvert $21 5.000.00
Marlon, IL 62959
Personal Residence 3006 W. Woodlawn Place $140,000.00
Marion, IL 62959
Undeveloped real estate (4 1/2 acres) 6936 Markley Lane $15,000.00
Marion, IL 62959
$370,000.00
LISTED SECURITIES
Name of Security Shares Owned Price Per Share Value
Heartland Bancshares
700
$16.75
$11,375.00
Charter Financial Inc.
11249
$21.50
$241,853.00
Kemper High Yield Fund
3984
$8.45
$33,665.00
Kemper High Return Fund
15
$31.90
$478.00
VanKamp, An Aggressive Growth Fund
989
$11.00
$10,879.00
Aim Value Class Mutual Fund
310
$35.93
$11,138,00
SIT Mutual Fund
971
$13.43
$13,046.00
$322,434.00
Property Mortgage:
Law Office of G. Patrick Murphy
104 W.Calvert Street
Marion, IL 62959
Bank of Herrin Note # 57032
101 S. Park Avenue Amount: $130,006.00
Herrin, IL 62948
August 1, 1997
1327
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used).
Frederica A. Massiah-Jackson
(Frederica A. Massiah)
2. Address: List current place of residence and office address(es).
Office: 506 City HaU
PhUadeiphia, PA 19107
Home: Philadelphia, PA
3. Date and Place of birth.
November 10, 1950
Philadelphia, Pennsylvania
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business addresses).
Spouse: Thomas H. Jackson, HI
Project Assistant
Philadelphia Housing Authority
2021 Chestnut Street
Philadelphia, PA
5. Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Chestnut Hill College
Philadelphia, PA
1967-1971
A.B., Political Science
University of Pennsylvania
School of Law
Philadelphia, PA
1971-1974
J.D.
8/97
1328
6. Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, instimtions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an officer
director, partner, proprietor, or employee since graduation from college.
Hon. Robert N.C. Nix, Jr.
Supreme Court of Pennsylvania
Philadelphia, PA 19107
Judicial Law Clerk
1974-1976
Blank Rome Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
Associate Attorney
1976-1979; 1981-1984
Senate of Pennsylvania
Hon. Freeman Hankins (deceased)
Main Capitol Building
Harrisburg, PA
Chief Counsel
Senate Insurance and Business Committee; and
Special Senate Committee to Investigate
Significant Business Closings
1979-1981
Court of Common Pleas
First Judicial District
PhUadelphia, PA 19107
Trial Judge
1984 to present
Wharton School
University of Pennsylvania
Philadelphia, PA 19104
Lecturer
1992-1995
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.
None
1329
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the Committee.
Gateway Black History Recognition, 1997
Punchey's Community Service Award
Walking the Extra Mile, 1996
Alpha Kappa Alpha, Iota Tau Omega Community Service, 1995
Sadie T.M. Alexander Award, University of Pennsylvania
Law School, 1995
Alpha Kappa Alpha Sorority, Women in Leadership, 1993
National Catholic Educational Association,
Presidential Award, 1990
Naval Base of Philadelphia
Martin Luther King Humanitarian Service Award, 1989
We The People, Freedom Medal, 1988
498 Hardworking Women,
A Directory for Pennsylvania, 1987
compiled by Kathryn Larson
Woman of the Year, 1987, Zeta Phi Beta Sorority, Inc.
School District of Philadelphia, 1986-1987
Law-Related Educational Program,
"Impact of Law on Minorities and Females"
School District of Philadelphia
Women in Education Award, 1986
Willing Workers Association of Southwest Philadelphia, 1986
Nicetovm Boys and Girls Club, Community Service Award, 1985
Julia Reynolds Masterman School, Distinguished Alumna
of 1985
Rafters Charities, Inc., Appreciation Award, 1984
3
1330
Italian-American Press Award, 1984
Philadelphia Jaycees, Outstanding Young Leader of
Philadelphia, 1983
American Federation of Govermnent Employees,
Local 1793, V.A.M.C., Community Service Award, 1983
One of the 81 People to Watch in 1981,
Philadelphia Magazine
Downingtown Industrial and Agricultural School,
Distinguished Service Award, 1979
Leadership, Inc., Class of 1979-1980
(formerly Community Leadership Seminars)
Philadelphia Jaycees, Finalist,
Outstanding Young Leader, 1978
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.
Conference of Pennsylvania State Trial Judges
Legislative Committee, 1986; 1993-present
Court of Common Pleas, Philadelphia, Pennsylvania
Elected, Secretary of the Board of Judges, 1995-present
Chair, Corporate Sureties and Fiduciaries Committee,
1995 - present
Judicial Study Committee, 1989-present
StafFmg Committee, 1991
Joint Bench/Bar Planning Committee, 1991-1992
District Attorney Screening Committee, 1991
American Bar Association
Special Committee on Youth Education for Citizenship,
1988-1991
1331
Philadelphia Bar Association
Chair, Fidelity Award, 1994
Board of Governors, 1980-1983
Executive Committee,
Young Lawyers Division, 1978-1980
Barristers Association of Philadelphia,
affiliate of the National Bar Association
First Vice-President, 1977-1978
Supreme Court of Pennsylvania
Hearing Committee, Disciplinary Board, 1S>79-1982
Judicial Council, 1982
Minor Court Civil Procedure Rules Committee,
1978-1980
American Inns of Court
Master of the Bench, 1993-1996
University of Pennsylvania Law School
Board of Managers, 1982-1985
Chair, Nominating Committee, 1991, 1992
Temple University Law School
Law-Related Education Advisory Board
(LEAP) 1988-present
American Arbitration Association
Philadelphia Personal Injury
Advisory Board, 1992-present
Lawyers Club of Philadelphia, 1975-1985
Continuing Legal Ekiucation Faculty:
How to Avoid Legal Malpractice, December, 1996
Trial Advocacy, September, 1996
Fee Dispute Resolution, December, 1995
Advocacy for Women Litigators, April, 1995
Court of Common Pleas, Mediation Training, January,
February, 1995
1332
Litigation Medical Malpractice Claims, ALI-ABA, October,
1994
Civil Bench Bar Conference, September, 1994
A View From The Bench/Opening and Closing Statements,
September, 1994
Effective Advocacy, July, 1994
Alternative Dispute Resolution/Judicial Settlement
Conferences, June, 1994
Trial Techniques: Guide to Civil Trial Advocacy, April, 1994
Fee Disputes, Ethical Considerations, December, 1993
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 do not participate in organizations which are active in lobbying before public
bodies.
Other organizations to which I currently belong are:
Friends of The University of Natal Durbin, South Africa,
1995 - present
Jack and Jill, Inc. - 1981 - present
Links, Inc.
Chair, International Trends, 1985-1995
Corresponding Secretary, 1995 -
National Catholic Educational Association
Board of Directors, 1987-1990, 1994-1997
Vice Chair, Board, 1994 - 1997
Convener, 1995 Presidential Search
Philadelphia Heart Institute of Presbyterian Hospital
Foundation Board, 1991 - present
Scribe Video Center
Board of Directors, 1987 - present
1333
1 1 . 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 District Court for the Eastern District of
Pennsylvania. Admitted 1974.
United States District Court for the Middle District of
Pennsylvania. Admitted 1976 to 1979, for one case.
Supreme Court of Pennsylvania. Admitted 1974.
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.
a. "Education and Delinquency, a Judge's Four-Point Plan for At-Risk
Kids." Update on Law-Related Education, American Bar Association
Spring, 1989
b. "In Search of Full Vision"
Momentum
September, 1990
OTHER PROFESSIONAL REPRESENTATIONS
"African Americans and Civil Rights: A Reappraisal"
Black History Month Committee of the U.S. Dept. of Labor
and U.S. Dept. of Health and Human Services, February, 1997.
"The Economic Impact of Justice"
Jobs With Income Summit, January, 1997
"Sisterhood Across America"
Panel Discussion, Themes & Books, October, 1996
North Philadelphia Spiritual Center
Gesu Church, 1996
1334
"Women in Judging: Transforming The Image of Justice"
University of Pennsylvania Law School, March, 1995
"Race, Justice and Peace"
Presenter Pennsylvania Legislative Black Caucus Summit,
1995, 1994
"Legal Concerns of Senior Citizens"
Southvfest Community Center, April, 1993
Alumna Speaker; Black Law Student Association
University of Pennsylvania, March, 1993
"North Philadelphia, Then and Now"
A.M.E. Union Church, February, 1993
"Women Celebrating Women"
St. Charles Borromeo Church, October, 1992
"We Have Come This Far By Faith - Women's Strengths"
St. Ignatius Church, June, 1992
Alumna Speaker; African American Awareness Society
Chestnut Hill College, March, 1992
"Victim's Rights" Keynote, VictimAVitness Advocacy Program
Tri-County Prosecutor's office, Gloucester County, New Jersey,
AprU, 1991
"Black Youth, We are The Future, Reaching for Our Dream"
Luncheon - Keynote, Church of the Gesu, February, 1991
Dinner Speaker, Conclave
Twigs, Inc., Wihnlngton, Delaware, June, 1990
"Women-God's Gift of the Universe"
Union Baptist Church, June, 1990
"Women and the Constitution"
Mt. Sinai Tabernacle Church, 1990
Black History Celebration, LaMott Community
Cheltenham Tovmship, February, 1990; February, 1989
1335
Martin Luther King Observance; Pliiladelphia Naval Base;
Keynote Address, January, 1989
"Women at the Crossroads-From the Kitchen to the Pulpit"
Holy Cross Lutheran Church, May, 1989
"Equal Opportunities for Women and Minorities," EEO Luncheon
Speaker, Naval Aviation Engineering Service Unit,
March, 1988
"The Role of Paralegals in the Office"
American Institute for Paralegal Studies, May, 1988
Conference for Women
West Chester University, October, 1988
National Law-Related Education, Leadership Seminar/Keynote
Address - American Bar Association, November, 1988
"Continuing the Dream," Message, Martin Luther King Service
Cardinal's Commission on Human Relations and Urban
Ministry, January, 1987
Naturalization Proceedings, United States Courthouse,
March, 1987
"Women in the Law - 200 Years After the Constitution,"
Women's Law Caucus/Student-Alumnae Diner, Temple Law
School, April, 1987
"Women Going Forward," Olivet Baptist Church, May, 1987
"Women-Your Rights in the Workplace," Katherine Gibbs
School, June, 1987
"Salute to the Young, Gifted and Black," Miller Memorial
Baptist Church, June, 1987
"How to Become a Judge," League of Women Voters and NBA
Women Lawyers, January, 1986
"Sugar and Spice," Black Business and Professional Women,
AprU, 1986
1336
"Women in Education," Keynote Speaker, School District of
Philadelphia, April, 1986
"Challenges to our Youth," Boys and Girls Clubs of
Metropolitan Philadelphia, Nicetown Branch, Annual
Meeting, 1985
"Developing Character in a Technical Age: A Challenge to
Education," American Association of University Women,
May, 1985
"We, Women of the 80's," with Hon. Lisa Rlchette, National
Women's Political Caucus, Community College of
Philadelphia Forum, October, 1985
"The Right Women for the Job," Black Women Education
Alliance, School District of Philadelphia, October, 1984
In addition to the above, I have participated in numerous panel
discussions, conferences, seminars, symposia, with formal and informal
presentations on behalf of the Pennsylvania Bar Association, the Philadelphia Bar
Association (including but not limited to several Bench-Bar Conferences), the
Barristers Association and Penn Law Student programs, over the past 20 years.
Finally, I have participated as a "judge" in many moot court competitions and
mock trial programs over the years.
13. Health: What is the present state of your health? List the date of your last physical
examination.
Excellent
March, 1997
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 elected to the Court of Common Pleas in November, 1983, for a 10-year
term. In November, 1993, I won a retention election for my second 10-year
term.
The Court of Common Pleas is Pennsylvania's trial court, with unlimited
jurisdiction. I sat for 8 years in our Criminal Division, hearing Major Felony
cases. Since 1S>91, I have presided in our Civil Division, hearing medical
malpractice, products liability and commercial cases.
10
1337
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.
PART 1
1. Clark V. Philadelphia College of Osteopathic
Medicine
June Term, 1990, No. 5674
2. Maerten v. Philadelphia Marine Services. Inc.
32 Phila. 174 (1995)
3. Meehan v. Volvo White GMC
30 Phila. 225 (1995)
4. Congregation Ner Zedek Ezrath-Israel and Church
Mutual Insurance Co. v. Union Roofing and Sheet
Metal Contractors
29 Phila. 209 (1994)
5. Pavoni. et al. v. Magee. M.D.
29 Phila. 28 (1994)
6. Shaw, et al. v. Kirschbaum. P.O.
27 Phila. 595 (1993)
7. Williams v. Supermarkets General Corp.
27 Phila. 518 (1994)
8. Frve v. Kanner. D.P.M.. Balderston. M.D. and
ElUs. M.D.
27 PhUa. 170 (1993)
11
1338
9. Commnnwealth v. Johnson
18 Phlla. 418 (1988)
AfTd, 566 A.2d 1197 (Superior Ct. 1989)
10. rqm^nnwp^lth ▼. Mlta
14 PbiU. 636 (1986)
PART 2
Since January, 1984, 1 have presided over thouaanda of Jury and non-Jury
trials in criminal and clril matters, guilty pleas, nolo-contendere pleas, pre-trial
suppression motions, Rule 1100 (speedy trial) motions, and cItU motions (Lsi,
summary Judgment).
According to Court Administration Criminal Division records, I disposed
of 551 cases In 1984; 736 cases In 1985; 653 cases in 1986; 591 cases in 1987; 241
cases in 1988; 354 cases in 1989; and 447 cases in 1990. In 1991, I spent eight
months in the Criminal Division and four months In the Civil Division. In 1992,
1993, 1994 and 1995, 1 disposed of 60 to 100 civil cases per year (averaging more
than 1 trial per week). In 1996, as a Civil Team Leader, my records indicate 200
Civil dispositions. Civil dispositions Include trials to verdict, settlements before
or during trial, and/or dispositive rulings.
According to my records, flrom January, 1984, to March, 1997, 95 appeals
were filed with the Superior Court of Pennsylvania. Of these, the Superior
Court reversed, in whole or in part, 14 times.
To the best of my knowledge, 4 Superior Court Opinions, which reversed
In whole or In part, have been published. These were all dvll cases. Two
Superior Court cases which affirmed the Trial Court (1 dvll and 1 criminal) have
been published. Thus, all other Superior Court decisions, approximately 89, for
affirmance or reversal or remand, were non-published Memoranda. The
Memorandum Opinions are sent to the parties and the Trial Court. By Superior
Court Rule, they may not be referred to or relied on in any other litigation as
precedent.
1. rt^mmnnwealth V. Ernest Pleasant
January Term, 1986, No. 0144
Defendant appealed alleging ineffective trial counsd. FMJ denied
Motions. Superior Court affirmed trial, remanded for new sentence.
12
1339
2. Commonwealth v. Victor Colon
June Term, 1986, No. 2585
Defendant appealed sufficiency of evidence. FMJ denied Motions.
Superior Court reversed rape charges, holding that expert witness should
not have testified about child sexual abuse. New trial ordered.
3. Commonwealth v. Robert Hicks
October Term, 1986
FMJ discharged defendant and Commonwealth appealed. Superior Court
ordered a trial.
4. Commonwealth v. Mavberrv and Jenkins
January Term, 1987, No. 1792
FMJ granted Suppression Motion; Commonwealth appealed. Superior
Court reversed and ordered a trial.
5. Commonwealth v. Dwavne Garman
January Term, 1987, No. 0397
FMJ held Rule 1100 (speedy trial Rule) violated. Superior Court reversed
and ordered trial.
6. Commonwealth v. Larry Crew
February Term, 1988, No. 5148
FMJ held that Commonwealth failed to sustain prima facie burden to hold
defendant for trial. Superior Court reversed.
7. Commonwealth v. Martin Mallov
February Term, 1988, No. 1974
FMJ granted Suppression Motion - reversed on appeal.
8. Commonwealth v. Willie Wvche
December Term, 1988, No. 3709
FMJ held that this juvenile defendant required an expanded certification
hearing. Superior Court held it was premature for Trial Court to
consider the issue.
13
1340
9. Commonwealth v. Wesley Smith
October Term, 1990, No. 3502
FMJ granted certain pre-trial Motions precluding evidence. Reversed on
appeal. Defendant subsequently found not guilty.
10. Commonwealth v. Linda Scott
Details unknovm. My records indicate only that defendant appealed in
1990. Superior Court reversed in October 1991.
11. Halpin and Courtney v. LaSalle University
May Term, 1990, No. 1109
Two college professors challenged employment termination due to age.
FMJ sustained their allegations. Superior Court held there was no
contract to permit the challenge.
12. Shaw v. Kirschbaum. D.O.
27 PhUa. 597 (1993)
Pa. Superior Ct. , 653 A.2d 12 (1994)
Superior Court vacated the judgment holding that referral physician could
not be liable under theory of informed consent.
13. Clark v. Philadelphia College of Osteopathic Medicine
June Term, 1990, No. 5674
Pa. Superior Ct. , 693 A.2d 202 (1997)
The Superior Court affirmed the Trial Court's evidentiary rulings, then
vacated the judgment after holding that the plaintiffs joint tortfeasor
settlement with certain defendants "capped" the recovery. Appellate
Opinion, dated March 12, 1997, will be published. Both sides have
petitioned for re-argument<
14. Fiorentino v. Rapaport. et al.
March Term, 1989, No. 4395
Pa. Superior Ct. , 693 A.2d 208 (1997)
FMJ was not the trial court, but sat as post-trial court en banc for a trial
judge pro tern. Superior Court reversed non-suit determination,
remanding for new trial.
14
1341
PART 3
None at this time.
16. Public Office: State (chronologically) any public offices you have held, other tl.-an
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for e;-aive
public office.
I served as an elected committee person for the 22nd Ward Democratic
Executive Committee for approximately 8 years prior to 1983.
I was appointed to serve as a Delegate to the 1980 Democratic National
Convention in New York.
In the Spring of 1981, I was an unsuccessful candidate for the Court of
Common Pleas.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation
from law school including:
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;
2. whether you practiced alone, and if so, the addresses and dates;
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;
I have never practiced alone.
1974 to 1976 Judicial Law Clerk
Hon. Robert N.C. Nix, Jr.
Pennsylvania Supreme Court
(Retired as Chief Justice in 1996)
6640 Lincoln Drive
Philadelphia, PA 19119
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1342
1976 to 1979 Associate Attorney
Blank Rome Comisky & McCauley
Four Penn Center Plaza
16*^ and J.F.K. Boulevard
Philadelphia, PA 19103
1979 to 1981 Senate of Pennsylvania
Hon. Freeman Hankins (deceased)
Senate Insurance and Business Committee; and
Special Senate Committee to Investigate
Signiflcant Business Closings
1981 to 1984 Associate Attorney
Blank Rome Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
1984 to present Judge, Court of Common Pleas
First Judicial District
506 City Hall
Philadelphia, PA 19107
1992 to 1995 Lecturer, Wharton School
University of Pennsylvania
Legal Studies 101
(Business Law to undergraduate
college students)
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?
In the years before I was elected to the Court of Common Pleas, the
general character of my practice was corporate and commercial litigation.
During 1976 through 1979, I worked as an associate attorney in the area of
antitrust, securities and multi-district litigation. As a young attorney, my
responsibilities required me to work with others in the representation of clients in
civil and criminal matters involving the United States Attorney's Office, as well
as private, treble damage litigation. I handled discovery issues at all stages of
pre-trial, trial and settlement proceedings in Federal Court.
I was engaged in general civil and commercial litigation for three years,
1981 through 1984. Additionally, during 1981 and 1982, I represented a taxi
company before the Public Utility Commission Hearings as we transferred
ownership to individual driver/owners of taxis.
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1343
From 1979 through 1980, while on a leave of absence from the firm, I
used my legal talents much differently. While working with our State Senate, I
was the chief administrator charged with interviewing literally hundreds of
people to attempt to learn why three major supermarket chains closed within a
six-month tune period, leaving more than 10,000 people out of work in
Pennsylvania. Our Special Senate Committee had subpoena power and I was
invited to serve as Counsel because of my antitrust experience. I was responsible
for scheduling pubUc hearings in Philadelphia, Harrisburg and Pittsburgh.
Subsequently, I prepared a report and recommendation from our bipartisan
committee to the full Senate.
Later, from 1980 through 1981, as Counsel to the Senate Insurance
Committee, I was responsible to lead our Senator's staff in drafting legislation
and reports for the full Senate Committee.
My work as a judicial law clerk, from 1974 to 1976, provided me with the
signiflcant learning experience of viewing cases from the appellate perspective of
our Commonwealth's highest court. I honed my skills in legal research, analysis
and vtriting. Much of this early perspective, I use today as a trial judge.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
The typical clients at Blank Rome Comisky & McCauley were medium
and large corporations. During my first "stint" at the firm, my projects involved
major, multi-district private antitrust and anti-dumping litigation. Class action
litigation was developing in the early 1970's, as well as complex commercial
matters. The clients were companies selling products in the United States and
abroad. As plaintiffs, we sued a group of Japanese electronic product
manufacturers. As defendants, we represented individuals and the companies
accused of price fixing. I coordinated the defense of a multi-district class action
which was consolidated in the Middle District Court of Pennsylvania.
When I returned to the law firm in 1981, the Litigation Department was
no longer subdivided. I worked on state and federal court matters in more
general commercial litigation, as well as Public UtiUty Commission administrative
hearings.
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 appeared in court occasionally.
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1344
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
Approximately 80%-85% was in federal courts; other appearances were
before state courts or private dispute resolution.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
One hundred percent of my experience was in civil 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.
As an associate attorney at a 200-person law firm, I worked with other,
more senior, attorneys. To the best of my knowledge, all of the cases I worked
on eventually settled.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
Eighty-five percent jury; 15% non-Jury.
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.
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1345
The following are litigation matters that I personally handled:
(a) Ruli Corporation v. The School District of Philadelphia
October Term, 1981, No. 3362, Court of Common Pleas
Ashbourne Transportation Co. v. The School District of
Philadelphia
October Term, 1981, No. 3363, Court of Common Pleas
Ronald H. Surkin, Esquire
25 W. Second Street
P.O. Box 900
Media, PA 19063
(610) 565-4600
I was co-counsel
for Plaintiff
Martin Horowitz, Esquire
923 E. Darby Road
Havertown, PA 19083
(610) 449-2088
Defendant
(b) Roy Jackson v. Mirick Pearson Batcheler Henrv
American Arbitration Association; private ADR
Sheldon Albert, Esquire
3300 Two Commerce Squai-e
Philadelphia, PA 19103
(215) 963-0600
I was co-counsel
for Plaintiff
Bruce Lombardo, Esquire
11 Penn Center
1835 Market Street
Philadelphia, PA 19103
(215) 563-4470
Defendant
(c) Pizzeria Trio. Inc. v. CSMI. Inc.
Civil Action No. 81-4312, Eastern District of Pennsylvania
Jeffrey Less, Esquire
1515 Market Street
Philadelphia, PA 19102
(215) 568-1155
Plaintiff
Ronald H. Surkin, Esquire
25 W. Second Street
P.O. Box 900
Media, PA 19063
(610) 565-4600
I was co-counsel
for Defendant
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(d) Teamsters Ix>cal 169 and Northern Shipping Co.
Ron Easlev Discharge
Case No. 1-30-0230-82H
American Arbitration Association
Charles Mullen, Arbitrator
Richard Sigmond, Esquire
11th Floor
Public Ledger Building
Independence Square
Philadelphia, PA 19106
(215) 351-0609
Plaintiff
Sheldon Albert, Esquire
3300 Two Commerce Square
Philadelphia, PA 19102
(215) 963-0600
I was co-counsel
for Defendants
(e) Bethlehem Furniture Co. v. Richard I. Rubin. Inc.
Eastern District Court of Pennsylvania
(f) Mayer Pollock Steel Corporation v. Arvedi Steel Co.
Eastern District Court of Pennsylvania
As co-counsel to plaintiff, the issue was a dispute over the price of a large
shipment of Italian steel. My supervising attorney was Morris Dean,
Esquire, Blank Rome Comisky & McCauley, Four Penn Center Plaza,
Philadelphia, PA 19103, (215) 569-5500.
(g) In re: Metro Transportation Company
Honorable Charles Hoffman
Administrative Law Judge
Pennsylvania Public Utility Commission
Lawrence Beaser, Esquire
Kathleen Herzog Larkin, Esquire
Blank Rome Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
(215) 569-5500
I was co-counsel for Sellers
Jay Bomze, Esquire
1401 Arch Street
PhUadelphia, PA 19102
(215) 569-0110
Buyers
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1347
(h) In re Anthracite Coal Antitrust Litigation
79 F.R.D. 707 (1978)
Honorable Malcolm Muir QVl.D. Pa.)
This multi-district, class action was consolidated in the Middle District of
Pennsylvania from 1976 through 1978. I served as one of the lead defense
attorneys in coordinating document productions, discovery, notice to the
class, and preparation of settlement details in the price fixing litigation.
Counsel for plaintiffs included Arnold Levin, Esquire, Levin, Fishbein,
Sedran and Herman, 320 Walnut Street, Philadelphia, PA, (215) 592-1500;
H. Laddie Montague, Berger & Montague, P.C, 1622 Locust Street,
Philadelphia, PA (215) 875-3010.
Counsel for defendants included co-counsel Richard McEh-oy, Esquire,
Blank Rome Comisky & McCauley, Four Penn Center Plaza,
Philadelphia, PA, (215) 569-5500; Edward F. Mannino, Esquire, Wolf
Block Schorr & Solis-Cohen, 15th and Chestnut Streets, Philadelphia, PA,
(215) 977-2492.
(i) Zenith Radio Corp. v. Matsushita Electric
Industrial Co.. Ltd.. et al.
481 U.S. 1029 (1987); 807 F.2d 44 (3rd Cir. 1986);
423 F.2d 238, 723 F.2d 319 (3rd Cir. 1983);
513 F.Supp. 1100 (E.D. Pa. 1981);
494 F.Supp. 1190 (E.D. Pa. 1980)
The Japanese Electronic Products Antitrust Litigation was a major lawsuit
involving allegations of international price fixing, dumping, economic
cartels and trade violations. After many years of pre-trial discovery,
commencing in the early 1970's, summary judgment was granted in favor
of all defendants in the 1980's and affirmed by the United States Supreme
Court. Several judges in the Eastern District Court of Pennsylvania,
including the Honorables A. Leon Higgenbotham and Edward R. Becker,
presided at different periods. My role as one of several co-counsel for
plaintiffs involved document reviews (in Japanese and English), research
and writing of discovery related motions and memoranda between 1976
through 1978.
Counsel for plaintiffs were Edwin P. Rome, Esquire (deceased), Richard
McElroy, Esquire, and William H. Roberts, Esquire, of Blank Rome
Comisky & McCauley, Four Penn Center Plaza, Philadelphia, PA 19103,
(215) 569-5500.
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1348
Local defense counsel included: Patrick T. Ryan, Esquire, Drinker,
Biddle & Reath, 1345 Chestnut Street, Philadelphia, PA, (215) 988-2865;
Raymond T. CuUen, Esquire, Morgan, Lewis & Bockius, 2000 One Logan
Square, Philadelphia, PA, (215) 963-5650; Harry A. Short, Jr., Esquire,
Marshall, Dennehey, Warner, Coleman & Goggin, 1845 Walnut Street,
Philadelphia, PA, (215) 575-2690; Walter R. Milbourne, Esquire, Saul,
Ewing, Remick & Saul, 3800 Centre Square, Philadelphia, PA, (215)
972-1975; Henry T. Reath, Esquire, Duane, Morris & Heckscher, One
Liberty Place, Philadelphia, PA, (215) 979-1340.
Because the cases I have located are so old, I do not believe that these
adequately reflect my qualifications, experience, temperament, character or
integrity as a trial court judge. I will provide the names of members of the legal
community who have had recent contact with me in my service as a judge:
1. Edward F. Chacker, Esquire
Gay and Chacker, P.C.
1731 Spring Garden Street
Philadelphia, PA 19130
(215) 567-7955
2. Charles A. Cunningham, Esquire
First Assistant Defender
Defender Association of Philadelphia
Public Defender's Office
70 North 17th Street
Philadelphia, PA
(215) 568-3190
3. Eileen Giordano Katz, Esquire
Southeastern Pennsylvania Transportation Authority
Office of the General Counsel
1234 Market Street
Philadelphia, PA
(215) 580-7445
4. John Konchak, Esquire
Defender Association of Philadelphia
Public Defender's Office
70 North 17th Street
Philadelphia, PA
(215) 568-3190
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1349
5. Donald F. Ladd, Esquire
While and Williams
One Liberty Place, Suite 1800
PhUadelphia, PA 19103
(215) 864-7118
6. Sayde Joy Ladov, Esquire
One Penn Center, Suite 640
Philadelphia, PA 19103
(215) 564-0600
7. Dante Mattioni, Esquire
Mattioni, Mattioni, Mattioni, Ltd.
399 Market Street
Philadelphia, PA 19106
(215) 629-1600
8. Robert Pasquale, Esquire
Doroshow, Pasquale and Linarducci
1202 Kingwood Highway
Wihnington, DE 19805
(302) 998-0100
9. William H. Roberts, Esquire
Blank Rome Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
(215) 569-5632
10. Alan Schwartz, Esquire
Anapol, Schwartz, Weiss & Schwartz
1900 Delancey Place
Philadelphia, PA 19103
(215) 735-0330
11. Carol Sweeney, Esquire
District Attorney's Office
1421 Arch Street
Philadelphia, PA 19102
(215) 686-8700
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1350
12. William F. Sutton, Esquire
Post & Schell, P.C.
1800 J.F.K. Boulevard
Philadelphia, PA 19103
(215) 587-1059
13. Rhonda Hill Wilson, Esquire
1500 Market Street
East Tower, 12th Floor
Philadelphia, PA 19102
(215) 972-0400
14. Charles G. Young, III, Esquire
Litvin, Blumberg, Matusow & Young
1339 Chestnut Street, 18"" Floor
Philadelphia, PA 19107
(215) 557-3304
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).
I have found that participating as a "faculty" member making
presentations for Continuing Legal Education Programs, as well as attending
professional enrichment programs, has helped me in my work as a trial judge.
Much of my day-to-day activity is goal oriented; that is, dispose of a motion,
complete a trial, settle a case. The course participation, whether as a presenter
or as a student, enables me to exchange ideas and learn new concepts in a
broader context.
Continuing Legal Education Faculty:
How to Avoid Legal Malpractice, December, 1996
Trial Advocacy, September, 1996
Fee Dispute Resolution, December, 1995
Advocacy for Women Litigators, April, 1995
Court of Common Pleas, Mediation Training, January,
February, 1995
Litigation Medical Malpractice Claims, ALI-ABA, October,
1994
Civil Bench Bar Conference, September, 1994
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1351
A View From The Bench/Opening and Closing Statements,
September, 1994
Effective Advocacy, July, 1994
Alternative Dispute Resolution/Judicial Settlement
Conferences, June, 1994
Trial Techniques: Guide to Civil Trial Advocacy, April, 1994
Fee Disputes, Ethical Considerations, December, 1993
Continuing Legal Education Courses Attended:
Toxic Torts/Chemical Sensitivity Litigation, February, 1997
Pulse of Justice
National Center for State Courts, April, 1995
Effective Legal Negotiations and Settlement, Penn Law
School, November, 1994
Products Liability Law Series
Philadelphia Civil Trial Judges, Fall, 1994
Managing Trials Effectively
National Judicial College, February, 1992
Toxic Torts for Trial Judges
National Judicial College, November, 1990
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1352
n. 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.
Pennsylvania State Employees Retirement System Pension.
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.
I will follow the guidelines of the Code of Judicial Conduct.
3. Do you have any plans, commitments or agreements to pursue outside employment,
with or without compensation, during your service with the court?
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.).
Financial Disclosure Report is attached.
5. Please complete the attached financial net worth statement in detail (add schedules as
called for).
Net worth statement 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.
No.
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1353
m. 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 amount of time devoted to each.
My interest in community service is reflected in time spent as a classroom
speaker and resource person. Over the years, I have visited many of
Philadelphia's public and parochial schools. When schedules permit, I have
invited classes to visit my courtroom for discussion.
Additionally, as my interest and knowledge in Law-Related Education has
expanded, I frequently work with law students who teach in school classes.
Through Temple Law School's LRE program, I was introduced to the American
Bar Association's Special Committee on Youth, Education and Citizenship, when
I served from 1988-199L
I fully accept my responsibility to work with young people, to share my
courtroom experiences, to provide guidance in citizenship, review the Bill of
Rights, and as a role model and native Philadelphian.
Although my time varies from month-to-month or year-to-year, a sample
of the schools where I have been a presenter are as follows:
1984 - Gillespie Middle School; John L. Kinsey Elementary
School; Strawberry Mansion Elementary and Middle
School; Shoemaker Jr. High School.
1985 - Kennedy-Crossen Elementary School; Julia R.
Masterman School; St. Vincent's Elementary
School; Rhoads Elementary School; Franklin
Learning Center; Lankenau-Saul High School.
1986 - Rhoads Elementary School; Kennedy-Crossen
Elementary School; West Philadelphia High School;
Germantown High School.
1987 - Grover Cleveland Elementary School; Friends
Select School; Hail Stanton Public School; Mary
McCloud Bethune Elementary School;
Kennedy-Crossen School; James Rhoads School.
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1354
1988 - Bok High School; Bartram High School; Steel
Middle School; Y.M.C.A. classes in Chester, PA.
1989 - Ludlow Elementary School; West Catholic Girls
High School.
1992 - Cheyney University; Friends Select School; Powelton
Elementary School, where in March, 1992, after much
planning and coordination with teachers and parents,
two classes visited my courtroom. The teachers
prepared their lesson plans based on my cases and the
students spent two days.
1993 - Wagner Middle School; Abington Friends School;
Temple LEAP/Penn's Discovery Moot Court for
Junior High.
1994 - Gesu School; Philadelphia Inquirer High School
Workshop; Philadelphia High School for Girls;
Fitler Academic Plus Elementary; Mary McLeod
Bethune Elementary School; Springside School;
City- Wide Sunmier Non- Violence Mock Trial.
1995 - Prince Hall Elementary School; Jay Cooke Middle
School.
1996 - Philadelphia High School for Girls visited the
courtroom for Mock Trial presented by real lawyers,
followed by extensive discussions and questions about
an actual case.
1997 - Greene Street Friends School; Elverson Middle School.
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 the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
No, I do not belong to organizations which discriminate through
membership.
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1355
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).
Yes, there have been three selection committees in the Eastern District of
Pennsylvania which have recommended my nomination to the Federal Court in
1993, 1996 and 1997.
In 1993, former U.S. Senator Harris Wofford named a 15 person
committee chaired by Dr. Mary Patterson McPherson, President of Bryn Mawr
College, to conduct a search for nominees for one vacancy on the Third Circuit
Court of Appeals and one vacancy on the Eastern District Court of Pennsylvania.
Over 90 candidates submitted completed questionnaires which were similar to the
ABA'S Personal Data Questionnaire.
Panels of the committee met with about 25 of the candidates. The full
committee met and interviewed a smaller group of semi-finalists. I was one of 4
or 5 individuals who met with Senator Wofford for consideration for both of the
vacancies. Although I was not appointed to the federal bench at that time, I
remain very interested in the opportunity.
In the Spring of 1996, Senator Arlen Specter, the Senior Senator in
Pennsylvania, convened a new judicial nomination committee. Again, after going
through the process of interviews, I was strongly recommended. No nominations
were made that year.
