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Full text of "Confirmation 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"

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S. Hrg. 105-205, Pt. 3 

CONRRMATION HEARINGS 
ON FEDERAL APPOINTMENTS 



Y4.J89/2: 
S.HRG.105-205/PT.3 

Cmfiraatioj Hearings on Federal Uppointieiits, S. 
HKM, Part 3, feliniary 4; Fefcraary S: 

'HEAKlNGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

SECOND SESSION 

ON 

CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY 




FEBRUARY 4; FEBRUARY 25; MARCH 18; MARCH 24; APRIL 29, 1998 



Parts 



Serial No. J-105-4 



Printed for the use of the Committee on the Judiciary 




'Ur ( 











^Sff 



S. Hrg. 105-205, Pt. 3 

CONHRMATION HEARINGS 
ON FEDERAL APPOINTMENTS 



HEARINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

SECOND SESSION 

ON 

CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY 



FEBRUARY 4; FEBRUARY 25; MARCH 18; MARCH 24; APRIL 29, 1998 



Parts 



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 0-16-057549-4 



COMMITTEE ON THE JUDICIARY 



ORRIN G. 
STROM THURMOND, South Carolina 
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, Cahfornia 
RUSSELL D. FEINGOLD, Wisconsin 
RICHARD J. DURBIN, IlUnois 
ROBERT G. TORRICELLI, New Jersey 



Manus Cooney, Chief Counsel and Staff Director 
Bruce A. Cohen, Minority Chief Counsel 



(II) 



CONTENTS 



HEARING DATES 

Page 

Wednesday, February 4, 1998 1 

Wednesday, February 25, 1998 307 

Wednesday, March 18, 1998 633 

Tuesday, March 24, 1998 833 

Wednesday, April 29, 1998 1019 

WEDNESDAY, FEBRUARY 4, 1998 

Statements of Committee Members 

Hatch, Hon. Orrin G 1 

Feinstein, Hon. Dianne 1 

Leeihy, Hon. Patrick J. (prepared statement) 18 

Kennedy, Hon. Edward M. (prepared statement) 18 

Introduction of Nominees 

Inouye, Hon. Daniel K 6 

Akaka, Hon. Daniel K 7 

Mink, Hon. Patsy 8 

Abercrombie, Hon. Neil 8 

Prepared statement 9 

Lugar, Hon. Richard G 10 

Murray, Hon. Patty 12 

Grorton, Hon. Slade 15 

Campbell, Hon. Tom 29 

White, Hon. Rick 30 

Testimony of Nominees 

M. Margaret McKeown, of Washington, to be U.S. Circuit Judge for the 

Ninth Circuit 19 

Questioning by: 

Senator Hatch 20 

Senator Leahy 22 

Senator Sessions 23 

Senator Durbin 31 

Richard L. Young, of Indiana, to be U.S. District Judge for the Southern 

District of Indiana 36 

Questioning by: 

Senator Sessions 37 

Senator Durbin 40 

Senator Ashcroft 44 

Senator Leahy 47 

Susan Oki MoUway, of Hawaii, to be U.S. District Judge for the District 

of Hawaii 36 

Questioning by: 

Senator Sessions 37 

Senator Durbin 40 

Senator Ashcroft 44 

Senator Leahy 47 



(HI) 



IV 

Page 

Jeremy D. Fogel, of California, to be U.S. District Judge for the Northern 

District of California 36 

Questioning by: 

Senator Sessions 37 

Senator Durbin 40 

Senator Ashcroft 44 

Senator Leahy 47 

Edward F. Shea, of Washington, to be U.S. District Judge for the Eastern 

District of Washington 37 

Questioning by: 

Senator Sessions 37 

Senator Durbin 40 

Senator Ashcroft 44 

Senator Leahy 47 

Alphabetical List and Material Submitted 

Feinstein, Hon. Dianne: 

Letters to Hon. Dianne Feinstein from: 

J. Clinton Peterson, State of California Court of Appeal, First 
Appellate District, Division Five, San Francisco, CA, dated June 

4, 1997 3 

Richard J. Loftus, Jr., president, Santa Clara County Bar Associa- 
tion, San Jose, CA, dated June 12, 1997 4 

Letters to Hon. Orrin G. Hatch from: 

Weldon S. Wood, Robinson & Wood, Inc., San Jose, CA, dated Oct. 

1, 1997 3 

Harry F. Brauer, associate justice, retired. Court of Appeal, State 

of California, Santa Cruz, CA, dated Sept. 29, 1997 4 

Fogel, Jeremy D.: 

Testimony 36 

Questionnaire 213 

McKeown, M. Margaret: 

Testimony 19 

Questionnaire 52 

Molloway, Susan Oki: 

Testimony 36 

Questionnaire 136 

Shea, Edward F.: 

Testimony 37 

Questionnaire 175 

Young, Richard L.: 

Testimony 36 

Questionnaire 100 

Questions and Answers 

Responses of M. Margaret McKeown to written questions from Senators: 

Ashcroft 241 

Hatch 246 

Grassley 247 

Thurmond 252 

Sessions 254 

Responses of Richard L. Young to written questions from Senators: 

Sessions 263 

Ashcroft 266 

Responses of Susan Oki MoUway to written questions from Senators: 

Ashcroft 268 

Sessions 275 

Thurmond 281 

Hatch 286 

Responses of Edward F. Shea to written questions from Senators: 

Ashcroft 290 

Thurmond 298 

Sessions 300 

Responses of Jeremy D. Fogel to written questions from Senators: 

Ashcroft 303 

Sessions 305 



V 

Page 

WEDNESDAY, FEBRUARY 25, 1998 
Statement of Committee Members 

Grassley, Hon. Charles E 307 

Leahy, Hon. Patrick J. (prepared statement) 308 

Feinstein, Hon. Dianne 314 

Specter, Hon. Arlen 317 

Introduction of Nominees 

Lautenberg, Hon. Frank (prepared statement) 309 

Boxer, Hon. Barbara 310 

Wyden, Hon. Ron 312 

Smith, Hon. Gordon 313 

Johnson, Hon. Eddie Bernice 315 

Norton, Hon. Eleanor Holmes 316 

Ortiz, Hon. Solomon P 316 

Hutchison, Hon. Kay Bailey 325 

Testimony of Nominees 

Judith M. Barzilay, of New Jersey, to be a judge of the U.S. Court of 

International Trade 318 

Questioning by: 

Senator Grassley 318 

Senator Sessions 320 

Susan P. Graber, of Oregon, to be U.S. Circuit Judge for the Ninth Circuit 321 

Questioning by: 

Senator Grassley 322 

Senator Feinstein 326 

Senator Thurmond 328 

Senator Sessions 329, 337 

Richard A. Paez, of California, to be U.S. Circuit Judge for the Ninth 

Circuit 321 

Questioning by: 

Senator Grassley 322 

Senator Feinstein 326 

Senator Thurmond 328 

Senator Sessions 329, 337 

Senator Leahy 335 

Hilda G. Tagle, of Texas, to be U.S. District Judge for the Southern District 

of Texas 339 

Questioning by: Senator Grassley 340 

Sam A. Lindsay, of Texas, to be U.S. District Judge for the Northern District 

of Texas 340 

Questioning by: Senator Grassley 340 

Delissa A. Ridgway, of the District of Columbia, to be a judge of the U.S. 

Court of International Trade 340 

Questioning by: Senator Grassley 340 

Alphabetical List and Materl\l Submitted 

Barzilay, Judith: 

Testimony 318 

Questionnaire 345 

Boxer, Hon. Barbara: 

Letters to Hon. Orrin G. Hatch from: 

Sheldon H. Sloan, Los Angeles, CA, dated Apr. 22, 1996 310 

Sherman Block, sheriff. County of Los Angeles, Monterey Park, CA, 

dated Apr. 8, 1996 312 

Graber, Susan P.: 

Testimony 321 

Questionnaire 373 

Lindsay, Sam A.: 

Testimony 340 

Questionnaire 516 



VI 

Page 

Paez, Richeird A.: 

Testimony 321 

Questionnaire 431 

Ridgway, Delissa A.: 

Testimony 340 

QuestionnEiire 556 

Tagle, Hilda G.: 

Testimony 339 

Questionnaire 477 

Questions and Answers 

Responses of Judith M. Barzilay to written questions from Senator Ashcroft ... 610 
Responses of Susan P. Graber to written questions from Senators: 

Ashcroft 612 

Sessions 614 

Responses of Richard A. Paez to written questions from Senators: 

Sessions 620 

Ashcroft 624 

Responses of Hilda G. Tagle to written questions from Senator Ashcroft 628 

Responses of Sam A. Lindsay to written questions from Senator Ashcroft 629 

Responses of Delissa A. Ridgway to written questions from Senator 

Ashcroft 631 

WEDNESDAY, MARCH 18, 1998 

Statements of Committee Members 

Hatch, Hon. Orrin G 633 

Biden, Hon. Joseph R., Jr 649 

Leahy, Hon. Patrick J. (prepared statement) 668 

Introduction of Nominees 

Reid, Hon. Hariy 634 

Bryan, Hon. Richard H 635 

Snowe, Hon. Olympia J 636 

Prepared statement 640 

Collins, Hon. Susan M 641 

Baldacci, Hon. John E 642 

Prepared statement 643 

Allen, Hon. Tom 644 

Bumpers, Hon. Dale 645 

Hutchinson, Hon. Tim Y 647 

Dickey, Hon. Jay 648 

Hutchinson, Hon. Asa 649 

Roth, Hon. Wilham V., Jr. (prepared statement) 652 

Castle, Hon. Michael N. (prepared statement) 653 

Wyden, Hon. Ron 654 

Prepared statement 655 

Smith, Hon. Gordon 656 

Prepared statement 657 

Testimony of Nominees 

Kermit V. Lipez, of Maine, to be U.S. Circuit Judge for the First Circuit 658 

Questioning by: 

Senator Biden 659 

Senator Hatch 662 

Robert T. Dawson, of Arkansas, to be U.S. District Judge for the Western 

District of Arkansas 658 

Questioning by: 

Senator Biden 659 

Senator Hatch 662 



VII 

Page 

Gregory M. Sleet, of Delaware, to be U.S. District Judge for the District 

of Delaware 658 

Questioning by: 

Senator Biden 659 

Senator Hatch 662 

Johnnie B. Rawlinson, of Nevada, to be U.S. District Judge for the District 

of Nevada 658 

Questioning by: 

Senator Biden 659 

Senator Hatch 662 

Garr M. King, of Oregon, to be U.S. District Judge for the District 

of Oregon 659 

Questioning by: 

Senator Biden 659 

Senator Hatch 662 

Alphabetical List and Material Submitted 

Bryan, Hon. Richard H.: 

Resolution from the board of county commissioners 635 

Dawson, Robert T.: 

Testimony 658 

Questionnaire 715 

King, Garr M.: 

Testimony 659 

Questionnaire 790 

Lipez, Kermit V.: 

Testimony 658 

Questionnaire 670 

Rawlinson, Johnnie B.: 

Testimony 658 

Questionnaire 763 

Sleet, Gregory M.: 

Testimony 658 

Questionnaire 734 

Snowe, Hon. Olympia J.: 

Letters to Senator Orrin G. Hatch from: 

Linda Smith Dyer, president, Maine State Bar Association, Augusta, 

ME, dated Mar. 17, 1998 637 

Donald Zillman, dean and Godfrey professor of law, University of 

Maine School of Law, Portland, ME, dated Jan. 27, 1998 638 

Letter to Senator Olympia J. Snowe from Frank M. Coffin, U.S. senior circuit 
judge, U.S. Court of Appeals for the First Circuit, Portland, ME, dated 
Feb. 25, 1998 ; 638 

Questions and Answers 

Responses to written questions of Senator Ashcroft from: 

Kermit V. Lipez 823 

Robert T. Dawson 825 

Gregory M. Sleet 827 

Johnnie B. Rawlinson 829 

Garr M. King 830 

TUESDAY, MARCH 24, 1998 

Statements of Committee Members 

Abraham, Hon. Spencer 833 

Feinstein, Hon. Dianne (prepared statement) 838 

Leahy, Hon. Patrick J. (prepared statement) 854 

Introduction of Nominees 

Breaux, Hon. John B 834 

Boxer, Hon. Barbara 835 

Prepared statement 837 

Levin, Hon. Carl 844 



VIII 

Page 

Landrieu, Hon. Mary L 846 

Prepared statement 847 

Jefferson, Hon. William (prepared statement) 848 

Testimony of Nominees 

Ivan L.R. Lemelle, of Louisiana, to be U.S. District Judge for the Eastern 

District of Louisiana 849 

Questioning by: Senator Abraham 851 

Howard Matz, of California, to be U.S. District Judge for the Central District 

of California 849 

Questioning by: Senator Abraham 851 

Greorge Caram Steeh III, of Michigan, to be U.S. District Judge for the 

Eastern District of Michigan 850 

Questioning by: Senator Abraham 851 

Arthur J. Tarnow, of Michigan, to be U.S. District Judge for the Eastern 

District of Michigan 850 

Questioning by: Senator Abraham 851 

Alphabetical List and Material Submitted 

Boxer, Hon. Barbara: 

Letters to Senator Orrin G. Hatch from: 

Sherman, Block, sheriff, County of Los Angeles, Monterey Park, CA, 

dated Nov. 12,1997 839 

Gil Garceiti, Los Angeles County District Attorney, Los Angeles, 

CA, dated Dec. 15, 1997 840 

Robert Bonner, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, 

dated Jan. 14, 1998 840 

George L. O'Connell, Stevens & O'Connell, Attorneys, Sacramento, 

CA, dated Jan. 6, 1998 841 

Letters to Senator Barbara Boxer from: 

Lourdes G. Baird, U.S. District Court, Central District of California, 

Los Angeles, CA, dated July 1, 1997 841 

John R. Fishel, executive vice president, the Jewish Federation, Los 

Angeles, CA, dated July 31, 1997 844 

Letters to Senator John Ashcroft from: 

Harold G. Blatt, Bryan Cave LLP, St. Louis, MO, dated Dec. 18, 

1997 842 

Gerald E. Boltz, Bryan Cave LLP, Santa Monica, CA, dated Dec. 

2, 1997 842 

Frank E. Merideth, Jr., Bryan Cave LLP, Santa Monica, CA, dated 

Dec. 16, 1997 843 

Letter to Senator Charles E. Grassley from Ronald L. Olson, Munger, 

Tolles & Olson LLP, Los Angeles, CA, dated Dec. 21, 1997 843 

Lemelle, Ivan L.R.: 

Testimony 849 

Questionnaire 858 

Matz, A. Howard: 

Testimony 849 

Questionnaire 911 

Steeh, George Caram III: 

Testimony 850 

Questionnaire 949 

Tarnow, Arthur J.: 

Testimony 850 

Questionnaire £70 

Questions and At.'swers 

Responses of Ivan L.R. Lemelle to written questions from Senators: 

Abraham 1000 

Thurmond 1001 

Grassley 1003 

Responses of A. Howard Matz to written questions from Senators: 

Abraham 1008 

Thurmond 1010 



DC 

Page 

Responses of George Caram Steeh III to written questions from Senator 

Thurmond 1012 

Responses of Arthur J. Tarnow to written questions from Senators: 

Thurmond 1014 

Abraham 1016 

WEDNESDAY, APRIL 29, 1998 

Statements of Committee Members 

DeWine, Hon. Mike 1019 

Feinstein, Hon. Dianne 1026 

Leahy, Hon. Patrick J. (prepared statement) 1026 

Introduction of Nominees 

Moynihan, Hon. Daniel Patrick 1019 

Oilman, Hon. Benjamin A 1020 

D'Amato, Hon. Alfonse 1021 

Prepared statement 1021 

Graham, Hon. Bob 1022 

Prepared statement 1023 

Mack, Hon. Connie 1025 

Boxer, Hon. Barbara (prepared statement) 1027 

Testimony of Nominees 

William A. Fletcher, of California, to be U.S. Circuit Judge for the Ninth 

Circuit 1029 

Questioning by: 

Senator DeWine 1031 

Senator Feinstein 1035 

Chester J. Straub, of New York, to be U.S. Circuit Judge for the Second 

Circuit 1030 

Questioning by: 

Senator DeWine 1031 

Senator Feinstein 1035 

William P. Dimitrouleas, of Florida, to be U.S. District Judge for the Southern 

District of Florida 1030 

Questioning by: 

Senator DeWine 1031 

Senator Feinstein 1035 

Stephan P. Mickle, of Florida, to be U.S. District Judge for the Northern 

District of Florida 1030 

Questioning by: 

Senator DeWine 1031 

Senator Feinstein 1035 

Alphabetical List and Material Submitted 

Dimitrouleas, William P.: 

Testimony 1030 

Questionnaire 1121 

Fletcher, William A.: 

Testimony 1029 

Questionnaire 1044 

Mickle, Stephan P.: 

Testimony 1030 

Questionnaire 1151 

Straub, Chester J.: 

Testimony 1030 

Questionnaire 1079 



X 

Page 

Questions and Answers 

Responses of William A. Fletcher to written questions from Senators: 

Thurmond 1191 

Ashcroft 1197 

Sessions 1202 

Responses of Chester J. Straub to written questions from Senators: 

Ashcroft 1206 

Sessions 1210 

Responses of William P. Dimitrouleas to written questions from Senator 

Ashcroft 1214 

Responses of Stephan P. Mickle to written questions from Senator Ashcroft .... 1216 

ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS 

Judith M. Barzilay, of New Jersey, to be a judge of the U.S. Court of 

International Trade 318 

Robert T. Dawson, of Arkansas, to be U.S. District Judge for the Western 

District of Arkansas 658 

William P. Dimitrouleas, of Florida, to be U.S. District Judge for the Southern 

District of Florida 1030 

William A. Fletcher, of Cahfornia, to be U.S. Circuit Judge for the Ninth 

Circuit 1029 

Jeremy D. Fogel, of California, to be U.S. District Judge for the Northern 

District of California 36 

Susan P. Graber, of Oregon, to be U.S. Circuit Judge for the Ninth Circuit 321 

Garr M. King, of Oregon, to be U.S. District Judge for the District 

of Oregon 659 

Ivan L.R. Lemelle, of Louisiana, to be U.S. District Judge for the Eastern 

District of Louisiana 849 

Sam A. Lindsay, of Texas, to be U.S. District Judge for the Northern District 

of Texas 340 

Kermit V. Lipez, of Maine, to be U.S. Circuit Judge for the First Circuit 658 

Howard Matz, of Cahfornia, to be U.S. District Judge for the Central District 

of California 849 

M. Margaret McKeown, of Washington, to be U.S. Circuit Judge for the 

Ninth Circuit 19 

Stephan P. Mickle, of Florida, to be U.S. District Judge for the Northern 

District of Florida 1030 

Susan Oki Mollway, of Hawaii, to be U.S. District Judge for the District 

of Hawaii 36 

Richard A. Paez, of California, to be U.S. Circuit Judge for the Ninth 

Circuit 321 

Johnnie B. Rawlinson, of Nevada, to be U.S. District Judge for the District 

of Nevada 658 

Delissa A. Ridgway, of the District of Columbia, to be a judge of the U.S. 

Court of International Trade 340 

Edward F. Shea, of Washington, to be U.S. District Judge for the Eastern 

District of Washington 37 

Gregory M. Sleet, of Delaware, to be U.S. District Judge for the District 

of Delaware 658 

George Caram Steeh III, of Michigan, to be U.S. District Judge for the 

Eastern District of Michigan 850 

Chester J. Straub, of New York, to be U.S. Circuit Judge for the Second 

Circuit 1030 

Hilda G. Tagle, of Texas, to be U.S. District Judge for the Southern District 

of Texas 339 

Arthur J. Tarnow, of Michigan, to be U.S. District Judge for the Eastern 

District of Michigan 850 

Richard L. Young, of Indiana, to be U.S. District Judge for the Southern 

District of Indiana 36 



NOMEVATIONS OF M. MARGARET McKEOWN, 
(U.S. CIRCUIT JUDGE); RICHARD L. YOUNG, 
SUSAN OKI MOLLWAY, EDWARD F. SHEA 
AND JEREMY D. FOGEL (U.S. DISTRICT 
JUDGES) 



WEDNESDAY, FEBRUARY 4, 1998 

U.S. Senate, 
Committee on the Judiciary, 

Washington, DC. 
The committee met, pursuant to notice, at 2:34 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 
(chairman of the committee) presiding. 

Also present: Senators Kyi, Ashcroft, Sessions, Leahy, Feinstein, 
and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 
SENATOR FROM THE STATE OF UTAH 

The Chairman. We are happy to welcome all of you to the com- 
mittee today for this hearing on a number of President Clinton's 
nominees. 

We have the following nominees to bring before you: M. Margaret 
McKeown, of Washington, to be U.S. Circuit Judge for the Ninth 
Circuit; Richard L. Young, of Indiana, to be U.S. District Judge for 
the Southern District of Indiana; Susan Oki MoUway, of Hawaii, to 
be U.S. District Judge for the District of Hawaii; Edward F. Shea, 
of Washington, to be U.S. District Judge for the Eastern District 
of Washington; and Jeremy D. Fogel, of California, to be U.S. Dis- 
trict Judge for the Northern District of California. 

We are happy to welcome all of these nominees here with us 
today, we are equally happy to welcome Senators and Congress 
people who are here to testify on their behalf. We are grateful to 
have all of you here. 

Let me allow Senator Feinstein to testify first, since she is on the 
committee and would like to come up to the dais, as I understand. 
So we will start with you, Senator Feinstein. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 
FROM THE STATE OF CALIFORNIA 

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

Mr. Chairman, I am very pleased 

The Chairman. Oh, excuse me. My ranking member would like 
to make a statement. 
Senator Leahy. The potted plant. 

(1) 



The Chairman. The potted plant would like to make a state- 
ment. 

Senator Feinstein. Never. 

Senator Leahy. That is OK. Go ahead. Senator Feinstein has al- 
ready begun. 

Senator Feinstein. Are you sure? 

Senator LEAHY. Sure. I know my place. 

The Chairman. I didn't think I had made a statement. 

Senator Leahy. We new guys know our place here. [Laughter.] 

Senator Feinstein. Mr. Chairman, Mr. Leahy, Mr. Durbin, I am 
very pleased to be here to say a few words on behalf of Jeremy 
Fogel to be appointed to the Northern District Court in California. 

Judge Fogel is a respected judge in the San Jose area. For the 
past 3 years, he was ranked as the best superior court judge in 
Santa Clara County, according to a local legal newspaper survey of 
both prosecutors and attorneys. He has earned a reputation for 
fairness and sound reasoning over the course of a 17-year career 
on both the municipal and superior courts in California. 

He is here with his wife, Kathleen Wilcox, and their two chil- 
dren, Megsm and Nathaniel. I met Megan. I didn't have a chance 
to meet Nathaniel. 

But let me provide a few details about Judge Fogel. He obtained 
his bachelor's degree from Stanford, graduated with great distinc- 
tion, went on to earn his J.D. from Harvard, graduating cum laude. 
Following law school, he served as a civil attorney at Smith, John- 
son, Fogel and Ramo in San Jose and worked as executive director 
of the Santa Clara County Bar Association Law Foundation. 

He was appointed to the municipal court in 1981, served as pre- 
siding judge of the court's felony division, and in 1984 presiding 
judge of the municipal court. He was elected to the superior court 
in 1986, assigned to the court's civil law and motion department, 
as judge, of course. 

Judge Fogel also served as the civil team leader responsible for 
settlement and case management. He is a recognized expert on ju- 
dicial ethics, having taught ethics to judges and lawyers since 
1988. He served as an advisor on judicial ethics to the Judicial 
Council of California, the Commission on Judicial Performance, 
and the California Judges Association. 

His experience on the court has brought him strong bipartisan 
support. This support from Republicans and Democrats includes 
many endorsements from law enforcement leaders, attorneys, and 
judges on the State court who know him best. I would like to sub- 
mit for the record a letter from the State court of appeal presiding 
justice, Mr. J. Clinton Peterson, who writes. 

Judge Fogel is a highly disciplined jurist of exceptional intellect * * *. By reputa- 
tion he has long been one of the leading members of the Santa Clara bench, noted 
particularly for his outstanding judicial demeanor and impartiality in applying the 
law. 

[The letter of J. Clinton Peterson follows:] 



State of California Court of Appeal, 
First Appellate District, Division Five, 

San Francisco, CA, June 4, 1997. 
Re nomination to the Federal Northern District Court of California. 

Senator DiANNE Feinstein, 
San Francisco, CA. 

Dear Senator Feinstein: I write to support your nomination of the Honorable 
Jeremy D. Fogel of the Superior Court of Santa Clara County to the position of fed- 
eral district judge of the Northern District of California. 

I served with Judge Fogel on the Executive Board of the California Judges Asso- 
ciation from 1990 tihrough 1992. He has chaired that Association's Judicial Dis- 
cipline Advisory Panel, its Judicial Ethics Committee, and its Discipline and Dis- 
ability Committee; he is cvurently a member of the California Continuing Judicial 
Studies Program Planning Committee. 

Judge Fogel is a highly disciplined jurist of exceptional intellect. I found his views 
and positions on the Board of the California Judges Association to be always 
thoughtful and moderate. By reputation he has long been one of the leading mem- 
bers of the Santa Clara bench, noted particularly for his outstanding judicial de- 
meanor and impartiality in applying the law. His civic activities have been numer- 
ous and effective, as were his contributions to the California Judges Association and 
to the Bar Associations of which he was a member before his elevation to the bench 
by Governor Deukmejian in 1986. 

I think you have selected an excellent choice for this federsd judicial position, and 
I commend you for it. 
Very truly yours, 

J. Clinton Peterson. 

Senator Feinstein. Also, one from Weldon Wood, principal of 
Robinson & Wood, and officer of the San Francisco chapter of the 
American Board of Trial Advocates. 

[The letter of Weldon Wood follows:] 

Robinson & Wood, Inc., 
San Jose, CA, October 1, 1997. 
Hon. Orrin G. Hatch, 
U.S. Senate, 
Washington, DC. 

Dear Senator Hatch: The purpose of this letter is to ask that you, as Chairman 
of the Senate Judiciary Committee, have your Committee promptly consider the ap- 
pointment of California Superior Court Judge Jeremy Fogel to fill a vacancy on the 
bench in the United States District Court for the Northern District of California in 
San Jose. 

I understand that President Clinton has nominated Judge Fogel, but the Judici- 
ary Committee has not yet acted on that nomination. The people of Silicon Valley 
urgently need an additional judge to fill the vacancy on the Federal District Court 
bench in San Jose. WhUe that bench is blessed with several outstanding jurists, 
those jurists cannot keep up with the crushing case load generated in this commu- 
nity. Delay in resolution of cases works a hardship on all litigants. That hardship 
creates distrust in the judicial system and disrespect for the rule of law within the 
community. 

I believe that Judge Fogel is superbly qualified for the position. My reasons for 
that belief are explained in the enclosed letter I sent Senator Feinstein when I 
learned of the vacancy in question. 

Please give prompt consideration to the appointment of Judge Fogel. 
Very truly yours, 

Weldon S. Wood. 

Senator FEINSTEIN. I would also like to enter into the record let- 
ters from Richard Loftus, the president of the Santa Clara County 
Bar Association, and retired California Court of Appeal Associate 
Justice Harry Brauer. 

[The letters of Richard Loftus and Harry Brauer follow:] 



Santa Clara County Bar Association, 

San Jose, CA, June 12, 1997. 
Re U.S. District Court vacancy, Northern District, CA. 

Hon. Dianne Feinstein, 
U.S. Senate, 
Washington, DC. 

Dear Senator Feinstein: I am writing to you on behalf of the Santa Clara Coun- 
ty Bar Association Board of Trustees, who represent approximately 4,000 lawyers 
and judges in Santa Clara County. As you are aware, our Bar Association has a 
keen interest in the appointment to the vacancy in the federal district court, San 
Jose Division of the Northern District of California, as evidenced by our letter to 
you of July 1, 1996, when the vacancy first arose. We want to strongly encourage 
you to appoint an individual who has practiced and been a part of the legal commu- 
nity in San Jose. 

The necessity for such an appointment is based on the following critical factors. 
San Jose is the state's third largest city, with three million people living within a 
half-hoxu-'s drive of downtown San Jose. SiUcon Valley is the economic engine that 
drives the Bay Area, with most major businesses and many large financial institu- 
tions venued here. The largest Bay area law firm outside of San Francisco is 
headquartered in Palo Alto. The active judges in the San Jose Division have the 
heaviest caseloads of any of the Northern District judges, including a much higher 
percentage of large, complex business cases, particularly in the fields of securities 
and intellectual property. As long as the District's venue rule remains in effect, most 
of the complex, business Utigation in the entire Bay area will be located in the San 
Jose Division. This Division needs the assistance of another full-time federal judge 
with chambers within the Division. 

Fortunately, we have a significant pool of quaUfied lawyers and judges who reside 
or practice within the San Jose Division and would no doubt be willing to commit 
to sitting in San Jose when appointed. The federal bench would be well served by 
this added geographic diversity. 

On behalf of the Santa Clara County Bar Association, I strongly urge you to ap- 
point either a qualified judge or lawyer who meets the geographic criteria as set 
forth above. If we can be. of any assistance to you in the appointment process, please 
do not hesitate to contact me. 

Thank you for your consideration of these concerns. 
Sincerely, 

Richard J. Loftus, Jr., President. 



Court of Appeal, 
State of California, 
Santa Cruz, CA, September 29, 1997. 
Re Nomination of Judge Jeremy Fogel as judge of the U.S. District Court, Northern 
District of California. 

Hon. Orrin Hatch, 

Chairman, Judiciary Committee, U.S. Senate, Washington, DC. 

My Dear Senator: There are Democratic senators and then there are Democratic 
senators. California has one of each. 

It doesn't bear imagining what kind of people Senator Boxer would recommend 
for the federal courts but for the barrier of a Republican-controlled Judiciary Com- 
mittee. 

Senator Feinstein, on the other hand, has picked nothing but the cream of the 
crop, at least in Northern and Central California, the only area I am famiUar with. 
And it has not deterred her if the best qualified candidate is a white male. Judge 
Fogel is a preeminent example. 

Jeremy started out, like me, as a liberal who had led a sheltered life. But there 
is nothing like the Municipal Court to open one's eyes. That is why I firmly believe 
in going through the chairs. It didn't take him long to reahze that criminals are 
hoods, not Robin Hoods. By the time he ran for the Superior Court, he had the po- 
Uce behind him, both brass and rank-and-file. 

During his tenure on the Superior Coiirt, he has had experience in every area of 
civil law. His talents and work ethic were recognized by his peers when he was 
made one of three team leaders who handle the law and motion calendar, among 
other things. That calendar in a metropolitan court is in my judgment the most in- 
tellectually demanding task on any level of the state judiciary. 



I am intimately familiar with the trial judges in my appellate district. Out of the 
forty-four judges on his court, Fogel is the best. Period. Moreover, he believes firmly 
in the limitations on judicial power imposed by the Constitution. There will be no 
principled opposition to his confirmation. 

One parting thought. The politicization and slowdown in the confirmation process 
is doubtless a reaction to the savaging inflicted by the Left upon Robert Bork, prob- 
ably the most highly qualified judge since Learned Hand. But 1 suggest that the 
policy be selectively applied. By all means, stall the turkeys but do not deprive a 
badly understaffed court of the necessary relief if the nominee is well quaUfied. If 
confirmed, Judge Fogel will fill the vacancy created by the forced retirement of a 
typical Carter-Cranston affirmative action appointee who never finished law school 
and to my personal knowledge couldn't fight his way out of an uncontested divorce. 
Fogel is badly needed. 

I myself am a nominal Democrat with an academic background similar to Judge 
Fogel's who, after initial appointment by Governor Pat (not Jerry!) Brown, was ele- 
vated to the Superior Court by Governor Reagan and to the Court of Appeal by Gov- 
ernor Deukmejian. I know the type of person you would like to see on the federal 
bench. Jeremy Fogel eminently fits that mold. Please send him there pronto. 
Respectfully, 

Harry F. Brauer, 
Associate Justice, Retired. 

Senator Feinstein. As these quotes will indicate, Judge Fogel's 
sound judgment has earned him the highest respect from those in 
the local legal community. Quite simply put, he is one of the best 
and brightest judges in California today. 

I urge the committee to confirm his nomination, and I thank the 
Chair for this privilege. 

The Chairman. Well, thank you. Senator Feinstein. We appre- 
ciate your comments. If you would like, you can join the dais here, 
and then we will have another person take your seat there. 

We have a number of distinguished Members of Congress here 
to testify in favor of these judges. So I would suggest that we go 
in this order: That we do Hawaii first, since Senator Inouye is the 
most senior Senator here; then we will go to Indiana; we will go 
to Washington then; and then wind up with California, if that is 
all right. That is the only way I know how to do this, to do it or- 
derly and also with due respect to all of the Members of Congress 
here. 

Senator Leahy. Mr. Chairman, I agree with that. When I first 
came here as the junior-most member of the Senate, I did not like 
the seniority system, but now that I have studied it for 23 years, 
I understand it so much better. [Laughter.] 

And I think it is a good system. 

The Chairman. Well, when it comes to seniority, very few have 
the seniority that our distinguished Senator from Hawaii, Senator 
Inouye, has. And we have always appreciated your advice and 
counsel to this committee, and we look forward to having you as 
well as all of our colleagues from both the House and the Senate 
here. 

If I happen to miss a colleague from the House, please jump on 
me. Just raise your hand, and I will get it straightened out before 
we are through. 

So we turn to Senator Inouye. Then we will go to Senator Akaka, 
then Congresswoman Mink, and then Congressman Abercrombie. 
Is that OK? Thank you. 

Senator Inouye. 



STATEMENT OF HON. DANIEL K. INOUYE, A U.S. SENATOR 
FROM THE STATE OF HAWAII 

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

Mr. Chairman and members of the committee, I am pleased to 
appear before the Judiciary Committee once again to introduce the 
President's nominee to the U.S. District Court for the District of 
Hawaii, Ms. Susan Oki Mollway. Ms. Mollway appears here for 
your consideration to fill a vacancy created nearly 3 years ago by 
the untimely and unexpected death of Hon. Harold M. Fong. Judge 
Fong served on the Federal bench honorably and with distinction 
for many years, and his wisdom and experience have been missed. 

However, Ms. Mollway is most qualified to be his successor and 
is absolutely worthy of your favorable consideration. When Judge 
Fong passed away. Senator Akaka and I undertook the job of inter- 
viewing and considering nearly 40 candidates for this district 
judgeship. After personally meeting with these candidates and re- 
viewing their individual backgrounds. Senator Akaka and I were 
pleased to recommend Ms. Mollway to the President. And I am 
honored to be here this afternoon with Ms. Mollway, the Presi- 
dent's nominee. 

Ms. Mollway is qualified for the position of the U.S. district 
judge. She graduated at the top of her class from the University 
of Hawaii with a degree in English literature. She later received 
her master's degree in the same field. Then she went on to Har- 
vard Law School, where she graduated cum laude in 1981. 

For the past 17 years, Ms. Mollway has had a successful litiga- 
tion practice with one of the largest and most prestigious law firms 
in the State of Hawaii. She has been a partner in that firm's litiga- 
tion department since 1986. Her impressive litigation experience 
includes a wide array of areas from Federal labor law to contract 
disputes, to lender liability, and appearances before every level of 
the State and Federal courts. Ms. Mollway has also taught appel- 
late advocacy at the University of Hawaii's William S. Richardson 
Law School and participated as an arbitrator with Hawaii's Court- 
Annexed Arbitration Program. 

Mr. Chairman and members, I have no hesitation in giving my 
highest recommendation to Ms. Susan Oki Mollway. 

Questions have been raised about Ms. Mollway's former member- 
ship on the board of directors of the American Civil Liberties Union 
of Hawaii. I emphasize former membership because she is no 
longer a member of the board. She has responded to those ques- 
tions and given an honest and complete account of her own activi- 
ties in this regard and the ACLU Hawaii's activities with respect 
to the issue of same-sex marriage. 

Further, Ms. Mollway has stated her ability and intent, if con- 
firmed, to apply and uphold the governing law in any case. I am 
certain she will do just that and serve the State of Hawaii and the 
Federal judiciary with reason, balance, and integrity. 

Mr. Chairman, on a personal note, if I may, I would like to recog- 
nize a very dear friend of mine who happens to be in the audience, 
Mr. Eichi Oki, the father of the nominee. Mr. Oki and I have been 
classmates, and we were classmates at the University of Hawaii. 
We both received our law degrees through the generosity of the GI 
bill of rights. And Mr. Oki and I were privileged and honored to 



serve our country together in the 442d regimental combat team, 
the most decorated miUtary unit of its size in World War II. 

Ms. Mollway could have no better role model to guide her life, 
professionally and personally, than her own father. I am certain 
that she mirrors her father in her love of country, in her commit- 
ment to the Constitution, and in her patriotism. 

In closing, I would like to personally thank the committee for 
again taking up Ms. Mollway's nomination because she is sorely 
needed back in Hawaii, where the three remaining district judges 
have been working tirelessly under a burgeoning caseload, but 
without a full team, for the last 3 years. 

I recommend the consideration of Ms. Mollway with no reserva- 
tion. 

Thank you very much. 

The Chairman. Well, thank you. Senator Inouye. That is high 
praise for Ms. Mollway. 

We will turn to Senator Akaka. 

STATEMENT OF HON. DANIEL K. AKAKA, A U.S. SENATOR 
FROM THE STATE OF HAWAII 

Senator Akaka. Thank you very much. 

Mr. Chairman, Senator Leahy, Senator Durbin, and members of 
the Senate Judiciary Committee, I am very, very pleased to have 
the opportunity to join the Hawaii congressional delegation — Sen- 
ator Inouye, Congresswoman Mink, and Congressman Aber- 
crombie — in support for Susan Oki Mollway as the U.S. District 
Court judge for the District of Hawaii. I also would like to welcome 
Daniel Mollway, Susan's husband, who has accompanied her here, 
and also Susan's parents, Mr. and Mrs. Eichi Oki. 

You may recall, Mr. Chairman, that Senator Inouye and I ap- 
peared before you in March 1996, when Mrs. Mollway was afforded 
a confirmation hearing in the 104th Congress. I know over the past 
2 years Mrs. Mollway has responded individually to concerns ex- 
pressed by some Senators. I am hopeful that with this additional 
opportunity to meet with Mrs. Mollway that the Judiciary Commit- 
tee and the Senate will act quickly on her nomination. 

Mrs. Mollway has been praised for her professional skills, sense 
of ethics, and moral compassion. As you know, she is a 1981 Har- 
vard Law graduate who served as editor in chief of the Harvard 
Civil Rights-Civil Liberties Law Review. 

Upon completing her legal education, Susan returned to Hawaii 
to join the Honolulu law firm of Cades, Schutte, Fleming, and 
Wright, where she specializes in civil litigation, handling a wide 
range of cases. She has appeared before all levels of Hawaii State 
courts, as well as the U.S. District Court for the District of Hawaii, 
the ninth circuit court, and the U.S. Supreme Court. 

Mr, Chairman and members of the committee, I believe you will 
agree with me that Mrs. Mollway's credentials are impressive. She 
is an individual of the highest integrity whose dedication to her 
profession is admired by all. 

Susan is a true daughter of Hawaii, having received both her 
bachelor of arts and master's degrees from the University of Ha- 
waii. 



8 

I am pleased, Mr. Chairman, to lend my support to Mrs. Mollway 
and ask the committee to report her nomination favorably so that 
the Senate may expeditiously confirm her nomination. 

Thank you very much. 

The Chairman. Thank you. Senator Akaka. 

We will turn to Congresswoman Mink. Happy to have you here. 

STATEMENT OF HON. PATSY MINK, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF HAWAII 

Representative MiNK. Thank you, Mr. Chairman, Mr. Leahy, col- 
leagues, Mr. Durbin. I am pleased to be here today and to join the 
two Senators that you have just heard from, and I certainly whole- 
heartedly endorse all of their comments, and I very enthusiastically 
support the nomination of Susan Oki Mollway for the U.S. District 
Court in the District of Hawaii. 

I, too, am personally acquainted with the nominee, as well as her 
parents and her husband. I am also personally acquainted with her 
distinguished career of 17 years in private practice. I believe her 
most outstanding accomplishment was recently in winning a unani- 
mous decision before the U.S. Supreme Court in a case involving 
a whistleblower situation. 

She has worked diligently from the very bottom in a very distin- 
guished law firm and has climbed her way up to become a full part- 
ner. She is a distinguished scholar. She has produced a number of 
articles, has really actively participated in many of the legal orga- 
nizations, one in particular, the Women's Lawyers Organization, 
with which I am familiar, and I suppose I should indicate some- 
what of a conflict of interest in this matter because a distinguished 
book which she edited included a chapter on my career. And so, I 
come here with full knowledge and full interest and energy in ask- 
ing this distinguished committee to consider this woman, her ca- 
reer, and her extreme suitability for this assignment. 

In the private practice of law, for those of us who have been in 
that profession, you know how difficult it is and how contentious 
some litigation can be. And so, in the course of 17 years, to find 
no one who would step forward, at least, to my knowledge, no one 
has come to me, to raise any objection whatsoever, proves the cali- 
l9er and the integrity and the ability of this young woman to fulfill 
the judicial responsibilities of neutrality and to steadfastly adhere 
to the objectives of our Constitution and of our legal system. 

So I urge this committee to support the nomination of this distin- 
guished woman who will serve us well, serve the State well, and 
serve this country well as a distinguished jurist. 

Thank you very much. 

The Chairman. Well, thank you so much. 

Mr. Abercrombie. 

STATEMENT OF HON. NEIL ABERCROMBIE, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII 

Representative Abercrombie. Senator Hatch, aloha. A pleasure 
to see you once again. Also, our delejation's aloha to Senator 
Leahy. And, Mr. Chairman, I was going to say "my dear friend 
Dick Durbin," but I don't want to harm this nomination in any 
way. [Laughter.] 



So I want to acknowledge his presence, nonetheless. 

I will submit a statement, Mr. Chairman, a formal statement, if 
I might, rather than reiterate some of the points that have been 
raised by my colleagues. You do see the entire delegation here be- 
fore you. This is a family matter, Senator Hatch. We very strongly, 
as a congressional family, w£int to give our strongest recommenda- 
tion to SusEin and to point out, not only by way of reiteration but 
by way of emphasis, that she has given particular service to Ha- 
waii. 

My colleague, Patsy Mink, mentioned the publication of "Early 
Women Lawyers in Hawaii." Susan will be carrying on a legacy in 
Hawaii with her successful nomination here before you. 

I want to add simply to that. Senator, that the one sure way that 
you can determine whether the accolades that we have shared with 
you about Susan are, in fact, real in every respect, is to invite you 
and the committee to come out to Hawaii and to observe in person 
her in action, and I want to extend that invitation to you right 
now. I notice I have your rapt attention almost immediately on 
that, but it is sincerely extended. We, in Hawaii, are very, very 
proud to have her nomination before you and look forward with 
pleasure to the opportunity to host you and the committee any time 
you can come out to see us and to see the court in action in Hawaii. 

Many, many thanks. 

[The prepared statement of Mr. Abercrombie follows:] 

Prepared Statement of Congressman Neil Abercrombie 

Good afternoon, Mr. Chairman and Members of the Committee. Thank you for 
giving me the opportunity to give you my strong endorsement of Hawaii Attorney 
Susan Oki Mollway to the United States District Court of Hawaii. 

Susan Oki Mollway will be an outstandng addition to the U.S. District Court for 
Hawaii. Currently, she is a partner at the Honolulu law firm of Cades, Schutte, 
Fleming and Wright, one of our state's leading law firms. She has demonstrated her 
ample legal talents in her law practice, which includes trademark disputes, lender 
liability litigation, real estate disputes and general complex civil litigation. Susan 
Oki Mollway has litigated at all levels of state and federal courts, including a suc- 
cessful case in the United States Supreme Court in 1994. Her colleagues in the Ha- 
waii Women Lawyers Association offered eloquent testimony to her abilities when 
they honored her with the 1987 Outstanding Woman Lawyer of the Year Award. 
She has received a Well Qualified rating from the American Bar Association which 
is the highest rating for judicial nominees. 

Besides having exceptional legal abilities, Susan Oki Mollway is a contributor to 
the local community. After completing her undergraduate and M.A. studies at the 
University of Hawaii, where she was a Phi Beta Kappa and ranked second in her 
class, she left the islands to obtain her Juris Doctorate cum laude from Harvard 
Law School in the 1980s. She distinguished herself there by serving as Editor-in- 
Chief of the Harvard Civil Rights-Civil Liberties Review. Upon her retiim to Hawaii 
she taught at the University of Hawaii Law School. She is a leader in the commu- 
nity and in the Hawaii bar. She has served as a director of the Hawaii Women Law- 
yers Association and the Hawaii Women's Legal Foundation. She is a Mentor in the 
Hawaii State Bar Association's Attorney -to-Law Student Mentor Program. 

Susan Oki MoUway's credentials are exemplary. I highly recommend Susan Oki 
Mollway to fill the vacancy on the U.S. District Coiirt of Hawaii. 

The Chairman. Thank you so much. We appreciate the Hawaii 
delegation for appearing here today, and we know you are all very 
busy, and we will try to get this hearing over as soon as we can. 

Senator Leahy. Mr. Chairman, I might note, too, I appreciate the 
fact that all members of the delegation are here. And I have read 
the nominee's background. She is an extraordinary, extraordinary 
nominee. I think Hawaii or any State would be very fortunate to 



10 

have her as a judge, but I know how much the need is out there, 
and I hope we can send her to you as a judge very, very quickly. 

Representative Mink. Thank you very much. 

The Chairman. Thank you very much. 

We will turn now to Senator Lugar and take your testimony at 
this time. 

STATEMENT OF HON. RICHARD G. LUGAR, A U.S. SENATOR 
FROM THE STATE OF INDIANA 

Senator LuGAR. Well, thank you very much, Mr. Chairman and 
Senator Leahy, Senator Durbin and Senator Kyi. I wanted to place 
before the committee today the name and the person of Judge Rich- 
ard Young to become a Federal court judge in our Hoosier State. 
And he is accompanied by his wife, Roseann, and their two chil- 
dren, who are immediately behind me, and by our distinguished 
former colleague, Senator Birch Bayh of Indiana, who is a very 
good friend of the family and former employer of Judge Young dur- 
ing earlier days in the judge's career. 

Congressman Lee Hamilton of the Ninth District of Indiana 
could not be with us due to an important hearing which has arisen, 
and I would like to read his short statement because it is an impor- 
tant endorsement of Judge Young. 

Congressman Hamilton says, 

Mr. Chairman and members of the committee, thank you for providing me an op- 
portunity to join Senator Lugar in introducing Judge Richard Young to the commit- 
tee. I have known Judge Young for many years and have the highest regard for him. 
I beUeve Judge Young has the integrity and experience to make a superb Federal 
district court judge for the Southern District of Indiana. He is a well-respected 
member of the Indiana legal community. He has served as Vanderburgh Circuit 
Court judge for the last 8 years and worked as a trial attorney for 10 years prior 
to that. He will bring common-sense Hoosier values to the Federal bench. 

Judge Young has played a leading role in numerous professional and civic organi- 
zations in Indiana. He currently serves on the Indiana Judges Association and the 
Board of Directors of the Indiana Judicial Conference. He is the former president 
of the EvansviUe Bar Association and has participated in many community organi- 
zations in EvansviUe, Indiana. I recommend Judge Young to you without reserva- 
tion. I beUeve he has the temperament and intelligence to make an excellent Fed- 
eral judge and urge your support for the nomination. 

Mr. Chairman, let me mention to you, as you know from previous 
hearings — and this was true of your Democratic Party predecessor 
as chairman of the committee—during the Reagan and the Bush 
administrations, it was our practice in Indiana to have a judicial 
commission to consider nominees to the Federal courts. It so hap- 
pened during that 12-year period of time almost half of the judicial 
posts in our State became vacant, and so there were quite a num- 
ber of these nominees. 

We did this, as many Senators have, to make certain that no 
Senator, myself and then Senator Quayle or Senator Coats, who 
was his successor, had any fingerprints on any of these judges. 
They were not our friends, our neighbors, our associates in the bar. 
They were people who in a competitive situation emerged. And we 
appreciate both in Democratic and Republican days in this commit- 
tee the prompt consideration of those nominees and their very 
strong endorsement by the committee and by the Senate. 

Then in this particular instance, during the Clinton administra- 
tion, for a variety of reasons our commission has now been con- 



11 

suited in the same way. So, I would say simply that I have not 
known personally Judge Young, although I have known him by 
reputation in our State. I have had an excellent interview with him 
today simply reviewing his qualifications, which, as Congressman 
Hamilton pointed out, are superb. 

I mention this because the endorsement certainly of Congress- 
man Hamilton, of Senator Bayh, of others, has been very important 
and, I am certain, influential to make the President's nominee 
Judge Young, who is before us today. I am impressed by his work 
specifically in the Evansville community. Mention has been made 
by Congressman Hamilton of that, but I would mention that he has 
been a part of the Board of Public Works serving his community 
before he became a judge. He has served on the board of trustees 
of the Museum of Arts and Science of the Community Foundation, 
the Community Corrections Advisory Board. He has served in the 
Easter Seals Society, the Evansville Rehabilitation Center. He has 
been a remarkable citizen of the city. 

Second, he has had broad experience that prepares him for this 
position. He has served, as I have mentioned. Senator Bayh but, 
likewise, former Congressman Phil Hayes from the Eighth District 
of Indiana. He has served the Airline Pilots Association in their 
governmental affairs department. He was with the U.S. Depart- 
ment of Justice and has informed me that much of his work was 
research on pardons and that particular niche of justice in our 
country. 

He has been a public defender in Vanderburgh County, in addi- 
tion to being corporation counsel for the better part of 4 years for 
that city. He has served as a distinguished attorney at law, and, 
of course, as pointed out, for the last 8 years as the Vanderburgh 
circuit court judge. 

I mention all of these aspects because it is a broad background 
of understanding cases. He is a most industrious judge. In one re- 
cent year, he handled 79 jury trials. That is an extraordinary load. 

It is the practice of Judge Young to work out most civil litigation 
so that his calendar is as clear as possible for criminal trials, for 
felonies, and serious matters. And he has made it a point in public 
interviews to say that he tries to dispose of all these cases within 
a year's time so that justice is certain and speedy in Vanderburgh 
County, and the judge himself has industriously applied those vir- 
tues to the law. 

So for all of these reasons, I am impressed by his record and the 
recommendations that have come to him. I present this nominee to 
you with pride and the work that Judge Young has done, with cer- 
tainty that your consideration will likely be favorable and swift. 

The Chairman. Well, thank you, Senator Lugar. That is certainly 
a very complimentary presentation for this judge. 

I notice Senator Bayh is here. I take it you are supportive of this 
judge. Senator Bayh? 

Mr. Bayh. Yes. 

The Chairman. That is important to this committee. That is very 
high praise. We appreciate your being here and taking the time to 
be with us. 

The Chairman. We will now turn to Washington, and we will 
start with Senator Gorton and 



12 

Senator GrORTON. I will yield to Senator Murray. 

The Chairman. Senator Murray, then we will start with you. 
Weren't you going to talk for Margaret McKeown? 

Senator Gorton. We are both going to do both. 

The Chairman. All right. Senator Murray, we will go with you 
first. 

STATEMENT OF HON. PATTY MURRAY, A U.S. SENATOR FROM 
THE STATE OF WASHINGTON 

Senator Murray. Thank you, Mr. Chairman, Mr. Leahy, Mr. 
Durbin. It is indeed a delight to be here, and, Mr. Chairman, I 
would especially thank you for having this hearing today. I know 
you have grown tired of my many requests for a hearing for Mar- 
garet McKeown, and I am truly delighted that the day is here, and 
I appreciate your efforts on her behalf. 

First let me welcome Mrs. McKeown's husband, Peter Cowhey, 
and their daughter, Megan, who are here with us today. 

Before coming to the Senate, I had heard across the spectrum 
that Ms. McKeown was one of the finest business lawyers in the 
Northwest, and now that she and I have spent considerable time 
together, I have come to understand why she had that reputation. 
She is tenacious. She does outstanding work. She is an accom- 
plished advocate, and she has the patience of Job. 

Mr. Chairman, I enthusiastically support her for the Ninth Cir- 
cuit Court of Appeals. 

The Chairman. That all sounds pretty good. We could use a little 
of that around here. [Laughter.] 

Senator Murray. Mr. Chairman, I am not alone in my admira- 
tion of Ms. McKeown. She has fans from both sides of the aisle. 
Our former colleague, Senator Simpson, wrote this committee to 
say, "She is a solid lawyer with broad experience and a fine judicial 
temperament. I truly believe she would represent the American 
mainstream on the bench." 

From Washington State, in addition to Senator Gorton and Rep- 
resentative White, who was here — and I believe he will be back — 
she enjoys the backing of Gov. Gary Locke, Attorney General Chris- 
tine Gregoire, and King County Prosecutor Norm Mailing. 

Many of her clients have written you strong letters of endorse- 
ment that I believe all of you have. She also has received backing 
from a number of prominent Reagan- and Bush-era political ap- 
pointees, including Bill Ruckelshaus, former EPA Administrator; 
Richard Willard, Assistant Attorney General for Civil Rights; and 
Mike McKay, U.S. attorney for the Western District Court of Wash- 
ington. 

I know you have read about Ms. McKeown's career, but let me 
summarize some of the high points. She was the first woman part- 
ner at the 70-year-old prestigious firm of Perkins, Coie. She has 
served for 11 years on the Perkins, Coie executive and manage- 
ment committees. She is a nationally recognized litigator who was 
named in "Top Players in Hi-Tech Intellectual Property." 

Her range of litigation is amazing. One day she is litigating 
about the typeface in personal computers. The next day she is de- 
fending a securities case, and the next day she might be litigating 
avionics and military aircraft. 



13 

She was president of the Federal Bar Association for the Western 
District of Washington and a lawyer representative to the Ninth 
Circuit Judicial Conference. She has worked as an aide to U.S. 
Senator Cliff Hansen of Wyoming, as a special assistant under 
President Carter to Interior Secretary Andrus, and as a White 
House fellow under President Reagan. She is on the Executive 
Committee of the Washington State Council on International 
Trade, and she has served as counsel for the Downtown Seattle 
Business Association. 

While who you know is important and what you do as a lawyer 
is critical, where you put your priorities is also vital. One of the 
reasons I so strongly support Ms. McKeown is because of her com- 
mitment to community and family. I am amazed that the same per- 
son who represented Boeing in a multibillion-dollar merger and 
who has successfully defended Citibank in a complex leverage 
buyout case has also served in virtually every position in the Girl 
Scouts. She has been a Brownie leader, troop consultant, committee 
member, and for 9 years a member of the National Board of Direc- 
tors of Girl Scouts of the USA and a member of the executive com- 
mittee. Even with her national commitments, Ms. McKeown makes 
time for the girls themselves, leading her daughter Megan's Junior 
Girl Scout Troop 1091. 

Ms. McKeown is active in other arenas as well. She volunteers 
in the schools, with the YMCA, with the Children's Museum, and 
on abused children projects. 

I want to point out something special about Ms. McKeown. She 
has received the Good Housekeeping Seal of Approval. That maga- 
zine several years ago named her as one of the 100 Women of 
Promise in America. 

Mr. Chairman, Margaret McKeown is a highly qualified lawyer 
with a diverse background who has demonstrated her commitment 
to community and to family. She will be an outstanding ninth cir- 
cuit judge, and I look forward to working with all of you to make 
sure she is confirmed in the very near future and that her 2-year 
wait is over. 

Mr. Chairman, members of the committee, I am also pleased 
today to introduce to you Mr. Ed Shea 

The Chairman. Can I interrupt you for a second? 

Senator Murray. Yes. 

The Chairman. I think you have to be careful with what you say 
because there are some on this committee that might require from 
here on in a Good Housekeeping Seal of Approval. [Laughter.] 

I am very concerned. 

Senator Leahy. Is that to require for members of the committee 
or for the nominees? 

The Chairman. I know members of the committee won't qualify. 

Senator Murray. As long as it is not a requirement for the Sen- 
ate, we are all OK, Mr. Chairman. 

The Chairman. I am sorry to interrupt you. 

Senator Murray. I am also very pleased to introduce to you our 
other candidate today, Mr. Ed Shea. I strongly endorse his nomina- 
tion to Washington's Eastern District Court for the many reasons 
I will outline for you. But first let me welcome his family: Margie 
Shea, who is his wife of 38 years; their four children, Kathy 



14 

Henningsen, Marilou Shea, Jackie Shea, and Ed Shea, Jr.; and 
their grandson, Andrew Henningsen. 

Mr. Chairman, Mr. Shea is going to make an excellent judge. He 
is a highly respected member of the legal profession. He has served 
with distinction as a trial lawyer, including national recognition as 
a fellow of the American College of Trial Lawyers, where he serves 
on the Committee on the Federal Rules of Civil Procedure. 

The five superior court judges in Benton and Franklin counties, 
where Mr. Shea has lived and practiced for more than 25 years, 
have written a letter describing him as having a "well-earned rep- 
utation not only in our community but throughout the Northwest 
as an outstanding trial lawyer." 

His fellow Washington State lawyers honored him by electing 
him president of the Washington State Bar Association, where he 
served with distinction. Many of them have approached me to con- 
gratulate me on my role in promoting his judicial candidacy. 

Mr. Shea has the support of many prosecutors and law enforce- 
ment officers. He is endorsed by Steve Lowe, who is the Franklin 
County prosecutor, and Andy Miller, who is the Benton County 
prosector. The president of the Washington State Lodge of the Fra- 
ternal Order of Police has written, "He has always been fair, im- 
partial, and forthright with any situation that we have ever known 
him to be involved with." 

While we must look first to his legal qualifications, I believe that 
the best judges are those who have worked in their communities 
to make them better places. Mr. Shea is well qualified in that 
arena, too. He has been an advocate of equal access to the law, vol- 
unteering and working to get free or reduced legal services to local 
organizations, such as the March of Dimes, the Sexual Assault Re- 
sponse Center, and the Faith Christian Academy. Mr, Shea has 
also worked hard to improve access to education in his community 
by helping to establish a branch campus of the Washington State 
University in the Tri-City area. He has also been a stalwart sup- 
porter of the March of Dimes, recently being named the chapter 
council of the year by the National March of Dimes. 

Mr. Shea is a well-respected member of the business community. 
He has the unanimous support of the board of the Tri-City Indus- 
trial Development Council, which passed a resolution endorsing his 
nomination. Mr. Shea has received two strongly supportive edi- 
torials in the Tri City Herald. Again, numerous members of that 
community have thanked me for championing his nomination. 

Mr. Chairman, Mr. Shea was selected by a bipartisan judicial 
merit selection committee comprised of a diverse group of lawyers 
and community leaders. I have faith in that selection process and 
believe Mr. Shea will serve as an outstanding member of the Fed- 
eral bench. I urge all the members of this committee to support his 
nomination and move him quickly to the bench. 

Mr. Chairman, Ms. McKeown and Mr. Shea are really outstand- 
ing nominees, and people in my State know that. As I travel 
around, I get a lot of questions about judicial vacancies, and it has 
been hard to answer those questions. But now I can say that we 
are moving forward and that two excellent judicial candidates have 
been heard and should soon be confirmed. 



15 

Let me also add that while I am the Senator of the same party 
as the President, I have invited and encouraged Senator Gorton to 
participate in judicial nominations. I recognize this is a break in 
tradition, but I know that our citizens are best served when we 
work together. I intend to continue working with Senator Gorton 
to find the very best and most able members of the Washington 
Bar to recommend to President Clinton, and I will fight to ensure 
that our citizens have their day in court and that justice is not de- 
nied because nominations are delayed. 

So, I look forward to working with you and all the members of 
this committee to move these nominations forward. Thank you. 

The Chairman. Thank you. Senator Murray. We appreciate that. 
That is high praise for these two nominees. 

We will turn to Senator Gorton now. 

STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM 
THE STATE OF WASHINGTON 

Senator Gorton. Mr. Chairman, and may it please the commit- 
tee. Senator Murray has given you a detailed and an outstanding 
outline of the qualifications of these two individuals. She made a 
point at the end of her remarks that this has, in fact, been a joint 
process and will continue to be a joint process, as she and I and 
the President deal with judicial vacancies from the State of Wash- 
ington, or in one case, significantly affecting the State of Washing- 
ton. And as a consequence, I can join enthusiastically in the com- 
ments that she has made and need not repeat the precise points 
that the Senator has made. 

I do want to emphasize that both Margaret McKeown and Ed 
Shea are highly qualified to perform the positions for which they 
have been nominated by the President. So, I join Senator Murray 
both in welcoming them and in endorsing them to you. 

Now, we can't go by this hearing without acknowledging the fact 
that Margaret McKeown, especially, has been a somewhat con- 
troversial nomination by the President and is under criticism — crit- 
icism to which you will listen, I think formally, later on during the 
course of this hearing. 

I may tell you that I have examined all of the elements of that 
criticism and find it utterly inadequate to disqualify Ms. McKeown 
as a candidate for appointment to the Ninth Circuit Court of Ap- 
peals. Her legal record, her professional record, has been highly 
distinguished. In one sense, I have a particular advantage and a 
particularly good point from which to make that statement. She is 
a partner in the largest law firm in the city of Seattle. In my 2- 
year hiatus from membership in the U.S. Senate, I was a partner 
in the second largest law firm in the city of Seattle. We got to know 
one another, the two firms, very intimately. I can say that all of 
the members of that Perkins, Coie firm are respected lawyers. 

Ms. McKeown came up under perhaps somewhat more difficult 
circumstances than many others have traditionally there and is a 
major member of the firm. 

Congressman White, who was here and whom we hope will re- 
turn, was her partner there. Congressman Campbell from Califor- 
nia, who hopes that he can return, asked me to say to you that he 
shared a White House Fellowship with her during the Reagan ad- 



16 

ministration. Senator Simpson's interest is in the fact that Ms. 
McKeown originally comes from Wyoming and worked on the staff 
of Senator Hansen a number of years ago. So she has an extremely 
broad background, and I think that she is philosophically well in 
the mainstream of judicial appointments over the course of the last 
several years. 

I say all this, Mr. Chairman, because, as you know particularly, 
sometimes, I think, to your regret, I have shown particular interest 
in this appointment process for Federal judges. I can think of few 
duties that we engage in that are more important. These appoint- 
ments, unlike those to positions in a national administration, last 
for life, last far beyond the careers of the Presidents who make 
those nominations. They have a tremendous impact on our society 
as a whole, and we do have to pay attention to them. 

I must say I have more experience in this than Senator Murray, 
but I think she is going to find, with me, that often when you are 
in charge of this kind of activity and there are 10 applicants, you 
end up with 10 enemies and 1 ingrate. You know, there is not a 
great deal of political benefit to come from all of it, but it is so im- 
portant that we need to pay a great deal of attention and a great 
deal of focus on it. 

I go back to the phrase in the Constitution itself that says the 
President, and I quote, "shall nominate and, by and with the advice 
and consent of the Senate, shall appoint judges to the Supreme 
Court." And, of course, other judges as well. The people of the 
United States have chosen, I think quite consciously, a mixed gov- 
ernment with a Democratic President and Republican majorities in 
both Houses of Congress. And I believe that that imposes on all of 
us. Democrats and Republicans alike, not only the prerogative but 
the duty to advise the Senate, as well as simply to respond as a 
rubber stamp to that President's nomination. 

In fact, earlier in this decade, the then-Senate majority leader, 
George Mitchell, commenting on a Senate Democratic task force on 
nominations and confirmations, said, and I quote him, "As the task 
force suggests, one way to avoid such confrontations in the future 
is for the President to engage in meaningful consultation with the 
Senate before making significant nominations. Countless historical 
examples justify consultations. The public supports it and common 
sense counsels it." 

He made that when the President was a Republican and the Sen- 
ate Democratic. I think it was a valid rule then, and I believe it 
is a valid rule today, and I know the chairman feels exactly that 
way and is engaged in that kind of consultation. 

Well, you know, I may say with respect to these nominations 
here today and with at least three, and perhaps four, that are rel- 
atively imminent, exactly that kind of consultation has taken place. 
There has been a partnership between Senator Murray and myself. 
There has been that kind of consultation from the White House. I 
cannot criticize it in any fashion whatsoever. Our advice has been 
sought. We have been active participants in this process. Senator 
Murray and I have agreed on a way in which to have selection com- 
mittees that look at all of the applicants in the original instance. 

As a consequence, there is another Washington nomination for a 
so-called Washington position on the ninth circuit before you on 



17 

which we are united. If a CaUfomia nominee, Mr. Fletcher, is nom- 
inated, there will be a resignation or a retirement to senior status 
of another Washington judge, and we have agreed with the Presi- 
dent on an appointment or a nomination to that process as well. 

There is a vacancy at the present time in the Western District 
of Washington in addition to the one in the Eastern District of 
Washington. Senator Murray and I have agreed on a nomination 
to that position. 

Now, I think each of us can say that in every one of these cases, 
we feel that the individual whom we have picked is highly qualified 
for the position. At the same time, I think we are keeping a good 
philosophical balance on each of those courts by these picks as well. 

I go into this in some detail, Mr. Chairman, because some of 
these nominations are controversial, and some of my colleagues, 
particularly on the Republican side, have questions, legitimate 
questions. In this case, I hope that they particularly will listen to 
the advice and counsel that I have in this respect as a former attor- 
ney general of my State, as being someone quite familiar with the 
bar, and familiar with all of the people with whom we are dealing. 
And I want to emphasizes that that in no way undercuts my sup- 
port for these nominations. They are appropriate nominations. 
They are good people, quite independently. But they are a part of 
a consultation process that involves a lot more names than just the 
names that you have here today. 

Margaret McKeown has been very patient. It has got to be very 
difficult to practice law in a large firm such as hers when the proc- 
ess of becoming a Federal court judge is as drawn out as it is at 
the present time. Clients obviously are, you know, wondering who 
is going to advise them next. And I must confess that as a part of 
this overall process some of the delay in her nomination can be 
properly laid at my feet. But at this point, we have a total and 
complete agreement on these nominations. 

I simply want to tell you that I am very, very much in support 
of it. I hope other States' Senators will have the kind of partner- 
ship that Senator Murray and I have forged in this connection, and 
I think we can say from the State of Washington, when we get fin- 
ished with all of this, we will have made a major contribution to 
filling the many vacancies in the Federal courts at least in the 
West. 

So, we are here joined together to give our strong recommenda- 
tion in favor of these two nominees. 

The Chairman. Well, thank you, Senator Gk)rton. You have 
played a particular role in helping to break the logjam here, and 
we appreciate it. And we appreciate you and Senator Murray. You 
have kept after us on the committee to get these done, and we will 
sure try to get that done for both of you, as well as your State. 

Senator Gorton. I guess the House has not allowed those two 
to come back, so if I may once again say that both Congressman 
White and Congressman Campbell were here particularly on behalf 
of Margaret McKeown, and I know that they want to add their rec- 
ommendations to ours. 

The Chairman. We will note that for the record, and if they come 
back, we will try and give them some time. 



18 

Is there anyone else from Congress who is prepared to testify? 
I think I got everybody. 

Senator Leahy. Mr. Chairman, could I just note this? I want to 
put in the record a statement from me and also from Senator Ken- 
nedy, who is tied up on the floor on the Sacher nomination, as you 
know, a statement from him to be included in the record. 

The Chairman. Without objection, we will do that. 

[The prepared statements of Senators Leahy and Kennedy fol- 
low:] 

Prepared Statement of Senator Patrick Leahy, a U.S. Senator from the 

State of Vermont 

This afternoon the Judiciary Committee holds its first confirmation hearing for ju- 
dicial nominees this year. I hope that it will be the first of many. I commend flie 
Chairman for moving forward with this hearing in the second week of this new ses- 
sion of Congress. 

Last year we held five confirmation hearings for judicial nominees in the last nine 
weeks of the session. I have challenged the Senate to maintain the pace it achieved 
over that last part of last year. We currently have 47 judicial nominations pending 
before the Committee, including 12 nominations that we received on the first day 
of this session. I expect the President will continue to send us well-qualified nomi- 
nees over the coming weeks and I have pledged to work with the Chairman to have 
prompt hearings on these nominees, just as he cooperated when he served as the 
Ranking Member in 1994 to hold 22 confirmation hearings for judicial nominees. I 
will do all that I can to help end the vacancy crisis that is plaguing the Federal 
courts and threatening the quality of justice for the American people. 

Today we will hear from two women nominees whose nominations have been 
pending for many months. Susan Oki Mollway was first nominated to fill a vacancy 
on the United States District Court for the District of Hawaii in December 1995, 
over two years ago. She had a confirmation hearing in March 1996 and was re- 
ported unanimously by the Committee to the Senate in April 1996. Her nomination 
was not considered by the Senate before adjourning in October 1996. That was the 
session in which the Senate confirmed only 17 judges. Ms. Mollway is rated well 
qualified by the American Bar Association and is strongly supported by both distin- 
guished Senators from Hawaii. 

We will also hear from M. Margaret McKeown, who was first nominated in March 
1996. It has taken almost two years for Ms. McKeown to receive a hearing. She is 
rated well quedified for this appointment by the American Bar Association. She was 
nominated to fill one of the many vacancies on the Ninth Circuit Court of Appeals. 
I look forward to hearing her endorsed by both Senators from Washington State. 

I am not certain what was held up these fine nominees for the past two years. 
I hope that we will not see their nominations complicated further by attempts to 
impose ideological or political litmus tests on judicial nominations. I trust that these 
nominations will be reviewed on their own merits and not used as surrogates for 
partisan debate about other issues. 

In addition, we will hear from Richard Young, who was nominated last summer 
to the District Court for the Southern District of Indiana and is strongly supported 
by the Senators from Indiana; and Edward F. Shea, who was nominated last Sep- 
tember to the District Court for the Eastern District of Washington and is supported 
by both Senators from Washington; and Jeremy Fogel, who was nominated last Sep- 
tember to the District Court for the Northern District of California. 



Prepared Statement of Senator Edward M. Kennedy, a U.S. Senator From 
the State of Massachusetts 

Mr. Chairman, I am pleased that we have the opportunity today to consider the 
nominations of several distinguished individuals to the federal courts. 

Jeremy Fogel has been nominated to fill a vacancy in California's Northern Dis- 
trict. He is a graduate of Harvard Law School and is currently a judge on Califor- 
nia's Santa Clara Superior Court. In 1997, the California Judges Association award- 
ed him its President's Award for distinguished service to the state judiciary. He has 
been active in his community, serving as a volunteer on the Commission on the De- 
velopmentally Disabled in the county and on other worthwhile causes. 



19 

Edward Shea has been nominated to the Eastern District Court of Washington. 
He is a Georgetown Law Center graduate and a partner in his firm in Washington 
State. He has also been honored with a place in Who's Who in American Law. And 
he is a son of Massachusetts, and worked in ovur Boston public schools before going 
to law school and eventually moving to Washington State. 

Richard Young has been nominated for Indiana's Southern District Court. He is 
a graduate of George Mason Law School in Arlington and is currently serving as 
a state judge in Evansville. He also serves on the Board of Directors for the state 
Judicial Conference. In 1996, the Evansville Bar Association presented him with its 
Service Award for outstanding service to the Association. 

In addition to these three individuals, I am particularly pleased that after nearly 
two years, the nominations of Mary Margaret McKeown to the Ninth Circuit Court 
of Appeals and Susan Oki Mollway in the District Court of Hawaii are on todays 
agenda. 

Mary Margaret McKeown is a Georgetown University Law School graduate and 
becjune the first woman partner in Perkins Coie [COO-EY], the largest law firm 
in the Pacific Northwest. She enjoys broad bipartisan support. Both Washington 
State Senators support her, and so does the Governor. She also has the support of 
RepubUcan Congressman Rick White of Washington and Tom Campbell of Califor- 
nia. In addition, she also has the support of William Ruckelshaus, President Nixon's 
Deputy Attorney General, and Richard Willard, President Reagan's Assistant Attor- 
ney Greneral for the Civil Division. Severed former Republican senators have also ex- 
pressed their support, including Clifford Hanson, Dan Evans, William Brock, and 
Alan Simpson. 

Susan Oki Mollway is a cum laude graduate of Harvard Law School and a partner 
in a prominent Honolulu law firm. She is a past recipient of the Hawaii Women 
Lawyers' "Outstanding Woman Lawyer of the Year" Award, and is well known in 
Hawaii for her extensive civil Utigation experience. 

I commend all of these nominees for their leadership and for their strong commit- 
ment to pubUc service, and I congratulate them on their nominations. I thank the 
Chairman for scheduling today's hearing and I look forward to hearing from our 
nominees and tlieir approval by the committee and the full Senate. 

The Chairman. We will call on Margaret McKeown first, and 
then we will bring all of the district court judges up separately on 
a second panel. Ms. McKeown, if we could have you come forward, 
and if you will raise your right hand. Do you swear that the testi- 
mony you are about to give in this hearing shall be the truth, the 
whole truth, and nothing but the truth, so help you God? 

Ms. McKeown. I do, so help me Grod. 

The Chairman. Thank you. 

We are delighted to have you here today and finally get you be- 
fore the committee. Perhaps you would like to introduce members 
of your family or any others who are here with you today. We 
would love to have you take time to do that, and then any state- 
ment you care to make, we would love to hear it. 

TESTIMONY OF M. MARGARET McKEOWN, OF WASHINGTON, 
TO BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Ms. McKeown, Thank you, Mr, Chairman. I don't have a state- 
ment, but I appreciate the opportunity to introduce my family. 

In addition to my husband, Peter Cowhey, and my daughter, 
Megan, who I believe were introduced by Senator Murray, my 
mother is here from Wyoming; my sister, Pat Nagel, a member of 
the Wyoming State House of Representatives; and my brother, 
Mike; my secretary from Seattle, Roseanne, and her daughter; and 
also Lise Kenworthy, 

I have a number of other friends here, but I recognize the press 
of time so let me just say that I appreciate my friends and col- 
leagues coming from Perkins, Coie, from the White House Fellows, 
from the Girl Scouts, former members of Senator Hansen's staff 



20 

with whom I worked many years ago, friends from law school here 
at Georgetown, attorneys in Washington, DC, with whom I have 
practiced on both sides, and other friends from Washington, DC. 
So, I won't introduce them, but I do appreciate their being here and 
wanted to let you know they are here. 

The Chairman. Well, thank you. We welcome all of you, espe- 
cially members of the family, and this is a big occasion, and it is 
hopefully a good occasion. 

We do have some questions, and I would like you to answer 
them, and it is really for your benefit as much as anybody else so 
that we can clear the air on some of these problems that have aris- 
en. 

By the way. Senator Hansen has called me. I served with him 
early in my career. That kind of dates me. Senator Simpson has 
called. They are both favorable, very favorable to your nomination 
in this matter, and there have been others who have called as well. 

In the motion you filed in 1994 on behalf of the Association of 
Churches to prevent the Secretary of State from filing Initiatives 
608 and 610, you argued that the initiatives violated fundamental 
rights and were patently unconstitutional. This is with regard to 
the antigay initiative. I have made a few questions regarding the 
arguments in this motion. 

QUESTIONING BY SENATOR HATCH 

Which fundamental rights do you believe the initiatives threat- 
ened to violate? 

Ms. McKeown. The fundamental rights that were argued that 
the initiative threatened to violate that our clients, the Association 
of Churches, asked us to pursue were the right of freedom of 
speech and the right for political association and participation in 
the political process. 

The Chairman. OK. Now, aside from any personal or policy argu- 
ments, do you believe that it is a violation of the U.S. Constitution 
for a State to pass a law prohibiting the placement of a child in 
a home where homosexual activities are present when neither 
guardian in the home is the biological parent of the child? 

Ms. McKeown. Senator, I haven't examined that particular as- 
pect, but I would say that with respect to homosexuality that it is 
not a protected status or class, and that were a State to pass such 
a law, it would be presumed to be valid and constitutional. It would 
be given that presumption, and the particular aspect of it as to 
whether it was appropriate, whether it satisfied an appropriate in- 
terest, would be something that would need to be looked at at the 
time. But certainly it would be within the realm of a State legisla- 
ture to be able to pass and enforce such a law. 

The Chairman. In the same motion, you also argued that the ini- 
tiatives violated the guarantee clause of the U.S. Constitution. You 
quoted an Oregon State case, a decision to support your argument 
that a guarantee clause challenge is justiciable in the State courts. 
However, the Supreme Court has consistently held that the guar- 
antee clause presents a political question that is not subject to judi- 
cial review. 

Now, do you believe that it is constitutional for U.S. district or 
appellate court judges to review challenges to the guarantee clause 



21 

under those circumstances? And if so, under what circumstances 
can they do that? 

Ms. McKeown. No, Your Honor; I do not believe that a political 
question is justiciable in the Federal court, and were a guarantee 
clause argument to be made, I believe it would fall into that cat- 
egory. In this particular situation, the argument was made in State 
court, and there was precedent for such an argument in State 
court. But it would not be appropriate in a Federal court arena. 

The Chairman. OK. And in your motion, you asked the judiciary 
to halt a democratic process from going forward because the initia- 
tive intruded on judicial powers. You wrote, "Only judicial decisions 
may determine the proper interpretation of constitutional require- 
ments." 

Now, aside from judicial review, do you believe the judiciary 
should be involved in the legislative process? 

Ms. McKeown. No; I do not. I believe that one of the fundamen- 
tal parts of our system which is very, very important is the separa- 
tion of powers. And the judiciarjr's role is to decide cases and con- 
troversies before it. The judiciary's role is not to legislate and not 
to make policy. That is a role that is delegated quite clearly in our 
Constitution, and certainly under also the Washington Constitu- 
tion, to either the U.S. Congress or to the State legislature. 

The Chairman. What do you believe is the extent of the judi- 
ciar/s role in formulating public policy? 

Ms. McKeown. I don't believe that the judiciary has any appro- 
priate role in formulating public policy. The judiciary is not a legis- 
lature. It should never substitute its views for that of the legisla- 
ture or the Congress, but instead should review the case and con- 
troversy before it and determine the law as applied to the facts. So 
it has no role in public policy. 

The Chairman. Do you believe that it is constitutional for a U.S. 
district or appellate court judge to interfere with the legislative or 
democratic process such as a citizen initiative if the judge disagrees 
with the issue or issues or law or laws promulgated by the legisla- 
tive or democratic process? 

Ms. McKeown. No; I believe that would be totally inappropriate, 
Mr. Chairman. Having come from a Western tradition, I am a 
strong believer in initiatives. It is something from the States in 
which I have lived that had been a very, very important part of the 
democratic process. And while initiatives, of course, are presumed 
constitutional and valid, they are subject to very limited review as 
to constitutionality which may be appropriate. And, of course, it is 
also a very serious question as to whether a State initiative should 
be appropriately reviewed in Federal court. 

But certainly the views of a judge on any particular issue or 
upon the particular initiative at hand should play absolutely no 
role in that judge's decision on the legal merits that are before the 
judge. 

The Chairman. Under what circumstances, then, should the judi- 
ciary interfere with or become involved in the legislative or demo- 
cratic process? 

Ms. McKeown. Well, of course, I think the judiciary would only 
be involved if a case were brought to it. It would be extremely rare, 
and I appreciated what I think is nice language that the ninth cir- 



22 

cuit has suggested that any interference needs to be with very, 
very extreme caution, that, of course, the initiative, if it is passed 
by the people or put on the ballot by the people, is presumed to be 
valid and constitutional, and that is a deference that the State and 
Federal court would appropriately show. 

The Chairman. Let me turn to Senator Leahy at this time, and 
then we will go to Senator Sessions. 

QUESTIONING BY SENATOR LEAHY 

Senator Leahy. I really do not have questions as such, Mr. 
Chairman. I have read Ms. McKeown's background. I think that it 
is one of the most impressive ones we have had before this commit- 
tee, and I have been here for a number of years. 

I think it would be safe to say you would feel strongly com- 
pelled — and this sounds like a leading question. I might ask it this 
way: Would you feel strongly compelled to follow the stare decisis 
of your own circuit? 

Ms. McKeown. Yes, Senator Leahy; I would. Of course, first and 
foremost, I would look to the U.S. Supreme Court and to the Con- 
stitution, but I would also 

Senator Leahy. I am assuming the absence of a controlling case 
from the U.S. Supreme Court or a clear-cut point in the Constitu- 
tion, but assuming you have a case that appears to fall within the 
precedent of your circuit. 

Ms. McKeown. Then I would absolutely follow the precedent of 
my circuit, which is the ninth circuit. 

Senator Leahy. Now, you have had a great deal of time on the 
other side of a bench. Do you feel any difficulty in knowing that 
you would make the change from being a litigant for a particular 
side, whatever that side might be — and with your background you 
have had to represent a very significant and diverse number of cli- 
ents. Do you feel any difficulty in making the step to where you 
have this almost indefinable judicial temperament that one must 
have in listening to both sides of the issue? 

Ms. McKeown. Senator Leahy, I don't believe that I would have 
difficulty making that transition, and it wouldn't be a transition; 
it would be an absolute break from many years, 20 or more years 
of being an advocate in the State and Federal court system. 

But I think that the breadth of my experience ranging from anti- 
trust, securities, banking, contract, product liability, would be of 
assistance to me. 

I have also had the opportunity over the years to serve quite fre- 
quently as a mediator in State and Federal courts, and in that ca- 
pacity, I was asked as an independent third party to attempt to re- 
solve litigation so that it would not need to go to court. We are 
quite fortunate in my district, the Western District of Washington, 
to have a very active mediation program. And I am certainly proud 
that I have been able to mediate a range of cases, everything from 
solving a securities class action case to resolving design and trade 
secret rights in a kayak company. 

So I have had a range there of cases where my peers, the judges, 
and my colleagues have asked me to serve in that capacity. And 
I also recognize that there is a very big difference between being 
an advocate and checking your views at the door when you become 



23 

a judge, where what you have done for prior clients, any personal 
views, would be totally disregarded, and your role and obligation 
as a judge is, as you mentioned in your earlier question, to follow 
the law. And I would affirm to do that. 

Senator Leahy. Well, let me just ask one last question, because 
I think it falls to that ability. Would you tell the committee — I be- 
lieve I know the way the system works, but tell the committee how 
a mediator is chosen. 

Ms. McKeown. In the cases in which I have been chosen, it has 
been a variety of ways. In the Federal court in the Western District 
of Washington, we have a panel of available mediators, and we are 
called by agreement of the parties. So both sides usually need to 
agree upon the mediator, and that is one means by which I have 
been chosen. 

The other means I have been chosen is where the parties either 
don't agree or through some other reason the judge has made a de- 
cision that there needs to be a mediation, and then I am asked, in 
effect, by appointment of the court to be a mediator. 

And in other situations — and I should say all of that is done on 
a volunteer basis to the service of the Federal courts. I have also 
in situations where mediations are very lengthy and might take 
longer served as a mediator with half my fees paid by both or all 
of the many parties involved in a litigation. 

Senator Leahy. So that you basically end up in a situation where 
in most of these cases you are going to have to be seen as accept- 
able to both sides. 

Ms. McKeown. That is right. In these cases, in order to be an 
effective mediator, it is important that you have credibility both 
with the lawyers and the clients who are coming before you to try 
to reach a resolution, because a mediation is very important. If 
they resolve the case, it will not go to court. So, for many people, 
this is their day in court, and that is to have the dignity of a proc- 
ess to try to resolve by alternate dispute resolution rather than 
going to court. 

It has really been a marvelous tool in the Western District of 
Washington to clear the docket, and I might say that our overall 
mediation program there has been quite successful. 

Senator Leahy. Thank you. 

Thank you, Mr. Chairman. 

The Chairman. Thank you, Senator. 

Senator Sessions, we will turn to you. 

QUESTIONING BY SENATOR SESSIONS 

Senator Sessions. Thank you. 

Ms. McKeown, congratulations on your nomination for a very 
prestigious post. It is one step below the U.S. Supreme Court, and 
it is an important circuit with a big caseload and a circuit that has 
had some trouble with the Supreme Court in recent years, and 
good legal skill and hard work I think is important for us. 

I would like to ask you a few questions. As you know, this Senate 
has been focusing on the question of judicial activism because we 
believe that we need to have a commitment and an understanding 
and a belief that the nominees we confirm are committed to the 
proposition that they would enforce the law as written and not use 



50-531 98-2 



24 

redefinition of words or other things to impose a personal agenda. 
And I would like to ask a few questions. 

We have had a number of candidates for judicial office who have 
been active in the American Bar Association, and each one of them 
that I recall that we have asked have said in their personal view 
the ABA should not have taken a position on a number of con- 
troversial issues, in particular the abortion issue. And I believe, ac- 
cording to my information, that you supported the proposition that 
the ABA would take a position affirming the right of abortion in 
America. Is that correct? And how do you feel about that? Both two 
questions, number — well, first, the propriety of a professional orga- 
nization taking a position on that controversial issue. 

Ms. McKeown. As to the propriety of the American Bar taking 
a position, I think in recent years there has been a lot of discussion 
about that, and I read and heard a number of people, including the 
chairman and others, commenting and I think that the organiza- 
tion ought to take a very, very hard look at that because the mis- 
sion of the American Bar is most properly served, I believe, if they 
stick to their knitting, which is the professional service, lawyers, 
and administration of justice. With respect 

Senator SESSIONS. Well, did you sign a report recommending that 
the ABA adopt a position on that in 1992? 

Ms. McKeown. With respect to the resolution that you reference, 
perhaps I can explain the background of that. I was asked as one 
of the women members of the House of Delegates if I would sup- 
port a resolution which was consistent with the Supreme Court rul- 
ing at the time, and I did so. It was consistent with the Supreme 
Court ruling, and I, along with others, like Jamie Grorelick, sup- 
ported that resolution. I was involved in no report or related mat- 
ters, nor was I proponent or activist on that issue. I simply stated 
my position and did so. 

Senator Sessions. Do you believe that there is a constitutional 
protection for partial-birth abortions? 

Ms. McKeown. I have to say. Senator, that I didn't even know 
what that was until recently, when we have all been reading in the 
paper, and that I am probably as horrified and distressed as many 
Americans in hearing about that. 

As far as whether there is constitutional protection for it, I think 
you can appreciate that because that debate is in Congress now 
and because that is potentially an issue that could come before the 
circuit, that it would be inappropriate to state an advisory opinion. 

However, it is important to note that if you — in my reading of 
the Supreme Court law at this time, that there is no absolute right 
to abortion, and the Supreme Court has made it quite clear that 
there are a number of restrictions that have been appropriately 
upheld, and they are using what I understand to be an undue bur- 
den standard. And so, as that issue moves forward in both public 
debate and perhaps here in Congress, I believe that the courts will 
apply the Supreme Court rules recognizing those limitations. 

Senator SESSIONS. Well, I just would point out that abortion is 
one of many issues that demonstrate the concern of citizenry who 
believe that they ought to have the authority to make popular mat- 
ters of social and public and health policy, and by ripping it out 
under the guise of interpreting the Constitution and saying this is 



25 

a constitutionally mandated is an antidemocratic act in a way. It 
removes — makes it almost impossible for the people to speak. So 
those are some of the concerns we would have there. 

Let me ask you about the gay rights initiative, a brief that you 
wrote. Senator Hatch has asked you some about it. Essentially — 
it was like the Colorado initiative, although I suppose more com- 
plex and with some additions to it. But essentially it would deny 
a protected or special status for homosexuals constitutionally in the 
State? Is that what the purpose of those resolutions were? 

Ms. McKeown. I believe that that was one of the purposes. 
These were, as you accurately characterize, fairly complex because, 
unlike the Colorado resolution, which I have read because I read 
the Supreme Court ruling in Rohmer, it was fairly succinct and to 
the point. These initiatives were several pages long and covered a 
variety of subjects. That was one of the subjects. 

The initiative challenge was really to the participation in the po- 
litical process as opposed to the specific substance of these initia- 
tives. 

Senator Sessions. You filed a brief in that case. I know you 
are — were, at least at one time, chair of the Legal Committee of the 
American Civil Liberties Union. Did you file that as an American 
Civil Liberties Union attorney or as a private attorney? Or how 

Ms. McKeown. No. 

Senator Sessions [continuing]. Did you come to file that brief? 

Ms. McKeown. The brief that I filed there was on behalf of the 
Washington Council of Churches, which is an organization of many 
denominations — Baptist, Catholic, Methodist, and Presb3rterian — in 
the State of Washington. I did not represent the ACLU in that liti- 
gation. Senator Sessions. 

Senator Sessions. When you argued that case, I know you are 
an advocate, but you argued that the initiatives violated the equal 
protection clause — well, let me — I guess one of the cornerstones of 
the American Civil Liberties Union is their belief in free debate 
and free speech. So I am troubled by the attempt in your brief to 
have the court cease — or deny the people of the State the right to 
even vote on the question. Normally I would think it would be the 
equivalent, would it not, of filing a motion to say that the State leg- 
islature should cease debate or not be able to vote on a bill because 
it may be unconstitutional? And isn't that against the principle of 
free speech and public debate? 

Ms. McKeown. I appreciate the analogy there, but would suggest 
that this might be somewhat different. The specific issue in Wash- 
ington which was in the State court was first and foremost a proce- 
dural one, and that was simply whether under our State constitu- 
tion and the various statutes that govern initiatives, whether this 
particular initiative met those rules and procedure. So that was 
really the primary and first argument. That was followed by a con- 
stitutional argument, and obviously there is a tension there be- 
tween wanting to let initiatives go forward, which, I think, they 
should. As I said, I believe strongly in the initiative process, but 
we were asking the court to determine whether this particular ini- 
tiative met Washington's own procedural guidelines, because under 
Washington precedent there has been situations where the court 



26 

felt it appropriate to look at a preelection review in these very, very 
narrow circumstances. 

As you know, I am sure, from reading of the papers, the judge 
determined that we had made a showing of likelihood of success on 
the merits, but brought up the competing interests which you men- 
tioned and determined that at that juncture it shouldn't proceed. 

I had a fairly limited involvement in that. It was brought to me 
by some associates in my firm asking if I would assist them, and 
after these court rulings, then that was the end of my involvement 
in that issue. 

Senator Sessions. Did you sign that brief? 

Ms. McKeown. I did, absolutely. Senator Sessions. Yes. 

Senator SESSIONS. Mr. Chairman, I don't want to take more time 
than I am allowed. 

The Chairman. Do you need a little more time? 

Senator Sessions. I had a few more questions I would like to 
ask. 

The Chairman. How much more time do you think the Senator 
needs? 

Senator Sessions. Maybe 5, 7 minutes. 

The Chairman. Would that be all right with you, Senator, if he 
finishes his questions? 

Senator DURBIN. Sure. Of course. 

The ChairmaI'J. Then we will turn to you. 

Senator SESSIONS. Well, I guess what troubled me, one of the 
quotes from your brief was, "The mere process of permitting an 
election on these initiatives would cause substantial and irrep- 
arable injury to individuals whose fundamental rights would be 
subjected to a popular vote." 

That language troubled me, and I guess you have given an expla- 
nation for that. 

Ms. McKeown. Would you like me to comment on that specific 
language? 

Senator SESSIONS. Yes; you could comment on that, if you would 
Hke. 

Ms. McKeown. Sure. As has been recognized here before, I was 
there as an advocate, and there the notion that there would be ir- 
reparable harm was based on testimony or affidavits that were pro- 
vided by individuals, including members of the client organization. 
And that was their factual judgment. We took that, as we do in 
every case, whether it is an antitrust case or a trade secret case, 
took those facts and applied them to the law. And it is a very, very 
high standard on injunction. 

Senator Sessions. Yes; it is. 

Ms. McKeown. It is a very high standard, and the argument was 
that, in their view, they would be irreparably harmed. Of course, 
it was for the court to determine whether, given the facts as they 
presented them and as we argued them on behalf of the client, they 
met that standard. In this particular 

Senator SESSIONS. If you had been judge, you might have ruled 
against your motion? 

Ms. McKeown. That is probably true. 

Senator SESSIONS. I think you would have done well to have 
moved against your motion. 



27 

Ms. McKeown. I think I probably would. But I have to say that 
I tried to argue within the law, and I believe I have a good track 
record. But you win some, you lose some. 

Senator Sessions. Well, later on you said on the guarantee 
clause — the chairman referred to the clause that guarantees a re- 
publican form of government. You argued that that prohibits "ini- 
tiatives that violate the principle of equal participation by all quali- 
fied voters in the political process," I believe in your brief. That 
troubles me as indicating a position pretty far outside of what I 
would understand to be the province of an initiative. Would you ex- 
plain that? 

Ms. McKeown. Yes. I had mentioned before that because this 
was in State court, and in this particular case because our clients 
wanted us to advance this argument, we did so and, in doing that, 
determined whether or not it would be appropriately argued in 
State court. And because there is precedent that the guarantee 
clause does provide a certain amount of scrutiny of initiatives in 
State court, that argument was made. 

The argument was not in any way intended to suggest that the 
guarantee clause was contrary to initiatives or that in any way ini- 
tiatives were somehow disapproved or outlawed by the guarantee 
clause but, rather, under the republican form of government that 
if there were two classes of citizens that were created, that it may 
be appropriate for the court to look at that as one further measure 
of whether this particular initiative, as drafted, and the initiative 
that was before the court was appropriate on equal protection 
grounds. 

Senator Sessions. Well, in the ninth circuit, we have had a num- 
ber of important cases in which judges have taken it upon them- 
selves to reverse initiatives and declare them unconstitutional. I 
think most of those earlier opinions have been reversed by higher 
courts. And I think we need to respect that. I think that is — ^the 
height of equal participation by all qualified voters is an initiative, 
and I certainly don't think it is antidemocratic. And it is particu- 
larly antidemocratic for a lifetime-appointed judge, no longer ac- 
countable to the voters, to be a bit cavalier, as I think some of 
these decisions have been in reversing the will of the people. It is 
an important issue. 

Let's see. With regard to the ACLU, it has taken some very good 
positions over the years and stood for some very important posi- 
tions. But it also has a history of taking positions that, I think, are 
outside the mainstream. Are you still a member? 

Ms. McKeown. No. My participation in the ACLU was sometime 
approximately early 1980's. 

Senator SESSIONS. Let me just ask a few questions. Do you be- 
lieve that the death penalty violates the Constitution of the United 
States? 

Ms. McKeown. No. I believe it is quite clear that the Supreme 
Court has spoken and the death penalty absolutely does not. It is 
constitutional. 

Senator Sessions. Well, the ACLU adheres to that view, does it 
not? 

Ms. McKeown. I honestly don't know what the ACLU 

Senator Sessions. I think that is an official position on it. 



28 

Ms. McKeown. I haven't been active in it, and I don't know what 
positions they have taken. 

Senator Sessions. Well, what was your position? You did hold a 
position with it. 

Ms. McKeown. Yes. For about an 18-month period, I was the 
chair of a legal committee for the ACLU. 

Senator Sessions. What would the legal committee do? 

Ms. McKeown. The legal committee looked at cases that were 
brought to it by the staff, and I understand basically from individ- 
uals who may call in and request representation on an issue. Var- 
ious members of the legal committee wrote something kind of akin 
to a bench memo, what the pros and cons were of the issue, and 
the committee would meet to determine if there were £in issue and 
to see if there were an attorney available in the community that 
would be willing to take that issue. 

Senator Sessions. Just briefly, the ACLU has opposed officially 
the three-strikes-you're-out sentencing laws that have appeared 
around the country. Do you share that view? 

Ms. McKeown. I do not share that view. 

Senator SESSIONS. They have opposed school vouchers for sectar- 
ian schools, arguing that it is unconstitutional. Do you share that 
view? 

Ms. McKeown. I have never taken a position or a view on that. 
I think that in light of the recent Supreme Court decision in the 
area of schools that this is an issue that may come before either 
a district or a circuit court, so I wouldn't 

Senator SESSIONS. I would respect that. 

Ms. McKeown [continuing]. To render an opinion, but I certainly 
recognize and am quite aware of the U.S. Supreme Court rulings 
on this, and it is not an issue I have ever had any involvement or 
occasion to give an opinion on. 

Senator Sessions. Just briefly, opposition — ^they have opposed 
using V-chips in televisions to screen violence, presumably under 
the Constitution, some principle of the Constitution. Do you adhere 
to that view? 

Ms. McKeown. I can tell you I don't know what the ACLU's po- 
sition is, but I can tell you as an intellectual property lawyer that 
I have looked at that, and I believe that and hope that V-chips and 
other technological solutions will get even more sophisticated so 
that we can use them to protect children and others. And I think 
it is an appropriate use of technology. 

Senator SESSIONS. Well, it would appear to me so, and I am sur- 
prised that the ACLU would oppose that. It is certainly free choice. 

Opposition to voluntary labels on music albums have been one of 
the positions, and opposition — do you share that view? 

Ms. McKeown. Again, I have not had occasion to look at that, 
but as an intellectual property lawyer and somebody who does deal 
in the copyright area, I know that a number of my clients have 
looked quite seriously and felt that that is an appropriate way to 
go so that they can quell some of the controversy. 

Senator SESSIONS. I would certainly agree. And they have sup- 
ported decriminalization of drugs. Do you favor that? And have you 
ever spoken in favor of that? 



29 

Ms. McKeown. I do not favor that. I do not favor decriminaliza- 
tion of drugs. And your question to me is the first time anyone has 
asked me to take a formal position. I haven't been involved in that 
issue before. 

Senator Sessions. Well, I have been involved in the effort 
against drugs for a long time and invested a lot of effort, and I 
think that it is a very detrimental problem for America, the use of 
drugs. 

Ms. McKeown. I agree with that. 

Senator Sessions. What about a moment of silence in school? 
The ACLU has opposed that, the organization that you have been 
a member of. Do you favor that? Do you oppose a moment of silence 
in school? 

Ms. McKeown. Senator Sessions, I am a believer in religious 
freedom, and, again, on that specific issue, because it implicates po- 
tential constitutional issues and issues on which the Supreme 
Court has spoken, at least, around, I think it would be inappropri- 
ate to render an advisory opinion on that. 

Senator SESSIONS. Well, you know, I don't think you are bound 
by the positions, every position of an organization that you join. 
But, I think, for some of the reasons I have just raised, that is why 
I have not chosen to be a member of the ACLU. 

Thank you, Mr. Chairman. 

The Chairman. Thank you. Senator. 

Senator Durbin. 

Senator DuRBIN. Ms. McKeown, welcome to the committee. 

An impressive list of supporters, including Congressman Tom 
Campbell, Republican of California, who has now rejoined us 

The Chairman. Senator Durbin, I wonder if we could interrupt 
and allow the two Congress people to testify. 

Senator DuRBlN. Sure. Of course. I think that is a good idea. 

The Chairman. So that they can get back to their important 
work. Would you mind, Ms. McKeown? 

Ms. McKeown. Absolutely not, Mr. Chairman. 

The Chairman. If you two will take these two seats, then we will 
take your testimony first, Tom, and then. Congressman White, we 
will take your testimony. Go ahead. 

STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF CALIFORNIA 

Representative Campbell. Mr. Chairman, that is awfully kind of 
you. Thank you, and thank you. Senator Durbin. 

The Chairman. I am sorry I didn't notice before. 

Representative Campbell. And thank you, Senator Durbin, my 
former colleague. Senator Sessions. My colleague and I, Rick 
White, both members of the Republican Party and Republican Con- 
ference, had to make a vote over on the floor, and so we missed 

The Chairman. We understand. 

Representative Campbell. I had this to add. It is short but it is 
very important, I believe. I met Margaret McKeown when we were 
both White House fellows. We met in the summer of 1980. She was 
assigned to the Department of Interior, and I was assigned to the 
White House. Then the election came, and she was transferred over 
to the White House. 



30 

That was a time of some difficulty for White House fellows. It is 
one of the few occasions where the White House Fellowship Pro- 
gram, a nonpartisan program, is tested by the necessity to move 
between two administrations. And I just want to mention — more 
than mention, I want to emphasize that Margaret dealt with that 
difficulty and the political aspect of it in absolutely the finest fash- 
ion. A time that could have been one of great strain, a time that 
could have been one of partisanship, she instead served her country 
admirably for the Secretary of Interior, Cecil Andrus, I believe, and 
then moved over to the White House under President Ronald 
Reagan. Curiously, I moved from the White House under Ronald 
Reagan to the Justice Department under William French Smith. 

So, I know from that particular personal episode and knowing 
her personally during that that she displayed the very finest of de- 
meanor, patience under a partisan, potentially partisan strain. 

Second, as you have been kind enough to hear me on occasion on 
antitrust matters, that is my field. I am a professor at Stanford 
Law School. I have been teaching antitrust since 1983. And Mar- 
garet McKeown is very well known and highly regarded in the field 
of antitrust, and I mention that because it has a very important 
component in the Federal judicial jurisdiction and will obviously be 
part of her duties as a ninth circuit judge. 

Mr. Chairman and Senators, thank you for the exceptional cour- 
tesy you have shown me. On the matter of judicial temperament 
and knowledge in the field in which I have a little bit of back- 
ground, I recommend Margaret McKeown enthusiastically. 

Thank you, Mr. Chairman. 

The Chairman. Thank you, Congressman. We appreciate your 
testimony. And, Ms. McKeown, I have, as you know, great respect 
for Congressman Campbell and especially his knowledge about 
antitrust, and we appreciate your testimony. I can see now why 
you were willing to allow these two gentlemen to interrupt you. 
[Laughter.] 

Congressman White. 

STATEMENT OF HON. RICK WHITE, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF WASHINGTON 

Representative White. Thank you. Senator Hatch. I appreciate 
it. Senator Durbin, Senator Sessions, thank you very much. 

I have very little to add in terms of concrete facts, but I do think 
I have a personal perspective that maybe other witnesses have not 
had since I have known Margaret for, I guess it is 15 years al- 
ready. She was essentially my boss in the first 3 or 4 years that 
I worked for a large law firm in Seattle. Then she was my partner 
for 5 or 6 years after that, and I have really seen her in a variety 
of situations. And I just want to emphasize to the committee that 
probably none of us in a law firm of that size agree with everything 
that all of our partners do. But I can tell you that Margaret was 
held in the highest regard by all of us. She is one of the most hon- 
est people you will find, one of the most capable you will find, one 
of the fairest people you will find. She is an absolutely first-rate 
lawyer, and I think she would make a fine judge. 



31 

So, I just thought you would appreciate hearing that from the 
perspective of someone who has practiced with her for a long period 
of time. 

The Chairman. We do appreciate it, and that testimony is very 
powerful here because you did practice with Ms. McKeown. And, 
frankly, I have been very impressed ever since I first met her in 
my office. Naturally, sometimes when you do represent controver- 
sial issues, you can be questioned about it. I mean, let's face it. And 
attorneys represent clients, and sometimes they are clients that are 
unsavory. Sometimes they are clients with wacky ideas, like the 
ACLU. [Laughter.] 

Actually, some of my most enjoyable moments here have been 
when I have agreed with the ACLU. They have been rare, but the 
fact is, they do a lot of good in many ways. And they are important 
in our society, as are antithetical organizations. 

So we really appreciate your making this effort, and for you to 
come over twice in between votes, I think, is a real tribute to you, 
Ms. McKeown, and we are grateful to have you here. 

Representative White. It is always an honor to be on this side 
of the Capitol. Thank you very much. 

The Chairman. It is an honor for us to have you. 

Representative Campbell. I would never seek it myself. 

[Laughter.] 

The Chairman. But we know how you feel. 

Representative Campbell. Thank you, Mr. Chairman. 

The Chairman. Senator Durbin. 

QUESTIONING BY SENATOR DURBIN 

Senator DuRBlN. I want to thank both the Congressmen. The 
only thing I can say that might assault the credibility of Congress- 
man Campbell is that he grew up in Chicago and moved to Califor- 
nia. 

Representative Campbell. St. Ignatius. [Laughter.] 

Senator DURBIN. But he still kept his loyalties there. 

Ms. McKeown, as I started out saying, you have an extraordinary 
array of support. In fact, your support from the Republican side of 
the aisle, at least in the list given to me, is as strong or stronger 
than your support from the Democratic side, and to have both U.S. 
Senators testify 

The Chairman. Don't say that. I have had enough trouble. 
[Laughter.] 

Senator DuRBlN. But let me ask, How long has your nomination 
been pending before this committee? 

Ms. McKeown. I believe I was nominated in March 1996. 

Senator DURBIN. So, it is just a couple months short of 2 years 
that you have been waiting. Have you had a hearing before? 

Ms. McKeown. No, Senator Durbin, I have not. 

Senator DURBIN. I might say, and I know the chairman under- 
stands our general party position on this, that I think that some- 
times these delays can cause real personal hardship and profes- 
sional hardship. I have had a number of judicial candidates in Illi- 
nois contact me after only a few months saying, "I didn't realize 
what a pain this would be. A lot of clients are asking if I'm going 
to be around next month, and my family would like to know about 



32 

my future." So, I am glad you are here today, and not dwelling on 
why it took so long, I think we should just try to focus on the im- 
portant job ahead of us in making certain that you have your fair 
chance here to testify. 

I don't think any of the people gathered here today will be sur- 
prised to hear some of my colleagues from the other side disavow 
the ACLU. They may be surprised — and shouldn't be, either — that 
they also disavow the American Bar Association, all its works and 
all its pomps. And it comes as a surprise to me, as I hear many 
of these witnesses who are questioned seriatim on a wide array of 
issues which many of us demand time to reflect on before we would 
respond to questionnaires. And I just heard the array of ACLU 
issues that you were asked to respond to, and I thought your an- 
swers were all reasonable. But it really is a departure, I think, 
from what I recall has happened in previous Congresses before the 
Judiciary Committee. Those questions were usually reserved for 
Supreme Court nominees, and most of the times they would say, 
"I'd rather not answer. I may have a case coming before me that 
might have an issue of that type." 

And so, I wonder if maybe we are going down a path here that 
might be a little dangerous if we 

The Chairman. I can assure you, Senator, that these questions 
have been asked for the last 22 years I have been on the committee 
in various forms. So, it is just part of what we do here. 

Senator Durbin. Well, let me just question whether we should 
continue to, because I am not sure that it is a smart way to go. 
I mean, if there is going to be a conservative nominee from a Re- 
publican coming before this committee and I am going to have to 
call out the agenda of the landmark Legal Foundation, the Federal- 
ist Society, and the Washington Legal Foundation and the Ruther- 
ford Institute and find out where they stand on every one of the 
cases that those groups have brought, I don't know that that nec- 
essarily serves our purpose. And I hope that — and I don't want Ms. 
McKeown to become the focal point of all this, but I hope that our 
approach to this will be with a little broader brush. 

The testimony that I have just heard from two Republican Con- 
gressmen about Ms. McKeown is compelling, these people who have 
no political axe to grind but happen to know her, know her values 
and her background, and that makes all the difference in the world 
to me. 

Let me also ask you a couple things about this initiative that you 
were involved 

Senator SESSIONS. Mr. Chairman, a matter of personal privilege, 
may I make a comment? 

The Chairman. Yes. 

Senator SESSIONS. I do not believe Senator Durbin would ever 
contend that a member of an organization who came before this 
committee to be confirmed for a judge couldn't even be asked about 
the positions that that organization took. We have asked those 
questions, and we have allowed her to answer those questions on 
some controversial issues that I think are important to ask. And 
I just would feel strongly that the Senator would be out of line and 
would not want to bind himself to that position. 

Senator DuRBiN. Let me 



33 

Senator Sessions. If a Washington Legal Foundation attorney 
came here, I think you ought to be able to ask him about the posi- 
tions they have taken. 

The Chairman. Let me do this. Whenever one side or the other 
has been in the majority, we have had some instances with which 
the other side has disagreed. I can point to plenty of illustrations 
when the Democrats were in the majority where a lot of tough 
questions were asked that Republicans didn't always like. So, I 
would rather avoid that here because I think any Senator has a 
right to ask, on this committee, any question that that Senator 
cares to ask. 

Now, I have to say I think sometimes it is wiser to ask some 
questions rather than others, but I am not going to judge my col- 
leagues on that, and I find nothing wrong with the questions that 
have been asked here today. 

But let me say this: I have an interest — I for one am one of the 
happiest in having Ms. McKeown before the Senate committee 
today. You were caught in a very serious set of problems — and if 
I could just take another minute. Senator Durbin — involving the 
Ninth Circuit Court of Appeals, which to many Republicans is out 
of whack, the most reversed circuit court in the country, time after 
time after time, with some of the leading activist judges in the 
country — not some, the leading activist judges in the country, who 
are condemned in many respects by many in their own profession 
and party for what they are doing. And it is a matter of great con- 
cern. 

We also got into that bind on whether we should divide the cir- 
cuit or not, and it finally was resolved with a commission at the 
end. And I hope that we can resolve it in a satisfactory way for the 
various States involved. 

I think you are going to find it is going to be difficult for us to 
do that any better than what they were trying to do last year. But 
give it another chance. But you were caught up in that, plus there 
were other factors, some of which were valid and some of which 
were not, in my opinion. So there is plenty of reason for people to 
feel a little bit badly here, and I, for one, feel badly that it has 
taken us so long to get you before the committee. 

But with that, I hope we can not get into any fights here. If we 
are going to do that, let's do that when your nomination comes up 
before the committee in the markup. But let's ask questions, if we 
can. I am not — like I say, you can ask anything you want, but I 
would rather stick to this matter of getting your confirmation hear- 
ing over so that we can move you in committee. And I will assure 
you that unless something comes up that we don't presently fore- 
see, we will try to bring you up for markup in the committee within 
the next few weeks. And I do agree with Senator Durbin that it is 
a bad thing for this committee to, in the few cases that we do — 
and it has been done by Democrats, and it has been done by Re- 
publicans — to have long delays, because it is very difficult for the 
nominees who are in practice to phase down their practice and 
know when to phase it down, how to phase it down, and in many 
cases they have to phase it down in order to be able to meet the 
obligations of confirmation when it occurs. And I agree with that. 



34 

and let's hope that we all on this committee will do a better job 
this year than we have done in the past. 

But we are also prodding the administration to do a better job, 
too, in getting nominees up here, qualified nominees, and when 
they do, they go through fairly fast except with some exceptions, 
and yours is one of those, and I apologize to you. 

Senator Durbin. 

Senator Durbin. Mr. Chairrnan and Senator Sessions, I suppose 
the bloom is off the rose when it comes to these questions, and 
maybe we have now established it as the standard for this commit- 
tee. And I will not stand here and say that on no occasion will I 
ever consider asking those questions. But I wonder if it really is 
in the best interest of finding the best judges. Maybe it is time for 
us to reflect a little bit on the standards that we use and the ap- 
proach that we use, and that is, I hope, worthy of our attention. 

The Chairman. I just bring to your attention, Senator Durbin, 
that we felt exactly the same way when the Democrats controlled 
the committee during some of those markups, during some of those 
hearings. So, in all honesty, I agree with you. This should be a 
civil, decent, good process in every way, and we are trying to do 
that. And I will say this: One of the best and most active people 
in seeing this process is good has been Senator Sessions, and you 
also, because both of you have played significant roles in the con- 
firmation of these judges over the last number of years. You have 
chaired a whole — many more hearings than almost any other Sen- 
ator. So, I am personally very appreciative, and I think you have 
taken these matters very seriously. It means a lot to me. I think 
it should mean a lot to the country. 

I am sorry to interrupt you again. 

Senator Durbin. Mr. Chairman, I hope, regardless of the history 
of the committee, that we might rise to the occasion here. I think 
people are looking for us to do things a little differently and a little 
better, and perhaps we could agree on a bipartisan basis to do that. 

The Chairman. You bet. 

Senator Durbin. Let me ask a question or two of Ms. McKeown 
about the pro bono work. We have focused on the pro bono work 
which you were engaged in for the church group, the one involved 
in the ACLU. From your background, though, I see you have done 
extensive pro bono work for other organizations. Is that not true? 

Ms. McKeown. Yes; I have, Senator Durbin. Probably something 
I am most proud of is a case I took on appointment from the Fed- 
eral court in Tacoma involving immunity of court reporters and 
successfully argued that to a 9 to decision in the Supreme Court, 
reversing the ninth circuit, Senator Sessions. 

Senator Durbin. U.S. Supreme Court. [Laughter.] 

That is not too hard. 

Ms. McKeown. That was an endeavor that I spent about 5 years 
and literally hundreds and hundreds of hours, and I believe the ini- 
tiative was brought up here, and that was a very, very small 
amount of time. 

In addition, I have worked on cases for individuals such as a 
guardianship for a World War II veteran, the standard landlord- 
tenant or consumer problems that people have had that have come 
through our firm's pro bono program. I have done legal work for 



35 

the Girl Scouts and the Downtown Seattle Association, and other 
nonprofit organizations. And, of course, as far as my community 
pro bono commitment, the bulk of my time has really been the hun- 
dreds and hundreds of hours I have spent with the Girl Scouts. 

Senator DURBIN. Well, I think that those experiences speak very 
clearly to who you are, what your values are. I know that you have 
been engaged in some controversial work here, and it has been 
noted by this committee. And I think many of us — I happen to be- 
lieve that that is one of the responsibilities of a professional, one 
of the responsibilities of an attorney, and many of us have argued 
vigorously for clients when asked personally in our own private 
side we might have a different view of things. And I hope that I 
won't be held to every argument that I have made in court for a 
client, because I just did my very best to represent them, every- 
thing within the law, even tr3ang to push the law where I could to 
the benefit of my client. 

So, I think your pro bono work, in fact, speaks well of you and 
what you stand for, and the case or two that have been highlighted 
here I don't think really tell the story. As they used to say of the 
critics of Abraham Lincoln, they make of his warts his whole face. 
And I don't think that should be done to anyone. We should be 
looking at you in your totality. 

You have been here awhile, and there are many who are going 
to follow, and I promised the chairman I would be brief. I want to 
thank you for joining us today, and I wish you the very best. You 
certainly have my support. 

Ms. McKeown. Thank you. 

The Chairman. Well, thank you. Senator. 

And, Ms. McKeown, if we don't have any further questions, I 
want to congratulate you for this nomination. I think the President 
has chosen a good person, and I hope that we can move your nomi- 
nation in the near future, and I will do my best to do so. 

I want to thank you for appearing before the committee and for 
coming and visiting with us. It has meant a lot to me personally. 
So, with that, we will allow you and your family to go, and I hope 
this hasn't been too difficult for you. 

Ms. McKeown. No, Senator. Mr. Chairman, it has really been an 
honor to be here. I have appreciated the questions and the oppor- 
tunity to be here, and I have appreciated the courtesy shown me. 
Thank you very much. 

Senator Sessions. I am sure you have had a lot tougher ques- 
tioning from some of the judges you have appeared before. 

The Chairman. Life will get even more complex, I think, as you 
enter on the bench. 

Ms. McKeown. Thank you to the Senators and to Mr. Chairman. 

The Chairman. Thank you. 

We will now call Susan Oki Mollway, Richard L. Young, Edward 
Shea, and Jeremy D. Fogel to the witness table. 

And if I could have each of you stand and raise your right arm, 
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 Young. I do. 

Ms. Mollway. I do. 



36 

Judge FOGEL. I do. 

Mr. Shea. I do. 

The Chairman. Thank you all for being here. I want to welcome 
you all and tell you how much we appreciate having your coopera- 
tion here today. 

I am very grateful to Senator Sessions for being willing to chair 
the rest of this hearing because I have got some pressures on me 
that I have to take care of. And as is usually the case, he has done 
a very good job of taking this matter of judicial nominations very 
seriously and I am personally very appreciative. 

We are appreciative to have each of you here today. Senator, if 
you will ask each of them to introduce their family members and 
friends, I would appreciate it. 

Thank you. 

Senator SESSIONS [presiding]. Thank you, Mr. Chairman. I ap- 
preciate the leadership you have given. You are always a cool head 
on a committee that has a lot of interesting issues come before it 
on a regular basis. 

Mr. Young, would you like to introduce first, before we get your 
started, your family or make any opening comments? 

TESTIMONY OF RICHARD L. YOUNG, OF INDIANA, TO BE U.S. 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA 

Judge Young. Yes, I would. Senator. My family, my wife and two 
children, are here, Rose, Emily, and Christopher Young; my good 
friend and mentor and the person who got me interested in public 
service, Senator Birch Bayh. 

Senator Sessions. Senator, welcome; good to have you with us. 

Judge Young. My longtime court reporter, Debbie Settle; my law 
clerk, Kathr3ni Sullivan; and my good friends of over 20 years, 
Betsy Stark and Kevin Kayes. And my law school colleague. Bill 
Bartalone, had to leave, but he was here to support me, also. 

Senator Sessions. Very good. 

Ms. Mollway, do you have anyone you would like to introduce? 
You have brought them a long way. 

TESTIMONY OF SUSAN OKI MOLLWAY, OF HAWAII, TO BE U.S. 
DISTRICT JUDGE FOR THE DISTRICT OF HAWAII 

Ms. Mollway. Yes, thank you very much, Senator Sessions. I 
have my husband of almost 25 years, Daniel Mollway, and I have 
my son, Dylan Mollway, who is 7 years old. 

Senator SESSIONS. Hello, Dylan. 

Ms. Mollway. And my parents, Eichi Oki and Nobuko Oki. And 
I also have a sister, Valerie Fong, who came from San Francisco 
with her children, Kimberly Fong and Matthew Fong. 

Thank you. 

Senator Sessions. Very good. Thank you for that. 

Mr. Fogel. 

TESTIMONY OF JEREMY D. FOGEL, OF CALIFORNIA, TO BE U.S. 
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALI- 
FORNIA 

Judge FOGEL. Yes, Senator, I would very much like to introduce 
my family. My mother, Cappy Fogel, is here; my wife of 20 years. 



37 

Kathy Wilcox; my daughter, Megan, who is 14. My son, Nathaniel, 
is here in spirit. He has the lead role in the school play tonight and 
couldn't be here. 

Senator SESSIONS. You didn't disrupt that, I am glad to see. 

Mr. Shea. 

TESTIMONY OF EDWARD F. SHEA, OF WASHINGTON, TO BE U.S. 
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASH- 
INGTON 

Mr. Shea. Thank you, Mr. Chairman. I have my wife of some 38 
years this fall. Marge, who is here. My oldest daughter, Kathryn 
Henningsen, with her son, Andrew, my grandchild, are here. Could 
they stand up, please? 

[The persons stood.] 

My daughter, Marilou; my daughter, Jackie, who is a lawyer in 
Washington; and my son, Ed, who is also a lawyer in my firm. 

Senator Sessions. Well, very good. You all have very attractive 
families and I know you are proud of them, and I know that this 
is an important day for you. And I firmly believe that we can do 
a better job of handling confirmation hearings and I think if we 
have got a problem with a nominee, we ought to ask them and let 
them have a chance to answer that. And I think failing to do that, 
we are failing to do our constitutional duty. 

You all come with good recommendations and some high ref- 
erences or you wouldn't be where you are today. You have already 
made a significant achievement in your life and you are to be con- 
gratulated for it. 

Before we begin, if you would please stand and raise your right 
hand and I will administer an oath. Have they done that? 

Judge Young. We did that. Senator. 

QUESTIONING BY SENATOR SESSIONS 

Senator SESSIONS. OK, we have already done that. 

Let me ask all of you a few questions to begin with that I think 
reflect some of the legitimate concerns of the Congress of the 
United States with regard to nominees. First, adherence to prece- 
dent. Are you committed to following Supreme Court precedent and 
rulings of the Federal circuit court of appeals for your district faith- 
fully and giving them full force and effect even if you personally 
disagree with such rulings and precedent? 

Judge FoGEL. Yes. 

Mr. Shea. Yes, Mr. Chairman. 

Ms. MOLLWAY. Yes. 

Judge Young. Yes. 

Senator Sessions. All of you agree with that. 

What would you do if you believed the Supreme Court or the 
court of appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of 
the merits? 

Take, for example, the Supreme Court's recent decision in the 
Adarand case involving affirmative action. Let me just ask each 
one of you individually. I guess I will just go in order at the table 



38 

rather than in order on the paper. Mr. Fogel, how would you an- 
swer that question? 

Judge Fogel. My duty as a trial judge, which I have been for 17 
years in the State court system, is to follow the law as set forth 
by the higher courts. It is not my right or my place to impose my 
own view of the law in the face of clear of precedent, and that is 
certainly true of the Adarand decision. 

Senator Sessions. How about you, Mr. Young? 

Judge Young. Senator, I would follow the precedent established 
by the Supreme Court and by the circuit court of appeals in my dis- 
trict, and I also would follow the precedent set in Adarand. 

Senator Sessions. Ms. Mollway. 

Ms. Mollway. I would follow all of the precedents that apply to 
my district, including Adarand. 

Senator SESSIONS. And Mr. Shea. 

Mr. Shea. Mr. Chairman, my answer is the same as my col- 
leagues. I would follow the precedent and the Adarand decision. 

Senator Sessions. With regard to that question of adherence to 
precedent, why do you think that is important for a district judge? 

Mr. Shea. Would you like me to answer? 

Senator SESSIONS. Yes, sir, Mr. Shea, will you comment on that? 

Mr. Shea. Precedent is important for the entire system of litiga- 
tion. If I am a litigator, I want to know the fact that I can predict 
a certain outcome within certain reasons at the district court level 
so that I and my clients can be guided in the expenditure of time 
and effort and money to bring a claim. Precedents, then, give some 
certainty to all of us that we will know how the system works, and 
we can advise our clients. It is as important both to the district 
court judge as it is to the circuit court judges and the Justices 
themselves that they understand the relationship they have one to 
the other, and then to the people who appear before them. So I 
think precedent is critical. 

Senator Sessions. I think you have well said — and there are a 
lot of reasons for that, but I think you made some good points 
there. 

Let me ask each of you, do you have any legal or moral reasons 
or beliefs that would cause you to be reluctant or adverse to oppos- 
ing or upholding a death sentence in any criminal case that might 
come before you? 

Mr. Fogel. 

Judge Fogel. No, Senator, I don't. 

Judge Young. No, I do not. Senator. 

Ms. Mollway. I do not. 

Mr. Shea. Mr. Chairman, I do not. 

Senator Sessions. That is an important question because we 
have a lot of cases pending and some people in the country sin- 
cerely are so convinced as to the wrongness of the death penalty 
that we have had occasion where judges have just found ways to 
get around enforcing the laws passed by their State or Nation. 

And with regard to that, I think it is a particularly interesting 
question of judicial activism. There are at least four, maybe six ref- 
erences in the Constitution of the United States to a death penalty. 
They refer to taking life without due process and various other ref- 
erences to capital cases, which means death penalty cases. 



39 

So it has been, to me, really unacceptable, if we respect the Con- 
stitution as a document that will protect our liberties, that some 
judges—two members of the Supreme Court have just blithely an- 
nounced that they believe the Constitution's cruel and unusual 
punishment prohibits the death penalty. And I think when we 
move that far away from the plain wording of that contract that 
protects all of us, then we are in the realm of judicial activism. 
That is one good definition of it to me. 

These were some questions the chairman, that I am asking now, 
likes to ask nominees. 

Mr. Fogel, would you share with us briefly what experience you 
have had in practicing in Federal district court? 

Judge FoGEL. It is rather limited, Senator. I was a lawyer for 
only 7 years before I became a State court judge, and as I said, I 
have been a State court judge for 17 years. I did do some Federal 
cases, primarily housing discrimination cases, when I was a law- 
yer. 

Senator Sessions. Do you feel as a judge that you have a per- 
sonal responsibility to ensure that cases are moved along in an or- 
derly and expeditious way and that costs, where possible, are mini- 
mized for the litigants? 

Judge FOGEL. Senator, I think that is one of my most important 
responsibilities, and I have been a leader in ADR in my State, both 
in educating judges and in developing more effective and varied 
case management systems for people in the State courts. 

Senator Sessions. I agree. 

Mr. Young, would you comment about it? How do you feel about 
duty to help manage cases and litigation as a judge? 

Judge Young. Senator, I believe that is one of the most impor- 
tant functions of a judicial officer. I have sat as a judge for over 
8 years now in one of the busiest trial courts in the State of Indi- 
ana and if I didn't move my caseload as expeditiously as I possibly 
could, I would have some real problems, so not only to the lawyers 
involved in the cases, but also to the parties who they represent. 

Senator Sessions. I think sometimes lawyers fuss about being 
given a hard time, but in the long run they like it that they are 
being moved and cases are being — Ms. MoUway, what is your expe- 
rience with regard to Federal court and your thoughts about court 
management? 

Ms. MOLLWAY. I have been a very active litigator in the Federal 
courts. I think at the present time, I have about half of my practice 
in Federal court. And I would join in your comments, Mr. Chair- 
man. I appreciate a judge's very early learning of a case and inter- 
vention to try and help the parties to resolve a case, or at least to 
narrow the issues, and I think that that is critical to managing a 
docket. 

Senator Sessions. Would you explain that "narrows the issues" 
and how early rulings can save a tremendous amount of money and 
prevent wasteful effort? Would you explain that from^ your perspec- 
tive? 

Ms. MoLLWAY. Yes. I believe the Federal rules provide for dispos- 
ing of issues that can be disposed of before a trial, and I definitely 
appreciate it when such a motion is brought before a court if a 
judge rules quickly on the matter. I have sometimes had occasion 



40 

where the matter is pending before a judge for a very long time 
and this creates a very big problem. The parties are uncertain 
what will be litigated and they find it difficult to settle between 
themselves while they await a ruling. 

Senator Sessions. And it may continue very expensive discovery 
and other efforts with regard to an issue that the judge may later 
rule is invalid basis for an action. 

Ms. MOLLWAY. Absolutely. That has happened several times in 
my cases. 

Senator Sessions. Do you believe that — well, Mr. Shea — I am 
calling you "mister." We have got two judges here, and is it "mis- 
ter" or "judge"? 

Mr. Shea. It is "mister." 

Senator SESSIONS. All right, good. Based on your experience, do 
you share those views? 

Mr. Shea. I do. I have found that I have won and lost, sometimes 
been very disappointed in the outcome of a summary judgment mo- 
tion, either full or partial. But they have oftentimes helped us all 
see clearly the merits of our case and make settlement decisions 
before an expenditure of costs on the part of a client. That has been 
very helpful in a number of cases; recently, in a plant patent in- 
fringement case in Federal court where the judge required an early 
scheduling order, was right there with us and helped us get to res- 
olution pretty promptly. 

Senator Sessions. Well, I know Senator Durbin is a skilled attor- 
ney and understands that. And I just believe that there is a grow- 
ing modem realization that judges are more than just plain ref- 
erees; that all they do is listen when litigants file motions and then 
the clerks set dockets. I think a judge has got to push his docket 
and manage his docket and rule promptly on motions. 

The fact is you, as a district judge, will be obviously much more 
directly connected with the litigants, their clients. They will form 
their opinion of justice most often by what they see in your court, 
and it is a hard, tough job and it is one that takes a lot of hours. 
And, on occasion, most of you as private practitioners have worked 
at night and weekends, and you may have to do that as a Federal 
judge. 

We are going to try to get you the cost-of-living raises that most 
of us would like to see you get, but we may be demanding greater 
management and greater caseload because we simply cannot con- 
tinue to expand the numbers of the Federal judiciary and at the 
same time maintain the coherence that the Federal judiciary has 
had. Its power to some degree reflects its uniqueness and its abil- 
ity, because it is not too large, to speak with a clear voice. 

Senator Durbin, do you have any questions? 

questioning by senator durbin 

Senator Duf.bin. Thank you. Senator Sessions, and you have all 
waited patiently and I thank you for that. You each came with ex- 
traordinary support from a variety of pe )ple. I am sure you are all 
very honored by the kind words that have been said about you 
today, and I have no question in my mind about your fitness to as- 
sume this position. 



41 

I have one question which harkens back to my experience in Fed- 
eral court; many years ago before I decided to get involved in poli- 
tics, and it is related to the issue of judicial temperament. Because 
Federal judges are in for life, many of them let it go to their heads, 
and I found as a practicing attorney sometimes that that aspect of 
Federal practice was the worst. It wasn't the law or the clients; it 
was the judge and how the judge treated people. 

Some of you have had experience as judges. All of you have had 
some experience as practicing attorneys and I want to get you on 
the record on the question of judicial temperament, not that it will 
do any good if you turn out to be terrible, but I would like you all 
to speak to that issue if you might. 

Judge Fogel. 

Judge FoGEL. Senator Durbin, one of the things that inspired me 
to become a judge was seeing good judicial temperament and bad 
judicial temperament. The negative examples probably motivated 
me more than the positive ones, to tell you the truth, and I think 
it may be the overarching characteristic of a good judge that he or 
she treats everyone who appears before him or her with the utmost 
respect. People expect that, people deserve that, and it seems to me 
that temperament is the key to everything else that one does on 
the bench. So I totally concur with your sentiments. 

Senator Durbin. Judge Young. 

Judge Young. Senator, prior to taking the bench, I had a private 
practice for 10 years and I shared the same experience you did. I 
came across judges who, on occasion, did not show the best tem- 
perament, but I also came across a lot of judges who showed great 
temperament. And I have tried in my last 8 years to model myself 
after those judges who showed good temperament and to treat peo- 
ple like I would like to be treated myself. So I will give you that 
promise. 

Senator Durbin. Thank you. 

Ms. MoUway. 

Ms. MOLLWAY. It would be my hope that I would be able to be 
compassionate, to retain humility, and also to be a good listener. 
And I think if I can be a good listener that everything else will fol- 
low. I think it is impossible for a judge who is a good listener to 
have anything but a good temperament. 

Senator Durbin. Thank you. 

Mr. Shea. 

Mr. Shea. Senator Durbin, two things. One, I have had the bene- 
fit of practicing in my counties before the best judge I have ever 
seen and his example of a man my age has been a model for me. 
And he and I have chatted a lot about the need to make people feel 
welcome in your courtroom so that whatever the outcome, they 
have a sense that justice was done. 

Two examples. One, for approximately a year, I investigated on 
behalf of the Commission on Judicial Conduct charges of wrong- 
doing against judges and reviewed files and made recommenda- 
tions, and in the course of doing that, recognized that frequently 
judges who became embroiled in controversy and difficulty were 
folks who were disrespectful of litigants and of the lawyers who ap- 
peared before them. It was an indelible impression. 



42 

And the second is that I was State bar president and a nonvoting 
president in a board that voted, and I learned humiUty and pa- 
tience and the abihty to Hsten. And as a State bar president, you 
speak for all the lawyers, so you really don't — ^you have to learn 
how to put your views aside and preside, and that is what I did. 
And I think both those examples will stand me well if I am con- 
firmed. 

Senator DuRBIN. Well, I thank you for your answers, and I know 
that we think in terms of temperament and sensitivity when we 
are speaking of those who serve on juries and those who are wit- 
nesses in a case or might be in the audience in a courtroom. But 
I also ask you to keep a soft spot, if you can, if you reach this high 
position, for attorneys as well. 

I recall my first jury trial. Senator Sessions, in a Federal court 
in Springfield when I stood up as a plaintiffs attorney and rested 
my case before I had moved the admission of my evidence. [Laugh- 
ter.] 

Judge Harlington Wood said, "Would the attorney for the plain- 
tiff approach the bench?" And I did, along with the attorney for the 
defendant, and he said, "I think you forgot something." And, thank 
goodness, they saved me that embarrassment and it all ended well, 
and Judge Wood is in my pantheon of great Federal judges for 
showing mercy on this new trial attorney. 

Thank you for your appearance today. 

Senator SESSIONS. Well, I understand. I hope that you will be 
tough on attorneys, but somewhat forgiving, too. I remember the 
first trial I tried with a lawyer — it was his first trial, and after the 
trial, the judge called us up before the bench and said, "Grentlemen, 
I would like you to have a brief in by the morning on why you have 
not committed reversible error," talking to me. And so I didn't 
know I had, and neither did the other lawyer, but we managed to 
get by that. It is a challenge to handle cases well. 

Let me ask you about something that is controversial and very 
important, and that is the Federal Sentencing Guidelines. The Con- 
gress of the United States determined for a whole lot of reasons — 
I believe Senator Thurmond and Senator Kennedy both came to- 
gether on it — to set objective standards for sentencing. 

Two of you have been State judges. Have you had to sentence. 
Judge Fogel and Judge Young — do you do criminal cases, both? 

Judge Young. Yes. 

Judge Fogel. Yes, sir. 

Senator Sessions. You probably have had a good bit more free- 
dom to sentence as you deem fit in most State courts than you do 
in Federal court. And for the new judges, if you just relax and fol- 
low the guidelines, it makes life a lot easier when you go home at 
night, you have just followed the law, whereas in State court, you 
could give a person 20 years or probation. A pretty tough call some- 
times. 

Anyway, you may not agree with those guidelines, but it seems 
to me as a Federal prosecutor for 12 years, overall, they apply and 
work pretty well, and they do, I think, reflect the will of the public 
and the people and this Congress. And I am willing to consider 
some changes, and would be glad to hear from you privately or oth- 
erwise if you think changes are needed. 



43 

But some judges have indicated an unwillingness to follow that. 
Before you are confirmed, I would like to know, would you be will- 
ing to follow the Sentencing Guidelines? 

Judge Fogel. 

Judge Fogel. Senator, California has had a determinant sen- 
tencing law now for about 15 years, and that, combined with initia- 
tives that have passed by the people, have significantly limited the 
sentencing discretion of trial judges. I have had to live with that 
and I have been happy to live with it. I think as far as sentencing 
guidelines are concerned, it is the right of Congress to promulgate 
them and it is our obligation to follow them. 

Senator Sessions. Judge Young. 

Judge Young. Senator, Indiana has sentencing guidelines within 
a broad range of possibilities, and I do believe it is the prerogative 
of the Congress to set sentencing guidelines in the Federal system 
and I will certainly follow those guidelines. 

Senator SESSIONS. Ms. Mollway. 

Ms. Mollway. I would welcome the guidance that is provided by 
the guidelines and apply those guidelines. 

Senator Sessions. And follow them as they are written? 

Ms. Mollway. Yes. 

Senator Sessions. Mr. Shea. 

Mr. Shea. Mr. Chairman, I would also abide by the guidelines 
and follow them. 

Senator Sessions. Briefly, let me ask you, Mr. Shea, what you 
would consider your most significant legal accomplishment. 

Mr. Shea. Well, I suppose, in one sense you can pick out a case 
that is a favorite. In another, it is my admission to the American 
College of Trial Lawyers. There are many fine lawyers that are my 
equals who are not in the college and I understand that. 

Senator Sessions. What percentage of the bar do you think is a 
member of the college? 

Mr. Shea. I think it is 1 percent of those in each State, and it 
is the highest honor I have received in my career. But I say that 
with humility because I have colleagues who are equally qualified 
and whom I regard as fine trial lawyers who have not yet been ad- 
mitted and whom I hope will join me there in the State of Wash- 
ington. 

Senator Sessions. How many cases do you think you have tried 
before a jury? 

Mr. Shea. In 26 years, dozens. 

Senator Sessions. Ms. Mollway, can you think of a case or a 
legal action that you consider to be particularly memorable for you? 

Ms. Mollway. Yes. I have had one case that went to the U.S. 
Supreme Court, and I argued that in 1994 and established the pre- 
emptive scope of the Railway Labor Act. It was a Federal preemp- 
tion case versus a State law and we had argued on behalf of a 
whistleblower that he still had a State cause of action that he could 
bring to court and we prevailed. And that was a very humbling ex- 
perience for me to appear before the U.S. Supreme Court, and a 
terrific learning experience, and I am grateful that I had that expe- 
rience. 

Senator SESSIONS. Were you able to argue the case yourself? 

Ms. Mollway. Yes, yes, I did argue it. 



44 

Senator Sessions. That is a rare event. 

Ms. MOLLWAY. Yes. 

Senator Sessions. Judge Young. 

Judge Young. Senator, in 8 years of serving as the Vanderburgh 
Circuit Court judge, I have presided over approximately 175 jury 
trials and my greatest accomplishment, I think, is being appointed 
and reelected twice to serve as circuit court judge. I enjoy the job 
very much, but I do look forward, the Senate willing, to take those 
accomplishments across the street and use those slalls that I have 
learned in the Federal district court. 

Senator Sessions. Judge Fogel. 

Judge Fogel. Senator, I think probably the accomplishment of 
which I am the most proud is my work in the area of judicial ethics 
and conduct. I have been an educator in that field, as Senator Fein- 
stein said, for about 10 years. I helped establish a system in Cali- 
fornia so that judges accused of misconduct could get confidential 
counseling and probably find a way to resolve the problems that led 
to their being involved in misconduct. I worked as a consultant to 
the Judicial Council, the Commission on Judicial Performance, and 
the California Judges Association. It is a real labor of love for me 
and I am very proud of it. 

Senator Sessions. Well, I am sure that sensitizes both of you, I 
guess, that have been involved in that to maintain high personal 
standards. But do you think, as a rule, we are too forgiving of 
judges for misconduct? 

Judge Fogel. Senator, I think that is a tendency we have be- 
cause I think one can underestimate easily, especially if you stay 
in the legal profession for a long time, what a lawsuit is like for 
a litigant, what that experience is like, and what litigants expect 
of judges in terms of personal conduct. So I think it is easy to mini- 
mize the effect of judicial misconduct on litigants, and so I think 
probably I would agree with the characterization that we have been 
a bit too loose about it. But I think we should also try to help peo- 
ple who can be helped to address any problems that they have. 

Senator Sessions. Well, sometimes you have to take an unpopu- 
lar stand on that. I had the misfortune of prosecuting a couple of 
judges one time, one of which had been described many years be- 
fore as an individual who combined stupidity with malicious con- 
duct, malicious intent, but really shouldn't have been on the bench. 
And I think we do need to do that. 

Senator Ashcroft, I have finished my general questioning. All of 
these candidates have been introduced. They have their names be- 
fore you. I am sure you have a list of the nominees, and I have 
asked some general questions and so has Senator Durbin. I would 
be delighted for you to ask any questions you have, and thank you 
for your service on this committee. 

questioning by senator ashcroft 

Senator Ashcroft. Well, I want to thank the chairman for pro- 
viding an opportunity for me to be here this afternoon. I have been 
carrying the brunt of the argument on one side of the issue that 
is currently occupjdng the floor, and I regret my inability to partici- 
pate more thoroughly in this particular set of nominees. 

Judge Young, you are currently a judge in the State of Indiana? 



45 

Judge Young. Yes, sir. 

Senator Ashcroft. How do you feel that the role of a Federal 
judge differs from that of a State judge? 

Judge Young. Senator, the most obvious, at least in Indiana, 
would be the scope of your jurisdiction. Right now, I am the judge 
of a single county. The Southern District of Indiana encompasses 
approximately 60 counties, with a great deal number more of law- 
suits and litigants who may appear before the court. I do have a 
busy docket in my present court, but I expect the docket in the 
Federal district court to be much busier. 

Senator Ashcroft. In what respect do you think that the failure 
of a right to exist in the Constitution reveals the will of the people? 

Judge Young. Senator, I believe the Constitution is a document 
that has served us all well for over 200 years, and if a law or a 
statute or provisions the legislature has determined to be silent, 
that silence may also reflect the will of the people. 

Senator ASHCROFT. So your view is that the absence of the ex- 
pression on an issue by the Constitution could well mean that it 
was intended not to address it? 

Judge Young. That is correct, Senator. That is my feeling. 

Senator Ashcroft. Judge Fogel, you are also a State trial judge 
in California? 

Judge Fogel. That is right. 

Senator Ashcroft. When you were in private practice, you spe- 
cialized in mental health issues? 

Judge Fogel. Yes, sir. 

Senator Ashcroft. Did any of the litigation you undertook on be- 
half of mentally disabled individuals when you worked as the di- 
recting attorney for the Mental Health Advocacy Project result in 
negotiated consent decrees? 

Judge Fogel. No, sir. 

Senator ASHCROFT. Did not? 

Judge Fogel. Did not. 

Senator Ashcroft. I spent some time as attorney general of my 
State and I have just seen where consent decrees seem to bind 
States for a long period of time. It has been a matter of concern 
to me and there don't seem to be ways to revisit them. 

Judge Fogel. Senator Ashcroft, I might amplify my answer. My 
approach during those years tried to avoid that. I felt that trying 
to resolve matters on an individual basis, tr3dng to negotiate reso- 
lutions that everyone bought into, was a much more effective way 
of representing my clients than global consent decrees. And I share 
your concern. I think consent decrees impose burdens on judges 
that judges are not well-suited to fulfill many times. 

Senator Ashcroft. Ms. Mollway, it has come to my attention 
that you served on the board of directors of the Hawaii ACLU from 
1995 to 1996, is that correct? 

Ms. Mollway. Yes. 

Senator ASHCROFT. Were those the specific dates or was it a 2- 
year responsibility? 

Ms. Mollway. It was a 20-month period that I was on the board. 

Senator AsHCROFT. Were there policy positions that were advo- 
cated by the Hawaii ACLU while you were a board member with 
which you disagreed? 



46 

Ms. MOLLWAY. I cannot think of any, but I will say that while 
I was on the board the main function that we had was more admin- 
istrative. There were many policies that had been decided upon 
long before I came on the board. And once the board has set a pol- 
icy, it was the practice of the Hawaii ACLU to then delegate the 
implementation of the policy to a committee, so that when a com- 
mittee was concerned that it might be deviating from the policy it 
would come to the board for guidance. But there was no such devi- 
ation from preset policy that occurred while I was a member of the 
board. 

Senator ASHCROFT. Do you have any doubts about the constitu- 
tionality of Federal statutes authorizing the death penalty? 

Ms. MOLLWAY. I do not. The U.S. Supreme Court has spoken on 
that and I can certainly follow that law and I intend to if I am 
lucky enough to be confirmed. 

Senator Ashcroft. And you would not have any inordinate inca- 
pacity, or you would not be prevented by things you believe from 
imposing the death penalty if necessary? 

Ms. MOLLWAY. There is nothing in my beliefs that would prevent 
me from imposing the death penalty or following any other law. 

Senator ASHCROFT. Is that an answer which you could find ac- 
ceptable, Mr. Shea? 

Mr. Shea. Yes, Senator. 

Senator AsHCROFT. And for you, Mr. Young? 

Judge Young. Yes, Senator. 

Senator ASHCROFT. And for you, Mr. Fogel? 

Judge FoGEL. Yes, Senator. 

Senator ASHCROFT. Thank you very much. 

Senator Sessions. Funny, I did not ask that question. 

Senator Ashcroft. In the summer of 1995, Ms. Mollway, the Ha- 
waii ACLU published a newsletter stating the group's support for 
revisions of the Hawaii Criminal Code that would largely eliminate 
mandatory minimum sentences. If you agree with that position, do 
you have any concerns about the use of mandatory minimum sen- 
tences in the U.S. Code? 

Ms. Mollway. I have no problem with mandatory sentences. I 
will say that although I know that such a flier was included in the 
materials that I did submit to this committee, it was not a flier 
that I saw beforehand. I believe the first time I saw it, it may have 
been sent to me, but the first time I paid any attention to it was 
when we sent it to the committee. 

Senator ASHCROFT. In the summer of 1995, the Hawaii ACLU 
published a newsletter stating the group's opposition to a local or- 
dinance banning sleeping in public parks overnight. It appears that 
in earlier testimony concerning the ordinance, the executive direc- 
tor of the ACLU testified that the ordinance raised constitutional 
concerns. 

Do you have constitutional concerns with that kind of ordinance? 
Would you explain them if you do? 

Ms. Mollway. I'm sorry, Senator, but I did not study that pre- 
cise ordinance and so it is difficult for me to address that particular 
issue. 

Senator Ashcroft. I think it is fair that you might not have read 
that. 



47 

In the summer of 1995, the ACLU-Hawaii published a newsletter 
stating the group's opposition to the Federal Stop Turning Out 
Prisoners Act because, if passed, the Spear Prison Consent Decree, 
which has been so important to Hawaii's prison system, will be im- 
mediately terminated. 

Is that the position of the ACLU with which you have familiarity 
and upon which you could comment? 

Ms. MOLLWAY. I have some general familiarity with it, but, 
again, that particular legislation is not something that I studied 
enough to render an opinion on. I will say that the particular con- 
sent decree had been in existence for many years before I went on 
the board. And it is my understanding from being on the board 
that although I certainly understand your concern about consent 
decrees that that particular one was a cooperative consent decree 
that I believe the State of Hawaii was very happy about. It wel- 
comed the oversight of the court. 

Senator ASHCROFT. In January 1995 testimony against the com- 
munity notifications provisions contained in pending sex offender 
legislation, the executive director of the Hawaii ACLU testified 
that if a court can be convinced that community notification is pun- 
ishment, then the convicted sex offender is entitled to the protec- 
tion of due process and notification may raise double jeopardy con- 
cerns. 

You may or may not be familiar with this, but I think it is appro- 
priate for us to be able to provide notification. Do you have a view 
that is consistent with the ACLU's there, or is it distinguishable 
from that? 

Ms. MOLLWAY. I am sorry to sound so ignorant so often. Senator 
Ashcroft, but again, you know, I do not have a view one way or the 
other on this particular issue without having a particular statute 
in front of me where I can look at the language. 

Senator Ashcroft. I have no further questions. 

Senator SESSIONS. All right, very good. We are pleased to be 
joined by the ranking member of the committee. Senator Leahy. 

QUESTIONING BY SENATOR LEAHY 

Senator Leahy. Thank you, Mr. Chairman. 

Senator Sessions. You will be recognized for 3 minutes. [Laugh- 
ter.] 

Just kidding. 

Senator Leahy. I cannot even clear my throat in that amount of 
time. [Laughter.] 

Mr. Fogel, let me ask you, would you feel bound by the decisions 
of your circuit? 

Judge Fogel. Yes, Senator. They are over me and I am required 
under the principles of stare decisis to follow their rulings. 

Senator Leahy. And absent a decision by them, a decision by the 
Supreme Court or a decision of the Supreme Court, in any event? 

Judge Fogel. That is correct. 

Senator Leahy. Mr. Young, the same answer? 

Judge Young. Yes, I would. Senator. 

Senator Leahy. Ms. Mollway, the same answer? 

Ms. Mollway. I have the same answer. 

Senator Leahy. Mr. Shea, the same answer? 



48 

Mr. Shea. Yes, Senator. 

Senator Leahy. And, Ms. Mollway, on the question of mandatory 
sentences, there are some laws that on cases coming before a Fed- 
eral court have mandatory sentences written into the law. And as- 
suming there has not been an3rthing to declare that law unconstitu- 
tional, would you have any difficulty in following that law? 

Ms. Mollway. No difficulty. 

Senator Leahy. And by the same token, if the law was changed 
to remove either the minimum or change some of the penalties, 
then you would operate under that law, is that correct? 

Ms. Mollway. That is correct. 

Senator LEAHY. Is it safe to say that no matter what the law 
might be, no matter what your personal feelings are, if the law was 
constitutional, valid on its face, you would apply it, is that correct? 

Ms. Mollway. That is correct. 

Senator Leahy. And I might say that has really been a hallmark 
of your career; I think a very significant career. I was impressed 
with what all of the members of the Hawaiian delegation said 
about you. In fact, I was quite impressed with what was said about 
each one of you by your delegations. It has been my experience that 
people do not get to that green felt table without having gone 
through quite a vetting. You have been looked at by the FBI. You 
have been looked at by your bar association, certainly looked at by 
the press, looked at by members of your delegation, as each of you 
have, in many instances by a bipartisan delegation. And each of 
you, I have noticed, have support of a bipartisan nature. 

I mention this, Mr. Chairman, because I have a rule of thumb. 
My rule of thumb is this, and it was the same when I sat here on 
the nominees of President Ford, of President Carter, of President 
Reagan, of President Bush, and now President Clinton. Some Re- 
publicans, some Democrats, some more conservative, some more 
liberal, from all over, men and women — the question I have always 
asked myself as one who spent a lot of time in trial courts — and 
I have tried a lot of cases — I look at them and I say, how would 
I feel if I went before that judge? 

This month, I am plaintiff. Next month, I am defendant. Third 
month, I am the litigant, personally. Would I feel comfortable? 
Would I feel comfortable going before them that my case would be 
heard on the merits? They may agree or disagree, but be heard on 
the merits and nothing else, not who I am, not where I am from, 
not whether I am wealthy, not whether I am poor, not whether I 
am a minority or no matter what the issue is. Would I be heard 
the same? 