In July, 1996, Congressman Thomas M. Foglietta submitted my
credentials to the Honorable William J. Clinton for consideration. I have
support for my goals from educational leaders, elected officials, clergy, union
leaders and leaders of the bench and bar in Philadelphia. Many of these
individuals did submit letters of support to Senator Wofford, to Congressman
Foglietta and to former White House counsel Peter C. Erickson, Esquire.
In June, 1997, after two interviews, I was recommended by a judicial
nomination committee convened by Senators Specter and Santonun. I have been
investigated and interviewed by the American Bar Association, the Federal
Bureau of Investigation and the Department of Justice.
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1356
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-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 legislature makes the laws, the executive carries out the laws, and the
courts apply the laws.
This is the first lesson in my class on separation of powers. The courts are
an integral part of our system of democracy. Our constitutional government has
remained strong for 200 years because we have adhered to the formula of the
framers.
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1357
Courts have a special role, a well defined role, not to re-write laws, nor tt
initiate processes where the legislatures have not ventured, but rather to
determine whether existing laws are fair, just and constitutional.
The Federal judiciary is not a place for judicial creativity. It is an arena
for scholarly and objective consideration. It is up to a judge to know the
precedent, to be learned of the legislative intent where necessary, and then to
decide each case based on the facts presented. The judge is not on a soapbox,
nor is she a policy maker. Judicial responsibility is a stabilizing force of
restraint.
31
NOMINATIONS OF BARRY G. SILVERMAN (U.S.
CIRCUIT JUDGE); CARLOS R. MORENO AND
RICHARD W. STORY (U.S. DISTRICT
JUDGES); AND CHRISTINE O.C. MILLER,
JUDGE OF THE U.S. COURT OF FEDERAL
CLAIMS
WEDNESDAY, NOVEMBER 12, 1997
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:13 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the committee) presiding.
Also present: Senators Grassley and Feinstein.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SEN-
ATOR FROM THE STATE OF UTAH, CHAIRMAN, COMMITTEE
ON THE JUDICIARY
The Chairman. I apologize for being a little bit late. I apologize
particularly to my colleagues as well as the nominees. I got held
up with the media, please forgive me.
Today we have four excellent nominees for various courts: Barry
G. Silverman, of Arizona, to be U.S. circuit judge for the Ninth Cir-
cuit Court of Appeals; Carlos R. Moreno, of California, to be U.S.
district judge for the Central District of California; Richard W.
Story, of Georgia, to be U.S. district judge for the Northern District
of Georgia; and Christine O.C. Miller, of the District of Columbia,
to be a judge of the U.S. Court of Federal Claims.
We are happy to have all of you here. We are happy to welcome
you here, and we are pleased that we have Senator Cleland here
to introduce Judge Story. We have Senator Feinstein, but shall we
start with our colleague first?
Why don't we turn the time over to you and allow you to intro-
duce your nominee here today. Before you do, though, I would put
a statement of Senator Kyi in the record at this time.
[The prepared statement of Senator Kyi follows:]
Prepared Statement of Hon. Jon Kyl, a U.S. Senator From the State of
Arizona
Mr. Chairman, fellow members of the Judiciary Committee, I wish to express my
enthusiastic support for the nomination of Magistrate Judge Barry G. Silverman to
the Ninth Circuit Court of Appeals. I regret that I cannot deliver these remarks per-
(1359)
1360
sonally, but I would like to take this opportunity to briefly comment on Judge
Silverman's qualifications.
I have had the pleasure of meeting with Judge Silverman, and I have discussed
his nomination and background with other judges, lawyers, and professionals who
have worked with Judge Silverman over the years. By all accounts, he is a man of
honor, intelligence, and integrity — and good humor. For example, fellow Arizona
Judge Ronald Reinstein has commented on Judge Silverman's "professionalism and
total commitment to the litigants who appear before him."
Judge Silverman brings a proven judicial track record to today's hearing. For the
past two-and-a-half years, he has served as a Magistrate Judge on the United
States District Court for the District of Arizona, my home state. For over 10 years
prior to that, he was a Superior Court Judge in Maricopa County, Arizona. While
on the Superior Court bench, Judge Silverman rendered superior service in all as-
pects of his civil, criminal, juvenile, and domestic relations assignments. In addition
to his time on the bench. Judge Silverman spent five years as Court Commissioner
for the Superior Court of Arizona, Maricopa County.
Throughout his distinguished judicial career, Judge Silverman has earned the re-
spect and admiration of fellow judges and the advocates appearing in his courtroom.
For example, in 1991 Judge Silverman received the "Henry Stevens Award," which
is given annually by the Maricopa County Bar Association to the current or former
Arizona trial judge "who reflects the finest qualities of the judiciary." Similarly, in
1994, the Maricopa County Committee on Judicial Performance indicated that
Judge Silverman received the highest percentage of superior ratings from lawyers,
litigant, witnesses, and court staff in all categories of performance reviewed. Also
in 1994, Judge Silverman's court division was honored as the "Judicial Division of
the Year" by the Maricopa County Superior Court Recognition Committee.
In addition to his regular judicial duties. Judge Silverman has advanced the legal
profession through service on the Supreme Covu"t of Arizona Judicial Ethics and Ad-
visory Committee; the Committee on Judicial Education and Training; and the Com-
mittee on Professionalism. He also chaired the Committee to Study the Criminal
Justice System in the Arizona Superior Court in 1993, and the Governor's Commit-
tee on Child Support Guidelines.
Judge Silverman has shown his commitment to the United States Constitution
and the rule of law by co-founding the Sandra Day O'Connor Prize for Excellence
in Constitutional Law at the Arizona State University College of Law.
Judge Silverman's academic credentials are equally impressive. He graduated
summa cum laude from the Arizona State University College of Law in 1976, and
was subsequently honored by his alma mater twice: once in 1994, when the College
of Law presented him with its "Outstanding Alumnus Award," and again in 1997,
when he received the prestigious "Dean's Award."
In short, I believe Judge Silverman meets the high standards reqmred of our fed-
eral judges. Indeed, his legal knowledge and judicial temperament show him to be
an exemplary nominee.
I urge a swift and resounding vote in Judge Silverman's favor, so that he may
be considered by the full Senate as soon as possible.
STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM
THE STATE OF GEORGIA
Senator Cleland. Thank you very much, Mr. Chairman, mem-
bers of the committee. I would just Hke to say I am pleased to ap-
pear before you today to introduce Richard Wayne Story, the Presi-
dent's nominee to fill the vacancy on the U.S. District Court for the
Northern District of Georgia.
As a country boy from a small town in Georgia, I feel particularly
pleased to introduce Judge Story because he is also from a small
town, having been raised in Harlem, GA. Indeed, as much as my
small-town upbringing has been so much a part of my life, being
a small-town guy has meant a lot to Rick and has shaped him into
the determined, principled man that he is today.
Mr. Chairman, I can confidently say that, as you review his
qualifications, I am sure that you will come to agree, as I have,
that he is a very qualified trial judge and attorney who will make
an excellent district court judge.
1361
This nominee comes to us having been a trial judge in the (Geor-
gia superior courts for almost 11 years. It has been said that Judge
Story has a special way of handling his courtroom such that people
get a different, unique feeling after having appeared in front of
him. Now, this special feeling has nothing to do with the sub-
stantive outcome of the case; rather, it has everything to do with
how Judge Story handles people. Whether or not the person has
been successful, time and again they report feeling that they have
been treated with courtesy, respect, with fairness, and a good dose
of common sense.
Judge Story believes that litigants feel good about being in his
courtroom because of his ways that he learned growing up in Har-
lem, GA. Harlem is indeed a small country town. For those of you
unfamiliar with these types of town, you can kind of think of
Mayberry, R.F.D., the classic setting of "The Andy Griffith Show."
Rick likes to say that he grew up in Mayberry. From this small-
town community and from his parents, Rick learned the value of
hard work. His father. Buck Story, a native of Columbia County,
was living in Augusta, GA, when he met and married Earline
Helmey, a native of Richmond County. They settled in Harlem to
raise a family. Buck ran his own service station while Earline was
a florist, and together they raised their three children, Bob, Rick,
and Angela. Rick worked in his father's gas station while growing
up, and working in a gas station, he constantly interacted with the
people of Harlem and the surrounding small towns.
He attended LaGrange College in LaGrange, GA, from 1971 to
1975, gaining a bachelor of arts degree in 1975. At LaGrange, he
was named the outstanding male freshman and was an officer in
the Student Grovernment Association. Additionally, Rick was the
president of both his fraternity, Delta Tau Delta, and the college's
Inter-Fraternity Council. Though he was active. Rick still main-
tained a stellar academic record, making the dean's list and Who's
Who for College Students.
Our nominee moved directly to the University of Georgia Law
School, earning his J.D. in 1978. While in law school, he remained
active as a member of the Student Bar Association and the Inter-
national Moot Court Team, while also working throughout his sec-
ond and third years.
Our nominee has had an exceptional professional career, most of
ail, that could be considered good training to be a trial judge. Two
years into his private practice, private litigation practice in 1980,
Rick was appointed a special assistant attorney general represent-
ing the State of Georgia in child support and custody cases. He
moved on to become a Hall County juvenile court judge in 1985 and
was appointed a judge of the Superior Court for the Northeastern
Judicial Circuit of Georgia in 1986. He has been the chief judge for
the northeastern circuit since May 1993 and has been a ninth dis-
trict administrative judge since 1996. In addition. Judge Story com-
pleted the general jurisdiction school of the National Judicial Col-
lege in 1987.
Judge Story is extremely active in the legal community and his
community as a whole. His affiliations and activities are too nu-
merous to list, but as a small-town boy, I would just like to note
1362
that he has chaired and co-chaired more councils and commissions
than you could shake a stick at, as we say in my State.
Indeed, he has given of his time to many activities within the
legal community at all levels, the Methodist Church, and the
Gainesville-Hall County area. More importantly, our nominee is a
Sunday school teacher who always manages to find time for his
lovely wife, Nancy, and their three children: Laura, who is 17; Eliz-
abeth, 13, and Will, 7.
Mr. Chairman and colleagues, I would like to wrap up and say
that I am confident that you could search the end of the earth and
the end of this country, and you would not find a man more de-
voted to the ideals of family and community or more dedicated to
the professional pursuit of human decency and justice than Judge
Rick Story.
I am very proud to know him and call him a friend. I am genu-
inely elated at the opportunity as part of my job to recommend this
good old country boy for this judgeship. I know of no finer can-
didate for this bench than the President's nominee, Richard Wayne
Story.
Thank you very much, Mr. Chairman.
The Chairman. Well, thank you, Senator. I tell you. Judge, I
have heard a lot of these introductions of judges. I do not know
that I have ever heard a better one than that. He is a great col-
league of ours, and we appreciate you, and that is high praise, in-
deed. So we are honored that you would come. Senator Cleland.
I think I will turn to Senator Feinstein to introduce her judge at
this time. Are there any other Senators here or Members of Con-
gress who want to testify? OK. We will go to Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you, Mr. Chairman. I am happy to in-
troduce to you Judge Moreno and his family. He is accompanied by
his wife Chris, his daughter Keiko, and his son Nicholas. They are
sitting right in the first row on your left.
Judge Moreno obtained his B.A. from Yale in 1970 and his J.D.
from Stanford in 1975. He served on the Yale Alumni Board of
Governors for 3 years, from 1991 to 1994, the Stanford Law School
Board of Visitors, and he was honored as outstanding alumnus of
the Chicano Alumni of Yale in 1991. He began his legal career in
the city attorney's office in Los Angeles. He worked there from
1975 to 1979, prosecuting jury trials, misdemeanor prosecutions,
and criminal and civil consumer protection cases.
From 1979 to 1986, he worked as a litigation attorney for the law
firm of Kelley, Dryer & Warren. He handled commercial litigation
in State and Federal courts. His caseload included bankruptcy,
wrongful termination, banking, real estate, and antitrust litigation.
In 1986, he was appointed by then-California Governor George
Deukmejian to be a municipal court judge, where he served for 7
years. As a municipal court judge, Carlos Moreno handled 40 civil
jury trials in addition to a regular criminal trial workload.
In 1993, Governor Wilson elevated Carlos Moreno to the Califor-
nia Superior Court, where he has served for the past 4 years. He
has averaged approximately two dozen jury trials a year, at least
1363
a third of which have been homicides. The remainder have con-
sisted of a broad range of felonies. At the same time, Judge Moreno
has presided over a dozen bench trials per year.
This year, he was elected the Superior Court Judge of the Year
by the criminal law section of the Los Angeles County Bar Associa-
tion. Upon receiving this award. Judge Moreno was described as
someone who "earns praise from both prosecutors and defense at-
torneys for his fair, even-tempered handling of a high volume cal-
endar of criminal cases. The large number of court trials he han-
dles in which both sides waive jury and try the case before him is
an indicator of the trust that counsel places in him."
Governor Deukmejian wrote in a letter sent to you last month,
Mr. Chairman, that I ask be made part of the record
The Chairman. Without objection.
[The letter follows:]
George Deukmejian,
Los Angeles, CA, October 6, 1997.
Hon. Orrin Hatch,
Chairman, Senate Committee on Judiciary, U.S. Senate, Washington, DC
Re: Judge Carlos R. Moreno
Dear Senator Hatch: It has come to my attention that Judge Carlos Moreno has
been nominated for an appointment to the U.S. District Court, Central District of
California.
In 1986, it was my pleasure to appoint him to the Compton Municipal Court and
in 1993 he was appointed by Governor Pete Wilson to the Los Angeles Superior
Court.
It is my understanding that he has performed in an exemplary manner as a Mu-
nicipal and Superior Court Judge and has a clear perception of the importance of
maintaining a judicial system that insures fairness and social order.
Judge Moreno is well suited for this position. I am confident that he has the ap-
propriate judicial skills and in light of his qualifications, I hope you will give him
every consideration for appointment to the U.S. District Court.
Most cordially,
George Deukmejian,
35th Governor of California.
Senator Feinstein. Governor Deukmejian wrote:
It is my understanding that Judge Moreno has performed in an exemplary man-
ner as a Municipal and Superior Court Judge and has a clear perception of the im-
portance of maintaining a judicial system that ensures fairness and social order.
Judge Moreno is well suited for this position. I am confident that he has the appro-
priate judicial skills, and in light of his qualifications, I hope you will give him every
consideration for appointment to the U.S. District Court.
It is a great pleasure for me, Mr. Chairman, to have rec-
ommended him to the President, and I might say that he was the
No. 1 person proposed by the screening panel of attorneys and oth-
ers who work on these nominations for me, and he was the No. 1
choice of the California Narcotics Officers Association.
The Chairman. Well, thank you, Senator. I think we had two
very good statements by Senators for their respective nominees,
and I think. Judge Moreno, that is very high praise indeed. I hap-
pen to have a high regard for both of these Senators, and Senator
Feinstein in particular serves very well on this committee. So I
think it is wonderful that she could be here today with you when
so many Senators are out of town. We are happy to have you here.
Are there any other Members of Congress to testify? If not, then
if the four of you will come to the dais, I think I will have all four
1364
of you come up at once. If you will just stand and take the oath,
I think we can get you all sworn at once.
Do you swear the testimony you shall give in this hearing shall
be the truth, the whole truth, and nothing but the truth, so help
you God?
Judge Silverman. I do.
Judge Moreno. I do.
Judge Story. I do.
Judge Miller. I do.
The Chairman. Thank you very much.
Let's start with you first, Mr. Silverman. What I would like you
to do is introduce your family, friends, anybody else you would care
to introduce. We are honored to have members of the family here,
and then if you would care to make any statement, we would love
to have that at this time as well.
TESTIMONY OF BARRY G. SILVERMAN, OF ARIZONA, TO BE U.S.
CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Judge Silverman. Good afternoon, Mr. Chairman, Senator Fein-
stein. My name is Barry Silverman. I am presently a magistrate
judge in the U.S. District Court in Arizona. I regret that my family
isn't able to be with me today here in person, but my wife Georgia
and my parents, Rita and Sol Silverman, from Phoenix, are with
me here in spirit. I am very grateful to be here today.
The Chairman. Glad to have you here.
We will go to you. Judge Moreno.
TESTIMONY OF CARLOS R. MORENO, OF CALIFORNIA, TO BE
U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALI-
FORNIA
Judge Moreno. Mr. Chairman, my wife Christine, my daughter
Keiko, and my son Nicholas. It is a pleasure for all of us to be here.
The Chairman. We are glad to have you all here. What a nice
family. We are pleased to have you here.
Judge Story.
TESTIMONY OF RICHARD W. STORY, OF GEORGIA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGLV
Judge Story. Thank you. Senator. It is a pleasure for me to be
here and thank you for the opportunity for this hearing. I guess fol-
lowing the theme of Senator Cleland, we brought a lot of folks from
the country, I guess, a chance to come to Washington. We have a
number of folks here, and I have my wife Nancy, my daughters
Laura and Elizabeth, and my son Will.
The Chairman. Great.
Judge Story. Also, my father, Buck Story, and my sister, Angela
Brown, and brother. Bob Story, her children, Justin and Victoria.
It just keeps going. My secretary, Joyce Carruth; my law clerk,
Wylencia Hood Monroe; and some friends from Richmond, who had
moved to Richmond and were able to drive up today: Judy Powell,
as well as her daughters, Susannah and Lydia.
Thank you.
The Chairman. We better treat you pretty well with all these
people. [Laughter.]
1365
What a nice family. It is wonderful to have all of you here. We
welcome you.
Judge Miller.
TESTIMONY OF CHRISTINE O.C. MILLER, OF THE DISTRICT OF
COLUMBIA, TO BE A JUDGE OF THE U.S. COURT OF FEDERAL
CLAIMS
Judge Miller. It is a pleasure to be here and an honor, indeed,
Mr. Chairman. Regrettably, my husband Dennis is in Bangkok,
and I really miss him today.
The Chairman. We understand.
Judge Miller. But I am here with my loyal staff and friends, my
former law partner and some clerks.
Thank you.
The Chairman. Thank you.
QUESTIONING BY CHAIRMAN HATCH
The Chairman. Does anyone care to make any additional state-
ment? All right. Then I think what we will do is ask some ques-
tions, and we will go from there. We will just come across, and each
of you can answer these questions.
Are you committed to following Supreme Court precedent and
the rulings of the Federal Circuit Court of Appeals for your district
faithfully and giving them full force and effect even if you person-
ally disagree with such precedents or rulings?
Judge Moreno. Yes, and I don't think the personal predilections
of a judge should have any bearing on how they apply and inter-
pret the law, and I would faithfully do so.
The Chairman. OK.
Judge Silverman. Yes.
Judge Miller. Yes.
Judge Story. Yes, I would.
The Chairman. All right. What would you do if you believed the
Supreme Court or the court of appeals had seriously erred in ren-
dering a decision? Would you nevertheless apply that decision or
your own best judgment of the merits? You could take, for example,
the Supreme Court's recent decision in the Adarand case involving
affirmative action since that seems to be on everybody's mind.
Judge Moreno. I think I would be obligated to follow the control-
ling law in my circuit, unless there was some intervening U.S. Su-
preme Court case that shed some further light on that issue. But,
otherwise, I believe I would be bound by stare decisis in the Ninth
Circuit in my case.
The Chairman. OK.
Judge Silverman. I am clearly bound by the Supreme Court de-
cisions and would follow them, of course.
The Chairman. All right.
Judge Miller. We don't have actions like Adarand in our court,
but I would always follow Supreme Court precedent.
The Chairman. Whatever does apply to your court.
Judge Miller. Yes.
Judge Story. And I also would follow those precedents and not
attempt to substitute my view for that of the appellate courts.
1366
The Chairman. Under what circumstances do you believe it
would be appropriate to declare an act of Congress unconstitu-
tional? Maybe I will shift this around. Let's start with you, Judge
Story.
Judge Story. It was going well there. [Laughter.]
The Chairman. You like being last? All you have to say is me,
too.
Judge Story. I believe, obviously, it would require reviewing the
legislation and reviewing it in light of the Constitution. You would
have to look at the document, look at the specific language of the
Constitution, and consider that along with any Supreme Court pro-
nouncements interpreting the Constitution that may be applicable
to make that decision. It would be something that you would have
to weigh very heavily because there would be a presumption of va-
lidity for any legislation that may have been passed by the Con-
gress, and so you would have to look at it from that perspective.
The Chairman. OK. Judge Miller.
Judge Miller. In the cases that have come before me involving
challenges to statutes on constitutional grounds, the first thing I'd
do is try to determine if I can decide the case on another basis. If
that cannot be the case, then I proceed to examine the statute, giv-
ing due regard to its presumption of validity and consulting Su-
preme Court precedents.
The Chairman. OK. Judge Silverman.
Judge Silverman. I likewise would indulge the presumption of
constitutionality whenever possible. Then I would look to whatever
Supreme Court precedent there may be. If there's no binding Su-
preme Court precedent, I would try to find analogous precedent. I
would look to the legislative history, even though that is not defini-
tive or the be-all and end-all, but it may be of some help in resolv-
ing it.
The Chairman. OK. Judge Moreno.
Judge Moreno. I would simply incorporate the remarks of the
other nominees. I would add, however, that I would grant appro-
priate deference to the legislative branch, and any ruling that I did
ultimately make I think would have to be very narrowly tailored
and decide the issue as narrowly as I possibly could. I think this
type of situation calls for very incremental movement.
The Chairman. OK. Now, you have stated that as a circuit or
district court judge, respectively, or as a judge on the Court of Fed-
eral Claims, that you would be bound by Supreme Court precedent
and the rulings of the Federal circuit court of appeals for your dis-
trict. There may be times, of course, when you are faced with cases
of first impression.
Now, what principles will guide you and what methods will you
employ in deciding cases of first impression? Let's start with you.
Judge Silverman.
Judge Silverman. Well, again, first, the presumption of constitu-
tionality. Then when it comes time to try to interpret, to try to go
from there, we would look first to the intent of the Framers of the
Constitution. If there are not binding cases on point, I would look
to see if there are analogous cases that may be of some help. And
then when all is said and done, as I would look back on a proposed
decision that I would make, I would ask myself if it makes common
1367
sense and is it fair. But the starting point is the presumption of
constitutionality and the intent of the Framers as the point of de-
parture in an analysis of constitutionality.
The Chairman. Judge Moreno.
Judge Moreno. I think I would do the same thing. I'd also look
for analogous statutes that might shed some light on a particular
statute in question.
The Chairman. Judge Miller.
Judge Miller. Well, almost every base has been covered, but
there is one more. Even though they're just persuasi\e, they're
often helpful. If there were no other source, I would also look at
the work of my colleagues to see if the same factual situation had
arisen and the same law had been applied and see if the approach
offered was a reasonable one.
The Chairman. Judge Story.
Judge Story. I would adopt the same approach as stated by the
other nominees.
The Chairman. Let me direct some questions to you, Judge Sil-
verman. Please state in detail your best independent legal judg-
ment, irrespective of existing judicial precedent, on the lawfulness
under the equal protection clause of the 14th amendment and Fed-
eral civil rights laws of the use of race-, gender-, or national origin-
based preferences in such areas as employment decisions as hiring,
promotion, or layoffs, college admissions and scholarship awards,
and the awarding of government contracts.
Judge Silverman. In my opinion, race-based classifications are
inherently suspect. They are subject to the strictest scrutiny, and
I agree with Adarand that even when they are — when they pass
constitutional muster, they must be carefully, narrowly tailored to
redress the compelling interest at issue.
The Chairman. What would it take to pass constitutional mus-
ter?
Judge Silverman. Careful tailoring is the first thing that comes
to mind; compelling interest is another. Off the top, I cannot — I
can't think of a circumstance right now that I could cite to you as
one that would pass muster.
The Chairman. So it's extremely rare for things to pass muster?
Judge Silverman. Yes; it's not impossible, but it's very rare.
The Chairman. Judge Miller, under the takings clause of the
fifth amendment, private property may not be taken by the govern-
ment for public use without the payment of just compensation to
the owner. Could you give us in detail your best independent legal
judgment, irrespective of existing judicial precedent, on whether a
property owner is entitled to just compensation under the takings
clause when the government — I can't help but ask this — through a
national monument or wetlands designation or through other land-
use or environmental regulations prohibits or substantially limits
an owner's otherwise lawful use or development of his or her pri-
vate property, or the otherwise lawful development or use of public
land by the individual or company pursuant to government con-
tract or permit?
Judge Miller. My own view, apart from Supreme Court prece-
dents, is that a land owner's use of his property is paramount and
one of the sacred rights that is guaranteed under the Constitution.
1368
A keystone of this court's jurisdiction is our being able to award
compensation for uncompensated takings of property.
At present, there is a permitting process, and if the permit is de-
nied or its issuance is unreasonably delayed, that is a basis for re-
dress by monetary compensation in our court, and it's a jurisdiction
that we treat most gravely.
The Chairman. Thank you. My time is up.
Senator Feinstein.
QUESTIONING BY SENATOR FEINSTEIN
Senator FEINSTEIN. Thank you, Mr. Chairman.
In the last Congress, the number of Federal death penalty acts
were increased from about a half a dozen to more than 50. I would
like to ask each one of you how you would handle death penalty
cases and what your view on the death penalty is. Mr. Story, do
you want to begin?
Judge Story. I would handle them very seriously. As a trial
judge in a State which has a death penalty, I have had six cases
that involved the death penalty in my court. Two of those actually
went to trial, and in one case the death penalty was imposed. So
it is a very serious matter. I would handle it with utmost care and
would follow the law, as I have done in the cases before me as a
superior court judge and would continue to follow and would have
no difficulty in following the law.
Senator FEINSTEIN. And do you believe the Constitution permits
the imposition of a death penalty sentence?
Judge Story. Yes; I do.
Senator FEINSTEIN. Ms. Miller.
Judge Miller. Our court does not have criminal jurisdiction.
However, as an officer of the United States, I would apply the laws
of the Congress, and the death penalty has been declared constitu-
tional, and that comports with my own belief.
Judge Silverman. I agree. The Supreme Court has ruled that it's
constitutional. I agree that it is constitutional, and I would affirm
death penalty cases in the appropriate case.
Judge Moreno. I have no reservation about being able to apply
the death penalty in an appropriate case. I believe it is constitu-
tional.
Senator Feinstein. I notice that many of you are judges, and one
of the things that I have found in talking with some of the people
that have gone from either a superior bench or another bench to
the Federal district court is that very often the docket they encoun-
ter is very heavy. I would like to ask this question: How would you
handle your docket?
Judge Moreno.
Judge Moreno. Well, I think it is very important, first of all, to
know your docket, to be able to sort out the cases that you think
can be expedited, to give those cases special attention, to seek early
disposition, that is, early settlements. It's also important that
courts set firm trial dates. In my experience doing both criminal
and jury trials and civil jury trials for the last 11 years, there is
nothing — no greater incentive for a settlement than an open trial
court. So I think offering the parties, if a matter does not settle,
a firm trial date is one way to expedite cases.
1369
Senator Feinstein. Judge Silverman.
Judge Silverman. Well, I'm from Maricopa County, AZ, the
home of civil delay reduction, and I can tell you what we've done,
and I think it's been successful. The key is, first, early case man-
agement by the judge, which includes, as Judge Moreno says, set-
ting deadlines, setting next events in the case, and sticking to it;
firm trial dates and holding counsel to the trial dates and not
granting continuances unless there's really genuine, genuine good
cause.
Second, implementation as soon as possible of alternative dispute
resolution mechanisms; either settlement conferences or diverting
cases out for arbitration or mediation has also been helpful.
And, finally, when push comes to shove and the case gets tried,
the judge has a duty to decide the case promptly and move on to
the next one.
Senator FEINSTEIN. Judge Miller.
Judge Miller. For 15 years, I managed a civil trial docket, and
we don't have juries, so we do all the managing. And I think case
management was certainly the seam of the 1980's and has been
part of the 1990's, but it's a two-pronged approach, both the will-
ingness of the judge to work with the litigants to fashion the best
way to handle their case speedily and economically, and that in-
cludes alternative dispute resolution, if appropriate, but also the
corresponding obligation of the judge to make sure that the judge
renders decisions promptly and in a manner that's clear and fully
informs the parties of their rights so they can determine what the
next step should be.
Senator Feinstein. Thank you.
Judge Story.
Judge Story. I'm on a very active trial court that handles all
types of cases, both civil and criminal. It is the general jurisdiction
court in our State, and I would agree with all of the things that
have been stated.
I might add that in terms of making decisions, I think it's impor-
tant for judges to make decisions early in the process as well, when
discovery disputes arise to help the litigants get those matters re-
solved so that they can move on with their litigation.
ADR has been particularly helpful in our circuit. We established
one of the first ADR programs in the State, beginning in domestic
relations cases, and it has expanded. We even do mediation in
criminal cases, and it's been very successful in resolving some of
those cases.
So there are a number of things that we do in the State court
that I think translate over very well.
Senator Feinstein. Thank you very much.
Thanks, Mr. Chairman.
The Chairman. Thank you. Senator Feinstein.
Senator Grassley.
questioning by senator grassley
Senator Grassley. Congratulations to all of you. I wasn't here
when you were sworn in and when you gave your opening state-
ment, but congratulations, anyway. I just have a few questions.
1370
Judge Moreno, what is your experience or what has it been with
CaHfornia's "three strike" law? Have you ever dealt with it in any
of your cases? What are your fellow judges saying about it? Are
there any problems with it?
Judge Moreno. Yes; I have been dealing with it. Four months
after being appointed to the superior court in March 1994 is when
"three strikes" was enacted, first by the legislature, by the way,
and then that November by the people by way of initiative.
There were dire predictions that we were going to be inundated
in cases. I was part of a superior court committee that devised fast-
track rules for the handling of these cases. I'm happy to report that
the backlog that we initially experienced is there no longer. We
treat "three strike" cases — they do go to trial a little bit more often.
But they haven't posed the problem that most people thought they
would initially.
I have handled — I'd say 30 percent of my cases are "third-strike"
cases. Some of them are serious felonies, and some of them are —
the instant case is not a serious felony, but they're all deserving
of great consideration.
Senator Grassley. So you have really had a lot of experience
with it. What about some other people that are on the bench with
you and deal with it? Do they seem to express problems with it,
if you can speak for other people?
Judge Moreno. I don't know if I can speak for others, but as I
said, I think most of us on the California Superior Court are han-
dling the problem quite well. We were given discretion last year,
1996, judges were given further discretion to have some input into
the ultimate sentence, but I don't think that it's the problem that
it was initially thought it was going to be.
Senator Grassley. I am going to ask all of you — well, let me
ask — I think except for Judge Miller. I don't know whether you
would be involved with this issue or not, but for the others of you
that will be on the district court or courts of appeal — ^by the way,
first of all, let me tell you I have got very much an interest in the
judicial process and prosecuting process that is called qui tarn. It
is when an individual can go into court when the U.S. attorneys
don't or where the U.S. attorneys use some of their information,
qui tam. And I was involved with that legislation, so I kind of —
and I probably wouldn't ask this except just last week, after about
three courts of appeals and I think several district courts had al-
ways upheld the constitutionality of it, there was a district court
judge in Texas that ruled that these statutes were unconstitu-
tional.
Do any of you have views as to the constitutionality or unconsti-
tutionality of the statute?
Judge Moreno. I have no particular views, one way or the other.
I am just vaguely familiar with the notion of the
Senator Grassley. Is there an5rthing about the process that you
find obnoxious?
Judge Moreno. No; not at all.
Senator Grassley. Judge Silverman,
Judge Silverman. No.
Senator Grassley. Judge Story.
Judge Story. No, sir.
1371
Senator Grassley. OK. And I think I am right. You will not be
dealing
Judge Miller. We do have the suits insofar as sometimes the in-
dividual involved
Senator Grassley. Oh, you will — well, give me your opinion,
then.
Judge Miller. My opinion is the law does not pose constitutional
difficulty.
Senator GRASSLEY. OK. Well, thank you.
We will move onto another question. I would like to have Judge
Silverman and Judge Moreno think about this. I think you have
both agreed in your discussion with Senator Hatch that laws
passed by Congress must be given deference in the presumption
that they are valid and constitutional. What about citizen initia-
tives?
We have this situation. I suppose you could cite several from
California and the ninth circuit, but the one that in Jones v. Bates
where the three-judge panel has set up a dual standard as a result
of that case, should citizen initiatives be given a presumption that
they are constitutional?
Judge Moreno. Go ahead.
Judge Silverman. Yes. Yes; of course.
We in Arizona have an initiative, a referendum procedure. They
are presumptively constitutional. They are the grassroots will of
the electorate, and the electorate ought to be presumed to have
known what it has done, and are entitled to great deference just
as any other law would be.
Senator Grassley. Judge Moreno.
Judge Moreno. I am in favor of initiatives. I have — I believe
they are also entitled to the same presumption of constitutional va-
lidity and in deference by any reviewing court.
I am proud of the fact that California has the initiative process.
Sometimes the people simply have to speak when the legislature is
not able to.
Senator GRASSLEY. Could I ask each of you, then, if you disagree
with the decision in the Jones case?
Judge Moreno. I have read a synopsis of it. The only part that
concerns me is a reference to the electorate being the electorate,
being ignorant, and the court somehow substituting its will of what
an overwhelming amount of voters decided should be the law.
Senator GRASSLEY. Judge Silverman?
Judge Silverman. I disagree with the decision and agree with
the dissent.
Senator GRASSLEY. Judge Silverman, many people believe that
the ninth circuit is just too big and unwieldy to function effectively.
Do you believe that courts can get too big, and, specifically, do you
believe that the ninth circuit is too big or at least should not get
any bigger?
Judge Silverman. Well, there are pros and cons to dividing the
circuit up. I do not think it would be advantageous to have the cir-
cuit get any bigger. There are economies of scale. In some respects,
having large circuits, there is less administration and that sort of
thing. We have less divisions amongst circuits, the fewer circuits
there are, but, by the same token, sometimes the circuit can get so
1372
big that it gets out of touch with the districts that comprise it. So
there is something to be said for both sides of that. I am not really
sure how I would resolve it.
Senator Grassley. OK. Thank you, Mr. Chairman.
The Chairman. Thank you.
I have a lot of other questions, but I am satisfied, listening to the
four of you, that you are excellent nominees.
As you know, I am death on judicial activism. Five years ago
Senator Grassley. Oh.
The Chairman. You did not know that?
Senator Feinstein. No kidding.
The Chairman. Do not tell me none of you knew that.
But, you know, 5 years ago, people did not really understand
what that was. I think everybody understands today. It is impor-
tant.
Let me just make this case. As people can easily see around here,
if they really know what is going on, I have worked very hard to
fill these judgeships. The Ninth Circuit Court of Appeals, in par-
ticular, has been very, very difficult to fill, and one of the reasons
is — and you are going on that. Judge Moreno — one of the reasons
it is so difficult is because of the activism of that court, and these
judges think that they are standing up for liberal principles when,
in fact, they are undermining the judiciary across the board, and
even members of the judiciary from the left to the right are very
critical of what they are doing.
If you go on that court and you become one of those, you are
doing the judiciary a great deal of harm. It is very difficult knowing
that that court is the most reversed circuit court in the country. It
is very difficult to get the nominees through the committee, and it
is a tribute to you that you are going to go through the committee
and hopefully onto the court as quickly as possible.
Now, just so everybody knows, I intend to have Margaret
McKeown — I want my colleagues to know this — who will also come
up for the Ninth Circuit Court of Appeals and Susan Mollway from
Hawaii on the next hearing. She is for the district court, but Mar-
garet McKeown will be for the ninth circuit, but I am counting on
you when you get there to just be a great judge.