I must say from what I have heard of your testimony, what I 
have read of your background — I have gone through the reports of 
the committee — I would have no difficulty and will vote to confirm 
each one of the four of you. 

Thank you, Mr. Chairman. 

Senator Sessions. Thank you. Senator Leahy. 

It is an important process. Each Senator, interestingly, has some 
different view of what standards and what they consider to be im- 
portant. I practiced 15 years before Federal judges full-time as an 
assistant U.S. attorney and U.S. attorney. Practicing before a great 
district judge is one of the greatest things that can happen to you. 



49 

Federal court is always a little special to me and I hold it in high- 
est esteem and I know Senator Leahy does. He has been a former 
prosecutor, himself. 

Let me ask you a couple of questions, Ms. Mollway. 

In Hawaii, we had the controversy over the same-sex marriage 
issue. Has the Hawaiian ACLU taken a position on same-sex mar- 
riages and, if so, do you agree with that position? 

Ms. Mollway. I will say that the Hawaii ACLU had taken a po- 
sition many years before I became a board member, and even be- 
fore I became a board member the Hawaii Supreme Court ruled 
that under the State constitution there had to be a compelling 
State interest in order for the State to deny a marriage license to 
a same-sex couple. 

By the time I came on the board, there was already that Hawaii 
Supreme Court ruling and the ACLU's position had thus not only 
been put into play, but had also, in fact, been accepted by the Ha- 
waii Supreme Court and it did not come up while I was on the 
board of the ACLU for me to address that issue. 

Senator Sessions. So it is something that you had not taken any 
active position on either before or after the ruling? 

Ms. Mollway. There was no opportunity — well, there was no 
reason for me to address that issue, yes. 

Senator Sessions. With regard to the American Civil Liberties 
Union, for the reasons previously stated, I recognize they take posi- 
tions I agree with and some positions I do not agree with, but you 
were on the board in 1995, 1 believe, is that correct? 

Ms. Mollway. Yes. 

Senator Sessions. I was involved for a good while in my home- 
town of Mobile in a citizens effort to reduce drug abuse in the com- 
munity, and one of the things that we dealt with and I have over 
the years come to believe is one of the most effective things pos- 
sible is drug testing in the workplace. It helps people stay free of 
drugs. It encourages them not to use drugs because they know they 
will be tested, in my opinion, and as a result they are less likely 
to toy with them, play with them, become addicted to them, and 
injure fellow workers or other people. 

The director there, Patrick Talmai, stated in February 1995, 
"The ACLU opposes random and indiscriminate drug testing in the 
workplace not only on privacy grounds, but also because such drug 
testing does not detect current impairment." 

Let me ask you, first, is that a statement with which you are fa- 
miliar with? Were you aware that he made such a statement? 

Ms. Mollway. I was aware that the ACLU was taking positions 
on particular drug-testing litigation that was before our legislature. 
But at the same time, the particular statement that you are refer- 
ring to, Mr. Chairman, came to my attention as an attachment to 
a board packet after the testimony had been given. 

Senator Sessions. Does that reflect your view? 

Ms. Mollway. This is not a particular piece of legislation that 
I have studied, so I cannot say without having the legislation in 
front of me that Mr. Talmai had been addressing — whether I 
agreed with him or not. But I will say that in my private practice, 
I represent employers and we have given employers advice on 
whether they may drug-test and, if so, in what manner they may 



50 

test their employees so as not to run afoul of the Constitution. And 
obviously, if I represent employers on that question, it is precisely 
because the employers desire to conduct that. 

Senator Sessions. Would you oppose drug testing in a workplace 
on privacy grounds and because such drug testing does not detect 
current impairment? Do you agree with that position? 

Ms. MOLLWAY. Again, without a particular policy in front of me 
or a particular — 

Senator Sessions. This is just a statement. He made a state- 
ment. Do you agree with that statement? 

Ms. MOLLWAY. I believe he was making the statement in the con- 
text of a particular bill. And I do not have the bill in front of me 
and I do not believe I have ever seen that bill, and so it is difficult 
for me to say whether I agree with him in a vacuum. 

Senator Sessions. Well, I do not have the bill before me either, 
but there was a general statement made unattached to a piece of 
legislation. And I guess the reason I am raising this is you will be 
given a lifetime appointment and you will be required probably to 
deal with — somebody is always challenging everything anybody 
does in this Grovernment in court. 

And so employers are tr3dng to improve their workplace, improve 
the lives of their employees, and you are a judge and the ACLU 
lawyer comes up and says, oh, you cannot drug-test employees, you 
cannot fire them or put them into mandatory counseling because 
it violates their privacy rights. Does that strike you as a good legal 
position? 

Ms. MOLLWAY. I will say, Mr. Chairman, that I will apply the 
law that governs that kind of activity and I have nothing in my 
background, whether it is membership on the board of the ACLU 
or even my private practice representing employers who desire to 
implement drug testing programs, that would cause me to deviate 
from the law. 

Senator SESSIONS. Well, you have declined to tell us what you 
think about it. 

Ms. Moll WAY. I think this is an issue that is always coming be- 
fore the courts and I am concerned that I not either take a position 
or appear to have already prejudged the situation. But I do reaf- 
firm that I have nothing in my personal beliefs that would prevent 
me from following the applicable law. 

Senator Sessions. OK. Senator Leahy, do you have anything 
else? 

Senator Leahy. Let me make sure I understood. You said that 
you have also represented employers who would be wanting to do 
drug testing as part of whatever their employment standards are, 
is that correct? 

Ms. MoLLWAY. Yes. 

Senator Leahy. And you did not have any problem with doing 
that? 

Ms. MOLLWAY. Not with the drug testing. It is not a blanket ban 
on drug testing. No, I had no problem in that regard. 

Senator LEAHY. Thank you, Mr. Chairman. 

Senator SESSIONS. Well, I guess the reason that comes to mind 
for me so clearly is that I am a believer very strongly that the judi- 
ciary needs to be availed of information that can be given to it by 



51 

drug testing. We had before this committee Mr. Eric Holder, who 
was U.S. attorney here in the District of Columbia and had been 
a Federal judge in the District of Columbia and he was being nomi- 
nated by President Clinton to be the Deputy Attorney Greneral, sec- 
ond in command. 

And I asked him as a judge, how did he feel that it was beneficial 
for him to have information on arrestees when he is deciding bail 
or sentence, whether or not they were using drugs. And he said, 
absolutely. And I asked him did he favor that as a integral part 
of the criminal justice system and he said, yes, he did, not because 
we want to catch somebody using drugs and try to convict them on 
a positive drug test, but because judges need to know whether or 
not this criminal act may be driven by drug use and whether or 
not they need to be on some special monitoring or that kind of 
thing as a condition of release. 

So I think we have much excited ourselves about constitutional 
rights sometimes with regard to drug testing that go beyond my 
view of what is required by the law and the Constitution. 

At any rate, you testified very well, Ms. Mollway. I appreciate 
your integrity and honesty, and all of you. It has been a pleasure 
for me to chat with you about the most important position which 
I suspect that you will be about to undertake. I think you will 
enjoy it. I trust that you will and you will give dedicated service 
to the citizens of this country. 

Thank you very much. 

We are adjourned. 

[Whereupon, at 5:05 p.m., the committee was adjourned.] 



52 



SUBMISSIONS FOR THE RECORD 



SENATE JUDICIARY COMMITTEE QUESTIONNAIRE 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. FULL NAME ; (INCLUDE ANY FORMER NAMES USED). 
Maiy Margaret McKeown 

2. ADDRESS ; LIST CURRENT PLACE OF RESIDENCE AND OFnCE ADDR£SS(ES). 

1522 40th Avenue 
Seattle, Washington 98122 

Perkins Coie 

1201 Third Avenue, 40th Floor 

Seattle, Washington 98101 

3. Date and place of birth ; 

May 11, 1951 
Casper, Wyoming 



53 



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

Married - June 29, 1985 
Peter Francis Cowhey 

Senior Counselor/Branch Chief 
Federal Communications Commission 
2000 M Street, N.W., Room 849 
Washington, DC. 20554 

Professor 

University of California, San Diego 
Department of Political Science 
La JoUa, California 92093 

Peter is on leave from his position as Professor at the University of California, 
San Diego, for a temporary position at the Federal Communications 
Commission, Washington, DC; this position is funded through an inter- 
governmental personnel transfer arrangement; he remains an employee of the 
University of California. 

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

University of Wyoming 1969-1972 B.A. International Affairs and 

Spanish (May 1972) 

University of Madrid Spring 1971 Certificate of Hispanic Studies 

Georgetown University 1972-1975 J.D. (May 1975) 

Law Center 



54 



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

1972 

Campaign Assistant 

Friends of Cliff Hansen (former U.S. Senator; organization no 

Box 1655 longer in existence) 

Casper, Wyoming 82601 - 

1973-75 ■ , . • ... 

S '"^ - 

Research Assistant^vestigator 
Georgetown University Law Center 
600 New Jersey Avenue, N.W. 
Washington, D.C. 20001 

(I worked my way through law school, holding several part-time jobs through 
Georgetown University Law Center, including research assistant, criminal 
investigator and admissions office assistant.) 

1974 

Law Clerk 

Hon. David Norman 

Superior Court of the District of Columbia 

500 Indiana Avenue, N.W. 

Washington, D.C. 20001 

1975 - Present (with the exception of a one-year leave of absence in 1980-81 
to serve as a White House Fellow) 

Associate and Partner 
Perkins Coie 

1201 Third Avenue, 40th Floor 
Seattle, Washington 98101 



55 



1980-81 

White House Fellow 

Special Assistant to the Secretary of the Interior* 

Department of the Interior 

1849 C Street, N.W. 

Washington, DC. 20240 

*In approximately March 1981, 1 was detailed to the White House, Office of 
Policy Development, where I served as Special Assistant to Robert Carleson, 
Assistant to the President. 

MILITARY Service ; Have you had any military service? Ipso, 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. 

Phi Beta Kappa (1972) 

Editor, Law and Policy in International Business (1973-75) 

White House Fellow (1980-81) 

Japan Society Leadership Fellow (1993) (spent three months in Japan 

based at Keidaiu-en, the Japanese Federation of Business, studying 

intellectual property and competition issues) 

Outstanding Lawyer of the Year, Seattle-King County Bar Association (1992) 

Named in "Who's Who in Professional Firms," Puget Sound Business 

Journal (July 9, 1993) 

Named in "Top Players in Hi-Tech Intellectual Property," National Law 

Journal (July 22, 1991) 

Chamber of Commerce, Leadership Tomorrow (1984-85) 

Named in "Washington's Winningest Trial Lawyers," Washington 

Journal (1992) 

Named in "100 Young Women of Promise," Good Housekeeping (May 

1985) 

Named in "Best Lawyers of America" 

Who's Who of American Women 

Who's Who in American Law 

Who's Who in America 



50-531 98-3 



56 



9. Bar ASSOCIATIONS ; List all bar associations, legal or judicul- 

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: 

Litigation Section 

Intellectual Property Section 

Antitrust Section 

Annual Meeting Committee, Vice Chair (1995-96) 

House of Delegates 

lOLTA - National Association of Interest on Lawyer Trust Account Programs 
Board of Directors and Treasurer ( 1 99 1 -92) > 

Committee on Delivery of Legal Services (access for middle income persons) 
Fellow-American Bar Foundation 
American Law Institute 

American Intellectual Property Law Association 
American Arbitration Association - Large Complex Case Program 
Federal Court Activities: 

Federal Bar Association of the Western District of Washington - Board of Trustees 
and President (1986-1989) 

Lawyer Representative to the Ninth Circuit Judicial Conference 

Ninth Circuit Gender Bias Task Force 

Service as federal court mediator 

Participation in lawyers' panel on Proposed Long Range Planning for the Federal 
Courts 

Pro Bono Panel - Western District of Washington 

Federal Judicial Nomination Commission for the Western District of 
Washington 
Mayor's Municipal Court Committee 
Washington State Bar Association 

Judicial Recommendation Committee, Chair (1990) 

Washington State Bar Association Credit Union, Board of Directors (1976-1979) 
King County Superior Court - Arbitrator 
King County Bar Association 

Board of Trustees and Secretary (1984-87) 

Young Lawyers Board of Trustees (1979-80) 

Judicial Evaluation Committee 

Judicial Conferencing Committee 



57 



Awards Committee 

CLE Committee 

Long Range Planning Committee 
Washington Women Lawyers 

Co-President (1979) 
Washington State Trial Lawyers Association 
ACLU Legal Committee, Chair (1983-85) 
Legal Foundation of Washington 

Board of Directors and President (1986-91) 
Lawyer Volunteers in Corrections 
Northwest Women's Law Center, Legal Committee 

National Institute for Trial Advocacy, Faculty (Advanced and Basic Sessions) 
The Public Defender 

Board of Directors (1982-83) 

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. 

In addition to bar/legal organizations listed above, other organizations involved 
in lobbying include: 

Girl Scouts of the U.S.A. 
Corporate Council for the Arts 
Washington Council on International Trade 

Other Memberships: 

Girl Scouts of the U.S.A., National Board of Directors (1978-1987); Troop Leader; 

Governance Committee (1995-present) 
Corporate Coimcil for the Arts, Board of Trustees, Executive Committee (1988- 

Present); Co-Chair 1991 Campaign 
Washington Coimcil on International Trade, Executive Committee (1994-Present) 
Children's Museum Campaign Advisory Committee (1994- Present) 
Washington Athletic Club 
Mercer Island Country Club (Swim & Tennis) 



58 



11. roijRT admission ; List all courts in which you have been 

ADMITTED TO PRACTICE, WITH DATES OF ADMISSIONS 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 SPECL\L ADMISSION TO 
PRACTICE. 

State ofWashington Supreme Court 1975 

District of Columbia Court of Appeals 1983 

U.S. Supreme Court 1980 

U.S. Courtof Appeals for the Ninth Circuit 1978 

U.S. Court of Appeals for the District of 1 979 

Columbia Circuit 

U.S. Court of Appeals for the Federal Circuit 1992 

U.S. District Court, W.D. Wash. 1975 

U.S. District Court, N.D. Ca. 1987 

U.S. Claims Court (now Court of Federal 1990 

Claims) 



59^ 



12. Published Writings : Listthetitles, publishers, and dates of 
books, articles, reports, or other published materul you have 
written or edited. please supply one copy of all published 
mateiual 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. 

"Japanese Women's Forum with a Girl Scout Focus," The Girl Scout 
Connection (Spring 1995) 

"Trade Secret Litigation in the United States," (New York Bar Ass'n 1995) 

"The Road to China—Navigating the Intellectual Property Maze in China," 
Road to Asia—New Dimensions in Entertainment (1994) (with Ping Kiang) 

"China Begins Revolution in Intellectual Property," National Law Journal 
(Oct. 3 1, 1994) (with Ping Kiang) 

"Trade Secret Protection in Japan: A New Era," 2 International Computer 
Lawyer 19 (Jan. 1994) 

"Trade Secrets in Biotechnology— Preventing Disclosure and Misuse," (CLE 
International 1994) (with Kate McKerrigan) 

"Client Relations for Litigation Lawyers," ABA Women Advocate Conference 
(1994) 

Contributing Author, Covenants Not to Compete (TechLaw Group 1994) 
[Compilation of state-by-state summary of law on covenants not to 
compete; available for review upon request.] 

"Japan Views Options to Increase Protection of Its Trade Secrets," National 
Law Journal (No\. 1, 1993) 

"The Promise of a New World Information Order," The Knowledge Economy 
(Aspen Institute 1993; reprinted by U.S. Information Agency) (with Peter 
Cowhey) 

"The Information Age Ignites a Legal Boom," National Law Journal (Nov. 29, 
1993) (with Greg Wrenn) 



-8- 



60 



"Preliminary Relief—Temporary Restraining Orders and Preliminary 
Injunctions," (Practicing Law Institute 1992) 

"Rule 65 Injunctions," Washington Civil Procedure Deskbook (Wash. State Bar 
Ass'n 1992) (with John Albrecht) 

"Trial Techniques in Trade Secret Litigation," Intellectual Property Counseling 
and Litigation (Matthew Bender 1992) (with Heidi Sachs) 

"The Stakes on Secrecy Are Rising," National Law Journal (Feb. 24, 1992) 
(with Greg Wrenn) 

"Alternate Dispute Resolution-Hybrid Solutions— How to get your case out 
of litigation and into mediation, arbitration or other ADR forum," (Judicial 
Arbitration and Mediation Service/Perkins Coie 1992) 

"Competitors Settle High-Stakes Suit by Mediation," World Arbitration Report 
(Aug. 1991) (with Tom Boeder) 

"Trade Secret Litigation: Noncompetition Covenants, Nondisclosure 
Agreements, Software Protection" (Nov. 1991) 

Consulting Editor, Family Law Deskbook (Wash. State Bar Ass'n 1991) 
[Two-volume set on general family law; available for review upon 
request.] 

"Statutory Protection: Trade Secrets and Trademarks," (Wash. State Bar Ass'n 
1990) 

"A Girl Scout's Guide to New York" (1990) 

"Protecting Your Confidential Information: Trade Secrets and Unfair 
Competition," (Council on Education Management 1989) 

"Antitr\ist Precedent Set in Windshield Case," Seattle Daily Journal of 
Commerce {Mzi. 18, 1988) (with Tom Boeder) 

"Boeing Company Ruling Sets Trade Secret Precedent," Puget Sound Business 
Journal (Mar. 21, 1988) (with Tom Boeder) 

"Protecting a Finn's Confidential Computer Data," Puget Sound Business 
Journal (Oct. 3, I9ii) 



-9- 



61 



"Preliminary Injunctions and Temporary Restraining Orders-Rule 65," 
(Seattle-King Co. Bar Ass'n 1987) 

"Practical Aspects of Trade Secret Protection," (Pacific Rim Computer Law 
Institute 1986) 

"Strip Searches Are Alive and Well," ABA Human Rights Magazine (Spring 
1985) 

"National Program Conferences: Something New in Girl Scouting," Girl Scout 
Leader (Sept. 1980) 

"Trial Strategy in a Commercial Case: Focus on Pretrial Investigation and 
Discovery," (Wash. Legal Assistants 1979) 

"Property Agreements-from Marvin to Hadley" (Wash. State Bar Ass'n 1979) 

"Developments in Constitutional Law" (Washington Women Lawyers CLE 
1978) 

Project Director, Women and the Law in Washington State (Seattle Madrona 
Press, 1977) 

"Recent Developments: Foreign Trade Export-Import Bank Extension of 
Credits to the U.S.S.R.," 6 Law & Policy in International Business 1270 
(1970) 

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

Excellent. 

Last physical: December 1996 

14. JUPICUL OFnCE : State (CHRONOLOGICALLY) ANY JUDICIAL OmCES 
YOU HAVE HELD, WHETHER SUCH POSITION WAS ELECTED OR APPOINTED, 
AND A DESCRIPTION OF THE JURISDICTION OF EACH SUCH COURT. 

None. ■ 



-10- 



62 



15. Citations ; If you are or have been a judge, provide: (i) 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 SIGNinCANT 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 OFFICL\LLY REPORTED, PLEASE PROVIDE 
COPIES OF THE OPINIONS. 

Not Applicable. 

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

White House Fellow - Appointed by President through Commission on White 
House Fellowships, September 1980- August 1981. 

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; 

No. 



-II- 



63 



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; 

Law Firm Experience 

1975 - Present 

Perkins Coie 

1201 Third Avenue, 40th Floor 

Seattle, Washington 98101 

1975-79 Associate, Seattle, Washington 

1979-80 Associate, Washington, DC. (1 was asked to go to 

Washington, D.C. with one other lawyer to open the 
firm's Washington, D.C. office) 

1 98 1 -94 Partner, Seattle, Washington 

1995-1996 Partner, Seattle, Washington and Washington, D.C. 

1996-present Partner, Seattle, Washington 

White House Fellowship 

1980-81 

White House Fellow 

Special Assistant to the Secretary of the Interior 

Department of the Interior 

1849 C Street, N.W. 

Washington, DC. 20240 



-12- 



64 



B. 1. Wjut 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 at Perkins Coie has focused on civil litigation. My current focus is 
on complex litigation, intellectual property, antitrust and government contracts, 
although this is the product of many years of litigation of a broad scope. At the 
beginning of my career (1975-1980), I handled a variety of cases in a broad 
range of areas, including antitrust, securities, banking, product liability, 
pension, personal injury, workers' compensation, dissolution, community 
property, estate litigation, tax, unfair competition, contract and general 
business matters. While I often worked with more senior associates and 
partners, 1 also had a significant amount of responsibility and handled a 
number of matters and trials on my own during this period. 

In 1979, the firm asked me to move to Washington, D.C., along with a 
commercial fmance partner, to open the Washington, D.C. office. This was the 
firm's first venture beyond the West Coast. During the one year 1 was in D.C, 
we established the office, launched a litigation practice and began hiring 
additional attorneys. The office now has 30 attorneys. While 1 was in D.C, I 
concentrated primarily on federal court litigation, including government 
contracts, energy, and commercial disputes. In the fall of 1980, 1 took a one- 
year leave from the fum to serve as a White House Fellow. 

I returned to Seattle in the fall of 1981 and was named as the firm's first woman 
partner. In 1982, 1 began to focus on the creation of a new practice area for the 
fum—intellectual property. With the maturing of computer startup firms and 
the birth of biotechnology companies, technology-related law presented a new 
legal challenge. I found the technology fascinating and the legal issues 
intellectually interesting. Litigation is only one part of dispute resolution and 
the challenges of intellectual property called for an integrated counseling and 
litigation approach. I formed a group of attorneys and legal assistants to 
provide this service. The practice group continued to expand over the years, 
and we have now combined the antitrust and intellectual property lawyers 
because the issues are so often intertwined. I currently serve as co-chair of the 
Perkins Coie Antitrust, Trade Regulation and Intellectual Property Group. 
While ihy practice is almost exclusively in litigation, I also conduct intellectual 
property audits and engage in counseling for business clients in conjimction 
with acquisitions, mergers and other business transactions. 



-13- 



65 



In the mid-1980s, I also began developing a government contracts practice as a 
spin-off from the intellectual property practice, focusing initially on 
government data rights issues, and later expanding into a broader range of 
govenunent contract claims. 

During the early 1980s, I also became involved in alternatives to litigation and 
the adversary process. I assisted clients in traditional alternatives to 
litigation—such as negotiation and arbitration—and also fashioned new 
approaches such as mediation without attorneys, hybrid alternatives like 
litigate-mediate-arbitrate and other forms of dispute resolution. Through this 
experience, I also became interested in the mediation process and, beginning in 
the mid-1980s, started to serve as an arbitrator and mediator. 1 serve as a 
private mediator and also am on the King County Superior Court mandatory 
arbitration panel, the Western District of Washington Federal Mediation panel 
and the American Arbitration Association Large Complex Case Program panel. 
I have successfully mediated cases ranging from employment/pension rights to 
class action matters, trade secret claims and business disputes. My most recent 
service as a mediator resulted in settlement of a complex securities class action 
case (June and December 1995) and settlement of a law firm partnership 
dispute (November 1996). 

During my 20+ years with Perkins Coie, I have been very involved with fum 
administration, having done everything from co-founding the firm's minithon 
nmning event in the 1970s to serving as Chair of the Hiring Committee and a 
member of the Compensation Committee. Since becoming a partner in 1981, 1 
have served for 1 1 years on the Executive Conunittee. In 1990, 1 was 
appointed to the four-person Management Committee, as Managing Director 
for Client Relations. In addition to general duties involved in firm management 
(we have approximately 340 attorneys in 1 1 offices), I was in charge of 
strategic planning and client relations. After we opened branch offices in Asia, 
I served as management liaison to those offices. Until recently, I served as the 
Client Relations Partner, with overall responsibility for external matters 
relating to clients and the firm. I ciurently serve as managing partner for the 
firm's relationship with The Boeing Company. I have undertaken these 
administrative responsibilities while continuing a fiill-time practice. 



■14- 



66 



2. DESCRIBE YOUR TYPICAL FORMER CLIE>rrS, AND MENTION 

THE AREAS, IF ANY, IN WHICH YOU HAVE SPECIALIZED. 

My clients are primarily business and corporate clients. Among my clients 
have been individuals, startup software and biotechnology companies (e.g., 
Aldus Corporation, recently acquired by Adobe Systems), clothing companies, 
such as Geneira, and major technology and manufacturing companies, 
including The Boeing Company, Advanced Technology Laboratories, Inc., 
Immunex Corporation and Nintendo of America Inc. During the past ten years, 
I have spent a significant portion of my time as outside counsel to The Boeing 
Company on matters involving commercial and military disputes, antitrust, 
trade secrets, contracts, government contracts, data rights and patents. 

While I handle a broad range of commercial litigation—including securities 
litigation, banking, contract disputes, franchise and distributor cases and 
complex dissolutions—my focus has been litigation on behalf of technology- 
related clients and clients with trade regulation issues. My areas of 
concentration are complex litigation, intellectual property, antitrust and trade 
regulation and government contracts. 

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 VAIUANCE, GIVING 
DATES. 

Frequently. 

2. What percentage of these appearances was in: 

(A) federal courts; 

(B) STATE COURTS OF RECORD; 
. (C) OTHER COURTS. 

Federal Courts 60% 

State Courts of Record 40% 

(During the last 10 years, my practice has been 75% in federal 
court and 25% in state court.) 



-15- 



67 



3. What percentage of your litigation was: 

(A) CIVIL; 

(B) CRIMINAL. 

Civil 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 ASSOCL^TE COUNSEL. 

20-25 (In several cases I was associate counsel; in a number of 
cases 1 was the sole, chief counsel and in recent years in more 
complex cases, I was lead or co-lead counsel.) 

5. What percentage of these trials was: 

(A) JURY; 

(B) NON-JURY. 

Jury 40% 

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 nNAL 
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 
GO-COUNSEL AND OF PRINCIPAL COUNSEL FOR EACH OF THE OTHER 
PARTIES. 



-16- 



68 



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19. LEGAL ACTIVITIES : DESCRIBE THE MOST SIGNinCANT LEGAL ACnVITIES 
YOU HAVE PURSUED, INCLUDING SIGNinCANT LITIGATION WHICH DID NOT 
PROGRESS TO TRUL 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). 

Throughout my career, I have been active in professional associations. 
Since the 1980s I have spent considerable time on federal court 
activities, including service as President of the Federal Bar Association 
of the Western District of Washington. In that role, I worked closely 
with lawyers and judges on matters affecting federal court practice. I 
was selected by the judges of the Western District of Washington as a 
Lawyer Representative to the Ninth Circuit Judicial Conference. I have 
served on judicial review and selection committees at every level, 
including the Mayor's Municipal Court Committee, the Seattle-King 
County Bar Judicial Committee (trial court judges) Chair of the 
Washington State Bar Judicial Recommendation Committee (appellate 
judges) and the Federal Judicial Nomination Commission for the 
Western District of Washington. I have also been active in the local bar, 
Seattle-King County Bar Association, serving as a Trustee and on a 
number of committees. During the past ten years I have devoted 
considerable time to writing and lecturing on intellectual property and 
litigation issues. In addition, I have provided volunteer legal counsel to 
nonprofit groups such as the Girl Scouts and as General Counsel to the 
Downtown Seattle Association, a group dedicated to promoting Seattle's 
business community. 

My litigation has generally involved complex cases with a life span of 
two to six years. Trials usually last from several weeks to several 
months. In addition, I have been lead counsel on a niunber of other 
major matters that did not proceed to trial. Several of these were 
resolved through arbitration; others involved lengthy, complex 
discovery, significant pretrial motions and novel legal issues. .Mthough 
these cases were resolved through informal negotiation or formal 
mediation, in many instances the cases were frilly prepared and ready to 
proceed to trial at the time of the settlement. I am also frequently 
involved in major motions practice, including preliminary injunctions. 

Examples of other representative cases include: 



-26- 



78 



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In addition to an active litigation practice, I have been a speaker at continuing legal 
education programs, including: 

American Bar Association 

Expert Discovery, Antitrust Section, ABA Annual Meeting (1995) 
Litigation Management Panel, Corporate Counsel Committee, ABA Aimual 

Meeting (1994) 
"Rainmaking for Women Litigators" (1994) 
"Deposition Institute," Litigation Section (1990) 

CLE International 

"Biotechnology" (1994) 

"Pacific Rim Intellectual Property Protection" (1994) 
"Intellectual Property in Business Transactions" (1992) 
"Computer Law" (New York and Seattle, 1990, 1991, 1992, 1994) 

Judicial Arbitration and Mediation Services/Perkins Coie 
"Alternate Dispute Resolution—Hybrid Solutions" (1992) 

King County Bar Association 

"Injunctions," Commercial Litigation (1984, 1986) 

New York Bar Association 

"Confidential Business Information" (1995) 

Practicing Law Institute 

"Preliminary Relief—Temporary Restraining Orders and Preliminary Injunctions" 
(1992) 

Washington State Bar Association 

"Computer Litigation," Pacific Rim Computer Law Institute (1991) 
"Trade Secrets and Unfair Competition," Annual Meeting (1990) 
"Deposition Demonstration," Trial Practice Section (1987, 1988) 
"Intellectual Property Update," Pacific Rim Computer Law Institute (1987) 
"Trade Secrets," Pacific Rim Computer Law Institute (1986) 



-30- 



82 



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, HRM 
MEMBERSHIPS, FORMER EMPLOYERS, CLIENTS, OR CUSTOMERS. PLEASE 
DESCRIBE THE ARRANGEMENTS YOU HAVE MADE TO BE COMPENSATED IN 
THE FUTURE FOR ANY HNANCIAL OR BUSINESS INTEREST. 

Upon withdrawal from Perkins Coie, I would receive return of my capital 
($102,570), a withdrawal payment ($33,600), termination bonus/payment and 
undistributed income (calculated upon termination), and rollover of 
retirement/40 l(k) benefits ($454,623). 

EXPLAIN HOW YOU WILL RESOLVE ANY POTENTL\L CONFLICT OF INTEREST, 
INCLUDING THE PROCEDURE YOU WILL FOLLOW IN DETERMINING THESE 
AREAS OF CONCERN. IDENTIFY THE CATEGORIES OF LITIGATION AND 
nNANOAL ARRANGEMENTS THAT ARE LIKELY TO PRESENT POTENTIAL 
CONFLICTS-OF-INTEREST DURING YOUR INHTAL SERVICE IN THE POSITION 
TO WHICH YOU HAVE BEEN NOMINATED. 

I would identify and resolve potential conflicts of interest in accordance with 
the Code of Conduct for United States Judges. I believe that cases involving 
my clients and colleagues are likely to present potential conflicts of interest. 
Also, specific stock holdings may present conflicts. Prior to service, I would 
compile a complete list of such potential conflicts so I would have a 
comprehensive reference on this issue. 

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. 



-31- 



83 



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, HONORARU, AND OTHER ITEMS 
EXCEEDING $500 OR MORE (IF YOU PREFER TO DO SO, COPIES OF THE 
FINANCL\L DISCLOSURE REPORT, REQUIRED BY THE ETHICS IN 
GOVERNMENT ACT OF 1978, MAY BE SUBSTITUTED HERE). 

See Financial Disclosure Report. 

5. PLEASE COMPLETE THE ATTACHED RNANCIAL NET WORTH STATEMENT IN 
DETAIL (ADD SCHEDULES AS CALLED FOR). 

See 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. 

Yes. 



1972 



Campaign Assistant 



1985 



1992 



Treasurer 



Co-Chair 



U.S. Senator Clifford P. 
Hansen, Wyoming (re-election 
campaign) (jack of all trades; 
organizing meetings, rallies, 
events; office work; 
coordination) 

Friends of Jane Noland (Seattle 
City Council Candidate) 
(fundraising and record- 
keeping) 

Washington Women for 
Clinton (assistance in 
organizing supporters) (also 
supporter for Northwest 
Business Executives for 
Clinton) 



-32- 



84 

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 nND SOME TIME TO PARTICIPATE IN 
SERVING THE DISADVANTAGED." DESCRIBE WHAT YOU HAVE DONE TO 
FULFILL THESE RESPONSIBILITIES, LISTING SPECinC INSTANCES AND THE 
AMOUNT OF TIME DEVOTED TO EACH. 

My major community activity has been Girl Scouts of the U.S.A., 
the national Girl Scout organization headquartered in New York City. 
Given the large membership (more than 2 million girls) and the target 
group (ages 5-18), the Girl Scouts have played a major role in the 
community. As an adult, I first served on the National Program 
Committee, the group that oversees the program for the girls. Beginning 
in 1978, 1 served nine years on the National Board of Directors, 
including service as National Secretary, on the Executive Committee 
and as a representative to the World Conference. I have also served as a 
Brownie leader, troop consultant, camp volunteer, local nominating 
committee member and member of Vision 2000, business community 
advisers to Totem Girl Scout Council, Seattle, Washington, and as a 
speaker on topics ranging from legal issues affecting nonprofit 
organizations to the importance of Girl Scouting. Last school year I was 
troop leader of my daughter's Brownie troop and a member of the local 
council Governance Committee. 

My volunteer legal work has involved both litigation and 
counseling. The most significant pro bono litigation was as lead counsel 
in a matter that spanned many years, Antoine v. Bvers & Anderson (no 
judicial immunity for court reporters); see description in answer to 
question 1. 18 above. This matter was undertaken at the request of the 
federal court. I spent hundreds of hours on this case over a seven-year 
period. My participation involved discovery, trial coiut briefmg and 
motions and appeals to the Ninth Circuit and the U.S. Supreme Court. 

Throughout my career I have provided pro bono legal assistance 
to a number of individuals and organizations including the Girl Scouts 
(business and employment advice), the Downtown Seattle Association 
(trademark protection and business advice). Lawyer Volunteers in 



-33- 



85 



Corrections (individual mentor for inmate after release), the Corporate 
Council for the Arts (contract and employment advice), the Washington 
Association of Churches (challenge to initiative directed at restricting 
legislation regarding homosexuals), and a number of individuals 
(through my firm's pro bono program) in cases ranging from 
guardianship and landlord-tenant to a challenge to routine strip searches 
in minor misdemeanors. 

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 JUDICL^L SELECTION PROCESS, FROM 
BEGINNING TO END (INCLUDING THE CIRCUMSTANCES WHICH LED TO YOUR 
NOMINATION AND INTERVIEWS IN WHICH YOU PARTICIPATED). 

There was no selection commission. The selection process was 
handled internally by the White House Counsel's Office and the 
Department of Justice. I was interviewed by the American Bar 
Association, Washington Women Lawyers and the Loren Miller Bar 
Association and received the highest rating from all organizations. The 
Federal Bureau of Investigation also interviewed me. 

4. HAS ANYONE INVOLVED IN THE PROCESS OF SELECTING YOU AS A JUDICIAL 
NOMINEE DISCUSSED WITH YOU ANY SPECinC 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. 



-34- 



86 



Please discuss your views on the following criticism involving 
"judical activism." 

the role of the federal judicl\ry 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 judicl\l branch has usurped many of the prerogatives 
of other branches and levels of government. 

some of the characteristics of this " judicl\l activism" have been 
said to include: 

a. a tendency by the judicl^ry toward problem-solution 
rather than grievance-resolution; 

b. a tendency by the judiclvry 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 judicl\ry to impose broad, aftirmative 
duties upon governments and society; 

d. a tendency by the judicury toward loosening 
jurisdictional requirements such as standing and ripeness; 

AND 

E. A TENDENCY BY THE JUDICL^RY TO IMPOSE ITSELF UPON OTHER 

INSTITUTIONS IN THE MANNER OF AN ADMINISTRATOR WITH 
CONTINUING OVERSIGHT RESPONSIBILITIES. 

The separation of powers doctrine is fiindamental to American 
jurisprudence. The Constitution carefully spells out the delicate balance 
of powers that characterizes the unique American system. The role of 
the judiciary is to decide cases in controversy, not to legislate or make 
policy. Thus, it is inappropriate for courts to usurp legislative or 
executive powers by interpretation that disregards the constraints of the 
Constitution, precedent, statute or legislative intent (including 
Congressional intent to leave states or the executive branch with the 
freedom to exercise reasonable judgment in interpreting and 
administering particular acts). 



-35- ■' 



87 



Federal courts are courts of limited, defined jurisdiction. The 
combination of jurisdictional limits as well as justiciability constraints- 
standing, ripeness and political question-serve to circumscribe the role 
of the federal judiciary. Given the limited jurisdiction of the federal 
courts and the well-defined role of the judiciary, it is important to 
recognize that the federal courts are neitiier the panacea nor the 
repository of solutions for the broad range of social and economic issues 
faced by our society. 



-36- 



50-531 98-4 



88 



M. Margaret McKeown and Peter F. Cowhey 

Net Worth Statement 

12/31/96 



ASSETS 



Cash (approx.) 



$ 173,000 



Listed Securities - Schedule 1 



1,217,522 



Unlisted Securities - Schedule 2 



575 



Real Estate - Schedule 3 



1,334,000 



Automobiles and Other Personal Property 



145,000 



Cash Value ~ Life Insurance 



3,000 



Other Assets: 

Pacific Corinthian Annuity 



69,287 



Perkins Coie Capital Account 



102,570 



Perkins Coie Building Partnership 



59,588 



Univ. Calif Retirement Supplement 



7,035 



Total Assets 



$3,111,577 



LIABILITIES 



Mortgages - Schedule 4 


$ 697,881 






Total Liabilities 


$ 697,881 


Net Worth 


$2,413,696 







ISL960930.0I6I 



89 



NOTES RE NET WORTH STATEMENT 



Liabilities: 

1. No other ongoing liabilities except current accounts. 

2. Contingent/Other Liabilities: 

• Guarantor with other partners on office lease for Perkins Coie 
office space in Los Angeles 

• Automobile lease from Mercedes Benz Credit Corporation 
($474/mo.) 



General Information: 

1. No assets pledged. 

2. Plaintiffs in suit relating to car accident; not a party to any other suits 
or legal proceedings except to extent Perkins Coie partnership is a party. 

3. Never filed for bankruptcy. 



(SL960930.016I 



90 



SCHEDULE 1 
LISTED SECURITIES 



MUTUAL FUNDS/MONEY FUNDS 




Schwab Money Fund 


$ 40,300 


Mutual Beacon 


40,430 


Oakmark Fund 


31,492 


Fidelity Annuity 


14,632 


Templeton World (IRA) 


45,345 


Templeton Foreign (IRA) 


21,735 


Fidelity BlueChip (Trust for daughter) 


25,744 


Fidelity Growth & Income (Trust for daughter) 


27,644 


Princeton College Fund 


48,008 


Smith Barney High Income 


6,150 


Rochester Fund 


11,094 


Amex Money Fund 


89 


Artisan International Fund 


14,441 


Horizon 


2,846 


Mutual Discovery 


54,282 


Mutual European 


38,734 


Oakmark International 


28,303 


Oakmark Small Capital 


28,315 


Yachtman 


26,528 






BONDS 




Conn. State 


8,700 


Conn. State 


8,100 


King Co. Bellevue School District 


10,325 






STOCKS 




Washington Mutual 


19,926 


Olivetti 


94 


Merck 


1,603 


Boeing 


64,001 


Microsoft 


25,050 


Key 


4,483 


Fluke 


4,646 



(SL960930 016I 



-3- 



91 



IBM 


2,846 






MCKEOWN(401k) 




Vanguard Funds 


454,623 






COWHEY r403b) 




Fidelity Funds 


107,013 






Total 


$1,217,522 



SCHEDULE 2 
UNLISTED SECURITIES 



TWB Investment Partnership 


$575 






Total 


$575 



SCHEDULE 3 
REAL ESTATE 



Residence, Seattle, WA 


$800,000 


Site SC-2, Decatur Northwest, Decatur Island, 
WA. (1/3 interest) 


65,000 


Site P-4, Decatur Northwest, Decatur Island, WA 
(1/2 interest) 


250,000 


Condominium, La Jolla, CA 


219,000 






Total 


$1,334,000 



SCHEDULE 4 
MORTGAGES 



Washington Mutual (Residence) 



$422,548 



Sea- 1st (Decatur- P-4) 



108,000 



GMAC (La Jolla) 



Total 



167,333 



$697,881 



92 



INITIAL 



McKeown, Mary M. Court of Appeals, 9th Circuit 01/06/97 

.\':s::ac::s, :at5 :i :' r 



ji:iJf;j:5:.i-:?5|:;r?3fr'J}is'!:;!:a:3 = -?=- ■:^' '■-' ^pp"?'-'-' 



U.S. Circuit Judge- -nominee 

Chanoers or c;f::5 Addrfss 
1201 3d Avenue, 40th Floor 
Seattle, WA 98101 



8e'':e»isg Ot'.-.zn ;a:s 



I. POSITIONS. ■' '■■ - 

POSITION NAME OF OR GANIZATION/ENTITY 

NONB !llo reportable poskiocsl 

Perkins Coie 



Partner 




Board 


nf 


Directors 


Board 


o£ 


Trustees 



Washington Council for International Trade 
Corporate Council for the Arts 



: I . AGREEMENTS . 
QAIE PARTIES AMD TERMS 

IKHIB iHo reportable agreements) 
122i Perkins Coie- -withdrawal benefits under partnership agreement 



[II. NON- INVESTMENT INCOME. 

DAIS SOURCE AMD TYPE ,^R9S§,^ IJggr^E 
NONE 'Ho reportable aon-investinent incooel 

1225 Perkins Coie S 413322.00 

122fi Perkins Coie S 483242.00 

lg95-6 — University of California (spouse) $ Q.QQ 

$ 

$ 



93 



FINANCIAL DISCLOSURE REPORT „^Keown. Mary M. 01/06/97 

IV. REIMBURSEMENTS and GIFTS -- transportation, lodging, food, entertainment. 



SOURCE 
NONE !i3 3-j:: :i:z::i:'.i rtiiiarsesen'.j :: ::. 



DESCRIPTION 



Exempt 



V. OTHER GIFTS. 



£QUE£E 
NONE 'So sucb reportable gifts) 



Exempc 



VI. LIABILITIES. 



CREDITOR 
NONE IHo reportable lubilitiesl 



GMAC(J1 



Washington Mutual ( Jl 



DESCRIPTION 



VALUE 



s 


LJIO 


s 


s 


s 


VALUE. 


CODE* 



DESCRIPTION 



Mtq. on rental co ndo: La Jolla. Ca. — M_ 
Mtg.on Se attle residence : temp rent — tL 



•VOBCCCBS: j nJ§0^93l" S!88,OO0 5 :i^So?SJl--5§f;88S,0OO ^ SSPian iMi 



00,, N = $100,301 to 3:!c,j:o 



94 



FINANCIAL DISCLOSURE REPORT McKeown, Mary M. 01/06/97 

VII. Page 1 IbfVESTMENTS and TRUSTS -- income, value, cransactions 















4" 



:::d i:3:.:s-:rs 






"^miMr^'^'' 






1 Perkins C:ie I PC 




::tere 


: Sea-lst Bank 




Intsre 


i Sea-lst BankiJl 




latere 


4 C:t:banklJI 




latere 


5 Charles Sc!iiiab;;i 




latere 


5 Lincoln Nutaal Insurance 




Intere 


T College SatingslJI 




Intere 


3 :Oth Century VistalJl 




Sone 


9 Heartland Value 1 J! 




Divide 


13 Mutual BeaconiJ) 




Divide 


11 !ie»port Tiger, J 1 




Divide 


12 Sakaark FundiJI 




Divide 


13 Robertson StephensonlJl 




None 


14 Van 3S Growth 




Divide 


15 ?3HG Growth :J1 




None 


16 ridelity Annuity 




None 


1? leipleton «orkd 


D 


Divide 


13 Tenpleton PoreignlSI 


8 


Divije 



F5b5^'Si^S^6?i J=!h°98i°fo^S!S,ooo ?=HoWi'?o5h58 



'iWzll^'l: i D3) !i=iJ§»°3fii°fo^S§5o,ooo mii 






; V^ije^M^thad, codes: ji^gjja^ijj^ 



|=5f5j^real estate onlyl j=Ji 



T=Cash/Harket 



95 



FINANCIAL DISCLOSURE RBPORT ^^Keown, Mary M. 01/06/97 

VII. Page 2 INVESTMENTS and TRUSTS -- income, value, transactions 



i!?H!?:?'?:5l:"f!|S?s) 



[din '^liH'.i^'ii^ 

■lir.it^ -lir.ii- 



m.. 






•' iSi|!tiFr 5ron!i(T'es for 

:i IlorjaD Surging 

22 Siith Barney 

23 Soclitster 

24 tm Constellation 

25 Inresco Stra BlthiJI 

26 Conn State BondlJI 

27 Conn State BondlJI 

28 ling Co Bel Sch BondlJI 

29 Da ilntual 

30 Fnget FoverlJI 

31 RercklJI 

32 Boeing 

33 BoeinglJI 

34 !licrosoft 

35 ter 
3S Fluke 

- ^§«8^i?"ii^S««Ji J;|l!?88i°fo1«,flo, 

2 m*cmi I D3I nsiiofjSi'fo'HJo,! 
^ WcSi^e?)^"*"^ mmu 



Divide 

Divide 

tone 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

Divide 

lone 

Divide 

Divide 



% 



:; :st eiei:: .'::3 iis:l:3':r5 
3! 'V .. ,; , 

V9h|2 Sjijl 5J?i;:j!J|;fr 



estate onlyl j;||9{JK|I T^Casli/lUrliet 



96 



FINANCIAL DISCLOSURE REPORT McKeown, Mary M. 01/06/97 

VIZ. Page 3 INVESTMENTS and TRUSTS -- income, value, transaccions 



t!§?:!?;9=?:3i:iHS?s, 












:'. :ct miK '::' i:3:l:::r5 



rJi Or 



!ji^f "5|f m '^' '?t "^ "^^ 



NOHS 



IfiJsP^^^' 



17 IBB 

38 IBHIJ) 

39 Artisan Intl 

40 Pideluy 40!b 

41 Hutual Discovery 

42 Yachuan 

43 Pacific Corinthian 

44 La JoUs. Ca Condo 

45 Decatur Is. "a House SC-2 

46 Seattle, "a. HouselJI* 

47 Perkins Coie Capital 

48 Perkins Coie Buildin? 

49 Horizon 

50 Mutual Buropean 

51 Oakiark Intl 

52 Oakiark Snail Cap 

53 VHBR mndsor 40U 

54 Van Indei 401k 

• :§i?«Ei5'ii=S^Efi S?ii5°38i°fo-5fS,ooo 
- WcS?^'5i t D31 iiHi5o?98i°foH?5o,ooo 



Divide 

Divide 
Divide 

Divide 

Divide 

None 

Rent 

Rent 

Rent 



Divide 
Divide 
Divide 
Divide 



N 

I 

I 

L 

M 

L 



M 

i 

J 

I 

I 

I 

M 

N 



nmiMWm m%\^i\^hM^ ^^^:Sm 

|=gjjj|real estate only! j=J|J^ 



T=Casti;Harket 



97 



FINANCIAL DISCLOSURE REPORT „cKeown, Mary M. 01/06/97 

VII. Page 4 INVESTMENTS and TRUSTS -- income, value, Cransaccions 



!:::j!!:jfi:r-:s:-''3l5sts; 



■X 



!iiiaifsiiiiH»n;=^'= ■ ripe • 



'm^^' 



fi!? 



j!*tbj' 



NO] 



55 Van Trust IntI 401k 

:i Van Norld 3S 40ll( 

57 Great Vesten 

58 Van Hagoner 

59 Rydei 

(0 PGEB Sierging Mits 
SI 



iHct^^sP^^^^' 







L 

f 


A 


latere 


t 


A 


Divide 




A 


Divide 




A 


Divide 





::3:sac:i:ns :::::; :;:o::::3 :er;:: 



:::i d:;:;:s-re 



It % 



:i :o: 


eieapt 


1!' 


m 






- !Si?«Ei?"8i^J^li hSl!?88i»fo^!5S,ooo ?ili»?8ii'EoHi5fi?ooo S:Sio8?ioi''t8M?8oo,ooo 8i»y°ihS8 WW.m 
■ 'lJi!'c8?^'?iiD3i !iai?»?88i=?o^!S8o,ooo {HJ5o?8Ji'eo55{;888,ooo tS«»8y°$i?88»?88o 

3 VaJne^gfthj^, codes: g;Jjg{a^|}J, JiSHJ^real estate onlyl j=J|j{||fgj 



°ihS8 mh 

N>$ioo,aoi to s:50,ooo 

T^Cash/Narket 



98 



FINANCIAL DISCLOSURE REPORT M^^eown. Mary M. 01/06/97 

VIII. ADDITIONAL INFORMATION or EXPLANATIONS. 

♦(Section VII Investments ) - -our permanent residence in Seattle. Wa . was 

temporarily rented; typically this is not an investment property 



99 



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. A. app. 7, 501 et. seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. 

Signature /7] . fOaradld fT(^\^fjcxJir. Date ^e^^c^ ^> tf^7 

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. A. APP. 6, 
104, AND 18 U.S.C. 1001.) 



FILING INSTRUCTIONS: 

Mail signed original and 3 additional copies to: 

Committee on Financial Disclosure 
Administrative Office of the 
United States Courts 
Washington, D.C. 20544 



100 

UNITED STATES SENATE 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former names used) . 
Richard Lee Yo\ing. 



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

Office: Vanderburgh Circuit Court 
Room 210 Courts Building 
825 Syceunore Street 
Evansville, IN 47708 



Home: Evansville, IN 47714 

3. Date and place of birth. 

January 3, 1953 -- Davenport, Iowa 



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 Roseann I. Young (nee laccarino) on February 24, 
1979. My wife is employed at the Evansville Rehabilitation 
Center in the marketing department, 3701 Bellemeade Avenue, 
Evansville, IN, 47715. 



101 

Richard L. Young 



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

Drake University, Dee Moines, Iowa 1971-1975 

B.A. 1975 



George Mason University Law School, 

Arlington, Virginia, 1977-1980 

J.D. 1980 



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. 

1990 to present -- Judge, Vanderburgh Circuit Court, 
Evansville, Indiana. 

1980 to 1990 -- Partner, Hayes and Young, Attorneys at Law, 
Evansville, Indieuia. 

1983 to 1985 -- Public Defender, Vanderburgh County, 
Indiana. I served as part-time public defender in the 
Vanderburgh Circuit Court. In this position I represented 
individuals charged with felony level crimes. 

1985 to 1987 -- Corporation Counsel, City of Evansville, 
Indiana. This was a part-time position as head of the legal 
department for the City of Evansville, Indiana. During this 
period of time I still maintained my private law practice. 
I was appointed by and served at the pleasure of then Mayor 
Michael D. Vzuideveer. 

1978 to 1980 -- United States Department of Justice, Office 
of the Pardon Attorney, Washington Office. I worked as a 
law clerk on a part-time basis during law school. 

1977 to 1978 -- Airline Pilots Association, Department of 
Governmental Affairs, Washington, D.C. I worked part-time 
as a research assistant and intern during law school. 



102 



Richard L . Young 



1976 -- U.S. Representative Philip H. Hayee (D-IN). 
Washington, D.C. I worked as a legislative assistant for 
Congressman Hayes, until he left office in January 1977. 

197S to 1976 -- U.S. Senator Birch Bayh for President 
campaign. X workisd as a county coordinator for the campaign 
in the States of Iowa, New Hampshire and New York until 
Senator Bayh suspended his campaign for President. 

Board of Directors: Evansvllle Museum of Arts and Science 

1994 to present. 

Indiana Judicial Conference 

1995 to present. 

Vanderburgh Community Foundation 
1994 to present. 

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. 

"Excellence in Pxibllc Information and Education in Matters 
of Concern Regarding the Indiana Judiciary." Awarded by 
the Indiana Judges Association, December of 1994. 

Evansville Bar Association Service Award 1996. This award 
is in recognition for outstanding service to the Bar 
Association during 1995-1996. 

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. 

Evansville Bar Association, member, 1980 to present. I 
served as a member of the Board of Directors from 1988 to 
1995. From May 1994 to May 1995, I served as President of 
the Board. In the years immediately proceeding my 
presidency, I served as Secretary, 1991-1992, then Treasurer, 



103 

Richard L. Yoiing 



1992-1993, then Vice President, 1993-1994, of the Board of 
Directors. 



Indiana State Bar Association, member 1980 to present. I 
have served as a member of the House of Delegates of the 
Indiana State Bar Association since 1988. Member, 
Litigation Section, 1980-1990. 



Virginia State Bar Association, Member, 1980-present. 



In November, 1992, I was appointed by Indiana Supreme Court 
Chief Justice Randall T. Shepard to serve as co-chairman of 
the Supreme Court Committee on the Rules of Evidence. This 
committee was charged by the Indiana Supreme Court to review 
the then present Indiana Rules of Court and propose 
modifications, if necessary, to the Court rules so that the 
Indiana Rules would be more compatible with the Federal 
Rules of Court. The committee examined all the Indiana 
Rules of Court and the Federal Rules and issued a final 
report with recommendations to the Indiana Supreme Court. 
I was pleased that the Court adopted virtually all of the 
changes or modifications of the rules recommended by our 
committee. 



In 1996, I was elected to the Board of Directors of the 
Judicial Conference of Indiana. Since 1995, I have served 
on the Criminal Instructions Committee. From 1990 to 1995, 
I served on the Judicial Administration Committee. 



10. Other Men±>erships : 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. My other memberships are: 

Tri State Athletic Club -- Faunily Membership 
Holy Rosary School Booster Clxib 
Memorial High School Booster Club 

(By Laws attached as Exhibit 10-1) . 

4 



104 



Richard L. Yoiing 



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 Indiana October 10, 1980 



United States District Court 
Southern District of Indiana October 10, 1980 



Supreme Court of Virginia October 14, 1981 



United States District Court 
Eastern District of Virginia October 14, 1981 



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 attached as Exhibit 12-1 are columns I 
wrote for the monthly newsletter of the Evansville Bar 
Association. 



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

Excellent. Spring 1996. 



105 

Richard L. Young 



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, Vanderburgh Circuit Court. The Vanderburgh Circuit 
Court is a court of general jurisdiction. I was appointed in 
January 1990 by Governor Evan Bayh to £ill the iinexpired term 
of the previous Circuit Court Judge, William H. Miller. 



In November 1990, I was elected to a six (6) year term as 
Circuit Court Judge. In November 1996, I was re-elected to 
another six (6) year term. 



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 for the ten most significant opinions you 
have written: 

1) Bradford v. State . 675 N.E.2d 296, (Ind.Dec. 
1996) . 



2) Logestan v. Hartford Steeun Boiler Inspection emd 
Insurance Co. . 626 N.E.2d 829, (Ind.App., Dec. 
1993) . 



3) Anderson v. State . 615 N.E.2d 91, (Ind. 
June 1993) . 



106 



Richard L. Young 



4) State V. Vincent Prowell , (May 1994). 

See Exhibit 15-1 

5) Wrinkles v. State . (June 1995) . 

See Exhibit 15-2 

6) AlthauB V. Evansville Courier Co. . 615 N.E.2d 
441, (Ind.App. June 8, 1993) . 



7) Williams v. State . 611 N.E.2d 649, (Ind.App. 
March 1993) . 



8) American Speedy Printers v. Garrett , (January 
1992) . 

See Exhibit 15-3 

9) Homer Reed v. State , (May 1991) . 

See Exhibit 15-4 

10) Al-jack V. Peter Hill . (February 1997) , ' / 
See Exhibit 15-5 



(2) A short summary of and citations for all appellate 
decisions where your decisions were reversed or 
where your judgment was affirmed with significant 
criticism of your substeuitive or procedural 
rulings: 

1) Bemis v. State . 652 N.E.2d 89 ( Ind . App . June 22, 
1989) . 

The Defendant was convicted of Dealing in a 
Schedule I Controlled Substance and two counts of 
Possession of a Schedule I Controlled Substance. 
The Indiana Court of Appeals affirmed in part and 
remanded with instructions. The Court held that 
the Defendant could not be convicted for Dealing 
in a Controlled Stjbstsmce auid Possession of a 
Controlled Substance as a lesser included offense. 



107 



Richard L. Young 



2) Pioman v. Ameritech Publishing. Inc. . 641 
N.E.2d 1026, (Ind.App., October 24, 1994). 

An Evansville attorney sued the yellow pages 
telephone directory publisher, alleging the 
publisher had wrongfully omitted his advertising 
listing. The publisher moved for partial summary 
judgment based on an exculpatory clause in the 
contract which limited any damages. I granted the 
motion. The Indiana Court of Appeals reversed and 
remanded, holding that such sm. exculpatory clause 
was void as against public policy. 



3) R.R.S. Enterprises. Inc. v. Regency Associates . 
646 N.E.2d 56, (Ind.App. Jan. 25, 1995) . 

In this case the tenant sued the landlord 
alleging fraud and breach of contract. I granted 
the Defendant's Motion for Sximmary Judgment. The 
Indiana Court of Appeals affirmed in part £uid 
reversed and remanded in part. The Court held 
that the landlord' s statements prior to execution 
of the lease regarding ingress and egress were 
actionable in fraud as opposed to a representation 
regarding future conditions which would not be 
actionable. 



4) Hudson v. McClaskev . 641 N.E.2d 36, (Ind.App. 
Oct. 11, 1994) . 

In this case the purchaser sued the vendors 
for breach of warranty. Another judge granted 
summary judgment in favor of the vendors. The 
Court of Appeals reversed and remanded. On 
remand, yet another judge grsmted recision and 
the vendors appealed. An appeal was taken to the 
Indiana Supreme Court which held that recision 
was not proper and remanded to the trial court . 
I was selected as Special Judge of the Vanderburgh 
Superior Court . I awarded damages to the 
purchaser and the vendors appealed. The Indiana 
Court of Appeals affirmed in part auid reversed in 

8 



108 

Richard L. Young 



part amd remanded. The Court held that I was in 
error in the amount of costs awarded and in 
compounding interest on the award of damages and 
costs. The Court remanded for a redetermination 
of the costs awarded amd to compute single 
interest on the award and costs. 



5) Snvder v. Cobb . 638 N.E.2d 442, (Ind.App. July 
28,1994). 

This was an action for malpractice. I 
granted summary judgment for the doctors and 
hospital. The Plaintiffs appealed. The Indiauia 
Court of Appeals reversed and remanded and held 
that the patient was not required to present 
expert testimony on the issue of proximate cause 
of the patient's injury where the Defendant's 
doctor and the hospital had relied on the decision 
of the Medical Review Panel to support its Motion 
for Summary Judgment where the review panel's 
decision did not address the issue of proximate 
cause . 



6) Loaestan v. Hartford Steam Boiler Inspection 

and Insurance Comoamy . 626 N.E.2d 

829, (Ind.App.Dec.30,1993) . 

This was a negligence action against 
Hartford Steam Boiler. Logestan claimed that a 
Hartford employee negligently inspected a boiler 
which exploded and injured him. The jury returned 
a verdict for Hartford. On appeal, Logestan 
argued that I aiibmitted erroneous instructions to 
the jury which permitted the jury to find Hartford 
Immune from liability. The Indiana Court of 
Appeals agreed and reversed and remanded for a new 
trial. 



109 

Richard L. Yoiuig 



7) Althaus V. Evansville Courier Co. . 615 N.E.2d 
441, (Ind.App.June 8,1993), 

The local Evansville newspaper sued the 
Vanderburgh County Coroner to compel him to 
release a copy of an autopsy report. I denied the 
coroner's Motions to Dismiss and for Summary 
Judgment. The coroner appealed. The Indiana 
Court of Appeals reversed with directions, holding 
that the doc\iments in question were investigatory 
records which were subject to the coroner's 
discretion to withhold or release. 



8) Hardin v. State . 611 N.E,2d 123, (Ind., March 
29, 1993). 

In this case the Defendant was convicted of 
Dealing in Cocaine. He appealed and the Indiana 
Court of Appeals affirmed. The Defendant then 
petitioned for transfer to the Indieuia Supreme 
Court . The Supreme Court held that evidence of 
uncharged misconduct (prior drug dealings) was 
improperly admitted at trial for purposes of 
proving the Defendant's identity in the charged 
crime. The Court also held that jury instructions 
given by the trial court on this issue were in 
error. 



9) Brooks v. State . 598 N.E.2d 519, (Ind. 
Sept. 9, 1992) . 

The Defendant was convicted of Rape and 
Criminal Deviate Conduct and was foiind to be an 
HzUaitual Offender. He appealed alleging that the 
Prosecutor's remarks concerning the Defendant's 
failure to take the witness stand was reversible 
error. The remark made by the Prosecutor was in 
final argument when he said that "the Defendant 
had chosen to exercise his Fifth Amendment rights 
amd those are the only words the Defendauit had 
spoken throughout the trial." I overruled the 
Defendeuit's objection to this comment. The 

10 



110 

Richard L. Young 



Indiana Supreme Court reversed and remanded 
finding that such a comment was a direct reference 
to the Defendant's exercise of his Constitutional 
right to refuse to testify. 



(3) Citations for significamt opinions on federal or 
state constitutional issues: 

1) Chandlev Enterprises. Inc. v. City of 
Evansville . 563 N.E.2d 672, (Ind.App.1990) . 



2) Bemis v. State . 652 N.E.2d 89, ( Ind . App . July 
25,1995) . 



3) Seav v. State . 673 N.E.2d 475, (Ind. App., 
November 8, 1996) . 



4) Sandefur v. State . 662 N.E.2d 186, (Ind. App. 
Jan. 9, 1996) . 



5) Johnson v. State . 654 N.B.2d 788, (Ind. App. 

Aug. 9, 1995) . 



6) Eaan v. Bass . 644 N.E.2d 1272, (Ind. App, 
Dec. 27, 1994) . . 



7) Shane v. State . 615 N.E.2d 425, (Ind. June 9, 
1993) . 



8) Williams v. State . 611 N.B.2d 649, (Ind. App. 
March 24,1993) . 



9) i ^-^ r..;i , ^v> V. State . 568 K.E.2d 1068, (Ind. App. 
March 27,1991). 



11 



Ill 



Richard L. Yoiing 



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 appointed Corporation Counsel for the City of 
Evansville, Indiana, by Mayor Michael D. Vandeveer in 1985. 
In this position I served as chief legal officer for the 
City of Evansville, Indiana, tintil 1987. 

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 have not served as a clerk to a judge. 

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

No. 



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; 



Partner, Hayes and Young, Attorneys at Law, #4 Chestnut 
Street, Evansville, IN, 47708, from October 1980 to 
January 1990. 



12 



112 



Richard L. Yoiing 



Public Defender, Vanderburgh County, Indiana, from 
1983 to 1985. 



Corporation Counsel, City of Eveuisville, Indisuia, 
1985-1987. 



What has been the general character of your 
practice, dividing it into periods with dates if 
its character changed over the years? 



Partner, Hayes and Youjig, 1980-1990: I practiced law 
with my partner, Philip H. Hayes and in 1988 we 
associated another attorney, Jeffrey Tomatta. We 
were general practitioners handling a variety of cases 
such as divorces, criminal defense, personal injury, 
probate and small business law. From 1983 to 1985 I 
served as a part-time p\iblic defender in the 
Vanderburgh Circuit Court. I resigned the position of 
public defender when I was appointed Corporation 
Counsel for the City of Evansville, Indiana, in 1985. 
As Corporation Coiinsel, a part-time position, I served as 
chief legal officer for the City of Evansville, 
Indiana. In that capacity I advised the Mayor, City 
Council and department heads. I supervised six 
assistant city attorneys. I was appointed to this 
position by and served at the pleasure of Mayor Michael 
D. Vandeveer. 



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



As my law practice was general in nature, I represented 
a variety of individuals and businesses. In my 
position as public defender, I represented indigent 
individuals charged with felony level crimes. 



13 



113 

Richard L. Yoxjng 



1. Did you appear in court frequently, occasionally, 
or not at all? If the frequency of your 
appearances in court varied, describe each such 
variance, giving dates. 



During my private law career (1980-1990), I appeared in 
State Courts on almost a daily basis representing 
clients in domestic relations matters, criminal defense 
(felony and misdemeanor) and in matters dealing with 
municipal government. 



2. What percentage of these appearances was in; 

(a) Federal courts,- 
Ten percent (10%) . 

(b) State courts of record; 
Ninety percent (90%) . 

(c) Other courts; 
Zero percent (0%) . 

3. What percentage of your litigation was: 

(a) Civil; 
Twenty- five percent (25%) . 



14 



114 

Richard L. Young 



(b) Criminal; 
Seventy- five percent (75%) 



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 forty (40) jury trials. I was sole 
counsel in all trials except one. Almost all jury 
trials were criminal defense. However, I did litigate 
a will contest to jury verdict. The trial I served as 
co-counsel was a death penalty case which was my first 
jury trial and I was appointed to assist an experienced 
p\iblic defender in the defense. I also served as sole 
counsel in numerous small claims (both plaintiff and 
defendant) and misdemeanor criminal defense. 



5 . What percentage of these trials was? 
(a) Jury; 



One Hundred percent (100%) of the approximately 
forty (40) felony criminal defense cases were 
tried to a jury. 



(b) Non-jury; 

All of the small claims and misdemeanor trials 
were non-jury. 



15 



115 

Richard L. Young 



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 judges before 
whom the case was litigated; and 



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



1) State V. McRevnolds . 460 N.E.2d 960 {Ind.1984) 



This was a death penalty case where the 
Defendant was charged with Murder and Attempted 
Murder. He was convicted and the jury could not 
reach a unanimous decision as to a death penalty 
recommendation to the judge. The trial judge 
sentenced the defendant to two h\indred and seventy 
(270) years in prison. I was appointed co-counsel 
to assist lead counsel, for the defendant, Barry L. 
Standley. This was my first jury trial. I 
performed research on a variety of issues and gave 
the opening statement to the jury. I also examined 
and cross-examined several minor witnesses. The 
case took approximately three weeks to litigate in 
March of 1982. The Presiding Judge was William H. 
Miller, Vanderburgh Circuit Court. 



16 



116 

Richard L. Yoiing 



Coiinsel for the State of Indiana was : 

Robert J. Pigman 
313 Main Str. 
Evamsville, IN -' 
(812) 425-8101 

Coxinsel for the Defendant was: 

Barry L. Standley 
3116 E. Morgan Ave. 
Evansville, IN 
(812) 477-1958 



2) City of EvanBville v. International Association of 
Firefighters. Local 357 . 516 N.E.2d 57, (Ind.Dec. 
1987) . 



I represented the City of Evansville, Indiama, 
as Corporation Counsel in this action filed by the 
firefighters to prevent the City from isqplementing 
a merit system contrary to state statute. The trial 
court ruled against the City. The City appealed to 
the Indiana Court of Appeals and the trial court 
was reversed. Transfer was sought to the Indiana 
Supreme Court where the Court of Appeals decision 
was vacated and the trial court decision was 
reinstated. This was purely a case of statutory 
construction. This case was tried and appealed in 
1987. The trial judge was Donald Hendrickson of the 
Warrick Circuit Court. 

Opposing Counsel was: 

Charles Berger 
313 Main St. 
Evansville, IN 
(812) 425-8101 



17 



117 



Richard L. Young 



3) Luttrell v. State . 499 N.E.2d 1139 {Ind.1986) . 

I represented this man charged with Attempted 
Battery, Theft and being an Habitual Offender. The 
jury acquitted on the Battery charge, but convicted 
the Defendauit of Theft and Habitual Offender. He 
was sentenced to the Department of Correction for 
thirty- two (32) years. I was sole coiinsel for the 
Defendant. During trial, I objected to the 
admission of two (2) sets of exhibits during the 
Habitual phase of the trial. I was overruled and 
the Supreme Court of Indiana affirmed the trial 
court. The trial judge was Walter H. Palmer, Gibson 
Circuit Court. This case was tried in September 
of 1984. 

Opposing Counsel was : 

Steve Bohleber 
123 N.W. 4th St. 
Evansville, IN 
(812) 423-4535 



4) Jones v. State . 491 N.E.2d 980 (Ind.1986). 

I was sole counsel representing this man 
charged with Robbery. He was convicted by a jury. 
On appeal, I argued that the trial court did not 
properly instruct the jury on lesser- included 
offenses. The Indiana Supreme Court affirmed the 
trial court. The presiding judge was Willieun H. 
Miller, Vanderburgh Circuit Court. The case was 
tried in July of 1984. 

Opposing Counsel was : 

William Welbom (Deceased) . 



5) Dorsev v. State . 489 N.E.2d 513 (Ind.1986). 

I was sole coxinsel representing this man 
charged with Murder. He was convicted as charged. 
I challenged the sufficiency of the evidence 

18 



118 

Richard L. Young 



because the victim's stepdaughter testified that 
she alone was guilty of the crime. However, there 
was other evidence linking the Defendauit to the 
crime and the Supreme Court of Indiama affirmed 
the conviction. This case vras tried in 1985 with 
Robert S. Matthews, (deceased) presiding. 

Opposing Counsel was: 

Stan Levco 

Vamderburgh County Prosecutor r 

Room 108 Administration Bldg. 

Civic Center Con^lex 

Evansville, IN 47708 

(812) 435-5150 



6) Marts v. State . 432 K.E.2d 18 (Ind.1982) . 

I served as co-counsel to a man charged with 
Dealing in a Narcotic Drug. Be was convicted and 
received a 30 -year sentence. I served a minor 
role, basically research and observing the more 
experienced lawyers during this trial, as I had not 
been in practice but a short time and had no prior 
jury trial experience. The trial judge was Andrew 
Jacobs, Sr. (Deceased) . The case was tried in 
1980-81. 



Lead Counsel was: 

Philip B. Bayes 
100 N.W. 2nd St. 
Evansville, IN 
(812) 425-1000 

Opposing Counsel was: 

Jeffery L. Lantz 
525 Sycamore St. 
Evansville, IN 
(812) 464-0044 



19 



119 



Richard L. Young 



7) Marts v. State . 432 N.E.2d 18 (Ind.1982). 

I was co-counsel representing this man on his 
Petition for Post-Conviction Relief alleging that 
his sentence of thirty (30) years was erroneous and 
in violation of the Federal and State 
Constitutions. The petition was denied by the 
Special Judge, Andrew Jacobs, Sr. (Deceased) . The 
Indieuia Supreme Court affirmed the trial court. My 
role in this proceeding was to research and 
contribute toward the writing of the briefs. The 
petition was heard in 1984. 

Lead Counsel was : 

Philip H. Hayes 
100 N.W. 2nd St. 
E vans vi lie. In 
(812) 425-1000 

Opposing Counsel was: 

Jeffery L. Lantz 
525 Sycamore St. 
Evansville, IN 
(812) 464-0044 



8) James v. State . 472 N.E.2d 195 (Ind.1985). 

I was sole counsel for this man charged with 
Battery and Burglary. He was convicted by a jury. 
I appealed the denial of a Motion to Suppress 
identification evidence which I believed unduly 
suggestive. Also, I raised the issue of 
insufficient evidence of the Defendant's intent to 
commit rape when he entered the victim's home. The 
Indiana Supreme Court affirmed the convictions. 
The trial judge was Willieun H. Miller, Vandeburgh 
Circuit Court. This case was tried in Feb. 1983. 



20 



50-531 98-5 



120 

Richard L. Yoiing 



Opposing Coxinsel was : 



Doug Knight 
Civic Center Complex 
825 Sycamore St. 
Evansville, IN 47708 
(812) 435-5112 



9) Watkins v. State . 460 N.E.2d 514 (Ind.1984). 

I was sole counsel representing this maui 
charged with Burglary and Attempted Rape. He was 
convicted by a jury. I objected to the admission 
of testimony by a victim of a separate crime 
alleging the Defendant raped her. The trial court 
allowed the testimony to establish the Defendemt's 
character, modus opereuidi and intent. I also 
objected to the victim in the instant case offering 
hearsay testimony that she heard from eui unnauned 
third party that the Defendant had raped another 
woman. The Indiana Supreme Court affirmed the 
trial court, with one Justice dissenting. The 
trial judge was William H. Miller, Vanderburgh 
Circuit Court. This case was tried in March 1983. 

Opposing Counsel was: 

Doug Knight 
Civic Center Complex 
825 Sycamore St. 
Evansville, IN 
(812) 435-5112 



10) Richard Mclntvre v. Frzmk McCloskev . 

This litigation concerned the Congressional 
Election in 1984 in the 8th District of Indiana. 
Congressman McCloskey was declared the winner on 
election night. The challenger, Mclntyre filed 
suit to enjoin the certification of the results and 
demanded a recount. I served as co-co\insel for 
Congressman McCloskey in this litigation. I 

21 



121 



Richard L. Young 



performed research and argued motions before Judge 
Walter Palmer, Gibson Circuit Court. Eventually, 
this matter reached the House of Representatives for 
resolution. At that point, I was no longer actively 
involved in the litigation. This litigation was the 
first of its kind in Indiana and eventually led to 
the legislature establishing a formal recount 
commission for Indiana. 



Opposing Counsel was : 

Ted Lockyear 
555 Sycamore St. 
Evansville, IK 
(812) 411-1199 

My Co-Counsel was: 

Philip H. Hayes 
100 N.E. 2nd St. 
Evansville, IN 
(812) 425-1000 



In addition to the above-mentioned covinsel, the 
following attorneys have had recent dealings with me and 
cam attest to my professional reputation. 



Richard G. D' Amour 
Deputy Prosecutor 
(812) 423-7336 



Michael J. Danks 
Attorney 
(812) 426-1000 



3 . Robert Zoss 

Deputy Prosecutor 
(812) 471-8502 



22 



122 

Richard L. Young 



4. Paul Black 
Attorney 
(812) 426-1231 



5. Laurie B\iinb 
Attorney 
(812) 421-1911 



6. Thomas L. Montgomery 
Attorney 
(812) 424-8248 



7 . Tom Bryan 
Attorney 
(812) 425-3592 



8. Carl A. Heldt 
Attorney 
(812) 479-8721 



9. Joseph O'Connor, III 
Attorney 
(812) 332-9295 



10. Robert McGill 
Attorney 
(317) 638-1313 



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

In addition to the matters described above, I consider 
significant the following activities which I was involved 
in outside of the Courtroom: 

23 



123 

Richard L. Young 



In November, 1992, X was appointed by Xndisuia Supreme Court 
Chief Justice Randall T. Shepard to serve as co-chairman of 
the Supreme Court Committee on the Rules of Evidence. This 
committee was charged by the Indiana Supreme Court to review 
the then present Indiana Rules of Court and propose 
modifications, if necessary, to the Court rules so that the 
Indiana Rules would be more compatible with the Federal 
Rules of Court. The committee examined all the Indizuia 
Rules of Court and the Federal Rules zuid issued a final 
report with recommendations to the Indiana Supreme Court. 
I was pleased that the Court adopted virtually all of the 
changes or modifications of the rules recommended by our 
committee. 