I do not really care if you are liberal or conservative. Naturally,
I think I would prefer you to be conservative, but the fact is, it is
not that important if you observe the rule of judging. Judges are
not — they are the closest thing to God in this world, but the fact
of the matter is, they are — ^you are nominated and confirmed for
life for these positions, to interpret the laws, not make them.
Now, sure, you have cases of first impression where you have got
to decide what the law really is. Sure, you have to split the baby
sometimes, so to speak, to decide any particular — some of these
particular cases, but I think you know what I am talking about
when I talk about judicial activism, and I do not mean to lecture
you, but I am telling you that it is a big problem to us on the Judi-
ciary Committee and it should be because some of the judges in
this country really are activists who just substitute their own pol-
icy preferences for what the clear law is, and that is not right.
You said today that if the death penalty came before you, you
would have no problems at all with sustaining it because that is
1373
the law of the land. There are three judges in the Ninth Circuit
Court of Appeals who have never voted in their whole tenure on
that bench to sustain a death penalty.
Now, I have to admit, I do not like the death penalty personally,
but it is the law, and I believe it is something that needs to be the
law because I do believe that it is a deterrent, if only for those who
have committed murder so they do not do it again in prison or else-
where. And we have plenty of illustrations to show that they do.
So it is very important for you to set examples as members of
the Federal judiciary. I love the Federal judiciary. I fight for you.
I fought for the pay increase. I wanted it separated for more pay.
I got that through the Senate, could not hold it in conference. I
think the judiciary is the reason this country is great. I think it
is the reason the Constitution is observed in this country, but if
judges start doing whatever they want to rather than observing
what the law is and following it the way it is, then it will not take
long until the judicial system will undermine this very country that
you now are sustaining.
So this is very important. I think all four of you are excellent
nominees. I commend the President for sending you here, and we
are going to do everji^hing we can to get you through.
I believe they will be on tomorrow's markup. We are going to put
you on the markup tomorrow. Now, whether we can get you
through in this timeframe or not, we only have tomorrow, I think.
It will be probably the last day. I am not sure, but do not worry.
It will carry over, and we will do the best we can.
I also do not think it is fair to have you standing in limbo when
you have to — and each of your cases, it is not so bad because you
are already either a magistrate or judges, but where a person is
practicing law and has to wind down that practice, it is a big prob-
lem, and I would like to have more cooperation in resolving some
of these very serious problems.
I, for one, do believe that the President, whoever the President
may be, is the President, and that President has a constitutional
right to make these nominations. We have a constitutional obliga-
tion that unless there are really significant reasons for rejecting a
judicial nominee, to confirm, not with a blank check, but to confirm
those that the President has nominated.
So understand that you can help others by your actions when
you get there. It is really important. In fact, I get it mixed up. It
is you, Mr. Silverman, that is going on the ninth circuit, but that
you are going to be within the ninth circuit.
Judge Silverman. I thought you knew something I did not know.
The Chairman. You would not want to be on there with the type
of judges they have there right now. We are counting on
Senator Feinstein. Oh, oh.
The Chairman. I am just kidding. I thought I would just throw
a little here — we are kind of counting on you, Judge Silverman, to
make a difference.
Judge Silverman. Mr. Chairman, I commit to you that I will do
that.
The Chairman. Well, I commit to you that I will be watching.
1374
Senator Feinstein. Mr. Chairman, I think Judge Silverman
probably wins an award for the quickest processed nominee, at
least since I have been on this committee.
The Chairman. You know, when you put up the nominees,
we
Senator Feinstein. I have been trying to figure out what your
magic is.
Judge Silverman. Well, I am a magician.
The Chairman. Do not tell us that.
Let me just say this, that when we get good nominees, we try
to put them through. Now, I have to admit, I wish we could do bet-
ter. The committee is not totally without some fault, too, but we
have worked hard, and we have tried to move nominations as
quickly as we can.
We have 35 confirmed judges this year, 8 are pending, 4 today.
That would be 12 more. If we can, that would be 47 total possible
judges. That is far better than our colleagues on the other side did
during a number of years during the Bush and Reagan administra-
tions, when there were actually more vacancies.
By the way, we have about 40 vacancies that have not gotten any
nominees, and as hard as I try, I have never quite been able to get
nominees confirmed who are not nominated. So, you know, I get a
little tired of all the screaming and shouting, but the point I am
making is each of you can make a difference for people who follow
you here before the committee by being good judges and observing
the Constitution and doing what really is expected of you, and if
you will do that, you will help the Federal judiciary immensely, re-
gardless of who the chairman is or who is in charge of this commit-
tee. I think you will find that all of us will work harder to make
sure that these positions are filled, and we will do our very best
for you.
I will do my very best to get you through before the end of this
session, which means probably tomorrow, but that means that we
will put you on the markup for tomorrow, and, hopefully, all four
of you will pass that, but, if something happens that you do not get
through this session, we will do our very best to get you through
as soon as we come back after the 20th of January.
Judge Silverman. Thank you very much.
The Chairman. I want to thank each of you. I want to thank
your families for being with you, and your friends. I think it is a
real tribute to all of you to have all of these folks with you, and
we wish you the very best, and I hope you will not forget us on the
Judiciary Committee.
We believe once you get there, you can observe things that this
committee needs to do, and we would love to receive correspond-
ence. I know there is a fine line, but we would love to receive cor-
respondence from you. We would love to have your suggestions. We
would love to be able to do a better job here.
And believe it or not, with all of the wide diversity of beliefs on
this committee, we do get a lot done, and I think you find that
there are many times when we get together as Democrats and Re-
publicans and do what is right for this country, as well as some of
the fiascos that occasionally occur as well.
1375
We want to thank each of you for being here, and with that we
will recess until further notice. '
[Whereupon, at 2:56 p.m., the committee was adjourned.]
[Submissions for the record follows:]
1376
SUBMISSIONS FOR THE RECORD
SEMATE JUDICIARY COMMITTEE QUSSTIONNAIRE FOR JXIDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full na'"''* (include any former names used.)
Bajrry G. Silverman
2. Address ; List current place of residence and office
address (es) .
Place of residence
Phoenix, AZ
Office address
U. S . Courthouse
230 N. 1st Ave., Rm. 5011
Phoenix, AZ 85025
602-514-7022
3 . Date and place of birth;
October 11, 1951, New York, NY
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Married to George-Arm Silverman (maiden name: Middleton)
self-employed court reporter, works from home
Education; List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Phoenix College, summer, 1969 (immediately after high
school graduation in June, 1969, I attended Phoenix
College in the summer to earn credits for transfer to
Arizona State University in fall, 1969)
Arizona State University, August, 1969-
January, 1973. Degree: B.A. summa cum laude
Arizona State University College of Law,
August, 1973-May, 1976, Degree: J.D.
S. Employment Record; List (by year) all business or
professional corporations, companies, firms, or other
1377
enterprises, partnerships. Institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as em officer, director, partner, proprietor, or
employee since graduation from college.
After college graduation and durincr law school (Jan. . 1973-
Mav. 1976)
1973: KXTV Radio (no longer in existence) , Phoenix, AZ.
Part-time job selling advertising and as board operator
1974: Jones, Hunter & Lerch (firm no longer in existence) ,
Phoenix, AZ. Law cler}i
1975-76: Streich, Lang, Weeks Cardon & French, (now Streich
Lang) 2 N. Central, Phoenix, AZ 85004, 602-229-5200) . Law
clerk/ summer associate
1975-76: Treon, Warn! eke, Dann & Roush (now Treon S trick
Lucia & Aguire PA) 2700 N. Central Ave., Phoenix, AZ 85004,
602-285-4400. Law clerk
After law school
10/25/76 - 11/30/77: Phoenix City Prosecutor' s Office,
455 N. 5^ St, Suite 400, Phoenix, AZ 85004, 602-262-6461:
Assistant City Prosecutor.
12/1/77 - 12/7/79: Maricopa County Attorney' s Office, 301 W.
Jefferson, Phoenix, AZ 85003, 602-506-3411 : Deputy County
Attorney
12/7/79 - 9/4/84: Superior Court of Arizona for Maricopa
County, 201 W. Jefferson, Phoenix, AZ 85003. 602-506-3204:
Superior Court Commissioner
9/4/84 - 1/25/95: Superior Court of Arizona, 201 W. Jefferson,
Phoenix, AZ 85003, 602-506-3204 : Judge of Superior Court
1/25/95 - present: U.S. District Court for the District of
Arizona, 230 N. 1" Ave., Phoenix, AZ 85025, 602-514 -7022 :
U.S. Magistrate Judge
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.
1378
No
Honors a"d Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be o£ interest to the Committee.
^Outstanding Aluraaus Award," Arizona State University-
College of Law Alumni Association, 1995
■^Judicial Division of the Year, " Superior Court Employee
Recognition Committee, May, 1994
Family Law Committee of the Maricopa County Bar
Association Award for "^Excellence as a Jurist, " 1994
"^1991 Henry Stevens Award" by the Maricopa County Bar
Association to a sitting or former trial judge "^who
reflects the finest qualities of the judiciary"
Highest scorer among all Maricopa County Superior Court
judges in the 1994 Arizona Judicial Performance Review
survey; highest scorer among all Maricopa County Superior
Court judges in the 1992 Arizona Judicial Evaluation
Poll; highest or second- to- the -highest scorer in the
1990, 1988, and 1986 Arizona Judicial Evaluation Polls.
"^1992 First Place Excel Award for an Editorial or Column
(Category: Magazine-Ad Revenues of $100,000 or Less)"
from the Society of National Association Publications for
my article, M Judge's Mailbox, " that appeared in
Litigation. Fall, 1991, published by che American Bar
Association
Nominated for a 1992 ^Maggie Award" given by a magazine
industry group for "Best Regularly Featured Department,
Section or Column in a Trade Publication" for a series of
columns I wrote for Arizona Attorney in 1991, published
by the State Bar of Arizona
Member, Arizona State Law Journal. 1974-75
9. Bar Associations; List all bar associations, legal or
judicial -related coBnaittees 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.
State Bar of Arizona (1976 -present)
American Bar Association (197 6 -present)
Maricopa County Bar Association (197 6 -present)
Federal Bar Association (1995 -present)
1379
American AssociAtion of Law Lihraries (1989-1994)
Ninth Circuit Historical Society (199€-1997)
Federal Magistrate Judges Association (1995-preBent)
Arizona Judges Association (1979- 1995; secretary 1993
94)
3t I
Law Society of Arizona State University (1995-present)
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before p\iblic bodies.
Please list all other organizations to which you belong.
A. No organizations that are active in lobbying
B. Other organizations:
International Brotherhood of Magicians (1986-present)
Society of American Magicians (1992 -present)
Psychic Entertainers Association (1989 -present) — The PEA
is an organization of magicians with an interest in wagic
tricJis that create an illusion of mind-reading.
B'nai Brith (1976-present)
Temple Solel (1996 -present)
Temple Beth Israel (1978-1996)
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.
Arizona Supreme Court, October 22, 1976
U.S. District Court (D.Ariz .) , November 1, 1976
U.S. Court of Appeals rs" Cir . ) , November 4, 1976
U.S. Supreme Court, July 14, 1980
12. Published Writings: List the titles, publishers, and dates
of books, articles, reports, or other pviblished material you
have written or edited. Please supply one copy of all
piiblished 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
1380
press reports about the speech, and they are readily
available to you, please supply them.
Copies of the following writings are supplied at Tab A of the
accompanying supporting documents:
Author, "A Judge's Mailbox, " 18 Litigacion 43 (Fall,
1991) . It was reprinted in Iowa Lawyer, January, 1993,
and in The Federal Lawyer, March/April, 1997 anid first
appeared in Arizona Attorney "Out of Order" series.
Author, "Out of Order, " a series of eight monthly
humor columns in Arizona Attorney, the monthly
magazine of the State Bar of Arizona, April
December, 1991. Three of the columns were
reprinted in The Phoenix Gazette (Augusc 31, 1991,
January 14, 1992 and March 3, 1992.)
Author, Book Review, Death of a "Jewish American
Princess, " Arizona Attorney, October, 1988.
Principal author, "A System in Crisis: The Report of the
Committee to Study the Criminal Justice System in the
Arizona Superior Court, " Supreme Court of Arizona, July
20, 1993.
Copies of the following speeches and notes of speeches are
supplied at Tab B:
1. Convocation Address, Arizona State University College
of Law, May 15, 1997.
2. "Annual Dinner Pays Witty Tribute to Departing Dean, "
reprint of remarJcs published in the Arizona State
University Law Forum, Spring, 1990.
3. Notes of speech given to Society of Boutiques (May 7,
1996), Arizona State University Law School Alumni
Association (January 10, 1996), and Scottsdale Bar
Association (April 9, 1996) .
4. Notes of speech to entering law scudents at
Orientation, College of Law, Arizona State University,
August 18, 1994.
5. Notes of speech to new members of the District Court
bar, 1996, exact date unknown.
6. Notes of speech ac Maricopa County Bar Association
seminar on "Juvenile Dependency Cases in a Nutshell,"
December 3, 1990.
1381
7. Notes of remarks at the dinner in honor of the
retirement of Chrie C. Tountas from Superior Court, May
11, 1990.
8. Notes of speech to Focus Phoenix, June 9, 1987.
9. Notes of speech to Young Lawyers Section of Maricopa
County Bar Association, May 21, 1987.
10. Notes of speech at the Arizona Judicial Conference,
December 9, 1986.
11. Notes of speech to the Scottsdale Bar Association,
January 8, 1985.
12. Notes of speech on a juvenile law topic, audience
and date unknown.
13. Notes of speech at State Bar of Arizona seminar
called "Collecting Child Support Judgments Without
Contempt, " March 27, April 3, April 10, and April 24,
1987.
14. Notes of speech on a domestic relations topic,
audience and date unknown.
15. Notes of speech on a domestic relations topic,
audience and date unknown.
16. Notes of speech on "observations from the bench" to
a group of summer law clerks, date unknown.
17. Notes of speech at Maricopa County Bar Association
seminar called "D.R. Bench on Trial, " estimated date:
1987.
13. Health; What is the present state of your health? List the
date of your last physical examination.
Excellent. May 7, 1997
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 .
Current judicial office (since January 21. 1995)
U.S. Magistrate Judge, U.S. District Court for the
District of Arizona. I was appointed by the judges of
1382
the District Court in accordance with the statutory
merit -selection process. The District Court is an Article
III court of limited jurisdiction.
January 21. 1995 -September 4. 1984
Judge, Superior Court of Arizona for Maricopa County.
I was appointed by Gov. Bruce Babbitt in accordance with
the Arizona judicial merit selection process and retained
in office by vote of the people in the 1986, 1990 and
1994 retention elections. The Superior Court is the
court of general jurisdiction in Arizona.
September 4. 1984 - December 10. 1979
Superior Court Commissioner/Judge Pro Tern, Superior Court
of Arizona for Maricopa County. I was appointed by then-
Presiding Superior Court Judge Robert C. Broomfield in
accordance with a merit-selection process analogous to
the Arizona judicial merit selection procedure. A
Superior Court Commissioner is a judicial officer similar
to a U.S. Magistrate Judge.
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 sunanary 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) OPINIONS I HAVE WRITTEN (Copies of the following opinions
are supplied at Tab C. )
1. Avala V. Qlaiz. 161 Ariz. 129, 776 P. 2d 807 (App.)
review denied (1989) .
2 . In the Matter of Ashley [confidential surname] .
Maricopa County Superior Court No. JD-6113 (1991)
3. Marriage of McGivem, Maricopa County Superior Court
No. DR 92-13343 (1994)
4 . In the Matter of Babv Girl (names confidential] .
Maricopa County Superior Court No. JS-8287 (1990)
5. Suvapol V. Loonev. United States District Court for
Che District of Arizona No. CIV 97-1489 PHX RCB
1383
(BGS) (1997)
6. Wolfe V. McDouaall. et al . , United States District
Court for the District of Arizona No. CIV 95-2246 PHX PGR
(BGS) (1996)
7. Zions First National Bank v. Johnson. United States
District Court for the District of Arizona No. CIV 94-2032
PHX ROS (BGS) (1997)
8. Casey v. Lewis. United States District Court for the
District of Arizona No. CIV 90-0054 PHX RGS (BGS) (1997)
9. United States v. Horner. United States District Court
for the District of Arizona No. CR 90-464 PHX RCB
(BGS) (1996)
10. Price V. Arvaia, United States District Court for the
District of Arizona No. CIV 94-1596 PHX BGS (1996)
(B) SUMMARY OF REVERSALS & AFFIRMANCES -WITH -CRITICISM
Puhlished opinions
1 . In the Matter of Maricova County Juvenile Action No.
JD-05401. 173 Ariz. 634, 845 P. 2d 1129 (App.1993) . Court
of Appeals held that juvenile court cannot award long-
term custody of a minor to grandparents without a finding
that the child is "dependent."
2. State V. Buacrs . 167 Ariz. 333, 806 P. 2d 1381
(App.1990). Affirmed, Court of Appeals holding that
erroneous self-defense jury instruction was harmless
error .
3. Romley v. Superior Court. 163 Ariz. 278, 787 P. 2d
1074 (App. 1989) . Court of Appeals held that the juvenile
court psychologist's report is not hearsay and is
admissible in evidence without foundation -even if the
psychologist does not testify.
4. State v. Bouchier. 159 Ariz. 346, 767 P. 2d 233
(App. 1989) . The Court of Appeals affirmed the conviction
but modified the term of probation to comport with
statutory maximum probation term.
5. Mardian Construction Co. v. Superior Court. 157 Ariz.
103, 754 P. 2d 1378 (App. 1988) . Court of Appeals held that
Worker's Compensation statutes barred not only worker's
personal injury claims but his spouse's loss of
consortium claim as well.
8
1384
6 . Ziaav's Opportunities. Inc. v. I-IO Industrial Park
Developers . 152 Ariz. 104, 730 P. 2d 281 (App.l9S6j .
Court of Appeals held that in post-eminent domain
proceedings, evidence did not establish all the requisite
elements of adverse possession.
7. Walter O. Boswell Memorial Hos-pital v. Yavaoai County.
148 Ariz. 38S, 714 P. 2d 878 (App.l9a6) . Court of Appeals
affirmed in part and reversed in part . Court affirmed
method of calculating reimbursement of indigent medical
care, but remanded for a determination of the proper
reimbursement amount based on medicaid rates in effect at
relevant time.
8. Bryan t v. Sil verman . 146 Ariz. 41, 703 P. 2d 1190
(1985). Supreme Court held that in airline crash case,
law of the forum state, Arizona, rather than law of the
situs of the crash, Colorado, should be applied because
Arizona had the greatest interest in the determination of
the wrongful death action.
9. Merwn's v. Superior Court. 144 Ariz. 297, 697 P. 2d
690 (1985) . Arizona Supreme Court held that in
garnishment proceedings that are in rem or quasi in rem,
service by publication is not an unconstitutional
deprivation of due process. [Note: Less than a month
after this decision was rendered, in an unrelated case,
the Arizona garnishment statutes were declared
unconstitutional by the federal court in Neely v. Century
Finance Co. of Ariz., 606 F.Supp. 1453 (D.Ariz. 1985)]
10. State V. Goodwin. 160 Ariz. 366, 773 P. 2d 471 (App.)
review denied (1989) . Court of Appeals held that
previous case requiring a written waiver of the
preservation of a second breath sample does not apply if
defendant is actually furnished the sample. Written
receipt for sample is not required.
Unpublished decisions (Copies of the following unpublished
decisions are supplied at TaLb D.)
1. Czerwinski v. Sonenberg, 1 CA-CR 92-0354 (1994).
Affirmed on appeal, reversed and remanded on cross -
appeal. Court of Appeals reversed portion of case
dealing with child support award due to lack of
sufficient findings to deviate from child support
guidelines . Case remanded for additional findings and
legal description of property.
2. Frost V. Frost, l CA-CV 93-0040A (1993). Reversed in
1385
part; affirmed in part. Court of Appeals reversed order
retroactively granting to wife a portion of husband's
military retirement. Held, change in law after original
divorce was not prospective and did not apply to this
case.
3. State V. Gonzales. 1 CA-CR 11800 (1988). Court of
Appeals remanded for resentencing because aggravated
sentence called for in plea agreement was imposed without
the court stating aggravating factors on the record.
4. Marriage of Khamre, 1 CA-CIV 9073 (1987). Court of
Appeals found that appellee' s failure to file an
answering brief was a confession of error when appellant
raises a debatable issue.
5. Sutherland v. Arizona Indoor Soccer. Inc. . 1 CA-CIV
8523 (1986) . Cross-motions for swnmazy judgment. Court
of Appeals held that grant of summajry judgment against
corporation and sole shareholder in breach of employment
contract case was error. Held, facts did not warrant
piercing corporate veil and disputed facts existed
requiring parol evidence to resolve.
6. Ricrex Development. Inc. v. Tash. 1 CA-CIV 8686
(1986) . Court of Appeals held suinmary judgment was
erroneous in an action for breach of an option in a
contract. Appellant' s withdrawal of money from an escrow
account did not constitute rescission as a matter of law.
7. Whitton V. Vanderwev, 1 CA-CIV 8198, (1986). Court
of Appeals reversed summary judgment in favor of the
seller in case arising out of a sale of a residence.
Acceptance of late payments constitutes waiver of right
to invoice acceleration provision of note.
8. State V. Wolkoff. 1 CA-CR 88-237 (1988). Affirmed in
part, reversed in part. Imposition of $100 statutory
assessment when probation was revoked in 1988 was
erroneous because assessment was not in effect in 1983
when crime was committed.
(C) OPINIONS ON CONSTITUTIONAL ISSUES (The first three of the
following citations are to appellate opinions on
constitutional rulings I made as a trial judge. The fourth
citation is to an appellate opinion in which I joined, as an
appellate judge pro tem, concerning a constitutional issue.)
1. Dept. of Revenue v. Arthur. 153 Ariz. 1, 734 P. 2d 98
(App. 1986).
10
1386
2. Nalbandian v. Sunerior Court. 163 Ariz. 126. 786 P. 2d
977 (App. 1989), reconsideration denied (1990), cere.
denied, 489 U.S. 997 (1990) .
3. Merwn's v. Superior Court, 144 Ariz. 297, 697 P. 2d
690 (1985) .
4. Olson V. WaDcer. 162 Ariz. 174, 781 P. 2d 1015 (App.),
review denied (1989), 12 A.L.J?. 5ch 1020.
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 o£ the judge, the
court, amd the dates of the period you
were a clerk;
Not applicaJDle
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, com|>euiies or
governmental agencies with which you have
been connected, and the nature of your
connection with each;
After law school
10/25/76 - 11/30/77: Phoenix City Prosecutor' s Office,
^ 455 N. 5"^ St, Suite 400, Phoenix, AZ 85004, 602-262-6461:
Assistant City Prosecutor.
12/1/77 - 12/7/79: Maricopa County Attorney's Office, 301 W.
Jefferson, Phoenix, AZ 85003, 602-506-3411: Deputy County
11
1387
Attorney
12/7/79 - 9/4/84: Superior Court of Arizona, for Maricopa
County, 201 W. Jefferson, Phoenix, AZ 85003, 602-506-3204:
Superior Court Connnissioner
9/4/84 - 1/25/95: Superior Court of Arizona, 201 W. Jefferson,
Phoenix, AZ 85003, 602-506-3204: Judge of Superior Court
1989 - present: BAR/BRI Bar Review, 20 E. University, Tempe,
AZ 85281, 602-929-0190 : Lecturer, Arizona Community
Property, and since 1997 Idaho and Nevada Community Property
1/25/95 - present: U.S. District Court for the District of
Arizona, 230 N. I*= Ave., Phoenix, AZ 85025, 602-514-7022:
U.S. Magis era t e Judge
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?
1976-1979 : Criminal prosecution — I year of misdemeanors ,
2 vears of felonies
2 years of felonies
1979-present: Judicial — As a Superior Court judge, I
served rotations in the Civil, Domestic Relations,
Criminal, Juvenile, and Special Assignment departments of
the court. As a Superior Court Commissioner, I served in
those departments and also in the Probate/Mental Health
department .
As a U.S. Magistrate Judge since 1995, my workload is
half civil, half criminal. It includes civil trials by
consent, settlement conferences, pretrial motions,
petitions for writs of habeas corpus, issuance of search
and arrest warrants, and various hearings and other
proceedings in criminal cases including -misdemeanor
trials by consent.
Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
I have a special interest in domestic
relations , juvenile and criminal law.
Did you appear in court frequently,
occasionally, or not at all? If the frequency
12
1388
of your appearances In coiirt varied, describe
each such variance, giving dates.
Frequently
2. What percentage of these appearances was in:
(a) federal courts;
Oi
(b) state courts of record;
67f
(c) other courts.
33i (Phoenix City Court)
3. What percentage of your litigation was:
(a) civil;
If
(b) criminal .
99%
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.
In courts of record, I tried 5 cases as sole counsel and
2 as chief counsel. In the Phoenix City Court, which is
classified as a "court on the record" but not a *court gf
record, " I tried over 25 jury trials and several hundred
bench trials.
5. What percentage of these trials was;
(a) jury;
lOOi
(b) non-jury.
Oi-
ls. Litigation: Describe the ten most significant litigated
13
1389
matters which you personally handled. Give the citations, if
the cases were reported, and the docket mjmber and date if
unreported. Give a capsule Bummary 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
ntimbers of co-counsel and of principal counsel for
each of the other parties.
PLEASE NOTE: Three, rather than 10, cases are recounted here
because although I have been a lawyer for 21 years, the last
18 of those years I have held judicial office. I have
presided over thousands of jury trials, bench trials, hearings
and other proceedings , but my experience as a trial lawyer is
limited to my first three years of practice (1976-79) . A list
of recent contacts I have had with members of the legal
community follows the case descriptions.
State V. Paul o. Valenzuela
Maricopa County Superior Court, No. CR 99701
Judge: Hon. Sandra Day O'Connor, 202-479-3000
Opposing counsel : Trial: Lionel C. Estrada, 602-254-6661;
Appeal: Paul Prato, 602-506-8219 & John Rood 602-506-7965
Trial: May, 1978
Appeal: Aff'd in part, rev'd in part by Memorandum
Decision of the Court of Appeals, l CA-CR 3570, 1 CA-CR
3731 (consolidated) September 18, 1979
Prosecution for first -degree rape and sodomy with prior
convictions . The victim's name and phone number had been
furnished to the defendant by a dating service of which
both the victim and the defendant were members. On their
date, the defendant drove the victim to a remote location
in the desert and sexually assaulted her. Consent was
the defense ■ The jury found the defendant guilty of all
counts; he was sentenced by then-Judge (now Justice)
O'Connor to 30-50 years imprisonment. In post- trial
proceedings, Judge O'Connor vacated the conviction and
granted a new trial because of some irregularities that
occurred at the trial including attempted jury tampering
by the defendant' s mother. The prosecution appealed the
grant of the new trial; the defendant cross -appealed the
underlying conviction. The Arizona Court of Appeals
affirmed the conviction and reversed the granting of a
new trial.
14
1390
Significance : (1) Conviction obtained despize a consent
defense in the dating context; (2) the order for a new
trial was reversed on appeal even though new trial
motions are usually left to the discretion of the trial
judge. I tried the case and handled the appeal.
State V. John A. Trebil
Maricopa County Superior Court, No. CR 102919
Judge: Hon. William P. French, 602-212-8516 (now in
private practice)
Opposing counsel: Ron Kent Hooper, 602-953-5267
Trial: May, 1979
Appeal: Rev'd by Memorandum Decision of the Arizona Court
of Appeals, January 29, 1981, No. 1 CA-CR 4234
Prosecution for vehicular homicide. The defendant was
parked at the pick-up window of a drive -thru restaurant
chatting with the waitress . Upon overhearing co-
defendant Martin speak obscenities over the order- taking
intercom, Defendant gave chase of Martin. Both were
driving in excess of 80 MPH. Martin crashed his car into
a home killing an elderly couple asleep in bed. Martin
pled guilty. I prosecuted defendant Trebil for vehicular
homicide even though his vehicle did not collide with
anything. The jury found the defendant guilty. The case
was reversed on appeal due to an error in the judge's
answer to a juror's note during the deliberations .
Significance: This was the first vehicular homicide
prosecution in Arizona of a person who caused a fatal
collision but was not in the collision himself. I tried
the case .
State V. James McNett and Jesus Rodriguez
Phoenix City Court, case number unavailable (records
destroyed after 7 years)
Judge: Hon. John T. Zastrow, 602-514-7356 (now a U.S.
Immigration Judge)
Opposing counsel: Charles I. Robson (whereabouts unknown,
believed deceased)
Trial: May. 1977
Appeal: Aff'd on appeal to Superior Court Judge Marilyn
Riddel (retired) , case number unavailable (Superior Court
"Lower Court Appeal" cases are not indexed by name of
defendant prior to 1986.)
Prosecution for soliciting prostitution. Two undercover
police narcotics agents from a neighboring town, while on
duty, solicited acts of prostitution from a woman who,
15
1391
unbeknownst to them, was an undercover Phoenix police
detective. Their defense was that they were attempting to
develop narcotics information and practicing their street
rap. The prosecution had evidence to rebut those
contentions. After a week long jury trial, both
defendants were found guilty and fined $120.00. The
convictions were affirmed on appeal to the Superior
Court .
Significance: The case was front-page news in Phoenix for
a week and attracted national media attention. The
Phoenix Police Department viewed the case as a make-it-
or-break-it test of its undercover vice enforcement
program. I tried the case and received a formal
commendation from the Chief of the Phoenix Police
Department.
The following is a list of members of the legal community
wich whom I have had recent contact:
Mark I. Harrison
Bryan Cave
2800 N. Central Ave,
Phoenix, AZ 85004
602-280-8405
Janet Napolitano
U.S. Attorney for Arizona
230 N. I" Ave.
Phoenix, AZ 85025
602-514-7583
Jon M. Sands
Federal Public Defender
222 N. Central Ave., Suite 810
Phoenix. AZ 85004
602-379-3290
Irwin Harris
111 W. Monroe, Suite 1107
Phoenix, AZ 85003
602-258-6904
Richard J. Morgan, Dean
Boyd School of Law
University of Nevada at Las Vegas
4505 Maryland Parkway
Las Vegas, NV 89154
702-895-3671
16
1392
Hon. Frederick J. Mar tone
Arizona Supreme Court
1501 W. Washington
Phoenix, AZ 85007
602-542-4535
Ann E. Harwood
Assistant U.S. Attorney
23 0 N. I" Ave
Phoenix, AZ 85025
602-514-7737
Jane E. Reddin
Lewis & Roca
40 N. Central Ave.
Phoenix, AZ 85004
602-262-5311
Michael L. Gallagher
Gallagher & Kennedy
2600 N. Central Ave.
Phoenix, AZ 85004
602-530-8000
William M. Demlcng
Bess & Dysart PC
7210 N. 16'" St.
Phoenix, AZ 85020-5201
602-331-4600
Robert K. Jones
Streich Lang PA
Two N. Central Ave.
Phoenix, AZ 85004-2391
602-229-5496
19. Legal Activitieg; Describe the most significant legal
activities you have purBued, 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.)
1. As a U.S. Magistrate Judge in 1995, I issued about a
dozen search warrants concerning the Oklahoma City
bombing case. In addition, I was called upon to consider
motions to unseal the warrants brought on behalf of the
17
1393
news media.
2. In July, 1996, I presided over the week-long
de tendon hearing of the "Arizona Vipers, " twelve
defendants who were alleged to be members of an anti-
government militia group suspected of planning to blow up
federal buildings in Phoenix. The arrest of the Vipers
and their detention hearings were the biggest local news
stories of the year. The news media covered Che
detention hearings intensely. At the conclusion of the
hearings , I ruled that six of the twelve defendants would
be released pending trial, but that the other six would
be held without bond as dangers to the community. The
assigned District Judge and the Ninth circuit Court of
Appeals affirmed all of the detention orders. The U.S.
Attorney did not appeal the release orders. The
defendants who were released appeared for all their court
appearances and fully complied with all other pretrial
release conditions .
18
1394
Supplement to
Senate Judiciary Committee Questionnaire of
Barry G. Silverman
Part I, Question 12:
Add the following to original answer:
On March 21, 1996, I testified at the Arizona House of
Representatives Government Operations Conmiittee in favor of a
pay raise for state judges. No record of testimony available.
DATE
BARRY G. SILVERMAN
1395
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates o£ all Euiticipated receipts
from deferred income arrangements, stock, options, uncoinpleted
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 receive a $25.00 per year payout from the City of
Phoenix Deferred Compensation 'Plan. The payout is
received in February of each year and started in 1960.
In 2001, I will begin receiving benefits from the Arizona
Elected Officials Retirement Plan in the approximate
amount of $2,000 per month.
In 2002, I will begin receiving a payout from the State
of Arizona Deferred Compensation Plan in the approximate
amount of $357 per month.
In 2009, I will begin receiving a payout from the
Maricopa County Deferred Compensation Plan in the
approximate amount of $1,575 per month.
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,
I will resolve all potential conflicts in accordance with
the Code of Conduct for United States Judges and all
applicable statutes. Specifically, I will recuse myself
in any matter in which my wife and I have a financial
interest. I will maintain a list of companies in which
I own stock (presently, we own only one stock) and I will
recuse myself in cases involving those companies.
I will recuse myself in any matter in which I may have
been the prosecutor or judge in state court. I will
instruct my staff Co screen for my possible involvement
all criminal cases that originated in Arizona state court
between 1976 and 1995.
13
1396
My wife is a court reporter. Her clients are lawyers.
I will maintain a current list of her clients and recuse
myself in any case in which one her clients is appearing.
3. Do you have any plans, commitjaents, or agreements to piirsue
outside employment, with or without compensation, during your
service with the court? If so, explain.
To the extent permitted by, and in full compliance with,
the Ethics Reform Act, I plan to continue giving, for
compensation, my community property bar review lectures
for BAR/BRI Bar Review, 20 E. University Dr., Tempe, AZ
85281, 602-929-0190. The lecture is about three hours
long. I give it three times a year in Arizona, and once
a year in Idaho and Nevada. BAR/BRI is owned by Harcourt
Brace Legal and Professional Publications, Inc., Chicago,
IL.
4 . List so\irces 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 fineincial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
1557.- U.S. Government salary: $122,912
BAR/BRI Bar Review. $5,250
1996: U.S. Government salary: $122,912
BAR/BRI Bar Review: $2,250
My Financial Disclosure Report is supplied at Tab E.
5. Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
My Net Worth Statement is supplied at Tab F.
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.
As a high school student in 1968, I volunteered for the
Hubert Humphrey for President campaign in Arizona and was
a page for the Arizona Delegation to the 1968 Democratic
National Convention in Chicago.
20
1397
AO-IO f))
ltev.S/f6
FINANCIAL DISCLOSURE REPORT
Nmninatioii Report
Kepan Retparai Irf the Eliutt
Jt^brm Aa afl9S9, Pub I. No.
101-104, Ntncmber }0. 19)9
(S U.S.C. Afp. 4 . S€C. 101-112)
I. PctMoIUpvnJot (Laa naae. first, mUHt mUaO
Silverman, Barry G.
4. TItk (Anidt nijudga indicau aaive or
svuor ffaau; magiitrate Judges in^rvre
fiiU- or part-timtl
Nominee for Judge
7. CtiMiiWn or Of&x AiUrts:
U.S. Courthouse
230 M. 1st Ave.
Phoenix, A2 65025
2- Court or Orgmtntioii
us Court of Appeals, 9ch Cir
X_ Nomimnon. D^ 11/08/1997
iDiml Amnal Hm]
3. Due of Ripon
11/09/1997
<■ RcpottiBg PctM
01/01/1996
12/31/1996
S. On Ibc fassia of the mfomalieo eaalamed in Ibis Sfport n^ any
moitilicrtopa pcrtsinmg tfacreto, it k tn my opaugn, iD complaBCE
with apfiiicaMe tows and ngaUOna-
Beriewiag Officer
lUPORTAtfT NOTSi: The uuiryaions accompanying thJa form must be foliowed. Confute ail parts,
chedang the SOf^S tax for eacM section where you have no rtportabie ir^ormaaon. Sign on the last page.
NAME OF ORGANIZATION / ENTITY
I. POSITIONS (Reporting Indivutual only: see pp. »-l) of Inslnictlans)
POSITION
NONE (No repotaMe ponoons.)
1 0.S. Magistrate Judge U.S. District Court, District of Ariz.
2 Lecturer
BAR/BRI Bar Review
n. AGREEMENTS (Reporting individual only; tee iv.I4-17of/nstnictioKS.)
DATE PARTIES AND TERMS
D
NONE (No reporobk aen«meou.)
I 1976
2 1984
3 1984
City of Phoenix Deferred Compensation Plan
Ariz. Elected Officials Retirement Plan
Maricopa County Deferred Compensation Plan
m. NON-INVESTMENT INCOME (Reporting individual and ipouse: see pp. IS-2S oflnstniaians.l
DATE PARTIES AND TERMS
□
NONE CNo rcponable non-invcKondQl iocome.)
1 1996 Self-employed court reporter (S)
BAR/BRI Bar Review (lecture fees)
City of Phoenix Deferred Compensation Plan
U.S. Government (magistrate judge salary)
U.S. Government (magistrate judge salary)
GROSS INCOME
(yours, not spmise'&}
$
2
250
00
$
25
00
$
122
912
00
$
119
544
00
4.5-964 98-45
1398
FINANCIAL DISCLOSURE REPORT
EoTRnon Repomjtt _
DueafScpon
Silverman, Barry G.
11/09/199
rV. REIMBURSEMENTS and GIFTS - nasponuua. lodsiiig. fbod. uBnainaeoL
Old dtptndau diitdm, respeaivdy. See pp. 26-29 of Dumcaeiu,} ^^
□
w^^ SOURCE DESCRIPncm
NONE (No such reportable icimtunemems or gifn)
V. OTHER GIFTS
(bictiides those to spaue and deperuitnt chiUren: use the parenthairah '(S) ' and '(DQ' to imScon other g^ received by spouse and dependen chiidren,
respeaively. See pp- 50-33 trfbutrvaions.i
Fl
SOURCE DESCRIPTION
NONE (No such Tcponiblc gifts)
VI. LIABILmES
QndndeM chose cftpouxe aid dxpendent children; indicau where appUcabte. person responsible for UabUay by using the pareiahetical '(S) 'for separaie
UabUof <^ the spouse. '(J)' for joua Uability t^rtponutgindMdiut and spouse, ayi '(DQ' for babUUy of a depended ehUd. See pp. 34-36 tflnstruaiotu.)
Q
CREDITOR DESCRIPTION VALUE CODE*
NONE (No reparable liabilides)
• VAL C»DES J-tlS.OOO or leu K-Sli.OOl-UO.OIX) L-S5a.(»l id SIQO.On M-Sioo.oai-S25o.oao N-sz50.ooi-ssoa.ooa
o-sjoo.ooi-si .000.000 pi-si.ooa.oai.ss.ooo.ooo rz-ss.ooo.ooi-su.ooa.ooa i>3-sz5.ooa.ooi.sso.oao,ooo iH-sso.ooo.aoi or more
1399
FINANCIAL DISCLOSURE REPORT
Namt or 1*0100 Kcporang
Silverman, Barry G.
DiieorKepoit
11/09/1997
»»T» •«. . , - bicant. valut, mnaaaiaa Hiidiida rtoM cfipouse and'
Vn. Page 1 INVESTMENTS and TRUSTS 6.f„^cmr^. u.fr.i7-i4,ib,sm„Z^
A.
DcscrijKion of A«ea
AdloBt wtitrt oppUcabU. awntr ^
At asstt by using t/ir parvtAeiad
'U)'forJKru awnenMip ifrtpor^ng
inOiviaual md ipoiat. '{$)' for tep-
erau mnenklp by spauxt^ 'iDQ "
Flact '00 ' ^er each asses
exempt from prior £sclasve.
B.
period
c.
GnjH value
■lend of
reponliig
period
D.
Transiaionj during rcponiag period
(1)
Amt
Code
(A-
H)
(2)
1>pe
(cj..
dividend,
rem or
(1)
Vilae
Code
O-f)
at
Vihie
Method
Code
(Q-W)
(1)
Type
(e.S..
buy, Kll.
nKlfCT,
Rdeoip-
Hon)
IfootcMmpcfromdisclotun 1
(2)
Mosdi-
n«y
(3)
Value
Code
(J-P)
(«)
Ciain
Code
(A-H)
(5)
Idasiiyaf
tnycr/seUer
Ofpiivaie
saiisicdoa)
NONE (do reponable locome.uwa. or
t/angaciioiis)
10/11
I Hells Fargo BanJc checking (JI
A
Interest
Interest
J
J
I
Opened
J
2 Hells Fargo money sarket (J)
A
T
Opened
10/11
J
3 First Interstate Bank checking
(J)
A
Interest
J
T
Closed
10/11
J
« first Interstate Bank money
market (JI
A
A
interest
J
I
Closed
10/11
J
5 Bank of America cert of deposit
(J)
Interest
J
T
6 Bank of wierica checking (J)
A
Interest
J
T
7 OS savings Bonds (J>
A
None
K
T
T
8 Fidelity Asset Mgx mutual fund
ISl
A
A
Dividend
K
9 Fidelity Equity Inc ii mutual
fund IRA
Dividend
J
I
10 Fidelity Equity Inc II mutual
fund spouse IRA (SI
A
Dividend
J
T
11 Fidelity Equity Inc II mutual
fund spouse Keogh (S]
C
Dividend
L
T
12 Fidelity cash Reserves mutual
funds (S)
A
Dividend
Sold
03/06
J
A
13 Huveen Municipal Bond Fund mutual
fund IJ)
A
dividend
J
T
14 Nuveen Tax Exempt Unit Investment
Trust AZ-191 IJl
A
Interest
J
T
15 Tax Free Trust of AZ mutual fund
(JI
B
Dividend
K
T
1£ Tucson Electric Power common
stock (JI
A
None
Sold
03/01
J
A
n Israel Bond 'due 10/1/2003 (JI
A
Interest
J
T
llnc««ui Codes. A"J|.000 or less B-Jl.OOl
(CoI.Bl.D4) F=J50.001-J100.000 G-SIOO.OO
-42,300 C=S2.l01.«.000
l-SI,000,000 I(l-Sl.000.001-S5,0a0,00
0
0 H2-
=45.0oL$IS.0O() E'=SiS,OOI-$SO.000
=S5,000.001OflBorc
:V.lCod«s.- WlS.OtoorleM k-JIS.M -JJlt.OOO Uj«.()41^100.(KlO
(Col.Cl.D3) t>=HOO,0OI-$1.000.000 P1=S1.000.00I-$5.000.0(IO PJ-SS.OOO.OOI-tU.OOO.OOC
M=4
r>3=ES
oo.oAi -1250,000 N-c;o.ooi-tsao,aoo
.000.001-S50.000.000 P4=S50.00a,00 lor more
3 Vol Mdl Codes: (^Appnisal R'<ost (real esnte only) S-Anessmeal Ti<»*i/MaA<»
(Cot.C2) U=BookVdBe V-Olher W-Ettiaaled
1400
I HUBM oc I'wioa K«poniiig
FINANCIAL DISCLOSURE REPORT Silverman, Barry G.
DivofRcpon
11/09/1997
tncame, value, trwuaatans finebidts those ^spctaeand
Vn. Page 2 INVESTMENTS and TRUSTS depeiulen tuedren. Seepp. 17-S4cflnanialaa.
A.
Ddcriptioo of AileB
In^icae mActc ^pUcable. mmer ^
B.
bicome
during
rtportng
pctjod
C.
Gioa vtkie
•lend of
RpoltiOg
peiiod
D.
xrntHCoanE during Rpoftfang period
in&Mual out tpaat. '(Sj'forlep-
(1)
/VmL
Code
(A-
H)
(2)
Type
(e.«..
dividenL
lent or
li»e<e«i)
0)
VlllK
CO*
a-p)
(2)
Vahic
Method
Code
(Q-W)
(1)
Type
(e.g..
buy. KlL
6oa)
If not exenipc from disclosure 1
Hact •(X)' <^er mdi atsti
tjxmpifmn prior Sldoaun.
(2)
Date:
Moalli-
Dsy
(3)
Value
Code
(I-P)
(*)
Gaiti
Cade
(A-H)
(S)
Ueadiy of
buyer/seller
(lfpri«B!
NONE (i» npoiuble locome.auca. or
mnsacoons)
la I»r«l Bond due 10/1/2005 (Jl
A
Inceiesc
J
T
19 Israel Bond due 10/1/2008 IJJ
A
Interest
T
20 Israel Bond due 10/l/l»99 (J)
A
Interest
J
T
21 Israel Bond due 11/1/2004 (Jl
A
A
Interest
J
T
1
22 Israel Bond due 3/1/2004 (Jl
Interest
J
T
23 Israel Bond due S/1/1996 (Jl
A
Interest
Redeem
05/24
J
A
24 Israel Bond due S/1/20I1 (Jl
A
Interest
J
T
Bought
05/01
J
25 Israel Bond due 9/1/2000 (Jl
A
Interest
J
T
26 Israel Bond due 9/1/2001 (Jl
A
Interest
J
T
21 Israel Bond due 9/1/2002 IJI
A
Interest
J
T
29 Israel Bond due 9/1/1998 (Jl
Interest
J
T
29 Israel Bond rero coupon due
10/31/2003 (Jl
A
Interest
J
T
30 Israel Bond zero coupon due
3/31/2000 11 (Jl
A
Interest
J
T
-
31 Israel Bond lero coupon due
3/31/2000 12 (Jl
A
Interest
J
J
T
32 Israel Bond zero coupon due
10/31/2003 (Jl
A
Interest
T
33 Israel Bond lero coupon duo
12/31/2001 »1 (Jl
A
Interest
J
T
34 Israel Bond^zero coupon due
12/31/2001 #2 (Jl
ft
Interest
•'
T
1
1 XTxldJa. Co<te: A=SI,000 Of less B-$1.00
(ColBI.D*) F-S$0,001-SIOO.OOO 0=J100.0(
-^TSDO '■"'■ C-$i.i01-tS.()()0 OS5.00UlS.0U0 E-J15.001-ViO.(XW
»1-S1,000,000 Hl=Sl,OOO.O01-S5,000.0OO H2^S.000.001 or more
TVacodi: MlS-OdOorlcn K-slJ.tJOi-J50.6o4 L-S50.0oi-si0O.000 M-41oo.ooi-jaso.oug n-j.jju.ooi-muu.uuu
(Col.CI.D3) »4SO0.001-SI,O0O,0O0 Pl-Sl.00O.OOI-S5.0OO.000 P2-$5,00O,0OI-$2S,00O,00O P}-S25,0O0.OOl-SSO.0O0.00O P4-SSO.000.00 1 or more
3VdM*Co<lcs;O.Appr9isal R-Co« (real at«r only) S-Asiannenl T=CuWMaiket
(Col. a) U-Dook Value V-Odw W-Esiiinaied
1401
;T I Silve
PencNiKqionJiK
verman, Barry G.
FINANCIAL DISCLOSIJRE REPORT
vn. P»ge 3 INVESTMENTS «.dVu'^i7^^rirr^'^;^^^f^
Dai* of Repon
11/09/199
D
A.
Oescnpdos of Aues
tixSam wntn appUoMt. tnmtt of
th€ asto by usmg the parmAmcal
'(J)'forjcOv anneafup tfrepomng
indivtdt»alandspoui€. 'fSi'forup-
tnte (mntnJup by jpouu, '0Q '
amftpum prier Hsdosure.
B.
iDcmu
dori^
reponins
C.
Gnus vahtc
•tend of
reponlag
period
D.
Ttusactuni during nfartSaf period
(1)
Aot.
Code
(A-
H)
(2)
Trpc
(e.I..
dtvldud.
lemor
(1)
Vlluc
Coda
a-P)
m
VUue
Medud
Co<k
(Q-W)
(1)
Type
(c.»..
boy. icU,
owtef.
ledeaip-
um)
1/ Due ezempi from disclosure
0)
Due:
Month-
Dsy
(3)
Value
Code
(J-P)
(4)
GiJn
Code
(A-H)
(5)
Meuiiyaf
buyer/Idler
WptiYBi:
naasaction)
NONE (DO reponable incoaje.asseB. or
tnasacboni)
.
3S Israel Bond zero coupon due
l.'31/2006 (J)
A
Interest
J
T
Bought
02/26
J
36 Xr
Ke
izona elected officials
titement plan
A
Nona
L
T
37 Ci
Col
ty of Phoenix Deferred
npensation Plan
A
Interest
J
T
38 Maricopa County Deferred
Compensation Plan
D
Interest
M
X
I
39 SCaee of Arizona Deferred
Coapeasation Plan
B
Interest
T
40 Vanguard SOO Porrfolio Index
Bucual tund
A
A
Dividend
X
T
41 Vanguard SOO Portfolio Index
imtual fund (SI
Dividend
K
T
42 First Federal credit onion share
acet (Ji
A
Interest
J
T
43 First Federal Credit tmion money
•larket (Ji
B
Interest
n
T
44 First Federal Credit Dnion
checking (J)
A
Intarest
J
T
45 Federal Reserve Bank of Los
Angeles Treasury Direct Acct (J)
D
Interest
H
T
46Vailey Bank of AZ U)
A
Interest
J
T
Opened
03/11
J
1
llocA3auiCo<iei:A<=S1.600arles> 8^1.001-12.500 C-SZSOI-XS.AOO 0=
(Col B1.D4) F-*50.001-$100.000 C=J100.001-S1.000.000 H1=SI.000.001-SS,OOC.OOO H2=
=S5.00
«5.00C
oo.bbi
000,00
-SIS.OOO E=$l$.0Ol-SSO.000
.001 or more
2VdCo<Ja MlS.OOOorlw K=SI5.00I-S5<I,000 L-SSO.OAl-SlOaOOO M=SI
(Col CI. 03) O=J$00.00l-$1.000.000 PI»il,000,001-$5.000.000 P2-JS.O0O.0Ol-S25.0O0.O0O P3=«2S
-$250,000 N=S25O,0Ol-J500,0OO
1-150,000,000 P4-SS0.000,001 or marc
3 Vil Mih Codes: OApprabal R-Con (rcsl cjmt only) S=Ass«s«m
(Col C2) U=Book Value V=0«ier W-EfOnm
em
led
T=Cs5h/Mir1t£t
1402
INmie of Penoo Rtpocdos
Silverman, Bacry G.
H/09/1997
Vm. ADDITIONAL INFORMATION OR EXPLANATIONS. ODdkaie pn cr levoR.)
NONE (No tdiJMooil iBbmailoa or upluiiioaL)
SECTION I — POSITIONS
BAB/BRI Bar RevleK is owned by HB Legal i Professional Publications, Inc., Chicago, IL.
SECTION II — AGREEMENTS
The listed agreements are employee benefic plans offered by my previous employers. The
years indicated are the years that I started in the plans. My contributions to these plans
remain on deposit in the plans. As required by law, I have made arrangements to begin
receiving payments from the plans at various times in the future. I have the right to choose
from among several investment options offered to all participants in the State of Arizona and
Maricopa County plans, but otherwise have no control over any of the plans.
1403
FINANCIAL DISCLOSURE REPORT Sllveman, Barry G.
SECTION HEADING. (laacie pur of repon.)
SECTION 2. ASREBMSHTS (cont'd.)
I,i. Date Paxtles and Texms
Dueoritipon 1
11/09/1997
d
State of Ariz. Deferred Compensation Plan
SBCTION 3. KON-INVBSTMBNT INOWIE (cont'd.)
LI. Date Parties and Terns
Groes Income
6 1995 Self-etrployed court reporter (S) $ 0.00
7 X995 Maricopa County/Staco of Arizona (judicial salary) $ •4,122.00
8 199S BAR/BRI Bar Review (lecture fees) $ 2,250.00
9 1995 City of Phoenix Deferred Compensation Plan $ 25.00
10 1994 Self-employed court reporter (S) $ 0.00
11 1994 Maricopa County/State of Arizona (judicial salary) $ 87,360.00
12 1994 BAR/BRI Bar Review (lecture fees) $ 2,2SO.00
13 1994 City of Phoenix Deferred Compensation Plan $ 2S.00
1404
FINANCIAL DISCLOSUSE REPORT
Name of Penoo Rcpoctiag
Silverroan, Barry Q.
DucofBepon
11/09/1997
tX. CERTIFICATION
In compliance widi 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 at the time after reasonable inquiry. I did not perform any adjudicatory
fiinction in any litigation 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(3Xc). in the omcome of such litigation.
I certify that all the information given above (including information pertaining to my spouse and minor or d^endent
children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not repotted
was withheld because it met applicable stamtoty provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts wliich have been
reported are in compliance with tfie provisions of 5 U.S.C. app. 4, section 501 et. scq.. 5 U.S.C. 7353 and Judicial Conference
regulations.
Signamre
sldO/^ —
bh
Any individual who knowingly and wilfiilly falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FU-mC INSTRUCTIONS
Mail original and three additional copies (o:
Committee oa Financial Disdosarc
Administrative OOice of the United States Coum
One Columbus Circle, N.E.
Suite 2-301
WaibiDgtoa, D.C Z0544
1406
NET WORTH
Provide i compktt, cuncnt financial nci wonh mtemeai which itemiTi-^ yj ^^^j^
ill asMB Cinclnding bank accounts, real esnte, securines. trusts, invesnneois. and other financial
holdings) all liahfliries Oncloding debts, mortgages, loans, and other fin^nnal obligations) of
yourself, your spouse, and other tminw<i;|f» members of yonr hoosehoid.
Assrrs
■
LUBHITIES 1
Ctsh OB had ud ia bub
5"1 \lL%
Vota pxyibk ts ' — *" rrl
1
Kbcdale
iSl|
oin
Wirlilil
KscB ps)nble(a idiara
1
Itelised iecases-«dd schedule
1 !
Halts p«y*blB to cAcs
1
Acasna tad setcs icceiTibls:
Arnrmn udbSlsdue
4
oco\
Cm tea nUdTct ud fr---^'
Uapiid isesiEs az
1
Doe torn ohei SpSfSe S bj4.ne<5 ^
ul
7a«
0(J)ef **wyi»^ OQC 1^ ?*T,* ■ |>
!
Dccb<Sd r.c.w.^i., _;
Sxii enaie meRSifei payihle-add
KiV«iuU
Real esaic awnrrt I'rtrl u&cdnlc
HO
Ofc3
rhiffri aaRjHa lod odx; lies pxy-
Xul ooic mort^ixes rrseivihU
1
[M
ISH
1
Cua nlue-Ii£: innnscc
10
376,
,1
Ottic tatn-jiftniar
1
P«rM>*.i\ pf(»|i<fU;
?n
l-il
.
^■»*plffv«t b*ne(-\| p(*ni
1■^\
Qlo
Total g,*^*"*-'**
H
Ot)0
1
NctWcsA
[ Jit
'Kiu
Tsui AoeU
I
Jltsllffc
Yool ^i ■KiTif^j-t ud aex vcn&
I llo
R^fc
CONTINGEJrr uabiuties
1
GOiSSLM. IMFOBMATIOM
At niianrr. cDiuicr er pononr
Are uy »cs ;iad(oC (Add lacd-
olc)
Oa kues or ecaffscs
■cacntf?
Lc(>l Cliiau
1
H»ve yea ere utaa teJcapwy?
: 1 1
Prarwoo &>r FadmJ loomc Til
1 _
1 1 1 _
** Olba ipEciiJ ddx | i
j__
J_
1
1406
IT" '^YMATE Barry G & George-Ann Silverman
' 9/97
NET WORTH REPORT
SUMMARY
ASSETS
Cash in bank accounts 47,97S
Certificates of deposit 11,792
Securities and commodities 709,805
Real estate 140,263
Receivables 11,728
Vehicles 39,754
Personal property 27,982
Life insurance 10,376
other assets 271,270
TOTAL ASSETS: 1,270,946
LIABILITIES
Installment debts 4,000
TOTAL LIABILITIES: 4,000
NET WORTH
Total assets 1,270,946
Total liabilities 4,000
NET WORTH: 1,266,946
NET WORTH REPORT
DETAIL
ASSETS
Cash in bank accounts
Wells Fargo Bank
Bank of America
Wells Fargo Bank
First Fed Crdt Un
First Fed Crdt Un
First Fed Crdt Un
-Otal cash in bank accounts
6,824
4,453
10,563
-4
27
-4 A
26,100
-4 9
9
S:
47,976
1407
^'"■^ificates of deposit
Bank of America n 752
90 days '
Total certificates of deposit: 11,792
Securities and commodities
$10,000 US Savings Bond 6,456
Issued 9/92
1 units ® 6,456.000 ea
$10,000 US Savings Bond g 456
9/92 '
1 units ® 5,456.000 ea
1987 US Savings Bonds 1 579
$100 face value
18 units @ 87.740 ea
1988 US Savings Bonds 1,985
$100 face value
24 units @ 82 . 700 ea
198 9 US Savings Bonds 1 8 71
$100 face value
24 units @ 77 . 940 ea
1990 US Savings Bonds 1,7G4
$100 face value
24 units ® 73.460 ea
1991 US Savings Bonds l,GG2
$100 face value
24 units ® 69.260 ea
1992 US Savings Bonds x 55''
$100 face value
24 units ® 64 .660 ea
1993 US Savings Bonds 1,433
$100 face value
24 units ® 59.700 ea
1994 US Savings Bonds 997
$100 face value
16 units @ 56.060 ea
1994 US Savings Bonds 1,121
$200 face value
10 units ® 112.120 ea
1408
1995 US Savings Bonds 1,590
$500 face value
6 units @ 2GS.000 ea
1995 US Savings Bonds 328
$200 face value
3 units @ 109.170 ea
1996 US Savings Bonds 3,070
$500 face value
12 units @ 255.300 ea
1997 US Savings Bonds 2,250
$500 face value
9 units ® 250.000 ea
Fid Asset Manager GAS SEP IRA 23,416
1,235 units @ 18.960 ea
Fid Equity Income II BGS IRA 15,374
540 units @ 2S.470 ea
Fid Equity Income II GAS IRA 15,374
540 units ® 28.470 ea
Fid Equity Income II Keogh MP 141,581
4,973 units @ 28.470 ea
Israel Bond due 10/1/05 1,000
7th Development Iss
1 units @ 1,000.000 ea
Israel Bond due 10/1/2003 1,000
7th Development Iss
1 units @ 1,000.000 ea
Israel Bond due 10/1/2008 1,000
7th Development Iss
1 units @ 1,000.000 ea
Israel Bond due 10/1/99 1,000
6th Development Iss
1 units ® 1,000.000 ea
Israel Bond due 11/1/04 1,000
7th Development Iss
1 units @ 1,000.000 aa
Israel Bond due 3/1/04 500
7i:h Development Iss
1 units (S 500.000 ea
1409
Israel Bond due 5/1/2011 500
7th Development Iss
1 units @ 500.000 ea
Israel Bond due 9/1/00 1,000
7th Development Iss
1 units @ 1,000.000 ea
Israel Bond due 9/1/01 1,000
7th Development las
1 units @ 1,000.000 ea
Israel Bond due 9/1/02 1,000
7th Development Iss
1 units ® 1,000.000 ea
Israel Bond due 9/1/98 500
6th Development Issu
1 units @ 500.000 ea
Israel ZCB due 10/31/2003 6,000
1 units @ 6,000.000 ea
Israel ZCE due 10/31/2003 6,000
1 units ® 6,000.000 ea
Israel ZCB P-4 due 03/31/2000 6,000
1 units ® 6,000.000 ea
Israel ZCB P-7 due 03/31/2000 6,000
1 units @ 6,000.000 ea
Israel ZCB P-D due 12/31/2001 6,000
1 units @ 6,000.000 ea
Israel ZCB P-E due 12/31/2001 6,000
1 units @ 6,000.000 ea
Israel Zero Cpn Bnd 01/31/2006 6,000
1 units ® 6,000.000 ea
Nuveen Flgshp A2 Mun A shares 779
69 units ® 11.290 ea
Nuveen Flgshp AZ Muni Bond Fnji 9,676
Class R shares
857 units @ 11.290 ea
Panavision (PVI) 4,250
200 units @ 21 . 250 ea
Tax-Free Trust of AZ (AZTFX) 60,665
1410
5,G38 uniCS ® 10.760 ea
US Treasury Bill due 03/05/98 65,000
1 unics a 65,000.000 ea
US Treasury Bill due 01/02/98 10,000
1 unics ® 10,000.000 ea
US Treasury Bill due 01/08/98 20,000
1 units ® 20,000.000 ea
US Treasury Bill due 02/05/98 10,000
1 units @ 10,000.000 ea
US Treasury Bill due 03/12/98 20,000
1 units ® 20,000.000 ea
US Treasury Bill due 04/09/98 25,000
1 units (3 25,000.000 ea
US Treasury Bill due 04/30/98 15,000
1 units O 15,000.000 ea
US Treasury Bill due 11/20/97 20,000
1 units (3 20,000.000 ea
US Treasury Bill due 12/04/97 55,000
1 units ® 55,000.000 ea
US Treasury Bill due 12/11/97 10,000
1 units ® 10,000.000 ea
Vangrd 500 Portfolio Indx Trst 50,203
GAS IRA (VFINX)
562 units @ 89 .330 ea
Vangrd 500 Portfolio Indx Trst 52,973
BGS IRA (VFINX)
593 units ® 89.330 ea
Total securities i commodities: 709,805
Real estate
Residence, Phoenix AZ 140,000
Lease on storage locker 263
Phoenix, AZ
Total real estate: 140,263
R.ecgivables
1411
George-Ann Silverman Ct Rptr 11,728
Receivables
Total receivables: 11,728
Vehicles
96 Oldsmobile Cutlass Supreme 19,3 90
97 Toyota Caunry 4-DR LE Sedan 20,364
Total vehicles; 39,754
Personal property
Business equipment 27,982
Total personal property: 27,982
Life insurance (cash value)
Horace Mann 5,573
BGS
Minn Mutual 1, 3 37
BGS
Prudential 3,466
GAS
Total life insurance: 10,376
Other assets
City of Phoenix Deferred 6,066
Comp Plan
Elected Officials Retirement 54,173
Plan
Fed Employes Retirement System 2,73i
Maricopa County Deferred 123,421
Comp Plan (Nationwide Fixed)
State of AZ Deferred Comp 50,550
Plan (PGA & SPI)
US Govt Thrift Savings Plan 34,324
Total other assets:
271, 270
1412
JTAL ASSETS: 1,270,546
LIABILITIES
Installment debts
Bank of America visa 4,000
Total installment debts: 4,000
TOTAL LIABILITIES: 4,000
NETWORTH
Total assets 1,270,946
Total liabilities 4,000
NETWORTH: 1,266,946
1413
III. GENERAL (PUBLIC)
An ethical consideration iinder Canon 2 o£ the American Bar
Association's Code o£ Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time Co 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.
Canon 4 (G) of the Arizona Code of Judicial Conduct
prch^bics judges frcjj-n praccicing law on a. pro bono basis
or otherwise. I have attempted to fulfil my
responsibilities to the disadvantaged in other ways:
First, I actively recruited minority lawyers to apply for
judicial positions and brought together a group of
lawyers sind judges for this purpose. I have assisted and
mentored minority lawyers through the state judicial
merit selection process and after they became judges.
Second, as a judge, I have had a special interest in the
enforcement of child support obligations . The
disadvantaged are particularly harmed by the inability to
collect child support. I chaired a committee to revise
the Arizona Child Support Guidelines . In addition,
several years ago, I donated my time to organize and put
on a seminar on how to collect past due child support.
The seminsur was offered in four locations around the
state.
Third, my wife and I contribute financially to
scholarship funds for minority law students and donate
food to a local food bank.
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 you belonged, to any organization
which discriminates -- through either formal membership
requirements or the practical implementation of mexabership
^ policies? If so, list, with dates of membership. What you
have done to try to change these policies?
T do not belong to any such organization and never have.
3 . Is there a selection commission in your jurisdiction to
21
1414
recomnend candidates for nomination to the federal courts? If
so, did it recomnend 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) .
On June 28, 1997, I met Senator Kyi ac his office in
Phoenix where he informed me that J had been suggested
for the Ninth Circuit by several members of the local
legal community^ In September, 1997, I received a call
from Jon Yarowsky, of the Office of Counsel to the
President, advising me that I was under consideration .
On Occober 3, 1997, I was mzerviewed in Washingzon r>y
Mr. Yarowsky and three other representatives of the
Administration. At their request, I completed an ABA
Personal Data Questionnaire and an FBI Background
Investigation form. About 10 days later, I was
interviewed by the FBI, and on October 23, 1997, I was
interviewed by Charles B. Renfrew, a member of the ABA
Committee on the Federal Judiciary.
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.
Wo
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 mcuiy 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 is^ose broad,
affirmative duties upon governments and society;
22
1415
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness ; and
e. A tendency by the judiciary to iz^ose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
I believe that some of the criticism involving judicial
activism is justified. The power of the federal
judiciary is not unlimited. The constitutionail doctrines
of the separation of powers, respect for state
sovereignty, standing, ripeness and the requirement of a
case or controversary all are designed to act as
constraints on the judicial branch of government. There
are at least three aspects of judicial activism that are
of special concern to me.
First, I have noticed the tendency of some appellate
courts to engage in "appellate fact finding. " In my
experience, this phenomenon usually occurs when a
reviewing court disagrees with a particular result in a
given case. In my view, appellate courts should defer
to the factual findings of the trial judge -- the "judge
on the scene" -- unless those findings are clearly
erroneous or unsupported. Although it is obviously
appropriate for appellate courts to review questions of
law on a de novo basis, a healthy respect for the
doctrine of judicial restraint requires appellate
deference to lower courts' factual and discretionary
calls whenever possible.
In my view, some trial judges have been guilty of the
same thing -- substituting their opinions and
discretionary judgments for those of, for example, prison
officials and school administrators. Although the
federal courts have an indisputeibly vital role to play in
assuring compliance with the constitution. I think that
some judges have unwisely, sometimes unwittingly,
appointed themselves the de facto Director of the
Department of Corrections or Superintendent of Schools.
Judges do not have the time or expertise, much less the
authority, to micro-manage schools and prisons. When
they do, it damages the public's confidence in the
judiciary, an unfortunate result of which is that such
judges are not taken seriously when genuine
constitutional issues come along that truly require
judicial intervention.
Third, until the recent passage of the Prison Litigation
23
1416
Reform Ace, several appellate decisione made it
unnecessarily difficult to quickly get rid of frivolous
litigation, difficulties well beyond what the Rules of
Civil Procedure require. For example, case law in some
circuits prohibited federal trial judges from dismissing,
sua sponte, civil complaints that fail to state a claim.
In addition, although frivolous litigation could be
dismissed on the court's own motion, some appellate
courts have construed "frivolous" so narrowly as to be of
little help.
I try never to forget that being a judge is not the
equivalent of being the king, and that in a
constitutional democracy it is the judge's job to fairly,
impartially, and intelligently follow the law whether he
or she agrees with it or not.
24
1417
CARLOS ROBERTO MORENO
RESPONSES TO SENATE JUDICIARY COMMITTEE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1 . Full name (include any former names used.)
Carlos Roberto Moreno
2. Address: List current place of residence and office address.
Residence: Office:
210 West Temple Street
Los Angeles, California 90041 Department 1 3 1
Los Angeles, California 90012
3. Date and place of birth.
November 4, 1948; Los Angeles, California
4. Marital Status (include maiden name of wife, or husband's name.) List spouse's
occupation, employer's name and business address(es).
Christine (Donahue) Moreno, Artist/ Teacher .
East Los Angeles City College California State University
1301 Avenida Cesar Chavez 5151 State University Drive
Monterey Park, California 9 1 754-6099 Los Angeles, California 90032
5. Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Colleges & Law School Dates Attended Degree & Date
California State University
at Los Angeles 02/66-06/66 None
Yale College 09/66-06/70 Bachelor of Arts, 6/70
Harvard Business School 09/70-10/70 None
Stanford Law School 09/72-06/75 Juris Doctorate, 06/75
1418
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.
Year Employer
10/93-present Los Angeles Superior Court
1 1 /86- 1 0/93 Compton Municipal Court,
02/92-05/92 California State University
at Dominguez Hills
02/90-05/90 California State University
at Dominguez Hills
05/79- 1 1 /86 Kelley Drye & Warren. Los Angeles
(formerly Mori & Ota)
09/75-05/79 Los Angeles City Attorney
11/70-06/72 Los Angeles County
Department of Public Social Service
Judge
Judge
Adjunct Instructor
Adjunct Instructor
Associate
Deputy City Attorney
Personnel
Representative
In addition, since March 1 997 to the present. 1 have served as an unpaid board
member of the Arroyo Vista Family Health Center, a non-profit community health
center established pursuant to Section 330 of the Public Health Service Act.
From 1976 through 1978, 1 also served on the boards of two additional non-profit
organizations, the Narcotics Prevention Project ( a drug rehabilitation program in the
Boyle Heights section of Los Angeles) and the Public Inebriate Program (an alcohol
rehabilitation program in the skid row section of Los Angeles).
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.
None.
Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the Committee.
1997 CriminalJustice Award, Superior Court Judge of the Year, Criminal Law
Section, Los Angeles County Bar Association
1419
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.
California Judges Association (Criminal Law and Procedure Committee)
Los Angeles Superior Court (bail, investigators, trial delay reduction, new judge
orientation, and jury committees) (1993-1997)
Municipal Court Judges Association (Legislative and Bail Committees) (1987-1992)
Presiding Judges Association (Municipal Court) (1989-1990)
Mexican- American Bar Association (President) (1981)
Los Angeles County Bar Association (1979-1986) Immigration and Business Law
Sections
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.
a. Lobbying:
Califonua Judges Association
Los Angeles Superior Court
Arroyo Vista Family Health Center
b. Non-lobbying:
Yale Club of Southern California
Yale Chicano Alumni Association
Stanford Alumni Association
Stanford Chicano/Latino Association of Los Angeles County
1420
1 1 . Court Admissions: 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 infonnation for administrative
bodies which require special admission to practice.
United States District Court for the Central and Northern Districts of California,
admitted 1979. (Membership inactive due to appointment to the bench in 1986).
California Supreme Court and all state courts of California, admitted in December
1975. (Membership inactive due to appointment to the bench in 1986).
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.
Over the years I have spoken to \arious school classes, service organizations, and
senior citizen groups concerning my job as a judge. None of these talks involved
constitutional issues or legal policy and none were reported by the press. 1 have not
retained any notes used in connection with these speeches, nor have I written any
published articles or speeches.
13. Health: What is the present state of > our health? List the date of your last physical
examination.
Excellent, May 22, 1997
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.