In 1996, I was elected to the Board of Directors of the 
Judicial Conference of Indiana. Since 1995, I have served 
on the Criminal Instructions Committee. From 1990 to 1995, 
I served on the Judicial Administration Committee. 



24 



124 

^ ,~ Richard L. Young 

II. FIHANCIAL 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. 



The only source o£ anticipated future income would be my 
judicial pension from the State of Indiana. I would not be 
eligible to receive any proceeds from this pension iintil 
I reach age 62 . 



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 I do now, if a former client is a party in a lawsuit; or 
if I have a personal bias or prejudice concerning a party 
or personal knowledge of disputed facts, I recuse myself 
from the case. I also recuse myself from any matter in 
which I have any fineuicial interest or any member of my 
faunily or relatives have any financial interest. In all 
cases, I follow the guidelines provided in 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. 



25 



125 

Richard L. Young 



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 Statement, attached as Exhibit 4-1, 



Please complete the attached financial net worth statement 
in detail {Add schedules as called for) . 



Attached as Exhibit 5-1. 



6. Have you ever held a position or played a role in c 
political campaign? If so, please identify the particulars 
of the campaign, including the candidate, dates of the 
campaign, your title and responsibilities. 

1. 1988 -- In Evan Bayh' s campaign for Governor o£ 

Indiana, I served as ceunpaign coordinator for South- 
western Indiana. My duties included recruiting 
volunteers for the campaign and arranging appearances 
for the candidate in Southwestern Indiana. 



1983 --In Michael D. Vandeveer's campaign for 
re-election as Mayor of the City of Evzuisville, 
Indiana, I served as counsel to the campaign and 
helped organize fundraisers zunong my lawyer colleagues 
in support of Mayor Vauideveer. 



1982 --In Frank McCloskey' s campaign for U.S. 
Congress, I helped organize fxindraisers and advised 
the candidate on various issues of which I had 
knowledge. 



26 



126 

Richard L. Young 



1976 -- In U.S. Representative Philip H. Hayes' U.S. 
Senate primary campaign against Senator Vance Hartke, 
I served as a coxinty coordinator and driver for the 
candidate . 



1976 -- In U.S. Senator Birch Bayh' s ceunpaign for 
President of the United States, I served as a coiinty 
coordinator in the Iowa caucuses. New Hampshire 
Primary and Kew York primary. 



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. 



In 1995 I proposed to the Board of Directors of the 
Evansville Bar Association, that the Bar sponsor a family 
and build a house during the Habitat for Humanity Blitz in 
Evansville in July of 1995. I was selected as chairman 
for the ad-hoc Heibitat Committee. The committee raised over 
$30,000 from 100% of the active Evansville Bar Association 
members to fund the construction of the house. During the 
building blitz, approximately 50 members of the Bar 
Association volunteered to help with the actual construction 
of the house. 



Since 1990, I have been a member of the Holy Rosary 
School Booster Club. The activities of the club are designed 
to raise funds and in-kind support for school athletics. 
I devote 3 to 5 hours per month to this activity. 



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 individually 
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 polices. 



127 



Richard L. Yoiong 



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 at this time. In 1993, 
I learned that Judge Gene E. Brooks was expected to take 
senior status or retire in 1996. I had informal discussions 
with a number of public officials, judges and lawyers in 
late 1993, 1994 and 1995, about my possible appointment to 
the position. (They included Governor Evan Bayh, 
Rep. Lee Hamilton, Rep. Frank McCloskey, Lieutenant Governor 
Frank O'Bannon, Rep. Andy Jacobs, Jr., Judge Gene E. Brooks, 
Chief Justice Randall T. Shepard of the Indieuia Supreme 
Court, Judges Ted Najam and John Baker of the Indiana Court 
of Appeals, and Judges Maurice O'Connor and Scott Bowers of 
the Vanderburgh Superior Court.) After Judge Brooks 
announced his retirement in November of 1996, I decided to 
seek the appointment, and, on separate occasions I met with 
Governor Bayh and with several members of the U.S. House of 
Representatives from Indiana in December of 1996. In late 
January, Governor Bayh informed me that he would submit my 
name to President Clinton for nomination to succeed Judge 
Brooks. Approximately, one week later Rep. Lee Hamilton 
informed me that the Indiana Democrat Congressional 
delegation and newly elected Governor Freuik O'Bannon had 
agreed to submit my name to the President for his 
consideration for this nomination. In April of 1997, I 
received correspondence from the Office of Counsel to the 
President which requested that I supply backgroxind 
information to the Department of Justice, the Federal 
Bureau of Investigation and the American Bar Association. 
Sxibsequently, I was interviewed by each of these 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. 



29 



128 

Richard L . Young 



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

The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism 
that alleges that the judicial branch has usurped many of 
the prerogatives of other branches and levels of government. 

Some of the characteristics of this "judicial activism" 
have been said to include: 

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

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

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

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

e. A tendency by the judiciary to impose itself upon 
other institutions in the manner of an 

administrator with continuing oversight 
responsibilities . 

The task o£ the judiciary is to interpret and apply 
the law. For a district judge, the law to be applied 
includes, o£ course, not only the federal Constitution, 
federal statutes and regulations, but also precedents of the 
Supreme Court of the United States and the Court of Appeals. 

Because the federal judiciary is insulated from 
political pressures in many ways, the members of that 
judiciary have a responsibility to exercise their power with 
restraint when dealing with state and local governments. 
That restraint requires careful attention to doctrines of 
standing, ripeness, mootness, and aJsstention and other 
related doctrines to minimize friction between the federal 

30 



129 

Richard L . Young 



judiciary and the elected branches of the federal government 
and state and local governments. Courts simply are not 
well -equipped as institutions to make the kind of budgetary 
choices that the elected branches of government must make, 
and judges must keep that limitation in mind, especially 
when they confront a case seeking institutional reform. 



31 



2^ 



130 



FINWCIAL DISCLOSLRE REPORT 

FOR CALc.VDAR '{ZAR 1935 



Yjuna. Richard L. 



U.S. Olscrlct Courc 
Souchern Olserlcc of Indiana 



7/21 / 1997 



Dis:ricc Judge - Nomin«« 



i ftvporc r^«t 



Ckl 






Jan.' l/9fr- 6/30/97 



ot zh 






Vanderburgh Circuic Court 
Room 210 CourCa Building 
Evansvtlla . TN . 67708 






IMPORT AjMT notes. The instructions accompanying this form must be followed. Complete all parts, 
cheeliing the NOI^ box lor each section where you have t>o reportable infornutian. Sign on last page. 



I. POSITIONS. (Reporting individual only; see pp. 9-0 of Instructions.) 

POSITION NAME Or ORGANI 2ATI0tJ/E!^ITY 

I NONE (No reportable positions) 



3iraccsr-TriiSCs« 



Evansvlll* Huseun of A7:s and Sclanc* 



Indiana Judicial Confcranca 



Vanderburgh Councy CoBmunicy Foundacion 



II. AGREEMENTS. (Reporting individual only, see pp. 14-17 of liucructions.) 

3At; parties and t^rms 



CJ 



NONE (No reportable agreetnents) 

The only agreement would be my judicial pension froHi 



the State of Indiana. 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 1S-2S of Instructions.) 



DATE 

n 



SOURCE AND TYPE 
NOKE (No reportable non-investment income) 

Judicial Salary 



.^^^^ 



Ih. 


Rehabilitation 


Cancer 


(S) 


Judicial Salary 


The 


Rahablllcatioa 


Canter 


(S) 






131 



FINA-MCIAL DISCLOSURE RS?ORT 1 , / , 

I Y oung . Richard L. \ 7 /21 / 57 

V. REIMBURSEMENTS and GIFTS -- [raiuponaiion, lodging, food, entcnainmcm. 

(IncluJcs (husc lo spouse and dcpcnUcnc children: use the parcnihcriuU *(S)' and *(OC)' to indicate rcpuriibic 
rcimbursctnenu andgifti received by spouse and dependent children, respectively Sec pp. 26-27 of Instructions. ) 

SOURCE DESCaiPTICN 

NONi: (No such reportable reimbursements or gifts) 



V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parenlheticals "(S)' and "(DC)' to 
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.) 

SOraCE DESCRIPTION Y^ 

NONE (No such reportable gifts) 



VI. LIABILITIES. (Includes those of spouse and dependent children: indicue vvfaere applicable, person responsible 
for liability by using the parenthetical *(S)' for separate liability of Che spouse, *(J)' (or joint liability of 
reporung individual and spouse, and '(DC)' for liability of a dependent child. See pp. 34-36 of lutruclions.) 

<:R£PITgB DESCRIPTION vftLVE gS 



D 



NONE (No reportable liabilities) 
K3NA Aawrlca (J) credit card 



J-IIS.OOO or !••• II>fl9 ool-fSO.OOO 1—J90, ...-„„ ,„ ..„ «-*-.«•- ... — ... 

2^*!SSSSl-!l:''5Si°JS« »-. Si'll»''SSA''Si:"'°°'''"" M-Ji.iootooitjj.rooo.MO 



132 



FINWICIAL DISCLOSURE REPORT 



Young . Richard U. 



VII. Page I INVESTMENTS and TRUSTS •■income, value. ira«a«ions (IncljOu those of spouse 
and Jepcndcnt children. See pp. J7-54 of Instructions.) 



0-rscri.pei.sn at Asatc? 


luring 


c. 

ropomn? 
parioa 



TrjnoocCLana durlna ropor^in^ o«CLoa 


ina indi-'idu*; •nd jpoua*. "'8' f?r 
s*$«rA=4 own«r»nAp oy tpous*. -lOCJ- 

Cor 9>*fl«e->ni.p oy dapanOAAC cniia. 

v:*e9 *ix:' 4fc«r ««ch «a««e 
«j(«mpc (ro« prior diJCloaucs 


Hi 
MIt I 


i:i 


111 
Coa«'' 


111 

v<lua 
MielV3<u 
Cade 

lO-xi 


ilT- 

tuy. toll. 


:C noc •■•KVC fra- liacloouro 


111 


111 

volua: 

Ca«< 


COUll 
Cod« 


ISi 
tOaneicy a( 
Ouyvc/aollvr 
trjnoaciiar.) 


1 NONZ .Ho ^^^.ore*t>^« 




















^ Judicial pension 







K 


































1 












1 




























































































































■., 




























































13 




















I. 




















» 




















I. 




















^' 




















" 




















ic^r'S!'?.?- f:!io°SS,°5.i;-S.. !:ll6S°5,f!*rSo§-;5o"-"»" !l:!k'Si;-55.?!S ,.o.,oo S^IiliSJrSSi:?"-. 


■-• "•"■ iiiih-ys-h:nf.-sso.o.o Kiih-Bi-ni-n-d;!"""-"-" ^^^^i^i^^'—"" 



1 v«i *«crt coa: o-appralaaL 



■•Caaciraal «aeace anlyt 
w-oehar 



■Maa— nt 
■tJiiiiaca 



T*Caah/r«nia 



133 



FINANCIAL DISCLOSURE R£FORT j Y^ ung, Richard L. 

vm. ADDITIONAL INFORMATION OR EXPLANATIONS. (in<i,cji.p.r>ofn 

I I !«<ONt (No •J*u«i«l in»«niatimi or •iq»lw»«i«i«.) 



134 



FINANCIAI, DISCI.OSL'RF: REPORT Ycung, 



Richard 



IX. CERTIFICATION 

(n compliance with the provisiofu of 28 U.S.C 455 and of Advisory Opinion No. 57 of the Advisory Committee on Judicial 
Acuvities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory fiincuaa m an> 
litigation duruiK the period covered by this report in which I, my spouse, or my minor or depeodait childroi had a financial mterar 
as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all the information given above (including infermation pertaining to my spouse and mmor or dependent cbildroi, : 
any) is accurate, true, and complete to die best of my knowledge and belief, and that any mfbrmation not reported was withheld 
because it met applicable statutory provisions permitting non-diselosuie. 

I further certify that earned income from outside employment and hoooraha and the acceptance of gifts which have been 
reported are m compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq , S U.S C 7353 and Judicial Conference 
regulations. 



Signature 



-^. 



ao^KK) 




nj2L(37 



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). 



FOJNC INSTRnCTIONS 

Mail original and three additionil copici to: 

Commitlee on FmanciaJ DiKlonre 
Adminirtrativc Oflicc of the United Statu Courts 
One CdniBbiu Cirdc. NX. 
Suite 2-301 
Washington. D.C. 20S44 



135 



88/08/1997 99:23 8124355459 



CIRCUIT: COURT 

financiai. statement 
net worth 



Provide 1 complete, current ri/iincial net worth sutcmen: which itc.-nises ir icuil 
ill useu (indudint bulc iccounu, real esate. securiau. ousts, irvesonsnu. tnd other fuianciai 
holdings} ili Labilide] Cmciudixig debts, tnongagu, loans, and other financial obliguoos] of 
yourself, your spouse, and other immediate mcmbcts of your household. 



r — — =— =^ 

1 ASSETS 


I 


uxsujnzs 




=~" 


Cuh OS hwd tnd in bub 


3.oee •« 


1 


N«(u pajrihle lo b4nkA*taajrtd 


-o- 1 


-J.S. Co»a»Bi«»i KM^ao--*! 


- O - 








-o - 


1 


Ijfuid laouiBci-add ichtfuU 


- O- 






Nolel piyftble to i«l40*w 


~o- 1 


UnJiitc^ Meviticf— 4^ icAcdulc 


-o- 






Hotel psviblc t0 athov 


-o- 1 


Accouru Uld noiu reeiviblc: 


- o - 






AcesunU uitf biU> due acL^ei.WI»<) 


z,no oo I 


Du« from raUavci uid ^cndi 


- o - 




Unpaid ifieamc tax 


-o-l 1 


Svc bsm •thai 


-o - 






OUw unpud lu Hid bitciut 


rO- 1 


Doubtful 


- o - 






adiedula 


<fc2/«l oo 


Rcil eiuM; ewned— «dd ichcdulc 

1 


7Zo,(xe 


as 




Okaaci maniKf oa and otjfcr Uuu pay. 
able 


-o- 




Rui nuK mon<4|es rsfi'ibU 


- o - 












Aout uid oiher pBnoo«J imipuiy 


^C.eAe 


•a 




■2"^ »wort.T*«.«C 


''f 


SO 


Cuh TiliK-UIc uiiwviu 


- o - 






M^tdlV C.e«J 1+ Ctro "^ 1 


l2,«o 


1 


O'.Scr useu— itemue; 








MSkJA Ord.V Cl.'d ^l. 


•.»» 


oe ! 










\irSA Ouj aJ«m«M«v. <!»«\tt 


Tom 


0O 1 


jl 












1 ■ 


1 








Total Uabiliaca 


tiT^a 


ao 1 


1 








Nat Worth 


^e^co 


«o 1 


Toul Xucu 


319,^ 






Tolll VabiUau inS ne: *onta 


3\e.Ba 


. -o' 


1 CONTINCENT LUBIUnZS 








CrNXIUi. INTORMATION 




1 I! 




-o- 






Ara any aaacu pl^|cd7 (A«t ichad- 
<ilc.) 


NO 




:• 


; On .eucfl or ODitvvcu 


-o- 






A»« you ^roadanl in any itiiu oc lc|al 


NO 




, 


1 L<|lJ Clunf 


~o ~ 






Ha'a you —tx takes b«njirjpiei T 


MO 


- — 


1 


1 Pra»iiis<i for Fidcnl Income Tu 


-0 - 






. - . 






{1 Othtr •puiil d<b( 


-o- 


,a_, 


J 






1 1 ^ 



136 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

Full name (including any former names used.) 

Susan Naomi Okl Hallway 

(nee Susan Naomi Okx) 

(I usually use Susan Oki Mollway as my professional 

name ) 

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

Residence: 2211 Halakau Street 

Honolulu, Hawaii 96822 

Office: Cades Schutte Fleming & Wright 

1000 Bishop Street, 10th Floor 
Honolulu, Hawaii 96813 

Date and place of birth. 

November 6, 1950; Honolulu, Hawaii 

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

Husband: Daniel J. Mollway 

Occupation: Attorney, Executive Directive of State 

Ethics Commission 
Employer: State Ethics Commission 

Pacific Tower, Suite 970 

1001 Bishop Street 

Honolulu, Hawaii 96813 

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

University of Hawaii Attended 9/68 to 5/73 

Honolulu, Hawaii Bachelor of Arts 5/71 

Master of Arts 5/73 

Beaver College Attended 6/71 to 8/71 

Glenside, Pennsylvania Summer study in Europe fno 

deg'ree ) 

Harvard Law School Attended 8/78 to 6/81 

Cambridge, Massachusetts Juris Doctor 6/81 



137 



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, 1972 



1972 to 1973 



1973 to 1575 



1575 to 1575 



Student worker, nniveraity of Bawaii 
Laboratory School, Bonolulu, Hawaii. 
I worked oa preparation of materiala 
used at the laboratory school. 

Dental assistant. Dr. Alwin 
Sbiakawa, Honolulu, Hawaii. I 
aaaiated with a dentist's private 
practice. 

Instructor, Department of Engliab at 
the Vniveraity of Hawaii (Manoa 
campus, Honolulu, Hawaii). I taught 
expository writing and Britiah and 
American literature. 

Instructor, TaJtushoJcu C7niversity, 
ToAyo, Japan. I taught Engl i ah 
conversation part-time. 

raito Co., Ltd., ToAyo, Japan. I 
wrote correapondence in Bngliah to 
this small trading compeuiy' s 
international buaineaa associates. 

I also taugiit Eln^-iisii conversation 
at private companies and to 
individuala . 



1976 to 157a 



Editor, Charlea E. Tuttle Publishing 
Company, Tokyo, Japan. I edited 
books in English, chiefly relating 
to Asia. 



I continued to teach English 
conversation privately. 

J. Walter Thompson, Tokyo, Japeui. I 
worked at the Tokyo office of this 
advertising agency, reworking 
translated advertising copy. 

I continued to teach English 
conversation privately. 



138 



Summer, 1979 



Summer, 1980 
1981 to present 



1987 to 1988 



Spring, 1988 & 
Spring, 1989 



Spring, 1989 
(approx. ) 
to Summer, 
1996 



1995 



1995 to 1996 



1995 to present 



1996 to present 



Student worker, Sorth Shore 
Children's Law Project, Lynn, 
Massachusetts . I assisted attorneys 
who represented children with legal 
problems . 

Summer law clerk. Cades Schutte 
Fleming & Wright, Honolulu, Hawaii. 

Attorney, Cades Schutte Fleming £ 
Wright, Honolulu, Bawaii 
Associate (1981-86); Partner (1986- 
present ) . 

Director, Hawaii Women Lawyers 
(unpaid position with non-profit 
organization^ . 

Ad^^unct Professor of Law, 
William S. Richardson School of 
Law, University of Hawaii, Honolulu, 
Hawaii . I taught Appellate 
Advocacy. 

Arbitrator, Court -Annexed 

Arbitration Program, Judiciary, 

State of Hawaii. This is 

a volunteer position (arbitrators 

were previously paid $100 per 

pre -arbitration hearing and are now 

paid $50 per hearing) . 

Secretary, Hawaii Women's Legal 
Foundation (unpaid position with 
non -profi t organization ) . 

Director, Hanraii American Civil 
Liberties Union and Hawaii American 
Civil Liberties Union Foundation 
(unpaid position with non-profit 
organizations ) . 

Director, Hawaii Justice Foundation 
(unpaid position with non-profit 
organization) . 

Director, Hawaii Women's Legal 
Foundation (unpaid position nrith 
non-profit organization). 



Military Service : Have you had any military service? 
No. If so, give particulars, including the dates, 
branch of service, rank or rate, serial number and type 
of discharge received. None. 



-3- 



139 



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

Hoaora, awards before law school: Graduated with 
distinction in 1971, second in my undergraduate class. 
I completed my undergraduate education in three years. 
I represented the College of Arts and Sciences at 
graduation ceremonies in which each college at the 
t/aiversity of Hawaii bad on stage a single 
representative with a distinguisiied academic record. 
Alpha Lambda Delta, Phi Beta Kappa, Phi Kappa Phi. I 
was appointed a senior tutor in the Department of 
English and received the Alpha Lambda Delta Book Award 
for achieving the highest grade point average of the 
chapter members in that women's honor society. 

Honors, recognition in law school: Graduated cum laude 
in 1981. Appointed Book Review Editor of Volume 15 
(1979-BO) of the Harvard Civil Rights-Civil Liberties 
Law Review fone of only two second-year students on the 
editorial staff;. Sleeted Editor in Chief of Volume 16 
(1980-81) of the Harvard Civil Rights-Civil Liberties 
Law Review. 

Professional awards: Received Hawaii Women Lawyers' 
1987 Outstanding Woman Lawyer of the Year 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. 

Federal Judicial Conference for the United States 
District of Hawaii: Member 1990 

Hawaii State Bar Association: Member since 1981 
Attorney/Client Coordination Committee: 
Member 1985-88 

Mentor in Attorney -to -Law Student Mentor 
Program: 1995 

Hawaii Women Lawyers: Member since 1981 

Comparable Worth Committee: Co-Chair 1985-86 

Director: 1987-88 

Judicial Nomination Committee: Member 1991 

Hawaii Women's Legal Foundation: Member since 1992 
Fundraiser Committee: Co-Chair 1994, 

Vice Chair 1995 
Secretary: 1995 
Director: 1996 

American Bar Association: Member since 1981 



140 



Harvard Asian Law Students Association: Member 
1981-83 

Hawaii Justice Foundation: Member since 1994 
Director: 1995 

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 that lobby: 

American Civil Liberties Union of Hawaii 
Contributor since at least 1989 
Amicus Club Fundraising Committee, 1994 
Director, Hawaii Chapter, 1995 to 1996 
(I have not personally participated in lobbying for 
this organization. ) 

Waialae Iki V Homeowners' Association: Member since 
1992 (membership is mandatory for residents in Waialae 
Iki V). (This organization lobbied this year concerning 
access to a trail in the area, but I did not participate 
in lobbying for this organization. )* 

The Hawaii State Bar Association, Hawaii Women Lawyers, 
American Bar Association, and Hawaii Justice Foundation, 
all mentioned in my response to Question Ho. 9, lobby on 
occasion. As noted in my response to Question No. 12, I 
participated in lobbying- for flatiraii Women Lawyers, but 
I did not lobby for the other bar-related organizations. 

Organizations tJaat, to mv Jlcnowledqe, do not lobby; 

Plaza Club.- Member since 1987* 

Young Women's Christian Association: Intermittent 
Membership 

King Manor Association of Apartment Owners: Member 
since 1989 (membership is m^uldatory for owners of 
condominium units in King Manor)* 

Explorers of the Year 2020 

As a follow up to an emrliar group that looked 
ahead to tbe year 2000 and put tpgetber a booJc in 
1973 on wbat Hawaii could aspire to in 2000, the 
Ejcplorers of the Year 2020 ia a group that is 
looicing ahead to the Hawaii of 2020. Z attended a 
meeting of this group in 1995 but did not 
thereafter participate in its activities. 



-5- 



141 



A3 noted in my response to Question Ho. 9, I am also a 
director of the Hawaii Women's Legal Foundation. * I 
repeat mention of that law-related org^uli2ation here 
because membership in it is by invitation only. 

* By-laws are attached. 

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. 

Hawaii Supreme Court. 
Admitted 19S1. 

United States District Court for the District of Hawaii. 
Admitted 1981. 

United States Court of Appeals for the ninth Circuit. 
Admitted 1981. 

United States Supreme Court. 
Admitted 1993. 

There were no lapses in membership. 

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. 

"Betty Morrison Vitousek, " Called From Within- -Early 
Women Lawyers of Hawai ' i {Univeisity of Hawaii Press 
1992). This is a biographical essay a±>out a retired 
State of Hawaii judge. A copy is attached. 

In 1987, I contributed to a local seminar pamphlet on 
civil motions in 1987. This pamphlet was printed by the 
Hawaii Institute for Continuing Legal Education. My 
contribution consisted of a sample motion for summary 
judgment/ a copy of which is attached. I participated 
in a panel discussion put on during the seminar. 

In 1986 and 1987, I spoke to business groups, 
participated in a seminar for State of Hawaii 
legislators , and testified before the State of Hawaii 
legislature on behalf of Hawaii Women Lawyers in support 

-6- 



142 



of the concept of comparable pay for jobs of comparaijid 
worth. I do not have notes of the speeches or the 
aeminar. (I worked on a seminar pamphlet but cannot 
locate a copy of that>. A copy of the written testimony 
I submitted is attached. 

In 1996, I was part of a panel asked to comment on 
remarJcs by the featured speaker at a forum sponsored by 
the Hawaii Justice Foundation. The featured speaker 
spoke on the future of the courts. J do not have a copy 
of my comments. 

Health : What is the present state of your health? 
Excellent. List the date of your last physical 
examination. October 25, 1995. 

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. 

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 all 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 . 

None. 

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 . 

Legal Career : 

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

including : 



143 



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; 

None. 

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

None. 

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; 

Cadea Schutte Fleming & Wright 

1000 Bishop Street 

Honolulu, Hawaii 96813 

6/81 to the present 

(6/85 to 9/86 as an associate, 

and 10/86 to the present as a 

partner) 

William S. Richardson School of Law 

University of Hawaii 

Honolulu, Hawaii. 

Spring, 1988, Spring 1989 

I was an Adjunct Professor; I taught 

Appellate Advocacy. 

Court -Annexed Arbitration Program 

Judiciaxry, State of Hawaii 

777 Punchbowl Street 

Honolulu, Hawaii 96813 

Approx. 1989 to the present 

I am an arbitrator with this 

program . 

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 is in civil litigation 
in all phases and at all levels. 
Most of my cases involve commercial 
disputes. I have appeared in both 
federal and state courts and in 
trial and appellate courts in both 
systems. I have had an active 



144 



motions practice involving not only 
motions to dismiss and summary 
judgment motions, but numerous 
discovery motions, procedural 
motions such as motions to continue 
trial dates or to strike or add 
witnesses, and motions regarding the 
admissibility of trial evidence. I 
have also bad substantial appellate 
experience, preparing briefs as well 
as presenting oral argument. 

2 . Describe your typical former 

clients, and mention the areas, if 
any, in which you have specialized. 

The typical case for me involves a 
contractual dispute of some kind, 
and my clients in these disputes 
include business entities ranging 
from very large to very small, as 
well as individuals. For example, I 
represent American Savings Bank, 
FSB, in a foreclosure of commercial 
property, and I represented a 
financial institution in a class 
action arising out of a dispute over 
the interpretation of a clause in 
residential loan documents 
permitting changes in interest rates 
charged to borrowers. Small 
businesses that I have represented 
include an advertising agency that 
is operated out of its owner's home. 

.. Individuals that I represent in the 
typical contract dispute include a 

- doctor who has invested in 

commercial real estate and finds 
that his tenants and he are in 
disputes over lease terms. 

Outside of the context of commercial 
contract disputes , my clients tend 
to be individuals or small 
businesses. Thus, for example, X 
have represented a homeowner whose 
land is being condemned , another 
homeowner whose newly constructed 
residence is badly termite -damaged, 
and an individual who suffered 
serious consequences when her 
prescriptions for psychotropic drugs 
were misfilled by a hospital 
pharmacy, as well as a designer of 

-9- 



145 



Hawaiian wear alleging trade name 
infringement, and a sole 
proprietorship alleging copyright 
infringement with respect to small 
crystal sculptures. 

My areas of concentration have 
expanded in recent years. I have 
always hemdled and continue to 
handle contract disputes, insurance 
coverage, lender liability, and real 
estate disputes, with some 
involvement with personal injury 
cases and professional malpractice 
cases. In earlier years, I also 
worked on antitrust issues and, 
shortly after I became a partner in 
1986, on hostile corporate takeover 
litigation. In recent years, I have 
become increasingly involved with 
labor law issues, employment 
discrimination, and copyright and 
trademark 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. 

X have appeared in court frequently 
throughout my career. 

2 . What percentage of these appearances 
was in: 

(a) federal courts; 

(b) state courts of record; 

(c) other courts. 

In my career as a whole, about 35 
percent of my appearances have been 
in federal courts and 65 percent in 
state courts, although in recent 
years my practice has been divided 
about evenly between federal and 
state courts. During the time that 
I was a federal judicial nominee 
(from late December 1995 until 
October 1996), I chose not to appear 
in federal court at all. 



-10- 



146 



3. What percentage of your litigation' 
was: 

(a) civil; 

(b) criminal. 

100 percent baa been civil. 

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 . 

X have Cried thirteen cases to 
verdict or judgment. I was sole 
counsel in five cases, chief counsel 
in five cases, and associate counsel 
in three cases . 

5 . What percentage of these trials was : 

(a) jury; 

(b) non-jury 

Ten cases f77 percent) were jury, 
and three cases (23 percent) were 
non-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 : 

(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. 



147 



(1) Harris v. Hawaiian AirlinoB. Inc. , filed in 

the Circuit Court of the first Circuit, State 
of Bawaii, Civil Ho. B7-3894-12, consolidated 
with Norris v. Finazzo , filed in the Circuit 
Court of the First Circuit, State of Bawaii, 
Civil No. 89-2904-09. Subject of United 
States Supreme Court No. 92-2058. 

This action, consisting of two consolidated cases, went 
to the United States Supreme Court and is the most significant 
matter I have handled. See Hawaiieui Airlines, Inc. v. Norris , 114 
S. Ct. 2239, 129 L. Ed. 2d 03 (1994). The United States Supreme 
Court reviewed two decisions by the Bawaii Supreme Court, one 
fouad at 74 Haw. 235, 842 P. 2d 634 (1992), the other unpublished 
but essentially repeating the published state decision. Both the 
Bawaii Supreme Court and the United States Supreme Court ruled 
unanimously in favor of my client, the plaintiff. Grant T. Norris. 
Oral argument in the United States Supreme Court was held on April 
28, 1994, which was the last day of the Court's term. 

Norris was a mechanic who was fired when he refused to 
approve an unsatisfactory airplane repair and then contacted the 
Federal Aviation Administration about the repair. Be sued the 
airline in 1987, alleging a retaliatory termination. The case was 
filed in state court, removed to federal court, remanded to state 
court, returned to federal court, then remanded to state court 
ag-ain. It went up to the United States Court of Appeals for the 
Ninth Circuit twice and to the Hawaii Supreme Court twice. I 
conducted discovery, including numerous depositions, drafted and 
argued numerous motions in the state and federal courts, drafted 
appellate briefs, became lead counsel when the partner who was 
initially in charge of the case became ill (I had been working 
heavily on the case long before he became too ill to work), 
participated in the United States Supreme Court briefing, and 
presented oral argument in the United States Supreme Court. My 
work on this matter spanned the period from approximately 1989 to 
1995. 

The United States Supreme Court's decision established 
the limits to the preemptive scope of the Railway Labor Act. The 
Bawaii Supreme Court, besides having addressed that, also resolved 
issues of the scope of the common law prohibition against 
terminating an employee for whistleblowing, emd the remedies 
available for a wrongful termination. 

A final settlement was reached, and all claims were 
dismissed in 1995. 

Numerous judges decided issues in the case. Two trial 
court judges who were particularly involved with substantive 
motions in the cases are: 



148 



The Honorable Robert Klein (formerly a judge of the 
Circuit Court of the First Circuit, State of Hawaii) 
Hawaii Supreme Court 
P.O. Box 2560 
Honolulu, Hawaii 96804 
(808) 539-4725 

The Honorable James M. Fitzgerald 

United States District Court for the District of Alaska 
Federal Building and United States Courthouse 
222 West 7th Avenue 
Box 50 

Anchorage, Alaska 99513-7579 
(907) 271-5553 

Attorneys involved were: 

Associate who worked with me revresentincr Uorris until 

the associate left my law firm in 1992: 

Ernest H. Nomura 

Kobayasbi Sugita & Goda 

745 Fort Street, 8th Floor 

Honolulu, Hawaii 96813 

(808) 539-8700 

Co -counsel for Norris in the United States Supreme 

Court ■• 

Marsha Berzon 

Altshuler Berzon Nussbaum Berzon & Rubin 

177 Post Street, Suite 300 

San Francisco, California 94108 

(415) 421-7151 

Laurence Gold 
815 16th Street, N.W. 
Washington, D.C. 20006 
(202) 637-5390 

Mark Schneider 

International Association of Machinists and Aerospace 

Workers 

9000 Machinists Place 

Upper Marlboro, Maryland 20772-2687 

(301) 967-4500 

For Hawaiian Airlines. Inc.: 
Kenneth B. Hipp 
National Mediation Board 
1301 K Street, M.W. 
Washington, D.C. 20005 
(202) 523-5920 



13- 



149 



Deputy Solicitor General (who arer <^' ■'- 3't ppo r t of 

Morria before the Pnitad Statea g- .. . Cuurt): 

Richard Seaman 

Aasiatant to the Solicitor General 

Office of the Solicitor General 

Department of >7uatice 

Washington, D.C. 20530 

(202) 514-3344 

(2) Murabavaahi v. Honolulu Federal Savings & Loan 
Association , filed in the United States 
District Court for the District of Hawaii, 
Civil Mb. Bl-0423 MP, conaolidated with 
Murabavashi v. Honolulu Federal Savincra & Loan 
AsBociation , originally filed in the Circuit 
Court of the Firat Circuit but removed to the 
United Statea Oiatrict Court for the Diatrict 
of Bawaii aa 81-0459 MP. 

Two lawauita filed in 1981 were conaolidated in a 
federal diatrict court action in which the court certified a claaa 
of aeveral thouaand individuala who had obtained loana aecured by 
their reaidencea against their lender. The borrowers claimed that 
the lender had improperly increased intereat ratea beyond the 
inajciffluzn permitted by the loan documenta. X repreaented the 
lender, Honolulu Federal Savin^a & Loan Aaaociation. 

The Onited Statea Diatrict Court for the Diatrict of 
Hawaii granted aummary Judgment for the lender, waa reveraed by 
the United Statea Court of Appeala for the ninth Circuit, granted 
aummary judgment for the lender again on remand, and waa reveraed 
by a different panel of the United Statea Court of Appeala for the 
Ninth Circuit. The United Statea Supreme Court denied certiorari. 
(For the certiorari petition, the client retained mainland 
counael : Theodore Olaon, Gibaon, Dunn & Crutcher, 1050 
Connecticut Avenue, N.W. , Waahington, D.C. 20036-5303, 
(202) 955-8500. ) Thereafter, the parties reached a aettlement. 
The aettlement required certain activitiea to be conducted by the 
lender aubject to monitoring by the United Statea District Court 
for the District of Hawaii. The lender continues to auhmit 
periodic reports to the court. 

I drafted motions before the first appeal, handled 
discovery and motiona on remand, briefed and argued the second 
appeal, and negotiated the settlement. 

Besides giving me an opportunity to argue before the 
United Statea Court of Appeals for the Ninth Circuit, this case 
introduced me to the complexitiea of a class action. It has also 
lasted my entire career (beginning in 1981, with reporting 
requirements continuing even now), so that I grew up with this 
case and can measure my progress as a litigator by the levels of 
responaibility I aaaumed in the lifetime of this caae. 



150 



Ho decisiona in this case were publiabed. The judg^e is: 

The Honorable Martin Pence 

United States District Court for the 

District of Hawaii 
United States Courthouse 

Prince Kuhio Federal Building •<■ 

300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1804 

The partner at my firm who handled the first appeal was: 

Richard R. Clifton 

Cades Schutte Fleming & Wright 

1000 Bishop Street 
Honolulu, Hawaii 96813 
(808) 521-9338 

The lead opposing counsel is: 

W. Gregory ChucJc 

Pacific Tower, Suite 2750 

1001 Bishop Street 
Honolulu, Hawaii 96813 
(808) 533-3614 

( 3 ) National Union Fire Insurance Co. v. 

Villanueva . filed in the United States 
District Court for the District of Hawaii, 
Civil No. 88-00522 DAE. 

This was an insurance coverage case filed in 1988. I 
represented the defendants , who were the insureds (the estate of 
David Villanueva, who was a boy killed in an automobile accident, 
and his family members). The insurer sought to limit its 
obligations to the Villanuevas. It argued that there was only one 
compensable injury, that is, the injury to the boy who was killed, 
and that it there/ore had to pay only a single "per person" limit. 
The Villcmuevas responded that, in addition to having to pay for 
the deceased boy's injury, the insurer had to pay for each family 
member's emotional distress and thus could be subject to multiple 
"per person" limits. This dispute required construction of 
insurance policy provisions and several insurance statutes. The 
Villanuevas claimed that the estate of the boy was entitled to one 
limit, and that each of the family members was entitled to claim 
additional damages for each member' s independent emotional 
distress. 

I worked on the briefs in this case but permitted an 
associate to present oral argument to the district court. The 
district court granted summary judgment in favor of the insurer on 
this issue in a decision published at 716 P. Supp. 450 (D. Haw. 
1989). The Ninth Circuit stayed the appeal pending a decision by 



151 



the Hawaii Supreme Court oa a case raising the same issue. When - 
the Hawaii Supreme Court ruled for the insurer in its case, the 
Ninth Circuit affirmed the federal district court in this case. 
The Ninth Circuit's decision, issued in 1994, is unpublished. 

I served as lead counsel at a trial in 1990 on an issue 
not covered by the summary judgment ruling: the question of how 
many policies, each affording a single "per person" limit, applied 
to the accident. There were questions of fact concerning who 
could Jbe considered a member of the deceased boy's household. 
National Union had issued a policy to the boy's adoptive parents 
(his biological grsmdparents ) , and a separate policy to the boy's 
adoptive brother (his biological uncle) and aunt, who had insured 
separate vehicles. Both policies provided benefits in the event 
of an injury to family members living in the ssune household. When 
the boy was killed, the Villanuevas sought recovery under both 
policies, claiming that the boy lived in the same household as bis 
adoptive parents and his adoptive brother and wife. The residence 
consisted of two houses joined by a patio that served as a common 
living area. The family members treated the connected residences 
and patio as a single house. The insurer claimed that there were 
two separate households, and a nonjury trial was had on the 
matter. The Villanuevas prevailed at trial, and the insurer did 
not appeal this issue. 

This case is significant for me for two reasons. First, 
it involves one of my most complicated exercises in statutory and 
contractual construction. Second, it included a federal court 
trial. My actual work on the case covered the period from 1988 to 
1992. (For some time thereafter, the parties were simply waiting 
for the Ninth Circuit' s decision. ) 



case was: 



The judge in charge of the summary judgment part of the 



The Honorable David A. Ezra 

United States District Court for the 

District of Hawaii 
United States Courthouse 
Prince Kuhio Federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1907 

The judge who presided at trial was: 

The Honorable Alan C. Kay 

United States District Court for the 

District of Hawaii 
United States Courthouse 
Prince Kuhio Federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1904 



•16- 



50-531 98-6 



152 



The associate at my firm who assistmd me on the case 
(and who has since become a partner) was: 

Patricia J. McHenry 

Cades Schutte Fleming £ Wright 

1000 Bishop Street 
Honolulu, Bawaii 96813 
(SOS) 521-9261 

Lead opposing counsel was: 

Carleton B. Reid 

Reid Richards & ttiyagi 

Pauahi Tower, Suite 1200 

1001 Bishop Street 
Honolulu, Hawaii 96813 
(808) 524-2466 

(4) Sana Hou Com, v. Melbeth. Inc. , United States 
District Court for the District of Bawaii, 
Civil So. 92-00748 DAE. 

The plaintiff in this case was a Bawaii clothing 
manufacturer who alleged that my clients were liable for trademark 
and trade name infringement. My clients included a mainland 
clothing manufacturer (Melbeth, Inc. ) and parties who sold 
Melbeth' s products in Bawaii (Chun Rim Chow, Limited, Gem of 
Hawaii, Inc., amd J.C. Penney Company, Inc.) The name in issue 
was "Hana Apparel.' The parties disputed whether the plaintiff 
had the exclusive right to use the name. ("Hana" means "work" in 
Hawaiian and "flower" in Japanese, and is the name of a town on 
the Island of Maui that is a popular vacation spot.) 

Suit was filed in 1992. I conducted discovery, briefed 
and argued motions, and prepared the case for trial. An oral 
settlement was reached in 1994, on the day trial was scheduled to 
begin. Final settlement documents were processed in 1995. My 
work on the case began in 1992 and ended in 1994. 

Although no opinions in this case were published, I 
include it as a significant case because it is an example of my 
work in the intellectual property area. In the last few years, I 
have handled a number of copyright and trademark cases, several 
raising issues I addressed in this case. The case is also 
significant because it decided an important statute of lijnitations 
issue. Federal trademark law does not provide a limitations 
period, so courts apply the applicable state law. Which Bawaii 
limitations period applied to trademark claims had not previously 
been resolved. 



153 



The judge on this case was: 

The Honorable David A. Ezra 

United States District Court for the 

District of Hawaii 
Oaited States Courthouse 
Prince Kuhio Federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1907 

The attorney in my firm with whom I worked most closely 
on this case was a partner: 

Martin E. Hsia 

Cades Schutte Fleming £ Wright 

1000 Bishop Street 

Honolulu, Hawaii 96813 

(808) 544-3835 

The attorneys on the other side were: 

Paul Maki 

Elise Owens Thorn 

Maki & Thorn 

1018 Waimanu Street, Suite 205 

Honolulu, Hawaii 96814 

(808) 594-4222 

(5) Robbennolt v. Sumner , United States District 
Court for the District of Hawaii, Civil No. 
93-379 BMK, and Eakin v. State , Circuit Court 
of the First Circuit, State of Hawaii, Civil 
No. 93-0413-02. 

The plaintiffs were women inmates of a state prison who 
have alleged that prison guards and their supervisors sexually 
abused them. They filed suit in 1993. I was retained by the 
State of Hawaii as counsel for Dan hake, one of the guards. 

A settlement was reached in this case, and the case has 
been dismissed. 

The case involved very little in the way of proceedings 
on the record and no reported decision, instead requiring my 
participation in numerous chambers conferences with the magistrate 
and meetings sunong counsel. I include it in this list because it 
cast me in the role, unusual for me, of defending a state agent. 
Also, I include this case because, although it is a civil case, it 
was more closely related to the criminal justice system than most 
of my other cases. My work on the case began in 1994 (my client 
bad been held in default before I entered an appearance) and ended 
in 1995. 



154 



The judge who handled most of the proceedings waa a 
federal magistrate, who was to preside over the trial with the 
consent of all parties: 

The Honorable Barry JCurren 

C7nited States District Court for the 

District of Hawaii 
United States Courthouse 
Prince Kuhio Federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1306 

I did not work with another attorney in my firm on this 
matter. 

Other counsel on the case are: 

For the plaintiffs : 

David J. Gierlach 

Media Five Plaza 

345 Queen Street, Second Floor 

Honolulu, Hawaii 96813 

(808) 521-3336 

For the supervisors of the guards: 

Charles Fell (coordinating administrative matters) 

Steven S. Michaels (preparing substantive motions) 

George Horn ^conducting discovery) 

Department of the Attorney General 

Hale Auhau Building 

425 Queen Street '-■''' 

Honolulu, Hawaii 96813 

(808) 586-1365 

For other guards; 

FranJc K. Goto, Jr. 

1430 Mauka Tower, Grosvenor Center 

737 Bishop Street 

Honolulu, Hanraii 96813 

(808) 523-0451 

Ronald M. Shigekane 

Ayabe Cbong Nishimoto Sia £ Naicamura 

Pauahi Tourer, Suite 2500 

1001 Bishop Street 

Honolulu, Hawaii 96813 

(808) 537-6119 



155 



(6) JCona Enterpriaea, Inc. v. Estate of Bemlce 
PauaAi Bisbov . United States District Court 
for the District of Hawaii, Civil No. 94-00858 
DAE 

This case, brought in 1994, involves an investment 
scheme gone sour. The plaintiffs in this case claim that my 
clients (Bishop Estate, which is a large charitable trust, and its 
trustees ) breached duties owed to them. My clients had invested 
along with the plaintiffs in certain commercial ventures and also 
acted as lenders to certain entitiea in which the plaintiffs held 
interests. My clients have argued that many of the claims are 
defectively pled derivative claims, and many of the claims have 
been dismissed on that ground. 

I have worked on various discoveiry matters , but so far 
the case has involved primarily motions practice. I have been 
involved in briefing and arguing numerous motions. The case was 
set to be tried in September, 1996, but an order grimting my 
clients' motion to dismiss all remaining claims was recently 
entered. This recent order was based on a lack of jurisdiction 
arising from the plaintiffs' filing of an amended pleading. There 
are no reported opinions in this case. My work on the case began 
when the lawsuit was filed in 1994. 

This case is significant because it was an active 
federal case until recently and so may give an up-to-date 
indication of my federal court practice. 

The judge in charge of the case is: 

The Honorahie David A. Ezra 

United States District Court for the 

District of Havaii 
CTnited States Courthouse 
Prince iCuhio federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
(808) 541-1907 

The associate in my firm who is working most closely 
with me on motions is: 

Kelly G. LaPorte 

Cades Schutte Fleming & Wright 

1000 Bishop Street 

Honolulu, Hawaii 96813 

(808) 544-3848 



156 



The attorneys on the other aide are: 

James M. Sattler 

737 Biabop Street, Suite 2020 

Honolulu, Hawaii 96813 

(808) 524-2914 ■ ■.■■ 

Frederick W. Rohlfing III ■:.-•■= 

701 Biahop Street 

Honolulu, Hawaii 96813 

(808) 534-1188 

Ruaaell W. Walker 

Woodbury £ Kealer 

265 East 100 South, Suite 300 

Salt Lake City, Utah 84111 

(801) 364-1100 

Hawaii counael prior to the entry of appearancea by 
Meaars. Sattler and Rohlfing waa the law firm of Lynch & Farmer: 

Paul A. Lynch 

Stephen M. Tevea 

Lynch & Farmer 

Groavenor Center, Mauka Tower 

Suite 2500 

737 Biahop Street 

Honolulu, Hawaii 96813 

(808) 528-0100 

(7) Liberty Houae. Inc. v. D/B Hawaii Joint 

Venture . Circuit Court of the Firat Circuit, 
State of Hawaii, Civil No. 92-0576-02. 

I waa one of the attorneys representing the plaintiff, 
which waa Liberty Houae, the state's largest department store 
chain. In 1992, Liberty Houae sued the owner of a major ahopping 
center for breaching Liberty House's lease with its propoaed 
expansion of Ala Hoana Shopping Center. The owner waa a 
partnership of Daiei Hawaii Inveatmenta, Inc. (a member of a large 
Japanese conglomerate) and Equitable Life Assur2uice Society of the 
United States. In the course of discovery, we learned much about 
the partnerahip that, following the termination of the lawsuit in 
1554 by way of a settlement, led to its dissolution. 

The client originally hired a mainland law firm to try 
the case, but discharged that firm very close to trial and aaked 
my firm to handle the trial. My firm had to conduct a great deal 
of discovery in a very short time. I took numerous depositions 
locally and on the mainland. I deposed top officials with 
Cgni table's real estate subsidiary. X also prepared various legal 
memoranda . My work on the case began and ended in 1994 . 

There are no reported opiniona. 



157 



I include this case as significant because of its broad- 
scope and the high stakes involved. Besides involving detailed 
contract review, it required a study of shopping center design, 
marketing strategies, requirements for real estate development, 
and partnership obligations. Employment and corporate law issues 
arose, and I had to deal nrith numerous complex attorney/client 
privilege and trade secret issues. 

I was not lead counsel and did not argue in court, but I 
did appear before a court -appointed discovery master: 

Gerald Y. Sekiya 

Davies Pacific Center 

841 Bishop Street, Suite 1900 

Honolulu, Hawaii 96813 

(808) 524-1433 

Many of the attorneys in my firm's Litigation Department 
were involved with this case. One of my partners who was familiar 
with my work on the case and who had an equivalent role was: 

Milton M. Yasunaga 

Cades Schutte Fleming & Wright 

1000 Bishop Street 
Honolulu, Hawaii 96813 
(808) 544-3833 

Attorneys representing other parties were: 

For the partnership that owned the showing center: 

Benjamin M. Matsubara 

Curtis T. Tabata 

888 Mililani Street, 8th Floor 

Honolulu, Hawaii 96813 

(808) 526-9566 

For Daiei : 
Rodney M. Fujiyama 
Fujiyama Duffy £ Fujiyama 
PauaJii Tower, Suite 2700 

1001 Bishop Street 
Honolulu, Hawaii 96813 
(808) 536-0802 

For Equitable: 

John S . Edmunds 

Edmunds & Verga 

Suite 2104, Davies Pacific Center 

841 Bishop Street 

Honolulu, Hawaii 96813 

(808) 524-2000 



158 



James J. Garrett 

Benjamin Safir 

Morrison £ Foerster 

345 California Street 

San Fremciaco, California 94104-2675 

(415) 677-7000 



(B) Murasbi ae v. Tin . Circuit Court of the First 
Circuit, State of Hawaii, Civil Wo. 92-4342- 

11. 

I represented tie plaintiff, Tosbiyuki Murasbige, who 
lives in Japan. He bad lent $2,000,000 to the defeadcuts to be 
used for development of a golf course on the Island of Oahu. It 
was only partially repaid, and the defendants denied owing the 
balance. He filed suit in 1992, and the case was tried to a jury 
during the period from April 25, 1995 to May 10, 1995. I was the 
only counsel at trial for my client, who prevailed. The other 
parties appealed, but their appeals were dismissed. 

There are no reported decisions. This case is 
significant because it is a veiry recent trial. My work on the 
case began in 1992 and has continued in the form of collection 
efforts. 

The trial judge was: 

The Honorable John S.W. Lim 
Circuit Court of the First Circuit 
777 Punchbowl Street 
Honolulu, Hawaii 96813 
(808) 539-4039 

An associate at my firm who helped me with trial 
preparation was: 

Cynthia M. Jobiro 

Cades Schutte Fleming & Wright 

1000 Bishop Street 

Honolulu, Hawaii 96813 

(808) 521-9262 

One defendant represented himself at trial. Another 
defendant, Kingsley Tin, pursued an appeal pro se , but bis 
attorney at trial was: 

Arthur E. Rosa 

1121 Nuuanu Avenue, Suite 203 
Honolulu, Hawaii 96813 
(808) 523-0077 



159 



(9) SGM Partners v. The Profit Company , Circuit 
Court of the First Circuit, State of Hawaii, 
Civil So. 85-3466, consolidated with Azer v. 
Myers . Circuit Court of the First Circuit, 
State of Hawaii, Civil No. 85-1801. 

I represented Maher Azer, the owner of a commercial 
building in Honolulu. In 1985, he sued The Profit Company, which 
had a Chuck E. Cheese pizza franchise , for failure to make 
required payments as a tenant in the building. Profit 
counterclaimed for lost profits, attributing its failure to pay 
rent to the damage to its business caused by Azer' s failure to 
provide the promised parking spaces. This lawsuit was 
consolidated with a suit Azer brought for realtor malpractice 
against Grubb & Ellis Company and its broker. Azer contended that 
Grubb & Ellis, which had been the brokerage company that bad 
obtained the Chuck E. Cheese lease in Azer' s building, bad 
misallocated parking stalls among tenants. The consolidated cases 
were tried over a period of about six weeks in 1987. The cases 
also included claims by Azer against some of his former partners , 
whom he felt had to share in any damages he might incur. 

I was lead counsel for my client at trial, as well as 
for one of his former partners , Ezzat W. Wassef, who had assigned 
his rights to Azer. There were four sets of defendants : (a) 
Grubb & Ellis and the broker, Michael Myers, (b) The Profit 
Company (Chuck E. Cheese), (c) Alfred Shaheen (Azer' s former 
partner), and (d) Ben Gromet and Margaret Cameron (former 
partners). The jury returned a verdict in favor of my client on 
the realtor malpractice claim but also awarded some damages 
against Azer to Profit. 

Appellate decisions are reported at 8 Haw. App. 86, 793 
P. 2d 1189 (1990), and at 71 Haw. 506, 795 P. 2d 853. The trial 
court's judgment was affirmed after review by the Hawaii Supreme 
Court of the Hawaii Intermediate Court of Appeals' partial 
reversal . 

Although the trial occurred eight years ago, when I had 
been practicing only six years, I include this case here because 
it remains my most complicated trial. Most of my work on the case 
occurred between 1985 and 1990. 

The trial judge was sitting by designation in the 
Circuit Court of the First Circuit and was normally assigned to 
the District Court of the First Circuit, which has a more limited 
jurisdiction; 

The Honorable Tany Hong 

District Court of the First Circuit 

1111 Alakea Street 

Honolulu, Hawaii 96813 

(808) 538-5004 



led 



I replaced another attorney in one of the cases, as be 
bad to testify as a trial witness at the trial of this matter. 
Prior counsel for Azer was: 

Wesley a. Sakai , Jr. 

Bendet Fidell Sakai £ Lee 

Davies Pacific Center 

841 Bishop Street, Suite 1500 

Honolulu, Hawaii 96B13 

(80S) 524-0544 

Another attorney who is familiar with the case and who 
also bad to testify on Azer's behalf at trial was my former 
partner, who bad turned the matter over to me long before he 
realized that be would be called as a witness: 

Stephen B. MacDonald 

Lam MacDonald & Lau 

Amfac Tower 

700 Bishop Street, Suite 1002 

Honolulu, Hawaii 96813 

(808) 532-2322 

The opposing attorneys were: 

For Grub b & Bllia and the individual broker: 

William K. Meheula 

Jervis Winer & Meheula 

970 N. Kalaheo Avenue 

Kailua, Hawaii 96734 

(808) 254-5855 

For The Profit Company: 
Thomas P. Dunn 

733 Bishop Street, Suite 1690 
Honolulu, Hawaii 96813 
(808) 521-7188 

For Alfred Shahaan ■ 
Randall N. Harakal 
745 Fort Street, Suite 700 
Honolulu, Hawaii 96813 
(808) 531-9711 

For Ben Gro met and Margaret Cameron: 

James J. Bickerton 

Bickerton Saunders Dang & Bouslog 

Five Waterfront Plaza, Suite 550 

500 Ala Moana Boulevard 

Honolulu, Hawaii 96813 

(808) 599-3811 



-25- 



161 



Oa appeal, Grubb & Ellis and Myera were represented by 
Mebeula and by additional counsel: 

Wesley W. Ichida 

Lynch £ Farmer 

Grosvenor Center, Mauka Tower 

737 Bishop Street, Suite 2500 
Honolulu, Hawaii 96813 

(808) 528-0100 



(10) Jacobs V. Weintraub , Circuit Court of the 
Second Circuit, State of Hawaii, Civil No. 
91-0163(1). 

I represented a property management company. Village 
Resorts, Inc., which managed a condominium project on the Island 
of Maui. Disputes arose among the condominium unit owners, and a 
minority of owners filed suit in 1991 against directors of the 
owners' association. The minority alleged that the board bad 
improperly selected my client as the project manager. My client 
was included as a defendant after the court indicated its belief 
that my client was a necessary party. 

Summary Judgment was granted against the plaintiffs, who 
appealed. The appeal was briefed, but then stayed pending a 
settlement. A settlement was reached in 1995. There is no 
published opinion. I worked on this case from 1991 through 1994. 

I served as lead counsel for my client in discovery and 
in briefing and arguing motions. However, my client was not the 
target defendant so my office was not responsible for drafting the 
major substantive papers. I list this case as significant because 
it is the most recent case I have had in which I appeared in court 
proceedings on a neighbor island. As the United States District 
Court for the District of Hawaii serves the entire state, I 
thought I should include in my list of cases at least one case 
indicating practice in a state court outside of Honolulu. (I 
prevailed in three trials on neighbor islands, but the trials 
occurred when I had been practicing fewer than five years. ) 

The judge on the case was: 

The Honorable John B. McConnell 
Circuit Court the Second Circuit 
2145 Main Street, Suite 106 
Wailuku, Hawaii 96793 
(808) 244-2955 



was: 



162 



An associate at my firm who worked with me on the case 



Cynthia M. Johiro 

Cades Schutte Fleming & Wright 

1000 Bishop Street 

Honolulu, Hawaii 96813 

(808) 521-9262 

Other attorneys were: 

For the plaintiffs: 

Charles H. Hurd 

2020 City Financial Tower 

201 Merchant Street 

Honolulu, Hawaii 96813 

(808) 524-0325 -, 

Paul A. Barrett 

Barrett Hale & Oilman 

3600 First Interstate Center 

999 Third Avenue 

Seattle, Washington 98104 

(206) 464-1900 

For the association of owners: 
Kevin P.H. Sumida 
Matsui Ching & Sumida 
1490 Mauka Tower 
Grosvenor Center 
737 Bishop Street 
Honolulu, Hawaii 96813 
(808) 536-3711 

Willicua F. Crockett 
Crockett & Nakamura 
3 8 South Market Street 
Wailuku, Maui, Hawaii 96793 
(808) 244-3796 

For the directors of the association i 

John T. Komeiji 

Watanabe Ing & Kawashima 

Hawaii Tower, 5th & 6th Floors 

745 Fort Street 

Honolulu, Hawaii 96813 

(808) 544-8300 



■27- 



163 



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 1994 I was the co-chair and in 1995 I was the vice- 
chair of tiie Fundraiser Committee of the Bawaii Women's 
Legal Foundation. Thia annual fundraiser features the 
mayors of all four of Hawaii' s counties aa speiUcers and 
raises funds for g-rants that the Foundation makes to 
fund projects on women's rights and women in the law and 
to support services provided, for example, to families 
with children and to victims of domestic abuse. 

In 1991, I worked with Hawaii Women Lawyers to promote 
judicial nominations of women. 

In 1990, the United States District Court for the 
District of Hawaii had its first judicial conference. I 
was among the approximately twenty- five local attorneys 
invited by the court to participate. The participants 
discussed with the court matters of Judicial 
administration . 

From 1985 to 1988, I was a member of the Hawaii State 
Bar Association' s Attorney/Client Coordination 
Committee, which attempted to resolve fee disputes 
between attorneys and their clients. I reviewed written 
submissions and made written recommendations to the 
persons involved. 



164 



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 . 

Because of the way my Ixtt firm piurtnersbip handles 
distribution of partnership profits to partners, I will 
receive in 1997 some amounts taxed to me as 1996 income. 
The amount of such income earned in 199€ but to be 
received in 1997 will not be determined until early 
1997, after the firm's books for 1996 are closed. It is 
my understanding that, if I resign from the firm, I will 
receive this delayed income at sucii time as my firm may 
determine but in emy event within six months from the 
date of resignation. 

If appointed to a federal judgeship, I will roll over my 
HR-10 funds and my 4 OIK funds, now in the law firm's 
programs, into such other plans as are available to me 
outside of the law firm. The firm's partnership 
agreement provides for an additional lump sum retirement 
payment, as follows: 

The retiring partner [if retiring before age 62] 
shall be paid ... an additional retirement amount 
. . . equal to a percentage (not to exceed 100 
percent) of the average of the partner' s total 
yearly income from the firm during the immediately 
preceding three fiscal years, such percentage to be 
determined by the number of years the retiring 
partner bad been a partner of the firm with an 
allowance for each full year of partnership at the 
rate of 2 percent (.02) for each of the first five 
years (1-5) as a partner, 4 percent (.04) for each 
of the next five years (6-10), 6 percent for each 
of the next five years (11-15) and 8 percent (.08) 
for each of the next five years (16-20), payable 
over a three-year period, beginning with the first 
firm fiscal year after such retired partner would 
have otherwise completed twenty full years of 
sei-vice as a partner of the firm if such partner 
had not retired, in such installments as the firm 
may determine, provided, however, that the 
aggregate payments as of the end of any year of 
such periods shall not be less than one- third of 
the total amount payable times the number of years 
then ended in the period .... 

-29- 



165 



If paid In accordance with tie above -quoted provision, 
the retirement payment would be paid in 2007. However, 
if I cUD appointed, I will seek the firm's agreement to 
modify the provision so that I may receive any 
retirement payment at or around tiie time of my 
resignation and thereby end all financial arrangements 
with the law firm. 

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 Code of Judicial Conduct. I intend to 
resolve conflicts of interest by recusing myself from 
matters as may be required or appropriate. I anticipate 
that there may be instances in which recusal is not 
required but in which it would be best to disclose some 
connection on my part to a party, attorney, witness, or 
issue and to obtain the consent of all parties and their 
counsel to my sitting on a matter. 

I think most of the potential conflict of interest 
issues that may arise are likely to arise out of my 
relationship with my law firm, which has active federal 
cases on which I could not, of course, sit during the 
early years of any appointment. Possibly, some of my 
clients, especially financial institutions , may be 
involved in federal cases on which I would recuse myself 
as long as appropriate or required. It is also possible 
that a legal issue tbat I had been involved with in 
private practice could arise in federal cases, and I 
would recuse themselves on those also, as appropriate or 
required. 

Do you have any plans, commitments, or agreements to 
pursue outside employment, with or without compensation, 
during your service with the court? No. If so, 
explain. Not applicable. 

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.) 



166 



HNANCIAL DISCLOSURE REPORT 

FOR CALENDAR YEAR 1995//^?,^ 



Raporc Required by zr.t 
RtEorm Ace of :»t^. ?<^ 
101 -1»4. t*Ov«mb«r iO. 
IS U S C *pp 6, 101-: 



=ers=- 3-c:r-..-.9 :js; -lame. first, middle initmi 

Mollway, Susan 0. 


I Cour: or Organization 

U.S. District Court, Hawaii 


J =ate =; ^epcr-. 

1/7 /97 


U.S. District Judge— Active 


s aeport Type ;criecx appropriate typ«i 6. Reporti-g Period 
X »oe,ir.atioo. Date I ' 7 ,97 
_ Initial _»nnual _ Final I / 1 /96 ■ 1 2 .3 1/96 




B On the batit of ch« inforrMCion contained -.n thii Report «na 
•ny iBo<lific*cion« percaininq thereto, it ii. m Try spinian, 
in compliance vith applicable law* and regulations. 

Reviewing Officer Date 


IMPORTANT NOTES The insiruciions 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. {Reportmgindividualonly;seepp. 9-13 of Instructions.) 

POSITION NAME OF ORGANIZATION /ENTITY 

NONE (No reportable positions) 



Partner 



Cades Schutte Fleming & Wright 



Arbitration 



State of Hawaii Court Annexed Arbitration Program 
Hawaii Women's Legal Foundation 



II. AGREEMENTS. (Rcponingindividualonly; see pp. 14-17 of Instructions.) 

DATE PARTIES AND TERMS 



H 



NONE (No reporlabic agreements) 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 



n 



SOURCE AND TYPE 
NONE (No reportable non-investment income) 



1/1/96 

- 12/31/9 6 
1/1/96 

- 12/31/96 



Cades Schutte Fleming & Wright 
(provided legal services as parrnpr^ 



State of Hawaii Ethics Coimnissio 
(executive director) 



S 275.9A5 
S (S) 

S 

S 



167 



FunifcxAL oisciiOStntE report 



Nane of Person Rcporczjig 
Molluay, Susan 0. 



Dace of R*porT 
1/7/97 



JL ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Rqwrt.) 



XX. CERrmCATIOT*. 

In cocnpliance with the provisions of 28 U.S.C. §455 and of Advisory Opinion No. 57 of the Advisory Comminee on Judicial AaiMUes. 
.id to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory funaion in any litigation dunng the 
psiod covered by this repon in which I, my spouse, or my minor or dependent children had a financial interest, as defined in Canon 3Q 3Xc). 
in the outcome of such litigation 

I certify that all infonnation given above (includirig infomialion pertaining to my spouse and mirxjr or dependent childrea if an\ ) is accurate. 
true, and complete to the best of my knowledge and belief, and that any information not reported was withheld because ii met applicab!; 
statutory provisions permitting non-disclosure. 

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been repotted are -.r 
coirpliance with the provisions of 5 US.CA. app. 7, § 501 et seq., 5 U.S.C. § 7353 and Judicial Conference regulations. 



Signature , 



./k^^ Ci^ l/^\h^-.^Y 



Qgjj January 7, 1997 



NOTE; ANY INDIVIDUAL WHO KNOWINGLY AND WIUULLY FALSIRES OR FAILS TO RLE THIS REPORT MAY BE SLBJ EC 
TO aVIL AND CRIMINAL SANCnONS (5 U.S.C.A. APP. 6, § 104.) 



nUNG INSTRUCnONS; 
Mail signed original and 3 additional copies to: 



Cbmrditee on Financial Disclosure 
Adminisiniivc Oftice of the 

United Slates Co«ffts 
One Cblumbus Grcle, N.E. Suite 2-301 
Washingon. DC 20544 



168 



FINANCIAL DISCLOSURE REPORT 



»••• of Person Reportinq 

Mollway, Susan 0. 



Dace of Report 

I /7 ./97 



V.I. Page 1 INVESTMENTS and TRUSTS - income, value, transactions (Includes ihose of spouse 
and dependent children. See pp. 37-54 of losiniaions.) 



DescripCLon of A«sec» 

tndicacc irt-.ere •ppiic*ble. ovoer ol 
cri« A«aec by ujtnq cue p»rench«tic»l 
'(Jf for loint ownership of report- 
ing IndividueL And spouje. *(S)* for 
sep^nce cwnerablp by ipouie, • (DCl ■ 
for ownersnip By dependent child. 

exenqtt fron prior disclosure 


Incoae 
durliB, 
reporting 


Gross vslue 

reporting 
period 


Transactions durtMg reporting period 


5de' 


Typ* 


cadi*' 


v.lue 

MeUuxU 

Code 

lO-Kl 


(1) 


If not BseiHpt froBi diseioeur* 1 


byy* fell. 
cion) 


13) 

looth- 
Oey 


Code 


GAj.nl 
Code 


Identity of 
tMver/ seller 
tit pri-vate 
transaction) 


NOKB (No reportstle 




















HI State Employees Fed 
Credit Union, Hon, HI (J) 


B 


Interei 


"^G 


T 












Bank of America, FSB 
^ Honolulu, HI (J) 


A 


Intere. 


■^J 


T 












Prudential 401K 
' Moosic, PA (S) 


D 


Intere; 


■^M 


T 












Great Western 401K 
* Northridge, CA (S) 


A 


Intere. 


"^J 


T 


Transfe : to 
Prudential : 


/.' 


A 




HR-10, First Hawaiian Bank. 
Honolulu. HI 




Intere; 


t M 


T 












Stable Fund, Diversified 
Investment, Purchase, NY 


D 


Intere; 


"^L 


T 












, IRA (self) 

First Hawaiian Bank, HI 


A 


Intere; 


'j 


T 












IRA (S) 

First Hawaiian Bank, HI 


A 


Intere; 


■^J 


T 












Illinois College Savings 
Bonds (S i DC) 


A 


Intere; 


"^J 


W 












U.S. Bonds Series EE 
'°(DC i, self or S) 


A 


Interea 


'j 


U 












Western Wireless Stock 






J 


T 


Buy 


5/22 


J 


A 















































































































































' 


!S5r?i?*'Si 


"fUl 


J:lii°SS 


"oi'S.OOO 


ftlso"' 


l"o*lilS%o 





S:nol"oiMS2"oo 


O.S5.001 to Jli.3Q0 
000 n-More than Ji.ooo.ooo 


' 


Velue Codee: 
ISee col CI 


1 OJ. 


i-Mh't 


or less 


. umi' 


I CO S50.00( 




P*Hara than Sl.oab.o 


M-StOO.OOl to S3Sa.0O0 


' 


Velue Methoc 


Codes 


•^iSSJ-J 


"ie 


B-coet 1 
v-other 


eel eataca o 


niy 


S-Aaaas»»DC 

M>estL>iaced 


T -Cash/Market 



169 



FIHANCIAL DISCLOSTIRE REPORT 



Item* of Parson R«porcin9 

Hollway, Susan 0. 



1/ 7/97 



I REIMBURSEMENTS and GIFTS - transportauon. lodging, food. entertaimnenL 

(Includes those lo spouse and dependent children; use the paienthcticals '(S)' and '(DC)' to indicate reportable 
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instructions.) 

nSOWCS DESCRIPTION 

NOME (No such reportable reimbursements or gifts) 

Exempt 



n 



V, OTHER GIFTS. (Includes those lo spouse and dependent children; use the parentbeticals '(.$)' and '(DC)' (o 
indicate other gifts received by spouse and depcndeni children, respectively. See pp. 30-33 of Instructions.) 
SOURCE DESCRIPTION 

HOME (No such reportable gifts) 
Exempt S 

S. 

s. 



Q 



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. Sec pp. 34-36 of Instructions.) 

CREDITOR DESCRIPTION VA:,V£ C^: 

.Tn^m /Kt - I.I 1- ur.- \ *Previously listed mortgage with Continental 

MOME (No reportable uabuiues) ., „,,,- I. jjw 

^ "^ Savings Bank is for apartment occupied by 

relative that we treat as second home (no 

income earned) . 



170 



FINANCIAL DISCLOSURE REPORT 

FOR CALENDAR YEAR 1995//^^^ 



15 ■.• s C »fp 



Mollway, Susan 0. 


2 :2ur; ;r :rq«rni»Cion 


1 :ite ;i =ef:r-. 

1/7 /97 


.... ZT J3r-. .-t 


5 sep=r; Type checK «ppr3pri4Ce cypej 
:nit;.l Anr.ujl Fi.-,.! 


5 Repor-.i-g ?eri=d 




a ;n -.1* bills of t.^e infomicisn contiir.ed :.-: ;^l3 Repcri «.->.3 
iny Tu3dilic*t;ons pertiininq ^nereis, lc -s. in ny apimcn 
in coBipiiince -itn ippiicibU llwi *nd regu.itions 


IMPORTANT NOTES The instrudions accompanymg this fonn must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable information. Sign on last page 



— L POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.) 

POSITION NAME OF ORGANIZATION /ENTITY 

NONE (No reportable positions) 



Director 



Hawaii Justice Foundation 



American Civil Liberties Union of Hawaii 

American Civil Liberties Union Foundation of Hawaii 



II. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.) 

CATE PARTIES AND TERMS 



n 



NONE (No reportable agreements) 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Insiruaions.) 

CATE SOURCE AND TYPE M^^fi: ^ifi^'^- 



n 



NONE (No reportable non- investment income) 



171 



Please complete the attached financial net worth 
statement in detail (Add schedules as called for) . 

See attached financial net worth statement. 

Have you ever held a position or played a role in a 
political campaign? I have never held any position in 
any political campaign but I did participate in some 
campaign activities more than 20 years ago. If so, 
please identify the particulars of the campaign, 
including the candidate, dates of the campaign, your 
title and responsibilities. I did door-to-door 
canvassing, soliciting votes or gathering information 
for political polls being teUcen by candidates, for 
Vincent Yano, 1970 (running for lieutenant governor of 
Hawaii), and 1974 (running for the Hawaii State Senate). 
I probably also worked in 1970 on canvassing and 
possibly silk- screening T-shirts for Thomas P. Gill, who 
was running for governor of Hawaii with Vincent Yano as 
his running mate. 



172 



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. 

In my early years as an attorney, I was a volunteer 
attorney with Hawaii Lawyers Care, which provides free 
legal representation to persons with incomes below a 
specified amount. Among the projects I worked on were 
representing a teen-aged girl who had been evicted from 
her apartment. I spent more than 30 hours on the matter 
in approximately 1982 and even obtained a small punitive 
damage award for her. In about 1983 or 1984, I also 
represented a Seunoan at a deportation hearing, spending 
around 10 hours on the matter. In 1985 and continuing 
into 1986, I spent more than 60 hours representing a 
group of men who belonged to a Filipino religious group 
and who had numerous problems with the ownership of 
various parcels of land but who lacked the resources to 
pay for legal services. 

In 1986 and 1987, I spoke to business groups, 
participated in a seminar for State of Hawaii 
legislators, and testified before the State of Hawaii 
legislature on behalf of Hawaii Women Lawyers in support 
of the concept of comparable pay for jobs of comparable 
worth. I also worked on a pamphlet distributed at the 
seminar. I spent more than 100 hours on this matter. 

From approximately 1989 until the summer of 1996, I have 
participated as a volunteer arbitrator in the Court- 
Annexed Arbitration Program. This program is not 
limited to serving the disadvantaged, as it covers all 
personal injury cases with an estimated value below a 
designated amount, but I consider acting as an 
arbitrator to be a public service. In a typical year, I 
may spend 10 hours or more on this service, depending on 
the cases I am assigned. 

I have been active in fundraising activities for 
programs that assist the disadvantaged. 

I invested more than 10 hours in running a mock trial 
program for high school students in approximately 1993, 
and invested a day and an evening on acting as a mentor 
for a high school girl interested in a legal career. I 
have also invested 10 or more hours in each of at least 

-32- 



173 



tbrea ymmrs voluntaerinq to judga moot court argvmmuta - 
for flrat-year law students, and bavm apaat time on at 
least tliree occasions in 1995 in connection with a 
mentor program connected with the William 3. Richardson 
School of Law at the C7niversity of Hawaii. 

Much of the time I have spent on committees and boards 
Hated in responses to other questions in this 
questionnaire has related to the provision of assistiuice 
to the disadvantag-ed. X have also frequently responded 
on a pro bono baais to requests for legral advice from a 
variety of nonprofit organizations, including a school 
affiliated with a church and an organization to prevent 
child abuae. These Jtinds of requeata uaually take up 
one or two hours of my time per request. 

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, any organization which discriminates- -through 
either formal membership requirements or the practical 
implementation of membership policies? Wo. If so, 
list, with dates of membership. What have you done to 
try to change these policies? Wot appiicaiile. 

Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal 
courts? Wo. If so, did it recommend your nomination? 
Wot applicable. 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) . 

apon learning in the apring of 1995 that Senator Daniel 
K. Inouye euid Senator Daniel K. Akaka were inviting 
applicationa to fill the vacancy left by the sudden 
death of the Honoriible Harold Fong, Z submitted 
application materiala to them. During their interview 
of me in Honolulu, we discussed a range of subjects 
affected by local circumstances. They reviewed the 
make-up of Hawaii' a federal bench and my qualifications. 
They also questioned me as to whether, in light of the 
lack of any- death penalty under state law and the local 
bar's resulting unfamiliarity with the death penalty, I 
would be able to enforce the federal death penalty. 
They noted that Congreaa waa adding to the list of 
Crimea that could result in a death penalty. They also 
referred to abortion iaauea (which in Hawaii often arise 
against the bacJcdrop of a Hawaii statute legalizing 
abortion > and Wative Hawaiian iaauea, which play a 
unique role in various judicial procaedinga in Hawaii. 
I acknowledged that, as X »ras applying for a trial court 

-33- 



174 



position, X would be bound by appellate decisions 
construing applicable statutes and constitutional 
provisions. I noted that i^ative Hai^aiian sovereignty- 
issues bad often failed to overcome Jurisdictional 
challenges . 

Senator Inouye later called me to notify me tJiat I was 
included on a list of four candidates tbat was being 
sent to President Clinton. Thereafter, the Office of 
Policy Development in the Department of Justice sent me 
the ABA Questionnaire to complete, which I did. After a 
few months, I was notified by Senator Inouye, the Office 
of Policy Development, and the Hbite House Counsel's 
office that my application was being further processed. 
I then received further forms to complete (from the FBI, 
the Office of the Attorney General, and the Senate 
Judiciary Committee). I was interviewed by the FBI, the 
ABA, and Eleanor D. Acheson, Assistant Attorney General 
for the Office of Policy Development, and her staff. 

I was nominated by President Clinton in December, 1995, 
and I attended a hearing before the Senate Judiciary 
Committee in March, 1996. I was not voted upon by the 
full Senate, and Senator Inouye invited me to resubmit 
my application. 

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 was not asked bow I would rule on any case, issue, or 
question. I did discuss legal issues, as described in 
my response to Question Wo. 3. 

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; 



175 



I. BIOGRAPHICAL INFOKMATION (PUBLIC) 

Pull name (Include any former names used.) 

Edward Francis Shea 

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

Office: Shea, Kuffel & Klashke 
1816 N. 20th 
P.O. Box 2368 
Pasco, WA 99302 

Home: Pasco, WA 

Date and place of birth. 

June 6, 1942; Maiden, Massachusetts 

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

Married to Marguerite Mary Shea (formerly 
DeRenne) . Registered Dietitian, Kadlec Medical 
Center, 888 Swift Blvd., Richland, WA 99352 

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

Boston State College, 1961-1965; BS Ed - 6/65 

Georgetown University Law Center, 1967-1970; JD - 
6/70 

Bmpl nyw ient Record i List (by year) all business or 
professional corporations, con^anies, 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 ea^loyee since graduation from 
college. 



(RESP0NS3 . SKT] 



176 



1965-1967: Boston School System, Boston Technical High 
School; Teacher 

1966: Manpower Defense Training Program-East Boston; 
Program Instructor-evenings. 

1967-1970: United States Capitol Hill Police Force; 
Police Officer (except Summer of 1969) . 

1969-1970: Georgetown University Law Center; Research 
Assistant to Assistant Dean David J. McCarthy. 

1970-1971: Judge Harold J. Petrie, Washington State 

Court of Appeals, Division II. Tacoma, Washington; 
Law Clerk 

1971-1974: Peterson, Taylor & Day; Associate Attorney 

1974-1978: Peterson, Taylor, Day & Shea; Partner. 

1978-1980: Peterson & Shea; Partner 

1979-1980: Franklin County Boundary Review Board; 
Chair. 

1980' E: Fund for Educational Activities; Board Member 

1980-1984: Shea, Kuffel & Lindsay; Partner 

1984-1987: Shea, Kuffel, Lindsay & Flynn; Partner 

1987-1994: Shea & Kuffel; Partner 

1994-1996: Shea, Kuffel & Klashke; Partner 

1997-Present : Shea, Kuffel, Klashke & Shea; Partner 

1995-1997: Eastern Washington Chapter of the March 
of Dimes (also Chapter Counsel - 1993-1997) ; 
Volunteer - Public Affairs Officer 

Military Service! Have you had any military service? 
If BO, give particulars, including the dates, branch of 
service, rank or rate, serial number and type of 
discharge received. 

I have not had military service. 



[RESP0NS3 . SKTl 



177 



HonorB »t>h &w«rdn; List any •cholarahlps , fellowahipa, 
honorary degraes, and honorary aoclaty Banbarahlpa that 
you belleva would be of interaat to the coamittae. 

• National March of Dimes Chapter Counsel of the 
Year, 1994. 

• Admitted to Americaui College of Trial Lawyers, 
March 1996. 

• American Bar Foundation, lifetime fellow 

• Chairperson, Benton-Fremklin County Bar Association 
Law Day programs: 

1994 - WSBA co-award winner 
1994 - ABA one of four Law Day Programs 
awarded National Honors. 

• Who's Who in American Law - various editions. 



Bar AgBoeiationas 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 office «diich you have held in such groups. 

Washington State Bar Association: 

A. President of the Washington State Bar 
Association/1996 . 

B. Representative/Witness testifying before the U.S. 
Senate Subcommittee -Hearings on Ninth Circuit 
Reorganization Bill of 1989. 

C. Board of Governors Retreat Facilitator/1990, 1993 

D. Writer/Producer of the video "The First 100 Years 
of the Washington State Bar Association" . 

E. Appointed Representative of WSBA to ABA House of 
Delegates/1989-1994 . 

F. Member and later Chairman of Resolutions 
Committee/1989-1992 . 

G. Member of Board of Governors from Fourth 
Congressional District/1986-1989 . 

H. Federal Qualification and Selection Committee U.S. 

District Court for Western Washington 

position/1987. 
I. Long Range Planning Committee/1985. 
J. Continuing Legal Education Board/late 1970' s. 
K. Chairman -Young Lawyers section/1974. 



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L. Committee on Organization and Government of the 

Bar/1974. 
M. Member of Washington Women's Lawyers/ (exp. 9-30-97) 

II. American Bar Association: 

A. Commission on Public Understanding About the 
Law/1992-1995. 

1. Committee Member and Session Leader - 
Symposium on "Law in America Life" , 
Annapolis, Maryland/1993 

2. Chairperson - Long Range Planning Committee. 

3 . Member - Mini Grant Committee which reviewed 
and recommended to commision as a whole the 
award of mini grants. 

B. Appointed by Washington Bar Association as one of 
its six representatives to the ABA House of 
Delegates/1989-1994 . 

C. Representative of the Young Lawyers Division to the 
House of Delegates of the American Bar 
Association/1980 . 

D. One of four National Participants - 1980 Annual 
Debate - Conference of Personal Finance. 

E. Chairman, Board of Editors, Barrister 
magazine/1978-1980. 

F. Member Executive Council of Young Lawyers 
Section/1970's. 

III. Fellow, Bar American Bar Foundation 
WASHINGTON STATE TRIAL LAWYERS ASSOCIATION: 

1 . Two terms on the Board of Governors . 

2. Annual convention Chairperson/1983. 

3. Torts Lecturer - Peoples Law School - 1990-1994. 
4.WSTLA EAGLE - 1993-1997. 

BENTON FRANKLIN BAR ASSOCIATION: 

1. President, Secretary, and Law Day Committee Chairperson on 

several occasions. 

2. Special Award for Law Day Programs in 1993 and 1994 as Law 
Day Chairperson. 



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3. Law Day Coordinator for all Law Day Programs 1993 -present : 

a) Law Day Dinner 

b) Law on the Mall 

c) T.V. Panels - produced and moderated 8 panels of 
lawyers and judges on various legal topics. 

AMERICAN TRIAL LAWYERS ASSOCIATION 

FEDERAL BAR ASSOCIATION - EASTERN WASHINGTON 



10. Other M fimhrrnhlpB • 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: 

• Eastern Washington Chapter March of Dimes 

• American Bar Association 

• Washington State Trial Lawyers Association 

• American Trial Lawyers Association 

Other Organizations 

• Tri-City Court Club 

• Boston Latin School Foundation 

• Georgetown University Alumni Admissions Programs 

• Tri-City Industrial Development Council (TRIDEC) 

• American College of Trial Lawyers 

• American Bar Foundation 

• St. Patrick's Catholic Church 

• Franklin County Democratic Party 

• Pasco Chamber of Commerce 

• Tri -Cities Visitor and Convention Bureau 

11. Court A <<in^«n;tpT7. 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. 

• Washington State Supreme Court: 1971 



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• U.S. District Court - Eastern District of Washington: 
August 13, 1973 

• U.S. District Court - Western District of Washington: 
1980 

• U.S. Court of Appeals for the Ninth Circuit: 1971 

12. PublJBhad Wrltingg; List the titlsB, publishers, and 
dates of books, articles, reports, or other piiblished 
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 other 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. 

AR TI CLES /COL UMNS : 

1. Washington State Bar News. August, 1996, "One Year - 
Many Memories" . 

2. Washington State Bar News. July, 1996, '■'The Bar 
Leaders Conference" . 

3. Washington State Bar News. June, 1996, "What Time is 
It?". 

4. Washington State Bar News. May, 1996, "Common-law 
Courts?" . 

5. Washington Stat e Bar News. April, 1996, "May 1st is 
Law Day" . 

6. Washington State Bar News. March, 1996, 
"Professionalism" . 

7. Washington State Bar News. February, 1996, "If 
Phyrrus met Pogo, what would they say to each 
other?" . 

8. Washington State Bar News. December, 1995, "The 
Holidays - Enjoy Them!". 

9. Washington State Bar News. November, 1995, "More 
Than 600 Lawyers Are Participating on WSBA 
Committees" . 

10. Washington State Bar News. October, 1995, "Our 

Future Together" . 
11 -Washington State Bar News. February, i99i, "One 

Lawyer's Journey from Computer Ignorance to Computer 

Bliss" . 
12. WSBA Litigation Secti on Newsletter. March, 1990, 

"The Professionalism Debate: A New Forum". 

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13.WafihinqtQn State Bar News. January. 1990, "Remarks 
Delivered at the 100th Annual Meeting Azuiiversary 
Dinner . ' 

lA- DE WQVQ. November, 1995, -My First Jury Trial*. 

T^. T-r^ -City Herald . Progress Edition, to be supplied. 

TC Wa^Vi-incyfnTi State Bay Mown, September, 1996, 
•President ' s Report" . 

CPPgrWP.q/PAWgr.*?.. 

Z do not have speeches that are printed or any notes. 

1. "Government Under Attack', panelist, 199S Washington 
State Judicial Conference. 

2. "Common Law Courts", panelist. 18th Washington State 
Family Support Conference/1996 . 

3. March of Dimes - Teen Pregnancy Panel-1995 

4. Various civic organizations, service clubs, and bar 
associations on law-related topics. 

5 . To various Bar Associations and Judicial Conferences 
in the 1980' E and 1990' s on general topics related 
to trial law but not on constitutional law or legal 
policy. 

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

My present health is excellent. My last physical exam 
was February of 1997. 

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

None. 

15. Clfcationa; Xf you are or have been a judge, provide: 
(1) citations for the ten aost significant opinions you 
have written; (2) a short suBmary of and citations for 
all appellate opinions where your decisions were 
reversed or where your judgncat was affirmed with 
significant critieisa 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 

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opinions. If any of the opinions listed were not 
officially reported, please provide copies of the 
opinions . 

Not Applicable. 

16. PiihUf Office; State (chronologically) any piiblic 
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. 

Chair, Franklin Boundary Review Board, 1979-1980 - 
appointed by Governor. 

17 . Legal Careers; 

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

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

I served as law clerk to Judge Harold J. Petrie, 
Washington State Court of Appeals, Division II, 
Tacoma, WA 1970-1971. 

2. Whether you practiced alone, and if so, the 
address and dates; 

I have not practiced alone. 

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

1971-1974: Peterson, Taylor & Day, Associate Attorney 

627 W. Bonneville Street, Pasco, WA 99301 

1974-1978: Peterson, Taylor, Day & Shea, Partner 

627 W. Bonneville Street, Pasco, WA 99301 



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1978-1980: Peterson & Shea, Partner 

810 S. 10th Street, Pasco, WA 99301 

1980-1984: Shea, Kuffel & Lindsay, Partner 
1716 N. 20th, Pasco, WA 99301 

1984-1987: Shea, Kuffel, Lindsay & Flynn, Partner 
1716 N. 20th, Pasco, WA 99301 
8300 Gage Blvd., Kennewick, WA 99336 

1987-1994: Shea & Kuffel, Partner 

1716 N. 20th, Pasco, WA 99301 (1987-1989) 
1816 N. 20th, Pasco, WA 99301 (1989-present) 

1994-1996: Shea, Kuffel & Klashke, Partner 
1816 N. 20th, Pasco, WA 99301 

1997-Present : Shea, Kuffel, Klashke & Shea, Partner 
1816 N. 20th, Pasco, WA 99301 

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 first ten years of my practice, I represented 
many individuals in the areas of family law matters, 
traffic citations including driving under the influence, 
felony cases including murder, charges of drug 
possession and sale, and personal injury cases. From 
1981 and thereafter, my practice in the criminal law 
area and traffic matters diminished as my injury cases 
increased. After 1987, I ceased doing family law cases 
and concentrated on personal injury matters, as well as, 
complex civil litigation on non-tort matters. 

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

My practice has essentially involved the representation 
of individual clients both plaintiffs and defendants. I 
have also represented small businesses and their 
officers and directors. Those businesses would often 
include professionals such as physicians. In addition 
to these individuals, I have represented government 
officials such as police officers, police chiefs, a 

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184 



deputy city attorney, a school district superintendent, 
and a high school principal. In 1996, we agreed to 
begin representing members of the Washington Education 
Association who were working in schools within the Tri- 
City area. Those individuals are teachers belonging to 
the Washington Education Association who are teaching in 
and around the Tri-City area. 

1. Did you appear in court £rec[uently, occasionally, 
or not at all? I£ the frequency of your appearance in 
court varied, describe each such variance, giving dates. 

I do appear in court regularly on motions for summary 
judgment, discovery matters and the trial of injury 
cases as well as complex civil litigation. The 
frequency of my appearance is less than in the past when 
I carried a heavy load of family law and criminal 
matters which required weekly appearances in court . In 
addition to court appearances, I frequently in engaged 
in cases which are resolved through mediation and others 
which are required to be arbitrated in front of one- 
three person panels of arbitrators. 

2. What percentage of these appearances was In: 

1) Federal Courts. 1% 

2) State courts of record. 98% 

3) Other courts. 1% 

3. What percentage of your litigation was: 

1) Civil. 99% • ■ 

2) Criminal. 1* 

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. 

9 

5. What percentage of these trials was: 

1. Jury 20% 

2. Non-jury. 80% 



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18. Litigation ; Describe the ten Boat aignlf leant 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 sximmary 
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-co\insel and of principal 
cotinsel for each of the other parties. 

1 . Magula V. Bento n -Pranlcl in Title Coapany> Washington 

State Supreme Court Cause Number: 63318-5. 

I represented Mrs. Magula. She was a fourteen-year 
employee of the Defendant who was terminated after her 
husband allegedly harassed a co-worker who had alleged 
that the husband had engaged in several affairs in the 
workplace setting. The husband was an independent 
contractor who was frequently at the business location. 
Originally, suit was brought on several different bases 
for wrongful discharge including marital discrimination 
in violation of state law. Summary Judgment was granted 
to the Defendant in the Benton County Superior Court . I 
filed an appeal with the Court of Appeals, Division III, 
which reversed the Order Granting Summary Judgment. 
Petition for Review was granted by the Washington State 
Supreme Court which on January 30, 1997, affirmed the 
decision of the Court of ^peals reversing the Summary 
Judgment. The Supreme Court remanded the case back to 
the trial court for further proceedings consistent with 
the opinion which held that there was a question of fact 
for the jury as to whether or not the plaintiff's 
marital status was a substantial factor in the 
Defendant's decision to discharge her. This is a case 
of first impression in the State of Washington, although 
there were several precedents which enabled us to 
persuade the court to rule in our favor . Judge Duane 

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Taber, now retired, was the trial judge. Opposing 
Counsel were Brian Iller and Diehl Rettig whose address 
and phone number is: 6725 W. Clearwater, Kennewick, WA 
99336, (509) 783-6154. Both counsel have litigated 
numerous cases with me. Co-counsel with me on the 
briefs were Edward F. Shea, Jr., 1816 N. 20th, Pasco, WA 
99301, (509) 545-8531, and Jacqueline J. Shea, 2640 
110th Street N.E., Bellevue, WA 98004; (425) 889-4514. 

Long V. Coatea & MePougal's . 113 Wash. 2d 479 (1989) 

I represented Mr. Matt Long and his family. Steven 
Coates, a minor, was served liquor at McDougals by a 
bartender who Icnew him to be a minor. Testimony of a 
waitress indicated that Coates was clearly intoxicated 
and should not have been served any more liquor. There 
was disputed testimony as to whether or not during the 
time he was drinking, Coates showed a switchblade knife 
to the bartender. Upon leaving the bar, Coates drove at 
a high speed and collided with another vehicle. Matt 
Long, a Hanford area patrolman, returning to his home 
after completing a shift, observed the collision and Mr. 
Coates leaving the scene. He pursued him and attempted 
to persuade him to return. Coates stabbed Mr. Long. I 
brought suit on behalf of Mr. Long and his family 
against both Coates and McDougals in Benton County 
Superior Court . McDougals moved for Summary Judgment 
which was granted. I sought and was granted a direct 
appeal to the Supreme Court of the State of Washington 
where our case was joined with another matter. Christen 
V. Lee. The underlying tort case against Coates was 
held in abeyance pending the outcome of the appeal 
regarding McDougals. The Supreme Court affirmed the 
dismissal of the tavern in spite of the fact that the 
bartender had knowingly served an obviously intoxicated 
minor holding that it was not foreseeable that an 
obviously intoxicated minor armed with a switchblade 
would leave the tavern and after an automobile collision 
stab another person. 

The case was returned to the Benton County Superior 
Court where the matter of Long v. Coates . remained for 
resolution. The parties entered into a settlement in 
the sum of One Hundred Twenty-five Thousand Dollars 
($125,000.00) . 



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The judge who granted the Summary Judgment to Defendant 
McDougals was Robert S. Day, who is now retired. 
Opposing Counsel for McDougals were Brian Iller and 
Diehl Rettig, 6725 W. Clearwater Ave., Kennewick, WA 
99336; (509) 783-6154. 

3. Long V. State Farm Fira a nd Casualty Co.. 60 Hn. App 710 
(Dlv. Ill, 1991), (unpubliahed opinion) Petition for 

Review Denied. 

I filed an action on behalf of the Long family seeking a 
declaration by the Benton County Superior Court that the 
insurance policy covering the home in which Mr. Coates 
lived covered him for liability to Mr. Long and his 
family for injuries suffered by them as a result of the 
stabbing. I argued that Coates was so intoxicated that 
he did not know the nature of his act and therefore the 
policy exclusion for "intentional injuries" did not 
apply. Both sides used experts on intoxication. The 
case was tried in Benton County Superior Court and the 
trial court ruled in favor of Mr. Long holding that 
there was coverage under the homeowners policy of Mr. 
Coates. That ruling was affirmed on appeal. Counsel 
for State Farm Fire and Casualty, Co. , was Tim Cronin of 
Spokane 3rd Floor, N. 115 Washington, Spokane, WA 
99201; (509) 455-7999. The trial judge was Judge Albert 
J. Yencopal, now deceased. The Court of Appeals 
affirmed the decision of the trial judge in an 
unpublished opinion. 

4. Miles V. F .B.R.M. EnterprlaeB. Inc.. 29 Wn. App. 61, 627 
P. 2d 564 (1981) . 

I represented a small corporation organized to sell 
mobile home lots. Mrs. Miles, an African-American, was 
interested in purchasing a lot and mobile home . There 
was conflicting evidence as to whether or not one of the 
officers of the corporation had objected to selling one 
of the first mobile home lots to a minority. The case 
was significant because the jury found racial 
discrimination, but awarded zero actual damages and zero 
punitive damages after which the court entered a 
judgment for the defendants. On appeal, the Appellate 
Court held that where an act of racial discrimination 
was proven at least nominal damages had to be awarded. 

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That was a case of first impression in the State of 
Washington. On remand the court entered an award of 
nominal damages for less than had been offered to the 
plaintiffs to settle the case before trial. Sometime 
thereafter, one of the plaintiff's employed our law firm 
on a legal matter and the racial discrimination expert 
for the plaintiffs is now the Human Resources Director 
for the Pasco School District and a person with whom I 
have become friendly over the years, David Shaw. 
Franklin County Superior Court Judge Fred Staples, now 
retired, presided over the trial. The plaintiffs were 
represented by George Critchlow, now of the University 
Legal Services at the Gonzaga University Law School in 
Spokane, Washington (509) 324-3791. 

Washington State CommiBsi on can Judicial Conduct v. Judge 
Junkfi, CJC# 91-1137-P-34, (1994) 

In 1994, I represented the Commission on Judicial 
Conduct, (CJC) , which had brought charges against Judge 
John Junke of Walla Walla County District Court for 
alleged violations of the Canons on Judicial Conduct. 
The formal Statement of Charges is a public document. 
In that Statement of Charges, Judge Junke was charged 
with violating Cannons of Judicial Ethics 1, 2(A), 
3(A1), 3 (A2), 3 (A3), 3(A4), 3 (A5) , 3(A6), 3 (Bl) , and 
3 (CI). Judge Junke had defeated the incumbent judge in 
a hotly contested election. After several months in 
office, there had been a series of conflicts with 
attorneys who were appearing in his court on a regular 
basis. Complaints were filed by different individuals. 
After an investigation, the charges numerated above were 
filed. The initial hearing, a panel of the CJC, found 
various violations of the Cannons and made a 
recommendation to the full commission. I appealed on 
behalf of the Commission to the full Commission seeking 
a greater sanction. After that appeal was heard, the 
commission ultimately imposed a reprimand and various 
additional requirements. Many members of the Walla 
Walla County Bar Association were witnesses at the 
hearing. Counsel for Judge Junke was Kurt Bulmer, 201 
Westlake Avenue North, Seattle, WA 98109 (206) 343- 
5700. The three-person panel of the CJC was chaired by 
Judge Harold Clarke of Spokane who is now retired. 



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Judge Clark's address and phone number are: 102 E. 
Baldwin, Spokane, 99207; (509) 328-6123. 

6. State V - DuriTiy Mai-Hn*.;?; - (1979-1980) Benton County 
Superior Court. Case nuaber and citation are no longer 
available from court cos^uters. 

I represented Mr. Martinez, a young man who was 
attending a Halloween party with his fiancee. In the 
course of the evening, Mr. Martinez was jostled by an 
individual who then threatened him. Mr. Martinez was 
dressed as a pirate. Mr. Martinez was charged with 
murder and several lesser included offenses. The 
challenge of the case was that there were several 
witnesses whose witness statements indicated that they 
saw Mr. Martinez stab the deceased. On closer 
questioning, it became clear that they had not actually 
seen that, but had only seen them scuffling as they 
exited the building. It became clear through other 
witnesses that the deceased had been intoxicated and 
physically aggressive throughout the evening. After a 
jury trial of approximately one week, the jury acquitted 
Mr. Martinez of the main charge and various lesser 
included charges. Benton County Superior Court Judge 
Albert J. Yencopal, now deceased, was the trial judge. 
The Deputy Prosecuting Attorney was Bill Bartlet who is 
now an attorney in Montana; the Benton-County Prosecutor 
was Curt Ludwig, who is now in private practice in 
Kennewick. His phone number is (509) 586-7611. 

7. Sifuentez v. Pine and Harding d/ b/a Tri-City Second Hand 
Sfcorw. »T\A Pli»TinniTig- Benton County Superior Court: 94- 
2-00649-2 (1994) 

I represented Mrs. Sifuentez in a premises liability 
case. Mrs. Sifuentez was injured in a fall while 
attempting to cross a sloped driveway between two 
embankments where Defendants Fine and Harding had 
displayed furniture for sale. I asserted that gravel on 
the sloped driveway caused her to fall. The sloped 
driveway was common to a small office building which 
housed several businesses including Tri-City Second Hand 
Store and some mini-storage rental units. Defendants 
Fine and Harding had advertised a sale and displayed 
their furniture on the embankments on either side of the 

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190 



driveway which was actually outside of the of the leased 
premises described in their lease with Defendants 
Flemming. Defendants Flemming were the landlords that 
owned both the building and the mini -storage rental 
units. Defendants Flemming had given oral permission to 
Defendants Harding and Fine to use the embankments to 
display their furniture as part of this publicized sale. 
The legal issues included the definition of the duty 
owed by Defendants Harding and Fine to a customer such 
as Mrs. Sifuentez, whether that duty extended to areas 
used for display which were open to the general public 
but beyond the actual leased premises and also the duty 
of the landlord with regard to the business customers of 
its commercial tenants such as Defendants Harding and 
Fine. 

I retained a human factors expert. He recreated gravel 
action on the sloped driveway and attributed her fall to 
the presence of gravel on the driveway with this slope. 
The defendants countered that her fall was due to the 
severity of her dieibetic neuropathy and denied that she 
had a status as a business invitee. 

All parties moved for Summary Judgment. Benton County 
Superior Court Judge Dennis Yule denied the motions for 
Summary Judgment of both defendants. The court 
partially granted our Motion for Summary Judgment 
holding that Mrs. Sifuentez was a business invitee and 
that both defendants jointly owed a duty to her as a 
business invitee. Thereafter the parties agreed to 
mediate the matter which resulted in a settlement in 
excess of $100,000.00. Counsel for Defendant Flemming 
was Steven Osborne, 6725 W. Clearwater Ave., Kennewick, 
WA 99337, (509) 783-6154. Counsel for Defendants Fine 
and Harding was David Dave Thomer, P.O. Box 1410, 
Yakima, WA 98907, (509) 575-1400. 

H.R. V. Urey Howell . Fremklin Co\inty Superior Court 
cause number 88-2-50449-3. 

I represented H.R. In the fall of 1995, I tried this 
case to a six-person jury before Judge Philip Raekes. 
The Defendant was represented by Terry Preszler whose 
phone number is (509) 783-9635. The Defendant was the 
step-father of the plaintiff who had sexually assaulted 



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her between the ages of 12-19. At age 12, he had 
transmitted to her a massive herpes infection which 
required hospitalization and continues to afflict her at 
the present time. After trial of three days, the jury 
rendered a substantial monetary verdict. 

9. In Re; fche Batata of Robart p rmmirni- King County Superior 
Court Cause Number: 91-2-15263-2. 

I represented Heidi Romans who claimed $150,000.00 in 
life insurance proceeds when her natural father passed 
away. Mr. Romans had left a form will which sought to 
create a trust but failed to name his only daughter, 
Heidi Romans in the will as required by the law of the 
State of Washington. The claimants to the money 
included his Ms. Romans, our client, as well as Mr. 
Roman's immediate ex-wife, and his sister whom he had 
named as trustee in his will. The matter was vigorously 
contested in King County Superior Court . The court 
ultimately ruled that the will did not establish a 
trust, that Ms. Romans was a pretermitted heir, and that 
as the sole surviving heir of Mr. Romans, she was 
entitled to receive the entire amount of the insurance 
proceeds. This case involved complicated issues of 
divorce law, probate law, community property law and 
insurance law. Ultimately, all matters were resolved in 
favor of Ms. Romans, our client, and against other 
claimants. Opposing counsel was Thomas F. Aheame of 
the law firm of Foster, Pepper, Shefelman of Seattle, 
Suite 3400, 1111 Third Avenue, Seattle, WA 98101, (206) 
447-4400. ■: 

10. Foley v. Airborne Express . Walla Walla County Superior 
Court cause number 90-2-00048-7. 

I represented Airborne Express. Mr. Foley sought 
substantial damages against Airborne Express for a 
breach of employment agreement or alternatively wrongful 
discharge in violation of various rights that he 
possessed. The case was tried to a 12 -person jury 
before the Honorable Yancy Reser in the fall of 1991 in 
Walla Walla County Superior Court. Mr. Foley alleged 
that he had been persuaded to enter into an employment 
agreement with Airborne and that Airborne violated it by 
terminating it without cause. Alternatively, he alleged 

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that he was an employee and had been wrongfully 
discharged in violation of public policy because he had 
cooperated with the police in a drug bust over the 
objections of the Airborne manager whom he believed was 
a drug user. The jury entered a verdict for the 
Defendant on all claims. No appeal was taken. 
Plaintiff's counsel was Blaine Tamaki of Yakima, 
Washington, 115 N. 50th Avenue, Suite C, Yakima, 
Washington 98908 (509) 965-2261. 



19. Legal AetivitieB; 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) . 

Over the last several years, I have been designated the 
Law Day Chair for the Benton-Franklin County Bar 
Association. I had served in that capacity on a prior 
occasion. At that time, I created three-person teams of 
judges', lawyers and media representatives to visit high 
schools in and around the Tri-City area to speak on 
matters of constitutional law. That program was well 
received by the schools and the media. 

More recently, I organized a three-part Law Day Program: 
a Law Day Dinner, Law on the Mall, and Television Panels 
on the Public Access cable channel. The Benton-Franklin 
County Bar Association Annual Law Day Dinner is now in 
its sixth year. It is attended by between 60 and 100 
people with such individuals as the Attorney General of 
the State of Washington and several Justices of the 
State Supreme Court as our featured speakers . 

The Law on the Mall Project is staffed by thirty-five or 
more lawyers over a three -day period at the Columbia 
Center Mall. They staff a booth and are available to 
answer questions and provide free legal information to 
the public at the mall. The lawyers have been very 
supportive of that event which has received considerable 
media attention each time that it has occurred. 



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Also as part of the effort to bring free legal 
information to the public, I organized a series of 
television panels on various legal topics such as family 
law, domestic violence, criminal law, probates and 
estates, employment law, and personal injury law. The 
panelists were comprised of judges, court commissioners, 
and practicing lawyers of all ages, races, and of both 
genders in order to have the broadest possible 
participation. These four-person panels have presented 
eight television programs. These programs are live and 
are followed by a call-in program where the lawyers and 
judges answer the public's questions on the air. These 
programs have also received widespread piiblicity. 

These three projects collectively received state and 
national recognition in 1994. 

I also conducted two television interviews: one of 
Chief Justice Barbara Durham (1995) and one of Justice 
Philip Talmadge (1996) of the Washington State Supreme 
Court . 

In 1979-1980, I acted as chair of the Franklin County 
Boundary Review Board. During my term, the most highly 
publicized and hotly contested matter was a boundary 
dispute between the City of Richland and the City of 
Pasco over annexation of valuable interchanges along a 
newly constructed interstate highway. As chair, I 
presided over the hearing where dozens of witnesses 
testified. The Board ruled in favor of the City of 
Pasco; the City of Richland appealed. The Washington 
State Supreme Court upheld the decision of the Board 
which I chaired. Richland v. Franklin County Boundary 
RpviPw Rna-rH. 100 Wn. 2d 864, 676 P. 2d 425 (1984). 

In 1989, while a member of the Board of Governors of the 
Washington State Bar Association, I scripted and 
produced a 46-minute video celebrating the First 100 
years of the Washington State Bar Association. 

Senator Gorton requested the Washington State Bar 
Association send a representative to testify before the 
United States Senate Subcommittee holding hearings on 
U.S. Court of Appeals for the 9th Circuit Reorganization 
Bill of 1989. The Washington State Bar Association 



(RESP0NS3.SNT) 



194 



selected me and I worked with the senator's staff to 
appear and testify. See attached testimony. 

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List BOMTCBB, amounts and dates o£ 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 amy financial or business 
interest. 

At the present time, my partners and I are working on a 
buy-out of my interest including my interest in the 
physical assets, accounts receivable, and work in 
progress . I expect to reach an agreement with the 
remaining members of the firm regarding the value of 
that interest and to be paid on an installment basis by 
the firm for that interest . 

I am a 50% owner of an office building and receive 
rental income from the law firm. I will retain an 
ownership in that building as a rental unit . 

The law firm has a retirement program. Each individual 
has an account. Jeff Peterson of Benefits Northwest 
advised me that I could set up an independent program 
and roll over my interest from the law firm program. 

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 confllcts-of -Interest 
during your Initial service in the position to which you 
have been nominated. 

I would not sit on any cases in which the parties were 
former clients of mine or of the firms for an 
appropriate period of time. I certainly would not hear 
any matters that related to cases I handled for the 



[RESP0NS3 .SNTl 



195 



firm. I will follow the guidelines of the Code of 
Judicial Conduct. As to any matters which might involve 
a financial interest of mine or my spouse, I would 
disclose any interest and follow code as to recusal. 

3. Do you have any plans, commitments, or agreements to 
pursue outside esployment, with or without coopensation, 
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, patens, 
honoraria, and other items exceeding $500 or more (If 
you prefer to do so, copies of the financial disclosure 
report, required by the copies of the financial 
disclosure report, required by the Ethics in Government 
Act of 1978, may be st^bstituted here.) 

See attached Financial Disclosure Statement. 

5. Please complete the attached financial net worth 
statement in detail (Add schedules as called for.) 

See Net Worth Statement . 

6. Have you ever held a position or played a role in a 
political caaqjaign? If so, please identify the 
particulars of the campaign, including the candidate, 
dates of the campaign, your title and responsibilities. 

I have CO- chaired a campaign for the Franklin County 
Superior Court Clerk. In other judicial, state and 
federal elections, I have made contributions and 
occasionally allowed a party to use the phones at our 
office for a phone bank or meetings. In the 1996 
presidential election, I was asked by a law firm in 
Seattle to be available to provide legal advice if there 
were any issues that arose regarding voting. No such 
issues arose and no advise was sought or provided. 



IRXSP0NS3.SNT) 



196 



FINANCIAL DISCLOSURE REPORT 

Nomination Report 



Itepon Hrqiand ^v du Ethia 
Ktform Aa of Iftf. Put L No 
101-194. Notmbrr SO. ;W9 
a V.S.C ^ 4.Stt. 101-112) 



1. Pnvm Rcportinf fLdjr name. fin:, middle iniltat) 

Shea. Edward F. 



2. Coon or OrgBaiwlaA 

US District Court 



; 3. Dtte of Rrpon 

09/10/1997 



(Amde lUjmttes uidicaie ttcnvt or 
senior slalus: ntagiitraie judges indie 
full- or pan-iunet 



i. Bipod T7p» (tkKk lTp<) 

^ Noomuiai. Due 09/04/1997 



01/01/1996 
08^1/1997 



: 7. Cbmbfn sr Oflkt Address 

1816 N. 20th 
I P.O. Box 2368 
i Pasco, WA 99302 



t. On the barii oTlhe iaformattoo ca o uto ed to thb Report md «? 

BodiflceliodS pcrtainln( Ibcnto, U b to ray op i n i iw i, to eompUancc 
witfa ippUcabk laws nd rvfolieion. 



DiPORTAUt NOTES: The umruaieins accompairring Uui prm mat bt foUowtd. Complete all pom. 
dtedting the NONE basjor each uttion whtre you liave no rtportabU ii^rmaioa. Sign tm the last page. 



NAME OF ORGANIZATION / ENTITY 



1. POSmONS Oteponmg individual onty: tee pp. 9-13 of Iratrvaioni) 

■_ POSITION 

. NONE (No reporuble posinons.) 

' Officer/Director _^__ Shea Enterprises, Inc. - Inactive Corporation 



Legal Counsel (resigned) 



March of Dimes 



■■ Officer (resigned) 



March of Dimes - Health Care Professional Adviso 



O. AGREEMENTS Kepomng individual only: tee pp. I4-17 of baruimni.) 

DATE PARTIES AND TERMS 



NONE (No reponable n i eci ii e iits.) 



It has been agreed that when I leave the firm, a certain amount w 
Personal Injury cases may be paid to me after the three-year peri 



m. NON-INVESTMENT INCOME (Reporting individual aiut :poitte: tet 1^. IS-21 of bamtaiom.t 
DATE PARTIES AND TERMS 

NONE (No reportable ooa-fflvetmieiu incoine.) 

' 1997 Marge Shea - Income 

2 1997 Edward F. Shea - Income, (as of 8/31/97) Lawyer/Pa 



Marge Shea - Income. Kadlec Medical Center 



Edward F. Shea - Gross ln(»me/Lawyer/Panner 



Marge Shea - Income - Kadlec Medical Center 



GROSS INCOME 
(yuan, tot spouse'i) 



$ 137.300 00 



S 183,423.00 



197 



NMKofPmooRepomin DiuolRtpor 

FINANCUL DISCLOSURE REPORT Shea. Edward F 09/10/1997 

IV. REIMBURSEMENTS and GIFTS - omipomuon. lodimi. rood. 



DESCRIFnON 



Exempt 



V. OTHER GIFTS 

dncludts tticsr 10 spoue and dtpendgra childrtn, ku tht paraafietieats '(5)' and '(DO' lo indicajt aditr gifts rrmivd by spouse and drpefidefa duldrm. 
nspeaneh. Ste pp. 30-33 of tnsmaions.l 

I ^ SOURCE DESCRimON VALUE 

I ; NONE (No such reponiblt fita) 

'■ Exempt 



VI. LIABILITIES 

dnctudes those a/ spoast and dtpendeni diildren: indicase where applicable, person responsible for Uabitiiy bf asint the parenihetieat '(Si' for separate 
Uabilin of the spouse. 'Wforjwni liabiliiy of repomng individual andspoitse. and '(DOJorliabilirypfadependenichild- Seepp. 34-36qfbutruaums.) 

■ CREDITOR DESCRIPTION VALUE CODE* 

NONE (No nponible liabiliba) 



Baker Boyer Bank (J) 



Sea First 



Sea First 



Nordstrom 



J.C. Penney 



Deed of Trust 




PLC 


J 


Charge Card 


J 


MIC 


J 


Charge Card 


J 


Charge Card 


J 


Charge Card 


J 



Household Finance 

VALCODES;J-$15.0(»oilai K-$15,(X)l-J50.0O0 L-SSO.OOl loSlOO.OOO M.$l(».00l-J230.000 N- $250.0)1 -1500 000 

0-$500.001-$1.000.000 P|.J1.000.001$5.000.000 P2.S5.00O.0Ol-J25.0O0.00O P3.S25.O0O.0OI-15O.0OO.O0O P4.S50.000.0Ol or mort 



198 



Name of Penan Rcponmi 
FINA-NCIAL DISCLOSURE REPORT ^^^^' ^^"^^^^ F. 

-income, vain*, trwaactions Qnctudastutu of tpoiat aid 

VII. Page 1 INVESTMENTS and TRUSTS dtptndm duUm. Se* pp. 37-S4 <i bantmom.) 



Daieof Rcpon 
09/10/1997 



Descnpuoo of Asica 

Interne when appbcabU. owner of 
the auet by ututg du parttuhetical 
'U) ' for joitu owtienhip of repomng 



btcotat 


iGrais value 


during 


Incodof 


Rponing 


1 ftpomnt 


period 


{pehod 






individual and ipoiise. '(S/'forsep- 


(I) 
|Anu. 
Code 
(A- 

m 


m 

Type 
(e.g.. 
dividend, 
lent or 

ineTest) 


(1) m 

: Viiue Vilue 
Code Method 
(J-P) ,Code 
(O-W) 


(1) 
Type 
(e.I.. 
buy. Kll. 

Don) 


Ifoofetcfflpt from disclowre 


for ownership by dtpendeni child. 

Place '00 ' after each asset 
eseir^i from pner disdouire 


(J) 
Due: 
Moub- 
Dey 


(3) |(«) 
VilueiGui 
code Code 
OP) (A-H) 


(5) 

Uenmyof 
buyer/ieUer 
(if prime 

moucuon) 


NONE (BO reportable iDCon)e.aisea. or : 


1 












1 N.M. Mutual Life Zna . (J) 


B 


Dividend 


1 K 


" 


Kunpt 










2 1616 H. 20Ui. Paaco, UA 99301 - 
Building PS (J) 


E 


Rent 


1 " 


" 


fcCVBipt 










3 N H Hutual Life Ins. (J) 


i» 


Inceresr 


1 '' 


" 


Exempt 










4 Merrill Lynch (J) 


Ic 


Xntereit 


1 


T 


Exempt 










SU.S. BanX (J) 


1* 
1 




J 


T 


Exempt 










£ Yakiraa Federal Savings amd Loan 
(J) 


!* 


Intcrcic 


J 


T 


Exempt 










7 Herrill Lynch Accounts (J) 


ID 


Xntereac 


1 " 


T 


Bxei^t 










■ Horizon CMS (J) j 


1 '' 


" 


Exempt 








i 


9 Elan (J) 


! 




" 


T 


Exempt 




i i 


10 Microsoft {Jl 


1 




i '' 


T 


Exempt 


III 


11 Network Imaging (J) 


1 




^ J 


» 


Exempt 











12 Boston Chicken (J) 




i' 


" 


Bxenpt 


1 1 
1 I 




13 W.R. Berkley (J) 




r 


" 


Exeunt 




1 




1 14 Employee Solutions (J) 




1 '' 


" 


Kcespt 










, 15 First USA IJ) j 1 J 


M 


Exempt 




1 




; 16 U.S. TREAS. STRIPS (J) 




i' 


** 


lx«Dpt 











n L.m Research IJI 


1 i 1 


J I H jExempt 1 1 j 1 




, 1 Inc/Cim Codes A-ll.OOO or less 
(C0IB1.D4) F-J500O1-II00.000 


B-SI.0OI'S2.S0O 
0-$ 100.001 -SI. 000.000 


C-S2.30l-tS.006 b-SS.OOI-tlS,000 
HI-II.000.001-J5.000.000 H2-J5.000.00I or mo 


E-tl5.001-I50.00O 


■2Va1Codes J-SIS.OOO or less 
(ColCl.D3) OJSOO.OOI-JI.OOOOOO 


K-$I5.00I-J!0.000 
PI-JI.OOO.OOl-S! 000.000 


L-S50.00I-JIOO.OOO M-$lO0.00l-52!0.0O0 N-S250.0OI-$50O.0O0 
l>2-S5.000.00|. 125.000.000 P3-S25.OOO.00l-J50.OO0.0O0 P4.S50.00O.0OI ot more 


3 Val Mlh CaJcs <>Apprsisal 
(Col C:i t-BooL Value 


RKTosurcalcsmconK) 
V-Oihcr 


S-Assesimenl 
U'-Esiimated 


T-Cish'Markei 



199 



FPfANClAL DISCLOSURE REPORT 



Due of Repon 
09/10/1997 



^^ -uicomg. imliu. muaaenoiu (incttidathostoftpoiafand 

VII. Page 2 INVESTMENTS and TRUSTS Stpfftdera dtildm- see pp 37S4 of bmryatonst 



Descnptum of Assca 

bidiaur whtrt appUcabU, pmvt of 
Ike axuT tff uung Ote partmhetical 
'(f) 'fiirjoiiu ownenhip of repomng 

uidivuiual and ipouse. '(Si'forsfp- 
tme ownentup by spouse. '(DO' 
for o*tmenhip by dependent duld. 



I penod 



Trmncnom dunn| repomng penod 



jAnu. Type 
jCode (e.|.. 
(A- dividend. 



;(l) Q) 



(I) 



• Value Value Type 
jCode Method <ei- 
0-P) Code ■ 'wy-'^ '- 
I j(Q-W) ■«?". 

. oon) 



N exempt frocn dudosure 



Due: [Value Gain Identity of 
iMoodi-'COik 'Code 'buycr/tcUcr 
Day OP) (A-H) (i'pnvite 



NONE (no repomNt mcooie.ulea. ot 
tniuacooiu) 




II ^ 1 i 1 


la Micron T (Jl 


' 


J 


i" 


Kxeopt 1 


1 1 i 


19 Oracle IJI 


' 


J 


T 


txtmpt 1 


! ' 1 


20 Picturetel (Jl 


1 


' 


T 

! 


Exetnpt 


1 ' 1 


31 Ride DSA (Jl 


! '■ 


J 


i " 


Exnipe ! 1 ' < 


22S«nt« Criil Op. (Jl 




J 


1 


Exeeipc 


1 1 


J3 Newt Corp. (Jl 


: 


J 


1 " 


Exempt 1 1 1 

1 ' ! 


34 NIPSCO (SI 




J 


T 


Kxenpt 

1 




35 SOKAT 


1 


J 


1 T 


Exampt 1 


ill 


3( JP Realty (SI 


1 : 


J 


I 


Exempt 1 

1 


i i 1 


27 Merrill Lynch (M/Ll (Up Fund 


j 1 


J 


1 


Exampt j 

1 


1 i 


39 M/L Dev. MCT 


1 


J 


" 


Exempt 1 

1 


! ' ■ 


39M/L Oreson , 


J 


* 


Exempt 1 


! ' i 


30 H/L Global ALL. | 


J 


1 " 


Exempt 1 


III 


11 Herrlll Lynch Cap Fund B 1 


J 


1 " 


Exempt j , 1 

III 


32 n/L Recirenent Rea/ 


i 


J 


" 


Exempt 




33 Mathe» Pac. TI 


i 1 

1 


' 


1 ' 


Exempt 1 


1 1 1 


34 Vangard Intl . 




" 


1 T 


Exempt 




I Inc/Oiin Codes A-$1.000otlej5 
(ColBl.W) F-J!0.001-$IOO.OOO 


b-tl.OOI-i2.500 
G-S 100.001 -SI. 000.000 


Hl-Sl.OOO 


5,000 
O01-J5.000.000 


OS5.001-Jl5.000 E-JIS.001-J50.000 
H2-JS.000.00loimoie 


2VilCodn l-SI!.000orleu 
(Col CI , D31 OS500 001 -$1 .000.000 


K-$15.001-J50,000 
PI-J1.000O0l-S5.0O0 00( 


L-$50.001- 
P2-S5.000 00 


JIOO.OOO M-$100.001-S250-000 N-$250,OOl-J5OO.OO0 
1.525.000 000 P3-$25.OO0.OOl-$50 0O0 0O0 P4-S50.000 001 or more 


3 Val Mih Codes OApprj.nl 
(Col c:i (.'-Book Value 


R^osl (real esuic onl> 
V-Ollier 






S-Aisessment 
W-Eilimaied 


T-Ca!h/Msri,el 



200 



FINANCUL DISCLOSURE REPORT 



Nune of Perun Reponinf 
Shea, Edward F 



Vn. Page 3 INVESTMENTS and TRUSTS 



Dcscnpuon of Aucq 

tndicae wturt appUcabU. owner of 
■ tkt aiut by using Itu pormihmcal 
'ID' for joini ownerzhip of rrpomng 
utdivt^MOl and ipouje. '(S)' for Sep- 
tme ownmitip by spouse. 'tOO' 
for omrurship by dependem child. 



I reponmg 




1(1) (2) 

Iasu. Type 

iCode (c.|.. 

(A- dindcnl. 



(1) iC) 



(I) 



VihK Vihie ; Type 
Code Medud: (' t ■ 
(J-P) Code Itay^. 
Uq.V) mapr. 



1 exempt from disclosure 



Idenlity of 
tBycT/idkr 
art (AH) ififpnvite 



NONE (00 reporable iDconie.iiseo. or j j III 1 
' miuuDom) 1 ' III 1 






35 Cohen & Steers 1 i 

; 1 1 


J 


T IxaiBpt 1 








. 3C Mutual Oual. 1 | 


J 


T (>aapt 










l37 Mutual Diic. ; 1 J 1 T 


beiVC 










3eDrAEl»9- Mkt. j j J 1 T JExM^t 

! Ill 










19 DFX S-yr. - Gib. 1 

1 1 1 


J 


T 


Kiaapt 










J <0 BTk oib-rx 1 


J 


T 


btaiBpt 










|41 DFA Lg. Cap 


1 


J 


T 


txaiq>t 










1 43 DFA Enhn. Lg. 

i 


! 


' 


T 


bcaeipt 










43 DFA Sm. Cap. 


. , T ^^.^t . 








44 DFA OS 9-10 1 J T 1 Exmpt 1 ' i 

1 ' III ! 1 ! 




4S OS a Bonds 

j i 


J 1 T jCxaopt 1 1 




4(S«a rirat Svg. A jintaraat 


J 


T baqit 


1 




. 47 Sta rirat Chacking i i 


J 1 T Ituaiit 1 I 1 




. 41 US Bank 1 


« 1 T ibt^t j j 




4SArt , i « 1 " «X"Vt j j 1 


SO Schwab Henay Market 1 K , T 'tuqit . j 1 

Mi ' I : 




SI Fiah Creek Ltd. PS , , i A 1 t IBu^t i { 1 1 


1 IrKAiiin Codes A-S 1.000 or less B-l 1.001 -12 JOO C-J2.S01 -$5,000 Of5.001-S13.000 E-115.001-J50.000 
(Col BI.[M) F-SSO.OOI.SIOO.OOO C-SIOO.OOI-SI.000.000 HI-II.OOO.OOI.SS.000.000 IQ-SS.000.001 otmofe 


ZVslCodes J-JIS.OOOoiless K-SIS.OOI-SSO.OOO L-i50.OOI-SIOO.000 M-il00.0OI-t25D.0O0 N-ti50.OOI-ti06.0OO 
ICol CI,D3I OSSOOOOl-JI.OOO.OOO PI-S1-000.001-S5.000.000 P:-S!.000.001-S25.000.000 P3-S25.000.001-S50,000.000 P4-S50.000.001 or more 


3ValMihCode& (>Appraisal R-Cosi (real esuic onlv) S-Assessment T^isK'Miriei 
iCcl c:i I'-Book Value VOihct W-Eslimaced 



201 



FINANCIAL DISCLOSURE REPORT 



Nime of Person Reponinj 

Shea, Edward F. 



- UKome. ¥atiu. iratuaauHa (includet thou pfspouu and 

VII. Page 4 INVESTMENTS and TRUSTS dependent children- Seepp 37-U of Instrucnons.i 



Diteof Repon 

09/10/1997 



\ Oeicnption of Assets 

Indicate where applicable, owner of 
I the attet try uung the pamahencal 
■ '(J) ' for joint ownership of reporting 
individual and spouse . '(S)'forsep- 
eraie owrter^up try tpouie. '(DQ ' 
. for ownenhip by dependent child. 



during 
, reporung 



, Grou vtJue 
, reporting 



TnnsacQoos durmg reporting period 



.<!) (2) 

:Aim. Type 

Code (e.g.. 

i(A- I dividend. 

|H) I ten. or 

I inlertst) 



(I) (2) 



(I) 



Vilue Viliie Type 
iCode Meihol (e I . 
(J-P) Code ] *"y. « "■ 
(Q-W) j merger. 



eiempi from duclcnure 



Dale: ■ Vilue Gun Identity of 
|moch1i. Code iCode tayet/idlei 
Day ,(IP) (AH) lifpnvwe 



1 NONE (no repomble 
{ mnucDons) 


'~°™-"™ 


" 1 ! 






i ! 


52 OS. t im 


•1 coin. 




1 1 


J T 


Exempt ! 


1 


SJ Jumulty 






1 


K T 


Xxmft j 


! 1 ! 


54 Annuity 






1 1 


K T 


Exetnpt j 


1 1 ; 


i 1 ' 1 ' i 1 i 

'1 : i ' 


1 


1 i i 


I ! 


: ! ! ! 


1 : ' ' 1 ' ' 


I 1 


' 1 1 1 i ! ' 


t 1 1 1 i ! 1 i 


* i ' 1 ^ ' M 


; j ' ; ' 1 


M 1 M 1 i 


M 1 ' 1 1 ! 1 1 


' 1 1 1 ! M 


1 '■ ' ■ 


i i i ' ' ; 1 


• ' ■ ■ ■ ' ! 


1 Inc/Giin Codes 
(Col Bl.CUl 


A-SI.OOOorleis 
F-J<0.0OI-JIOO.O00 


B-II.OOI-S2.500 
OI100 00I-J1.(X)0 000 


CllSOI- 
H1-SI 000 


15.000 
OOI-J5.000 000 


D-SS.OOI-SIS.OOO E-SIS.OOl-SSO.OOO 
H2-1! 000 001 or more 


2V.lCode! 

(Col CI.D3) 


J-SIS.OOOotless 

OS?00,00|.S1.000 000 


k-sis.ooi-s;o.ooo 

pi«si.ooo.osi-j;,ooo,oo 


L-$50,0OI 

) p;-S!.ooooc 


SI 00.000 

i.j:5.ooo.ooo p? 


M-SIOO,00|.t250.000 N-S250.00I.J500.000 
-S:f,000 001-S<0,000 000 P4-S?0 000OOI otmure 


3 Val Mih Codes 
(Col c;i 


OAppriisjl 
L'-Bool V«l 


.e 


R-Cost (real eslue only 
VKWiet 


) 


S- Assessment 
W-Eslimaled 


T-CasKMailel 



202 



NiiDB of Ptnon Rcponmi Date of Repon 

FINaNCUL disclosure report Shea. Edward F. 09/10/1997 

Vni. ADDITIONAL INFORMATION OR EXPLANATIONS. (Indiair i«n of repon ) 

I NONC (No ■ddmonil tafamaiioo of en>UMDom ) 

SECTION 1: Name of Organization/Entity, continued ... 
ry Committee (HPAC) 

SECTION 1: Position, continued ... 

ed) 

SECTION 2: Parties and Terms, continued ... 

iil be owed to me which will be paid within a three-year period. '.• * 

i 

SECTION 2: Parties and Terras, continued ... .1' 

three-year period. 

SECTION 2: Parties and Terms, continued ... 

ill be paid to me within a three-year period, except PI cases where they may go 

SECTION 6: Description, continued ... .„ . 

CO, WA 99301 

SECTION €: Description, continued ... 
CO. NA 99301 

SECTION 6: Creditor, continued ... 
) 

SECTION 3: Parties and Terms, continued ... . -. . .,--- 

hea Law Office 

SECTION 3: Parties and Terms, continued ... 
Klashke fc Shea Law Firm 

SECTION 3: Parties and Terms, continued ... 
hea Law Office 

SECTION 3: Parties and Terms, continued ... 
«1. 

SECTION 3: Parties and Terms, continued ... 

Shea Law Firm " 

SECTION 3: Parties and Terms, continued ... 
hea Law Firm 

SECTION 3: Parties and Terms, continued ... 
hea Law Office 

SECTION 3: Parties and Terms, continued ... 
hea Law Office 

SECTION 3: Parties and Terms, continued ... 
hea Law Office 

SECTION 3: Parties and Terms, continued ... 
fel, Klashke & S 



203 



Nune of Penon Rtpomng 
FINANCIAL DISCLOSURE REPORT ^*""' "ward F. 



Dale of Repon 

09/10/1997 



SECTION HEADING. (I""l«*t p»n of upon l 
SECTION V POSITIONS (cont'd ) 
Li. Position Name of Organization/Entity 



4 President Washington State Bar Association (1995/1996) 

5 Officer (resigned) Washington State Bar Foundation 

6 Public Affairs Officer (resign March of Dimes - Eastern Washington Chapter 

7 President Pasco Centennial Corporation 

8 Vice-President (resigned) LAW Fund of Washington 

9 Real Estate Partnership Shea, Kuffel, Klashke & Shea (Building) 

SECTION 3. NON-INVESTMENT INCOME (cont'd.) 

Li. Date Parties and Terms Gnjss Income 



6 1995 Edward F. Shea. Gross Income/Lawyer/Partner S 160.062 00 

7 $ 0.00 



SECTION 6. LIABILITIES (confd.) 

Li. Creditor Description Value Code 



8 Advanta Charge Card J 

9 Capitol One Charge Card J 

10 AT&T Charge CanJ J 

1 1 Co-signor l.aw School Loans J 

12 Sanwa Leasing J 

SECTION 8 EXPLANATORY COMMENTS (cont'd ) 
Explanatory Comments 

SECTION 2: Parties and Terms, continued ... 

ill be owed to me wfiich will be paid within a three year period 

SECTION 2: Parties and Terms, continued ... 
od if they go to trial after that three-year period. 

SECTION 3. Partes and Terms, continued ... 
finer 

SECTION 2: Parties and Terms, continued ... 

ill be owed to me which will be paid within a three-year period 

SECTION 2: Parties and Terms, continued ... 
od as they may go to trial after that time. 



FINANCIAL DISCLOSURE REPORT 



204 



Nunc of Penan Reportmi Date of ftepon 

Shea, Edward F. 09/10/1997 



SECTION HEADING. n»licaie j»n of ttpon ) 
.SECTION 8, EXPLANATORY COMMENTS (confd.) 
Explanatory Comments 



SECTION 3; Partes and Terms, continued . 



205 



Nime of Perufi Rcponinf Date of Rrpon 
nVANCIAL DISCLOSURE REPORT Shea. Edward F 09/10/1997 

IX. CERTinCATION 

In compliance wiih the provisions of 28 U.S.C. 455 and of Advisor.- Opinion No. 57 of the Advisory Comminee on 
Judicial Activiiies. and lo ihe best of my knowledge ai Ihe lime after reasonable inquiry , I did not perform any adjudicator) 
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(3Kc). 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 cenify 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 



^.-.J/^/- ^l/jlliJ. 



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 lo: 

Committee on Financial Disclosure 
Adminislralive OfTicc of the Uniltd Stiles Courts 
One Columbus Circle, N.E. 
Suite 2-301 
Washington, D.C. 20544 



206 



FINANCIAL STATEMENT 
NET WORTH 



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



ASSETS 


LIABILITIES 


Cash on hand and in banks 
(Personal and share of law-firm) 


71 


300 


00 


Notes payable to banks - 
secured 








U.S. Government Securities - 
add schedule 


2 


000 


00 


Notes payable to banks - 
unsecured 




— 




Listed Securities -add schedule 
finduding cash in Schwab) 


310 


863 


69 


Notes payable to relatives 




— 




Unlisted securities - add 
schedule 









Notes payable to others 




— 




Accounts and notes receivable 
(50% law firm) 


98 


539 


14 


Accounts and bills due 


8 


000 


00 


Due from relatives and friends 


2 


000 


00 


Unpaid income tax 




— 




Due from others (clients) 








Other unpaid tax and 
interest 




— 




Doubtful 









Real estate mortgages 
payable - add schedule 


31 


000 


00 


Real estate owned - add 
schedule 


415 


000 


00 


Chattel nrtortgages and 
other liens payable 


25 


000 


00 


Autos and other personal 
property 


86 


000 


00 


Other debts - itemize: 
House: 








Cash value life insurance 


18 


500 


00 


Personal Line of credit 


8 


500 


00 


Other assets - itemize 
















Law partnership 
















Furniture & Equipment 


20 


000 


00 










Art 


33 


150 


00 


Total Liabilities 


72 


500 


00 


Coins 


2 


500 


00 










Annuity payable in 2003 


25 


000 


00 










Annuity payable in 2004 


19 


000 


00 










Total Assets 


1,103 


852 


83 


























CONTINGENT LIABILPTIES 








GENERAL INFORMATION 








As endorser, comaker or 
guarantor 


48 


000 


00 


Are any assets pledged? 
(Add schedule) 




No 




On leases or contracts 
(Computers) 


4 


000 


00 


Are you the defendant in 
any suits or legal actions? 




No 




Legal Claims 




— 




Have you ever taken 
bankruptcy? 




No 




Provision for Federal Income 
Tax 


Paid through 
September 15. 1997 










Other special debt 


l-l 











207 

Assets 

US Gov. Securities: $2,000 EE Savings bonds (Spouse) 
Listed Securities: $260,863 .69 -Schwab; 



Name 


Shares 


Elan 


500 


Microsoft 


500 


DFA Global Fixed Income 


1,280 


DFA US Large Cap Value 


526 


DFA 2 year Global F-I 


975 


DFA US Small Cap Value 


437 


DFA UD 6-10 


429 


DFA US 9-10 small Co. 


714 


DFA Emerging Markets 


505 


Mathews Pacific Tiger Fund 


160 


Mutual Qualified Z (Franklin) 


1,086 


Mutual Discovery Funds - Z (Franklin) 


436 


Vangard International Growth 


1,095 


Cowan and Steers Realty 


111 


Network Imaging 


3000 


Oracle • 


300 


Picturetel 


200 


Santa Cruz Operations 


500 


Vangard International 


609 


P Realty Inc 


144 


Nipsco 


129 


Sonat 


247 


Basic Schwab money market 


20,833 



$54,000 Variable Annuity Life Insurance Company (VALIC) 



Real Estate Owned: $150,000 - Home 

$230,000 - Office 
$35,000 - Fish Creek Partnership - 3 units 



208 



Liabilities 



Real Estate Mortgages: $27,000 - 0£Bce mortgage - Baker Boycr Bank/Walla Walla, WA 

S4,000 - Home mortgage - Magna Mortgage - Mississippi 



209 



III. GENERAL (PUBLIC) 

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

The Volunteer Center in Tri-Cities has referred 
individuals who have qualified for indigent legal 
services to me for service on a variety of matters 
including domestic relations and landlord tenant matters 
which I continue to handle. 

In my early career, I took pro bono assignments for 
criminal defense work including one murder case. 
Currently, I provide free legal services to the March of 
Dimes. I have also provided reduced or free legal 
services to Association of Retarded Citizens here in the 
Tri-Cities as well as to the Faith Christian Academy, a 
private religious school in the Tri-Cities. I 
previously have provided some free legal service or 
counseling to the Sexual Assault Response Center in the 
Tri-Cities. 

In recent years I have been a member of LAW Fund of 
Washington, an organization which seeks to raise money 
from lawyers and other private sector entities to give 
financial assistance to both organized programs 
providing legal services to the poor and local programs 
such as the one in the Tri-Cities which is organized 
through the Volunteer Center. Solicitations of 
individual lawyers, law firms and private entities are 
made throughout the year. The Board makes decisions 
regarding the distribution of those monies to various 
qualified programs throughout the State of Washington. 

I chaired the celebration of Pasco's Centennial in 1984. 
We organized and produced several major events as part 
of that celebration. I remain the chair of that non- 
profit organization which engages in no activity. It 



IRESP0NS3 . SOT) 



210 



has two small bank accounts totaling less than $5,000, 
which only accrue interest. 

For several years in the 1990' s, I served as lecturer on 
tort law in the People ' s Law School , a free program of 
legal information for the citizens of the Tri-Cities. 
These programs were organized by the Washington State 
Trial Lawyer's Association. 

In the 1980 's I worked with other citizens of the Tri- 
Cities to bring a branch campus of the Washington State 
University to the Tri-Cities. It is thriving 
institution providing badly needed opportunities for 
Tri-Citians in need of higher education. 



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 you done 
to try to change these policies? 

No. I belong to no 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 end (including the 
circumstances which led to your nomination and 
Interviews In which you participated) . 

There is no such selection commission. However, in the 
Spring of 1996, I became aware that Judge McDonald would 
take senior status in December of 1996. I wrote a 
letter expressing my interest in that position to 
Senator Murray. In October of 1996, I was advised by 
the office of Senator Murray that a committee would be 
formed to interview the lawyers interested in the 
position on the United States District Court for the 



[RZSPONSS.SNTl 

23 



211 



Eastern District of Washington which would result from 
Judge McDonald's taking senior status in December. I 
expressed my interest, was given a date for an 
interview, appeared at that interview and was chosen as 
one of three finalists. In December of 1996, I and the 
other two individuals were interviewed by Senator Murray 
and one of her staff . I was asked to provide some 
material and answer questions provided to me by Senator 
Murray's staff. In January of 1997, Senator Murray 
advised me that she was forwarding my name to the 
President to be considered for nomination as a United 
States District Court Judge for the Eastern District of 
Washington. 

In February, I received some material from the Office of 
White House Counsel or the Department of Justice. I 
completed that material and forwarded it to the 
Department of Justice Office of Policy Development. In 
March of 1997, I was interviewed by an attorney with the 
Department of Justice. Two weeks later, I returned to 
Washington D.C., for an additional interview with the 
Department of Justice. In early April of 1997, I was 
interviewed by the local FBI agent here in the Tri- 
Cities. I was contacted by a representative of the 
American Bar Association's Committee on the Federal 
Judiciary who later came to the Tri -Cities and 
interviewed me. In May, I was asked to complete 
additional documents to be submitted to the United 
States Senate. Those documents were submitted to the 
Department of Justice in June. 

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

I have never been asked directly, nor have I had the 
impression that I was being asked how I would rule on a 
specific case, issue, or question. 

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



1RESP0NS3.SNT1 



212 



The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
sxibject 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 to%irard problem- solution 
rather than grievance-resolution; 

b. A tendency by the judiciary to aq>loy the 
Individual plaintiff as a vehicle for the la^osltlon of 
far-reaching orders extending to broad classes of 
Individuals . 

c. A tendency by the judiciary to la^ose 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 la^ose Itself upon 
other Institutions In the manner of an administrator 
with continuing oversight responsibilities. 

Those federal judges who begin with a profound 
respect for the Doctrine of Separation of Powers are 
those judges who are unlikely to engage in judicial 
activism. The Constitution created the three 
branches of government with their respective 
responsibilities and in so doing provided a system of 
checks and balances. In a vibrant democracy like 
ours, it is likely that in exercising their powers 
these three branches will occasionally be 
antagonistic; however, the enduring principle is that 
those in each of the three branches of government are 
sworn to uphold the same Constitution. Humility and 
respect for the legislative process are not handicaps 
in a federal judge; they are characteristics which 
will insure a reasoned analysis of the legislation 
which the judge may be asked to consider. 

Guided by the Constitution and precedent, a judge 
would not be inclined to loosen jurisdictional 
requirements such as standing and ripeness. 



(RESP0NS3 . SNTl 



213 

L BIOGRAPHICAL INFORMATION (PUBLIC) 

1 Full name (include any former names used ) 
Jeremy Don Fogel 

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

Residence; Los Altos, California 

Office: Santa Clara Superior Court 

191 North First Street 
San Jose, California 951 13 

3. Date and place of birth. 

September 17, 1949; 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). 

Married; Kathleen Aim Wilcox, parent educator/preschool teacher, Los Gatos-Saratoga 
Observation Nursery School, 19601 Black Road, Los Gatos, California 95030. 

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

Stanford University (9/67-6/7 1 ) B . A. with Great Distinction 6/13/71 

Harvard University (9/71-6/74) J.D. cum laude 6/13/74 

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 fi'om college. 

6/72-8/72 Hyatt Corporation Summer law clerk 

Burlingame, California 
6/73-8/73 Federal Public Defender Summer law clerk 

Los Angeles, California 
9/74-6/78 Smith, Johnson, Fogel & Ramo Member of firm 

San Jose, California 
3/77-6/78 California State University Lecturer, Human Development 

Hayward, California 



214 



6/78-9/8 1 Santa Clara County Bar Association Directing Attorney, Mental Health 

Law Foundation, Inc. Advocacy Project (6/78-9/81); 

San Jose, California Executive Director (9/80-9/81) 

9/8 1 -6/86 Santa Clara County Municipal Court Judge 

San Jose, California 

6/86-present Santa Clara Superior Court Judge . ' •^' 

San Jose, California 

9/93-6/95 Christa McAuliflfe Elementary Volunteer board member of non- 

School Parent Faculty Group profit organization (parliamentarian) 

Cupertino, California 

9/94-6/96 Metro Police Athletic League Volunteer board member of non- 

San Jose, California profit organization (soccer 

commissioner) 

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. 

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

B A with Great Distinction, Stanford University 
Phi Beta Kappa (elected 1971) 
J. D cum laude. Harvard University 

1997 Recipient, President's Award, California Judges Association (awarded annually 
to a California judge for distinguished service to the state judiciary) 

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. 

Judicial Council of California 

Member, Advisory Committee on Judicial Performance Procedures (1994) 
California Judges Association 

Vice-president (1990-91) 

Member, Executive Board (1988-91) 

Chair, Judicial Discipline Advisory Panel (1992-present) 

Chair, Discipline and Disability Committee (1991-93) 

Chair, Judicial Ethics Committee (1987-88) 
California Judicial Education and Research 

Chair, Planning Committee, Continuing Judicial Studies Program (1995-97) 

Member, Planning Committee, Continuing Judicial Studies Program (1991-97) 



215 



Santa Clara County Bar Association 

Member, Fair Election Practices Commission (1988, 1990, 1992, 1994) 

Member, Judiciary Committee (1981) 
State Bar of California 

Chair, Committee on Legal Rights of the Handicapped (1979-80) 

Member, Executive Committee, Legal Services Section (1980-81) 

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 before public bodies: 

California Judges Association 

Santa Clara County Bar Association (honorary member) 
Other organizations: 

National Space Society 

California Youth Soccer Association 

Jewish Federation of San Jose, Cardozo Society 

1 1 . Court Admission : List all courts in which you have been admitted to practice, with dates of 
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 California, 12/18/74, inactive since becoming a judge 9/30/81; 
United States District Court, Northern District of California, 12/18/74, inactive since 
becoming a judge 9/30/81. 

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. 

"Representing Mentally Disabled or Emotionally Distressed Clients," Santa Clara 
County Bar Association Law Foundation, Inc. (1978) (copy supplied) 

"Establishing Comprehensive Advocacy Services: A First Year Report," American 
Bar Association (1979) (unable to locate copy despite extensive search) 

"The San Jose Housing Service Center", 17 Urban Law Annual 287 (1979) (copy 
supplied) 

Op-Ed Article published in the Sacramento Bee . (10/21/94) (copy supplied) 



50-531 98-8 



216 



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

My health is excellent The date of my last physical examination was July 1, 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 September 30, 1981 through June 24, 1986, I was a judge of the Santa Clara 
County Municipal Court I was appointed to this position The Municipal Court is a 
court of limited jurisdiction On the criminal side, it hears non-felony matters through 
trial and felony matters through preliminary examination, and its jurisdiction in civil cases 
is limited to matters in which the amount in controversy is $25,000 or less I was elected 
by my colleagues as presiding judge of the court and served in that capacity from July, 
1984 through June, 1985 

From June 25, 1986 until the present, I have been a judge of the Santa Clara Superior 
Court On June 3, 1986, I was elected to a six-year term commencing in January, 1987. 
Shortly thereafter, I was appointed by Governor Deukmejian to complete the unexpired 
term of my predecessor The Superior Court is a trial court of general jurisdiction In 1992, 
I was appointed by the Chief Justice of California as presiding judge of the Appellate 
Department of the Superior Court, which reviews appeals from judgments of the Municipal 
Court I also served as a judge of the Appellate Department from 1987 through 1989. 

From July through September, 1989, I was assigned by the Chief Justice of California as 
an associate justice pro tempore of the Court of Appeal, Sixth Appellate District The Sixth 
District Court of Appeal is an intermediate appellate court which reviews appeals from 
judgments of the Superior Courts of Monterey, San Benito, Santa Clara and Santa Cruz 
Counties 

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 were not officially reported, please provide copies 
of the opinions 

(1) 1. Tzolov vs. International Jet Leasing (1989^ 214 Cal.App 3d 325 

2 Mosher vs. Mayacamas Corp . (1989), 215 Cal.App 3d 1 

3. Gutzi Associates vs. Switzer (1989), 215 Cal.App.3d 1636 



217 



4 Garden Citv Inc Vs. Kennedy (1997), Santa Clara County Case No. 
CV764873 

5. Coleman vs. County of Santa Clara (1997), Santa Clara County Case No 
CV763224 

6 Santa Clara County Government Attorneys Assn. Vs.. County of Santa Clara 
(1996), Santa Clara County Case No. CV750701 

7. Honig vs East Side Union High School District (1992), Santa Clara County 
Case No 717380; appellate opinion at 28 Cal. App 4th 998 

8 Jimenez vs. Los Altos City Council (1994), Santa Clara County Case No 
CV737932 

9 Chavez vs. Governing Board of the Moreland School District (1992). Santa 
Clara County Case No 722571 

10 San Jose Police Officers' Assn. vs. Citv of San Jose (1992), Santa Clara 
County Case No. 720686 

(2) 1 Sv^an Magnetics Inc vs Antek Peripherals (1997). 97 D A R 10541 

The Court of Appeal granted a writ of mandate setting aside an order 
granting limited discovery to the real party in connection with a prospective 
motion to modify an injunction. The injunction was issued by a private 
arbitrator followdng a contractual arbitration and then confirmed as a 
judgment in the Superior Court Real party contended that the incorporation 
of the injunction in the judgment vested the Superior Court with jurisdiction 
over subsequent enforcement and modification of the judgment The Court 
of Appeal held that the motion to modify the injunction should be 
presented to the arbitrator and that discovery is not available [This decision 
is not yet final, and a petition for rehearing is pending.] 

2. Title Insurance Co vs Comerica Bank-California (1994), 27 Cal.App.4th 800 

The Court of Appeal reversed an order sustaining defendant bank's 
demurrer based upon the "imposter rule." The Court held that a false 
statement by a bortower's son that he was the borrower's agent was 
insufficient to invoke the "imposter rule" where the check issued by the 
bank was made payable to the borrower. 

3. Foundation Engineers. Inc. vs Superior Court (1993). 19 Cal.App.4th 104 

The Court of Appeal granted a writ of mandate with respect to denial 
of the petitioner's motion for change of venue. The underiying action was 
a multi-party construction defect case which had been pending in Santa 
Clara County for several years. The petitioner was a subcontractor recently 



218 



brought into the action which contended that venue should be changed to 
its home county, where the construction project in question was located. 

4 Pay'N'Pak Stores vs. Superior Court (1989^ 210 Cal.App 3d 1404 

The Court of Appeal granted a writ of mandate with respect to an 
order granting summary adjudication of the real party's claim that the 
petitioner had unreasonably refused to consent to a commercial sublease. 
The Court held that summary adjudication should not have been granted 
because there was a factual dispute as to whether the petitioner ever had 
been asked to consent to a particular sublessee and whether the alleged 
refusal to consent was unreasonable under the circumstances of the case. 

5 McQueen vs. Board of Directors of the Midpeninsula Open Space District 
(1988), 202 Cal.App.3d 1136 

The Court of Appeal reversed a judgment denying plaintiffs petition for 
a writ of mandate. The Court held that defendant District's project description 
was incomplete and misleading and that a writ of mandate requiring the District 
to comply with the California Environmental Quality Act (CEQA) should have 
been granted. 