Judge of the Superior Court, Los Angeles Superior Court, October 1993 to present,
with general civil and criminal jurisdiction throughout the County of Los Angeles;
presently assigned to a direct calendar criminal department, handling arraignments,
pretrial conferences, trials, sentencings, and probation violations; appointed October
1993 by Governor Pete Wilson, elected without opposition June 1994.
1421
Judge of the Municipal Court, Compton Municipal Court, November 1986 to
October 1993, with jurisdiction over criminal misdemeanor cases, felony
preliminary hearings, and civil disputes not exceeding $25,000 in controversy;
appointed October 1986 by Go\emor George Deukmejian, elected without opposition
June 1988.
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
aflfirmed with significant criticism of your substantive or procedural rulings; and (3)
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) Municipal and Superior Court trial judges generally to do not issue written
opinions, and, if written, none are published. I have not written any published or
unpublished opinions in my career as a trial court judge
(2) The Appellate Department of the Los Angeles Superior Court has jurisdiction over
appeals fi-om the Municipal Courts of the County of Los Angeles. Their opinions
are generally unpublished. I have attached the only opinions of the Appellate
Department, of which I have personal knowledge, which reversed convictions in
trials I handled as a Municipal Court judge.
In the first case. People v. Crespin, (Superior Court No. CRA27965, Compton
Municipal Court No. 88M03642), a school teacher convicted of multiple counts
of annoying female students, had his judgment reversed for prosecutorial error due
to improper closing argument.
In the second case. People v. Crescentini, (Superior Court No. BR28452,
Compton Municipal Court No. 89M00J12), the defendemt's conviction for resisting
arrest was reversed for prosecutorial misconduct in improperly cross-examining a
character witness for the defendant.
As a Superior Court judge I have not had any of my decisions reversed on appeal
or criticized significantly.
(3) No claim of constitutional error was made in the two Municipal Court cases in
which the judgment was reversed.
1422
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:
Describe chronologically your law practice and experience after graduation
from law school including:
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:
1 have never served as a law clerk to a judge.
2. whether you practiced alone, and if so. the addresses and dates;
I have never practiced law as a solo practitioner.
3. the dates, names and addresses of law llrms or offices, companies
or governmental agencies with which you have been connected, and
the nature of your connection with each:
(September 1975 - April 1979)
Los Angeles City Attorney's Office
200 North Main Street
Los Angeles, California 90012
Deputy City Attorney - Criminal Division
(May 1979 -October 1986)
Kelley Drye & Warren
(formerly Mori & Ota)
5 1 5 South Flower Street, #1 1 00
Los Angeles, California 9007 1
Litigation Associate
1423
(November 1986 - October 1993)
Compton Municipal Court
200 West Compton Boulevard
Compton, California 90220
Judge of the Municipal Court
(November 1993 - present)
Los Angeles Superior Court
210 West Temple Street
Los Angeles, California 900 1 2
Judge of the Superior Court
What has been the general character of your law practice, dividing
it into periods with dates if its character has chanucd o\cr the
years?
September 1 975 to April 1 979 - Deputy City Attorney handling
misdemeanor prosecutions for Los Angeles City Attorney's Office,
downtown criminal trial courts: handled all phases ofcriminal
prosecution, special assignments to public disorder prosecution
team and Special Counsel to City Attorney; civil consumer
protection prosecutions for unlaNslul business trials practice.
May 1 979 to October 1 986 - Litigation attorney with the Los
Angeles office of Kelley Dr>e & Warren, a national. New York-
based law firm, handling commercial litigation in state and federal
courts, including bankruptcy, emplojTnent (wrongful termination,
EEO, and labor negotiations for management), banking, real estate
and antitrust litigation for predominantly corporate clients.
November 1 986 to October 1 993 - Judge of the Municipal Court,
Compton Municipal Court, handling felony preliminary hearings,
misdemeanor trials and ci\il trials.
November 1993 to Present - Judge of the Superior Court, Los
Angeles Superior Court, presiding over a direct calendar court,
handling felony trials, including special circumstance homicides and
a broad array of violent felonies in addition to daily pretrial
conferences, sentencings, case settlements and probation violations.
1424
2. Describe your typical former clients, and mention the areas, if any,
in which you ha\e specialized.
As a prosecutor with the Los Angeles City Attorney's Office. I
represented the People of the State of California in both criminal
and civil prosecutions. T>pical witnesses consisted ofpolice
officers employed by the Los Angeles Police Depanment or other
local law enforcement agencies, as well as members of the public
who were victims of crime.
T>pical clients with the law firm of Kelley Drye & Warren (Los
Angeles office), and its predecessor, Mori & Ota. consisted of
multinational corporations with a heavy concentration of
corporations which were subsidiaries of Japanese corporations.
Many of these firms were the local distribution arm of the parent
corporation (e.g. Yamaha Motor Corporation.)
Did you appear in court frequently, occasionally, or not at all? If the
fi-equency of your appearances in court varied, describe each such
of your appearances in court varied, describe each such \ariance.
gi\ing dates.
As a Deputy City Attorney I appeared in trial courts e\ery day. As
a civil litigator I appeared weekly with an emphasis on law and
motion practice.
Wliat percentage of these appearances was in:
(a) federal courts: 1 0%
(b) state courts: 70% (All prosecutions were in State
Court)
(c) bankruptcy courts: 20%
What percentage of your litigation was:
(a) civil 100%(KeIley Drye & Warren)
20% (L.A. City Attorney's Office)
(b) criminal: 0% (Kelley Drye & Warren)
80% (L.A. City Attorney's Office)
1425
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.
Approximately 75 trials (70 criminal, 5 civil); I was sole counsel on
all criminal trials and sole or chief counsel on all civil trials.
5. What percentage of these trials was:
(a) jury: 95%
(b) non-jury 5%
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.
(1) Hines v. Sumitomo Bank, Orange County Superior Court, Case No. 405225
(1985)
In this action, I defended a bank client alleged to have committed fraud in
obtaining third-party owned collateral to secure several loans to the principal
borrower, who was also a family relative of the guarantors. The case involved
numerous parties, including the loan officers who arranged the loans. The
principal issues involved the validity of the loan guarantees and the alleged false
representations of the loan officers in obtaining the collateral securing the
guarantees. I prepared all the motions and took most of the depositions and would
have been second chair to Paul Bressan of Kelley Drye & Warren had the case
proceeded to trial. The case was settled on the eve of trial. Judge: Orange County
Superior Court; no judge assigned; Co-Counsel, Paul Bressan, 5 1 5 South Flower
Street, #1 100, Los Angeles, California 90071, (213) 689-1300; Opposing Counsel:
Steven Weston, 444 South Flower Street, 43 rd Floor, Los Angeles, California
90071;(213) 623-2322.
1426
(2) JSP, Inc V. Sumitomo Bank, Siskiyou County Superior Coun, Case No. 35883
(1985)
In this action. I defended a bank client alleged to have committed fraud in
extending construction loan financing to a developer who alleged that the bank
failed to release collateral as promised. The principal issues in\olved the
application of the parol evidence rule and the statute of frauds and whether any
alleged verbal representations by the loan officer were admissible. I was chief
counsel for the bank and took all depositions and wrote all motions, including a
successftil partial summary judgment motion. Ultimately, the case was resolved
through a settlement agreement. Judge: Siskiyou County Superior Court, handled
by various judges through granting of defendant's summary judgment motion.
Opposing Counsel: Peter Racobs, 6670 Alessandro Boulevard, UB, Riverside,
CaUfomia 92506; (909) 789-8100
(3) Yasutake v. Real Estate Securities Service, Orange County Superior Court, Case
No. 380266(1985)
In this case. I represented a husband and w ife who owned an apartment four-plex
and who sought to set aside a wrongful foreclosure sale by a creditor. The
foreclosure sale was set aside alter a contested two-day court trial. The principal
issue involved the nature of the alleged breach and the adequacy of the notice of
default. ludge: Leonard H. McBride, Orange County Superior Court. Opposing
Qjunsd: Robert Lewin. 105 Crescent Bay. f^F, Laguna Beach. CA. 92651:(714)
497-8897
(4) Pehota v. Sanyo E & E Corporation, U.S. District Court for the Southern District
of California. Case No. 85-0907-JLI(IEG); San Diego Superior Coun,
Case No. N25608( 1984)
In this litigation, I defended a major manufacturer of electronic components being
sued by a former employee and union member who alleged wrongful termination
and employer harassment. After successfiilly demurring to the complaint in the
Superior Court on federal preemption grounds, the case was removed to federal
court where the case was dismissed for failure to exhaust administrati\e remedies.
I was chief counsel and prepared all motions and handled all court appearances.
Judge: J. Lawrence Irving, United States District Court for Southern District of
California. Opposing Counsel: Diane Tufts, 969 Vale Terrace, #10, Vista,
California 92084; no telephone listing.
1427
(5) San Jose Cash Register v. Tec America Inc., Santa Clara County Superior Court,
Case No. 453646(1984)
In this case, I defended a major franchisor charged with unfair trade practices and
interference with prospective business advantage by a former franchisee. The
nature of the dispute involved the validity of territorial restrictions and
infringement by adjoining franchisees and the duty of the franchisor to ensure that
only one franchisee operated in a particular territory. In an eight-day jury trial. I
was chief trial counsel and handled all pretrial motions and depositions. A
substantial money judgment entered against our client was reversed on appeal on
account of erroneous jury instructions on damages. Judge: David W. Leahy,
deceased, Santa Clara County Superior Court; Co-Counsel David Maurer; 91 30
West 25th Street, Los Angeles, California 90034-1904; (310) 839-1524 Opposing
Counsel: Anthony Trepel, 50 West San Fernando Street, San Jose. California
951 13; (408) 275-0501.
(6) Thomell v. Coleman. Los Angeles Superior Court. Case No. C280523 (1983
In this case, I successftilly defended a company executive charged with civil
negligence during a weekend excursion for allegedly providing excessive amounts
of alcoholic beverages to the plaintiff, who subsequently injured herself by falling
off a resort balcony. This four-day jury trial involved disputed issues of fact and
the liability of individual hosts who ftimish alcoholic beverages to an injured party.
I was sole trial counsel for all aspects of this case. Judge: Arthur Baldonado.
retired, Los Angeles Superior Court. Opposing Counsel: Ed Barker (per State
Bar, deceased July 30, 1991); Eugene Bennett, 17592 17th Street. 3rd Floor,
Tustin, California 92680, (714) 544-7200. )
(7) Sumitomo Bank v. Escobar, U.S. Bankruptcy Court for the Central District of
California. Case No. BK-SB8203164 (WH); Adv. No. SB-821541 (1982)
In this case, I obtained automatic stay relief for a bank client to foreclose on a
mini-mall shopping center. The half-day trial centered on conflicting expert
testimony on the value of the property and the nature of the default in state
foreclosure proceedings. Judge: William Hyer, United States Bankruptcy Court
for the Central District of California. Opposing Counsel: William Baker, 550
North Golden Circle Drive, Santa Ana, CaUfomia 92705; (714) 558-9432.
1428
(8) Nagao v. Community Redevelopment Agency, Los Angeles Superior Court. Case
No. C323138(1981)
In this case, I represented on a pro bono basis low-income, long-term commercial
tenants in the Little Tokyo section of Los Angeles. The clients were defending
against eviction actions initiated by the city redevelopment agency, which wanted
to construct a new parking garage on the site of our clients' auto mechanic and
body shop repair businesses. The principal issues involved the adequacy of notice
and the duty of the agency to provide relocation assistance to displaced businesses.
I was chief counsel for all court appearances and coordinated the work of junior
associates. Ultimately, after a year of delaying the eviction action, we obtained a
favorable settlement on behalf of our clients. Iudg£: No judge assigned.
Co-Counsel. David Maurer. 9130 West 25th Street. Los Angeles, California
90034-1904; (310) 839-1524 Opposing Counsel: James O. Foster. 4929 Wilshire
Boulevard, #915. Los Angeles. California 90010: (213) 936-2! 10.
(9) People v. John Doe. Los Angeles Municipal Court. Case No. unknown. ( 1978)
As a Deputy City Attorney. I prosecuted a union member charged with assault
with a deadly weapon for throwing a brick through the window of a delivery truck
crossing a Teamsters strike picket line. After an eight-day jury trial with numerous
witnesses. evidentiar>' issues, and substantial injuries, the defendant was acquitted,
ludge: Marion Obera. retired. Los Angeles Municipal Court. Opposing Counsel:
Jewell Jones, retired. Superior Court Commissioner. 7281 East Quill Avenue,
Downey, California 90242; (310) 940-8846.
(10) People V. Cristobal Beltran, Los Angeles Municipal Court, Case No. 31 107463
(1978)
As a Deputy City Attorney, I prosecuted a Hispanic defendant charged with
assault with a deadly weapon (knife) against several black victims where defense
counsel attempted to exclude all blacks ft-om the jury panel during jury selection.
The principal issue involved restrictions on the defense exercise of peremptory
challenges in a discriminatory manner, a prohibition thought to apply to the
prosecution only at that time. A writ of mandate was obtained staying the trial and
discharging the panel. The defendant was later convicted by a new jury. Judge;
James Nelson, retired, Los Angeles Municipal Court; Opposing Counsel: Ray
Tabet, 5900 Indian School, N.E., Albuquerque, New Mexico, 871 10;
(505)265-3451.
1429
ADDITIONAI. REFERHNCFS:
( 1 ) Honorable Richard Paez
United States District Court
255 East Temple Street
Los Angeles, California 90012
(213)894-0764
(2) Honorable Edward Ferns
Los Angeles Superior Court
210 West Temple Street
Los Angeles, California 90012
(213)974-5781
(3) Michael VUlalobos
Office of the District Attorney
210 West Temple Street
Los Angeles, California 90012
(213)974-3611
(4) James Dabney
Office of the District Attorney
210 West Temple Street
Los Angeles, California 900 1 2
(213)974-3611
(5) George Castello
• Office of the District Attorney
210 West Temple Street
Los Angeles, California 90012
(213)974-3611
(6) Pat Dixon
Office of the District Attorney
210 West Temple Street
Los Angeles, California 900 1 2
(213)974-3611
1430
(7) Michael Miller
Alternate Public Defender
320 West Temple Street
Los Angeles. California 90012
(213)974-8163
(8) Steve Urias
Alternate Public Defender
320 West Temple Street
Los Angeles. California 90012
(213)974-8163
(9) Leonard Levine
1901 Avenue of the Stars ff 1708
Los Angeles. California 90067
(310)553-6510
(10) Joel Isaacson
8484 Wilshire Boulevard. t--S5Q
Beverly Hills. California 902! 1
(213)782-7722
19. Legal Acti\ities: 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 pri\ ilege
(unless the privilege has been \vai\ed.)
Member, Los Angeles Superior Court Trial Delay Reduction Committee (1996);
established and enforced court policies which successfiilly reduced trial backlogs
due to Third Strike cases; policies were implemented county-wide and drastically
reduced the number of aged cases; fewer criminal cases are now tried by civil
courts, and, in fact, the criminal courts have accepted civil cases for trial for the
first time in several years.
I have also taught Business Law (Spring 1 990) and Administrative Law (Spring
1992) to undergraduates at California State University at Dominguez Hills.
1431
CARLOS ROBERTO MORENO
RESPONSES TO SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
PART 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.
a.) California Judges Retirement Systems
Current Amount: approximately $79,000
(monthly contributions)
Upon leaving office this fund will be withdrawn and placed in an annuity or
other retirement instrument.
b.) County of Los Angeles 401(K) Savings Plan
Current Amount: approximately $85,000
(monthly contributions)
I plan to leave this sum in its mutual fund market account or place it in
another retirement instrument.
c.) ■ Kelley Drye & Warren Restated Retirement Plan
CuiTent Amount: $412 monthly, commencing in the year 201 3 (Annuity)
I have no control over this plan and cannot withdraw my vested interest
prior to attaining the age of 60 in the year 2008. I intend to disqualify'
myself from any case involving my former firm.
Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas or 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.
I foresee no categories of cases or issues that are likely to present a conflict of
interest for me. In the event of a potential conflict of interest, I would abide by the
Code of Judicial Conduct for federal judges.
1432
Do you ha\e 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 Go\emment Act of 1978. may be substituted
here.)
See attached Financial Disclosure Report (AO-10).
5. Please complete the attached financial net uorth statement in detail (Add
schedules as called for).
See attached Financial Statement.
6. Ha\e 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.
No.
1433
AO-IO ]
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1996
nmi>
tAV
I. ?*rian aeporils? tLaat n»-^, t*c«t. '■Idtl'.* ir\i.ti«:i
MORENO, CARLOS R.
2 Courc or Crganlmion
District Court
Central District of California
1 S*zt et Scaor: ,
07/31 /97 1
«. Titl*- ifctiVcle li: jadsr* ir^vc«cc «ctiv« or
U.S. District Court Judce
5. Report Tfp* lch«ck appropriate cypei 6. aepotting Period
Jj- Nomnatlon. Dace 7/3^ 0 7
ini5i*l *rtnu*i riMi 1/1/96-7 01^97
■» ChaiMjcr* or Ot'icc Mdres*
LOS Angeles Superior Court
210 UesC Temple Street, Dpt. //131
Los Angeles California 90012
1. Cf. tft« b«»i» of tne mforrfiation concamtd in this Report and 1
*ay l^od»tlcation^ pertaining thereto, it i>, la t-y opinion. 1
in coffip^iance with spplicAble !««• and r*9ui»clo.-if
IMPORTANT NOTES: The iaslructioni accompanying this form musl be followed. Corapleie ail pailj,
checking the NONE box for each section where you have no rcporlable information. Sign on iasi page.
L POSITIONS. (Rtportingindividualoiily, see pp. 9-13 of Instructions)
POSITION' NAME OF ORGAN 1 2AT 1 0?T/ ENTITY
MOITE (No reportable positions)
Board Member
Arroyo Vista Familv Health Center
II. AGREEMENTS. (Reporting individual only, see pp. I"!-!? of Instiuctions)
DATE PARTIES AND TERMS
D
NONE (No Yeportabic a^ccmenis)
Kelley Drye i. Warren Retirement Plan (N'o Control)
County Of Los Angeles 401 (K) Retirement Plan. (Mutual Fund)
California .Tudj^ps Rptirenent c;v;rpm
in. NON-INVESTMENT INCOME. (Reponing individiul and spouse; see pp. 15-25 of Insinicuons )
eaiE
n
SOURCE A^D TYPE
NONE (No tepoiiable nonioveslmeot income)
Los Angeles Superior Court
1997(7 months') T.os Angeles Sunerior Coiirr
1996 Title House rSnouse)
19?7
East Los Angele.s City College fSnousp)
G.yss i;]CpME
S 133.659.
S -J? -in
$
$
S
1434
rzNANcua. piscLosnns ospout
««•• of f«r«en AapaiCinv
CARLOS R. MORENO
D«C« otf Krpon
07'' 3/97
IV. REIMBURSEMENTS aod GI?TS - inDuponation. lodgzog. food, eotcitauiment.
(Indwlet those Co spoiue and d«pcndcu childreo; use tbe parcfltheticals '(S)' and '(DC)' to indicate teoortaMs
reimlmneacDts and gifti received by ipcus* asd dcpeodcDt cinldtca, respectivctr. See pp. 26-29 of laUiuctiou.)
SOURCE . DgSCaiPTION
Q
VOm (No well report^le rcimbunements or gifts)
V. OTHER GIFTS. (lodudci clio$e 10 spouse aad dcpendeiu ciuldicn: luc tbe pareotiieticais '(S)' and '(DC)' 10
indioie other pfti moved by spouse and dcpeodeal children, respectively. Sec pp 30-33 o( lulruciiona.)
Q
SOURCS
ttom (No such reportable giita)
PEgqaiPiioa
vALys
VL LIABILITIES. (Includsi tboie of ipowc and dependent children: indicate where applicable, pcnoo rcsponuble
for Uabdity by using the parenthetical '(S)' for separate liability ot the ipoiue. '(J)' for joint liability of
reporting individual and tpouie, and '(DC)' for Uabiiity of a dependent child. Sec pp. 34-3$ o{ Instroctioas)
□CRgQITQB PggCSIPIIga VALUE COD^*
Hon (No ttpoitabic liabilities)
(J) ;fBNA America
■^evffl-
r-n'^'r
(S) Snidpnr Loan Cornoran'rin (Ti ri h^■.l<^ qmH.^nr Tnn,,
(J) Uells Farpo Cank Credit Line
(J) Leonard & Dolores Fenton
%
(J) Citibank
Family Loan
Credit Card
^•u« OMni J>>>1 ooj er !<•• (•(!(. ooi.st>.«c« k-iso,ooi-(i».goo nMiot.Mi-taio.oto ••>ii9.09i-is««.e««
^•tOO.iAl.il.fria.OOO n .si, 009. 401 -M. 090.060 fX-SS. 090, 001 -lis, coo. 609
W-a3».000.001.0Sfl.999,000 N»<*0.000. 901 or ■or*
1435
FINANCIAL DISCLOSUKB REPORT
Nain« of P^rBOft Report vnq
CARLOS R. MORENO
^te of BcpocL
07 /3I / 97
Vll. Page 1 INVESTMENTS and TRUSTS -income, value, transactioos (Includej ihose of spouse
and dependent children. Sec pp. 37-54 of Inslcucuou.)
k.
Dvccripilon of Jua«tv
lincludlns Cru»C isttir.l
Indic«t* wher* applicable, o'-npf of
the ASiet by uain9 cho parrncbcclcjl
•(Jl" lor 1610= own«r»hip ef rtport-
livg indlviJujl .i/id jpouio. "'Si' tor
•cp*r*t« o«'n«r»h»p by •po««». "IDCC
Zor ownvrtnip by o*prnd«nc child.
Pljcc "IX)- afcer each otitt
v»wipK rr^ prior d».4Cio«urc.
during
r*porcaA9
fwriod
Cros« v«:u«
«c tnd oc
Trar-aecciona durlnq reporting period
Sic'
ril:
value;
Code
(J-JI
1=1
v.lue
Kctbodl
Code
(0-«l
,tJp.
bu^l.h.
If not exeevc fro* disclosure 1
fteath-
my
Cod!*
Cainl
Code
191
Identity o«
bwyer/»ellcr
m private
ttaiuaction}
NONE IKo rrportabla
' (J) L.A. Countv 401 (K)
c
Div
L
T
Plan
(J) California Judges
None
T,
T
Retirement Plan
' (J) Kellev Drve & Uarrer
None
J
T
J Retirement Plan
ic
»
w
»
»
IS
»
17
11
yr'it^S.?-^ ?:U6!2§:'JiJr3co ?:ll6Ho?'s!'?oS:?lo"-"-'" ?tUi'SU'5li'Sl.cco.oo3 S3fi?:S55:;s;--,„
'^^^ "•- ?i!iislh^!5;'E'sSo.ooo y^BM^^-— i^ii^'^i^^i^'^-—
\zXi'.^'!'^- SiJssfMti. ;:g;:5i"'' -"" '^'" ii^iia'A ^•^••'<'--=
1436
FINAMCIAL V1SCL03XTRZ REPORT (cont'd)
NSA* Of ?«i?on RcportlM
CARLOS R. MORENO
ctir cf Reps
07/31/97
VUI. ADDITIONAL INFORMATION OR EXPLANATIONS (IndtaBe put of R.port.)
Part VII
L.A. County ^Ol(K) Savings Plan is invested In Pacific Mutual Investment fund pursuant
to a guaranteed investment contract with the County of Los Angeles.
Upon leaving the State Court System, I have a right to withdraw only my contributions
to the California Judges retirement fund and roll them over into an alternate
retirement instrument. I have no right to withdraw or control any vested interest in
the Kellev Drve ;. U'arren retirement plan until the year 2003, ■-.-hen I attain the age
IX. CERTIFICATION.
to complusce with the provisioni of 28 U.S C. { 4SS uxl of Advisory Opioioa No 57 of the Advuory Committtc od Judicial
Actrvitiet. and to the belt of my knowledge il ibe time after reaioiublc Inquiry. I did oot perform ary adjudicatory function m any litipQoa
dunog the period covered by this repoit in which I. my spouse, or isy minor or dependent children had a nnancicii interui. as defsed ia
CanoQ 3C(3)(c), in the outcome of luch litigation.
I certify (hat all inforinaiioQ given above (lacludin^ laformatioa pertauung to my spotise and minor or depeodeot children, if any> is
accurate, true, and complete to the best of my kaowledge and belief, and that any information not reponed was withheld because it met
applicable iiatutory provisions permining ixio-disclosure.
I Autbci ceni^ thai earned income from outside employment and hooorana and (he acceptance of gifts which have been reporud are
ia compliance with the provitions of} U.S.C.A. app 4, f SOI et. srq , } (J.S.C. § 7353 and Judicial Conference regulauons.
Sigsaiure ,
&^^I^ 'jZ Vtru,
1U^^
Date Jul" 31. l??'
NOTE: AhfY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT .MAY BE
SUBJECT TO Crvn. AND CRIMINAL SANCTIONS (5 U.S.C App. 4. ; 104 )
FILING INSTRUCTIONS;
Mail sifoed origioal (ad 3 «rfHif;»n.i copies to:
Comimttec on Financial Disclocuie
Admioatiatrve OOlcc of the
Uailed States Courrs
Sunt 2-301
Om Colambus Circle. N £.,
Waihunlon. D.C. 20344
1437
FINANCIAL STATEMENT
NET WORTH
Provide a complete, cuzrent finandal net woith ttatement which itemizes in detail
all assets Cncluding bank accounts, real estate, tecudties. trusts, invesimeats, and other financial
holdings) all liabilides Qncluding debts, mortgages, loans, and oAer financial obligations) of
yourself, your spouse, and other immediate members of your household.
CARLOS R. AND CHRISTINE MORENO (MAY 23,1997)
ASSETS 1
LIABIUnES
n
Cub oa hnd ud ia bub
2
000
Nottf pqfibic ts bub-Mcmd
1
UJ. OeTtaacal MCBrilui-«dt
Notu pcyiUc ts bBb-unncacd
Neta piyiU* la reUtiTa
15
000
NoM pqnbk 10 oibei
I
Aeeooati lad neat raccrribla;
1
Dim bomitUiiTU ud biiadt
Unpaid iaeoB* ux
1
DoiteaMfacR
OihcT ttipiid ox ud intaRM
1
OoeMfid
Jlul «ftu> matfifc* p«)nbk-«dd
KhedoUdst 6, 2nd Trust Dee(
s)
■320,
000
Rill citil* owBcd-cdd MiMilaU
Personal Residence
450,
300
Quail aeattl'" a^d eifas lica pay-
aUa
Rul itttu raontiici raocivibl*
Oifacx ddo-itaoin:
Aum ud othct peieul prepetty
25,
)00
Credit Lines
21.
)00
Cuh trifat-Cft inianaet
Revolving Credit
45,
)00
Olto ttww-hfmJTf
Auto Loans
20,
)00 ,
Personal Property
30.
opn
School Loans
-
45,
)00 '■
401 (K) Savings Plan
85,
000
Judges Retirement Fund
79,
000
466,
)00
\
NrtWcift
205,
)00
Tetil AOitt
671,
300
Telal firiditiaa aad aat »Bflh
671.
)00
COffnNOENT UABOmES
GENERAL INFOBMAHON
None
A»B7«a»pWc«& (Addacbad.
No
Oa kuct er conncti
None
An yoa ^iBdut ia any aaio or Ufal
No
Vnacumt
None
Hava you am ukB bialonpieyT
No
ftorisiaB tat fwiani laeonu Tb
None
Oihe tpKUl dcbc
None
1
1st Trust Deed Sumitomo Bank $i72,000
2nd Trust Deed Small Business
Administration 148,000
1438
CARLOS ROBERTO MORENO
RESPONSES TO SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
PART III GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "e\er)' lawyer, regardless of professional
prominence or professional workload, to find some time to participate in sen ing
the disadvantaged." Describe what you have done to flilfill these responsibilities,
listing specific instances and the amount of time devoted to each.
Since March of 1997 to the present. I have served as a Board Member for the
Arroyo Vista Family Health Center, a non-profit community health center that
contracts with the County of Los Angeles to provide a wide array of fi-ee and low-
cost health care to the medically under-served population of Northeast Los
Angeles. Although 1 was just recently asked to ser\e on the Board by its executi\e
director (a high school ft"iend). 1 have come to learn about its extensive community
outreach program in our area. The Board's mandate is to insure that the Center
provides high-quality health care at atlbrdable prices to its patients.
(Approximately 4 hours a month.)
Previously, between 1 976 and 1 978, 1 ser\ ed as a Board Member for the Narcotics
Prevention Project ( a drug rehabilitation program in Boyle Heights) and the Public
Inebriate Program (an alcohol rehabilitation program) for alcoholics living on skid
row in downtown Los Angeles. (Approximately 4 hours a month.)
In 1981, as a litigator with Mori & Ota (the predecessor firm of Kelley Drye &
Warren), I pro\ided pro bono legal services to two elderly businessmen (an auto
body repairman and auto mechanic) in Little Tokyo who were being evicted by the
City of Los Angeles after more than twenty years in business on the same site. I
managed the entire litigation in various courts and ultitnately reached a \er>'
satisfactory settlement for our clients, who were able to continue in business.
(Approximately 200 hours.)
Sometime later, I was responsible for coordinating the eviction of numerous
tenants fi"om two adjoining residential hotels in the same area. I believe 1 was
especially sensitive to the needs of these mostly elderly and long-term tenants and
persuaded the firm's client to provide relocation assistance despite having no
obligation to do so under California law.
1439
Finally, my work with the Yale Club's Alumni Schools Committee (Central Los
Angeles) for over twenty years, exposes me to talented, but often under-privileged,
youth who have applied for admission to Yale College. I meet with these students
and their parents and give them guidance and encouragement in pursuing college
opportunities. I have later mentored a number of students who I have met in the
course of these alumni inter\iews. (Approximately four hours a month.)
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 the practical implementation of
membership policies? If so, list, with dates of membership. What you have done
to try to change these policies?
No; I have supported efforts by the California Judges Association and the Los
Angeles County Bar Association to discourage memberships in such organizations.
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).
On January 31, 1997 I submitted my Personal Data Questionnaire (Judicial
Appointments) to the Office of Senator Dianne Feinstein. A few weeks later, I
was one often candidates interviewed by a Selection Committee appnainted by
Senator Feinstein. I do not know the number of candidates who were pre-
screened and not interviewed. The Selection Committee consisted often
distinguished attorneys and judges from Southern California who represented a
wide diversity of views and experiences. Three finalists were selected by the
Committee, all of whom were interviewed personally by Senator Feinstein on May
10, 1997. A day after my interview, I was advised by Senator Feinstein that she
was recommending my appointment to the federal district court by President
Clinton.
1440
Subsequently, I completed several questionnaires and forms which were sent to me
by the White House. After completing these documents, on June 2, 1997, 1 met
with representatives of the Office of Policy Development at the Department of
Justice. Following this meeting, I was investigated by the Federal Bureau of
Investigation and evaluated by the American Bar Association. I met personally
with a special agent of the FBI and later with a representative of the ABA's
Standing Committee on the Federal Judiciary. On July 31, 1997, 1 was advised by
a White House representative that I had been nominated that day by President
Clinton for an appointment to the federal district court.
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 fiiUy.
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 govenunent.
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
1441
A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
One of the principal strengths of our form of government is found in the
doctrine of separation of powers. Each branch has been structured by the
Constitution so that it may function relatively independently of the other
branches, yet appropriate restraints are imposed on the work of each
branch by the Constitution.
At the risk of over-simplification, it goes without saying that the legislative
branch is best equipped and structured to enact and create law on behalf of
the people, while the executive branch has a separate independent mandate
to implement and enforce the law.
The judicial branch, in the first instance, must exercise restraint with
respect to intruding into the work of the other branches. The acts of these
branches carry a presumption of Constitutional validity and therefore are
entitled to a degree of deference. The judicial branch is ill-equipped to
perform anything more than its Constitutional mandate to apply the law.
The courts, and individual judges, must also exercise restraint to insure that
they decide only the issues in controversy which have been tendered in a
specific case and that decisions are based solely upon the record created by
the parties. A court should not go beyond the established record or issue
in controversy to resolve what is perceived by the court to be a broader
social issue in need of resolution by society.
At all times, whether deciding an issue of fact or an issue of law, a judge
should be guided solely by sound principles of law and not individual
predilection. Findings of fact should be based on common sense and the
trial record, while findings of law should be based upon established case
precedent and sound statutory interpretation.
Of course, there wdU be a few instances where novel issues will be
presented which may implicate significant Constitutional principles with
ramifications across broad sections of society, or which question the acts of
a particular branch of government. In all matters, but especially in these,
the judicial branch must proceed cautiously and incrementally, search for
precedent in analogous situations, and be guided by principles of judicial
restraint. Ultimately, however, the decision of the court must be based
upon objective and established principles of law, unswayed by sympathy,
prejudice, or public opinion, and impelled by the courage to do what is just
and fair in light of all the circumstances.
1442
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
RICHARD W. STORY
FOR JUDGE OF UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Richard Wayne Story
In 1977, 1 legally changed my first name from Ricky to Richard.
2. Address: List current place of residence and office address(es).
Residence address: Gainesville, Georgia 30506
Office addresses: Mailing:
P. O. Box 1778
Gainesville, Georgia 30503
Street:
116 Spring Street
Gainesville, Georgia 30501
3. Date and place of birth.
Dateofbirth:May3, 1953
Place of birth: Augusta, Georgia
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Married to Nancy Gail Duffey Story. She is emplo) ed b) the Hall County Board of
Education as a teacher at North Hall High School, 4885 Mount Vernon Road,
Gainesville, Georgia 30505.
1443
5. Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
LaGrange College, LaGrange, Georgia
Attended: 1971 - 1975
Degree: Bachelor of Arts with a majoi in English in March, 1975
University of Georgia, School of Law, Athens, Georgia
Attended: 1975 - 1978
Degree: Juris Doctor in June, 1978
6. Employment Record: (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.
a) Georgia Department of Labor
Contingency Clerk
LaGrange, Georgia - March, 1975 - June, 1975
Athens, Georgia - September, 1975 - January, 1977
b) Diversified Wood Products, Inc.
Harlem, Georgia
Sawmill Laborer
June, 1976 - August, 1976
c) University of Georgia Law Library
Athens, Georgia
Student Assistant
September, 1976 - December, 1976
d) Stanley R. Durden, Attorney
Athens, Georgia
Law Clerk
January, 1977 - June, 1978
1444
e) Kenyon, Hulsey & Oliver
(Now: Hulsey, Oliver & Mahar)
Gainesville, Georgia
Partner
July, 1978 - July, 1986
0 Gainesville Jaycees (nonprofit)
Gainesville, Georgia
Director/ Officer, 1978 - 1984; President, 1982-83
g) State of Georgia
Gainesville, Georgia
Special Assistant Attorney General, 1980 - 1985
h) Gainesville-Hall County Girls Club (nonprofit)
Gainesville, Georgia
Director, 1981-88; President, 1985
i) Gainesville-Hall County Chamber of Commerce (nonprofit)
Gainesville, Georgia
Associate Director, 1984
j) Hal! County United \\ ay (nonprofit)
Gainesville, Georgia
Director, 1985-88, 1994-96
k) Northeast Georgia Alcohol and Drug Abuse Council (nonprofit)
Gainesville, Georgia
Director, 1985-88
1) Hall County Juvenile Court
Hall County Courthouse
Gainesville, Georgia
Judge of Juvenile Court
January, 1985 - July, 1986
m) State of Georgia
Hall County Courthouse
Gainesville, Georgia
Judge of Superior Court
July, 1986 - Present
1445
n) North Georgia College
Dahlonega, Georgia
Taught Business Law course at Gainesville College Campus
March, 1995 - June. 1995
Militar\' Serv'ice: 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.
Honors and Awards: List any scholarships, fellowships, honorar)' degrees, and honorary
society m.emberships that you believe would be of interest to the Committee.
Named one of Five Outstanding Young Georgians by the Georgia Jaycees in 1987;
Gainesville-Hall County Young Man of the Year in 1985; Silver Shovel Award in
1984 for service to Gainesville-Hall County Chamber of Commerce; Honorary
Lifetime Member of Gainesville Jaycees; T. Malone Sharpe Award for 1982-83
(given to top 12 local Jaycee presidents in the state); Outstanding State Jaycee
Chairman of the Year 1983-84; ARCH Award from University of Georgia Alumni
Society for ser\ice to the community in 1986; Leadership Hall County, Class of
1983; Leadership Georgia, Class of 1992.
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.
Judicial Council of Georgia: 1996- Present;
Georgia Courts Automation Commission: 1995 - Present;
Council of Superior Court Judges: Ninth District Administrative Judge and member
of Executive Committee, 1996- Present; Benchbook Committee, Chair, 1991-96;
Automation Committee, 1995 - Present; Legislative Committee, Chair, 1996 -
Present;
Council of Juvenile Court Judges: 1985 - 1994; Served on Permanency Planning
Committee, Legislative Committee, Purchase of Services Committee, DFACS
Liaison Committee, and committee which drafted permanency planning legislation
in 1989.
1446
National Council of Juvenile and Family Court Judges: 1985 - 1994;
American Bar Association: 1991 - Present;
State Bar of Georgia: Member of Intrastate Moot Court Competition Committee of
Younger Lawyers Section, 1980-81;
Gainesville-Northeastern Bar Association: Law Day Chairman, 1980;
Pro Bono Committee, 1983-84;
Court Liaison Committee, 1990 - Present, Chair, 1990-91;
Alternative Dispute Resolution Committee, Co-Chair, 1991-92.
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.
Lobbying:
I am a member of the Georgia Council of Superior Court Judges which lobbies the
Georgia Legislature on issues of importance to the Superior Courts.
Other:
I am a member of the Gainesville Rotary Club, Gridiron (a University of Georgia
fraternal organization) and Delta Tau Delta (a national fraternity). A copy of the
Gainesville Rotary Club bylaws is attached as Attachment "V."
1 1 . 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.
Superior Courts of Georgia, admitted July 10, 1978;
Court of Appeals of Georgia, admitted September 12, 1978;
Supreme Court of Georgia, admitted October 2, 1978;
United States District Court, Northern District of Georgia, admitted October 2,
1978;
1447
United States District Court, Middle District of Georgia, admitted February 20,
1985;
United States Court of Appeals, 11 th Circuit, admitted October 7, 1982.
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 served as the editor of the Georgia Superior Court Benchbook published in 1995. I
also wrote the sections on Alternative Dispute Resolution and Trial Procedures. A
copy of these sections is attached as Attachments "A" and "B", respectively.
"Ethics and the Moral High Road in the World of Litigation", Verdict. Winter,
1996. This article is a speech which 1 delivered at a seminar and a copy is attached as
Attachment "C".
I do not have copies of any speeches on constitutional law or legal policy.
15. Health: WTiat is the present state of your health? List the date of you last physical
examination.
My health is excellent. My last physical examination was May, 1996.
14. ludicial 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 am presently Judge of Superior Courts for the Northeastern Circuit, consisting of
Dawson and Hall Counties. I was initially appointed by Governor Joe Frank Harris
and began my first term on July 8, 1986. I was elected to four year terms in 1988,
1992, and 1996. The Superior Court is the trial court of general jurisdiction in the
State of Georgia.
In 1985, 1 was appointed Judge of the Juvenile Court of Hall County by Chief
Superior Court Judge A. Richard Kenyon. I served from January 1, 1985, until July 7,
1986, when I resigned to become Superior Court judge. The juvenile court's
jurisdiction is limited to delinquency, abuse, neglect, and unruly cases.
1448
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 and 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 copes of the opinions.
(1) Willie V. Harwell. Ir. vs. The Continental Insurance Company. Civil Action
Number 86-CV-1079-B, Superior Court of Hall County.
Copy of opinion is attached as Attachment "D".
State of Georgia vs. Rudi Lee Bromlev, Case Number 87-CR-n93-B, Superior
Court of Hall County.
Copy of opinion dated May 24, 1988, regarding motions to suppress evidence
seized pursuant to nine search warrants is attached as Attachment "E".
State of Georgia vs. Rudi Lee Bromlev, Case Number 87-CR-1393-B, Superior
Court of Hall County.
Copy of opinion dated May 25, 1988, regarding a motion to suppress evidence
seized in a warrantless search of the defendant's trash is attached as
Attachment "F'.
State of Georgia vs. Crawford L. Gober, Case Number 90-CR-587-A, Superior
Court of Hall County.
Copy of opinion is attached as Attachment "G".
Hardy G. Baglev. et al.. vs. Sidney William Shortt. et al.. Case Number
88-CV-5648-B, Superior Court of White County.
Copy of opinion is attached as Attachment "H".
State of Georgia vs. Stephen A. Mobley, Case Number 91 -CR-243-A, Superior
Court of Hall County.
Copy of opinion dated January 11, 1994, denying the defendant's motion for
a continuance and for funds to conduct genetic testing of the defendant is
attached as Attachment "I".
State of Georgia vs. Stephen A. Mobley, Case Number 91-CR-243-A, Superior
Court of Hall County.
Copy of opinion dated January 14, 1994, denying a challenge to the
composition of the grand jury is attached as Attachment "J".
1449
State of Georgia vs. Frank Allen Kessler, Case Number 95-CR-448-B, Superior
Court of Hall County.
Copy of opinion is attached as Attachment "K".
Mrs. limmy H. Smith vs. The Winder News and Robert W. Adamson. Case
Number 93-CV-823-M, Superior Court of Barrow County.
Copy of opinion is attached as Attachment "L".
George Wangemann. et al. vs. loyce W. Shubert, Case Number
96-CV-2925-B, Superior Court of Hall County.
Copy of opinion is attached as Attachment "M".
(2) Thompson vs. State. 218 Ga. App. 444 (1995).
The defendant entered a plea of guilty and sentencing was deferred. He
waived his right to withdraw his plea. Prior to sentencing, the defendant filed
a motion to w ithdraw the plea, and the motion was denied. The Court of
Appeals reversed, holding that a defendant has an unqualified right to
withdraw a plea at any time before judgment is pronounced.
American Transport, Inc. vs. Thompson. 218 Ga. App. 54 (1995).
Plaintiff filed suit against American Transport, Inc., a Michigan corporation.
After the statute of limitations had run. Plaintiff learned that she had made a
mistake and should have sued American Transport, Inc., a Pennsylvania
corporation. Plaintiff amended her complaint to add the Pennsylvania
corporation as a party. The corporation moved to dismiss and the motion was
denied. The Court of Appeals held that all the requirements for relation back
of the amendment had not been met and reversed based on the statute of
limitations. The trial court opinion is attached as Attachment "N".
Baglev vs. Shortt. 261 Ga. 762 (1991).
In this wrongful death action, Plaintiff was awarded $14,000,000.00 in
punitive damages. Pursuant to a motion filed by defendants, the trial court
upheld the punitive damage cap in the Tort Reform Act and reduced punitive
damages to $1,000,000.00, $250,000.00 for each plaintiff against each
defendant. The Supreme Court affirmed the constitutional ruling but held
that the cap was $250,000.00 per plaintiff regardless of the number of
defendants and reduced the punitive damages to $500,000.00. The trial court
opinion is attached as Attachment "H".
1450
Hackel vs. Bartell. 207 Ga. App. 563 (1993).
Defendant's motion for summan judgment in this personal injury case was
denied. The Court of Appeals reversed, holding that the intervening
negligence of the plaintiff was the sole proximate cause of her injury. The
trial court opinion is attached as Attachment "O".
Kinsev vs. Elrod. 206 Ga. App. 375 (1992).
Summary Judgment was granted to the defendant in this personal injury case
based on a release plaintiff had signed releasing another driver involved in the
collision. The Court of Appeals held that the defendant had not proven the
release was intended to cover her and re\ersed the decision. The trial court
opinion is attached as attachment "P".
Addlev vs. Beizer. 205 Ga. App. 714 (1992).
In a case of first impression, the Court of Appeals held that the attorney for a
corporation does not, by virtue of that fact, serve as attorney for the officers of
the corporation in their indi\idual capacities. The jur) verdict for the
plaintiff was reversed.
State vs. Watson. 205 Ga. App. 313 (1992).
The Court of Appeals reversed a decision granting the defendant's motion to
suppress. The Court held that under the "totality of the circumstances," there
was a sufficient basis for a stop of the defendant. The trial court's opinion is
attached as Attachment "Q".
Papp vs. Hall County. 262 Ga. 72 (1992).
Summary judgment was granted to the defendant based on sovereign
immunity under a 1991 Amendment to the Georgia Constitution. The
Supreme Court held that the 1991 Amendment was not to be retroactively
applied and reversed. The trial court's opinion is attached as Attachment "R".
BabbvsCook. 203 Ga. App. 437 (1992).
Plaintiffs filed an action for loss of consortium and personal injuries. The
trial court granted a summar\ judgment based on the statute of limitations.
The Court of Appeals affirmed as to the personal injur) claim (2 year statute
of limitations) but reversed as to the loss of consortium (4 year statute of
limitations). The trial court's opinion is attached as Attachment "S".
Williams vs. State. 261 Ga. 640 (1991).
The defendant's conviction for possession of cocaine with intent to distribute
was reversed based on the improper admission of evidence of a similar
1451
tiansaction. Evidence was admitted at trial by introduction of a certified
copy of a previous conviction of defendant. The Court established three
affirmative showings required of the State before such evidence should be
admitted.
Titan Indemnity Company vs. Hall County. 202 Ga. App. 38 (1991).
The Court of Appeals affirmed the denial of the plaintiffs motion for
summary judgment. However, the Court held that the trial court erred in its
interpretation of the insurance contract and reversed the summary judgment
of defendant. The trial court opinion is attached as Attachment "T".
Womack Industries. Inc. vs. B & A Equipment Company. 199 Ga. App 660
(1991).
The Court of Appeals reversed a jury verdict finding the plaintiffs lien valid.
The Court held that the facts demanded a contrary conclusion and that a
verdict should have been directed in favor of defendant.
Buffington vs. Sieler. 259 Ga. 478 (1989).
The Supreme Court reversed a jury verdict which had required specific
performance of a sale of property. The Court held that the plaintiff failed to
comply with the terms of the sale and was not entitled to specific
performance.
Georgia Real Estate Commission vs. Svfan. 192 Ga. App. 3 (1989).
This case went to the Superior Court on appeal from the Georgia Real Estate
Commission which had revoked Syfan's license for including false
information on his license application. However, Syfan had provided the
correct information to the Staff of the Commission but pursuant to their
direction did not include it on his application. The Superior Court reversed
the Commission's decision to revoke the license. The Court of Appeals
reversed the Superior Court holding that the Commission had the discretion
to revoke the license even in light of the mitigating circumstances. The trial
court's opinion is attached as Attachment "U".
Van Huvnh vs. State. 258 Ga. 663 (1988).
A motion for new trial w as granted to defendant after he was convicted of
malice murder and other offenses. At the new trial, the defendant was again
convicted of malice murder and other offenses. However, he was also
convicted of felony murder. Because the defendant had not been convicted of
felony murder in his first trial, the Supreme Court reversed the conviction on
that charge. The malice murder and other convictions were affirmed.
10
1452
(3) State vs. Bromlev. Case Number 87-CR-B93-B, Superior Court of Hall
County. A copy of opinion is attached as Attachment "F*.
Appellate decision: Bromley vs. State. 259 Ga. 377 (1989).
Baglev vs. Shortt. Case Number 88-CV-5648-B, Superior Court of White
County. A copy of opinion is attached as Attachment "H".
Appellate decision: Baglev vs. Shortt. 261 Ga. 762 (1991).
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 1980, Attorney General Arthur K. Bolton appointed me as a Special Assistant
Attorney General for the State of Georgia. I also served under Mr. Bolton's
successor, Michael J. Bowers, until December 31, 1984. I have never been an
unsuccessful candidate for elective public office.
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, 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;
No.
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;
After graduation from law school, I became a partner in the law
firm of Kenyon, Hulsey and Oliver in July, 1978.
11
1453
The present name of the firm is Hulsey, Oliver & Mahar and
the address is 200 E.E. Butler Parkway, Gainesville, Georgia
30501.
I remained with the firm until I went on the Superior Court
bench in July, 1986. In 1980, 1 was appointed a special
assistant attorney general for the State of Georgia, but
remained a member of the law firm. I handled child support
enforcement cases and abuse and neglect cases. Effective
January 1, 1985, 1 was appointed Juvenile Court Judge of Hall
County, Hall County Courthouse, Gainesville, Georgia. This
was a part-time position. Effective July 8, 1986, 1
was appointed Judge of Superior Court for the Northeastern
Circuit. I have served in this position full-time since then.
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?
Our firm had a general civil practice which included insurance
defense, business law, governmental law, and a limited
plaintiffs practice. 1 worked primarily in litigation,
concentrating on insurance defense, zoning, and civil rights. In
1980, 1 was appointed a Special Assistant Attorney General for
the State of Georgia representing offices of the Department of
Family and Children Services in Northeast Georgia. I also
handled child support enforcement cases for the state. I
resigned my position as a Special Assistant Attorney General at
the end of 1984 before becoming a part-time juvenile court
judge, January 1, 1985. I remained a member of the law firm
until I went on the Superior Court bench in July, 1986.
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
M) tjpical former clients included insurance companies, small
businesses. Hall County government, and the State of Georgia.
12
1454
c. 1 . Did you appear in court frequently, occasionally, or not at all? If
the frequency of your appearance in court varied, describe each
such variance, giving dates.
Occasionally.
2. What percentage of these appearances was in;
(a) federal courts - 20%
(b) state courts of record - 70%
(c) other courts - 10%
3. What percentage of your litigation was:
(a) civil - 95%
(b) criminal - 5%
4. State the number of cases in court of record you tried to verdict
or judgment (rather than settled), indicating whether you were
sole counsel, chief counsel, or associate counsel.
95 - 80 as sole counsel, 15 as associate.
5. What percentage of these trials was:
(a) jur> - 10%
(b) non-jury - 90%
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 summar}' 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.
13
1455
-1-
Rex Armour, et al. vs. E.L. England, et al.. Civil Action CV-79-32-C,
(1979) U.S.D.C, N.D. Ga., fudge William C. O'Kelley presiding.
Voluntary dismissal by plaintiffs was filed January 5, 1981.
Plaintiffs counsel: Michael A. Mogill, 150 South College Street,
Carlisle, Pennsylvania. 17013, (717) 240-5283 and Eric G. Kocher, 161
Spring Street, S.W., Atlanta, Georgia 30303, (404) 681-0680
Defendants' counsel: I represented the defendants along with Julius
M. Hulsey, 200 E.E. Butler Parkway, Gainesville, GA 30501, (770)
532-6312
Inmates at the Hall County Jail brought a class action suit against the
sheriff and jailer. We represented all of the defendants. The suit
complained about conditions which existed in the Hall County Jail.
Specifically, the plaintiffs alleged that the jail was unsafe and
unsanitary, that inmates were denied recreation, access to legal
materials, and access to medical care, and that inmates were subjected
to arbitrary discipline. I engaged in lengthy negotiations to settle all
of the issues in the case. The settlement included the development of
operating rules for the jail, construction of an exercise yard and
creation of a law library for inmates. The case was voluntarily
dismissed by the plaintiffs.
John Alfred Davis vs. INA. Edward L. England, et al.. Civil Action
Number C80-1796A and C81-01G, (1980), U.S.D.C. N.D. Ga., Judge
William C. O'Kelley, presiding. The trial began November 2, 1981.
Plaintiffs counsel: Richard A. Gordon, Suite 520, 400 Interstate North
Parkway, Atlanta, Georgia 30339, (770) 952-2900
Defendants' counsel: I represented the individual defendants along
with Julius M. Hulsey, 200 E.E. Butler Parkway, Gainesville, Georgia
30501, (770) 532-6312 and the insurance company was represented by
Sewell K. Loggins, 5605 Glenridge Drive N.E., Suite 900, Atlanta,
Georgia 30342, (404) 256-0700.
14
1456
Plaintiff sought damages for injuries which he alleged he received
during an arrest by defendants. After he was stopped by two sheriffs
deputies, the plaintiff fled. He alleged that when the deputies caught
him, they committed an assault and battery upon him and inflicted
injuries, including a ruptured bladder. In a jury trial, a verdict was
rendered in favor of the defendants.
-3-
American Booksellers Association, Inc., et al. vs. Hinson McAuliffe, et
aL Civil Action Number C81-1 193A, (1981), U.S.D.C, N.D. Ga.,
Judge Horace T. Ward, presiding. The motion for summar) judgment
was granted October 23, 1981 .
Plaintiffs' counsel: J. Kirk Quillian and William N. Withrow, Jr.
Nationsbank Plaza, Suite 5200, 600 Peachtree Street, N.E., Atlanta,
Georgia 30308, (404) 885-3204; Michael A. Bamberger, 425 Park
Avenue, New York, New York 10022, (212) 371-5900.
Defendants' counsel: I represented the Sheriff and Solicitor of Hall
County along with Julius M. Hulsey, 200 E.E. Butler Parkway,
Gainesville, Georgia 30501, (770) 532-6312; other defendants were
represented by Roy Mays, 170 Mitchell Street, S.W., Atlanta, Georgia
30303, (404) 614-4570, Gail C. Flake, 556 North McDonough Street,
Room 504, Decatur, Georgia 30030, (404) 371-2909; Thomas (). Davis,
Suite 201, 545 North McDonough Street, Decatur, Georgia 30030,
(404) 378-3633; Roy E. Barnes, 166 Anderson Street, Suite 225,
Marietta, Georgia 30060, (770) 424-1500; John H. Smith, 301 Green
Street, Suite 200, Gainesville, Georgia 30501, (770) 536-3381; Paul C.
McCommon, III, P. O. Box U, Macon, Georgia 31202, (912) 752-
3511; Tony L. Axam, 1280 West Peachtree Street, Suite 310, Atlanta,
Georgia 30309, (404) 524-2233; Jerry Gentry, 100 Cherokee Street,
Suite 595, Marietta, Georgia 30090, (770) 528-4000; James A.
Henderson, P. O. Box 223, Lawrenceville, Georgia 30246, (770) 822-
8609.
A suit to declare Act 785, Ga. Code Ch. 26-35 unconstitutional and to
enjoin its enforcement was brought by a number of publishers and
booksellers. The act sought to restrict distribution or display to minors
of materials containing descriptions or depictions of "illicit sex or
15
1457
sexual immorality." Along with Julius Hulsey, I represented the
Sheriff and Solicitor of Hall County. The Court enjoined the
enforcement of the act and ultimately declared it unconstitutional.
Clyde Adams vs. Danny Bishop, et al.. Ciyil Action Number C81-
1440, (1981), U.S.D.C, N.D. Ga., Judge William C. O'Kelley,
presiding. Summary judgment was granted to two defendants on
December 6, 1982. A judgment was entered on a jury verdict in favor
of the remaining defendant on April 4, 1983.
Plaintiffs counsel; Jane Kent-Plaginos, 111 Dahlonega Street,
Cumming, Georgia 30130, (770) 887-2321.
Defendants' counsel: I represented the two sheriffs deputies along
with Julius M. Hulsey, 200 E.E. Butler Parkway, Gainesville, Georgia
30501, (770) 532-6312 and Edward L. Hartness, 620 Spring Street,
Gainesville, Georgia 30501, (770) 535-7000; the District Attorney was
represented by Daryl A. Robinson, 132 State Judicial Building,
Atlanta, Georgia 30334, (404) 651-6194.
The Plaintiff filed this action alleging that his motorcycle had been
unlawfully seized by the defendants. The motorcycle was seized by
Hall County Sheriffs deputies during a routine traffic stop of a truck
which had the motorcycle in the cargo area. The identification
numbers on the motorcycle had been altered. The motorcycle was
seized and subsequently released to a third party who submitted proof
of ownership to the district attorney. Summary judgment was granted
to the defendants on all claims except one against Deputy Bishop who
was the officer who released the motorcyle to the third party. That
claim went to trial before a jury which found in favor of Deputy
Bishop.
-5-
Hall Count^■ vs. Agri-Bio Corporation. 249 Ga. 112 (1982). Judge
James E. Palmour, III, presiding trial judge. The case was decided by
the trial court on July 17, 1981 and by the Supreme Court on March 2,
1982.
16
1458
Plaintiffs counsel: I represented Hall County along with Julius M.
Hulsey, 200 E. E. Butler Parkway, Gainesville, Georgia 50501, (770)
532-6312.
Defendant's counsel: Frank VV. Armstrong, III, 200 Main Street, S.W.,
6th Floor, Hunt Tower, Gainesville, Georgia 30501, (770) 536-0101.
Agri-Bio sought to rezone a tract of land to planned industrial
development. The tract was located in the center of a residential
subdivision. The Board of Commissioners denied the rezoning
application. However, the trial court held that the zoning of the
property was unconstitutional and directed the county commissioners
to rezone the property. On appeal, the County contended that the
applicant had failed to properly raise the issue of constitutionality
before the county commissioners and that the evidence did not
support the findings of the trial court. The Supreme Court reversed
the trial court holding that the applicant had failed to make a proper
constitutional challenge before the commissioners.
Eddie Howington vs. Hall County Planning Commission, Civil Action
Number K-81-23,885, (1981), Superior Court of Hall County, Judge A.
R. Kenyon, presiding. The case was heard on April 12, 1982, and
decided on August 26, 1982.
Plaintiffs counsel: James M. Walters, 311 Green Street, N.W.,
Gainesville, Georgia 30501, (770) 536-3264.
Defendant's counsel: I represented the defendant.
The plaintiff appealed a ruling by the Planning Commission which
had denied his request to locate a go-cart track on a parcel of land.
The Court affirmed the Planning Commission decision holding that
the plaintiff had not properly raised constitutional questions before
the Commission and that the Commission did not abuse its
discretion.
17
1459
-7-
William G. Harden vs. E. L. England, et al.. Civil Action Number
C82-25G, (1982), U.S.D.C, N.D. Ga., Judge William C. O'Kelley,
presiding. A partial summary judgment was granted to the defendants
on Februar) 7, 1983. The bench trial was held May 26, 1983. The
plaintiffs application to the Eleventh Circuit for leave to appeal in
forma pauperis was denied by the Eleventh Circuit on December 7,
1983.
Plaintiffs counsel: F. Robert Raley, 743 Walnut Street, Macon,
Georgia 31208, (912)745-1174
Defendants' counsel: I represented the sheriff, the jailer and the
county commissioners.
Plaintiff brought suit against the Hall Countv Sheriff and others
complaining about conditions at the Hall County Jail. Plaintiff
contended that he had been placed in solitary confinement by jailers
without the benefit of a disciplinary proceeding. He contended that
the cell in which he was placed was unheated, had no natural light, and
was infested with roaches. The plaintiff further contended that when
he was moved from solitary to the general jail population, that he was
subjected to violence from other inmates and that jail personnel were
not complying with the jail's operating rules. Motions to dismiss and
for summary judgment were granted to some defendants. The case was
tried before the Court without a jury and a judgment was rendered in
favor of the remaining defendants.
lerry Smallwood vs. Billy Moonev. et al.. Civil Action Number C82-
59G, (1982) U.S.D.C, N.D. Ga., Judge William C. O'Kelley,
presiding. Judgment was entered for the defendants on a directed
verdict on April 5, 1983.
Plaintiffs counsel: Charles W. Smith, Jr., 210 Washington Street,
N.W., Gainesville, Georgia 30501, (770) 532-7888.
18
1460
Defendants' counsel: I represented the individual defendants along
with Julius M. Hulsey, 200 E.E. Butler Parkway, Gainesville, Georgia
50501, (770) 532-6312; the insurance carrier was represented by James
A. Dunlap, 405 Washington Street, N.E., Gainesville, Georgia 30501,
(770) 532-7211.
Plaintiff filed suit seeking damages for injuries which he alleged he
sustained when a Hall County jailer intentionally closed a cell door on
his hand. The plaintiff asserted causes of action under 42 USC S 1983
and under a state law claim of battery. Plaintiff sought to recover
against the jailer who injured him as well as against supervisory
personnel, including the sheriff. The federal claims against the
super\'isor} personnel were dismissed on pretrial motions. The
plaintiff then sought to voluntarily dismiss his state court claims
against those defendants so that he could refile his case in state court.
We opposed the motion and the motion was denied. The case went to
trial and the defendants were granted a directed verdict in their favor.
lasper Johnson vs. Richard Mecum. et al.. Civil Action Number C84-
030G, (1984) U.S.D.C, N.D. Ga., Judge V\ illiam C. O'Kelley,
presiding. The case was tried before a jury beginning March 14, 1985.
Plaintiffs counsel: Robert Remar, 2600 The Grand, 75 Fourteenth
Street, Atlanta, Georgia 30309, (404) 873-8000.
Defendants' counsel: I represented all of the defendants along with
Julius M. Hulsey, 200 E.E. Butler Park-way, Gainesville, Georgia
30501,(770)532-6312.
Plaintiff brought this action alleging that he had been subjected to
cruel treatment by the staff of the Hall County Jail when he was
stripped and placed in restraints in a padded cell. The case was tried
before a jury and verdicts were rendered against each of the defendants
in the amount of $1.00 each.
19
1461
-10-
Randall Long vs. Richard V. Mecum. et al.. Civil Action Number
MD84-n885, (1984), Hall County' Superior Court, Judge Robert L.
Scoggin, presiding. The case was heard on September 8, 1984 and
decided November 16, 1984. An application for discretionary appeal
was denied by the Georgia Court of Appeals on January 9, 1985.
Plaintiffs counsel: Edward L. Hartness, 620 Spring Street, Gainesville
Georgia 30501, (770) 535-7000.
Defendants' counsel: I represented the defendants who were the sheriff
and members of the civil service board and count) commissioners.
The case came to Superior Court on a writ of certiorari issued to the
Hall County Civil Service Board. The plaintiff was discharged from
the sheriffs department for engaging in sexual relations with a young
woman who was a member of the department's Explorer Post. He
challenged his discharge on constitutional and procedural grounds.
The decision of the civil service board was affirmed. The plaintiffs
application to the Court of Appeals for a discretionary appeal was
denied.
Because all of the foregoing cases are more than ten years old, I am
providing the following list of attorneys who have had more recent
contact with me in my capacity as a judge:
William M. Brownell, Jr.
410 Bradford Street, N.W.
Gainesville, Georgia 30501
(770) 534-7700
J. David Burroughs
P. O. Box 324
Gainesville, Georgia 30503
(770) 531-0446
R. Thomas Jarrard
410 Bradford Street, N. W.
Gainesville, Georgia 30501
(770) 534-7700
James E. Mahar, Jr.
200 E. E. Butler Parkway
Gainesville, Georgia 30501
(770) 532-6312
20
1462
John A. Dickerson
P. O. Drawer 1408
Toccoa, Georgia 30577
(706)886-3178
Mr. David A. Fox
210 Washington Street, N. W.
Gainesville, Georgia 30501
(770) 534-7386
Steven P. Gilliam
301 Green Street, N. W.
Gainesville, Georgia 30501
(770) 536-3381
Henry D. Green, Jr.
1 Midtown Plaza, Suite 800
1360 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 870-8000
Kelly Miles
301 Green Street, N.VV.
Gainesville, Georgia 30501
(770) 536-3381
Bonnie Oliver
220 E. E. Butler Parkway
Gainesville, Georgia 30501
(770) 532-6300
Charles W. Stephens
210 Washington Street, N.W.
Gainesville, Georgia 30501
(770) 536-7619
J. Douglas Stewart
Hunt Tower
Gainesville, Georgia 30501
(770) 536-0101
19. Legal Actu ities: Describe the most significant legal activities )ou 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).
My experience on the Superior Court bench has given me the opportunitv to play a
role in several innovations in the administration of justice in our circuit. I am
particularly proud of the following programs for which I had primary responsibility.
In 1991, in conjunction with the local bar, we designed a mediation program for
domestic relations cases in the superior courts of our circuit. Because of the success
of the program, we obtained a grant which allowed us to expand the program to other
cases in other courts in our circuit. This program has now expanded to the entire
Ninth Judicial District.
Prior to July, 1992, our circuit consisted of four counties, three of which were rural
and had small caseloads. Because of the limited caseloads in the smaller counties,
the judges of the circuit did not hold court in those counties very often. We learned
21
1463
that this situation was causing delays in appointing counsel for indigent defendants.
I developed a plan which required that persons booked into custody be interviewed
for counsel at booking and that these applications be immediately forwarded to a
judge. This system assured early appointment of counsel to eligible persons.
The increase in criminal cases over the past few years caused our criminal docket to
fall behind. In an effort to expedite the entry of pleas as well as to operate more
efficiently for lawyers, litigants, and the courts, I developed a new calendaring system
that assured a timely opportunity for entry of pleas and ended the necessity of the
lawyer and defendant in every criminal case having to come to every week of court.
22
1464
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.
I am a member of the Superior Court Judges Retirement System and will be eligible
to begin receiving benefits when I reach the age of sixty years.
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 ser\ice in the position to which you have been nominated.
I am unaware of any financial or business relationships which will cause a conflict of
interest. Should any future conflicts develop, I would recuse myself in any case
involving a conflict of interest in accordance with the Code of Conduct for United
States Judges.
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 here.)
See attached financial disclosure report. Attachment "W".
5. Please complete the attached financial net worth statement in detail (Add schedules as
called for).
See attached financial worth statement, Attachment "X".
23
1465
Have you ever held a position or played a role in a political campaign? If so, please
identih' the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
WTiile I was in high school and college, I worked on several campaigns for my father,
LawTcnce Farr Story, for county commissioner in Columbia County, Georgia. I
canvassed neighborhoods, attended political functions, and passed out literature in
shopping centers and at approaches to polling places. His campaigns were in 1968,
1972, and 1976.
In 1976, 1 worked as a volunteer in the presidential campaign of Jimmy Carter by
distributing campaign literature in Athens, Georgia.
In 1982, 1 served as Hall County coordinator for the campaign of Max Cleland for
Secretary of State for the State of Georgia. I hosted a fund raiser, helped distribute
campaign information in the community, and directly solicited votes.
24
1466
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 1996
Report Required t'
J. Pub- L. No.
1. Person Reporting (Usi naxe. firs;, middle iniciai)
Scory, Richard W.
2 Court cr Organization
U.S. District Court
Northern District of Georeia
) Cate cf F.epor;
9/18/97
,. Title {Article Ii: y.zzts indicate active cr
senior stat^J; Sa=;strate judges indicate
full- or psri-ti-el
U.S. Districc Judce - Active Stacus
S. Report Type (check aporocriate ty^el
JL No..n...o.. Dace 9,1 ^ 97
Initial Annual Fir.al
1/1/96- 8/20 97
T, Chambers or Office ;.idress
Hall County Courthouse
116 Spring Street
Gainesville, Georgia 30501
B. On the basis of the inf orT.a: icr. contained tr. chis Kerori at.z
any rocificacior.s pertainir.c thereto, it is, jr. r.v ccir.ier.,
in ccT.jliar.ce with applicable laws *r.ii rejulaticr-s
Reviewinc Officer ~ate
IMPORT.-\.NT NOTES: The instructions accorapan)ing this form must be followed. Complete all parts,
checking the NO>fE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting indi\idual only; see pp. 9-13 of Instructions.)
POSITION N.^J^E OF ORC-.-.NIZATION/£yTITY
NONE (No reportable positions)
Executor
Erline H. Storv Estate
Green Street Club
United Way of Hall County
II. AGREEMENTS. (Reporting indi\idual only, see pp. 14-17 of Instructions.)
DATE P.aRTIES AND TERMS
n
NONE (No reportable agreements)
12 Superior Court Judges Retirenent Plan (no control)
III. NON-I>fVEST.MENT INCOVIE. (Reporting individual and spouse; see pp. 18-25 of Instructions.)
DATE SOURCE AND TYPE
n
1996-
-97
1996-
-97
1996
-97
1996
-97
NONE (No reportable non-investment income)
State of Geor2ia
Hall County
Dauson County
Hall County Board of Education (S)
GROSS INCOME
20,473
2,212
s
s
1467
FINANCIAL DISCLOSURE REPORT
Richard W. Story
9/18 /97
Q
REIMBURSEMENTS and GIFTS -- Iransponation, lodging, food, entertainment
(Includes those to spouse and dependent children; use the parcnthcticals '(S)" and '(DC)" to indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instructions.)
SOURCE DESCRIPTION
NONE (No such reportable reimbursements or gifts)
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and '(DC)' to
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.)
SOURCE ' DESCRIPTION
Q
NONE (No such reportable gifts)
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of the spouse, '{})' for joint hability of
reporting individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE'
n
NONE (No reportable liabilities)
Gainesville Bank & Trust (J)
Personal Loan
C-350O,COi-Sl.CCO,
P3-;2S, ceo. 001-550
pi-si.ooo,oci-:5,ooc.
L-CSO.CCI-SIOO.OCO M.S100.001-32SC,0OC N-S2£0 . 001 - SS CO , OCO
01-:25.C00,CCC
1468
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Richard W. Story
ite o( Report
9/18/^7
MI. Page 1 IWESTMENTS and TRUSTS -- Income, value, Iransactions (Includes Ihosc of spouse
and dependent children. See pp. 57-54 of Inslruclions.)
J..
Descnrticn cf ^sstzs
the asset bv\sir.c':^e"carer.thetical
-(Jl- for i=;n; cl-jrship of "oorc-
ir:= ir.div:n..l a-d sir-se, -ISl' for
separate o.r.ers.-.ir tv stluse. ■ IDCl •
for ownersr.ir by cerer^ient clild.
Place "iio; *;-:: ':=^'^^!'^
B
duri.ig
report i.-ig
period
C
Cross value
at er.d of
reportir.o
perioo
T.-a.-^sactior.s durir.o repcrti.-.o period
ID
(2)
ri.
(11
Value:
Code
(21
Value
Kethcd3
Code
buy. sell.
If not exe-rt fro- dlsrlosure 1
(21
Date;
Kc-th-
131
Value2
Code
Gair.:
(5)
Identity of
^'" .l\:'^'-\.\
NONE ISO reportable
tr«?.saitiOr.sr
.Residence - Harlem, Columbia
Co. .GA-Frl inp "Jmrv . F«;rs rp
L
W
None
-Common - Gainesville
''Rank anr! Tri'cr
A
Div.
J
W
None
"Common - Wal-Mart Store None
None
None
J
W
""Common-Resions Financial Co
A
Div
J
W
None
'Rental ProD.-Dean Street
D
Rent
K
W
None
Rent
K
W
None
'Note - Barnes D
Int
L
T
None
Account-Edward D. Jones
C
Int
K
T
None
'
10
M
12
n
-
-.5
1
16
1^
IB
ic^f'it:E,r"^ ?:no=5?i=fiir?o= l:lJ=?=5=l:.;?§oi:!5o^='--'^ i;:li^65onii?a.c,=.cco l£:cl:ii5;IH-ir.ore
'-' -■ miMm.^ti... mmmM^^~ ^^^-m^^.^:^—-
\^ ?iV - -^JJ-iJtle 5:i?t^r"- "-" "'" -Jtn-5 —---
H$
1469
FINANCIAL DISCLOSURE REPORT (cont'd)
Hare of Person Reporting
Richard W. Story
9 /I 8/97
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS andicate pan of Report.)