6 People vs. Mesaris (1988). 201 Cal App.3d 1377 

The Court of Appeal set aside an order dismissing a criminal charge on the 
ground that the defendant's preliminary examination was not held within the 
time allowed by law. Determining that the issue was one of first impression, 
the Court agreed with the finding that the preliminary examination had not been 
held in a timely manner but remanded for a consideration of the prejudice 
resulting from the delay 

7 People vsTacv r 19871 195 Cal.App.3d 1402 

The Court of Appeal set aside an order granting the defendant's motion to 
suppress evidence. The issue in the case was whether the arresting officers had 
complied substantially with the statutory "knock-notice" provisions of 
California Penal Code section 1531 

NOTE: The foregoing citations include all published reversals to the best of my 
knowledge I recall an approximately equal number of unpublished reversals 
during my sixteen year judicial career, but I have not retained copies of these 
opinions nor do I recall the names of the cases in which they occurred Because I 
have been a full-time law and motion and case management judge for the majority 
of my tenure on the Santa Clara Superior Court, I have made legal rulings in 
literally thousands of cases As to the published reversals listed above, I do not 
recall having issued formal written opinions, as it was and still is my custom and 
practice to rule fi^om the bench in law and motion matters whenever possible 



219 



(3) 1 . Coleman vs County of Santa Clara (1 997), Santa Clara County Case No. 
CV763224 

2. Jimenez vs. Los Altos City Council (1994), Santa Clara County Case No. 
CV737932 

3 Reeves vs. City of San Jose (1993), Santa Clara County Case No 732951 

4. Chavez vs. Governing Board of the Moreland School Distri ct (19921 Santa 
Clara County Case No. 722571 

5 Balcazar vs. Municipal Court (1986), Santa Clara County Case No. 609892 

Copies of unpublished written opinions in the above-referenced cases are provided except 
as noted 

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 never held nor have I ever been a candidate for any public office other than 
judicial office. I have served as a appointed, uncompensated member of a number of city 
and county advisory committees and commissions as set forth in my answer to Part III, 
Question 1. 

17 Legal Career : 

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

1. whether your 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: 

9/74-3/78: Smith, Johnson, Fogel & Ramo, 42 S 14th St., San Jose, 
California 951 12; member of firm 



220 



6/78-9/8 1 : Santa Clara County Bar Association Law Foundation, Inc , 
1 1 1 W. St. John St., San Jose, California 95 11 3, Directing 
Attorney, Mental Health Advocacy Project, 6/78-9/8 1 , Executive 
Director, 9/80-9/81 

(From 3/78-6/78, 1 took a leave of absence from my law firm to volunteer 
for the staff of a candidate for state Attorney General During this period I 
was offered the position with the Santa Clara County Bar Association Law 
Foundation, which I assumed immediately after the June, 1 978 election 
I left the Law Foundation upon taking ofBce as a Judge of the Santa Clara 
County Municipal Court on 9/30/81.) 

9/81-6/86: Santa Clara County Municipal Court, 200 W. Hedding St., San 
Jose, California 95110, Judge 

6/86-present; Santa Clara Superior Court, 191 N. First St., San Jose, 
California 95 113, 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? 

My practice with the law firm (9/74-3/78) was of a general nature and 
included civil, criminal and family law matters. I developed expertise in 
housing law and, beginning in 1975, served as counsel for the San Jose Housing 
Service Center, Inc., a non-profit corporation funded by the City of San Jose to 
provide counseling and legal services to low- and moderate-income tenants and 
landlords In this capacity, I presented public educational programs on 
landlord-tenant law under the auspices of the City of San Jose, the Santa Clara 
County Department of Consumer Affairs and several local community colleges, 
and I trained volunteer mediators for the Department of Consumer Affairs and 
the City of Mountain View. 

My work with the Santa Clara County Bar Association Law Foundation 
(6/78-9/81) had both administrative and legal aspects. I was hired initially by 
the Bar Association to design and implement a training program for attorneys 
interested in representing persons with mental and developmental disabilities 
under a grant from the /Werican Bar Association's Commission on the 
Mentally Disabled. Over the next two years, I was successful in obtaining 
flinding from federal, state and local sources to create a comprehensive legal 
services program staffed by people with both legal and mental health training, 
a major part of my job as Directing Attorney thus was flindraising, 
administration of the program's various grants and contracts and supervision 
of as many as twelve employees During the last year I had the additional 
responsibility of serving as Executive Director of the Law Foundation (9/80- 
9/81) My duties included oversight of three other legal services programs and 



221 



supervision of their respective directors. 

My work as an advocate for clients of the Mental Health Advocacy Project 
took both traditional and non-traditional forms I was counsel in several 
lawsuits on behalf of program clients involving claims of denial of statutory 
rights by institutions and treatment facilities I also chaired a County task force 
which conducted a year-long investigation into the affairs of the County's 
Public Administrator/Guardian's Office, producing a report which resulted in 
major changes in structure and personnel. I was involved frequently in informal 
resolution of disputes between the program's clients—usually people with few 
economic resources and significantly impaired communications skills— and the 
people upon whom they depended in daily life: owners of board and care 
facilities, medical personnel in in-patient settings, counselors at regional centers 
for the developmentally disabled, etc These matters rarely resulted in court 
proceedings, both because I usually was successflil in resolving them and 
because I believed that litigation would not serve my clients' long-range 
interests. 

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

My clients in private practice generally were persons of low to moderate 
income and significant racial and ethnic diversity. As noted above, I developed 
expertise in housing law and was both an advocate and an educator in that area 
As counsel for the San Jose Housing Service Center, I also became familiar 
with the law applicable to non-profit corporations and contracts between such 
corporations and local governments 

My clients with the Law Foundation were people with significant mental or 
developmental disabilities, including chronic mental illness, mental retardation, 
epilepsy, cerebral palsy and autism. I also represented the families of my 
primary clients in certain types of cases. In addition to acquiring expertise with 
respect to the federal and state laws which impacted my clients, I also began to 
develop, because of the extreme difficulty many of my clients had making 
themselves understood, communication and conflict-resolution skills which 
have been flindamental to my more recent work as a mediator and judicial 
educator. 

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 but not regularly during my seven years of 
practice. I appeared more often when I was with the law firm (9/74-3/78) 
(once or twice per month) than when I was with the Law Foundation (7/78- 
9/81)(three or four times per year). 



222 



2. What percentage of these appearances was in: 

(a) federal courts; 10% 

(b) state courts of record; 80% 

(c) other courts. 10% 

3. What percentage of your litigation was: 

(a) civil, 80% 

(b) criminal. 20% 

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 twelve. To the best of my recollection, two were multi- 
defendant criminal matters in which I was one of two defense attorneys; in the 
others I was sole counsel 

5. What percentage of these trials was: 

(a) jury; 33% 

(b) non-jury. 67% 

Liti gation : 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 the representation; 

(b) the name of the court and the name of the judge or judges before whom the case was 
litigated, emd 

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

Following are descriptions often litigated matters which I handled between 1974 
and 1981: 

1) Tapia vs. Regional Center of the East Bay, et al ("Tapia I") 

1979, Superior Court of Alameda County, Case No. 525908-30, Hon. 
Hugh Koford and Hon. Donald McCullom (both deceased). Co-counsel: Hon. 
Robert A Baines, Santa Clara County Municipal Court, 1095 Homestead Rd., 
Santa Clara, Cahfomia 95053, (408) 296-1421; Opposing counsel: Chris G. 



223 



Gasparich (no listing available, believe deceased); Charlton G. Holland, Deputy 
Attorney General, 50 Fremont St , #300, San Francisco, California 94105, (415) 
356-6309. This was a civil action for injunctive relief on behalf of an autistic 
woman facing eviction from a psychiatric facility because defendant [a state- 
funded regional center charged with providing services to persons with 
developmental disabilities] had failed to locate an appropriate alternative 
placement. The case was significant because at the time there was little or no 
law concerning the use of injunctive relief to enforce the rights of individual 
persons with developmental disabilities under California's Lanterman 
Developmental Disabilities Act. I was co-counsel for the plaintiff and was 
principally responsible for working with the plaintiff and her family as well as 
the treatment staff at the psychiatric facility. An injunction was granted 

2) Tapia vs Regional Center of the East Bay, et al . ("Tapia 11") 

1980-81, Superior Court of Alameda County, Case No 533326-00, Hon 
Allen E. Broussard (deceased) Co-counsel: Hon Robert A Baines, Santa 
Clara County Municipal Court, 109 Homestead Rd., Santa Clara, California 
95053, (408) 296-1421; Opposing counsel: Chris G. Gasparich (no listing 
available, believe deceased); Charlton G. Holland, Deputy Attorney General, 
50 Fremont St., #300, San Francisco, California 94105, (415) 356-6309 
This was a second civil action for injunctive relief following the discharge 
of the plaintiff in "Tapia I" from a psychiatric facility for reasons unrelated to 
the issues in the earlier litigation. In this case, the Superior Court directed the 
Regional Center and the State of California to develop an individualized 
treatment plan for the plaintiff and to set aside adequate fijnds for the plan's 
implementation. The case was significant both because it clarified further the 
scope of relief available under the Lanterman Act and because it highlighted 
the inadequacies of services available to autistic young adults My role in the 
case was the same as in "Tapia I", except that I was sole counsel for the plaintiff 
in the latter stages of the litigation. 

3) Doust vs. Loma Prieta Regional Center 

1979, Superior Court of Santa Clara County, Case No. 422309, Hon. 
Bruce F, Allen (deceased) Co-counsel: Hon. Robert A. Baines, Santa Clara 
County Municipal Court, 1095 Homestead Rd., Santa Clara, California 95053, 
(408) 296-1421; Opposing counsel: Patrick Marshall, 345 5th St., #4, Hollister, 
California 95023, (408) 637-923 1 This was a class action for writ of mandamus 
on behalf of developmentally disabled clients of a regional center serving a four- 
county area. The regional center had announced that it was summarily 
terminating or curtailing services to more than four hundred clients because of 
inadequate funding by the state, but there was substantial evidence of poor 
management. The case was initiated after more than one hundred people 
contacted the Mental Health Advocacy Project following the regional center's 
announcement. Following the issuance of an alternative writ, the cuts were 
suspended; the state then refused to extend the regional center's contract My 



224 



role in the case involved ongoing communications with members of the class 
and development of the litigation objectives (i.e , identification and prioritization 
of the specific programs and services the lawsuit was intended to preserve) 

4) County of Santa Clara vs. Worker's Compensation Appeals Board (Plagues) . 
43 California Compensation Cases 125(1 978) 

1978, Worker's Compensation Appeals Board, San Jose, Hon Glen T 
Mitchell, Opposing counsel: Alvin M Frank (no listing available) This case 
involved a client who was injured while working for the County of Santa Clara 
under a "workfare" program while receiving general assistance. The principal 
issue in the case was the client's earning capacity at the time of her injury The 
County argued that my client had minimum earning capacity and the Worker's 
Compensation Judge initially agreed, the effect of this ruling was that my 
client's permanent disability award was less than the amount she owed the 
County for general assistance, leaving her with no compensation at all for 
her injury. As sole counsel for the client, I successfiilly petitioned for 
reconsideration and obtained a different ruling which provided that for worker's 
compensation purposes the earning capacity of a "workfare" participant is no 
less than the among which is credited against general assistance as a result of 
participation in the "workfare" program. The County sought review, which was 
denied, and the ruling became precedent. 

5^ John F. Adam. Jr. and Richard E. Adam d.b.a. Adam Farms. Employer and 
Respondent. Teamsters Local 865, Petitioner, and United Farm Workers of 
America, AFL-CIO. Intervener and Charging Party . 4 ALRB No. 12 (1978) 

1977, Agricultural Labor Relations Board, Joel Gomberg, Administrative 
Law Judge, Co-counsel: Antonio Estremera, Managing Attorney, Legal Aid 
Society of Santa Clara County, 480 N. First St., P.O. Box 103, San Jose, 
California 95103, (408) 998-5200. Counsel for ALRB: Susan Winant, Salinas 
(no listing available); Counsel for Employer: Wayne Hirsch, Newport Beach (no 
listing available); Counsel for Teamsters: Carol Dahle, San Luis Obispo (no 
listing available). This case was a consolidated unfair labor practice and election 
certification proceeding under California's Agricultural Labor Relations Act. 
The case presented an issue of first impression with respect to the application of 
Labor Code section 1 154.6, which prohibited an employer from hiring 
agricultural employees for the primary purpose of voting in a representation 
election. My client (United Farm Workers) alleged that the employer had hired 
approximately thirty high school students for the purpose of voting in a 
representation election during the fall of 1976, and that these students' ballots 
affected the outcome of the election After an evidentiary hearing which lasted 
several days and subsequent briefing as to the appropriate legal test to be used 
in determining whether an employee had been hired for the "primary purpose" 
of voting in a representation election, the administrative law judge adopted my 
client's position and invalidated the students' ballots. I was lead counsel at the 
hearing. 



225 



6) People vs. Martinez 

1975, San Jose-Milpitas Municipal Court, Case No M67617, Hon John 
Schatz (retired); Associate Counsel: Thomas J Ferrito, 101 Church St , #14, 
Los Gatos, California 95032, (408) 354-6655; Opposing counsel: Randy Hey, 
Deputy District Attorney, Santa Clara County, 70 W Hedding St , San Jose, 
California 95 110, (408) 299-7400. In this case, I represented four persons 
charged with picketing illegally outside a courthouse during a criminal 
sentencing hearing The principal issue in the case was whether the defendants 
had the specific intent to influence the sentencing judge or otherwise interfere 
with the underlying proceedings I handled pre-trial motions on behalf of the 
entire group of defendants (approximately thirty) as well as trying the case for 
my own clients. Two of my clients were acquitted, and two had the charges 
against them dismissed in the interests of justice by the trial judge after the jury 
deadlocked as to them. 

7) Newby vs. Alto Riviera Apartments, et al. . 60 Cal.App 3d 288 (1978) 

1978, Superior Court of Santa Clara County, Hon William J Fernandez 
(retired); Opposing counsel: Roger MarzuUa (no listing available, but Mr 
Marzulla's former associate, Walter P.Hammon, may recall this matter; Mr 
Hammon may be reached at 2 N. 2nd St., San Jose, California 95 11 3, (408) 
998-4800); Plaintiffs appellate counsel: Thomas G Perkins, Collins & Perkins, 
701 Miller St , #295, San Jose, California 951 10, (408) 287-9001 This case 
raised a number of important issues involving the rights of tenants in cases of 
alleged landlord retaliation for the exercise of First Amendment rights. After 
providing assistance to the plaintiffs original trial counsel with his appeal from a 
Superior Court judgment of nonsuit, I assumed full responsibility for the case 
after it was remanded for retrial by the Court of Appeal and was able to settle it 
shortly before trial. Although the case did not proceed to trial, I considered it to 
be significant at the time because the situation was highly polarized and the case 
had received attention from both landlord and tenant organizations; settling the 
case in that environment required considerable tact and the ability to defuse a 
highly emotional dispute. 

8) Gaut vs. Kotsianis 

1976, United States District Court, Northern District of California, Case 
No. 3:CV-74-0001457-P, Magistrate Nordin F. Blacker; Opposing Counsel: 
Peter M. Talia, 355 W. Las Palmas Ave , P.O. Box 245, Patterson, California 
95303, no telephone number available This was a racial discrimination in 
housing case under 42 U.S. C. 1983. My client, who was African- American, 
was quoted less favorable terms for rental of an apartment (including a 
substantially higher security deposit) than a prospective Caucasian tenant. 
African- American and Caucasian "checkers" employed by the City of San Jose 
reported the same disparity when they contacted the landlord about the rental. 



226 



My involvement in the case included discovery and acting as sole counsel at 
trial. A court trial resulted in a judgment for the plaintiff. 

9) Marriage of Sifuentes 

1976, Superior Court of Santa Clara County, Case No. 348658, Hon. 
Edward Brady (deceased). Opposing counsel: Beth G. Bangert, 19672 Stevens 
Creek Blvd., #437, Cupertino, California 95014, (408) 998-5200. In this case I 
was the sole counsel for the father in a contested child custody case. It is 
representative of the family law matters I handled as a lawyer and was 
significant in the sense that it proceeded through two contested hearings. It also 
is somewhat unusual because my client was awarded primary custody following 
the first hearing at a time when very few fathers were custodial parents The 
mother was awarded primary custody after the second hearing on the basis of 
the Court's finding that she had addressed the concerns with respect to her 
parenting identified at the first hearing. 

10) Simmons vs. Heublein 

1976, United States District Court, Northern District of California, Case 
No 5:CV-75-0001 153-P (no judicial involvement because case not tried); 
Opposing counsel: Robert L. Maines, Bryant, Clohan, Ott, Maines & Baruh, 
550 Hamilton Ave., #220, Palo Alto, California 94301, (415) 324-1606. This 
was a wrongfiil termination case in which my client alleged that he was 
terminated fi'om his employment as part of a pattern and practice by defendant 
to reduce the number of African- Americans it employed. After investigation 
and discovery, I determined that the individual issues surrounding my client's 
termination were more significant than had first appeared and that my client 
would not be a strong class representative The case was settled on terms 
satisfactory to both sides. The case had significance to me because it taught 
me a great deal about the practicalities of employment litigation. 

Although I graduated fi"om law school in 1 974, 1 was a practicing lawyer for only 
seven of the past twenty-three years. In addition, as noted above, a major portion of my 
work during the latter half of those seven years involved administration of a legal services 
program While I believe that several of the matters described above were significant in 
nature, their significance is relative given my brief time in practice The following persons 
have had substantial contact with me over the years and can comment on my legal abilities 
and reputation in the legal community: 

a George Kennedy, District Attorney, Santa Clara County, 70 W Hedding St., 
San Jose, California 95110, (408) 299-7400 

b. James McManis, McManis, Faulkner & Morgan, 160 W. Santa Clara St., 
#100, San Jose, California 951 13, (408) 279-8700 



227 



c. Marshall C. Wallace, Crosby, Heafey, Roach & May, 1999 Harrison St , 
Oakland, California 94612, (510) 763-2000 

d. A C Johnston, Morrison & Foerster, 755 Page Mil! Rd., Palo Alto, 
California 94302, (415) 813-5610 

e. George Rios, Senior Assistant City Attorney, City of San Jose, 1 5 1 W 
Mission St., San Jose, California 951 10, (408) 277-4924 

f Thomas D. Reese, 285 Hamilton Ave., Palo Alto, California 9430 1 , (4 1 5) 
328-7000 

g. James P. Kleinberg, McCutcheon, Doyle, Brown & Enersen, 55 S Market 
St., San Jose, California 951 13, (408) 947-8400 

h. James E. Towery, Hoge, Fenton, Jones & Appel, 60 S. Market St , 14th 
Floor, San Jose, California 951 13, (408) 287-9501 

I. Roberta S. Hayashi, Berliner Cohen, 10 Almaden Blvd., 1 1th Floor, San Jose, 
California 951 13, (408) 286-5800 

j. Kathryn K. Meier, Hoge, Fenton, Jones & Appel, 60 S Market St , 14th 
Floor, San Jose, California 951 13, (408) 287-9501 

k. Franklin D. Elia, Associate Justice, Court of Appeal, Sixth Appellate District, 
333 W. Santa Clara St., San Jose, California 951 13, (408) 277-1004 

1. Patricia Bamattre-Manoukian, Associate Justice, Court of Appeal, Sixth 
Appellate District, 333 W. Santa Clara St., San Jose, California 951 13, 
(408)494-2510 

19. Le gal 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). 

My legal career has been atypical in the sense that I have been a judge for sixteen years 
after having been an attorney for only seven. My trial experience as a judge has been varied 
and extensive, including well in excess of fifty criminal and civil jury trials and at least an 
equal number of non-jury trials, some of which have been in very complex civil cases. I have 
been a fijll-time or substantially fiill-time law and motion judge for more than seven years and 
most recently have handled a large volume of motions in a spate of cases presenting securities 
and intellectual property issues similar to those arising in the San Jose Division on the United 
States District Court for the Northern District of CaHfomia, often involving the same parties 
and counsel 



228 



As noted earlier, I have chaired several committees of the California Judges Association, 
including the Association's Judicial Ethics Committee and its Discipline and Disability 
Committee In 1994 I served as a member of the Advisory Committee on Judicial 
Performance Procedures of the Judicial Council of California Largely as a result of my 
service in these capacities, I am consulted frequently by California judges with respect to 
ethical and disciplinary matters. I regularly receive ten to twenty calls annually from judges 
seeking guidance about ethical matters. As chair of the Association's Judicial Discipline 
Advisory Panel since 1992, 1 have provided confidential counseling to approximately twenty- 
five judges facing discipline by California's Commission on Judicial Performance I have 
worked closely with the Commission staff to insure that the counseling I and the other 
members of the Advisory Panel have provided is appropriate and consistent with the 
Commission's goal of ensuring an accountable and ethical judiciary 

My other major involvement in the legal profession has been in the field of judicial 
education I have played an active role both as an educational planner and as a faculty 
member for California Judicial Education and Research (CJER), California's state agency 
responsible for judicial branch education. I served as the facilitator for CJER's strategic 
planning sessions in 1996 and 1997 and for its select committee charged with planning 
a statewide program of fairness and diversity training. From 1995 until earlier this year, 
I chaired the planning committee for the Continuing Judicial Studies Program, which 
oversees all continuing education programs for the judiciary, having previously served as a 
member of the committee since 1991. As a faculty member, I have taught courses in 
Advanced Decision-Making (1996-present), Alternative Dispute Resolution (1995-present) 
and Family Law (1987-91) for the Continuing Judicial Studies Program, Alternative Dispute 
Resolution (1995-present) and Domestic Violence (1996-present) for the California Judicial 
College, and Civil Procedure (1992-present), Family Law (1987-91, 1995 and 1997), 
Probate (1991) and Judicial Ethics (1988) for CJER institutes. Most recently, I served as 
the judicial facilitator for a pilot program on Workplace Sexual Harassment Awareness and 
Prevention sponsored by the Judicial Council of California/ Administrative Office of the 
Courts. 



229 

n. 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. 

I am a member of the California Judges' Retirement System. California judges who 
have served for twenty years receive the maximum benefit of 75% of judicial salary when 
they reach retirement age. The benefit payable to a judge who retires with less than twenty 
years but more than twelve years of service is reduced at the rate of 3.75% per year; thus, as a 
California judge with sixteen years of service as of September 30, 1997, I would be entitled to 
a benefit of 60% of judicial salary on my sixtieth birthday. 

Notwithstanding this entitlement, California's Judges' Retirement Law provides that a 
judge who "leaves his or her office to accept any lucrative office under the United States 
within the purview of Section 7 of Article VII of the [California] Constitution shall have any 
benefits receivable hereunder reduced by the amount of any salary or retirement benefits he or 
she receives by virtue of his or her service in that office." California Government Code section 
75033.5. It is my understanding that United States District Judge Robert Timlin of Riverside, 
California has filed a lawsuit challenging the constitutionality of section 75033.4 and recently 
prevailed on a motion for summary judgment. If this ruling were to stand, presumably I would 
be entitled to receive state judicial retirement benefits as described 

I have no other fiiture interests or expectancies of the kind described in this question. 

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 I have been a judge for sixteen years, I necessarily have conducted my personal 
and financial affairs in such a way as to minimize potential conflicts of interest, and I do not 
anticipate any significant conflicts should I be confirmed as a United States District Judge. I 
am aware of my ethical obligations pursuant to California Code of Civil Procedure section 
170. 1(a)(3), the California Code of Judicial Ethics and parallel federal provisions I have 
complied with these obligations to the best of my ability and will continue to do so in the 
future. 



230 



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

I have no such plans, commitments, or agreements As noted earlier, I have been involved 
actively in judicial education and may wish to continue such involvement at some point in the 
future. However, such involvement obviously would be subject to the demands of my judicial 
workload and whatever restrictions are imposed by federal rules and regulations. 

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, 
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.) 

See attached form AO-10. 

5 Please complete the attached net worth statement in detail (Add 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 

From 3/78-6/78, 1 was a volunteer on the staff of then-Congresswoman Yvonne 
Brathwaite Burke in her successful primary election campaign for the Democratic nomination 
for Attorney General of California. My title was Northern Field Coordinator and my 
responsibilities included assisting local supporters in organizing events, helping to direct the 
efforts of other volunteers and accompanying the candidate to public appearances. 

From 8/78-1 1/78, 1 was the vice-chairperson of Neighborhoods for District Elections, a 
group formed to support passage of Measure F, a ballot measure placed before the voters by 
the San Jose City Council to change the method by which members of the City Council were 
elected My responsibilities consisted of helping to develop campaign literature and making 
public speaking appearances on behalf of the measure, which was approved by the voters in 
the November election. 

From approximately 7/8 1 until I learned of my appointment to the Santa Clara County 
Municipal Court on 9/4/8 1 , 1 served as treasurer for Antonio Estremera, who was a candidate 
for the San Jose City Council in 1982. My responsibilities during this brief period were 
receiving and reporting contributions to the campaign, I resigned upon my appointment to the 
bench and do not recall if any reports actually were required or filed during my tenure. 



231 



in. 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 work as an attorney was concerned almost entirely with the provision of fi"ee and 
low-cost legal services. From 1975-78, I served as legal counsel for the San Jose Housing 
Service Center, a city-fiinded organization which provided counseling and conflict-resolution 
assistance to landlords and tenants In this capacity, I provided fi"ee legal consultations to 
approximately fifty persons, provided training for members of the Santa Clara County Bar 
Association on landlord-tenant law and taught numerous public classes at local community 
centers about basic principles of landlord-tenant law and conflict resolution. From 1978 until 
my appointment to the Municipal Court in 1981, I was the Directing Attorney of a unique 
legal services program which provided fi^ee legal services to more than eight hundred persons. 
In addition to my legal work, I organized and provided training for members of the Santa 
Clara County Bar Association on professional and ethical issues related to the representation 
of people with mental and developmental disabilities. 

Both before and after my appointment to the bench, I have served on various city and 
county commissions and committees involved with issues related to my work. These include: 

Chair, Task Force on Self-Esteem and Personal Responsibility, County of Santa 

Clara (1988) 
Conflicts Administration Program Governing Board, County of Santa Clara 

(1982-86); chair (1984-86) 
Commission on the Developmentally Disabled, County of Santa Clara (1979-81); 

chair (1980-81) 
Chair, Task Force on Services to Conservatees, County of Santa Clara (1979-81) 
Charter Review Committee, City of San Jose (1976-79) 
District Boundary Adjustment Committee, City of San Jose (1979) 
Rent Task Force, City of San Jose (1979) 

As a parent, I have been involved in school and youth sports organizations. I was 
parliamentarian of the parent-faculty group at my children's elementary school for two years, 
was a girls' softball coach for two years and have been a boys' soccer coach for four years. 
In 1994 and 1995, 1 was a district commissioner for the soccer program of the Police Athletic 
League, a youth sports program which serves a large number of disadvantaged youth in the 
San Jose area. 



232 



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 of the 
practical implementation of membership policies? If so, list, with dates of membership. What 
have you done to try to change these policies? 

I do not belong, nor have I belonged, to any such organization. 

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

which led to your nomination and interviews in which you participated) 

To the best of my knowledge, there is not a selection commission in my jurisdiction which 
recommends candidates for nomination to the federal courts. My experience in the judicial 
selection process began on May 21, 1997, when I was contacted by Senator Feinstein's staff 
and asked if I was interested in being considered for nomination to the United States District 
Court in San Jose I agreed to meet with the Senator's advisory committee the following day 
and was interviewed for approximately thirty minutes. I received another call from the 
Senator's staflFthe following day asking me to submit a formal application. On May 29, 1997, 
I was interviewed by the Senator for approximately forty-five minutes. During the next 
several weeks I was asked by the Senator's staflF to submit the names of personal references 
and to provide letters of support, which I did On June 20, 1997, Senator Feinstein called me 
and informed me that she would be recommending to the President that I be nominated. 

On June 23, 1997 I was contacted by the White House staflF and advised that they had 
received Senator Feinstein's letter of recommendation and that they would be providing me 
with the various questionnaires and forms necessary to enable them to consider my 
nomination. I spent many hours over the next several weeks completing the forms. On July 
14, 1997, 1 was interviewed by several attorneys at the Justice Department concerning my 
background and qualifications. On August 7, 1997, 1 was interviewed by a field agent of the 
Federal Bureau of Investigation in connection with the Bureau's background investigation. 
On August 18, 1997 I was interviewed by the regional evaluator for the American Bar 
Association in connection with its evaluation of my candidacy 

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 fially. 

No. I recall being asked both by Senator Feinstein's advisory committee and by the 
attorneys at the Justice Department whether there was any law (eg, the death penalty) as 
to which I would have to recuse myself or which I would have difficulty applying because of 
my personal views My answer was no. 



233 



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-resolution rather than grievance- 
resolution; 

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

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

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

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

I believe that much of this criticism is well-taken. The role of judges, particularly at the 
trial level, is to apply existing law to the cases before them; the development of policy and the 
enactment of legislation are the province of the other two branches of government. When it 
appears that judges are deciding cases on the basis of their personal beliefs rather than in 
accordance with the law or are attempting to perform functions vested in the legislative or 
executive branch by the Constitution, public confidence in the judicial branch and respect for 
the rule of law in general are seriously harmed. In this way, judicial activism actually 
compromises the independence of the judiciary. 

Inevitably, trial judges will be called upon to decide cases involving matters of first 
impression or in which policy considerations are implicated. Even in these cases however, it is 
appropriate for judges at the trial level to act with restraint and with proper deference to the 
roles of the other branches of government. There is a long tradition in the common law which 
provides guidance for judges facing new or ambiguous legal issues In accordance with this 
tradition, judges should endeavor to understand the rationale and purpose both of prior 
appellate decisions and of any relevant legislation and should endeavor to make decisions which 
are consistent with these factors rather decisions which represent a significant change in law or 
policy 



234 

FINANOAL STATEMENT 
NET WORTH 



ftovide a conqtiete, cmxent financial net woidi statement which itemizes in detail 
all assets (including bank accounts, real estate, secondes, tnists, investments, and odier financial 
holdings) all liabilides Ondoding debts, moitgages, loans, and odier finiinrial obligations) of 
younelf. your spouse, and odier immwii«ty membets of your lionsefaold. 



1 ASSETS 1 


UABILinES 




CuhoohmdiniJfabmb ('opproy.wafc) 


a 


ooo 


— 


Nata pqrdik 10 bota-wamd 










i^iaddf 








Nolo pcjribk ts bola-msecmd 










Uaai Mcaririrt-iilii tcfaeduk 








Netet pQiUe IS itlilira 


Lro 


Qoa 


— 




UnCited Hcontitt-idd tcfacdide 








Noletp^tblciDOdtcn 










Aceamtt ud netet nedTtUc: 








Acceunmadtaitdue (cffmni/^fW 


1 


000 


— 




Diw fnm nbtivci ud bieadt 








Unpiid ioaMDe Ox 










Oseteiaoihcn 








Oihir opud m ul iauictt 










Doabl&l 










2ri 


ooo 


— 


Reil tnue <nm«il-»iW Kte*ile 


S7o 


OtX. 


— 


Chud oentisa aad odia luiB piy- 








Ketl enue iM«(tiet receivible 
















Amu uri alber penosil pnpeny 


fo 


ooo 













Cad value-ClB iuannee 
















Olher •sttt-itonize: 
















(Rft\ (st« a^clAeJ) 


67 


9clS" 


- 




' 




' 


UvfS+Mei"-V atcowft (se£ (itticlve)) 


4oX 


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- 










Morttii »\\a<-|ce4 -^ajlvm) 


3 


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— 


Total EiUBtiu 


SOT- 


000 


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'^ '^ '■ 








NctWerih 


"xSl 


ira 


- 


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Totd ABell 


l,HZt 


ITo 


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Total GAQitka lad aet mith 


iiii.l' 


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conhngent UABuxnEs 








GEIOXAL INFORMATION 








Ai auons, comiker or foaiutor 


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235 

ATTACHMENT TO FINANCIAL STATEMENT 

Hon Jeremy D Fogel 

All values approximate as of 9/8/97 

1 Real estate owned: 

Personal residence, Los Altos, CA; estimated fair market value 
(unencumbered-see mortgage below) $850,000 

Unimproved lot, Soda Springs, CA; estimated fair market value 
(no encumbrances) 20.000 

Total $870,000 

2. IRA's 

DeanWitter (self and spouse)* $ 54,525 

World Savings & Loan certificate of deposit (self and spouse) 13,280 

Total $ 67,805 

3. Investment account- Reber/Russell Co* $402,945 

4. Money market fund - Dean Witter Tax-Free Liquid Assets* $ 3,500 

5. Real estate mortgage payable-Nationsbanc Mortgage Corp (secured 

by personal residence) $251,000 

*Items with an asterisk are managed investments which include securities. While I know the 
general scheme of asset allocation (eg, U.S. equities, bonds, international, etc ), I have no 
knowledge of the identity of the specific securities themselves. I have managed investments in 
this way in part to minimize the possibility of any conflict of interest. 



236 



raV^GIAL DISCLOSURE REPORT 

Nomination Report 



Repon Required by the Eihia 
Reform Aa of 1989. Pub L No. 
101-194. November 30. 1989 
U.S.C. App. 4 . Sec. 101112) 



1. Persan Reporting (Lnst n 
Fogel, Jeremy D. 



u, fiat, middle inOiai) 



1. Court or OrpmlzaUoD 

U.S. District Court, N.D. Cal . 



3. Date of Report 

09/09/1997 



4. Title (Article HI judges indicate active or 

senior status; magistrate judges indicate 
full- or pan-time) 

U.S. District Judge {nominee) 



S. Report Type (check type) 

X Nominauon. Dair 09/08/1997 



6. Reporting Period 

01/01/1996 
08/31/1997 



7. Chambers or Omce Address 
Superior Court 
191 North First Street 
San Jose, California 95113 



8. On the basis ot tbe information contained In this Report and any 
modlflcations pertaining thereto, it Is in my opinion, in com^diance 
with applicable laws and regulations. 



IMPORTANT NOTES: The 
checking the NONE box for each 



accompanying this form must be followed. Complete all pans. 
1 where you have no reponable information. Sign on the last page. 



I. POSITIONS (Reporting individual only: see pp. 9-13 of Instructions) 

posmoN 

NONE (No reportable positions.) 



□ 



NAME OF ORGANIZATION / ENTITY 



11. AGRKEMKNTS (Reporting individual only: see ppJ4-l7o//rutrucnoru.l 

DATE PARTIES AND TERMS 



D 



NONE (No reponable agreemenls.) 
1 1981 



California Judicial Retirement System {see Sec. Vlll) 



III. NON-INVESTMENT INCOME 
DATE 



□ 



NONE (No reponable 
1996 Santa CI 



(Reporting individuol and spouse; see pp. 16-25 of limruaions.) 

PARTIES AND TERMS 



Court (annual salary) 



107,389.92 



2 1997YTD Santa Clara Superior Court (annual salary) 



3 1996-97 Los Gates -Saratoga observation Nursery School (S) 



237 



Nunc of Penon Kcporting ~ DsteofRepon 

FINANCIAL DISCLOSURE REPORT Fogel, Jeremy D. 09/09/1997 

IV. REIMBURSEMENTS and GIFTS - tnnspomiion. lodging, rood, entemimnetu. 

ffndudes those to spouse and dtpendaii chitdren: use the parentheticals '(S) ' and *(DQ ' to buUcate reportable reimbunemaits and ^ftt received by tpoiue 

and dependent children, respeaively. See pp. 26-29 of Instruaions.) 

SOURCE DESCRIPTION 

NONE (No such reponable reimburwments or gifts) 



V. OTHER GIFTS 

(Includes those to spouse and dependent children: use the paremheticals '(S) ' and '(DC) ' to indicate other gifts received by spouse and dependent c 
respectivelv. See pp. 30-33 of Instructions I 



respectively. See pp. 30-33 of Instructions i 

SOURCE DESCRIPTION VALUE 

NONE (No such reportable gifts) 



□ 



1 Exetnpt 



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 '(DC)' for liability of a dependent diild. See pp. 34-36 of Instructions. i 



S 



CREDITOR DESCREPTION VALUE CODE* 

NONE (No reportable liabilities) 



• VALCODES:J=$15.000orle!S K = $15.00l-J50.000 L-t5O.00l 10 JIOO.OOO M-$lOO.0OI-$2SO.0OO N-$2SO.0OI-$5OO 000 

= 1500.001-11.000.000 PI=SI.OOO.OOI-SS.OOO.OOO P2=S3.O0O.a0t-S2S.O0O.0OO P3 = S2}.000.00l-tS).000.000 P4~SSO.000.001 01 more 



238 



FINANCIAL DISCLOSURE REPORT 



Name of Penon Repomng 

Fogel, Jeremy D. 



bueof bepon 

09/09/1997 



_^ - Income, vahu. tnmsaaions {inctuda those of ipotae and 

Vn. Page IINVESTMENTS and TRUSTS dependent cUldren. Seepp. 37-14qflrMmaion,.) 



A. 
DescriptioD of Asseu 

Indicate wttere appticable. owner of 
the asset by using the parenthetical 
'tJ} ' for joint ownership of reporting 
individual and spouse. '(S) 'for Sep- 
erase ownership by spouse. '(DQ' 
for ownership by dependent child. 

Place '00 ' after each asset 
exempt from prior disclosure. 


B. 

Income 

during 

reporting 

period 


C. 

Gross value 

at end of 

reporting 

period 


D. 

Transactions during reporting period 


(1) 

Amt 

Code 

(A- 

H) 


(2) 
Type 
(e.g.. 
dividend. 

interest) 


(1) 

Value 
Code 
(J-P) 


(2) 

Value 

Method 

Code 

(Q-W) 


<I) 
Type 

(e.g.. 
buy. sell, 
merger, 
redemp- 
tion) 


If not eiempt from disclosure 1 


(2) 
Date: 
Month. 
Day 


(3) 

Value 
Code 
(J-P) 


(4) 
Gain 
Code 
(A-H) 


(5) 

Identity of 
buyer/seller 
(if private 
transaction) 


1 NONE (no reponaWe incorae.isMls. or 
1 tramaclions) 




















1 Reber/Russell Co. (stock fundi 


F 


Dividend 


" 


T 


" 










2 Dean Witter Tax-Free Assets Fund 
(money market fund) 


B 


Interest 


J 


T 


X 










3 World Savings IRA (CD) 


^ 


Interest 


J 


T 


" 










4 World Savings IRA (CD) (S) 


^ 


interest 


J 


T 


X 








1 


5 Dean Witter IRA (stock fund] 


° 


Dividend 




T 


" 










6 Dean Witter IRA IS) (stock fund) 


° 


Dividend 


" 


■^ 


" 






































































































































































































































lInc/GiiiiCo<to;A-$1.0(XlorleB B-Sl.OOl-SJ.SCO C-S2.50l-$5,OOO D-$5.001.$15.000 E-$15.001-Ji0.000 
(Col, B1.D4) F=$S0.001-$ 100,000 G-JIOO.OOI-JI.000.000 HI-S1.00O.0Ol.$5,OOO,0O0 H2=S5.000.001 ormort 




50000 L-$50,00l-$ 100,000 M-J10O,0Ol-$25O.0OO N.$25O,OO|.$50O,00O 


(C01C1.D3) O-J500.001. J 1,000,000 Pl-$1,000,0 


01-55,000,000 l>2-$5.0O0.0Ol-$23.0OO,OOO P3-S23,OOO,OOl-$5O,O0O,OOO P4- $50,000,00 1 or mote 


3 V.I Mth Codes: Q-Appnual R-Cosl (real estate only) S-AssessmenI T-Cash/Maitet 
(Col C2) U=Book Value V=Olhcr W=Eslimaled 



239 



FINANCIAL DISCLOSURE REPORT 



Name of Peraon fLcpotting 

Fogel, Jeremy D. 



£>aieof Rqmn 

09/09/1997 



Vni. ADDITIONAL INFORMATION OR EXPLANATIONS. 

I NONE (No kdditioiul information or explinadons.) 



(Indicate part of report.) 



SECTION 2: Parties and Terms, continued: It is my understanding that my right to receive 
retirement benefits from the California Judicial Retirement System will terminate as a matter 
of state law upon my assuming office as a United States District Judge, and that I will be 
entitled only to a refund of my contributions to the system plus interest. It should be noted, 
however, that United States District Judge Robert Timlin of Riverside, California, has filed a 
lawsuit challenging the constitutionality of the applicable statute (California Government Code 
section 75033.4) and recently prevailed on a motion for summary judgment. If this ruling were 
to stand, presumably I would be entitled to receive my accrued benefits, which as of September 
30, 1997 would be sixty percent of the salary of a Superior Court judge annually commencing on 
my sixtieth birthday. 



240 



FINANCIAL DISCLOSURE REPORT 



Nime of Person Repomng 

Fogel, Jeremy D. 



Dub «f Report 

09/09/1997 



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. 1 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. 

1 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 stamtory 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 in compliance widi the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. 



Signature 



.1^ 



Any individual who knowingly and wilftjlly 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 Omce of (he United States Courts 
One Columbus Circle, N.E. 
Suite 2-301 
Washington, D.C. 20S44 



241 



Questions and Answers 



Responses of M.Margaret McKeown to Questions From Senator Ashcroft 

1. Which current Supreni'; Court Justice do you most admire, and why'' 

Justice Sandra Day O'Connor is the current Supreme Court Justice whom I 
most admire. Her opinions are clear, to the point and written in plain 
English, making it easy to understand the holding and the scope of the 
ruling. Further, she has emphasized the importance of precedent and stare 
decisis. Justice O'Connor is also the Circuit Justice for the Ninth Circuit. I 
had the opportunity to hear her speak at the Ninth Circuit Judicial 
Conference. I appreciated the dowT'to-earth manner in which she 
approached the work of the Supreme Court and her role as a justice and 
her ability to communicate with clarity and humor. 

2. What Judge or Justice lias most influenced your thinking concerning the 
constitutional separatioa of powers, and why'' 

Judge Learned Hand has most influenced my thinking concerning the 
constitutional separation of powers. I first became interested in Judge 
EKand because of his opinions in the intellectual property Held. I began to 
read his other writings, including those where he succinctly sets out the 
limits on the judician', the importance of the separation of powers 
doctnnc, and the principle that the judiciary should not second guess 
legislative choices. 

3 What docs the discretic nary power of ths judiciary mean to you? 

The discretionary poorer, which is quite limited, generally describes the 
court's supervisory power over the court and lawyers, such as Rule 11 
sanctions, and the coiut's equitable powers. This power is generally 
subject to review for abuse of discretion and limited by the Constitution 
and statutes. 

4. Which Judge has served as a model for the way you would want to conduct 
yourself as a Judge, and why? 

Judge Donald Voorhees (W.D. Wa.), now deceased, was a role model for 
me. He was fair, open-minded, well-prepared, courteous to the parties and 
counsel and dignified while being humble. He was a model of the judge as a 
respected public servant. 



242 



5. Which law review trticle or book has most influenced your view of the Uw? 

The book which has ionucnced mc most during my practice is Wright St 
Miller, Federal Practice and Procedure: Civil . This authoritative treatise 
OD civil procedure has been a daily guide. Since the federal courts are 
courts of limited jurisdiction and since the current civil litigation process is 
predicated on the Fedrral Rules of Civil Procedure, the discussion on 
jurisdiction and the inrerpretation and application of the federal rules have 
shaped my perspective on civil litigation. 

6. What role do you think legislative history— by which I mean die various 
committee reports, heaiing tramscripts and floor statements— should play m the 
interpretatiQn of the tex t of a statute? 

First and foremost, the text of the statute and its plain meaning should 
govern interpretation of a statute. Every effort should be made to end the 
inquiry at this point and on the basis of the statutory language. In the rare 
event of ambiguity, it may be appropriate to look to legislative history. It is 
also important to recoi^lze, as Justice Scalia has pointed out, there are 
limitations as to the reliability and applicability of various documents which 
•re collectively referred to as legislative history. 

7. When you were in Kins County Superior Court arguing for a temporary 
restraining order to pre\ent supporters of Initiative 608 from gathering 
signatures, you were quoted by Ae Seattle Post-Intelligence as saying, "There 
are limitations on what mc can and caimot do in a civilized society." What did 
you mean? 

My reference was that the Constitution provides certain guarantees, such as 
freedom of speech and freedom to participate in the political process, and 
Washington statuties impose certain procedural limits on initiatives. 

8. In the Memorandum si^iporting your motion for a temporary restraiiung order 
in the Initiative 608 case, you cite former Oregon Supreme Court Justice Hans 
Linde for the propositioa that the Guarantee Clause "was intended to protect 
citizens against "die sodilen impulses of mere majorities' through governance by 
representatives, as opposed to direct governance by the people " Do you know 
of any court that has accepted this argiuncnt as a basis for sustain mg a pre- 
election challenge to a ballot initiative? 

The portion quoted was cited for a general historical principle. This 
argument was not meant to address the issue of a pre-election challenge 
which is governed by state law procedures and precedent. The precedent 



.2- 



243 



for such a pre-ballot challenge was addreased in other sectioiu of the 
memorandum. The state court trial judge also said that a pre-enactment 
challenge was viable. The Supreme Court later invalidated a similar 
provision in Romer v. Evans. 517 U.S. 620 (1996). I am not aware of a 
court which has addressed the Guarantee Clause as a basis for a pre- 
election challenge. 

9. Assunung courts should even make such detenninations, what criteria do you 
think a court should use to evaluate whether or not a voter initianvc violates the 
Canstitution and, as a result, should be prevented from going before the people 
for a vote'' 

The initiative process is an important right provided by the state 
constitution and by sUtute (in the case of Washington State). It would be 
extremely rare to invniidate an initiative and such review should be 
approached only with extreme caution. The court should first determine 
whether the challenge is properly before the court. In the case of a federal 
court, the court shouM not ordinarily be ruling on the constitutionality of a 
state statute/initiative absent a definitive, controlling interpretation of its 
meaning by a state court. The initiative should be presumed to be 
constitutional and valid. Finally, the court should review the matter on the 
narrowest possible grounds, so as to avoid reaching any constitutional issue. 

10. Justice Linde argued in the law review article you cited in your Initiative 608 
Memorandum that coujis should consider whether an initiative is directed 
against racial, ctimic. linguistic, religious, or social groups or whether it appeals 
to "majority emotions to impose values that offend the conscience of other 
groups without being directed at those groups " Do you think these factors 
deserve consideration? 

The only appropriate factors are legal factors. Other factors which may 
relate to such things as "social groups," "emotions," "values" or 
"conscience of other groups" are not legal factors appropriate for 
consideration. 

The Memorandum cited Justice Linde's article for a narrow proposition 
(see Question No. 8) aid did not adopt or incorporate his lengthy article as 
a general matter. 

1 1. Should voters have the opponunity to vote for or against: 

a. an initiative that seeks to eliminate state-sanctioned preferences based on 

race and gender" 



-3- 



244 



b. an initiative that denies public benefits, including free public education, 

to illegal aliens? 

Yea. Voters are free to select the topics to be considered in the initiative 
process, subject to state procedural and constitutional requirements. The 
Ninth Circuit ruled on the race and gender preference matter in Coalition 
for Economic Equity \. Wilson . 122 F.3d 692 (9th Cir.) cert, denied 118 S. 
Ct. 397 (1997). 

12. Would the basis upon vrhich you sought a restraining order in the Washington 
initiative cose— fear of h.ate crimes and violence towards a minority population— 
ever justify b limitation on the ability of state legislators to debate an issue in 
the state assembly or senate? 

No. The primary basil for the restraining order sought related to 
procedural defects in the initiatives. The initiative procedure is different 
from the legislative process and the same argument made as to initiatives 
would not be applicable to the legislature. 

13. In 1992. you signed a rupoit urging the ABA's House of Delegates to take a 
position on the issue of aboition. At that time, the Supreme Court had heard 
oral arguments in Casey but had not issued its decision. The report stated that, 
if the Court upheld die ?A restrictions on abortion, "legislative aiul judicial 
solutions to these . . . poblems will be imperative. " In light of the fact that 
most of the challenged lestrictions were upheld, to you still believe "judicial 
solutions" are necessai)'? What are some examples? 

I did not write, review, sign or support a report to the ABA House of 
Delegates on abortion. I had no role in the referenced report. The report 
was not part of the resolution I was asked to sign. My understanding is that 
the report was prepared by the National Association of Women Lawyers (of 
which I have never been a member). As such, I did not take the positions in 
the report Further, I do not view the role of the judiciary as providing 
"solutions" but rather ruling on specific cases before it 

14. The 1992 report you signed compares die ABA's reluctance to take a posibon 
on abortion with the ABA's "shamefiil neutrality on civil rights in the SOs and 
605." Many judges and lawyers resigned from the Association after the 
abortian resolution was considered. Are you concerned about the exteiit to 
which the ABA has taken positions on political mancrs? 

As noted above, I did not sign the report and did not take the position 
quoted. My general approach abo would not be consistent with the tone of 



245 



the report. As someone who believes in collegiality and consensus, I am 
concerned about the extent to which the ABA has taken positions on matters 
which some consider political. I think it is appropriate for the ABA to 
examine its policy in light of the concerns raised in recent years by many of 
its members. My activities In the ABA reflect my own belief that the 
organization is moat useful as a professional organization. I have focused on 
my substantive areas 'if practice My participation has focused on such 
things ai speaking at ii National Deposition Institute, participating in a 
panel on corporate counsel issues, speaking on Qaubert and antitrust 
experts, and serving as Vice Chair of the Antitrust Section annual meeting 
program. 

IS. What, in yotir view, is :hc single most important right not protected by the 

Constitutioii? In other words, are there any rights that as a policy matter you 
would like to be protected by the Constitutioii, but, in your view, are 
nonetheless not secured by the Constitution? 

The Constitution is a clear, well-written document that has served us 
well for over two hundred years with limited amendments. I do not 
believe there are any important rights not protected by the 
Constitution. 



-5- 



246 



Senator Hatch . 



A3 Chair of the ACLU Legal Cennmittee, were you asked by the ACLU to give 
your opinion, legal or otherwise, on any issues or positions? 

No. . ^ "■ 

If so, which issues/positions? 

Have you ever played nny ofilcial or legal role in deciding which issues the 
ACLU will litigate and 'or advocate? 

When I was Chair of the ACLU of Washington Legal Cammittee, I oversaw 
committee meetings where the staff and volunteer attorneys presented 
potential cnaca for discussion. Any approval to litigate or to address specific 
issues was made by the Board of Directors. I never served on the Board of 
Directors or in any policy role. 

If so, which issues? 

Have you ever played itoy official or legal role in deciding which position the 
ACLU will take on an issue? 

No. 

If so. which pos ition and issue? 

Are there any views or positions espoused by die ACLU with which you 
disagree? 

If so, which ones? 

I am not a member of the ACLU. I do not know the details of positions of 
the ACLU. In responding to this question, I learned that the ACLU has a 
policy guide which covers more than SOO policies. I have never seen this or 
any similar manual as I have never had any policy role on any ACLU 
issues. 



247 



Senator Graaaley . 



1 Ms McKeown, it is my understanding that you were heavily involved with the 

Ninth Circuit's gender bias usk force. I have several questions concerning your 
involvement with this task force and the final report it issued on gender bias 
The gender bias report has been used by some to argue for afBnnative action 
and qaoU programs based on the alleged existence of gender bias in the Ninth 
Circuit court operation:;. 

At my request, the General Accounting Office reviewed the final report for 
methodological soundness. The GAO concluded that this report was not 
methodologically soun.l and purported to draw conclusions which could not be 
supported based on the facts. 

a. How did you coTie to be involved with the gender bias task force and 
what was your job title? 

The task force was crt-ated by the Ninth Circuit under the leadership of 
then Chief Judge Cl'ifTord Wallace. 1 wai asked by Judge John 
Coughenour, now Chi«f Judge of the Western District of Washington, to be 
amemberoftheUskrorce. (See attached letter.) I had no title other than 
"member." I was formally appointed as a member of the task force by the 
Ninth Circuit Judicial Council. I considered it an honor to be asked to 
serve the court. I believe I was chosen because I had served as President of 
the Federal Bar Association of the Western District of Washington and the 
judges in my district had also chosen me as a lawyer representative to the 
Ninth Circuit Judicial Conference. 

b. What role did ynu play in writing, reviewing, or editing the final report^ 

As a member of the Tusk Force, I did not draft or write the report but, like 
others on the committee, I participated in a general review of the report. 
The portions of the report based on quantitative data were written 
primarily by Dr. Deborah Hcnaler. a committee member and social scientist 
at RAND who volunteered her time. The portions of the report on 
substantive law, such as bankruptcy, were written by volunteer lawyers and 
judges listed in those .•.cctions. 

c. What is your response to the GAO's report, which basically said your 
study had no basis for its conclusions? Given that the GAO determined 
Aat the study h?d little, if any. merit, what use is the task force report, 



50-531 98-9 



248 



and what did the taxpayers get for the tens of thousands of dollars spent 
on it? 

The Ninth Circuit report was not intended to be a comprehensive report on 
gender bias but rather a survey as to the effects of gender in the Ninth 
Circuit. The report was not, in my view, intended to be a basis for any 
quota or afHrntativc action program. The purpose of the report was 
educational and informational. As the GAO report noted, "each of these 
studies contains useful descriptive data about court operations and the 
perceptions of court participants in the effect of gender . . . ." 

The GAO also concluded that the study "provides a variety of useful 
descriptive data and some statistical data that can serve as baseline 
measures for future di:scriptive studies in these Circuits" and that 
"(o]veraII, the methods selected in each study were appropriate for 
describing court participants' perceptions and experiences about court work 
life." 

I am not a social scientist, so it would be diiTicult to determine the merits of 
any dispute over methodology. I believe the report is worthwhile in 
providing background data on the effects of gender in the Ninth Circuit and 
contributing to the understanding of the judiciary, lawyers and the public 
on this issue. The report is the product of thousands of hours of volunteer 
help to the Circuit by fudges, academics and lawyers. There was no usk 
force staff and my undentanding is that most of the funds went to printing 
and mailing. Both Justice O'Connor and Judge Wallace praised the report 
which was overwhelmingly adopted by the Ninth Circuit Judicial 
Conference. 

d. Do you believe rhat gender bias is a problem in the Ninth Circuit, which 
you will be serving on if confiimed, and if so, what do you base your 
opinion on? 

The report noted that most attorneys, male and female, believe they are 
treated fairly by the courts. I share that view. The report does underscore 
that equal treatment in the courts is a concern for all judges and lawyers. I 
do not believe the repurt documents definitive evidence of bias, nor was it 
intended to, but that effects of gender are often, by way of short hand, 
referred to as gender bias. 

You mentioned your rclc supporting the American Bar Association's adoption 
of a pro-choice stance. What's your position on the ABA taking this posihon 
now? 



249 



The resolution I ligneil was a reflection of Supreme Court precedent. As to 
the aba's involvement, I have indicated that in light of concerns raised in 
recent years by ABA members, including Senator Hatch, that it is 
appropriate for the AHA to take a hard look at its approach on taking 
positions on such Issues. 

a. What is yovir view on state efforts, such as, but not limited to, parental 
notification law; , to restrict the light to abortions? 

I would follow the precedent of the Supreme Court on this and any other 
legal issue. In Planned Parenthood v. Casey . SOS U.S. 833 (1992), the 
Supreme Court reaflii-med "that a State may require a minor seeking an 
abortion to obtain the consent of a parent or guardian, provided that there 
u an adequate judicial bypass procedure." 

b. What is your understanding of the Supreme Court's "undue burden" 
standard in regaid to Roe v. Wade ? 

In Casey, the Supremi: Court noted that "it must be remembered that 
Roe V. Wade speaks with clarity in establishing not only the woman's liberty 
but also the State's 'important and legitimate interest in potential life.'" 
(citation omitted). The Court rejected Roe v. Wade 's trimester framework, 
recognizing that "in practice it undervalues the State's interest in the 
potential life within the woman." Thus, a state law that has a valid purpose 
but may have the incidental effect of making an abortion more expensive or 
more difficult to obtain is not a basis for invalidation. States have 
substantial flexibility in establishing a framework in this area and the laws 
will be reviewed under an "undue burden" standard. There is no 
unqualifled right to atortion. The undue burden standard relates to 
whether a "state regulation imposes an undue burden on a woman's ability 
to make this decision. . . ." and places a "substantial obstacle" in her path 
"before the fetus attains viability." 

You also spoke about > our role as a lead counsel representing the ACLU in a 
suit to keep two citizen iiutiatives from getting onto the Washington ballot. 
You have been quoted as saying initiatives intruded upon judicial powers. 
What did you mean by that statement? 

Under Washington law, an initiative must be legislative in nature. To the 
extent the initiatives offered judicial or constitutional interpretations, such 
as the meaning of the Equal Protection Clause, we argued that they were 
judicial rather than legislative. As a matter of information, I did not 
represent the ACLU in the litigation. 



-9- 



250 



According to a newspaper article quoting other attorneys involved in the case, 
you reportedly defienJded as "educational" the tactics of gay rights groups who 
physically disrupted and obstructed volunteers who attempted to collect 
signatures for the ballot. Do you continue to believe that these tactics were 
"educational?" 

I believe this news report is erroneous. I did not participate in any 
litigation or activity involving the tactics of groups involved in the signature 
gathering process. 

My involvement was as an attorney representing the Washington 
Association of Churches (> broad association of churches including 
Methodists, Catholics. Baptists and Presbyterians) on the ballot initiative 
issue. I was not involved in any activity relating to gathering of signatures 
and, as a matter of principle, would not endorse any physical disruption or 
obstruction of those gathering initiative signatures on any issue. 

In your opinion, did ycur defense of these tactics have the effect of infringing 
on the volunteers' First Amendment rights? Did physically hindering these 
voltinteers from attempting to infonn other citizens of their opinion, and 
possibly getting signatures, infringe on these volunteer's First Amendment 
rights? 

I was not involved in any defense of signature gathering tactics or 
procedures. My resp'inse to Question No. 4 addresses this issue. 

Do you believe "judicial activism" exists? If so, what is your definition of 
"judicial activism" and please cite examples of where it has taken place. 

Yes. Judicial activism is reflected in the failure to acknowledge that the 
federal courts are courts of limited jurisdiction, that the role of the judiciary 
is to decide specific cases in controversy, not to legislate or make policy, and 
that the courts are bound by the clear language of the Constitution, statutes 
and precedenL 

Examples of judicial activism include instances where the court shows a 
disregard for precedenL Another example comes from the Supreme Court's 
Lochner-era cases. 



-10- 



251 



UNITED STATES DISTRICT COURT 

WCSTBMN OiarniCT or W«3MINaTON 
UMITCO STATES COUnr HOUSE 
9!«TTLI. tMASHINCTON aaio* 

JOHN c couaMiNOua 

u..T>s (T.rai ...raicT iuaci UP*! B*S-««a« 

April 25. 1997 



The Honorable Onin Hatch 
United States Senate 
Washington DC 20S10 



Dear Senator Hatch: 

I understand a question regarding Margaret McKeown's nomination to the Ninth 
Circuit Court of Appeals has arisen due in pan to her service on the Ninth Circuit Gender 
Bias Task Force. 

I obviously can take no position regarding Ms. McKeown's nomination, however, 
I do feel as the former Chair o;: the Ninth Circuit Gender Bias Task Force that I should 
inform you thai Ms. McKeown ;eTved on the Task Force at my personal request. Having 
been asked to perform this function as a service to the Court, it seems inappropriate that 
this should be an impediment tc her nomination. 




Very tnily yours, 

John C. Coughenour 
United States District Judge 



cc: Senator Slade Gonon 



252 



Senitor Thunnon^ 

1 Ms. McKeown, yoo steted dining your hearing testimony that the American Bar 

Association should taki: a very hard look at whether it should take positions on 
controversial social issues, such as a position on abortion that you advocated in 
a proposed ABA resolution in August 1992. If you were a member of the 
House of Delegates tooAy and were presented with a resolution that would 
require die ABA to remain neutral on controversial social issues like abortion or 
needle exchange prognons, do you believe you would support or oppose this 
resolution? If you would support it, please explain how your views have 
changed since August 1 992. 

I believe I would support a resolution that the ABA remain neutral on issues 
like abortion. Since the time I was asked to support that resolution, almost 
six years ago, I have observed the impact on the organization as a result of 
membership divisions about when the ABA should take positions. Because I 
believe the ABA is most effective when it focuses on administration of 
justice and lawyers and the practice of law, I would favor the ABA putting 
its resourcea and energy on these matters. 

2. In February 1997, die yVmerican Bar Association adopted a resolution 

recommending that Federal and state jurisdictions stop imposing the death 
penalty tmtil various ABA guidelines are adopted, such as some regarding 
competence of counsel Do you agree with the ABA that a moratorium should 
be placed on the imposition of the death penalty? 

No, I do not agree that a moratorium should be placed on imposition of the 
death penalty. 

3 Are you aware of any official positions of the American Bar Association on 

public policy issues as adopted by the House of Delegates during your 
involvement with the A3A that you do not agree with? 

I do not have records nor have I kept documents which refer to policy 
decisions adopted during my tenure in the House of Delegates. It is likely 
that I would have disagreed with the ABA on some subjects. 

4. The American Bar Assooiation states that one of its primary missions is to serve 
as the national representative of the legal profession Do you believe the ABA 
has substantially achieved this goal? 



-11- 



253 



The ABA hai been successful in providing ■ national forum for lawyers to 
exchange professional views and information. The legal education 
opportunities and work carried out by the substantive sectioni, such as the 
Antitrust, Tax and Intellectual Property Sections, are reflective of the role 
of the ABA as a natioral association of lawyers. 

Some in the Congress believe that a ttree judge panel should be required to 
overturn a voter initiative that is paased by a state. Do you believe that a panel 
of three Federal judges should rale on voter irutiatives, or do you believe this 
would be an unwarranted interference in the independence of the judiciary? 

I believe thii is an arei for deference to Congressional action. 



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254 



Senator Seaatona : 

Pleu»e identify myone who helped you answer the following questions (Sta£f at the 
Legal Foundation of Washington provided the data for Question Nos. 13-15.) 

1. In your opinion, what is the greateat Supreme Court decision in American 
history? 

Marburv v. Madbon . S U.S. 137 (1803). 

2. What is die worst Supreme Court decision? 
Pleaav v. Fergusoti. 163 U.S. S37 (1896). 

3. Which Supreme Court Justice or federal judge has most infhicoiced your judicial 
philosophy? 

Justice Sandra Day O'Connor 

You have been nominated to an Ardcle III judgeship. As you know. Article m 
describes the relationship bcnvecn Congress and the federal courts. 

Article III, Section 1 oj'the Constitution provides tiiat "the judicial power of the 
United States, shall be vested in one supreme Court, and in such inferior Courts as 
Congress may from time to lime ordain and establish" 

4. Do yon believe tiiat Ccngress has the power under Article m to limit the 
jurisdiction of title lower federal courts, provided it does so in an otherwise 
constitutional fashion? 

Yes. Congreas clearly has the power under Article III to limit jurisdiction 
of the lower federal courts. 

5. Last year. Congress, using its power Ainder Article III, restricted the discretion 
of the lower federal courts to micro-manage state prisons when it passed the 
Prison Litigation Reform Act. 

Do you have any concerns about the constitutionality of the Prison Legal 
Reform Act? 

The Prison Litigation Reform Act is preaumed constitutional. I have no 
personal or pbiloaopbical views which are Inconsistent with the Act but, as 
in all cases, my personal views would be irrelevant in reviewing cases under 
the Act 



• 13- 



255 



6. In your legal opinion, i:. the 1995 Habeas Coqjus Reform constitutional? 

The Habeas Corpus Beform contained in the Antiterrorism and Effective 
Death Penalty Act of }.996 is presumed constitutional. In addition, in Felker 
V. Turpin . 116 S.Ct 2J33 (1996), the Supreme Court rejected a 
constitutional challenf^e under the Suspension Clause. I have no personal or 
philosophical views which are inconsistent with the changes in procedures 
and other provisions of the Act but, as in all cases, my personal views would 
be irrelevant in reviewing cases under the Act. 

7. If confirmed, you will )>rcside over many employment discrimination cases as a 
federal judge. 

In a suit challenging a (;ovcmment racial preference, quota, or set-aside, will 
you follow the 1995 At larand v. Pena decision and subject that racial preference 
to the strictest judicial :;crutiny? 

Yes. I will follow the Supreme Court's dear precedent in this area. The 
Ada rand v. Pena decision makes clear that race-based categories are 
suspect and subject to strict Judicial scrutiny. 

8. In your legal opinion, how difficult is it for any government program or statute 
to survive strict scrutiny? 

Under Adarand v. Pena . race^based classifications must be subjected to 
"detailed examination both as to ends and as to means." For a government 
program or statute to survive strict scrutiny and to meet the requirement 
that any race-based action be narrowly tailored to meet a compelling state 
interest is a high standard of review. 

9. As a matter of constitutional law, do yon believe that voter referenda should be 
scrutinized more closely by ^e judiciary than laws enacted by legislatures? 

Voter referenda should enjoy the same presumption of validity and 
constitutionality as legislative enactments and should not, because they were 
enacted by voters, be subjected to more scrutiny. 

10. You argued in your mtmo regarding ttue homosexual rights initiative that the 
Republican G\iaxanty Clause prohibits "initiatives tiiat violate the principle of 
equal participation by lU qualified voters in the political process " 

Do you believe that the California Civil Rights Initiative violates the 
Republican Guaranty (Clause, or any other constitutional provision? 



-14- 



256 



According to the Ninth Circuit in Coalition for Economic Equity v. Wilson. 
122 FJd 692 (9th Cir.) cert, denied 118 S. Ct. 397 (1997 ), Proposition 209 
addreitcd race and gender in a neutral fashion and was not a violation of 
the Equal Protection Clause. It would be inappropriate for a federal court 
to address this issue under the Republican Guaranty Clause since that 
would be a nonjusticiable political question under Baker v. Carr . 

11. If not, how do you distinguish it— in teims of the Republican Guaranty Clause— 
from the initiative you :ittacked? 

As a federal court nominee, It would be inappropriate to render an opinion 
on initiatives or referenda which could come before the court in the same or 
similar configuration. By way of general information* I note that the 
initiatives in Washington were very different in scope and subject from 
Proposition 209. Further, the challenge made in the Washington 
Association of Churches litigation was a state court process challenge, not a 
federal court challenge to a state initiative. 

12. Recendy, the American Civil Liberties Union (ACLU) sued the City of Chicago 
over the city's sponsorship of the Boy Scouts. The ACLU argued that the city's 
involvement widi the £ oy Scouts violates the Establishment Clause because the 
Boy Scouts rcqoire a rtligious oath. The ACLU fiutheT argued that the Boy 
Scouts' ban on admittirg homosexuab is dischminatoiy. The city of Chicago 
severed ties with the B >y Scouts to settle the ACLU lawsuit 

Do you agree wi^ die ACLU that state or local government involvement with 
the Boy Scouts violateii the Establishment Clause because of the Boy Scouts' 
religious oath? Do yoii agree with the ACLU that the Boy Scouts' ban on 
homosexuals constitut(.s nnlawftil dischmination? 

As a Girl Scout leader and former National Board member, I have been a 
supporter of youth organizations like the Boy Scouts. I am not familiar with 
the facta in the case n^erenced. I have also read that similar issues related 
to the Boy Scouts are currently pending in courts within the Ninth CircuiL 
Becauae the issues raised by the question could come before the Ninth 
Circuit, it would be inappropriate to render an advisory opinion or view. 
Also, as in all cases, my personal views would not be a factor in any 
decision. 

13 . In your capacity as a member of die Board of Directors and as President of the 
Legal Foundation of V^ashington. were you involved in distributing funds to pro 
bono causes and non-profit organizations? If so, were there limits on the types 
of litigation that the recipients could conduct? 



■IS- 



257 



Under order of the W:«shington State Supreme Court, the Legal Foundation 
of Washington providt^d grants to bar aisociation pro bono programs and to 
nonprofit organizations. Under guidelines approved by the WashingtoD 
State Supreme Court, the funds were limited to use in civil legal services for 
low income, volunteer (pro bono) attorney representation for low income, 
law-related education and alternative dispute reaolution programs. The 
Foundation did not fund political or religious organizations. It is my 
understanding that the federally funded legal services organizations that 
received funds abided by any restrictions placed on them by the federal 
government, whether the money came from the Legal Foundation or the 
federal governmenL 

14. Would you please provide a list of the oigaoizatioas to whom the Legal 
Foundation of Washin^^'ton gave funds during your Tenure on the Board of 
Directors and as President? Were you otherwise affiliated with any of these 
organizations that received fiinds? 

Attachment A is a list of organizations that received funds. I was not 
affiliated with any of the organizations that received funds, except to the 
extent I was a member of the Washington State Bar Association and the 
Seattle-King County liar Association. 



15. 



Would you please describe the litigation and/or advocacy activities that were 
conducted by these groups with funds from the Legal Foundation of 
Washington? 



The Legal Foundation did not attempt to match funding with specific 
litigation or advocacy. The organizations were limited to projects within 
the guidelines approvisd by the Washington State Supreme Court or the 
federal government .Vs a general matter, funds were used primarily to 
provide individual le^al services in family law, domestic violence, landlord- 
tenant, immigration and unemployment cases; to provide law-related 
education to schools; and to create alternate dispute resolution programs. 



■16. 



258 



LEGAL I OUNDATION OF WASHINGTON 
GRANT RECIPIENTS 



BcQtoQ-Fnnklin County Bar Association 

Benton-Franklin Legal Aid S-jciety 

Catholic Comnnmity Service.: 

Center for Democratic Renewal. Northwest Office 

Centre Cimpesino Ixnmigraticm Project 

Chelan^Douglas Coimiy Leg; J Aid 

Chrestos Counseling Center 

Church Council of Greater Seattle 

Clallam County Pro Bono Legal Services Project 

Claii: County Bar Associatioa 

Common Ground 

Community Action Center o1" Whitman County 

Community Boards of Spokane 

Commimity Service Center far die Deaf and Hard of Hearing 

Dispute Resolution Center 

Dispute Resoliuion Center of Kitsap County 

Dispute Resolution Center o:\ Seattle-King County 

Dispute Resolution Center of Snohomish County 

Dispute Resolution Center o f Spokane County 

Dispute Resolution Center o f Thurston County 

ATTACHMENT A 



259 



Eastsidc Legad Assutance 

Education Law Project 

Evergreen Legal Services 

Fremont Public Association 

Gonzaga Law School, UDive5ity Legal Assistance 

Grant County Conummity Action Council 

Grays Harbor County Bar Association 

Housing Trust Fund Coalition 

Iminigration Project of NW C:hicano Radio NetwoA 

International Rescue Committee 

Island County Bar Association 

Joint Legal Task Force on Central American Refugees 

Kitsap County Bar Association 

Law Students Civil Rights Research Council 

Legal Action Center 

Lewis County Bar Associaticin 

Mediation Consortium ofWiishington State 

National Lawyers Guild Stmaner Projects Committee 

Northeast Washington Rural Resources Development Association 

Northwest Immigrant Legal Services 

Nortiiwest Intertiibal Court System 

Northwest Women's Law Center 

NW Chicano Radio 

ATTACHMENT A 



260 

Okanogan County Coinmiiiiit>' Action Council 

Opportunity Council-Voluntc>n- Lawyer Program 

Puget Sound Legal Assistance Foundation 

San Juan County Bar Association 

San Juan County Bar Pro Bor.o 

Seattle-King County Bar Association and Its Programs 

Seattle King County Bar Association Family Law Center 

Seattle King Coimty Bar Association Neighborhood Legal Information and Referral 
Clinics 

Seattle King County Bar Association Volunteer Legal Services 

Seattle Tenants Union 

Seattle Translation Center 

Skagit Community Action A|;ency 

Skagit Cotmty Bar Association 

Skagit County L«gal Aid I*rogram 

Skokomish Indian Tribe 

Snohomish County Legal Sei-vices 

South Sound Advocates 

Spokane Bar Association 

Spokane Bar Association Family Law Center 

Spokane Bar Association Pro Se Clinic 

Spokane County Bar Association Pro Bono Program 

Spokane Legal Services Center 



ATTACHMENT A 



261 



Tacoma-Piercc County Bar Aisociation 

Tacoma-Pierce County Bar Association Pro Bono Program 

Tenants Union 

The Opportunity Council Volunteer Lawyer Program 

Thurston County Bar Association 

Today's Constitution and Yon 

Unemployment Law Project 

United Indians of All Tribes 

University of Puget Sound Ltiw School 

WA Center for Law Related Education LKE Clearinghouse 

Washington Council on Crime and Delinquency 

Washington Immigration Project 

Washington State Bar Association 

Washington State Special Education Coalition, Education Law Project 

Washington State Bar Association Shelter Network 

Whatcom County Bar Association 

Whatcom County Bar Association Pro Bono Program 

Whitman County Bar Association 

Whitman Regional Planning & Resource Council 

Women Judges of Washington State History Project 

Yakima Bar Association/YV/CA Pro Bono Project 

YMCA/Youih and Government 

YWCA of Kitsap County 

ATTACHMENT A 



262 

ywCA- Yakima Bar Pro Bone Program 
YWCA- Yakima Bar Domcstit; Legal Aid Project 



ATTACHMENT A 



263 



QU&STXONS FROM SEMIkTOIt SB65XOHS 
AMSWERgP BY JODGK RICEUOU? L. YOPWC 

Please identify anyone who helped you answer the following 
questions . 

IJo one helped me answer these questions . 

1. In your opinion, what is the greatest Supreme Court decision 
in American history? 

A very important and historic decision was made by the Supreme 
Court in the case of The Dnited States of America vs. Nixon . This 
case stood for and reaffirmed the basic principle in our country 
that no person is above the law even if that person happens to the 
the President of the United States. 

2 . What is the worst Supreme Court decision? 

I belieife the worst Supreme Court decision was che war-time 
case of Korematau V3 . United States . This case validated laws 
excluding citizens of Japanese descent from certain areas on che 
west coast of the United Scatea at the beginning of World War II. 
These laws were valid even as to citizens of Japanese descent whose 
loyalty to the United States was unquestioned. 

3 . Which Supreme Court Justice or federal judge has mosc 
influenced your judicial philosophy? 

I greatly admire Judge Learned Hand, who was a strong advocate 
of judicial restraint. Judge Hand believed in the Constitutional 
separation of powers and that the judicial branch should not 
substitute its opinion for that of the elected branches of our 

government . 