Part VII, 2-8 are all held in the nane of the Green Street Cliih. an invp■;rge^^ rl.,^> r.f .-p^-r.-
I was a member during the reporting norind. hni- from whirh t ;,m withdrawinr.
IX. CERTIFICATION.
I.T complii-.ce with the provision; of 28 U.S.C. § ^55 a.-.d of Advisor.- Opinion No. 57 of the Advisor.- Comminee on Judicid
Activities, and to the best of r:y knowlecie at the time after reisor.abie inquL-v, I did not perform any adjudicatoI^' function in anv litisa-.-cn
during the period covered by this repon m which I, my spouse, c: my minor or dependent children had a financial interest, asdefined in
Canon 3C(3)(c), in the outcome of such litigation.
I certify- that all information given acove (including information pertaimng to my spouse and minor or dependent children, if anv) is
accurate, true, and complete to the best of my knowledge and belief, and that any information cot reponed was withheld because ii't::»-
applicable statutory provisions permir.ing non-disclosure.
I further cenify that eaned income from outside employment and honoraria and the acceptance of gifts vihich have been reponed are
in compliance with the provisions of 5 U.S.C. A. app. 4, § 501 e:. seq., 5 U.S.C. § 7353 and Judicial Conference regulations.
Signature
ZS^
f//07
NOTE: ANY INDIVIDUAL WHO KMOWINSW AND i^ILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App. 4, § 104.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Adnunistraiive Office of the
United States Courts
Suite 2-301
One Columbus Circle, N.E..
Washuigion, D.C. 20544
1470
FINANCIAL STATEMENT
RICHARD W. STORY
NET WORTH
June 1, 1997
Provide a complets, cuircnt financial net worth statement which itemizes in detail
aU assets (including bank accounts, real estate, securides, trusts, invesonents, and oLher financial
holdings) all UabiHries (including debts, mongages, loans, and other financial obligations) of
yourself, your spouse, and other immediate members of your household.
ASSETS
^^^^^^^
UABIUnES
=
00
Ciih en hiTrd t-.i iz bids
4
000
00
Ndei F4>-»ble to b»nl3-Mcured |
1
0
Notej F*yiik to b*nkj-«aiesred
8
300
TJsstd (cc=n&n-tdd icbedule
0
Notes piyiile io rditJYei |
UlUisiii Kcriiec-iid ichr-' ;le
0
Nolej MN-iik to otten ]
1
1
Ac»uau ind nctei rscsivible:
0
Accoucti L-^ billi due {
1
Dim £ron rtUiv« trtd friends |
0
Unpud iasnt tix {
1
1
Dus from ts.-.ffi 1
0
Other uaitid lu lad ir/jrcjt |
!
DC.C..
0
RuJ eitiu ccnjtjei ptyUrle-kid
tdteditje
265
20
00
ReiJ eiiiLc o*Tj^-Ldi leheiale
300
000
00
C-oce: scr^jijes ud other liers fiy-
ihle
12
(DO
CD
1 Reii a-M£ rr.cr^«iu reiclvible
Other detu-i'"''"'- | | |
Alxj t-.d olSc pcrv:ci] prepcTv
75
DOO i)0
Credit cards - consumer
18 I75O
00
Cue viJue-liis i.-xi.-i.-.a
! .1 1
1 CHher usea-iisrrJzr:
1 1 1
Green St. Club-investment club
6
!33 00
1 ' 1 1
(Balance sheet attached)
1
ToCll VaV^lif'"*
304
970
00
NetWonh
81
263
i00
ToUl AsieU
386
233
DO
Toul liibuinei led nci worth
386
233
00
j CO^TI^■GH:M■ UABIUTIES
NONE
Ce?<ZRAL IWORMATION
1
Ai esdoner. csmiicr or {uarutoc
Are toy tuca ^edgetf? (Add iched-
ole.)
Yes
On kmn or ccanc'j
~
Are yoQ iclcsdant. in any loiu or lejal
tcccns?
No
P Lcgil CUinu
—
1 Hive you ever tilea b3=kn.7<cy?
No
1
Pra»uioo tor Fodt-iJ Income Tti
1-
1
1 Other jpecUJ <iebt
~
L.
1 1
1 ' —
Attachment "X"
1471
GREEN STREET CLUB
BALANCE SHEET
AT FAIR MARKET VALUE
MARCH 31. 1997
Balance at
Write Up
March 31, 1997
(Down)
ASSETS
Current Assets:
Fair Market Value
at March 31 1997
Edward D. Jones
$
36,031 63
-
36.031 63
Gainesville Bank & Trust
2.26327
-
2.263.27
Stock - Gainesville Bank & Trust
2,000.00
2,500 00
4,500.00
Stock - Wal-Mart Stores
3,195.70
(295.70)
2.900.00
Stock - Regions Financial Co
2,168.95
2,277.05
4.446.00
Total Current Assets
45,659.55
4.481.35
50,140.90
Property & Equipment:
Dean Street Land
Dean Street House
Dean Street Equipment
Richardson Street Land
Richardson Street House
Accumulated Depreciation
Total Rental Property
Other Assets:
N/R - Chicopee House
Total Other Assets
TOTAL ASSETS
5,000.00
-
S.000.00
24,836.50
-
24.836.50
560.00
-
560.00
2,000.00
-
2.000.00
36.366.00
-
36.366,00
(19.079.15)
19,079.15
-
49,683.35
19,079.15
68.762.50
59.857.43
59.857.43
59,857.43
-
59.857.43
155,200.33
23,560.50
178.760.83
LIABILITIES:
Deferred Gain on Sale of Home
N/P - Gainesville Bank & Trust
Total Liabilities
PARTNERS' EQUITY:
Partners' Capital
TOTAL LIABILITIES & PARTNERS' EQUITY
EACH PARTNER'S 1/8 SHARE OF CAPITAL
21.719.39
85.553.50
47.927.44
4.564 00
4,564.00
21,719.39
85.553.50
6,561.43
95% OF EACH PARTNER'S 1/8 SHARE OF CAPITAL
6.233.36
1472
REAL ESTATE SCHEDULE
Residence in Hall County, Georgia
REAL ESTATE MORTGAGE SCHEDULE
SunTrust Bank $178,329.00 Balance
SunTrust Bank $67,991.00 Balance
Gainesville Bank & Trust $19,000.00 Balance
PLEDGED ASSETS SCHEDULE
Residence - Hall County, GA
1995 Ford Windstar
1473
111. 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 mstances and the amount of time devoted to each.
\Miile practicing law, I was a volunteer attorney for the Hall County Pro Bono
Program and served on the Pro Bono Committee for the local bar. I also did
volunteer legal work for various local civic organizations including the Girls Club,
Pro Musica and Jaycees. I have participated in numerous community service projects
through the Jaycees and United Way. I helped lead the efforts which resulted in the
acquisition of a new facility for the Gainesville-Hall County Girls Club. This work
included a substantial capital fund drive and design and renovation of the New
Holland Recreation Center for the club. I have been an active member of
Gainesville First United Methodist church since 1978 and have worked in the various
programs and ministries of the church. Since 1990, 1 have coached youth girls'
basketball. The last two years I have also coached boys' clinic basketball and T-ball.
The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in an) organization that
invidiously discrimmates on the basis of race, sex, or religion. Do you currently belong,
or ha\e you belonged, to an\ organization which discriminates — through either formal
membership requirements or the practical implementation of membership policies? If
so, list, with dates of membership. WTiat have you done to try to change these
policies?
I am a member of Delta Tau Delta and Gridiron which are social fraternal
organizations at LaGrange College and the University of Georgia, respectively. I was
a member of the Jaycees from 1978 until 1988. In 1985, when serving as state legal
counsel for the Georgia Jaycees, I drafted and proposed amendments to the bylaws of
that organization which opened membership to women. Those bylaw amendments
were adopted and women were admitted to the organization. I am a member of the
Gainesville Rotary Club. I was first invited to join the club in the Iatel980's. At that
time, the club admitted only men into its membership, and I declined the invitation
because of this policy. Less than a year later, the club amended its bylaws and
admitted women. Shortly thereafter, I was invited to join Rotary and accepted the
invitation.
25
1474
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).
Yes. Yes. Senator Max Cleland named a fourteen member committee to review
applicants for this position and to recommend up to five qualified applicants to him.
I submitted an application and writing sample to that committee. I appeared before
the committee for a personal inter\'iew and was one of five persons recommended by
the committee to Senator Cleland. I had a personal interview with Senator Cleland
and was selected by him for recommendation to the President. Since the
recommendation, I have been interviewed by attorneys with the Justice Department,
Agent Wayne Martin of the Federal Bureau of Investigation and Sylvia Walbolt of
the American Bar Association's Standing Committee on Federal Judiciary.
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 judiciar) within the Federal government, and within societv
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;
26
1475
c. A tendency by the judiciar)' to impose broad affirmative duties upon
government and society;
d. A tendency by the judiciar) toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciar)' to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
The role of the judiciary is to resolve the disputes of litigants properly
before the Court. A judge must make decisions based on the facts as
they are proved and the applicable law. Judges are bound by judicial
precedent and legislative enactments controlling the issues before
them. The separation of powers doctrine contemplates separate and
distinct roles for each branch of government.
27
1476
UNITED STATES SENATE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1 . Full name (include any former names used):
Christine Odell Cook Miller; Christine Cook Nettesheim; Christine Odell Cook.
2. Address: List current place of residence and office address.
Washington, DC 20(X)7; U.S. Court of Federal
Claims, 717 Madison Place, N.W., Washington, DC 20(X)5.
3. Date and place of birlh: August 26, 1944; Oakland, CA.
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business addresses).
Married. Dennis F. Miller, self-employed, President, Science and Technology
International, Inc.. 1535 28th Street. N.W., Washington, DC 20007; Lt. Col.,
U.S. Army Reserves.
5. Educapon: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
Undergraduate: Stanford University, Stanford, California
1962-1966; B.A. PoUUcal Science, June 12, 1966;
Law School: University of Utah College of Law. Salt Lake City, Utah, 1966-
1969; J.D, June 6. 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, or, proprietor, or employee since graduation
from college.
1477
1) Summer 1967 — Law Clerk to Leo M. Cook. Esq. (father)
P.O. Box 418
Ukiah, CA 95482
2) June 1969-June 1970 - Clerk to Honorable David T. Lewis
Gater Chief Judge)
United States Court of Appeals for the Tenth Circuit
4201 Federal Building
Salt Lake City, UT 841 11
3) August 1970-May 1971 - Trial Attorney
U.S. Department of Justice
Foreign Litigation Unit
Civil Division
10th & Constitution Ave., N.W.
Washington, DC 20530
4) May 1971-April 1972 - Trial Attorney
U.S. Department of Justice
Court of Claims Section
Civil Division
10th & Constitution Ave.. N.W.
Washington, DC 20530
5) April 1972-February 1974 -- Trial Attorney
Federal Trade Commission
Bureau of Consumer Protection
Division of National Advertising
6th & Pennsylvania Ave., N.W.
Washington, DC 20580
6) February 1974-March 1976 — Associate, Litigation
Hogan & Hartson
555 13th St.. N.W.
Washington, DC 20005
7) March 1976-November 1978 -- Special Counsel
Pension Benetit Guaranty Corp.
1200 K St., N.W.
Washington, DC 20005
1478
8) November 1978-March 1980 - Assistant General Counsel
U.S. Railway Association
955 L'Enfant Plaza North. S.W.
Washington, DC 20595
9) March 1980-January 1983 - Associate (Partner Jan. 1983)
Shack &KiinbaU, PC.
1129 20th St.. N.W.
Washington, DC 20036 (firm dissolved; current address)
Thomas G. Shack, Jr., P.C.
1150 Connecticut Ave., N.W., Suite 900
Washington, DC 20036
10) January 1983-present - Judge
United States Court of Federal Claims
7 1 7 Madison Place, N.W.
Washington, DC 20005
1 1) March 1996-Prcsent ~ Board of Governors
March 1997-Present - Assistant Secretary
University Club of Washington, DC
1135 16th Street, N.W.
Washington, DC 20036
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 never had any military service.
Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Comment Editor and member of the Board of Editors of the Utah Law Review:
Order of the Coif; Reginald Heber Smith Fellowship (fiall scholarship 1968 and
1969); Co-founder and Vice-President, George Washington American Inn of
Court.
1479
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.
I am currently a member of the California State Bar Association and the Bar
Association of the District of Columbia. I was a member of the Utah State Bar
Association and the American Bar Association. I have been a member of the
ABA's International and Litigation Sections and participated in symposia for the
International Section in connection with the Iranian representation.
10. Other Memberships: List all organizations to which you belong that arc active
in lobbying before public bodies. Please list all other organizations to which you
belong.
I do not belong to any organizations that lobby. I belong to the University Club
of Washington, DC.
1 1 . 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 State of California, June 10, 1982;
District of Columbia Court of Appeals, Apr. 17, 1972;
Utah Supreme Court, Sept. 30, 1969:
United States Supreme Court, Aug. 8, 1980;
United States Court of Claims, May 6, 1971;
United Stotes Court of Appeals for the Third Circuit, Feb. 16. 1982;
United States Court of Appeals for the Fifth Circuit, Oct. 1, 1981;
United States Court of Appeals for the Tenth Circuit, Dec. 8, 1969;
United States Court of Appeals for the Eleventh Circuit, Oct. 1, 1981;
United States Court of Appeals for the District of Columbia Circuit, Dec. 12,
1980.
I have also been admitted to other federal courts of appeal and various federal
district courts throughout the United States, the records of which I do not have
readily available.
1480
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.
Note, Warrant Procedure Applicable to Municipal Code-Enforcement
Inspections of Private Dwellings and Commercial Structures, 1967 UTaH L.
Rev, 589, I have no copies of speeches. Please see attached list of cases.
13. Health: What is the present State of your health? List the date of your last
physical examination.
My health is excellent. I had a physical examination on October 13. 1997.
14. JiiHicial Office- State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a £ie£cription of the
jurisdiction of each such court.
I am currently a judge on the United States Court of Federal Claims . The
court's jurisdiction encompasses Fifth Amendment takings, patent and copyright
claims, government contracts, suits for tax refunds. National Cluldliood Vaccine
Injuiy Act appeals. Native American claims, and military and civilian pay cases.
15. Citations: If you arc 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.
(I) Citations for ten most ?;ipnificant opinions:
International Business Machines Corp. v United States. 1997 WL 456656 (Fed.
CI., Aug. 8, 1997);
InOaw Inc v. United .States. 1997 WL 433804 (Fed. CI.. July 31, 1997);
GraphicData T-LC v TlniteH ■<;tatffs 37 Fed. CI. 771 (1997);
1481
Tyger Const. Co., Inc. v. UniteH States, 31 Fed. CI. 177 (1994);
TTT Corp V United States, 17 CI. Ct. 199 (1989);
Universal Life Church. Inc. v United 55tate.<i 13 CI. Ct. 567 (1987);
Neptune Mut Ass'n Ltd v United States 13 CI. Ct. 309 (1987);
Johns-Manvilie Corp v. United States. 13 CI. Ct. 72 (1987);
White Mountain Apache Tribe v. United States. II CI. Ct. 614 (1987);
Missouri Pacific Tn.ck Lines, Inc v. United States. 3 CI. Ct. 14 (1983);
(2) Rever.sals and criticisms
Bakery United States No. 96-5134, 1997 WL 632044 (Fed. Cir. Oct. 15,
1997). Air Force lieutenant colonels claimed that their selection for retirement by
Selective Early Retirement Board violated their constitutional right to equal protection
because the charge to the board amounted to a racial classification favoring women and
minorities. The United States Court of Federal Claims ruled that the charge used was
not a racial classification. The Federal Circuit vacated the judgment because the Air
Force affiant, who had averred that an offensive charge was not used, recanted his
affidavit while the matter was on appeal.
Preseault v United States. 100F.3d 1525 (Fed. Cir 1996). Owners of property,
subject to the Rails-to-Trails Act, souglit compensation fiom the United States under the
Fifiai Amendment for alleged taking of their land, based on conversion of railroad right-
of-way into public recreational trail. The Court of Federal Claims found in favor of the
Government and held that plaintiffs' reversionary interest in former railroad right-of-way
did not constitute a compensable property interest, precluding relief on their claim that
the Govenunent took their property without just compensation. On rehearing en banc,
the Federal Circuit reversed and remanded, holding, inier alia, that the Government
engaged in a taking of owners' property by approving the state's lease of former railroad
easement to a city for conversion to trail.
Lake Pleasant Group v. United States, 79 F.3d 1 166 (Fed. Cir. 1996) (Table).
Lake Pleasant Group (LPG) sought compensation for an alleged taking of its property in
violation of the Takings Clause of the Fifth Amendment. The Bureau of Reclamation
deiucd LPG's application for a right-of-way to connect its land-locked parcel to the public
road. LPG then brought suit in the Court of Federal Claims, claiming that the Bureau's
action deprived it of its property without just compensation. The Court of Federal Claims
granted suimnary judgment for the United States, after concluding on three separate
grounds that LPG's claim to an easement failed to assert a compensable property interest.
Each groimd was based on the factual issue of whetlier adequate compensation under the
New Mexico- Arizona Enabling Act was paid for LPG's easement property interest. The
1482
Federal Circuit held that LPG must be given the opportunity to prove at trial that it
possessed a comTnon law casement by necessity and that it was not adequately paid for
the easement property interest.
Branch v United States 69 F.3d 1571 (Fed. Cir. 1995). Chapter 7 trustee of
debtor-bank holding company, on behalf of one of the holding company's banks, brought
suit against the Government asserting that the cross-guaranty assessment provisions of the
Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) had resulted in
a taking without just compensation in violation of Fifth Amendment. The Court of
Federal Claims denied cross-motions for summary judgment, but ruled for plaintiff on
liability to the effect that the cross-guaranty provision of FIRREA could constitute a
taking. The Federal Circuit held that the application of the cross-guaranty provision of
FIRREA did not result in a prohibited taking of property under Fifth Amendment, even
though the assessment resulted in the bank's insolvency and seizure by the Government.
Creppel v. United States. 41 F. 3d 627 (Fed. Cir. 1994). The Federal Circuit
reversed that portion of the Court of Federal Claim's grant of sununaiy judgment in a
Fifth Amendment takings claim, which barred plaintiffs' pcmianent takings claim. The
gravamen of the appellate decision was that the trial court had erred in its interpretation
of certain factual events fixing the date on which the permanent takings claim accrued
Applegate v. United States. 25 F.3d 1579 (Fed. Cir. 1994). The Federal Circuit
held that a decision dismissing plaintiffs' Fifth Amendment takings claim because the
statute of limitations had expired was erroneous In cases of alleged taking by continuous
process, the statute of limitations is tolled until the owner can ascertain the extent of
damage. In the instant litigation, the Govemment's promise of a sand transfer to prevent
beach erosion caused sufficient uncertainty to toll the statute of limitations.
Wilner v. United States. 24 F. 3d 1397 (Fed. Cir. 1994) {en banc). The Federal
Circuit vacated the Court of Federal Claim's opinion awarding damages on a government
contractor's claim for government-induced delay compensation brought pursuant to the
Contract Disputes Act. It was reversible ciTor for the trial court to have accepted the
contracting officer's adoption at trial of his reasons in his decision letter, rather than
reviewing the contracting officer's factual findings de novo, as mandated by the Contract
Disputes Act.
Transamerica [ns Cnrp v United States. 973 F.2d 1572 (Fed. Cir. 1992). The
Federal Circuit reversed a decision dismissing a government contractor's complaint for
lack of subject matter jurisdiction. The trial court had stated in a bench ruling that the
contractor's alleged claim was insufiicient because no request had been made for a final
decision by the contracting officer, "as required by the Contract Disputes Act. In the
1483
alternative, the trial court ruled that the alleged claim was improperly certified. In its de
novo review, the appellate court found that while the contractor had not requested
explicitly a final decision, it had submitted sufficient material to indicate that it was
seeking implicitly a final decision. Additionally, the appellate court ruled that, even
thojigh the certification may not have complied precisely with the Contract Dispute Act's
requirements, it complied substantially.
Sawverv United States. 930 F.2d 1577 (Fed. Cir. 1991). The Federal Circuit
reversed a grant of summary judgment awarding plaintiff disability benefits and
correcting his military records to indicate a medical discharge. This decision was based
on a determination that the United States Claims Court had restricted the authority of the
civilian correction board to reweigh the evidence before a disability panel.
Craft Machine Works Inc v United States. 926 F.2d 11 10 (Fed Cir. 1991). In a
de novo review of the Claims Court's interpretation of a contiact preference clause, the
Federal Circuit determined that the Dial court had misinterpreted the meaning of the word
"supplies."
Johns-Manville Corp v. United States. 893 F.2d 324 (Fed. Cir 1989). The Claims
Court ruled that it had the authority to award costs in a case that had been dismissed for
lack of subject mattei jurisdiction. The Federal Circuit reversed on the ground tliat the
Claims Court was not included in a statute authorizing certain other courts to award costs
in cases dismissed for lack of subject matter jurisdiction. Consequently, the conunon law
rule — prohibiting an award of costs in cases dismissed for lack of subject matter
jurisdiction ~ applied.
Neptune Mut Ass'n T.td v United States. 862 F.2d 1546 (Fed. Cir. 1988). The
Federal Circuit afOrmed the majority of the Claims Court's opinion gianting summary
judgment where the court construed overlapping portions of the Internal Revenue Code
and held that a foreign insurer was liable for federal excise tax. The appellate coujt
vacated that portion of the opinion holding that certain government claims were barred by
the statute of limitations.
Voge v. United States. 844 F.2d 776 (Fed. Cir. 1988). In an opinion affinning that
portion of an order awarding a military doctor additional pay based on a confession of
judgment and vacating that portion denying plaintiffs claim to amend her military
records, the Federal Circuit ruled that the trial court had exceeded its jurisdiction to
consider the latter. The appellate court held that the Claims Court may only review the
military's administrative decisions for potential procedural violations, which had
occurred.
1484
Watstein v. T Jnited States 837 F.2d 1096 (Fed. Cir. 1987) (unpub.). Plaintiff
applied for relief to a civilian correction board, claimiiig that he was commissioned as a
second lieutenant after attending officer's training school, but was thereafter unlawfiilly
decommissioned. After the board denied relief, plaintiff sought review of that
administrative decision in the Claims Court, five and one-half years after he was
discharged and approximately six and one-half years after he became aware of the facts
which were the basis for his claim. On cross-motions for summary judgment, the Claims
Coim rejected the Govenmient's defense of laches because tiie affidavits supporting it
were submitted with defendant's reply brief, but held that the board had not erred. The
Federal Circuit determined that, regardless of the merits of the case, the Claims Court
misapplied the initial defense of laches, because a delay of six or more years is
presumptively injurious and therefore prejudicial. The Federal Circuit remanded the case
to reconsider the defense of laches.
Haber v. United States. 831 F.2d 1051 (Fed. Cir. 1987). The Claims Court
dismissed a foreign taxpayer's suit seeking a refiind based on having paid already certain
foreign taxes. The Federal Circuit held that the taxpayer could have reasonably believed
in a statement by an IRS agent orally withdrawing a notice of disallowance.
Consequently, the subsequent issuance of a notice of disallowance five years later served
to set the date upon which the two-year statute of limitations began to run. The case was
remanded.
Hilo Coast Processing Co. v. United States. 816 F.2d 629 (Fed. Cir. 1987).
Hawaiian sugar processors and their cooperative refining and marketing association
challenged the Department of Agriciilture (DOA) denial of coverage to part of their 1977
sugar crop under a price support payment program. On cross-motions for summary
judgment, the Claims Court held that DOA's refusal to amend regulations providing for
price support payments to growers of cane and beet sugar was rational. The Federal
Circuit reversed and remanded for appropriate instructions to the Secretary of DOA.
holding: (1) internal transfer of raw sugar to refinery operations constituted "marketing,"
so diat plaintiflFs were eligible for the payment program, and (2) plaintiffs had been
singled out for special and seemingly unfair treatment.
Kirchdorfer v United States. 795 F.2d 1010 (Fed. Cir. 1986) (Table). Contractor
brought action on contract to maintain Air Force family housing units. The Claims Court
held for defendant on cross-motions for partial summary judgment. The Federal Circuit
summarily reversed, finding that defendant had not disputed plaintiffs factual issues, and
remanded for determination of amount of damages.
White Mountain Apache Tribe v. United States. 776 F.2d 1063 (Fed. Cir. 1985)
(Table). Indian tribe brought action against the Government alleging claims for
1485
nusmanagement of water resources, grazing land, and tiinber. The Claims Court held that
(1) tribe's action was subject to dismissal with prejudice due to its disobedience of court's
orders, and (2) nevertheless, judgment would be entered in tribe's favor for S 1 0 million,
which was approximately three fourths of the amount originally offered by the
Govermnent in setdement. After the tribe agreed to comply with the trial court's order,
the Federal Circuit summarily vacated and remanded.
Citv of Alexandria v United States 737 F.2d J 022 (Fed Cir. 1984). In a breach
of contract action, the appellate court reversed the Claims Court's decision holding that a
statute authorizing the Government to enter into land sale deals for the disposal of surplus
land with a state or subdivision of a state was either facially unconstitutional or
unconstitutional as applied because Congress' prior approval before the agency made its
decision violated the separation of powers doctrine. Having fouind the statute at issue
constitutional, the appellate court held that no implied-in-fact contract existed and that
the Government was not estopped from raising the defense of nonexistence of contract
(3) Cases on .significant constitutional issues:
Tnslaw Tnr. v United States 1997 WL 433804 (Fed. CI , Jul 31, 1997),
Pleasant Country. Ltd. v. United States. 37 Fed. CI. 321 (1997);
J & E Salvage Co v United States 36 Fed. CI. 192 (1996);
Seldovia Native As.s'n. Inc v. United States 35 Fed. CI. 761 (1996);
Baker v. United States. 35 Fed. CI. 749 (1996),
Applegate v. United States. 35 Fed. CI. 406 (1996);
Davis v United States. 35 Fed. CI. 392 (1996),
Avenal v. United States. 33 Fed. CI. 778 (1995), affd. 100 F.3d 933 (Fed. Cir.
1996).
Creppelv United States. 33 Fed. CI. 590 (1995);
Scopin V. United States. 33 Fed. CI. 568 (1995);
Scogin v United States. 33 Fed. CI. 285 (1995);
City Nat Bank of Miami v. United States 33 Fed. CI. 224 (1995);
Lake Pleasant Group v. United States. 32 Fed. CI. 429 (1994);
Branch on Behalf of Maine Nat. Bank v. United States. 31 Fed. CI. 626 (1994),
rev'd. 69F.3d 1571 (Fed. Cir. 1996);
Creppel v. United States. 30 Fed. CI. 323, affd in part and rev'd in part. 41 F.3d
627 (Fed. Cir. 1994),
Uintah Ute Indians of Utah v. United States. 28 Fed. CI. 768 (1993);
Applegate v. United States. 28 Fed. CI. 554 (1993), rev'd. 25 F.3d 1579 (Fed. Cir.
1994);
Perry v. United Slates 28 Fed. CI. 82 (1993);
Aide. S.A v United States. 28 Fed. CI. 26 (1993);
10
1486
Richmond Fredericksburg and Potomac R R. Co v United States. 27 Fed CI. 275
(1992). afPd 75 F.3d 648 (Fed. Cir. 1996);
Preseault v United States. 27 Fed. CI. 69 (1992), rev'd. 100 F.3d 1525 (Fed. Cir.
1996);
ConrnionweaJth of Kentucky. Natural Resources and Envirorunental Protection
Cabinet v United States. 27 Fed. CI. 173 (1992);
Tabb Lakes. Tnc v United States. 26 CI. Ct. 1334 (1992). afU, 10 F.3d 796 (Fed.
Cir. 1993);
Marrero Land & Imp Ass'n. Ltd v United States 26 CI. Ct. 193 (1992);
Preseault y. United States. 24 CI. Ct 818 (1992);
Scope Kntcrprises Ltd v United States. 18 CI. Ct. 875 (1989);
ITT Corp. V. United States. 17 CI. Ct. 199 (1989);
Keene Corp v. United States. 17 CI. Ct. 146 (1989), affd sub nom. UNR Indus.
Inc. V United States. 962 F.2d 1013 (Fed. Cii". 1992), cert, granted sub nop;i.
Keene Corp v. United States. 506 U.S. 939 (1992). aflji, 508 U.S. 200 (1993);
Murray v United States. 15 CI. Ct. 17, afTd 864 F.2d 148 (Fed. Cir. 1988);
O'Connell v United States. 14 CI. Ct. 309 (1988);
Keene Corp. V- United States. 12 Ci. Ct. 197 (1987). afTd sub nom. Johns-
Man ville Corp V. United States. 855 F.2d 1556 (Fed. Cir. 1988);
Johns-ManviHe Corp. v. United States. 12 CI. Ct. 1 (1987),
Dwverv United States. 7 CI. Ct. 565 (1985);
Anderson v. United States. 7 CI. Ct. 341 (1985);
Jarboe-Lackey Feedlots. Inc. v. United States. 7 CI. Ct. 329 (1985);
Augusta Towing Co Tnc v United States. 5 CI. Ct. 160 (1984);
Bettini v. United States. 4 CI. Ct. 755 (1984);
Morton Thiokol. Inc. v. United States. 4 CI. Ct. 625 (1984); and
City of Alexandria v. United Stotes. 3 CI. Ct. 667 (1983), rev'd. 737 F.2d 1022
(Fed. Cir. 1984).
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.
I have not held any public office, nor run for elective public office.
17. Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school including:
11
1487
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;
June 1969-Junc 1970 - Clerk to Honorable David T. Lewis (later Chief
Judge), United States Court of Appeals for the Tenth Circuit, 4201
Federal Building, Salt Lake City, UT 84111 .
2. whether you practiced alone, and if so, the addresses and dates;
I have not 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;
August 1970-May 1971 - Trial Attorney
U.S. Department of Justice
Foreign Litigation Unit
Civil Division
10th &. Constitution Ave., N.W.
Washington. DC 20530
Worked under Unit Chief processing requests for international judicial
assistance.
May 1971-April 1972 - Trial Attorney
U.S. Department of Justice
Court of Claims Section
Civil Division
10th & ConsdtutJon Ave., N.W.
Washington, DC 20530
Worked alone.
Primary responsibility for defending at trial and on appeal 17 cases in the Court
of Claims Section of the Civil Division. These cases were military and civilian
procurement building and service contracts disputes; federal back-pay claims;
and Congressional reference cases.
Argued successfully all appeals before that fiill Court of Claims.
12
1488
Won Congressional reference trial that produced the most significant
federal laches law in decades.
Won summary judgment on $25 M back-pay case involving Immigration and
Naturalization Service. Representation extended to preparation for trial,
including depositions and discovery of records relating to 160 plaintiffs over six
years, who were located in various jurisdictions.
April 1972-February J 974 -- Trial Attorney
Federal Trade Commission
Bureau of Consumer Protection
Division of National Advertising
6th & Pennsylvania Ave., N.W.
Washington. DC 20580
Worked as second in command or supervised up to two other attorneys.
Primary responsibility for investigating, briefing and trying only case brought
during my tenure that the Commission prevailed on at the appellate level This
was also the first case brought under the "ad substantiation program," whereby
advertisers were required to maintain documented substantiation for their claims.
Primary responsibility for the Commission's investigation into cosmetics
advertising, which involved close liaison with dermatologists, other physicians,
medical schools, and the Federal Drug Administration.
Primary responsibility for settling the Hawaiian Punch case. The settlement
resulted in the first so-called "corrective advertising" agreed to by a respondent.
Secondary responsibility for investigating, briefing and trying the Commission's
analgesics case against Sterling Laboratories (Bayer, Cope, Midol & Vanquish).
I also prepared for trial and assisted in settling the case against Sterling involving
claims for Lysol. Both cases required development of expert witness testimony
in medicine, biochemistry, microbiology, hospital science, psychology and
psychiatry.
Primary responsibility for bringing case to halt children's vitamin advertising,
which resulted, before discovery, in advertisers' voluntary withdrawal of all
advertising.
February 1974-March 1976 — Associate, Litigation
Hogan & Hartson
555 13th St., N.W.
Washington, DC 20005
Worked under partners or alone.
13
1489
Primary responsibility for prosecuting stockholders' derivative suit that involved
many M.D. investors in Washington Medical Center, Inc., which held parcels of
valuable commercial real estate in downtown, D.C. I drafted complaint;
arranged for service of all process; drafted all pleadings relating to discovery,
including interrogatories and answers; conducted depositions of Price
Waterhouse partner and other accountants; chaired all plaintiffs' documentary
examination; drafted a successful opposition to motion to dismiss; argued
motions in federal district court; and worked on setdement favorable to
plaintiffs.
Primary and secondary responsibility for defense work of New York Insurance
Co., Home Insurance Co., and Prudential Insurance Co., including all phases of
trial work and post-trial relief. I assisted in defending a jury trial brought by a
plaintiff claiming injury due to birth control pills; I drafted a motion for new
trial after the firm was retained to upset an $8 M verdict (at the time, the largest
persona] injury verdict); I drafted and argued summary judgment motions in
coverage cases.
Secondary responsibility for bringing partnership dissolutions.
Primary responsibility for sujjcrvising private auditors conducting audits of
AMTRAK.
Secondary responsibility for motions practice generated by Chrysler
Corporation.
March 1976-November 1978 — Special Counsel
Pension Benefit Guaranty Corp.
1200 K Street, N.W.
Washington, DC 20005
Supervised up to seven other attorneys at any one time.
Initial responsibility for establishing litigation capability at the then new PBGC.
Directed defense of all cases (after I joined) brought against the agency in
federal district courts throughout the United States. Initially, tliese cases
involved the constitutionality of PBGC's enabling legislation, the Employee
Retirement Income Security Act of 1974. I drafted and argued motions and
briefs at the federal trial and appellate levels.
Responsibility for bringing and defending cases in district and bankruptcy courts
involving the PBGC's plan termination insurance coverage. I drafted or
reviewed all papers filed in the 12-15 cases I handled at any given time. I
appeared in federal district courts in support or defense of complaints and
discovery requests, as well as pretrials and trials. I argued a case in lower court
and briefed a case before the Seventh Circuit that resulted in the first trial and
appellate decisions favorable to the PBGC.
14
1490
Represented the PBGC in all EEO claims brought against the agency.
November 1978-March 1980 - Assistant General Counsel
U.S. Railway Association
955 L'Enfant Plaza North, S.W.
Washington, DC 20595
Supervised up to five other attorneys and up to ten paralegals at any one time.
Primary responsibility for defending $450 M claims brought by four bankrupt
railroads (the Reading, Lehigh Valley, North Pennsylvania, and Peoria &
Eastern) under the Regional Rail Reorganization Act of 1973. The cases were
tried before the Special Court (Friendly, Wisdom, Thomsen, J.J.), created by
the Act. The cases were companions to seven others, including Penn Central,
aggregating over $8 B in claims.
The Special Court has adopted rules patterned on the Rules for Multi-district
Litigation, because the cases together constituted the largest civil suit in the
United States, designation of nine depositories was required to implement
documentary discovery, and the litigation spans the Northeast. The U.S.R.A.
alone had 500,000 documents computerized on LEXIS and maintained in its
depository a much greater number of documents.
The rules provided for trial by written testimony of the value of claimants'
properties for continued rail use. My team completed discovery and cross-
examination of over 20 expert and other witnesses proffered on behalf of those
claimants against which we defended. We also prepared and submitted expert
rebuttal testimony.
March 1980-January 1983 -- Associate (Partner Jan. 1983)
Shack & Kimball, P.C.
1 129 20th Street, N.W.
Washington, D.C. 20036 (firm dissolved; current address)
Thomas G. Shack, Jr., P.C.
1150 Connecticut Ave., N.W., Suite 900
Washington, DC 20036
Supervised up to three attorneys and paralegals in office and 20 local counsel
throughout the United States.
Primary responsibility for two plaintiffs' cases in federal court in the District of
Columbia seeking recovery of Iranian financial assets and real property.
Primary responsibility under Thomas G. Shack, Jr., for defending the
Government of Iran in litigation involving Iranian assets in all jurisdictions other
15
1491
than New York and Massachusetts. Over 40 cases were pending in the District
of Columbia alone, which required oral argument at least once a week for over a
year.
° Responsibility for coordinating defenses in my jurisdictions. I drafted pleadings
for litigation throughout the U.S. in district courts involving sovereign immunity
and other defenses under the Foreign Sovereign Immunities Act. I argued these
matters— predominantly in the District of Columbia.
3 Responsibility for monitoring over 200 cases. I acted as liaison with U.S.
Government representatives.
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 was civil litigation since May
1971, when I began working as a trial attorney in the Court of Claims
section of the Civil Division of the Department of Justice.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
While I worked for the U.S. Government and its agencies, my clients
were the U.S. Government and its agencies. In private practice with
Hogan & Hartson, I worked for major corporations, as well as private
individuals. While practicing with Shack & Kimball, my principal client
was the Islamic Republic of Iran and its governmental entities. I did not
specialize within the general area of civil litigation.
c. 1. Did you appear in court frequently, occasionally, or not at all? If tlic
frequency of your appearances in court varied, describe each such
variance, giving dates.
I appeared in court regularly before becoming a judge.
2. What percentage of these appearances was in:
(a) federal courts - 85%
(b) state courts of record - 5 %
(c) other courts - 10%
3. What percentage of your litigation was:
(a) civil - 99%
(b) criminal - 1 %
16
1492
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.
Before becoming a judge, I did not try any case to judgment. However,
this is not indicative of my trial experience, as I have tried many cases up
to the point of judgment and accomplished highly favorable settlements in
the trial process. Moreover, I handled a number of appellate matters (not
having been involved in the trial phase) and participated through judgment
in many cases not tried, but, rather, determined on dispositive motions.
5. What percentage of these trials was:
(a) jury - 0%
(b) non-jury - 1(X)%
18- I-itigatinn- Describe the ten most significant litigation 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.
In listing the ten cases. I did not have some of the particulars called for, because they
are not available to me at this time. 1 held litigation positions with five other offices
and have not been able to remove case files I worked on in these successive positions.
The following are listed in reverse chronological order:
1) Tom Aeima et a1 v TTnifed States Nos. 259-70; 292-70; 349-70; 458-70 (Ct.
CI.), 202 Cl. CI. 206, 479 F.2d 1356 (1973), ssiL dfiaisd. 416 U.S. 905 (1974).
This was the major case I handled alone in the Court of Claims Section of the Civil
Division of the Department of Justice, which was a S25 M suit for back-pay under
various federal statutes involving the Immigration and Naturalization Service and the
United States Customs Service, principally, 19 U.S.C. § 9267. The significance of
this case is that it was a unique back-pay case, not decided under the usual statutes and
regulations for federal employees, and required a legal and factual analysis of first
impression as to whether the work of INS inspectors began on Sundays and whether
17
1493
they were, therefore, entitled to double pay for that work. I developed the theory of
the case, conducted pre-trial, and left the Department after drafting the dispositive
motion, which was eventually decided in the United States' favor.
a) 1971-1972;
b) United States Court of Claims;
c) Robert C. Baxlcy, Esq., 1059-lOth Ave., San Diego. CA 92101, 714/236-1144.
2) McQuown V. United States, Cong. Rcf. Case No. 2-70 (1972).
This was a Congressional reference back-pay case which was significant insofar as it
established a new standard of laches claimed by the U.S. Govemmenl. I tried the
case alone and won a defense verdict.
a) 1971 - 2 days;
b) Trial Judge David Schwartz;
c) Thurman Bishop, Esq., Mays & Richey. 212 Oak Ave., Greenwood, SC 29646,
803/223-8511.
3) Tn the Matter of Fedders Corp v. FT C. FTC Docket No. 9932, 529 F.2d 1398
(2d Cir.), cen. denied, 429 U.S. 818 (1976).
This was a case noteworthy in that it was the first case brought against a U.S.
corporation to test the 'ad substantiation program" of the FTC. As chief counsel, I
handled the case development from investigation through trial. Although the
Commission's decision on remedy was modified on review, liability was upheld.
a) 1972- 2 days;
b) No record of name of judge;
c) Sydney B. Wertheim, Esq., Weisman, Cellcr, Spett, Modlin & Wertheim, 150
East 58th St., New York, NY 10155, 212/371-1492.
4) Tn re Sterling Analgesics. FTC Docket No. 8919.
This was the major analgesics investigation concerning Bayer, Cope, Midol, and
Vanquish, commenced against Sterling Drug Company. The matter was litigated, but
I did not participate in the trial, which postdated my employment with the
Commission. 1 list the case because the matter represents a massive amount of
investigative work in which I participated as associate counsel. I was involved in this
investigation from approximately late 1972 through February 1974, when 1 left the
18
1494
Commission. With respect to other litigation involving Sterling Drug Company, and
its product Lysol, I developed expert testimony with many medical wdtnesses in
preparation for trial. This case was ultimately settled very favorably to the
Commission, and advertising of Lysol was radically altered as a result of settlement.
a) 1972-1974;
b) Not before judge in investigative phase; name of judge in trial phase in 1973-1974
unknown;
c) General counsel for Sterling Drug Company; no record of name.
Another matter which did not go beyond the development of expert testimony was the
children's Vitamin T.V. Advertising case, which I was hired to try in 1972. This
involvement was significant, because the Commission put great emphasis on this case.
After my team presented its initial evidence, the manufacturers of children's vitamins
voluntarily withdrew their advertising from television because of the FTC's novel
theory of unfairness, i.e.. T.V. advertising unfair to an audience because of its
particulcU' susceptibility.
a) early 1972;
b) no judge assigned;
c) opposing counsel: no record of name.
5) In re Hawaiian Punch. FTC Docket No. unknown.
As of the date of this settlement and for sometime thereafter, this was the only
successful corrective advertising case brought on behalf of the Federal Trade
Commission. The case had been prepared for trial by other attorneys, and it was
assigned to me for sole trial responsibility. After negotiation, a settlement highly
favorable to the Commission was obtained and approved.
a) 1973;
b) no record of name of judge;
c) Eugene I. Lambert, Esq., Covington &. Burling, 1201 Pennsylvania Ave., N.W.,
Washington, DC 20004, 202/622-5518.
6) James W. Bernhard. et a1. v. Wa.shiqgton Medical Center. Inc.. et al . Civ. Act.
No. 74-440 (D.D.C.).
I had primary trial responsibility under a Hogan & Hartson partner for a complex
stockholders' derivative lawsuit brought by doctors/investors of Washington Medical
Center (which owned Doctor's Hospital and 1801 K Street, among other properties)
against WMC. Although the case was ultimately settled favorably to plaintiffs, this
19
1495
represented one of the most intense discovery and trial development cases in my
practice.
a) 1974;
b) Hon. June L. Greene;
c) George H. Clark, Esq., Clark & Constable, 1300 19th St., N.W.. Washington,
DC 20036,202/466-7171.
7) lyJachman Corp. v. Pension Benefit Guaranty Corp . 436 F. Supp. 1334 (N.D. 111.)
(1977). rev'd 592 F.2d 947 (7th Cir. 1979), afCd, 446 U.S. 359 (1980).
This is the first case upholding the validity of the Employment Retirement Income
Security Act of 1974. insofar as it created the PBGC and authorized the PBGC to
assess employer liability for deficiencies in certain terminating plans. I left the PBGC
when the matter was pending before the Seventh Circuit, having participated in
writing the brief. I had sole trial responsibility for defending the PBGC. This is one
of the few cases that I have lost at the trial level, and I mention it because I was
informed through a law clerk to the Supreme Court Justice who authored the opinion
that most persuasive to the Supreme Court were the arguments in the motion to
dismiss the complaint which I had authored several years previously.
a) 1976-1 day:
b) Hon. Abraham Marovitz;
c) Robert W. Gettleman, Esq.. D'Ancona, Pflavm, Wyatt & Riskind, 30 N. LaSalle
St., Chicago. IL 60602, 312/580-2000.
8) Tn the Matter of the Valuation Proceeding-s Under SS 303rc^ and Regional Rail
Reorganization Act of 1973. Misc. No. 79- (special Court).
I had full trial and supervisory responsibility for three major rail estates— the Reading
Railroad, the Lehigh Valley Railroad, and the Peoria & Eastern Railroad. The
aggregate value of the claims against these railroads was over $450 M. I was hired to
try these cases begiruiing in November 1978, after previous attorneys worked for over
two years on trial preparation. Therefore, this litigation represents my "quickest
study.' The case was tried entirely on deposition and involved almost all expert
witnesses, with only several lay witnesses. Complex accounting, financial, economic,
and valuation analysis was required, not only for defending against the claims of rail
estates, but also with respect to development of expert and lay testimony in rebuttal to
the estates' cases.
a) Dec. 1979 - Mar. 1980 - fuU trial;
b) Special Court (Wisdom, Friendly, Thomscn, J. J.):
20
1496
c) Howard H. Lewis, Esq., Obermayer, Rebmann, Maxwell & Hippcl, 14th Floor,
Packard Building, Philadelphia, PA 19102, 215/665-3000 (Reading); David C.
Toomey, Esq., Duane, Morris & Heckscher, One Franklin Plaza, Philadelphia
PA 19102, 215/854-6300 (Lehigh Valley); no record of counsel for Peoria &
Eastern.
9) Dames & Mnnre V. Regan 453 U.S. 654 (1981).
This was the case brought to test the authority of the President of the United States to
settle claims of U.S. nationals against the Government of Iran under the Algiers
Declarations. The case was not tried. However, according to U.S. Supreme Court
personnel, it was one of the fastest cases briefed, argued, and decided by the U.S.
Supreme Court in history. I was responsible for the brief before the Supreme Court
filed on behalf of the Government of Iran. My senior partner argued the case, and I
was responsible for assisting him. The Supreme Court's decision is the leading case
on issues of international and domestic law concerning the enforceability of treaties
and executive agreements as of the date of decision.
a) June-July 1981;
b) Supreme Court;
c) C. Stephen Howard, Esq., Tuttle & Taylor, 609 S. Grand Ave., Los Angeles, CA
90017, 213/683-0600.
10) Islamir Rp.ptihlic of Iran et. a! v Cyrus Ansary Civ Act. No. 81-1817
(D.D.C.).
I list this case because I had trial responsibility for problems unique in bringing a
claim by a foreign government against a U.S. citizen in courts of the United States.
These problems related to difficulties of proof, client communication, and proof of
foreign law and records. Iran sued for return of S5 M entrusted to its former
international investment advisor in 1975. who, in turn, counterclaimed for
approximately $21 M, representing various contract and other claims. The case
underwent aggressive discovery and dispositive motions, and I settled it favorably.
a) Aug. 1981 to Jan. 1983;
b) Hon. Harold H. Greene;
c) Paul Martin Wolff, Esq., F. Whitten Peters, Esq., Williams & Connolly, 939 17th
St.. N.W., Washington, DC 20006. 202/331-5000.
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
21
1497
omit all information protected by the attorney-client privilege (unless the privilege has
been waived.)
The most significant legal activities that 1 pursued prior to serving as a judge are listed
in response to question 18. Also, in response to question 17, 1 listed significant cases
or matters in connection with my employment prior to being appointed to the United
Sutcs Claims Court (now the Court of Federal Claims). As a sitting trial judge, I
consider managing and deciding my cases as significant legal activities.
22
1498
n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List source, 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.
This question is not applicable, as I have been a sitting judge for IS years.
Z. 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-i merest during your initial service in
the position to which you have been nominated.
I have never faced a conflict of interest in 15 years. In the past I have tried to
anticipate such matters and present counsel with the option of my transferring a case.
Transfer has never been requested.
J. 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.
I. 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 S500 or more. (Tf 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 attached copy of Financial Disclosure Report for calendar year 1996. The
sources and amounts of income and other information arc the same for 1997 to date.
). Please complete the attached fmancial net worth statement in detail. (Add
schedules as called for.)
23
1499
Please see attached copy with statement from Smith Barney dated September 26,
1997, and list of assets for Dennis F. Miller.
5. 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, yoiu* title and responsibilities.
No.
24
1500
FINANCIAL DISCLOSURE REPORT
Nomination Report
MMpoi ttt^rtd by rfw Ethiet
K^mi Aa oll9M, f»t L fte
IBI-JH, Nevtmhtr SO, IM9
p U.S.C. Apf 4 . ice. m-iiii
Millar, Chrietlne o.C. .
2. Csort vr Orriuaucioo
U.S. COURT OF FEDERAL CLAIMS
3. Date af Rapon
11/07/1997
(ArtcU injudgn trdicatt actfw or
atnior sleiMf; magiiuwt Jitdgcs btOicau
i. Rapan Tn> tcksk lypr)
X No«u.»ti«.. O.U 11/06/1997 _
STRaponuig fan
01/01/1996
10/31/1997
T. r>MilKiii or Offica Addna
717 MADISOH PLACE, N.W. , #709
HASHTMCTON, DC ZOOOS
B. Od ^ bMi» of Ibc iB/onuadaa coalainad fal Ihis lUpon aad any
nudifkalinw panaiaiuc thafacv. it is fai my apbiiaa, m compliaacc
wiib applicable U<n aad n«ala<ioM.
DtFOKTANTfOTES: IKt inmiolau cec<mipmflrt Ihh Jam imot bt JoUomei. CampUu allpmm.
cktcUng At HONL hatfiir tech scafan whtrt yn, hmt no npmOiU ItffimnMoA. iign et% iht latt pat'
NAME OF ORGANIZATION / ENTITY
I. POSITIONS (liif^'*'\t OnUvidutl uitly: set pp. 9-13 e/lnnniaiarul
POSITION
NONK (No taponchlc poahioiu.)
1 Member, Board of Governors (Jnivarsity Club of Hachlngcon, DC
11. AGREEMENTS (IUp<,ninf,-<JtvUu„lt,nly.seepp.l4-irc/l-inructinu.J
DATE PARTIES AND TERMS
I X I NONT (No raforubic Itf rccmcnu.J
in. NON-INVESTMENT INCOME (K,pnnifig unlivifltuil ami tpmur: ... /•/> IS-2! «/ Inilnuilons.)
DATE PARTIES AND TERMS
I j NONE Qiti reporubU noivuivesiin.ni incom..)
i annual Dennis F. Miller (spouse) eel f -employed - Science
2 and Technology, Inc.
GROSS INCOMI
(youn. not ipouJK'l)
1501
FINANCIAL DISCLOSCSE SEPORT
l^urm of P»non ltLc|toftiQC
Miller, Chri«tino 0,C. ,
11/07/1997
IV. REFMBURSEMENTS and GIFTS - truuponatioo. todpn^. fix>d. .nttrtAinmAni
dneUid^ Ih^te to tpoun and dcpcr\deru ehilHftn; tue Ou pantVluoceU '(S)' and '0C)' ipimMcou rrponabte rtUntunements mnd gifts reettved try spouse
0^ dtpendtnt chUdrtn. nof^tedvmfy. S€t pp. 20-29 oftm
D
SOURCE DESCMFTION
NONE (No •ueh TfortibU r«imbtira«in«fiu or fifU)
V. OTHER GIFTS
ilmeiuda ihosx w spouse v^ depcnd^m childrcj*.- use the parentMxiIeaU '(S)' and '(OC)' to indicate eiker g^fu merivtJ by ipoiue and dependent childrrm.
ntpeanety. Set pp. 3Q-S3 ofliuffveiiotu.J
SOURCE DESCRIPTION
NONE (No fuch tvpnrublc ptl^
VI. LIABILITIES
(Inei^cj ^oge e/Mpctae and dependent chttdrrn. Indicate wAe»r appUcabte, person responsible Jnr ItabtUiy by using the porvnthetical 'fSJ '/or tepargie
UabiUty e/Oie tpoiue. '(/)'fi>r joint tlahility f/ reporting Imdividiuil and tpt*use. and '(OC)'Jor Uability vfa dependent ehUd- See pp. 3S-36 of InxtntedonS-}
a
CREDITOR DESCRIPTION
NONE (No Rfofuhk tUbiltli«»)
•VALCODES'J-SlS,(XlOorUu K=SIS.001'$50.(XX) L-SSa.<X1l lo SIOO.OOO M-SIDO,OOI-S130.(X]0 N-S25U,00l-SS0a,C
o-=ssoo.aoi-si.ooa,aaa Pi<:si.ix)o.ooi-S5.ixxi,(xio p2-55.00a.a01-s2s.0c1o.000 n-sz).oao.oai.S5o.ooo.ooo i>4>sso.ooo.ooi ornc
1502
FINANCIAL DISCXOSURE REPORT
I Nim* of Pbiviq Rc^inrtJns
r Miller, Christir
D«tco^R«poR
11/07/1997
- income, vaiue. traniacOnnx finclitdti Ihnst ofspmit* t
VD. Paje 1 D«fVESrMENTS and TRUSTS ^.p-uUM cuum. snpp.S7.s*ofinjtnicdoni,i
A.
PucillilioiiorAucU
iKllcait whtn appUcabU. amtt' b/
'Q)' for joit>I oMwrsAip e/rrpnniMg
tnit atmijlnp iy Mpouie, '(DC)-
Hcet '(X)' fttr tach aaa
B.
bwoniE
dufinc
t«|ionine
period
c.
Onis value
at end of
reponiDg
period
D.
Tranaaelicni during icponins period
(1)
Ami.
Cob
(A-
HJ
Typ.
<o.f..
dividend,
muor
0)
Value
Code
C)
Valu.
MMhod
Coda
(1)
Type
t>uy. aaU.
tadan^
don)
If not cxenipt Cnni diteloeure
C)
Dale:
Momh-
Bay
0)
Value
Code
C-F)
(♦)
Cain
Code
(A-H)
(J)
Idamity of
buyoWaallar
rrfprt-au
uauaetion)
1 NONE Cw RfofUblc •usamoueu. or
1 nnuclJoDi)
1 AlrTouch Corrm. Inc. Common
A
Civldand
J
T
2 Allstace Corp.
A
A
Tnt*ir«t
■^
JAlumix. Inc.
DividflnU
.J
T
4 AjnBdle Coff^.
*
Dlvidon.^
0
T
SArierltech Coip. Conunon
A
Dlvidond
J
T
6 A,-«=r.Ttl';. 4 Tsliq. comnot.
*
DivldomJ
.7
T
f Bell AtlBpric Corp. coiwnot'
I\
Dividend
J
T
9 Ecli South Cocp. Cofitrton
A
uividand
Int»r«i;t
•'
T
9 feerkloy, CA Tar Ttee Bond
K
T
A
10 Lll C«lv«rt Mut. Fund
A
intar^ar
J
T
liqulda
1/.'
■■'
11 Chovro:^ Corp. Coirjncn
B
Dividend
K
T
12 Cintrqy Coip. Conwntiii
"
Di-/Vd.nd
J
T
13 Crevrar Bank
"
In' »;c«t
L
•f
pt.inh.
11/13
K
H ISl Domlnior. li-«ourci;K Coiwnon
A
Oivid'ind
■'
H
IS ISl t^LS 5«Vin<lr. Pl»n
*
lnt.r»«t
J
T
le ISl £S'a stock r.oinmon
B
Intf ri».ct
'■
T
n Fidelity lnv,»tin»:r.t« Mutual Fi."J
B
lnr,r..,:t
1.
T
E-J13.O01.S50.0O0
N-SlSO.OOl-tSOO.OOO
0,000 P4-$3O.O0O.00l oinioca
1 Itic/Gun Coder. A-SLOOO or Its R-S
(Col.B1,D4) F-t50,001.J|no,000 G-J
J V.I Coder. J-tl S.OOO or la> K»$ 1
(Col.CI.D3) O»SS00.001.$ 1,000.000 Pl-$
.001-
00.00
.000.
Q_WO
1-Jl.OOO.OOO
SJU.OOO
Ol-SS.OOO.OOO
C»J2
III-]
P2-S5
J0I-I5.C
i.ouo.00
Toi-Jic
noc.ooi
100
l-*5.00O.0O0
0.000
125.000.000
D-S
H2-
~M-$10C
P3-S25
,001-$
t5.000.
Tooi-s
000.00
S.OOO
JOIorir
"io.oou
-$50.0(1
I 3 Val Mth Cods. Q>AfpraisaI
R-C<vt (raal «cute only)
V-Oiher
1503
FINANCIAL DISCLOSUKE REPORT
Ninu of PcnoD Rep oniof
Miller, Christine O.C.
DatcofRepen
11/07/1997
- Incmte, value, rmsaetions futclu^s Owje oftpome uhi
VD. Page 2 INVESTMENTS and TRUSTS ^fmimi MUm. S€c pp 37S4 o/imnaim,,.)
1 *'
Dcacliplion of AxMU
B.
iDaona
duriac
nponinc
pniod
c.
Citmvalua
alaivlor
pariod
o.
•Vl'jDrjciitlfmitrMpiifnpontKt
mOniditatwtdiptmte, 'fSJ'for up.
trmunmtrMpk)ipoim, '(DCJ-
fUnr 'CO' ^firr *aeh usn
txtmpifivm ffiar Jitctamrr.
(1)
Ann.
Code
(A-
H)
(2)
Typ*
(•■£..
dividend.
rsnior
(1)
Value
Cod.
P-P)
(2)
Value
Mcdiod
Code
(1)
Type
(•.»..
bvy, ttJ.
imnter.
fttdcmp-
lion)
If D04 cxempl fnHD dlicloaure
0)
Dae:
Monlb-
Day
(3)
Value
Code
OK
(4)
Cain
CuJe
(A-K)
IS)
Maintyor
buyirfKller
Orprivate
Innaactioa)
NOKE (no rcpooable UicanK,uaea. or
BuaacUom)
1$ rort Br«gg.cA, j loc». 1/4
Inter. (••« sxpXina. I
E
0
19 fr»ntain, CA To;t-f£«« Inconv Fond
C
IntvrMXt
J
T
20 rrecporc McHotJn Inc. ccmnion
A
DivlrJtnd
J
''
21 Frtoport Mcnorin Cop|..c I, Gold
Inc. Common
Di-id.nd
'
T
22 Hnbftr J. 3canr Common
a
Dj vid^nij
.J
"
23 ISl Kouj. CrMl^ Union
lnt"C.»t
■'
T
2« IS) INE-. RitireMnt Pl.»n
B
Uivioand
"
T
2S l.ouiji«"J r»cif tc Corp. ronjoon
0
DiuldTnd
J
T
26 I,uccnt Tccnr.oiogics common
l.pinori tcom ATtTl
A
Divld^ny
'
T
7.1 M»diSon Gas k tl«c. Common
'■
Div..o«nd
•'
'■
- —
_ ._
26 Moss. Inv. Trust Common
*
DividinO
.3
T
2»McMorin Oil L s*a Co.
A
Di-]d«nd
J
T
30 (SI Kunicjpal In^ttsz. TruRt tund
A
IntartiiT
J
"
31 No I CO Chemical Co- Common
°
Pi vldend
■J
T
32 nation •« Bant
*
"■•"'■•"'
K
T
33 Ka
visc.tr Int'l. Common
A
Diviilitnd
J
T
3a Na
uruqan Corp. Ccmfnon
A
Dlviojnd
■'
^
1 he/Cam Cudts A-SI.OOO or I«e< B>S
(Col BI.D4) F>55O,O01-SIOO.OOO C-SI
.0OI.«.3OO
OO.OOl-SI.OOO.OOO
C»$2 501.J3.000 I>-$3.O01.J15.O00 E-$H.00I.J50.000
H1-SI.000.OOI-S5.000.000 H2-S5.UOn,001 ottiwrc
2Val<
•joia: J-Jl 5,000 wtaa K»J1
l.OOl.
J50.000
1*5.11
OOl.JU
0.000
M=S10C
,ooi-i-
;n.ooo
N--S350.O01.$50O,OOO
(CelCI.D3) l>-S50O,001-SI.OOO.00O PI-II.OOO.OU).$5.000.UOO P2«i5.0flO.0Ol.$25.OO0.000 P3'J25,O00.O0l.S50.0OO.OOO P4-$50.00U.OOI orroor.
1 -Ca«liA<att*I
3 VaJ Mlb Coda: U-Anni'*l
(Col C2) ItaBcnk Value
R»Coe(l (real csUU Mly)
V-Uvher
S-A0CMmEni
W-E«tiiTialcd
1504
nNANCUL DISCLOSURE REPORT
Nunc of PvTton Rspoftin^
Miller, Christine O.C.
11/07/1997
- tmeorru!, value, uwuaellnfu fittclujei thost <>frptiuse and
Vn. Page 3 INVESTMENTS and TRUSTS ^pa^„- tiuUnm. u,fp.n-i4ojinjiruc<i<mi.)
Docnpuoo of AiMU
Ac aait by using d%£ parenlhtdetti
'Vi 'fefjoiru mmtnhip ofrtpomng
mJi,Kdual atd spouse, '(S)'fortep-
enu mmcnhip ty ipourr, '(DC) '
Plmx '00 ' ^€r satk onet
txxmptfiom prior dlxdatyrz.
B.
Iflcomt
duriof
teponUw
pchod
c.
Cto«f value
eluxlor
l<:l>onitif
period
D.
TntwectioDi dufir^ teportloc period
(1)
Aim.
Cnde
(*■
H)
Typ.
dividud.
rem or
imicfi)
(11
Value
Code
(J-P)
0)
Value
Method
Code
(Q-W)
(1)
T>pc
('■i-.
buy. aell,
merger.
(iOlO
ir nui eeempt 6t>ni dUcloaure
a)
Dau:
Moalh-
P.y
(3)
Value
Code
(4)
Cain
Code
CA-M)
t5)
biiycrfaeUet
fif private
mnaaelloo)
1 NONE loo npoiuble uiunu,>ucu, or
1 iniuuctiooi)
J5 Nyncx Corp. Common
A
Dividend
J
■'■
36 P.%cific T«lai« C£oup Common
*
Dividrnd
J
T
"
3T Pijeor. Kldijc Subdlv. lot.,
Covelo, CA 1/6 inter. (•«« niipl 1
B
ln..r..t
•'
C
36 Droctor 4 Gamble Comjtion
A
Dividend
K
[
39 Reynold. M«t..l.-: Co.
A
Dividend
J
T
«0 IJI Ri9qr MKA
A
'""''"
•'
■^
-^
— -
^i SBC Coniin. Inc. Common (formei
Southw.;.'.tfern Bcil 1
A
DividAnd
■'
■■■
'.2 Saf«w«y Inc. Common
A
Dividend
■•
T
43 Scart li Rorbuck Common
*
Dividend
"
T
tt ISl Unite Credit Ui.lon
*
Inteiejt
J
T
<S Sml-.h-ei.tney Inc. App. r.ind
b
'""""
■*
T
«(.Strcth-Eirney fremlum Tonl R«f..in
Fund {IRAJ
B
lntei«t
L
■^
-
- -
iT (J) Sntth-Earnriy Meniioed
M;jnicip.il Fund
''■
Intrre.t
L
T
46 1.11 Smith-Ritney p*»w Lquity Fund
A
IrtCeceel
J
T
49 (Jl smith-Derney llST Equity FuroJ
*
'
■■'
T
t>uy
9/11
J
50 IS) Teocher'» Inec. 4 Annulcy
Assoc- Common
B
B
Intvc«F.t
L
■'
51 ISI Teechcfl In»i. 4 Annuity
A«.oc. Money M.ck^t
lnt,rt.-.t
"
■■■
lliieftHinCorfstA-Sl.uOaorlts B^SI
(CoLBl.IM) F-S!O.OOI -SI 00.000 C-Sl
OOl-JtSOO
00.00 l-JI .000.000
C^=R.^U1.S5.000 D'tS.OOl.JlJ.OUO E-IIS.OOl-SSO.OOO
Hl-Jl.OOO.OOl.SS.OOO.OOO H3-J5.000.001 oroMnt
2ValCod«.: >J1 5.000 or 1m K-JI
(Col.Cl,D3) O-S500.00I.$l,00a.000 n-%\
.001-
,000.0
E50.000
OI-SS.000.000
L-f50
P5-S5
OOMIO
000.001-
0.000
$25,000,000
M-SloO
P3'$25.
00I-S2
00,001
50,000
■S50,00<
N-nso.noi-S50o,ooo
3.O00 P4-S50,n00.001urn<oce
I 3 Val MlhCods: g^Appraiial
R*Co*t (real estate only)
VeOlher
S-AMeuncst
W-Fstimat-al
T-Cwh/Morkei
1505
ilNANCUL DISCLOSURE REPORT
Nadk of Fcnon RcponUv
Miller, Christine O.C.
— iite<m}t. vatuf. mnucHons flncUidts Ihott ^tpoust ^nd
I DaU ot Kspon
11/07/1997
d
A.
Ducrifioao of Anns
fMOcMr «*m appUaliU. oMcr cf
du aarf by utnx l/u ^mnniti^tteal
•ffj-JbrjclK txmttliip „/rrponint
tJividttalaidspcuie. 'fSyjoricp-
mig (WfKTx/BJp by tpovx*, '(DC)'
fimet 'tlCi' ^trtach oxnT
B.
locontc
during
rcponing
C.
Ofo« vtluc
•lend of
p-nod
D
TrBfuootkifM duiiiig nponins puiod
1)
Ann
Coda
A-
H)
0)
divldtiid.
(1)
V.luo
Code
0-rt
0)
V.IU*
Moliod
Code
(1)
H nol «Mnipl liofi) dUcloMK
(••t-.
buy. MS.
«oo)
0)
Modb-
Dt,
0)
Value
Codo
(41
Coin
Cod«
(A-W)
(5)
■dobtyoT
Imyor/Mllor
tnBHClio«4
NONE (BO npotubU InconcwHU. or
S2 T. Kon Pile* Borid Fund
C
Intnrftit
J
T
53 UST Inc. Comnon
n
DivldoniJ
J
T
M ISI USAA Aflgi««<iv. fiiolrth Fund
A
int.r.;.
.J
T
55 IS) U5AA MO.>»y Murn.r r>"i«J CLl
e
'""""
"
^
S« ISI USAA T«>:-»».mpT lona-t.rB.
Fund IRA
A
Int«t«ST
J
T
51 U.S. «-jt, inc. Ccmnon
A
Oividtsnd
■"
■•■
36 U.S. Writ H«dia Group Common
A
Di^ldond
J
T
i> >i«lij F«r9o t ro..
B
Dividend
L
T
60 HvstlnghouB* £l«ctcic Cotp.
A
Divia-nd
J
T
1 IncAiuD Colix: A-SI.OOO o> k» li~S
CCelBl.CM) F-S50.00) -J 100.000 0-Jl
.0O1-S3.50O
oo.ooi-si.ooo.ooo
C-'Ji.5UU3.000 U-S5,001.$15.000 F.-S13,OOI-$30,000
111 -SI. 000.00 l-SS.OOO.OOO HZc-SS.OOO.OOl ormon
] V>] Cods: i-Sl 5,000 or l<ii K-S 1
(Col. CI. D3) O^JJOO.OOl-Sl.OOO.OOO ri-j
S.001.S50.000 L'SSO.OOI-IIOO.OOO M-$100.001«50.000 N-'J250.00I -$300,000
.000.001.J5.000.000 P2-S5.Oa0.0OI-S25.000.O0O P3-$2J.000.O01-S5O,000.000 P4-$30,000.001ornioft
3 V.I MUi Coder Q'Apptmbsil R-Coa (real emm only) S-Amohikm T-CjsVMartul
(ColO) y-BookV.luc V-OOw W.Ertim«l«l
1506
FINANCIAL DISCLOSURE REPORT
tfttne of ^non Raponinf
Miller, Christine O.C.
11/07/1997
vm. ADDrnoNAL information or explanations.
I X I NDNK (No addhioiHl ififocniation or cxpUnMioiw.)
(IndlMti: pin of npOfl.)
Cont'd from Sactlon VII. Investments t Trusts
Ifl. Two lots In Tort Bragg, Cf,, 1/4 interest; unlJnproved property, epptaised 4/21/90.
36. Pigeon Ridge subdivision, Covalo, CA: 1/8 Interest, unimproved lots in subdivision,
appraised 4/2/94, interest from promissory notas.
1507
HNANCIAL DI5CLOSDRE REPORT
NaOK of PcfioD Rfl^niny
nlllac, Christina O.C.
I UUM OT«kCp«n\
11/07/1997
DC. CERTmCATION
In compliance with the provisions of 28 U.S.C. 4S5 and of Advisory Opinion No. 57 of die Advisory Committee on
Judicial Activities, and to the best of my icnowledge at tfae time afrer 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
bad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
] certify that all the information given above (including information pertaining to my spouse and minor or dependent
cbildreo, if any) is accurate, true, and complete to ibe best of my knowledge and belief, and that any inftirmation not rq>oned
was withheld becanse it met applicable statutory provisions permitting non-disclosure.
I fiinher cernfy that earned income from outside employment and hoooraria and the acceptance of gifts which have been
repotted are in compliance with the provisions of S U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial
Confereace regulatiotks.
Signature
(MnCdUiOJ^.'^Ut^ Date >U-^^7^, 1119-
Ptii'^ individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil
and criminal sanctions (5 U.S.C. App. 4, Section 104).
FILING INSTRUCTIONS
Mail oripnal and three additional copies to:
Committee oo Financial Discloxurc
Ailminittrativc OfTicc of the United Stales Co
One Culumbu.i Ci^cl•^ N.E.
Suite 2-301
Washin^un, D.C 2U514
1508
FXKANOAL STATEMENT
KET WORTH
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holdingt) all UabUioet (Includbif debu, monxtgei, loviJ. afid other M/iartctal pblifadoni) of
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1522
m. 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.
Since becoming a judge in 1983, 1 worked as a volunteer gemologist for 4 hours per
week at the Christ Child Society Opportunity Shop firom Sept. 1986-Aug. 1994. I
also worked as a volunteer for 3 hours per week at the Information Desk at the
Columbia Hospital for Women during calendar year 1990-1991. Before becoming a
judge, I worked on a variety of pro bono assignments, but have no records of these
matters as of this date.
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 currendy
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?
1 have never belonged to such an 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 participated).
There is no judicial selection commission in my jurisdiction. I sought reappointment
to the United States Court of Federal Claims by writing the President. Thereafter, the
White House and the Department of Justice processed my request for reappointment.
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 fiilly.
No one has discussed these matters with me.
25
1523
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
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.
As a trial judge, I am mindful that my responsibility is to find the facts in dispute
between the parties and apply the law to those facts If I encounter difficulty in
applying a federal law, I explain the problem in an opinion so that Congress can
consider remedying it. 1 uphold the principles of stare decisis and separation of
powers and regard their importance as paramount.
26
o
BOSTON PUBLIC LIBRARY
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ISBN 0-16-056254-6
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