You have been nominated to an Article III judgeship . As you 
know, Article III describes the relationship between Congress and 
the federal courts. 

Article III. Section 1 of che Constitution provides that "the 
^judicial power of the United States, shall be veetad in one supreme 
Court , and m such inferior Courts as Congress may from time to lime ordain atui establish. " 

4. Do you believe that Congress has the power under Article III 
to limit the jurisdiction of the lower federal courts, provided it 
does .'^o in -an otherwise constitutional fashion? 



264 



Yea, the Constitution provides that the Congress has the 
responsibility for making our laws and as those laws are made they 
are presumed to be constitutional. 

Last year. Congress, using its power under Article III. 
restricted the discretion of the lower federal courts to micro- 
manage state prisons when it passed the Prison Litigation Reform 
Act . 

5. Do you have any concerns about the constitutionality of the 
Prison Legal Reform Act? 

No, the Prison Litigation Reform Act as passed by the Congreso 
is legislation that is presumed to be constitutional . 

c . In youi legal opinion, is the 1995 Habeas Corpus Reforn; 
constitutional? 

Yes, the 1996 Habeas Corpus Reform Act ae enacted by the 
Congress is presumed to be constitutional and the federal courts 
are to apply and interpret the law as written by the Congress . 

If confirmed, you will preside over many employment 
discrimination oases as a federal judge. 

1 . In a suit challenging a government racial preference, quota, 

or set-aside, will you follow the 1995 Adarand v. Pena decxsion and 
subject that racial preference to the strictest judicial scrutiny? 

Yes. if I am confirmed as a federal judge, I will follow the 
precedent established by Adarand v . Fena - The Adarand decision 
requires that race or gender based classifications be examined by 
the court using the standard of strict scrutiny. 

8. In your legal opinion, how difficult is it for any government 
program or statute to survive strict sczn^tiny? 

Strict scrutiny is the highest judicial review standard 
imposed by Supreme Court precedent and must be carefully applied to 
any government program. If the program classifications pass the 
strict scrutiny standard, any remedy must be narrowly tailored tc 
satisfy the interest the government program seejcs to address. 

9- Aa a matter of constitutional law, do you believe that voter 
referenda should be scrutinized more closely by the judiciary than 
laws enacted by legislatures? 

No, voter referenda are vehicles established either by 
legislatures or by State constitutions where the majority of 



265 



citizens can express their individual opinion and the majority 
opinion is created as the law. Federal judges should not 
substitute their opinion for that of the will of the majority or 
the acts of the legislature. 



266 



Questions £2:0111 Sanater Aahereft 

Answered, by Judge Richard L- Yoiing 

1. Which currant Supreme Court Justice do you most admire, and 
why? 

I greatly admire Justice Sandra Day O'Connor. I have read 
several articles about Justice O'Connor, and admire her for several 
reasons: 1 admire her courage to begin a general practice of law 
when it was rare to find a woman practitioner,- I also admire her 
desire to serve the public aa evidenced by her service in the 
Arizona Attorney General's Office and the Arizona General Assembly. 
She does not appear to seek a high profile in her worJc as Associate 
Justice, however, she often times provides the deciding vote in 
very difficult cases. She brings common sense to her decisior. 
maJcing. She has the courage and determination to do what she 
believee is light with a good understanding, based upon her 
experience in State government, of the rolee and responsibilities 
of the various branches of government . 

2. What Judge or Justice has most influenced your thinking 
concerning the constitutional separation of powers, and why? 

I, as many lawyers, believe Judge Learned Hand was a strong 
advocate of judicial restraint . Judge Hand was a strong supporter 
of the Constitutional separation of powers and believed that the 
elected branchea of government had a role to fill in our system of 
government and the judicial branch should not substitute its 
opinion for that of the elected branches of our government . 

3 . What does the discretionary power of the judiciary mean to 
you? 

The power of tha Federal Judiciary is determined from the 
Constitution and Acts of Congress. Accordingly, federal judges do 
not have discretionary powers except in some Instances such as the 
nature of sanctions imposed for a violation of Rule 11 of the 
Federal Rules of Civil Procedure. Also, a judge may exercise 
discretion in determining a criminal sentence within a range 
prescribed by the sentencing guidelines. Discration is only 
authorized and exercised where there are alternative methods of 
proceeding which are perraitted by the law as enacted by the 
Congress . 



267 



4 . Which Judge has served aa a model for the way you would want 
to conduct yourself as a Judge, and why? 

The Honorable Gene E. Brooks, formerly Judge of the United 
States District Court, Southern Dietrict of Indiana, served for 
approximately 20 years and I believe is a role model for all 
■judges. I practiced bftfore Judge Brooke ajid have known him 
personally for 18 years. All lawyers enjoyed practicing in Judge 
Brooks' Courtroom because he treated the lawyerB the way in which 
he would want to be treated himself. His judicial temperament 
reflected patience and compassion balanced against efficiency and 
discipline. If I am confirmed Co serve as a United States District 
Judge, my role model in applying judicial temperament will be Judge 
Gene E . Brooke . 

5. Whxch law review article or book has moet influenced your view 
of the law? 

The Federalist Papers . Alexander Hamilton, James Madison and 
John Jay . 

b What role do you think legislative history -- by which I mean 

Che ^'arious committee reports, hearing transcripts and floor 
statements -- should play in the interpretations of the text of a 
statute? 

In interpreting a statute, a judge should first look to the 
plain language of the statute and any Supremo Court and/or Circuit 
Court of Appeals precedent. A District Court Judge should follow 
such precedent in the decision-making process. If there is no 
controlling precedent and the statute is ambiguous, the legislative 
histoz-y may be helpful in determining the intent of Congress 
However, a judge must be careful in relying on legislative history 
as the committee reports and floor statements may represent only 
the views of a few legislators and not necessarily represent the 
view of the entire legislature. 



268 



AnBwarm at Buaan OkJ. Mollwmy fee 
-oueafeleag to A ll CaiiaidMt^B " trtim Ban^to^ Apheroft: 

1. Wfi"*' cuxrmnt Bupromm Court iTtistlea do you xaaat 
adfflira mad why? 

I most admire Jueticea Sandra Day O'Connor and Ruth 
Bader Oinaburg because of the difficulties Chey ovoraamc 
as women lawyers and judgee at a time when the 
profession was almost entirely male. They serve as role 
models for me and other women lawyers, and I am grateful 
to them for having paved the way for my o»nn career. 

2. Mhat Jud9m or ffuatiem bmm moat intlumaamd your 
thiakiag- coaeaxnlaff tbm cooBtitutionml aaparatloa o£ 
powmra, and wby7 

Judge Leamed Hand has most influenced my thinking 
concerning the constitutional separation of powers. Ke 
Is perhaps the most eloquent and persuasive of our 
country's legal scholars to write about the limitations 
on the role of the judiciary in our federal system. 

3. Miat does thm diaarmcioaary power of thm judiciary 
maan to youf 

The discretionary power of the judiciary means the 
limited power of a judge to exercise hia or her own 
discretion in resolving an issue. This power is 
extremely limited and should be exercised sparingly, 
particularly at the district court level, where there 
are layers of appellate guidance. On most matters, a 
district court judge has no discretion and is instead 
boiind by the Constitution, applicable statutes, and 
precedents. Judicial discretion is most commonly 
reserved for matters of court administration, such as 
the setting of trial dates or of deadlines for naming 
witnesses, or for evidentiary matters, auoh as 
determining whether evidence is cumulative or so 
tangential that its probative value is outweighed by 
other factors. 

4 . Vhteh iTUdffe lias eexvad as a modmX £ot tha way you 
would want to eoaduot yourself as a iTudffe, and why? 

Judge Betty M. Vitousek. a former family court 
judge in Hawaii's state court and now retired, serves as 
a model for the way Z would like to conduct myself if I 
am fortxinate enough to be confirmed as a district court 
judge. I admire her for her thoughtful review of the 
Issues presented to her, for her unfailing patience, and 



269 

Continuation of Susan Okl Mollway'e reponses 



for the aoiT^aaelon she ehowed to the litigants and 
attoxneya who appeared before her. Like Juaticee Sandra 
Day O'Connor and Ruth Bader Ginsburg. JXidge Vitousek 
became a lawyer and then a judge at a time when women in 
the legal profession were atill very rare . I have 
viewed her as a role model ever since I paseed Hawaii's 
bar. 

5. Which law review artlalo or book has ao«t 
iaflusaead your vimw of tbm Jaw? 

I have been greatly influenced by J. Thomae 
McCarthy's tnultl -volume treatioe entitled ffcCajrchy on 
Trad&tiArkB and Unfair Caimati txaa , now in its fourth 
edition. I have a specialty In trademark litigation and 
frequently consult this cocrpendiutn of trademark laws and 
eases discussing those laws . I have found Prof asaor 
McCarthy's vast knowledge of the area, hia even-handed 
analysis, and his common -sense approach to be extremely 
helpful to me, not only as a resource In his specific 
area, but also as a model of legal acholarship in 
general . 

6. Mast ralo do you chXok ImglalBtivm hlatory --by 
which X mmma the various eeomiecae report*, huuriag 
tranmerlpCB mnd floor Btatemmatm -- should play Ln thm 
iabarpretatioD of thm fcaxC of a statute? 

The role of legislative history in statutory 
interpretation is limited. Statutory interpretation 
should start with the plain language of the statute 
itself, read with the prestimption that the statute is 
constitutional. When the plain language cannot answer 
the questions that have arisen in a particular case, 
legislative history may be helpful, but legislative 
history should always be read with the reaognltion that 
a committee report, transcript, or statement may reflect 
the views of only one legislator or a few legislators ■ 



270 



Anawert of BuBUD Oki Kollwmy to 

"Addifcii annJ OueatioaB for tta. M ollynV from Sen aCor AB hcroft: 

1. What ware fciia axaot dates of youjr sox-irica oa thm 
Board of Oirsetez-* o/ tii* Hawaii ACLVP 

I waa a Board member from January 1, 1995 until 
Saptiembar 6, 1996. 

2. Hab thm Kawmii ACI.V token a poaitioa am e^e 
laffMlXty o£ mmmm box aax-ria^as? Do you ngrmm wizh eJiat 
poaieioa? 

The Hawaii ACLU hae taken the position that aame- 
eex marriageo are legal. in 1993, in Baehr v. Lewin . 
the Hawaii Supreme Court agreed, holding that the 
refusal to issue a aame-sex marriage license violated 
Che Hawaii constitution's equal protection clause unless 
the State of Hawaii could establish a compelling state 
interest for the refusal . I have not expressed 
agreement or diBagrBsment with that position. I have no 
personal or moral views or beliefs that would prevent me 
from applying applicable federal law if called upon to 
reeolve a federal issue concerning same-sex marriage. 
Baehr did not address issues of federal law. Under the 
United States Supreme Court's decision in Bowers v. 
Hardwiek and under Che Defense of Marriage Act , it would 
appear that same-sex marriage is not legally protected. 

3. Do you have aay doubts about the eosacicuciosaiitx 
ot federal atatutet authorising the death penalty? 

I have no doubts about the constitutionality of 
federal statutes authorizing the death penalty. The 
United States Supreme Court has clearly held the death 
penalty conscitucional. 

4. Xb the SuBBer ot 199S, the Hawaii ACImU puhllahed a 
aewBletter atatlag the group' a oppoaitloa to HX 667, the 
Federal "Btop Tumlaff Out Prlaonera' Act because "[ijf 
paaaed, the Spear priaoa aoaaeat decree which has been 
BO Importaat to Hawaii's priaoa ayatem tflll be 
immeaiately teraXnated.' Do you agree with that 
pesitioa? Xf eo, do you ha^^e aay eooeema about the 
eeascitueiaaailey ot the Priaoa Litigation Reform Act? 
It you dlaagree with the ACLU' a poeitloa, hav9 you ewer 
stated that disaffraamaiit puhllelyf Zt you aead to 
conault the particular statute chat was addressed in the 
ACLU pufeZicatioa in order to answer tbia guastion« 
pleeae feel tree to taice the time to do so. 



271 

Continuation of Susan Oki Mollway' s responsee 



Z eenaider the Prison Litigation Reform Act, like 
other laws passed by Congress, to ba presurrgptively 
constitutional . I have never expreaeed agreement or 
disagreemant with the ACLU' b poaition on this subject. 
which had been determined before I joinad the Board. I 
hesitate to form an opinion at this time relating co the 
BSSBX. case or to the Prison Litigation Reform Act as the 
^ggy case is pending before the very court on which I 
hope to ait. However, I am aware that the Prison 
Liitigatlon Reform Act has been held conseieuelonal 
outside of Hawaii ■ 



5. Za tbm Bwtmar o£ 193S, the Bawmli ACLU publimbmd m 
aowalottmr mtmt:iag tha group' a opposition to a local 
exdiaaisce bimaing alampiag in public parts everaiffbt. 
0e yeu agrmm with that poaition? Z£ you diaagrmm with 
thm ACLWa poaition, iiave you evar seated t^at 
dlsa^roaaaBe publicly? 

I took no position on the matter one way or the 
other, as it did not come before the Board for approval 
or other action. 



S. Xn mmrliar (January 2S, 199S) zaatimony coneaming 
the erdlaaaoa^ etas Exeeutiva Oireeter ot tha Hawaii aclu 
fVaoaaaa Cbonff) taetitiad that tha ordinance raiaad 
"eouatitutional conaama." What eoaatitutional eonaame 
would you iiaw a^ont sueh an ordinance? Z£ you need to 
eoaault the particular statute that was addrasaod in tha 
xeZiU publiaatian in order to aaswer ehia guaation, 
please gael free to take the time to do so. 

\ 

The proper approach to review of an ordinance la to 
analyse it on grounds other than constitutional grounds 
if at all possible. Any constitutional analysis of chle 
matter must recognize the right of a legislative body to 
inpose reasonable limits on access to and use of public 
facilities. This right must be balanced against the 
legislature's responsibility to avoid overbreadth in 
such restrictions. 



7. Xn Che Suaater of 199S., the Bawaii ACZU publiahmd a 
aawslsfttar statiair the group' a support for reyiaiooa to 
the Sawmii criminal coda tiaat would lari^ely allalaaee 
a»Bdatoxy minlmnai saateaeas. Do you agree with that 
poaition? Xf ao, do you have any eoncama about thm umm 
ot mandatory miaimuma in the tjnited atatea CodsP If you 
diaagree with the XGLXt'e position, hawe you ever sCatad 
that diaagreeatent publicly? It you need to eonaulc the 
partiaular atatute that was addressed ia the ACX.a 



-2- 



272 

Continuation of Susan 0)ci Mollway's reeponBee 



publiaatioa ±n order to aatwmr this qumatioa, plm^ea 
teal frmm to tmkm thm tiae to do no. 

1 have no concern about enforcing any mandatory 
minimum sentence that Congresa has set . I have no 
personal position on the revialons proposed in 193 5 to 
Hawaii's criminal code with respect to mandatory minimum 
sentences and have never studied them. I have never 
stated agreement or disagreement with the ACIiU* a 
position on this subject. 

8. Xo Jaauary 1B9S tmBtimoay mgalaat th« ewmauni ty 
nofcl^riaatioin pjrovisiozia eoataiaad ±n pmading box 
offandmr lmgi.alati.oa, tha £xeeutiva Director of tho 
Kawali ACtO (Vaneaaa Chang) ceaeltimd zhat "[iJf a court 
aaa ba eoBviaamd that thm aoaanutity ootlficatioa la 
puaiohatmBt, than tba ceavlocsd box otfmadmr la matltlmd 
to thm pi-otaetloD of duo proaaaa" and aotlflcatloa may 
ralaa doxihle jaopardy eoneams. If coaflxmmd, could you 
he "eoaviacsd that thm coaaunity notifieatioa la 
pualahmoatT' If you naad to consult ths paartieular 
Btatuta that waa addreaamd la the ACX>I7 teatlmoay la 
order to oaswar this guastioa, pinase fmml free to taJcs 
thm tlmm to do ao. 

1 have never taken a position on this subject and 
do not have a settled position at this time. I am aware 
that the validity of the State of Washington' a community 
notification law has been upheld by the Ninth Circuit . 
I am concerned that this is an issue that is being 
actively litigated in the federal courts and is likely 
to come before me if I am confirmed to the federal 
district court bench. Z therefore think it is 
appropriate for me to refrain from prejudging the 
matter. 



9. la February 199S teatlhoay la eupport of 
leglalatloB expanding the rlghta of private eatployeea, a 
represeatativs of the AChXJ (Patrick Taamae) atatmdi 
'the ACLU oppoama raadeiB aad iadlserlaiaate dru^ tastla^ 
In the workplace not only on privacy grounda, but aleo 
baeauBe eueh drug teatlag doeo not detect aurrant 
Impalxmmat. * Do you agrmm with that atataaent? Xf you 
dlaagrme, have you ever stated your dlaagraement 
publltily9 Do you fool that rsadom drug tea ting of 
private mmployeee ralaea any oonatltutlonal coneemB? 
Hev B^eut drug Ceating by public employere? Bow abouc 
aandatory drug tmating of all lamatea or mandatory poet- 
mrreat drug teatlngf J£ you need te eoaault the 
particular statute fciiat was addrassad la the XCLV 
teatlmoay la order to aamwer tbla qumatlon, pleaae feel 
trmm to take the tiae to do so. 



273 

Continuation of Suaan Oki Mollway's rcBponeea 



I do not have a peroonal poaicion on thia subject 
but I am aware that, in National Treasury Employees 
Union V- Von Raab . the United States Supreme Court 
upheld the constitutionality of drug testing of 
en^loyees in certain eircuroscances. vty own personal 
experience with the issue of drug testing came not as a 
member of the Board of the Hawaii ACLU but rather as an 
attorney at a law firm that from time to time advises 
employers on what drug testing measures may legally be 
implemented. It le my understanding that drug testing 
issues oommonly arise in foderal diotrict oourt cases 
and are likely to come before me if I am confirmed as a 
judge. I therefore hesitate to form an opinion at thio 
time on such issues except to state that I have no 
personal views or beliefs that would prevent me from 
following applicable law. 

10. Xd Jfaz-cii 199S, a jreprsAeatBtlve of tJie Sawaii ACLU 
(Kirk CaAJuDsrej testified affminmt a bill In thm Hawaii 
BmnatB whiab would iiave aisadafced HIV tmatiag at 
iadi'^i^umlm isdicfced £oar cartain erlmaa iavoivla^ aaxuai 
assault. Tb» ACLO zwprasentacive testified eiiaC 
'lajmriotio eoa«titueioiaai gueseioas are raimmd by 
parmltting tmmtiag at thm indiefcrneafc atagm rather Chan 
at tha eoavieeiea sta^e, * and tiiac 'thm scare would be 
hard prmmaad to artiaulaca a aoaipalliag govemamat 
±BCaraat ±d tmatlng thm assailant. ' Do yrau agraa with 
ebmam Btatammata? X£ you diaagrma, Jbaw you ever atatmd 
yowe diaaffraamaut publlelyf Do you £mml that a policy 
of mandatory HXV taatiag afc the ladlctmant atagm would 
violaCe the Otaited fltatss or Havaiiaa Coaseieueioas? If 
you Bead Co consul C the par-eieular sfcafeuta eiiat was 
addrmaaad in thm ACXtU taaelmony ia order to answer thia 
gueatloB, pleaam fmml tram to taJbe tha cirae to do so. 

I maintain a completely open mind on the question 
of whether a policy of mandatory HIV testing at the 
Indictment stage would violate the United States 
Constitution or the State of Hawaii eonacitution. I 
recognize the convening need of victims of crimes to be 
promptly informed of the HIV status of assailants who 
may have Infected them. I have no views or beliefs that 
would prevent me from following applicable law on this 
or any other sub j ect . 

11, Xb J'anuaxy 22. 1996 tmatimoay a reprasoacaeive o£ 
tha Hawaii ACIAJ and the Coalition £or Xgualifcy aod 
Di^areity (Vanaeaa Choagi tmmtlfimd in favor of aamm-eax 
marriagm mad agaiaat attorta co aaiand the Hawaii 
Coamtitutioa eo overrule tiaa at feet of Baahr v. Iiewin. 
Xa that tostimoay, thm ACLO repramaatatlve atatad: 
'liawa that dlBerimiaatm baaed oa thm aaxual erieacaCioB 



274 

Continuation of Susan Oki Mollway's responaeB 



««-« ma z-«praia«BsibIs me Imwe chat at one timm protected 
mmffrmffmtioD, dmaimd woraaji tfaa right to vote mad 
probibltad iBtor-raeXml mmrrXaffm. * Do yeu ayra* witJi 
thia acatamaac? If you diaaffrae, Aave you ever a 68 ted 
your dimmffrmmmmat publicly? Do you feal that lawa 
liaitlns the reeegnitioa oi tamm-aax mmrriagmB poem mny 
conmtltutiooal problamm? It you ommd to ooaault thm 
particular atataaent in ordmr to aaavar thia Quaatioa, 
pleaam tmml trmm to tmkm thm tiata to do ao. 

I took no poaition on the statement, eithar by way 
of agreement or disagreement. The Hawaii ACLU' a 
position on aama-aex marriage had been adopted long 
bofoz-e I joined the Board and wao not a matter that came 
before the Board for re -examination while I ocrved on 
the Board . 

If confirmed as a judge and faced with a case 
involving oame-Bex marriage under federal law, I would 
follow governing tederal law. The United States Buprcmc 
Court held in Bowerp v. Hardwiek that homosexual 
activity is not protected under the federal 
Constitution. Prohibitions on aame-sex marriage are 
also permitted under the Defense of Marriage Act . 



-5- 



275 



Aaawcm at Suaaa Okd. Hallway fce 

^Pollovuv Pueaelana fox- Buaan Ofci Mollwmv' bv 8mnatoz- BmmaloaB : 

1. ,Bmmm-Bmx Mmrrimfme 

la cumpouam to pravieua qummtioaiag bmfojrm thia 
Coaamiteae raffmrdlnff your rolm is tbm eamm Bmmhr v. 
Xiovla, you atated that you playmd no rolm ia thm 
litiffation. Uawo'var, during tho tla« that you ware a 
Board maabar, the ACLU aceeuEive DlFmator, VanoBBa 
Choag, lobbimd tho Brnwrniimn Imgimlaturm advoeatias- thmt 
gay and laabian eouplaa ahould ba fftvan tho aame atate 
riffhta aad px^ivXlmgme oojoyad by all narrisd couplma, 
mad aupportiaff th« bill ia thm RawaiJLaa Imgialaturm 
ImgallBinff mama-Bax marrlaffag . I have a tmw tjuagtiona 
xagarding thm AClAJ'e eoaCiau^d support of Imgialatian 
Imgallming aame-Bmx taarelagma and your involvameae ifi 
ciiae Bupport. 

As you waro a Board maabar whma thia lobbying was 
occurring, did you havm any part ia tbm dmaimion to 
support tiia Hawaiian bill to legaliae aame-aax 
marriagmaf 

- If BO, what waa your opinion? 

No. I had no port in the decieion. 

Haa thm ACLU bmma involtrmd in Imgal proammdinga 
involving thm issus of Bonm-aax marrimgrna ainem you havm 
boon a mmabmr of the Board? 

Yes. During the time rhac I was a Board member, 
Baehr v. Lewin was on remand from the Hawaii Supreme 
Court for a determination as to whether the State of 
Hawaii had a con\pelHng atate interest in prohibiting 
same -sex marriage. 

Has the ACLU officially voicad its poaitioa or andoraad 
the legality of Bomm-amx marriagma aincm you have boon a 
Board aombar*? 

Yes. 

- If BO, «s a Beard mmmbmr waa your opinion, legal or 
otherwiae, mlleXtmd in forming an official ACLU poaicios 
oa tha Imgality of aame-aex marrlagea? 

No. 



276 

Continuation of Suean Oki Mollway'e reponses 



- If BO. vhae vas your oplnioat 

- If Dot, waz-s othar Board amabmrm involved in 
fomifZatlngr ao official poaiCioaP 

Ko, as far ae I know, orher Board membera were not 
involved with formulating an official position while I 
was a Board member, as the position had been formulated 
earlier. However, other Board members Ber-««d on the 
litigation and legislation committees, which implementad 
chac previously deccrmlned position. Thus, other Board 
members prepared and presented legiolative testimony, 
and drafted press releases and related materials . I did 
not participate in any such activities. 

2. ruH-Paitb t Credit 

Do you believe thB Conmtltution' a Full fMlth aad Crodit 
ClMuam regruirss states chat have iiiseoriealiy only 
recognijied opposite-«ex jDarriayes Co laffmlly rBCogniBo a 
aamo-soac mar-Tlaffo aaaetioned ^ Bawmiit 

The Dafansa of Marriage Act permits a state to 
refuse to recognize a same-aex marriage performed in 
another state. I have no personal or moral views or 
beliefs that would prevent me from following applicable 
federal law if called upon to resolve a federal iaeue 
concerning same -sex marriage. 

0^euld eae staee's iavs reguiaciag thm inatitucioa of 
mmrrirngm be subrogated to the laws of aaetJaer state if 
the seeead «tafce ehoosat to saaefciea aoa-fcradifcioaaJ 
unioas of m»rT±»ffB9 

The Defense of Marriage Act provides that one 
state's lawa regulating the institution of marriage need 
not be subordinated to the laws of another state that 
chooses to permit a non-traditional marriage. I have no 
personal or moral views or beliefs that would prevent me 
from following applicable federal law if called upon to 
resolve a federal issue concerning same-sex marriage. 

Based oa public policy, do you h^lim'^o staces Itsve a 
rigiit fce p»ma lawa rmflmetlnff tbe tradicioaal aoral 
holiofa of iea elzlmona, such as lavs prohtbltitiff aamo- 
amx aartrlaffom? 

- Xf BO, dees a stats bavs a right to proteafc its 
marriaffm laws by refusing' Co taeagniaa a marrlaffo 
saaoeloaad by maothmr stats if tbe amrTimgrn would be 
probibitmd under Cbac state's aarrimsm lawa? 



-2- 



277 

Continuation of Susan 0)cl Mollway's reponaeB 



In the Defense of Marria§e Act, Congrese has spoken 
to this Issue. The Defense of Marriage Act provides 
that a state has the right to refuse to recognize a 
marriage sanctioned by another state if the marriage 
would be prohibited by the first state's marriage laws. 
With respect to the mention in the question of public 
policy, I would not consider it my place, if I am 
confirmed as a judge, to formulate public policy. I 
would defer instead to the legislative branch of 
government bo do that . 

Do you ballBVe iiamosexuale iiavo a aoBBtitutional right 
to marry? 

- If BO. do you baliBVB that states az-s ragulrtid undmr 
tb» Coastitutioa to ahan^m mxlaclng l»w» prohibiting 
aamo-BOM marriagaBf 

In Bowers v. Hardwielc . the United States supreme 
Covurt held that homosexual activity is not protected by 
the federal Constitution, and in the Defense of Marrxage 
Act, Congress has rBeogni2ed a state's right to refuse a 
marriage license to a. eame-sex couple. If confirmed, i 
will follow applicable federal law on the subject. 

3. AChU Fuad-ralalng 

In your fund-rmialag matiyfitlma for tha ACXtCr, have you 
diaeuaamd IfiCb doaora iaauaa or poaltiane endorsed by 
tbm ACLUr 

My fund-raising activities sought support for the 
AdiU' 8 central mission of preserving our precious Bill 
of Rights. It was that central mission, rather than any 
particular litigation or legislative proposal, that drew 
me to the ACLiU. I frequently asked donors Co contribute 
a dime for each word in the Bill of Rights, or to 
increase the previous year's per-word contribution. I 
vaguely recall that one person from whom I requested a 
contribution declined to contribute because of a 
particular ACLU position that the person disagreed with, 
but I cannot recall what the particular position was. I 
did not debate the position with the person and simply 
accepted the person' s decision not to contribute . Other 
than ehac single instance, I do not recall specific 
isHUes or positions arising during my fund-raising 
activities. 



Have you beon asJced by doaora Co mlmbar^tm or diaauaa 
ACLV poaitiona on iaauma? 
- ze ao, wbleb laauoaT 



-3- 



278 



ConcinuaCion of Susan Oki Mollway' e reponees 



I do not recall being asked by donors to elaborate 
or dlscuas ACLU pooitions on ieaueB. When any 
discuBslon was required beyond my request for a 
contribution, my approach waa to focus on the ACLU' o 
broader mission of preser-v^ing the Bill of Rights. 

4. DmMth Poumlty/Mawaliaxi Sovrnxmignty 
In your quaafciosaaix-s, you wnte th^t Bmnutora Xaouys 
and AfeaJca aaked you quamtioaa re the deatJi pmaalty, 
Mbortloa, aad Kafclve Hawaiima ieeuaa. Roffajrdtsff 
tl»wmlitui Aoveraigaty^ you aaevmrmd tJaac these caaea 
ofcaa fallad Zo ovareoae ^urindiatieaai eJiaileagrea- 

Aa a di.at.xiat Jud^a, Jio«r would yeu rule on a caae chac 
oV9rcama jurladiecioanl ohallen^ea ojad vera Jbe^ora yeu 
aballmnfflnff the Btazua of Hawaii' a atmtmhoodT 

This queetion raisea the kind of issue that has 
been brought to Hawaii's federal district court, so I 
hesitate to offer an opinion. However, 1 vuideretand the 
question to be raising the issue of whether matters are 
political and nonjuBtJ.ciable or within the jurisdiction 
of the federal courts, and, aa I told Senators Inouye 
and Akaka, I would certainly guard the limits on federal 
jurisdiotion with great care. 

Do you thliOe Bmwmll, or any athmx atata, has Che right 
to amamdm from the XJaitad Btabaa? 

No. Given this country's history with raapect to 
aeoeBBion and the resulting Civil War, 1 have difficulty 
identifying the source of any claim of a right by any 
state to secede from the United states. 



279 



AamwrB of SuBun Oki Hallway to 

Addltloaal Ouvati ona tram Smnator SaaaionB: 

1. Id your lmff»l opinien, ia the Priaoa Legal Reform AcC 
eoamtitutiojinl? 

Yes. This law la presumed to be constitutional. It has 
been upheld by several appellate courts ( e , .cr, . Hadix v. Johnson . 
133 F.3d 940 (6th Cir. 1998); Ben-lamin v. Jaeobeon . 124 F.3d 162 
(2d Cir. 1997); Plyler v. Moore . 100 F.3d 365 (4th Clr. 1996), 
c^rt. den. . 117 s. Ct. 2460 (1997)). I have no personal views 
that would prevent me from following applicable law in this or any 
other area . 

2. Id your leffal opinion, ig tJia 199S Htbeaa Corpus Refom 
conatitutioaal ? 

Yes. This law Is presumed to be constitutional. It has 
been upheld as constitutional in FeDcer v. Turpin . 116 S. Ct . 2333 
(1996) . Again, I have no personal views that would prevent me 
from following applicable law in this or any other area. 

Xf confirmed, you will preaide over many employmmnt dieerimin»tioa 
eases as a federal judge. 

3. Zd a auit ahallenffioff a ^^ovsjnunenfc racial preference , 

Sota, or set-aside/ will you fallow the 199S Adaraad v. Pena 
eieion and aubjeet tbit racial preference Co the striofcast 
judicial scrutiny? 

Yes, if confirmed, 1 will follow Adarand v. ^ena and 
subject any government racial preference, quota, or set -aside to 
the strictest judicial scrutiny. 

4. In your legal opinion, how difficult ia it for any 
government program or statues Co survive strict scrutiny? 

It is extremely difficult for a government racial 
preference, quota, or set-aside to survive strict scrutiny. The 
program or statute must be narrowly tailored to meet a compelling 
state interest. Aglarand v. Pens maJces it clear that this is a 
very heavy burden to overcome . 



50-531 98-10 



280 



Continuation of Suaan Oki Mollwaye responseB 



5. IB the California Civil Stlghta Jaitiaeiva 
eoaaCitufeionalP 

YeB. In Coalitio n for E9(;>nomic Ecruitv v, Wileon . 122 
F.3d 692 (sch Cir.), cert, den. . 118 S. Ct . 397 (1997), the Ninth 
Circuit upheld the initiative. 

€. Xa there a eeaatitutiesai right to ^oooaexual marriage 

uader Che U.S. CosacituCioc? 

Bowere v. Hardwiek . 478 U.S. 185 (1986), and the Defense 
of Marriage Act, which ia presuii^tively constitutional, indicate 
chat there is no constitutional right to homosexual marriage under 
the United States Constitution. I have no personal belief that 
would prevent me from following applicable law in chis or any 
other area . 



281 



JUxawmra of Buman Qki Mollwmy fco 
■Puagtioaa hv flenator T bumoad for Me. Buatm Oki Mollwm'r-i 

1. Mm. Mollwmy. do you balievo chat ehe dmath penalty 
mbould be hmld uaeoaaeitueloaal? 

No. The United States Supreme Court has held chat 
thQ death penalty ie constitutional, and I would follow 
the holdings of the United States Supreme Court. If I 
am BO fortunate ae to be oonfirmed ae a judge, I would 
refrain from i-uling on what "should" ba held 
unconotitutional and would inotead look at what iB and 
is not constitutional. 

2. In Fmbrumry 1997, tbm Afflericaa Bar Aaaoelatlatx 
adoptmd a rmaolution raeoamendtng that rmdaral and atatm 
jiix-i.adi.eti.ona atop Impoaiag thm daafcb pmaal^y until 
various ABA guidBllams arm mdoptmd, aueh aa aome 
x-ogardlng conpatoaaa of aouaaml. Do you agrmm with the 
ABA that a moratoriua abould be plaosd on tho impoeition 
of thm daath penalty? 

I have not studied the ABA'b resolution and dad not 
participate in the ABA's discuasion or passage of that 
resolution. However, the united States Supreme Court 
has held that the death penalty ie constitutional I 
have no views or beliefs that would prevent me from 
following those precedents. If i am confirmed as a 
judge. I would focus on applying the law, including the 
law applicable to death penalties, rather than on 
changing the law. 

3. X undarafcaad that you aarvad on the board of 
dlraetara far thm Hawaii ACLU for eloam to twe years. 
Plmaam Mplals why you became aetivmly iavoivad with tbe 
Hawaii ACXtU. 

I became actively involved with the Hawaii ACLU 
because of my great interest in preserving the freedoms 
granted by the Bill of Rights. This interest was 
influenoed to a large degree by my family background. I 
am a aapaneae -American. My father, bom and raised in 
the United States, left high school to volunteer to join 
the Japanese -American unit of the United States Army in 
World War H. This unit, the 442nd Infantry, became the 
most highly decorated unit of its size as its members 
sought to prove their loyalty to the country that had 
interned American citizens and resident aliens of 
Japanese ancestry out of an unfounded fear that they 
would aid Japan. My parents' commitment to preservation 
of the Bill of Rights was born from this history, and I 
could not help but be influenced by it. 



282 



Continuation of Suaan 0)cl Mollway's reponsee 



I did not become involved with the Hawaii ACLU to 
promote and I did not promote a particular ease or 
specific legislation. My activities were in the fund- 
raising area. In fund-raising, instead of stressing a 
particular lawsuit or a particular piece of legislation 
supported by the Hawaii ACLU, I focused on the ACLU' s 
primary goal of preserving the Bill o£ Rights. I 
frequently asked donors to pledge a specific amount for 
each word in the Bill of Rights. 

4. Are you awaxe ot any eases takaa or amicus hrimfa 
filmd hy thm Havail AChV during your iavolvaunaiit vith 
tha orffmaisaclon that you did not Mgrmm with; in othar 
wards r vera thors cbbbb or amuBma that it would not hava 
ta^aa had tba dmaiaion baaa youra to maka? 

I am not aware of any such cases but am also 
unfamiliar with many of the numerous matters addressed 
by the Hawaii ACLU while I was a Board member. Intake 
of cases and preparation of amicus briefs were delegated 
to Che litigation committee, which did not seek Board 
approval for such actions and never provided me with 
copies of any materials filed with any court. Z was not 
involved with the setting of any Board position on any 
litigation. I have no basis on which to make the 
determination requested. 

5. t/mrm there any offieial positions of ciia Mmwaii 
ACLU OB lagal iaeuma. auoh aa tha daath pmoMlty or tba 
aeope of tha right to privacy, during your iavolvejseat 
vith tha orgaaimation that you did not agraa with? 
Plaaaa explain. 

I am not familiar with all of the Hawaii ACLU' s 
official positions, primarily expressed in legislative 
testimony prepared by the legislation committee, on 
which 7 never sat . Such testimony was not submltced to 
the Board for approval or even distributed to Board 
members . I was nevar asked whether I agreed or 
disagreed with the Hawaii ACLU' a positions on particular 
litigation or legislation and 1 never expressed an 
opinion on those matters . 

6. In your Banata gueseionxiairs, you diaeuamad 
quBBtioaa you Wara aakad whan you wmra haing aonaidarad 
for thia judgaahip, ona ot which iavolvad Native 
Bawaiian aowarmignty issue*. Vhat arm important Kati^m 
Rawaiian ao-varaigBty iaeuaa today, oad what is your 
poBitioo on chaaa issues? 



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283 

Continuation of Suaan OJtl Mollway's reponaea 



Among the Native Hawaiian eovereignty Iseues thei:: 
are in the news today are mattere concerning Native 
Hawaiian aelf -governance (the subject of a recent 
plebiscite held by Native Hawaiiane) , title to land, the 
rights of Native Hawaiians to gather native flora and 
fauna on private and public landa, and Native Hawaiian 
claims to the inoome from lands ta)cen from Native 
Hawaiians. There is pending litigation concerning eomc 
of these and other Native Hawaiian isBuee. and there la 
public debate about various legislative proposals, 
Including a major proposal by a state legislator that 
was recently withdrawn after receiving substannial 
criticism from the Native Hawaiian community. Bccauoe 
Native Hawaiian sovereignty issuss are likely to come 
before the federal courts, I think it would be 
inappropriate for me to formulate and express opinions 
on these matters. 



284 



Anawmrp of Suaan Ok± Mollvay eo 

l^d^xtior^al OueBtiona from Senator Tburaoad: 

1. Ms. Hallway, in rmapooae to en* of my qvettlona about 
tbm ACJsXJ, you BCmemd, "X hoeame actively iavoivad in tha ACLO 
bmeauaa of my ^rmat iazoroat in prca^rviuff the fraedoma granted by 
tbe Bill of Riffbca. * Wbieb apeeifie fraadoaa did you believe ware 
under the graataat threat aad wbicb are uadar tbe yraataat threat 
today f Plaaae oi^lain. 

At: the time I became involved In the ACIjU< I was moat 
concerned, and remain most concerned today, about preeerving the 
freedoms guaranteed by the First Amendment (particularly freedom 
of speech and freedom of religion) and by the Fourteenth Amendment 
(particularly the guaranty of equal protection under the law) . I 
believe that vigilant protection of our First Amendment and our 
Fourteenth Amendment rights will prevent a reoccurrence of 
governmental acts such as the federal government's in^risonment 
during World War II of American citizens and resident aliens of 
Japanese ancestry. The Japanese-American experience during World 
War II had a profound influence on my parents' beliefs and on the 
values they passed on to me and my five brothers and sisters . 

2. Ha. Hollway, in reaponae to my quaatioa about Che deatb 
penalty you atated that the Supreme Court baa held that the deatii 
penalty is eoastitutioaal and that you would follow tba boldinga 
of the Supraae Court. Do you believe that tbe reaaoalng tbe 
Supreme Court baa eatabliabed in finding tbe death penalty 
aonatitutional Co be legally sound and appropriatet 

Yes. the reasoning that the Supreme Court has 
established in finding the death penalty eonetitutional is legally 
sound and appropriate . | 

3. Ha, Hollway, io raapoaaa to my queation alaout a February 

1997 Jiaariean Bar Association resolution reoommendia? a aorafceriua 
on tJie deaeh ponaley until various ABA guidelines are adopted, you 
responded that you bad not studied that resolution. Please 
evaluate tiac resolution and explain Mbether you support tiiis 
approach to the death penalty. 

No. The resolution is an overly bread approach to the 
issue of capital punishment, which the United States Supreme Court 
has held to be constitutional. If confirmed as a judge, I will 
follow the law in this area and consider the many factors 
particular to any capital case in evaluating issues before me. 



285 

Continuation of Susan Oki Mollway's responses 



4. Ma. ItoUvmy, what do you bellavo h»m bman tb» worst U.S. 

Suprmmm Court dcelaloa S.n tba laat half eantury, and why? 

Although it was decided just a few years before the last 
half century began, the case that comes most readily to my mind is 
Kpr?mat^ , u v. United Sta^eq . 323 U.S. 214 (1944) . This case upheld 
the incarceration of American citizens and resident aliens 
selected on the basis of their Japanese ancestry. I have been 
tremendously influenced by what 1 view as the incorrect decision 
in this case. 



-2- 



286 



Aaawurs o£ Buaaa OUti Mollway fco 

'Oumatlo am tor MM. JTolHrav- ±)V flenacojr Hatch; 

Pleass idmatify mayoom who bolpad you anavar Khe i 

followiaff questions. I 

Editorial coratnenta were made by the staff of the 
Office of Policy Development, but I am the sole source 
of the Bxibstance of all of my raeponsee. 

1. In your opinion, wbat im the ffrencaat aupreme Court 
decimlon in Amuriamn history? 

It ia very difficult for tne to aelect a single 
deciaion, but I certainly consider p yown v. Board of 
Education to be one of the Supreme Court ' s roost 
significant decisiona. 

2. Mbat is the voxst Buprane Court deaisionV 
Korematau v. Unitad StateH . 

3. Which Buprmmm Court Justice or fedarml ^ud^a hms 
most influenced your judicial philosopbyT 

I have bean moat Influenced by Judge Learned Hand, 
who has written at length on the limits placed by the 
Constitution on the exercise of judicial power. 

You have been seoiaated to an Artiale ZXX 
judgeship. As you know. Article IXZ describes the 
relationship betveea Congress and the federal eourta. 

Article IXX, Beation 1 of the C€anstitution provides 
Chat "the judicial power of eiae United Btatas, shall be 
vested ia osa aupx-eae Court, azxd la auab Inferior Courts 
aa Coagraaa Biay from tine to tlaa erdftla and astabliali." 

4 . Do you believe that Congress has the power under 
Krtiale XII to limit the jurisdiction of the lower 
federal eourta, pxovidad it does so in an otiiarwiaa 
eoaatlfcueloaal fashion? 

Yes, Congress has that power. 

Iia«e year. Congress, using Ita power under Article 
XII, reatriated the discretion of the lower federal 
courts Co niaro-naxiege «tafee prisons when it pemmed the 
Prison Ziieigation Reform Act. 



287 

Continuation of Suaan Okl Mollway'a reponaea 



5. Do you bBvm any eoaeerns &bout tha 
eoaatitutioaality of tbe Primon Ximffal Rmtorm Aat? 

I prasume the Prison Litigation Reform Act to be 
constitutional. Given the pendency in Hawaii's federal 
district court of a case that resulted in a consent 
decree that is now being monitored by the court , I 
hesitate to form any further opinion on this issue at 
this time. However, I am aware that the Prison Legal 
Reform Act has been deemed constitutional in litigation 
outside of Hawaii. I have no personal or moral belief 
that would prevent me from applying tha governing law 
with respect to prison litigation or any other matter. 

S. Id your lo^al oplnloa, 1b the 1995 Hahm»g Corpus 
Jtafozn eoatfcitutioaal? 

I pz-eoume the 1995 Habeas Corpus Reform Act to bo 
constitutional. As this is a matter that is likely to 
come before a federal district court judge, I hesitate 
to express any opinion beyond that presumption. 
However, I have no personal or moral belief that would 
prevant me from applying the law governing habeas corpus 
issues . 



Xt eontixmad, you will prmaide over mmay omploymmut 
diaeriminatioD ease* as a tedaral judga. 

7. Xb a suit chmllojiffiaff a govanaaDt racial 
prafmrmaea, guoea, or sst-ssida, will you Collow che 
1995 Adarand v . Pana daelalon and aubjoat that racial 
prataraaea to die etrletaat judielal aeruzlay? 

Yes, in auoh a suit I will follow Adarand v . Pena 
and apply the strict scrutiny standard that governs 
classifications based on race. 



a. Xa your laffal opinion, bov difficult ia it tor any 
govamnant program or seaCuta to survive strict 
acrutiayf 

It is extremely difficult for a program or statute 
to survive strict scrutiny. The program or statute must 
be Bupportad by a compelling otate interest and must be 
narrowly tailored to meet that interest. 



9. Aa a mnttar of ctanati tutioaal law, do you ballavm 
tbat y^otar rataraada should bo scrutialxod laorts alomely 
by tba judiciary than laws aaaecad by lagialaturaa? 



288 

Continuacion of Suaan Oki Mollway' e reponaee 



Equal deference ohould be given to referenda 
resulta and to lawa enacted by legislatures. Both are 
preBumptivaly conBtitutlonal . 

10. Do you have any eoacems about tJia 
eonstlzueioaality of thm Cmllfomim Clvi.1 ttigbta 
Xnitiati^B? 

Although I have read news reports about the 
California initiative, I am not lamiliar with the exact 
wording of the initiative, with California's procedural 
requirements for initiativaa, or with all of the other 
relevant circumstances. For rhoae reasons, I am unable 
to state an opinion on this subject. However, I am well 
aware that the Ninth Circuit has upheld tha validity of 
the initiative . 

11. Jtaeantly, tho Jtaariaaa Civil Libmrtlma Iteion (ACZ.U) 
«uad tbm City of Cbiamgo ovar eba city's apaamox-mbip of 
tba Boy Baouta. Tba ACLV arffuad tbac cba eleya 
iavolvamone wltb tiia Boy Baouta violates tba 
Eatahltabmant Clauaa baeauaa tba Boy Beaut a rvquiro a 
raliffioum oatJh. The ACLU furcbar arguad tbmt tba Boy 
Baouta' baa oa adalttiag bomoaaxuala la dtaevinioatory. 
Tba aity of Cbieago asvsrad time witb tba Boy Beouta to 
aattla tbm ACLO lawauit. 

Do you a^raa vith tba ACLU tbat atata or loeal 
ffovamnant iavelvanant with Cha Boy Baouta vXolataa tba 
Batabllabatant Clauae baeauaa of tba Boy Baouta' 
rali.gi.oua oatb? Do you a^raa witb tba ACIiV tbat tba Boy 
Baouta' baa aa bomoaaxuala eonetitutaa ualawful 
diaariminatlonr 

These are not issues with which I was involved or 
on which I have taken a position. I hesitate to 
formulate an opinion as these or similar issues would be 
likaly to come before me if I were confirmed as a 
federal district court judge. If I were faced with such 
issues, I would disclose to the parties that my seven- 
year-old son is a member of a Cub Scout pack and that my 
present law firm has for yaare contributed very 
generously to the Boy Scouts . 

12. Do you have any aoacerzrs about tba 

eoaatitutioaality of atata lawa tbat prohibit aana-aajc 
marrimgaf 

If appointed as a judge, I would follow applicable 
federal law on this issue . I am familiar with Bowers v. 
Hardwiek . in which the United States Supreme Court held 



289 

Continuacion of Susan Oki Mollway" b reponses 



that homoeexual activity is not protected by the federal 
Constitution. In addition, CongreaB has apoJcen on thiB 
Bubject in the Dafenae of Marriage Act, permitting one 
state to refuse to recognize a same-aex marriage 
performed in another state. In Hawaii, eame-aex 
marriage was found to be protected by the state 
constitution in the absence of a conipelling state 
interest, but Hawaii has never addreaaed any auch 
protection under the federal ConQtitution- 



-4- 



290 

Anowese £ram Edward F. Shoa ^o quas^loas forwarded by 
Stanixt^T AsKcr-ef t. . 

1. Whi.ch euzrent. Suprcunc Court: Ju8t.lee do you moat adinxre , 

and why? 

1 rnosl admire Justice Brnycr. He is a rt icu] cite , 

knowledgeable, and deferential with regard to "he- 
relationship between the judiciary and Congress. 

2 . What Judf^a or Justice ha« most Influenced youx tiHinking 
concerning the conatitutional separation of powers , <md why? 

If any particular judge has influenced me it is Chief 

Justice John Marshall and his many opinions including 
McCulloch v. Maryland and Marhury v. Madison . 
3 . What does the discretionary power of the judiciary mean 
■fco you? 

The discretionary power of the judiciary means the limited 
and circumscribed discretion found in the procedural rules 
of court and Acts of Congress which specifically enumerate 
the actions the court may take in specific circunstances . 
The Ssntencing Guidelines is an example. 



291 

4 . Whxeh Jud^e k&s cexved ae a aodal for 1:h« way you would 
won^ to conduct yourscXf ao a Judge, and why? 

Judge Dennis Yule of the Benton County Superior Court is 

judge who has most influenced me. 

It is generally agreed that he is the finest trial 

judge m Eastern Washington. Patient with advocates, 

parties and witnesses, he seldom interrupts counsel, giving 

them latitude to represent the positions of their clients. 

He is accommodating but efficient in managing his docket. 

His written and oral decisions axe delivered in clear and 

careful terms with appropriate remarks regarding the 

assistance and efforts of counsel. Judge Yule renders his 

decisions promptly. If confirmed, my goal is to conduct 

myself ae a judge so that people will speak as well of me as 

they speak of him. 

S . Wtli-cli l*w x-erriew axti.el« ox book has aos't a.n£Xuanood yetix 
view o£ the law? 



292 

In recent years, I read The Death of Coaiaon Smnse by 

Philip K. Howard; Guilty, The Collapae of the Criminal 

Justice System by Judge Henry Kothwax . Eoch in their own 

way provoked reflection on the present state ol the law and 

the events which brought us to this point 

6 . 'Hha.'h coX« do yeu 'tehi.nic la^lsla^lve Kioliory -- by which Z 
Bean tke various eaaaai.t:tae report* , hearing tiransci:lpt.B amd 
£loor sta^oaentA — - should play in the xn'berpce^at.ion of the 
tex^ o£ a s^abu^a? 
The precise language of a statute or act ot congress is Lhe 

most reliable guide to the intent of the legislature. Only 

if there is ambiguity in the meaning of the statutory 

language itself should the judge refer to the legislative 

history. However, a judge must be careful here because the 

legislative history may not provide a fair and balanced view 

of legislative intent . 



293 

Adtmixenal qucol^ions fren Senat.er Ashcz-ef'fc 

1 . Yeu Have ba«n active In the Aaerican Bar Asaoca.at.i.on and 
you were a Baabex of tlie House of Delega'tes from 19B9 to 
1994. In 1992, did. you vo'te la favor o£ t>ie cesolu'ti.on 
be£oxe tho Bouse supporting abox-tion ri-gh^a? Do you have 
concoxnm wxth tlic oxteant to which t:he ABA has taken 
posi'fci.ena en poXi'fci.ci*.! ma'tteecc? 
I seem to remembar Chat on three occasions whon I was i n the 

House of Delegates of the American Bar Association, the 

House was asked to consider resolutions which would, in one 

form or another, make the holding in Roe v. Wade, policy of 

the American Bar Association. I was not involved in the 

management of the floor debate nor was I involved in the 

actual debate of those issues. On two occasions, I voted in 

favor of maintaining ABA neutrality and on one occasion I 

voted In favor of the ABA adopting a policy position of the 

principles enunciated in Roe v . Wade . 

That action of House of Delegates caused the 

zeslgnaclon of a number of fine lawyaza who, as a matter of 



294 

religious principle, did not believe they could retain 

membezship in an organization with such a policy position. 

Their loss to the organization was dramatic and memorable. 

In particular, 1 recall the inmediate resignation by the ABA 

Treasurer who resigned as a matter of religious principle. 

Close friends and colleagues here in Eastern Washington also 

resigned from the ABA. 

1 do have concern about the wisdom of the ABA taking 
controversial positions on such issue as the death penalty 
and Roe -v. Wade. In contrast to the ABA , the Washington 
Srate Bar Association is a mandatory Bar Association. 
General Rule 12 of the Washington State Supreme Court, in 
part, explicitly prohibits the Washington State Bar 
Association from taking positions on political or social 
issues which do not relate to or affect the practice of law 
or the administration of justice. That rule enables the 
lawyers in Washington to avoid the kind of controversy and 



295 

concern that has surrounded the ABA Hous«a of Delegates 

action in adopting controversial positions on social and 

political issues. 

2 - In le1:fcezs be Kambora of Congress from 'the Waehingiian 
delegation as well as arliielea you've autJiorod, It: i.s cla&z 
^hafc yeu opposed, eengraaaianal effofts la 1995 'Co r«cduee 
spending on the Iiogal Sacvieec Corpor-at.i.on and tio placv 
restrictions on how legal services money may be xiaed . Which 
congressional restrlctiona did you £lnd objectionable? 

The Legal Services Corporation was formed by Congress 

and rherefora is subject to the exercj.se of Congressional 

discretion with regard to both its existence and its 

funding . 

The letters that I wrote as President-elect and 
President of the Washington State Bar Association and visits 
I made to our Congressional Delegation during that time were 
in those representative capacities. 

The Intent of the letter that I sent either as 
President or President-elect of the Washington State Bar 



296 

Associat.ion, was to bring to the attention of our „ - v:^ 

Congressional Delegation concerns of some of my lawyer ^j,^ 

constituents about the impact that the proposed regulations q 
would have on the effective administration of justice in the 
State of Washington. The restriction prohibiting federally 
funded legal service program lawyers from representing 
clients in certain typea of lawauits was the one that 
concerned me as President of the State Bar. When the 
restrictions were announced, no one knew what the impact 
would be en the effective administration of justice by the 
courts of the Stata of Washington. At that time, no one 
knew whathar or not it would be a violation of the Rules of 
Professional Conduct for lawyers to withdraw in such 
eireumstancea beaauae of the effect on the client. There was 
an initial concern that if there were a large number of such 
cases, the court systam would be faced with the prospect of 
appointing lawyers should legal service programs not be able 



297 

to find lawyers to substitute. In short, there waa « gr«<ir 
deal that was unknown about the impact that restriction 
would have on the effective administration of justice in the 
courts of the State of Washington. That was the reason that 
I wrote on behalf of the lawyers I represented as President 



298 

Mr . Shea' s answers tA the quaatxeno o£ Senator Thunend 

1 Mz. Shoa, in ouz trlpartxttt system of govenuBent, tlie 
Con^rcoD, under the Ceneti.tuti.on, nalces tlie law. The 
President, as the Chief Sxeeuti.'ve , enforces the law. The 
judiciary interprets the law. It appears that soae judges 
think they have the authority to make law. What is your 
opinion of mg interpretation of our Federal system? 
1 too believe in our tripartite system of government and in 

the separation of powers 

2 . Do you believe the American Bar Association should take 
positions on eentrewersial public policy issues , such as 
abortion and needle exchange pregxaas? Please explain . 
Over the years, the American Bar Aasociation has taken 

several positions on public policy issues which have been 

controversial. J prefer the position of the Washington 

State Bar Association which is a mandatory Bar Association 

and as such, it is prohibited by the Supreme Court from 

"taking positions on political or social issues which do not 

relate to or affect the practice of law or the 

administration of justice;" GR 12 Ic) Activities Hot 



299 

Au'thorized. This provision has served the members of the 

Washington StatR Bar Association extraordinarily well . 

V?hi J c t-he American Bar Associetion is a voluntary 

Association, I buliove thai, takinq positionr- on svich 

controversial public policy issues as a moratorium on the 

death penalty, wcro ill-advised and diminish its desired 

rol e; as a voice ol Ajucrican Lawyers. 

3. In February 1997, the American Bar Association adoptnd a 
rcooluC3.on reeomniendxn? that. Federal and state jurxsdicta.on:^ 
:it.op 3japoa3.ng ^hs dcatH pona.l1:y unti.! variouc ABA ^uidnllnca 
ure adop-tod, ouch as sene regarding compg tence o£ counsel 
Do you ag^rce with the ABA that a aoratorium should be placed 
on the imposition on the d«ath penalty? 
I do not agree with the ABA that a moratoraum should be 

placed on the imposition of the death penalty. I believe it 

was ill-advised ot the American Bar Association to do so. 



300 



Additional Questions £oi Kr . Shea from Scnatoz' Seesxons 

1. In yeu:r opinion, what is the greatest Supz-cme Court 
decision In American hlatory? 

McCulloch V. Maryland, 17 U.S. J16 (lbl9) 

xi; i.he greatest Supreme Court Decisnor in tnc Amer.: can 

History 

2 . What is the worst Supreme Court dccloa.on? 

The Dred Scott v. Sandford , 60 U.S. 393 (lHb7) decisjon is 

the worst Supreme Court Decision 

3 . Which Supreme Court Justice ox federal jud^e has most 
influenced your judicial phlloaophy? 

Justice Brayer. 

4 . Do you believe that Congress has the power under Article 
IIX to liait the jurisdiction of the lower federal courts , 
provided it does so in an otherwise constitutional fashion? 
Yes. 

5 . Do you have any concerns about the con8titutiona.lity of 
the Prxson Legal Reform Aot? 

No. 



301 

6 In your le^aX opinlan, is tiic 1995 Habeas Corpus Rcfom 
conat.it:ufcxonal? 

vui, see FeiJcer v. Turpm, U.S C Cl . 9S-8836, Opinion ry 
Rcnquist, C.J., G/?R/96. 

7 . In a ■ui't eha.llvng'i.n^ a governaant. racial preference , 
quo^a, or sa%-asi.de, «rill you follow tKe 1995 Adarand v. 
Penn decxoion and sub^acfc fcha^ raaxal prcfasance t.o tiie 
atEictest 3ud3.ci.al ocnifci.ny'? 

T will loiiow l.ho decision in Adarand v. Pe na and will 

subject government programs based on racial prcLcrences to 

strict ludicial scrutiny. 

B. Xn your legal opinion, how dj.ffi.eul't is it for any 
gevernin«nt. program or statute to survive strict ccrutiny? 

Any governmental program which utilizes racial preferences 

must be sub;)ected to the standard of strict scrutiny. Such 
legislation can only be upheld if it is narrowly tailored zo 
meet a compelling governmental interest. While this may be a 
difficult test for legislation, it must be applied in such 
circumstances 



302 

9. As a aa^nr of constitutional iaw, do you believe that 
voter refarendA should be sczntinxaed aore closely by thn 
judicxai-y than laws enactad by la^lslatures? 

When matt-ers are referred to the paople by the IcgislHturr, 

they result in a directt decision by the peopJe an t host- 
specif ic issues. They are entitled to the prci-umption ot 
constitutionality and should not be scruc j j-j i x.ed more clor-i,!'/ 
by the judiciary than laws enacted by the state legi^lar ui v 



303 



ANSWERS TO WRITTEN QUESTIONS FROM SENATOR ASHCROFT 

Judge Jeremy D Fogel 

1 . What current Supreme Court Justice do you most admire, and why? 

The current Supreme Court Justice I most admire is Justice Anthony Kennedy 
I admire Justice Kennedy for his legal scholarship, his dear and concise opinions, his 
adherence to precedent and respect for the constitutional separation of powers and his fine 
judicial temperament 

2. What Judge or Justice has most influenced your thinking concemmg the constitutional 
separation of powers, and why? 

The Judge who has most influenced my thmking concerning the constitutional 
separation of powers is Justice Nat Agliano. retired Presiding Justice of the California 
Court of Appeal, Snrth District In 1989, I was assigned by then-Chief Justice Malcolm 
Lucas to serve as a Justice Pro Tempore of the Court of Appeal while an Associate Justice 
position on that Court was vacant. I worked closely with Justice Agliano in discussing 
and writing opinions. Justice Agliano's clear understanding of the role of the limited role 
of the judiciary and the importance of adherence to precedent had and continues to have 
a major influence on the way in which 1 approach cases which come before me. 

3 What does the discretionary power of the judiciary mean to you? 

The discretionary power of the judiciary properly is limited to those areas in which 
[he legislative branch or the people have vested judges with discretion, eg, the manner in 
which cases are managed and conducted, the balancing of interests required for certain 
types of evidentiary rulings, and, only to the extent expressly permitted by law, criminal 
sentencing. Judges do not have discretion to reflise to follow legislative mandates or the 
precedents established by higher courts, nor should they exercise their discretion in a 
manner which usurps the flinctions of the legislative or executive branch. 

4 Which Judge has served as a model for the way you would want to conduct yourself as a 
Judge, and why? 

In addition to Justice Nat Agliano, to whom I alluded in my answer to Question 2, 
above, I also have learned much from Justice Edward Panelli, retired Justice of the 
California Supreme Court and Judge William Ingram, a senior District Judge for the 
Northern District of California Each of these judges has a superb judicial demeanor, 
treating all parties and counsel with courtesy and respect Each demonstrates a careful, 
scholarly approach to decision-making, consistent respect for the rule of law and a clear 
understanding of the separation of powers. 



304 



ANSWERS TO WRITTEN QUESTIONS FROM SENATOR ASHCROFT 

Judge Jeremy D. Fogel 
Page Two 

S. Which law review article or book has most influenced your view of the law? 

The most significant influence in the development of my judicial philosophy 
has been my daily experience as a trial coun judge for the past sixteen and a half years. 
Books and law review articles have been useful tools for reflection, but I cannot think of 
a particular book or article which has had a major impact on how I view my role is a 
judge. One book I did find thought-provoking, especially because of the profound social 
transformations which occurred during the historical period it covers, is Honorable 
Justice: The Life of Oljvpr Wendell Holmes , by Sheldon M Novick An article which has 
stimulated my thinking about legal ethics is "Legal Ethics; Worlds in Collision," by Mary 
Ann Glendon (First Thing s 41 21-27. 1994) 

6 What role do you think legislative history— by which I mean the various committee repons, 

hearing transcripts and floor statements— should play in the interpretation of the text of a 
Statute? 

Before considering legislative history, a Court first should consider the plain 
language of the statute in question, there is no need to consider legislative history if the 
language is unambiguous and legislative intent is clear. If the language of the statute is 
ambiguous, the Court also should consider whether there is existing precedent construing 
the meaning of similar or analogous statutes If consideration of legislative history still is 
required, the Court should review carefiilly the entire record in attempting to ascertain 
legislative intent m order to avoid taking any particular portion of the legislative history 
out of context. 



305 



ANSWERS TO QUESTIONS FROM SENATOR SESSIONS 

Judge Jeremy D Fogel 

1 . In your opinion, what is the greatest Supreme Court decision in American history'' 

It is difficult to single out one case, but I believe that one of the greatest 
decisions of the Supreme Court is Frie Railr oad Co. vs. Tompkins Although this 
case concerned a matter of procedure, it has served as the foundation for our 
understanding of federalism 

2 What is the worst Supreme Court decision? 

Again, it is difficult to single out one case, but in my view one of the worst is the 
Dred Scott decision fScott va Sandford ) I believe that the majority in that case resorted 
to legal formalism to impose its views with respect to slavery. 

3 Which Supreme Court Justice or federal judge has most influenced your judicial 
philosophy? 

The Supreme Coun justice who has most influenced my judicial philosophy is 
Justice Anthony Keimedy. 

You have been nominated to an Article III judgeship. As you know. Article III 
describes the relationship between Congress and the federal courts 

Article III, Section 1 of the Constitution provides that "the judicial power of the 
United States, shall be vested in one supreme Court, and m such inferior Courts as 
Congress may from time lo time ordain and establish." 

4 Do you believe that Congress has the power under Article III to limit the jurisdiction of 
the lower federal courts, provided it docs so in an otherwise constitutional fashion'' 

Yes. 

Last year. Congress, using its power under Article III, restricted the discretion of 
the lower federal courts to micro-manage state prisons when it passed the Prison 
Litigation Reform Act 

S. Do you have any concerns about the constitutionality of the Prison Litigation Reform Act? 

As a state court judge, I have not had occasion to study the Prison Litigation 
Reform Act and thus cannot express a specific opinion as to its constitutionality. Under 
Article III, however. Congress clearly has the power to hmii the jurisdiction of the lower 
federal courts, which includes the power to limit the remedies federal courts may impose 
Moreover, any legislative enactment carries with it a presumption of constitutionality 



306 



ANSWERS TO QUESTIONS FROM SENATOR SESSIONS . / 

Judge Jer«my D. Fogel ,.., ; . ;-j 

Page Two 

6 In your legal opinion, is the 1995 Habeas Reform constitutional? 

As a state court judge, I have not had occasion to study the 1995 Habeas Reform 
and thus cannot express a specific opinion as to its constitutionality. Under Article III, 
however. Congress clearly has the power to limit the jurisdiction of the lower federal 
courts, which power includes the right to place limits upon the scope of federal habeas 
review Moreover, any legislative enactment cames with it a presiamption of 
constitutionality 

If confinned, you will preside over many employment discrimination cases as a federal 
judge 

7 In a suit challenging a govemmeni racial preference, quota, or set-aside, will you follow 
the 1995 Adarand vs Pena decision and subject that racial preference to the stnctest 
judicial scrutiny? 

Yes 

8 In your legal opinion, how difficult is it for any government program or statute to survive 
strict scrutiny 

As the term "strict scrutiny" implies, it is very difficult. The Supreme Court in 
Adarand leaves no doubt that any government program or statute which makes 
distinctions based upon race must be narrowly tailored to serve a clearly identified and 
compelling state interest 

9 As a maner of constitutional law, do you believe that voter referenda should be scrutinized 
more closely by the judiciary than laws enacted by legislatures? 

No In states in which the rights of initiative and referendum are recognized in the 
state constitution, the people have determined that the legislative power may be asserted 
directly through these processes. The Courts thus should give the same degree of 
deference to legislative acts by initiative or referendum that they should to acts of the 
legislature. 



I prepared the substance of my answers to each of the above questions without assistance 
I received editorial suggestions as to the proper format of my answers from the Office 
of Policy Development at the Department of Justice 



NOMINATIONS OF SUSAN P. GRABER, RICH- 
ARD A. PAEZ (U.S. CIRCUIT JUDGES); HILDA 
G. TAGLE, SAM A. LINDSAY (U.S. DISTRICT 
JUDGES); JUDITH M. BARZILAY, AND 
DELISSA A. RIDGWAY (JUDGES OF THE U.S. 
COURT OF INTERNATIONAL TRADE) 



WEDNESDAY, FEBRUARY 25, 1998 

U.S. Senate, 
Committee on the Judiciary, 

Washington, DC. 
The committee met, pursuant to notice, at 2:05 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Charles E. Grassley 
presiding. 

Also present: Senators Thurmond, Specter, Sessions, Leahy, 
Feinstein, and Durbin. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY A U.S. 
SENATOR FROM THE STATE OF IOWA 

Senator Grassley. I am Senator Grassley. Obviously, I am not 
chairman of the full Judiciary Committee. I am a member of the 
Judiciary Committee, and Senator Hatch has asked some of us, be- 
cause of his very busy schedule, to help with the agenda. And so 
today I am doing that. I am glad to participate because we all have 
a responsibility to take very seriously nominees to the various 
courts. 

With that in mind, I would like to say that today is the 16th 
nominations hearing held by the committee during the 105th Con- 
gress. Four of those hearings were executive branch nominees, with 
the remainder being judicial nomination hearings. So far this Con- 
gress, the committee has processed 52 judicial nominees, not in- 
cluding the six nominees before the committee today. Of those 52 
nominees, 41 have so far been confirmed. Six nominees have been 
reported out and four nominees are pending in the committee. 

Three of the administration's nominees have been withdrawn. By 
comparison, in February 1990, only 17 nominees had been con- 
firmed by February 1. 

Senator Leahy is at the funeral of former Senator Ribicoff. He 
has a statement that he asked to be entered in the record. And 
Senator Feinstein is here as a member of the committee and as a 
member of the Democratic Party. It says here we will expect Sen- 
ator Feinstein here, and she is here. 

Senator Feinstein. Thank you. 

(307) 



308 

Senator Grassley. You bet. So Senator Leahy's statement will be 
put in the record. 

[The prepared statement of Senator Leahy follows:] 

Prepared Statement of Senator Patrick J. Leahy, a U.S. Senator From the 

State of Vermont 

This afternoon the Judiciary Committee holds its second confirmation hearing for 
judicial nominees this year. I commend the Chairman for moving forward with this 
hearing in the second month of this new session of Congress. Last year, by contrast, 
this Committee did not hold its second confirmation hearing for judicial nominees 
until May 7. 

We have much work to do. In spite of our efforts so far this year, the Senate has 
confirmed but 5 judges in this our fourth week in session. I have urged that the 
Senate at least maintain the pace estabUshed at the close of last year when we con- 
firmed 27 judges in 9 weeks. It was only with that kind of effort that we were able 
to improve our productivity from the 17 judges confirmed in the 1996 session to the 
36 judges confirmed last year. Still, the Senate under Republican control has taken 
the last three years to match the one-year total confirmed in 1994 when we were 
on course to close the vacancies gap under Democratic leadership. 

I have challenged the Senate this year to maintain the pace we achieved over that 
last 9 weeks of the last session. We currently have more than 40 nominations pend- 
ing before the Committee in need of confirmation hearings; more than 50 nominees 
remain pending before the Senate overall. I expect the President wUl continue to 
send us well-qualified nominees in the coming weeks and I have pledged to work 
with the Chairman to promptly schedule hearings on these nominees, just as he co- 
operated when he served as the Ranking Member in 1994 to hold 22 confirmation 
hearings for judicial nominees. 

I will do all that I can to help end the vacancy crisis that is plaguing the Federal 
courts and threatening the quality of justice for the American people. 

Today we will hear again from Judge Richard Paez. His nomination to the Ninth 
Circuit was first received by the Senate back in January 1996, more than two years 
ago. The vacancy for which he was nominated has become a judicial emergency dur- 
ing the time his nomination was pending without action by the Senate. 

I do not know why the nomination of this distinguished Federal district judge has 
been left pending for so long. He has the strong support of both California Senators 
and a "well-qualified" rating from the American Bar Association. He has served as 
a municipal judge for 13 years and as a Federal judge for 4 years. 

As I review his background, I fear that it was his service in legal aid that has 
accounted for this delay. In my view Judge Paez should be commended for the years 
he worked to provide legal services and access to our justice system for those with- 
out the financial resources otherwise to retain counsel. His work with the Legal Aid 
Foundation of Los Angeles, the Western Center on Law and Poverty and Califomia 
Rural Legal Assistance for 9 years should be a source of pride and a basis for praise 
from this Committee. 

I recall when another district court judge was being delayed last year. It took 
more than a year for Senator Feinstein to get Judge Chnstina Snyder a hearing and 
another four months to get her before the Senate for a vote. She ultimately was con- 
firmed by the Senate on a roll call vote with 93 Senators voting in favor of her con- 
firmation and only 6 voting against. Some opposed Judge Snyder and held up her 
nomination because she had encouraged lawyers to involve themselves in pro bono 
activities. In this regard, Senator Feingold properly observed: 

"[I]t is kind of an irony when we get to the day where if you don't participate 
in pro bono activities, you are somehow in a situation where your record is a little 
s£ifer vis a vis being appointed to Federal judgeship. And then when you get in- 
volved in pro bono activity, that might actually cause you to get a few more ques- 
tions * * * [T]hat can't be an encouragement for lawyers to get involved in pro bono 
activities on biehalf of people who don't have the ability to go to court very easily." 

So, too, in the case of Judge Paez, I say that he represents the best of the profes- 
sion when he served those without means. 

In addition to Judge Paez, we look forward to hearing from Judge Susan Graber, 
whose nomination to the Ninth Circuit has the support of both Oregon Senators; 
Hilda G. Tagle, whose nomination to the District Court for the Southern District 
of Texas has been pending for almost 3 years; Sam A. Lindsay, who has been re- 
cently nominated to the District Court for the Northern District of Texas; and two 
nominees to be International Trade Court judges, Judith Barzilay and Delissa 
Ridgway. 



309 

I welcome you all here today and will work for prompt considerations of your 
nominations. With your speedy confirmations we can fill 3 judicial emergency vacan- 
cies and complete action on 2 of the 9 nominations first received in 1995 and 1996 
that are still pending. 

Senator Grassley. I would go to Senator Feinstein, and then I 
am going to go to Senator Thurmond. Or do you just have ques- 
tions, Senator Thurmond? 

Senator Thurmond, I just have questions. 

Senator Grassley. OK. Senator Feinstein, and then we will call 
our colleagues who are here to speak for nominees. 

Senator Feinstein. Yes, thank you. I have no opening comments, 
and I know there is a California nominee up. I will defer to my col- 
league. Senator Boxer, and since I am going to be here for the tour 
of duty, I will withhold my comments on that nominee for a more 
appropriate time. 

But if I may, Mr. Chairman, Senator Lautenberg very much re- 
grets, because of a conflict, he is not able to be here in person to 
support Judge Barzilay, and he wants the committee to know of his 
strong support for her nomination. He has provided a written state- 
ment, and I ask on his behalf to have it included. 

Senator Grassley. Without objection, so ordered. 

Senator Feinstein. Thank you, Mr. Chairman. 

[The prepared statement of Senator Lautenberg follows:] 

Prepared Statement of Frank Lautenberg, a U.S. Senator From the State of 

New Jersey 

Mr. Chairman and members of the Judiciary Committee, I'm pleased to support 
the confirmation of Judith M. Barzilay, who has been nominated for a seat on the 
Court of International Trade. 

I think youll see that Ms. Barzilay, over her 16-year career in international trade, 
has had a unique mix of experiences that should make her an excellent judge on 
this most specialized court. 

Ms. Barzilay has worked as an attorney in the field of international law for both 
the government and the private sector. In the private sector, she has also worked 
as both a manager and business advisor. 

Currently Ms. Barzilay is the Vice President of Government Affairs with Sony 
Electronics, where she handles such cutting edge trade issues as world standards 
for High Definition Television and the Information Technology Agreement. 

But Ms. Barzilay began her career in international trade law in 1983 as an attor- 
ney with the International Trade Field Office of the U.S. Justice Department in 
New York City. In that position it was her job to represent tJie U.S. Customs Serv- 
ice before the Court of International Trade on matters such as import classification 
and the valuation of imported goods. It was also her job to defend the legality of 
Customs' seizures and import prohibitions before the court. 

Ms. Barzilay also represented United States manufactiiring interests in fair trade 
cases. 

In 1995, Ms. Barzilay was appointed by Secretary of the Treasury Robert Rubin 
to his advisory committee on Customs Service Operations and was recently re- 
appointed for a second term. 

Ms. Barzilay also sits on the executive board of the American Association of Ex- 
porters and Importers and chairs its committee on trade policy. 

Ms. Barzilay's expertise in international law is well known and she is a frequent 
lecturer before groups such as The Nationsd Association of Manufacturers, The 
Council on Logistics Management and the World Trade Association of Southern 
California. 

Although, as you can see, Ms. Barzilay has a busy professional life, she still finds 
time to volunteer for her community. She often speaks at local high schools, educat- 
ing students on the importance of international trade. She also works as an advisor 
to the Bergen County, New Jersey, court system in an innovative program that tries 
to reduce repeat crime by putting juvenile offenders through mock trials. 

When you put it all together, Judith Barzilay will be a welcome addition to the 
Court of International Trade and I strongly support her nomination. 



310 

Senator Grassley. I would ask Senator Boxer and Senator 
Wyden and any other Senators to come at this point to speak for 
their nominees. We would start with the Senator from California. 

STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM 
THE STATE OF CALIFORNIA 

Senator Boxer. Thank you so much, Mr. Chairman. Thank you, 
Senator Feinstein, Senator Thurmond. 

I am very pleased to introduce Judge Richard Paez for a seat on 
the Ninth Circuit Court of Appeals. I would ask Richard if he 
would stand. Do you have your family here? If they could stand as 
well, that would be wonderful. 

Mr. Chairman, I first introduced Richard Paez to you and to the 
committee in 1994 for the district court, and I was so proud that 
the Senate saw fit to confirm him that same year. Judge Paez be- 
came the first Mexican-American to serve as a Federal trial judge 
in Los Angeles. He has been serving with distinction, and he is 
widely respected. I am sure you will once again find him eminently 
qualified to sit, and this time on the circuit court bench. 

Judge Paez has broad support. For example, he is supported by 
Republicans Sheriff Sherman Block of Los Angeles and Sheldon 
Sloan. Sheldon Sloan was the former chairman of the judicial selec- 
tion committees for Senator Pete Wilson — ^then-Senator Pete Wil- 
son and then-Senator John Seymour. 

For more than 20 years, Judge Paez has distinguished himself as 
a public servant in the best and broadest sense. A native of Utah, 
Judge Paez received his undergraduate degree from Brigham 
Young. In 1972, he graduated from Boalt Hall School of Law at the 
University of California. Judge Paez was appointed to the Los An- 
geles Municipal Court, which is one of the largest metropolitan 
courts in the country, and served for 12 years there. While on the 
municipal court bench, he was deeply involved in teaching, lectur- 
ing, and training within the judiciary. 

A recognized leader, his colleagues elected him to serve as both 
supervising judge and presiding judge. His merit was again ac- 
knowledged when he was elected chair of the Los Angeles County 
Municipal Court Judges' Association. In 1991, Judge Paez was ap- 
pointed by California Supreme Court Chief Justice Malcolm Lucas 
to the first of two terms on the prestigious California Judicial 
Council. 

Mr. Chairman, as an attorney and as a judge, Richard Paez has 
devoted his life to fairness, equality, and justice. And if the com- 
mittee chooses to again show confidence in him, as you have done 
before, I know he will serve on the Ninth Circuit Court of Appeals 
with the highest level of integrity and distinction that have been 
so characteristic of his entire career. 

Thank you so much for the honor of giving me this opening time. 

[Letters submitted by Senator Boxer follow:] 

Law Offices of Sheldon H. Sloan, 

Los Angeles, CA, April 22, 1996. 
Hon. Orrin G. Hatch, 
Chairman, Committee on the Judiciary, 
U.S. Senate, Washington, DC. 

Dear Senator ELatch: I understand that President Clinton has nominated Rich- 
ard A. Paez to serve on the United States Court of Appeals for the Ninth Circuit. 



311 

I have known Judge Paez as a lawyer, as a Municipal Court Judge and as a 
United States District Court Judge. In each endeavor, he has performed his duties 
with distinction. Judge Paez is held in great esteem by all with whom he works, 
be they members of the Bench or the Bar. 

As a former Judge, and President-Elect of the Los Angeles County Bar Associa- 
tion, I have been in a position to observe Judge Paez' abilities and demeanor over 
an extended period of time. As former Chairman of Senators (now Governor) Wil- 
son's and Seymour's Committee on Selection of Federal Judges, U.S. Attorneys, and 
Marshals for the Central District of California, I certainly believe I have gained an 
appreciation for what kind of a combination of character, work ethic, demeanor and 
intelligence is required to fulfill the demanding position of a Judge of the Circuit 
Court. 

Richard Paez is a hard working, experienced quality Judge. He can be strong 
without being overbearing, and he can be compassionate without being soft. He has 
been, and wiE continue to be, a credit to the judiciary as a whole. I recommend him 
without reservation. 

Let us hope and pray that the President continues to send us individuals of the 
same quality and experience as Richard Paez. 
Sincerely, 

Sheldon H. Sloan. 



Sheldon H. Sloan 

Bom in Minneapolis, Minnesota, December 25, 1935, Attorney at law, admitted 
to State Bar of California in 1962, Admitted to the U.S. Supreme Court, U.S. Claims 
Court and U.S. Court of Military Appeals. Preparatory education, Los Angeles High 
School, U.C.L.A. School of Management B.S. (1958), University of Southern CaUfor- 
nia School of Law J.D. (1961). 

Attorney with the United States Department of Justice, Washington, D.C., (1962- 
63). 

Public Member, State of California Board of Registration for Professional Engi- 
neers, (1972-73). 

Judge of the Municipal Court, Los Angeles Judicial District, ( 1973-76); Member, 
Faculty Judges College, (1975). 

California State Bar Committee on Continuing Professional Competency, (1972- 
73). 

Federal Judiciary Advisory Committee to Senator Pete Wilson Central District 
(Chairman 1982-85, Member, 1982-90). Senator Seymour Committee, (1990-92). 

Los Angeles County Commission on Music and the Performing Arts (President 
1995-96, Member 1981- ). 

California Museiun of Science and Industry (Vice-President 1995- , Director 
1992- ). 
Los Angeles Memorial Colisexim Commission (Commissioner 1994— ). 
Football LA (Special Commission appointed by Mayor Riordan to bring NFL Foot- 
ball back to Los Angeles) ( 1995- ). 
Los Angeles County Bar Association: 

President-Elect 1995-96 (will be President July 1, 1996); 
Senior Vice-President 1994-95; 
Vice-President 1993-94; 
Trustee 1991-1993; 

Committee on Judicial Appointments (Chairman 1985-87, Member 1982- 
1989); 
Arbitration Committee (1969-1970); 
Committee on Municipal Courts, (1975); 

Committee on Judicial Evaluation (Chairman, 1989-1992; Member 1989- 
1994); 
Committee on Judicial Resources (Co-Chairman, 1992- ); 
Committee on Governmental Resources (Co-Chairman 1995- ). 
Los Angeles County Bar Foundation (Trustee 1994- ). 
Active in the following organizations: 

Guardians of the Jewish Homes for the Aging (FVesident, 1986); 
Fraternity of Friends of the Music Center (President 1981-83; Chairman 
1983-85); 

Coro Foundation of Southern California (Trustee 1973-1982, Chairman 197&- 
81); 
Harvard-Westlake School Board of Trustees (1981-1993). 



50-531 98-11 



312 

Mr. Sloan is married to Shelby Jean Sloan, a former Los Angeles Community Re- 
development Commissioner and Vice Chair of GLAZA. They reside in the Santa 
Monica Canyon area of the City of Los Angeles. 

Mr. Sloan specializes in Transactional and Litigation matters involving Real Es- 
tate, Land Use, Construction, and Business Law as well as Governmental Affairs 
Representation before Public Agencies. His practice includes representation of many 
contractors, developers and operators of real property projects as well as general 
bxjsiness clients. 



County of Los Angeles, 
Sheriff's Department Headquarters, 

Monterey Park, CA, April 8, 1996. 
Hon. Orrin G. Hatch, 
Chairman, Committee on the Judiciary, 
U.S. Senate, Washington, DC. 

Dear Senator Hatch: I have been advised that United States District Judge 
Richard A. Paez has been nominated by President Clinton to serve on the Ninth Cir- 
cuit Coiui of Appeals. 

Judge Paez has been a United States District Judge since 1994. In 1981, Governor 
Edmund G. Brown, Jr. appointed Judge Paez to the Los Angeles Municipal Court. 
As a member of the Los Angeles Municipal Court, Judge Paez held positions of Pre- 
siding Judge, Assistant Presiding Judge, and Supervising Judge. He has also been 
a Temporary Judge in the California Court of Appeals, Second Appellate District, 
and the Los Angeles Superior Court, Law and Discovery. 

Judge Paez is a hard working member of the legal profession with impeccable 
character and integrity. His desire to serve on the Ninth Circuit Court of Appeals 
is sincere, and a position for which I feel he is well-qualified. 

Based on my knowledge of Judge Paez' dedication and experience, I would like 
to recommend that his appointment to the Ninth Circuit Court of Appeals be favor- 
ably considered. 
Sincerely, 

Sherman Block, Sheriff. 

Senator Grassley. Thank you, Senator Boxer. 
The Senator from Oregon, the senior Senator and then the junior 
Senator from Oregon. 

STATEMENT OF HON. RON WYDEN, A U.S. SENATOR FROM THE 

STATE OF OREGON 

Senator Wyden. Thank you very much, Mr. Chairman, and let 
me express my thanks to you not just for your work here but all 
the help you have given me both on the Aging Committee and deal- 
ing with our effort to bring some sunshine to the Senate. And I 
thank you for your many courtesies. 

I will be brief today, but it really is a special pleasure to come 
with my colleague. Senator Smith, and introduce Susan Graber to 
the committee. She is a long-time personal friend of my wife, Lau- 
rie, and I. She has a wonderful family who are here: her husband. 
Bill June, and her daughter, Rachel, who is about Lilly Wyden's 
age, and like Lilly, she comes with her beanie babies to wish her 
mother luck. We are very glad that the family is here. 

I also, prior to discussing Susan Graber's qualifications, would 
like to thank my colleague. Senator Smith. He and I have worked 
together every step of the way with respect to judicial nominations 
for our State, and he has worked, as I have, on behalf of this nomi- 
nee very hard, and I want to thank him for all his help. 

Mr. Chairman and colleagues, Justice Graber comes today with 
the strong bipartisan support of the Oregon congressional delega- 
tion, with extensive support from Oregon's law enforcement com- 
munity, and with superb recommendations from both the bench 



313 

and the bar. From across our home State, from both sides of the 
aisle, from judges and Utigants aHke, we have heard praise for this 
dedicated jurist, who has just recently reached her 10th anniver- 
sary as an appellate judge at the age of 48. 

I would also note that our former colleague. Senator Hatfield, 
has also been a strong supporter of Judge Graber, and I will tell 
you that Senator Hatfield and I years ago expressed our hope that 
one day Justice Graber will be serving on the U.S. Supreme Court. 
And I believe her qualifications are of that caliber, and we wanted 
the committee to know just how strongly we feel about her con- 
tribution on the bench. 

She is a graduate of Wellesley College and Yale Law School, and 
she has excelled at every step of her legal career. And there were 
two points with respect to her qualifications that I wanted to em- 
phasize. 

She has authored over 300 opinions in the past 10 years and is 
considered in our State an extraordinary writer. I think we all 
know that much of what is written in the law barely resembles 
English. A lot of it, when you read it, the sentences don't have any 
beginning, middle, end, or point. And that is not the case when you 
read a Susan Graber opinion. And it has long been said in legal 
circles in Oregon that if you need someone to write an opinion well 
and cogently and quickly, you go to Susan Graber. And I think it 
is a special qualification that she brings to the bench. 

The second is her strong support in the law enforcement commu- 
nity, which I think to a great extent stems from the fact that she 
understands and respects her role as a judge. She understands the 
difference between being a legislator and being a judge, and her 
opinions reflect a firm adherence to the law as written by the Or- 
egon Legislature. She knows the role of the judge is to follow not 
make the law, and that is what we need on the Federal appellate 
bench. 

So, Mr. Chairman, without any further speechifying, let me tell 
you that I think this is an extraordinary individual. She is a per- 
sonal friend and one who I think will bring stellar credentials to 
the bench, and I look forward to her consideration by the commit- 
tee. 

Senator Grassley. The junior Senator from Oregon. 

STATEMENT OF HON. GORDON SMITH, A U.S. SENATOR FROM 
THE STATE OF OREGON 

Senator Smith of Oregon. Thank you, Mr. Chairman and mem- 
bers of the committee. It is an honor to appear before you today, 
and I am pleased to join with Senator Wyden in expressing my sin- 
cere gratitude to all of you for according us this time. 

I want to take this opportunity to particularly thank my friend 
and colleague. Senator Wyden, for his very kind remarks and also 
for his efforts on behalf of this nominee and on the cause of the 
Oregon judiciary for which we have labored together very hard to 
make sure that our positions are filled with good, qualified people. 
I am also very pleased to be able to once again work with him on 
another outstanding nominee from Oregon. 

Mr. Chairman, while I, unlike Senator Wyden, have not person- 
ally known Justice Graber for long, I have had the opportunity to 



314 

meet with her and to speak privately with her, and I have been 
very impressed. It is appropriate that she is here today before this 
committee, and it is not a surprise to me that she is. 

Justice Graber has earned an excellent reputation among her col- 
leagues on the Oregon Supreme Court and throughout the Oregon 
bar. She has earned an outstanding reputation not only because of 
her legal scholarship, but also because of the high professional 
standards that she has consistently displayed in her advocacy, in 
her private practice, and during the years she served on our State 
bench. I am confident that Justice Graber will bring to the U.S. 
Court of Appeals the same dedication, professionalism, and integ- 
rity that has been the hallmark of her legal career. 

I want to thank the chairman again for moving us to this point 
in the process, and I urge the committee to complete the nomina- 
tion process and to move Justice Graber's name to the floor for a 
vote at the earliest possible time. 

Thank you, sir. 

Senator Grassley. Thank you, Senators from Oregon. 

I would call on Senator Feinstein to speak about the nominee 
Paez, and in the meantime, I would ask the three or however many 
Members there are of the House of Representatives here to come 
to the table to be in place for me to call on you next. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 
FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I am 
particularly pleased that the nomination of Judge Richard Paez is 
scheduled today, because he has been waiting for a long time. 

I know in my selection process and in the nominees I present to 
the President, it is always important, I believe, to have some 
knowledge of whether an individual actually has tested the judicial 
temperament. I believe in this case, that test has been firmly met. 

I think you will find that observations of Judge Paez show that 
he is firm, he is fair, he is experienced, and that he has a positive 
and good judicial temperament. I don't mean to say that everybody 
has to have been a judge, but if one has served as a judge, the tests 
are there and the tests are met. And I think that is an important 
criterion. 

Judge Paez was bom and raised in Utah. He attended Brigham 
Young University. He received his law degree from Boalt Hall. He 
worked as a staff attorney for California Rural Legal Assistance 
and the Western Center on Law and Poverty. He served both as 
acting director of litigation for Legal Aid of Los Angeles. He also 
has served on the Los Angeles Municipal Court bench from 1981 
to 1994, and during this time, he was appointed twice by the chief 
justice of the California Supreme Court to serve as a member of 
the California Judicial Council, the policymaking body of the Cali- 
fornia judiciary, where he supported reforms to improve the effi- 
ciency of the courts. 

He was elected chair of the Los Angeles County Municipal Court 
Judges' Association in 1990. This organization was created so the 
county's 188 municipal court judges could work on issues of com- 
mon concern. Further, for several years, Judge Paez taught at a 
number of judicial education programs sponsored by the California 



315 

Center for Judicial Education and Research. He was confirmed to 
the Federal bench as a district court judge in the central area by 
this committee in July 1994, and then as you know, subsequently 
nominated to the circuit court. 

I think that Judge Paez will bring a history of judicial experi- 
ence, of legal experience, and of public interest law that is very im- 
portant to see that the judicial system and that the circuit court 
is well rounded. I am very proud to support his nomination. 

Senator Grassley. Thank you, Senator Feinstein. 

Can we start with Representative Johnson and then Representa- 
tive Norton? 

STATEMENT OF HON. EDDIE BERNICE JOHNSON, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Representative Johnson. Thank you very much, distinguished 
Members of the Senate. I am here today really to introduce a con- 
stituent of mine, and I am joining our two Senators from Texas in 
support of Mr. Sam Lindsay. I thank you for this time. 

He is a candidate for the Northern District Court of Texas. He 
will be the first African-American in history. His name has been 
lifted by his peers, and I am extremely pleased and proud to 
present to you Mr. Lindsay and his family. 

Senator Grassley. Thank you all. 

Representative Johnson. Thank you. 

He possesses the legal skills, in my judgment, and the tempera- 
ment and knowledge to be an excellent Federal judge. He has spent 
most of his 20 years of legal career in the Dallas city attorney's of- 
fice, and since 1992, he has been the chief city attorney. He has 
extensive defense, litigation, and trial experience in Federal and 
State courts. He has handled over 300 cases for the city of Dallas 
and its employees, including approximately 60 trials. As a city at- 
torney, he is responsible for the administrative supervision of 110 
employees, including 73 attorneys, 30 support staff members, and 
7 paralegals. He serves as a legal adviser to the city council, the 
city's manager, and the department heads, boards, and commission 
members. 

As a member of the Dallas legal community, Mr. Lindsay has 
maintained the highest level of integrity over the past 20 years and 
has gained the respect of his peers in the legal profession. I am 
proud to say without equivocation that there is no better trial at- 
torney or person of honor whom I would like to see fill this judici- 
ary vacancy. 

The North Texas community needs competent legal minds who 
have the appropriate judicial temperament to decide the variety of 
important issues which are heard by the Federal courts. Sam 
Lindsay's unquestioned reputation for fairness and integrity make 
him an excellent candidate for this position. 

Mr. Chairman and members, I thank you again for allowing me 
to testify, and I urge you to support and give his nomination seri- 
ous and positive consideration. 

Senator Grassley. Thank you. Representative Johnson. 

Representative Norton. 



316 

STATEMENT OF HON. ELEANOR HOLMES NORTON, A 
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA 

Representative Norton. Thank you, Mr. Chairman, for the op- 
portunity to present to you for the position of judge of the U.S. 
Court of International Trade Delissa A. Ridgway, and I will ask 
Ms. Ridgway and her family if they would stand at this time. 

As you may know from the number of people from the District 
of Columbia who come before this committee, the city is rich with 
talent. There is no Senator, and so it is my special pride to come 
and introduce candidates of the extraordinary caliber of Ms. 
Ridgway. 

Her resume is before you. I will not go into its deepest details 
except to say it reads like preparation for the position for which 
she has been nominated, from a law practice in international law 
at a major law firm here in the city, to her present position as 
chair of a quasi-judicial adjudicatory agency, the Foreign Claims 
Settlement Commission. 

Among its present work, for example, has been the work of adju- 
dicating the claims of U.S. nationals against the post-World War 
II Albanian regime and, of course, its ongoing Holocaust claims 
program, and many other important matters that are directly akin 
to the kind of work she would be doing on the U.S. Court of Inter- 
national Trade. 

Her work in the District itself has been exemplary, many com- 
munity activities, from her service on the Board of Governors of the 
D.C. Bar Association, to her presidency of the Women's Bar Asso- 
ciation, and her work on the board of the D.C. Conference on Op- 
portunities for Minorities in the legal profession. 

There is no important area of international law where Ms. 
Ridgway has not published, practiced, or lectured. It is a source of 
special pride to be able to present her to you and to ask for her 
speedy recommendation for judge on the U.S. Court of Inter- 
national Trade. 

Thank you, Mr. Chairman. 

Senator Grassley. Thank you. Representative Norton. 

Are there any other members of the other body? 

[No response.] 

Senator Grassley, OK. Then I am going to — for senatorial cour- 
tesy, I want to help two Senators because of time constraints. One, 
when she comes in. Senator Hutchison is chairing another commit- 
tee — I am sorry. 

We were expecting you to testify. 

Mr. Ortiz. I was not prepared, but I will do it. 

Senator Grassley. Well, why don't you do that right now? 

Senator Feinstein. You rarely get a chance for that kind of 
statement. 

Senator Grassley. Yes, this is Representative Ortiz. Would you 
proceed, please? 

STATEMENT OF HON. SOLOMON P. ORTIZ, A REPRESENTATIVE 
IN CONGRESS FROM THE STATE OF TEXAS 

Representative Ortiz. Thank you, Mr. Chairman. I am happy to 
be here today, and we are happy to have a nominee for a U.S. dis- 



317 

trict court judgeship today, and her name is Hilda Tagle. She is 
here with her family, and she happens to be from my home town. 

I can remember the day when she graduated from law school, 
and she interned in my office. She is very capable. She is very just. 
She is very fair. And I know that she is going to do a good job and 
will represent the people of this great Nation in a fair and impar- 
tial manner. 

I am not going to belabor the committee because she has got out- 
standing qualifications, and I would just like to say that I hope 
that we can have a quick vote and that her name goes to the Sen- 
ate floor so that she can be voted on. 

Thank you very much. 

Senator Grassley. Thank you. Representative Ortiz. 

Now, as I started to say. Senator Hutchison is chairing another 
committee, and she will be coming in shortly. And wherever we 
are, I would like to break in for her to testify for the nominees that 
she is here to support. In the meantime, I would like to go out of 
order and for the benefit of Senator Specter, who has a very busy 
schedule, move Judith M. Barzilay, of New Jersey, to be judge of 
the U.S. Court of International Trade, and ask her to come at this 
point. I assume she is here. Would you please come up? 

Before you are seated, if I could, I would ask you to raise your 
right hand. Please come to the middle here first. Do you swear the 
testimony you shall give in this hearing shall be the truth, the 
whole truth, and nothing but the trust, so help you Grod? 

Ms. Barzilay. Yes, I do. 

Senator Grassley. Thank you. Please be seated. 

Does Senator Specter want to introduce or anything? 

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

Senator Specter. Yes, thank you very much, Mr. Chairman, and 
I thank you, Mr. Chairman, Senator Grassley, for affording me the 
courtesy of taking Ms. Barzilay out of turn because I intend to stay 
for her hearing, but would like to be excused before the others pro- 
ceed. 

This is a very significant and proud moment for me because Ms. 
Barzilay is my niece. Judith was bom in Russell, KS, on January 
3, 1944. She was a New Year's baby. Judith may have to forbear 
on just a little bit of this conversation. 

In San Francisco, the New Year's baby arrives at 12:01, in New 
York City 12:00 with a second or two, but in Russell, it took him 
until January 3. 

My older sister, Hilda, was studying for her master's degree in 
Syracuse when her husband-to-be, Arthur Morgenstern, was en 
route to San Francisco for service in the South Pacific, and they 
had a romance in San Francisco, a wedding weekend, Senator 
Feinstein, and Hilda returned and Judith was bom January 3, 
1944, and somewhat like a daughter for me and somewhat like a 
sister, just a half-generation gap between Judith and myself. 

She comes to this nomination proceeding with an extraordinary 
record. She graduated from Wichita State University in 1965, as 
did her mother and her older uncle, Morton. She went to Rutgers 
where she got a master's degree in library and information science 



318 

in 1971 and then got a J.D. in 1981, and since that time, she has 
had a very distinguished career in the practice of law and also 
working for the U.S. Department of Justice in the International 
Trade Field Office for some 3 years, from November 1983 to March 
1986, and worked as a senior litigation associate with Siegel, 
Mandell and Davidson, and has been a key executive with Sony 
Electronics, Park Ridge, NJ, serving as vice president of govern- 
mental affairs since 1996. 

While all of this has been in process, Judith, Ms. Barzilay, has 
found time to raise a family. Would her husband, Doron, and her 
two sons, Ilan and Michael, stand please? 

Ms. Barzilay, you have other guests here. Would you please in- 
troduce them? 

TESTIMONY OF JUDITH M. BARZILAY, OF NEW JERSEY, TO BE 
A JUDGE OF THE U.S. COURT OF INTERNATIONAL TRADE 

Ms. Barzilay. Yes, thank you very much, Senator. I would like 
to introduce our friends, Lewis and Eileen Kleinkopf, from 
Fairlawn, New Jersey, and I would like to introduce my friend, 
Paula Rubin, from Washington, D.C. And I would also like to men- 
tion that my son, Ilan, has brought some classmates of his from the 
Georgetown University Law Center with him today. 

Senator Specter. Would they stand, please? 

You see, Mr. Chairman, we pretty well packed the house. 

Senator Grassley. Yes, yes. I thought they came because I was 
chairing the meeting. [Laughter.] 

Senator Specter. We thought Senator Hatch was going to be 
here. If that had been known, I am sure we would have had many 
more people here, Senator Grassley. 

Well, there is a great deal more that I can say, but we have a 
very long agenda, and I thank you for permitting me to introduce 
Mrs. Barzilay at this time and for taking her out of turn. 

Senator Grassley. Yes. There are two things. One, I think you 
probably have introduced all of your family and friends. We usually 
ask you to do that if you want to. The second is your opportunity 
to make any opening statement before we ask questions. 

Ms. Barzilay. I have no opening statement, Senator, but I just 
want to say that it is an honor and a privilege for me to be here 
today. 

QUESTIONING BY SENATOR GRASSLEY 

Senator Grassley. OK. Would you explain for the committee 
how your prior training or experience will serve you well and the 
court well on the International Trade Court? 

Ms. Barzilay. Yes, thank you very much. I will. 

The Court of International Trade is a U.S. district court of spe- 
cialized jurisdiction which deals with cases arising out of the im- 
port laws of the United States, and I started my career in inter- 
national trade law as a staff attorney with the Justice Depart- 
ment's International Trade Field Office, which is the office that 
conducts litigation for the U.S. Customs Service and the U.S. Com- 
merce Department at the Court of International Trade. 

After serving with Justice, I went to a private law firm, one of 
the oldest, continuously existing customs and trade law firms in 



319 

the country, Siegel, Mandell and Davidson, where I represented im- 
porters both large and small before the court and also before the 
agencies which deal with international trade law. That is the U.S. 
Customs Service, the International Trade Commission, and the 
U.S. Commerce Department. 

In 1988, I was asked to join the Sony Corp. as its first in-house 
international trade attorney, and a year later was asked to transfer 
to begin a professional import-export department to make sure that 
Sony Corp. would be in compliance with all of the U.S. import and 
export laws. And I spent 6V2 years doing that and then became vice 
president for government affairs in January 1996. 

Senator Grassley. On another com.mittee, I have an assignment 
as chairman of the International Trade Subcommittee, so I would 
ask you if you anticipate the role of the Court of International 
Trade plajdng a more prominent role, or what sort of role as you 
would anticipate it, as we continue to evolve our global economy? 

Ms. Barzilay. I think it will. I think it will become increasingly 
more important, and I think that some of the issues that the trade 
court will be grappling with will be in the area of rules of origin, 
in the area of the harmonization of customs practices worldwide, 
issues such as that. 

Senator Grassley. Are you committed to following Supreme 
Court precedent and giving it full force and effect even if you dis- 
agree with it personally? 

Ms. Barzilay. Yes, I am, Senator. 

Senator Grassley. I would turn in this order, I think, in the 
order in which they came, except we will go back and forth between 
Republican and Democrat: Senator Feinstein and then Senator 
Thurmond. 

Senator Feinstein. You will be happy to know I have no ques- 
tions. 

Senator Grassley. OK. Senator Thurmond. 

Senator Thurmond. Thank you, Mr. Chairman. I have no ques- 
tions of this witness. I am going to vote for her. She is the niece 
of the distinguished Senator Specter. [Laughter.] 

Ms. Barzilay. Thank you, Senator. 

Senator Grassley. Well, there are only 99 to go now. [Laughter.] 

Senator Durbin. 

Senator DuRBiN. Thank you, Mr. Chairman. 

Once I learned that her son was attending Georgetown Law Cen- 
ter, I knew she had good judgment. I will be supportive, too. 

Ms. Barzilay. Thank you. 

Senator Grassley. Senator Specter. 

Senator Specter. Well, thank you very much, Mr. Chairman. 

Senator Thurmond, would you set forth the admonition of judi- 
cial courtesy, which I have heard you give on so many occasions, 
or would you like for me to make your speech for you? 

Senator Thurmond. Well, I was fixing to say this for some other 
judges; I might say it here. 

In my view, the judges should have judicial temperament, ex- 
treme courtesy. The more power an individual has, the more cour- 
teous he or she should be. Probably no one in our society has more 
power over the lives of individuals than a Federal judge. So it is 



320 

especially important that someone in this role be courteous and 
civil. 

What are your thoughts on that matter? 

Ms. Barzilay. I agree with you completely, Senator. 

Senator Thurmond. Again, I will say I will vote for you. [Laugh- 
ter.] 

Senator Specter. Thank you. Thank you very much. Senator 
Thurmond. 

At one of the first Judiciary Committee hearings I attended, 
there were some Pennsylvania nominees, and Senator Thurmond 
was presiding as chairman of the Judiciary Committee, which he 
held for some 6 years in a very, very distinguished senatorial ca- 
reer. And the judicial nominee was seated where you are, Mrs. 
Barzilay, and Senator Thurmond said, "If you are confirmed, do 
you promise to be courteous?" And I thought. What kind of a ques- 
tion is that? What is the witness going to say but yes? And the wit- 
ness said yes, and then Senator Thurmond said, "The more power 
a person has, the more courteous that person should be." 

And Senator Thurmond just articulated it again, and not only in 
the time I have spent in the Senate but in the time I have spent 
anywhere, that is as profound a statement as I have ever heard. 
And I had been a practicing lawyer for a long time and a Senator 
for a shorter time, and judges do have enormous, enormous power. 
And there is so frequently an inclination on the part of the judge 
in the black robe sitting above the fray and being annoyed — and it 
happens all the time — with the lawyers or with the witnesses or 
with his or her breakfast or with a lot of factors, and not being 
courteous. And that is a very powerful and a very profound state- 
ment, and I am glad to have heard Senator Thurmond say it again. 

Thank you very much, Mr. Chairman. 

Senator Grassley. Thank you. 

Senator Sessions 

QUESTIONING OF SENATOR SESSIONS 

Senator Sessions. Mr. Chairman, I think this is an outstanding 
nominee, and I have noted with pleasure her response on the ques- 
tion of judicial activism. She said that, "It is a judge's role to apply 
the laws of the legislature to the facts of the case to be adjudicated. 
The majority of the cases coming before the Court of International 
Trade involve statutory interpretation for which there are well-de- 
fined, historical legal principles. I would expect to follow those 
principles in any case that came before me." 

I think that is one of the most key things we need to ask of a 
judge: Will they follow the law as written by the legislature or in 
some cases enacted through proper executive functions? 

Her background is good. She has taught and written extensively 
about international law issues, and I think that is to be com- 
mended. 

Just briefly, let me ask you this: How do you feel about the ab- 
sence — or have you had occasion to write about the failure of inter- 
national bankruptcy, which I understand is a significant problem 
for international business? Have you had occasion to study that 
issue? 



321 

Ms. Barzilay. No, Senator, I have not studied that issue. To my 
knowledge, that is not an issue that would directly come before the 
Court of International Trade. 

Senator Sessions. No; I don't think it would. The chairman 
had — we are having some hearings now on bankruptcy, and I 
thought I might ask that. 

Thank you, Mr. Chairman. 

Senator Grassley. We are going to be introducing — it is a prod- 
uct of the bankruptcy study commission — a bill next week on inter- 
national bankruptcy, also to come up as consideration hopefully as 
part of the process of reauthorization of the IMF, if that ever hap- 
pens. 

If none of my colleagues have questions, I would thank you for 
your courtesies that you have given to the committee and wish you 
well. 

Ms. Barzilay. Thank you very much. Senator. Thank you all. 

Senator Grassley. We are back on schedule as far as the agenda 
is concerned, so that means that we call Judge Graber and Judge 
Paez. If you would come to the center two chairs there, and before 
you sit, if you would stand and would each of you please raise your 
right hand. I would like to swear you in. Do you swear the testi- 
mony you shall give in this hearing shall be the truth, the whole 
truth, and nothing but the truth, so help you God? 

Judge Graber. I do, so help me Grod. 

Judge Paez. I do, so help me God. 

Senator Grassley. Please be seated. And as I have indicated be- 
fore, we would like to give you both opportunities to introduce fam- 
ily and friends and to make an opening statement before we each 
ask questions of you. 

TESTIMONY OF SUSAN P. GRABER, OF OREGON, TO BE U.S. 
CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Judge Graber. Thank you. It is a great honor and a pleasure to 
be here today, and I would like to introduce my family: my hus- 
band. Bill June, and my daughter, Rachel. And some of our good 
friends have also been able to join us, Don and Rhona Friedman 
and Judge Kobervigg, and I thank them for their friendship and 
support today. 

Thank you. 

Senator Grassley. Mr. Paez. 

TESTIMONY OF RICHARD A. PAEZ, OF CALIFORNIA, TO BE U.S. 
CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Judge Paez. Yes, Mr. Chairman, thank you very much for the op- 
portunity to be back here at this committee, and I would like to 
take just a few minutes to introduce my wife, Diane Erickson. We 
are about to celebrate our silver wedding anniversary very soon. 
My son, David, right here, and my daughter, Lisa. And I would like 
to acknowledge my parents. My mother and father were not able 
to be here with me today. It was a long trip from California. But 
they are here with me in spirit, along with my sister, who lives in 
Arizona. She wanted to convey her good sentiments to me. So, with 
that, I have nothing further to say. Senator. 



322 

Senator Grassley. OK. You did give your statement, or did you 
want to say more in the way of an opening statement to the com- 
mittee? 

Judge Graber. I have no further opening statement. 

QUESTIONING BY SENATOR GRASSLEY 

Senator Grassley. OK. Then if you could, I would ask you ques- 
tions, and then go to Senator Feinstein, then to Senator Thurmond, 
then to Senator Sessions, or if anybody else shows up. 

I also might mention that it is common practice not only for 
members who are here but members who can't come today to sub- 
mit questions for answers in writing. And I assume that that is 
about a 10-day period of time that you have to answer that. I don't 
know for sure. But whatever it is, find out and get answers back 
to us. 

Let's see. Yes; that would be one administrative thing that I for- 
got to mention at the beginning of the hearing. So, that would not 
only be for you two, but for all the nominees who are on today's 
agenda, including Judge Barzilay, who just was at the panel. 

Do either of you have — and this would be to both of you — any 
legal or moral beliefs which would inhibit or prevent you from im- 
posing or upholding a death sentence in any criminal case that 
might come before a Federal judge? 

Judge Graber. Mr. Chairman, I wasn't sure which of us you 
wanted to have answer that first. 

Judge Paez. Right. 

Senator Grassley. OK. I would like to have you go first, Judge 
Graber. 

Judge Graber. Thank you. The short answer to your question, 
Mr. Chairman, is no; and I think to elaborate slightly, to reiterate 
for the committee what may or may not be obvious from the mate- 
rials that you have, and that is that we do have a death penalty 
in Oregon as well, and that it has, in fact, been imposed during my 
tenure on the Supreme Court. 

Senator GRASSLEY. Judge Paez. 

Judge Paez. Senator Grassley, there is nothing in my personal 
background or any of my — anything that would prevent me from ei- 
ther enforcing the death penalty of a district court judge or in up- 
holding a death sentence. 

Senator Grassley. OK. Judge Paez, in a 1995 speech you made 
regarding diversity in the judiciary, you took very strong stands in 
favor of proportional representation on the bench. You repeatedly 
used population statistics to argue that the judiciary in California 
was not diversified. 

We have seen the EEOC and others use this proportional rep- 
resentation argument to force employers to institute programs 
based on race. You have advocated litigation, if necessary, for eth- 
nic groups to reach more diversity. 

What is your view on proportional representation as a method of 
determining discrimination in the workplace? 

Judge Paez. Well, I don't think that is appropriate, and the re- 
marks that I gave in that speech, I was focusing on the California 
judiciary at the time. I had served on the Judicial Council, as Sen- 
ator Feinstein had noted, and the council had been interested in 



323 

looking at the makeup of the California judiciary and had formed 
a select committee to study that. I was not on that committee, but 
I had the benefit of reading their report. 

The population in California has changed over the time. It is 
very diverse. And there was one particular community that I found 
a particular interest in, and that was a little community in south- 
east Los Angeles where I actually grew up when my family moved 
from Utah to southern California. When I moved there, it was pre- 
dominantly a white community, but, interestingly, over the past 20 
years it has significantly changed. There was a significant shift in 
population, and it is now predominantly Hispanic. 

The question that I was just attempting to look at was to look 
at the changes in the population, but then look at the institutions 
that are working in those communities and to raise the question 
and to make it — express the view that the judiciary is one institu- 
tion in our governmental process that ought to be diverse and to 
represent all kinds of people with all kinds of experience, both 
ranging from prosecutors to business lawyers, and just a diverse 
group, because I think it is very healthy for the judicial process 
and for the political process and to gain the respect and the com- 
mitment that, I think we all want our population to have with re- 
spect to judges and the role of judging and the judicial process. 

Senator Grassley. Then, is that a statement of your position on 
my question as to your view on proportional representation as a 
method of determining- 



Judge Paez. I don't think it is appropriate- 



Senator Grassley [continuing]. Discrimination in the workplace? 
What? 

Judge Paez. I don't think it is appropriate. I mean, I think, you 
know, my understanding 

Senator Grassley. You are saying that my relating this question 
to your previous writings is not appropriate or 

Judge Paez. No, no, no, no. 

Senator GRASSLEY. Or it is inappropriate for me to ask this ques- 
tion? 

Judge Paez. No, no. I am sorry. I £im not making myself clear. 

Senator Grassley. OK. 

Judge Paez. The use of proportionality statistics in Title VII or 
employment litigation, I do not — I have never advocated and I don't 
think it is appropriate. That is what I meant to say. Senator. 

Senator Grassley. Thank you for clearing it up. 

Judge Paez. I didn't mean to suggest anything otherwise. 

Senator Grassley. Now let me go on to another point, Mr. Paez. 
You also made the point that "The Latino community has for some 
time now faced heightened discrimination and hostility which came 
to a head with the passage of Proposition 187. The proposed anti- 
civil rights initiative will inflame the issue all over again." 

Do you still believe Proposition 187 is an anti-civil rights initia- 
tive? And explain your reasoning one way or the other. 

Judge Paez. Well, let me — I should say a couple of things on that 
matter. One, I am going to respond to the question, but I would 
note that that case is still pending in my court. There is a chal- 
lenge to that case. 



324 

Senator Grassley. Well, let me suggest to you, even though I am 
not a lawyer, I would not expect you to do anything that would vio- 
late your impartiality on that case. 

Judge Paez. One of my colleagues is handling that case. Judge 
Pfaelzer, and part of it is on appeal to the ninth circuit. But let me 
just say the comment there was simply that the Latino community 
in California did not, I think, support that initiative with a great 
deal of enthusiasm, and it tended to be somewhat divisive. 

It was viewed by some segments of the community as being just 
that. I can't really say too much more about it other than to just 
note that. 

Senator Grassley. So then your answer to the question is that 
you do believe that Proposition 187 is an anti-civil rights initiative? 

Judge Paez. No, I didn't say — I don't mean to say that. Not at 
all. It raised a lot of issues, and they are still being debated today 
in California. 

Senator Grassley. OK. My next question to you is: Since you 
have argued for proportional representation in other contexts, I 
have a question on the use of statistics 

Judge Paez. Sure. 

Senator Grassley [continuing]. On the death penalty. Do you be- 
lieve that statistics regarding how frequently the death penalty is 
imposed against one racial group is relevant to whether or not the 
imposition of the death penalty is proper or constitutional? 

Judge Paez. I don't think it is proper. I am not sure what the 
writings are by the Supreme Court on that subject, but I don't real- 
ly think that it should preclude the use of the death penalty. 

Senator Grassley. I think out of courtesy to my colleagues, if I 
could ask my colleagues, I have two more questions of this panel. 
OK. 

In the absence of proof of prior — and this would be for you. Judge 
Paez. 

Judge Paez. Sure. 

Senator Grassley. In the absence of proof of prior racial dis- 
crimination, do you think that racial set-asides or racial pref- 
erences are constitutional? In other words, do you believe that non- 
remedial racial conscious government programs are ever constitu- 
tional? 

Judge Paez. Well, the U.S. Supreme Court in the Adarand deci- 
sion made it abundantly clear — and in another case called Croson 
with respect to State governments; Adarand dealt with Federal in- 
stitutions — made it perfectly clear that any such racial classifica- 
tions must be subjected to a heightened scrutiny, only justified by 
a compelling State interest, and the interest had to be narrowly 
tailored. And when you apply that standard, it is a very tough 
standard, and I think there is probably very few circumstances, if 
any, that could ever qualify for that standard. So that is my under- 
standing of the law, and I would follow that and apply that in any 
case that came along. 

Senator Grassley. This would be for both of you. What are your 
views regarding the initiative process in the ninth circuit? We have 
seen a number of judicial challenges to specific initiatives. We have 
even had one ninth circuit panel basically say the voters weren't 



325 

capable of understanding what they were doing, and so it is impor- 
tant to have some understanding how each of you view the process. 

Judge Paez. Maybe I should go first, Senator, because I am from 
California, and 

Senator Grassley. OK. 

Judge Paez [continuing]. The initiative process in California is a 
very active one. 

The initiative process in California is very, very important to the 
people of California, very significant to the people of California, 
and there are frequently a number of initiatives on the California 
ballot all the time. And I think when you are asked — if a case is 
brought to you raising issues with respect to an initiative, one 
must proceed with caution and respect that the vote of the people 
is presumed constitutional, and you look at it from there and you 
apply established constitutional principles in evaluating the initia- 
tive. 

Senator Grassley. Judge Graber. 

Judge Graber. I can best respond to your question, Mr. Chair- 
man, by reference to Oregon law, with which I am more familiar. 
We also have an initiative process in our State, and under the 
State constitution, the legislative power resides with the people, 
and it may be exercised in one of two ways. It can either be exer- 
cised through the representatives in the legislative assembly, or it 
can be exercised directly by a vote of the people. 

Either form of legislation is presumed to be constitutional, and 
that is the same viewpoint that I would take were I to be confirmed 
the ninth circuit. 

Senator Grassley. OK. I thank each of you for answers to my 
questions. Would you please stay at the table? And as I informed 
my colleagues, out of senatorial courtesy because of her busy sched- 
ule chairing another hearing, I call on Senator Hutchison of Texas 
now to speak. 

STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S. 
SENATOR FROM THE STATE OF TEXAS 

Senator Hutchison. Thank you. Mr. Chairman, I only got notice 
on Monday of this hearing, and I am chairing the Surface Trans- 
portation Subcommittee hearing right now on the Federal rail re- 
authorization. So I do apologize and appreciate your courtesy. 

I am here in support of two nominees from Texas from whom I 
think you will hear very shortly. Hilda Tagle is from Corpus Chris- 
ti and will be in the southern district. She has waited very pa- 
tiently for quite a while for this nomination, and I think she is 
highly qualified. 

Senator Gramm and I have a bipartisan committee of lawyers, 
geographically represented, that have interviewed Ms. Tagle and 
feel that she is qualified, and we do support her. 

I am very pleased that she has a good record. Not only did she 
graduate from a great law school, the University of Texas, but she 
also has an outstanding record as a district court judge and before 
that as a county court judge in Nueces County. So I am pleased 
to support her. 

From my own home town of Dallas, I also am supporting Sam 
Lindsay for the northern district. Sam Lindsay is a fellow alum 



326 

from the University of Texas Law School, and he is the city attor- 
ney of Dallas. He has done an outstanding job, and I think he did 
something very important for this country when he spearheaded 
the effort in Dallas to set a teenage curfew in the city. It was chal- 
lenged and went all the way to the Supreme Court, and since it has 
been put in place, the crime rate for teenagers in Dallas has sig- 
nificantly been reduced. So I think he has shown leadership that 
will serve him well on the bench and will be good certainly for all 
Americans. 

So I am very pleased to support both Hilda Tagle and Sam Lind- 
say as nominees from Texas for the Federal bench in the southern 
and northern district. 

Senator Grassley. We thank you. Senator Hutchison, for your 
statement, and it will be received, and we will have them up just 
as soon as this panel is done. 

Senator Hutchison. Thank you. 

Senator Grassley. Senator Feinstein? 

QUESTIONING BY SENATOR FEINSTEIN 

Senator Feinstein. Thank you very much. Senator. 

Because Proposition 187 has been raised and I think on this com- 
mittee probably the value of having judicial review in initiatives, 
I just want to point out to you that I opposed 187. Because of it, 
I almost lost the election. I would oppose it today. Proposition 187 
in my analysis would require a teacher in a school, if that teacher 
suspected that a youngster might be illegally in this country, to re- 
port that youngster to the INS. It would also have required a phy- 
sician treating a youngster, if he or she suspected that youngster 
may have been in this country illegally, to report that youngster to 
the INS. 

Additionally, even if the youngster was legal but they suspected 
the parents might not be legal, they would have to report that 
youngster to the INS. That is my honest belief about the way the 
proposition would have worked. 

Now, I want that proposition to be reviewed by the judiciary. I 
want to know whether that is constitutional or not, because that 
is not my understanding of the United States of America. This is 
a very big issue, and in California, it was on the ballot in the 
depths of the recession, when the infrastructure was overloaded. 
We are the State of many, many immigrants, and I have been, as 
you know, strongly opposed to illegal immigration. I sit on that 
subcommittee of this committee. But 187 really raises very major 
and serious constitutional concerns. 

I do not believe in my heart of hearts that people who voted for 
187 really understood — it is very complicated; this was legalese — 
really understood what they were voting for when they voted for 
it. So, in my opinion, a judicial review of that initiative in terms 
of its constitutionality is entirely appropriate. 

Now, let me just say to Judge Graber, I have been looking over 
your curriculum vitae, and I must say I look at it with such pride. 
You are just superbly qualified, and for me to meet a woman who 
sits on the supreme court of her State I think is most impressive. 
And so I would just like to offer you my warm congratulations. Of 



327 

all the people that I have seen come up here, your curriculum vitae 
is certainly one of the most impressive. So congratulations. 

Judge Graber. Thank you, Senator. 

Senator Feinstein. If I may — and Senator Grassley asked a 
death penalty question — I would like to ask a question about Fed- 
eral sentencing guidelines. I was just present at a swearing-in of 
some Federal judges in California while I was home, and I noted 
some grumbling about the guidelines. So let me ask you both the 
question. 

As you know, Federal judges are subject to a range of Federal 
sentencing guidelines, and they require specific factual findings for 
departure from the guidelines. Furthermore, Congress has recently 
increased the number of offenses subject to mandatory minimum 
sentences. So I would like to ask each of you: Do you have any res- 
ervations about and are you willing to fully, follow Federal sentenc- 
ing guidelines and to fully implement mandatory minimum sen- 
tences where applicable? 

Judge Graber. I have no such reservations, and I am willing and 
eager to apply the laws as Congress has written them. We have a 
State analog to those laws, and I have participated in votes uphold- 
ing the constitutionality of those parallel measures. 

Judge Paez. Senator Feinstein, during the last 4 years that I 
have been a district court judge, I have had the opportunity to 
work directly with the sentencing guidelines every week, some- 
times every day, and I have had no difficulty in applying the guide- 
lines. In fact, I find them helpful. In many instances, they make 
the job, the role of sentencing, it is well-defined and you know what 
the parameters are and you know what is expected. And, by the 
same token, the defendants know what is expected and what is 
coming. 

I have no problem with the mandatory minimums that are re- 
quired in certain instances, and I have applied them and I have 
had no difficulty. 

Senator Feinstein. Thank you very much. Judge Paez. 

Now, since judicial activism has raised its head on this commit- 
tee and elsewhere in the United States Senate, I want to ask you 
a question about it. I define a judicial activist as a judge who 
doesn't appreciate the inherent limits on judicial authority under 
the Constitution and who seeks to legislate from the bench. 

I would like to ask each of you: What do you understand the in- 
herent limits on judicial authority to be under the Constitution of 
the United States? 

Judge Graber. Senator, the role of the judiciary, as you have 
pointed out, is a limited one under our separation of powers. In my 
writings that I have submitted to the committee, I have expressed 
my philosophy that a judge's role is to decide the cases that come 
before the court and nothing more, not to make law, not to make 
policy. That is something that, as I say, I have expressed not just 
to this committee but in speeches and other writings, and I hope 
my record will support that I have tried to act by that as well. 

Senator Feinstein. Thank you. Judge. 

Judge Paez. And, Senator Feinstein, I just wish to assure you 
that I have an unbinding respect for the separation of powers and 
the role of the legislature, the role of the executive, and the role 



328 

of the courts. And I can assure you that I understand that we as 
judges are not to legislate. That is the role of the Congress, the role 
of the legislature, and it is the role — the responsibility of the execu- 
tive to enforce those laws. 

We are not to be legislating, and I understand that full well. And 
in my career both as a State court judge and on the district court, 
I have tried very consciously and forthrightly to respect that, and 
I will continue to do so. 

Senator Feinstein. Thank you very much. And a final question 
on precedent. If you are confirmed as a Federal judge, at some 
point you might be faced with applying a Supreme Court or an ap- 
pellate court precedent with which you do not personally agree. 
Would you consider yourself bound by such a precedent? 

Judge Graber. Absolutely, and this is something that as a State 
intermediate appellate judge, which was my initial judicial posi- 
tion, I faced squarely and have been able to do that. Just as I 
would apply a law that Congress passed that I might not agree 
with, because that is not what I am being asked. I would apply the 
precedent whether I agreed with it or not. 

Senator FEINSTEIN. Thank you. 

Judge Paez. 

Judge Paez. I share those same views very much, Senator Fein- 
stein, and I would follow precedent unquestionably. 

Senator FEINSTEIN. Thank you very much. 

Senator Grassley. Senator Thurmond. 

QUESTIONING BY SENATOR THURMOND 

Senator Thurmond. Thank you, Mr. Chairman. 

Justice Graber and Judge Paez, you were present here a few 
minutes ago when the question came up about judicial tempera- 
ment. I presume you take the same position as you heard discussed 
a few minutes ago. Do you or not? 

Judge Paez. Absolutely, Senator. Yes, very much. 

Judge Graber. Yes. 

Senator Thurmond. Judge Paez, what role do you believe judges 
have in developing public policy through case law, when the legis- 
lature repeatedly fails to address important matters? 

Judge Paez. Well, our role as judges is to decide the case that 
is in front of us, to try and ascertain what the law is, and then to 
apply the law to the case, and that is what I have tried to do. I 
always — sometimes it takes a lot of effort to figure out what the 
law is, what the statute says or what the case law is, but that is 
what I — it is to decide the case based upon established precedent 
and what the statute says. 

Senator Thurmond. Judge Paez, an issue that raises concern is 
when policymakers make tough decisions and enact laws only to 
have those laws held unconstitutional by a judge. In October of last 
year, in Los /jigeles Alliance for Survival v. City of Los Angeles, 
you issued a preliminary injunction holding that a Los Angeles 
panhandling ordinance violated the fret; speech provisions of the 
California Constitution. The question is: Are you concerned about 
judges placing unnecessary restraints on policymakers based on ex- 
pansive constitutional interpretations? 



329 

Judge Paez. Senator, I have to be careful here because that case 
is pending in front of me. In fact, on Monday, I just had a status 
conference with the lawyers that are in the case. 

I would just like to go back to what I said earlier. I think you 
need to basically apply the presumption that laws are constitu- 
tional, but then, nevertheless, when your case is brought to you, 
you are called upon to look at the case, to look at the statute or 
whatever you are asked to decide and apply existing law. And basi- 
cally that — I tried to do that in that case, and the lawyers are basi- 
cally — just to share a little insight with you, the lawyers told me 
that they have appealed that case to the ninth circuit. And that is 
where it is today. 

Senator Thurmond. Justice Graber, do you have any comments 
on that? 

Judge Graber. No, I have nothing to add to that. 

Senator Thurmond. Judge Paez — and I will ask you the same 
question. Justice Graber — do you believe that the death penalty 
should be held unconstitutional? 

Judge Paez. Senator Thurmond, the U.S. Supreme Court has an- 
swered that question quite clearly, and I can assure you that there 
is nothing in my background or anything that would in any way 
cause me to question in any way what the Supreme Court has said 
about the constitutionality of the death penalty. 

Senator Thurmond. So you would not hesitate to uphold a death 
penalty sentence? 

Judge Paez. No, sir. 

Senator Thurmond. Justice Graber. 

Judge Graber. I agree with Judge Paez's assessment of what the 
U.S. Supreme Court has held. The Supreme Court clearly has held 
that the death penalty is constitutional, and I would apply that 
precedent. 

As I mentioned earlier, I have, in fact, in the State court system 
voted on numerous occasions to uphold the imposition of the death 
penalty, and it had indeed even been carried out during my tenure. 

Senator Thurmond. Those are all the questions I have. I wish 
you both well. 

Judge Paez. Thank you. Senator. 

Judge Graber. Thank you. Senator. 

Senator Grassley. Senator Sessions. 

questioning by senator sessions 

Senator Sessions. Thank you, Mr. Chairman. 

Frankly, I think both of you have records and friends that indi- 
cate that you are good people and have good legal skills, and I re- 
spect that. I have no quarrel with your integrity or legal ability. 
And really, I am not sure how I feel about these nominations ex- 
cept to say that the court of appeals is one step below the U.S. Su- 
preme Court. It sets a policy and a tone of law for an entire circuit. 

Obviously the biggest circuit in the country is the ninth circuit, 
and most of you know — it is not a very well kept secret — that the 
ninth circuit is having an awful lot of trouble with the U.S. Su- 
preme Court. 

For example, I think last year 27 out of the 28 cases reviewed 
by the U.S. Supreme Court were reversed by the U.S. Supreme 



330 

Court, I believe 13 out of 14 the year before, or something Uke that, 
and over the years that has been a pattern since I was a Federal 
prosecutor. And, in fact, many prosecutors around the country or 
judges wouldn't even consider opinions on discovery matters and so 
forth out of the ninth circuit because they were out of step with the 
current state of the law in the other circuits. 

And so I guess that is causing me to give some thought to your 
philosophy and the importance of correcting and getting the ninth 
circuit back into the right sync with the rest of the law in America. 

I would like to ask you a couple of questions. On the death pen- 
alty, both of you have correctly stated that you believe the Supreme 
Court has made itself quite clear on that subject. But for a number 
of years, at least two members of the Supreme Court dissented on 
that. They are no longer on the Court, but they held to the view 
that the death penalty was unconstitutional. 

Let me ask you, Judge Graber, have you ever had occasion to ex- 
press your opinion on that one way or the other as a private citi- 
zen? 

Judge Graber. No, not as a private citizen. As a judge, I have 
written a number of cases relating to issues involving the death 
penalty, and as I mentioned, I have never written a case in which 
I set forth a theory of any kind under which the death penalty 
would be unconstitutional, under either the Oregon or the Federal 
Constitution. 

Senator Sessions. Well, Justice Brennan, I recall, continued to 
dissent on every death penalty case. You are aware of that dissent, 
I assume, over the years. 

Judge Graber. I was aware of it. 

Senator SESSIONS. If you had been on the U.S. Supreme Court, 
would you have agreed with Justice Brennan or the majority who 
held the other way? 

Judge Graber. I don't know if I could speculate what I would 
have done in his shoes, but I know that since I have had the oppor- 
tunity to look at the arguments that have been made in front of 
me, when a real case has come to me, I have never been persuaded 
by any of the arguments that the death penalty is unconstitutional. 

Senator SESSIONS. Judge Paez, how would you answer that ques- 
tion? Have you had occasion to comment publicly, first, on the posi- 
tion of Justice Brennan and I believe Justice Marshall on the death 
penalty? 

Judge Paez. No, Senator, I have never had the opportunity to ex- 
press any kind of public view on that. 

Senator SESSIONS. Have you filed a brief at any time asserting 
that? 

Judge Paez. No, I have not. Never. 

Senator Sessions. And would you give your opinion as to the va- 
lidity of their view on the death penalty? 

Judge Paez. Well, actually, it has been a very long time since I 
have read any of those earlier — their decisions in 

Senator Sessions. Fundamentally, they found it to be cruel and 
unusual punishment. 

Judge Paez. But I think if you look at the Constitution, I think 
it is our fifth amendment which says that no life or liberty can be 
taken without due process of law, which seems to suggest there 



331 

that the death penalty was recognized as in the Constitution. So 
I wouldn't want to speculate how I would have gone about analyz- 
ing all of that, but it is now years ago that all this has taken place, 
but I think the Court has made it quite clear that it is constitu- 
tional. 

Senator Sessions. Well, I think in a way that was the high- 
water mark of judicial activism because you are correct, I think 
there are about four references in the Constitution adopted by the 
people of this country in 1789 that referenced a death penalty. And 
for a judge sitting today to say the Constitution, which clearly con- 
templated a death penalty, makes a death penalty — ^you know, it 
violates that Constitution, would be an abuse of power to me, and 
to me it is not a matter that good people could even disagree on. 
I was astounded that they openly stated that under the current 
standards of high ethical conduct or evolving standards of decency 
we now declare it unconstitutional. 

So that is just an issue to me. I think sometimes we got caught 
a few years ago in the idea of using the law to force social change 
that the public may not agree with. And I have some doubts about 
that. 

With regard to the panhandling statute, it troubles me that you 
have, in fact, enjoined enforcement of it. That was a politically hot 
issue a few years ago, 10 to 15 years ago, among civil libertarians 
opposing panhandling laws. I never thought the opposition was 
sound, but now we know, for example, in New York City that 
Mayor Giuliani has cracked down on street crime and panhandling 
and minor crimes and subway violations and that kind of thing. It 
has helped reduce crime overall. And these kinds of things can 
make life in a city unlivable. 

Do you understand 

Judge Paez. Oh, absolutely. Senator. 

Senator Sessions. Would you comment on your willingness to 
overrule the decision of the city of Los Angeles with regard to that 
statute? 

Judge Paez. I would just say all I did was make an issue of pre- 
liminary injunction. But, you know, I too — I live in the downtown 
area of Los Angeles, close to downtown Los Angeles, and, you 
know, as a member of the public and as a member of the popu- 
lation in the downtown area, I am aware of the problems you ar- 
ticulate and the problems that the mayor, my mayor. Mayor Rior- 
dan, has articulated with respect to these very issues that Mayor 
Giuliani has looked at in New York. And I appreciate very much 
ever3^hing that they say, and if you look at the order that was filed 
in that case, it tries to follow what I believe the ninth circuit was 
saying and set out there completely. 

But, you know, I am involved in the community and I am sen- 
sitive to the things that you are sajdng. 

Senator Sessions. My time is up. I might like another round. 

Senator Grassley. I am done asking questions, so if you have 
another question or 

Senator Sessions. Well, I would kind of like to follow up on some 
of your 

Senator Grassley. The only thing I want to do is get done with 
the other panel at 4 o'clock. 



332 

Senator SESSIONS. Fair enough. 

With regard to the speech that Senator Grassley asked you about 
originally, you gave that speech as a sitting Federal judge. 

Judge Paez. I had already become a member — I was already a 
district court judge at the time I gave that speech. I was invited 
to go back to Boalt where I graduated from law school to speak in 
a speech that was given recognizing and honoring a good friend of 
mine who was in law school with me and became a State court 
judge and was killed in a tragic accident. And they created this lec- 
ture for his — to keep his memory alive, and asked me to speak on 
issues that would be of interest, would sort of follow in his legacy. 

Senator Sessions. But you did take that opportunity to criticize 
an initiative of the people of California, which is — how do you feel 
about a Federal judge taking public positions on political issues of 
that 

Judge Paez. Well, I don't — well, we shouldn't, and I wasn't trying 
to take a political position. We were bound by certain ethics. None- 
theless, as I said a minute ago, we are — we have a life outside of 
our role as a judge as well, and it was an — I was trying to address 
a particular broad issue, and so I made those remarks. 

Senator SESSIONS. And Senator Grassley asked about Proposition 
187. I think there may be some confusion there, and I would like 
to see if I can clarify. In your speech, you said, "The Latino commu- 
nity has for some time now faced heightened discrimination and 
hostility which came to a head with the passage of Proposition 
187." Now, that is the proposition that 

Judge Paez. Well, that's 

Senator Sessions [continuing]. Senator Feinstein was talking 
about. Then you went on, and I will quote from you. 

Judge Paez. Sure. 

Senator Sessions. "The proposed anti-civil rights initiative will 
inflame the issue all over again without contributing to any serious 
discussion of our differences and similarities or ways to ensure 
equal opportunities for all." 

The question I would have is, first, you are referring there to 
Proposition 209, the California civil rights initiative, were you not? 

Judge Paez. I think so, but at that time, I don't think it was on 
the ballot or it was in — it was pending or it was contemplated. 

Senator Sessions. You said "the proposed" civil rights. 

Judge Paez. I think it was proposed. 

Senator SESSIONS. And you referred to it as the "anti-civil rights 
initiative." 

Judge Paez. Perhaps I did. I don't recall. 

Senator Sessions. This is in your written remarks. I guess I am 
reading right here. "The proposed anti-civil rights initiative." 

Now, tell me how it is that Proposition 209, which basically mir- 
rors the 14th amendment, is an anti-civil rights initiative. 

Judge Paez. I am not sure if at the time the exact proposal was 
identical to what ultimately made it on the ballot, because there 
were a number of — it was — I remember just reading in the papers 
there was a lot of debate going on as to how it should actually be 
formulated. 



333 

But I can just assure you, Senator, that, you know, the ninth cir- 
cuit has said that that statute is constitutional and there is no 
question about it. It is constitutional, period. 

Senator Sessions. They say there was no doubt it was constitu- 
tional. 

Judge Paez. That is absolutely right. They did. 

Senator Sessions. Although a judge had entertained — a sitting 
district judge 

Judge Paez. That is correct. 

Senator Sessions [continuing]. Had entered an injunction, as you 
did, to stop its enforcement. 

Judge Paez. Right. That is correct. 

Senator Sessions. Do you understand how that could frustrate 
the people of California who felt like they were enacting a proper 
law and here a — not you, but this other district judge 

Judge Paez. Right. 

Senator Sessions [continuing]. Had just stopped it and they had 
to then go to the appeals court and — to get it reversed. 

Judge Paez. Correct. 

Senator Sessions. Do you understand the sensitivity of that? 

Judge Paez. I absolutely do. Senator, because, I think as I was 
saying earlier, the initiative process in California is historically 
very important in California. And it is well-grained into the demo- 
cratic process in California, and I think you do have to approach 
these citizens' initiatives on the basis that they are assumed to be 
constitutional. 

Senator Sessions. Do you believe they 

Judge Paez. You approach it very cautiously. 

Senator Sessions. Do you believe they should be given any more 
scrutiny than a legislative act by the State legislature? 

Judge Paez. No; I don't think that — my understanding right now 
on that is, I don't think the Supreme Court has said that citizens' 
initiatives are to be given greater scrutiny just because they are a 
citizen initiative, but I think you approach the analysis as you 
would any State statute or any statute that is attempting to be 
challenged for an unconstitutional basis. 

Senator Sessions. Well, some have 

Judge Paez. But I think — but as I said — I'm sorry. I think I just 
wanted to reemphasize that you approach those matters very cau- 
tiously no matter if it is a legislative-passed statute or if it is a citi- 
zen-driven initiative. And I am sensitive to that. 

Senator Sessions. Well, I guess my only point, do you believe 
that an initiative passed by the people deserves any more — is any 
more suspect than legislation passed by a legislature? 

Judge Paez. No; I don't, Senator. Not at all. 

Senator Sessions. Some have adhered to that view. 

I want to pursue a little bit again — and I think this was a pre- 
pared address to a law school. 

Judge Paez. Sure. 

Senator Sessions. And you referred to the just-passed California 
civil rights initiative as "the anti-civil rights initiative." And I 
would like for you to explain for us what it is that made you char- 
acterize it in that fashion. 



334 

Judge Paez. I am not sure exactly what — how I wrote those re- 
marks or why I said those remarks at the time, but let me just say 
this: As I recall, these issues, sometimes the citizens' initiatives 
do — ^tend to be somewhat divisive throughout the populace in Cali- 
fornia. And I think that particular initiative which followed on the 
heels of 187 that Senator Feinstein just elaborated on tended to be 
a little bit controversial throughout the population. And I think in 
some communities it was viewed as another — raising issues that 
people didn't really want to deal about, and it tended to be con- 
troversial. 

A lot of people were disappointed and upset with the initiative, 
and I think I am just reflecting there that those matters can be dis- 
ruptive, but, again 

Senator Sessions. Well, you didn't say it was disruptive. You 
didn't say it was a disruptive issue. You said it was an anti-civil 
rights. Can you tell me how that initiative — where you would de- 
clare it to be anti-civil rights? 

Judge Paez. I don't think I — ^well, it's not anti-civil rights be- 
cause it sought to ensure equal opportunity and to make that clear 
and to basically eliminate government-sponsored — State-sponsored 
affirmative action programs. 

Senator Sessions. Well, that is the — I think that is the point to 
me. I am troubled by the idea that if you don't agree with my defi- 
nition of civil rights, you are anti-civil rights. I think the fourteenth 
amendment, the Supreme Court in the Adarand case, the people 
of California in this case, say very clearly they believe everyone 
should be treated equally and fairly, but they do not believe that 
people should be given advantages 

Judge Paez. Right. 

Senator Sessions [continuing]. Because of their background, the 
color of their skin, or their race. And I think that is pro-civil rights. 
And I think that was the motive behind the civil rights initiative, 
and I just want to see if you think that because it eliminated 
quotas and preferences that you would consider that to be anti-civil 
rights. 

Judge Paez. No; I don't. Senator, and I regret that those words — 
that I used those words, because I think mainly what I was trjdng 
to reflect was a frustration and concern because it was — it followed 
on the heels of 187, which raised a lot of debate and a lot of con- 
cern. And that is all I think I was really trying to reflect there. 

I think — as I said earlier, I think Adarand has made it quite 
clear, and Croson, which was a case following that that applies to 
State officials, that any attempt to adopt classifications based on 
race are inherently suspect, and they can only be justified by a 
compelling State interest. And I recognize that in Adarand that 
Justice Scalia said there can be no compelling State — there can be 
no justification whatsoever for any such classification. 

So, I am sensitive to those issues, and I wish to assure you that 
I am. Those propositions — and there have been others in the past 
that have raised other issues, and I am sure in the future there 
will be more from all sides and all walks — raising all kinds of 
issues. 

Senator SESSIONS. Yes. Well, let me ask one more thing 

Senator Grassley. Senator Session. 



335 

Senator Sessions. Oh, I am sorry. 

Senator Grassley. We do have Senator Leahy. 

Senator Leahy. If you have only one more question, go ahead. 

Senator Sessions. Well, yes. I think that is all I would have, and 
that would be — when you evaluate — ^you criticized the disparity, ra- 
cial disparity of the makeup of the bench in California. 

Judge Paez. Sure. 

Senator Sessions. And it is something, I think, that is worth 
analyzing and important. It ought to be studied, and we ought to 
talk about it. 

But if you decide what kind of — what the makeup should be, 
would you agree or not agree that the makeup should be compat- 
ible with the percentage of minorities admitted to the bar and who 
have practiced for, say, 10 years, the normal time maybe they ex- 
pect, as compared to the overall percentage of 

Judge Paez. Right, it 

Senator Sessions [continuing]. That group in the population or 
not? 

Judge Paez. If you are going to try and do any kind of propor- 
tional analysis, that probably would be a more appropriate analy- 
sis. But I'm not even sure that that is even appropriate itself, be- 
cause basically, I think, you just want to reach out and to make 
sure that there is some representation on the courts with respect 
to all people from all kinds of different — with all kinds of different 
backgrounds, prosecutors, defenders, women. It should be reach 
out. And I don't — I'm not suggesting that there should be any one 
analysis. That certainly is good — if you are going to do that, that 
is certainly a — there is lot of justification 

Senator Sessions. Well, I notice in your speech you didn't make 
any reference to percentage of lawyers in the population 

Judge Paez. No. I'm not sure — I don't think at the time I had 
those statistics. 

Senator Sessions. Your criticism was of the overall population. 

I 3deld to the distinguished minority. 

Senator Grassley. Senator Leahy. 

QUESTIONING BY SENATOR LEAHY 

Senator Leahy. Judge, I would ask you as a member of the dis- 
trict court, no matter what feelings you might have on civil rights 
or anything else, you would be bound by the decisions of the ninth 
circuit, would you not? 

Judge Paez. Yes; absolutely. Senator. 

Senator Leahy. And as a member of the ninth circuit, you would 
be bound by decisions of the Supreme Court. Is that correct? 

Judge Paez. That is correct. Absolutely. 

Senator Leahy. Do you have any question in your mind that no 
matter how you may feel about what the legislature might or might 
not have done on some of these civil rights issues, do you have any 
question in your mind that you would be able to follow both as a 
district judge the stare decisis of the ninth circuit and as a ninth 
circuit judge the stare decisis of the Supreme Court? 

Judge Paez. Absolutely no. Senator. I can assure you, as I have 
tried to do the other Senators, that I will follow the law of the 



336 

ninth circuit and the law of the Supreme Court. That is my — I am 
duty-bound to do that, and I respect that very much. 

Senator Leahy. In fact, Judge, I think one of the reasons why 
you have the highest rating the American Bar Association can give 
and the strong support of the CaUfornia Senators and the very 
strong support of numerous people across the political spectrum in 
California is, frankly, because you have done that. You have fol- 
lowed the law and followed it very carefully. 

I know that some have talked about your service in legal aid. As 
far as I am concerned, lawyers who are willing to take time, wheth- 
er in pro bono work or legal aid or areas like this, where, frankly, 
talented lawyers like yourself often do not spend the time, I think 
that is a matter you should be commended for. 

I know I spent nearly 9 years as a prosecutor, and there were 
times when the public defenders would have me tied up in a knot, 
and I might get a little bit annoyed at trying to figure out how I 
was going to get out of that. But every day I said thank God they 
are there, because somebody — and especially the better ones, be- 
cause somebody has to be there making sure that the system 
works. You know and I know — and you have certainly seen liti- 
gants before you where one side is unable to get real counsel be- 
cause of poverty or status in the community or whatever. And you 
know, as I do, that that is a terrible case to have to try to preside 
over. Am I not correct? 

Judge Paez. You are absolutely correct. Senator. The law — some- 
times in State court, though the issues were simple for me, per- 
haps, just coming into the court, coming into the municipal court, 
it is a very intimidating experience. The law is complicated wheth- 
er it be a simple consumer dispute, an unlawful detainer case, or, 
for that matter, a complex insurance dispute over coverage. 

I learned to appreciate that very much when I worked as a law- 
yer. I saw that when I was a State court judge, and I see it again 
in the Federal court, because the Federal court — ^you come into a 
Federal court, and it is a very awesome experience. And for some- 
body who is not schooled in the law, a lawyer who is not trained 
in Federal practice, it can be very difficult. And I have always been 
tried — have been sensitive to that, and as a judge, I have always 
tried to display courtesy and just take the time with both pro per 
litigants and new lawyers to assist them and to train them and to 
see that they grow and develop. 

And I tried to do that as a judge with new judges when I was 
a State court judge as well. So I appreciate that. 

Senator Leahy. Well, Judge, that is certainly the reputation you 
have, certainly the reputation that those who have written to me 
on your behalf. And as I said before, some of those people go across 
the political spectrum and certainly go across the spectrum of 
plaintiff, to defendant, lawyers, and on. Your nomination has been 
here now for 2 years. I would hope that all members would feel 
that you have answered the questions and we could have a vote up 
or down on you, which I think is what you would like. And, frank- 
ly, Mr. Chairman, I predict that if we do have a vote up or down 
on the floor, it will be overwhelmingly for confirmation. 



337 

I know that Senator Feinstein was here earlier, and so I will not 
have questions of our other nominee other than to wish her the 
best. 

Judge Graber. Thank you, Senator. 

Senator Leahy. Just as I think that we are going to have — we 
want to be able to move your title from justice to judge as quickly 
as we can. I don't think you will mind that, will you? 

Judge Graber. I wouldn't mind it at all. I would be honored, sir. 

Senator Leahy. Thank you. 

Senator Grassley. Thank you, Senator Leahy. 

I had made the point earlier. You might get some answers to 
question — or get questions that you should submit answers in writ- 
ing, and we would like to have those back by the close of business 
Monday. 

Judge Paez. Thank you. Senator. 

Senator Grassley. That is what the chairman's staff" has told me 
is the deadline. 

Senator SESSIONS. Senator Grassley, I have one question of 
Judge Graber. 

Senator Grassley. Yes. I hope it will be short. 

QUESTIONING BY SENATOR SESSIONS 

Senator Sessions. You filed two briefs with the ACLU on cases 
that are somewhat troubling to me, although they were a number 
of years ago 

Senator Grassley. Let me clarify something right away. The 
record will be left open for members to submit questions through 
Monday. Then you will have a period of time after that to get the 
answers back. I am sorry. 

Judge Graber. Thank you for that clarification. 

Senator Sessions. One in which you supported — filed a friend-of- 
the-court brief for the ACLU in Oregon supporting a racial pref- 
erence hiring plan implemented by the Civil Service Board of Port- 
land. Do you recall that? And do you think that brief would be ap- 
propriate today under the current state of the law? 

Judge Graber. Senator, I have a vague recollection. I know the 
case to which you are referring. It related to a hiring rule of the 
Portland Police Bureau, I believe. As you point out, it has been 

Senator Sessions. They had been hiring on objective test scores 
and presumably they came into a plan to give preferences to assist 
people with their scores. 

Judge Graber. I don't recall the details of the rule because it has 
been a number of years, but to answer the second half of your 
question more directly, the brief that was filed was appropriate ad- 
vocacy for the time but would no longer be appropriate advocacy 
because the U.S. Supreme Court has now clarified the law in this 
area. As Judge Paez mentioned earlier, in the Adarand decision 
the Supreme Court has made it clear that strict scrutiny is to be 
applied to racial classifications and that any remedy must be nar- 
rowly tailored to respond to a specific, compelling governmental in- 
terest. So, no, that argument would not be appropriate advocacy 
today. 

Senator Sessions. I think you have probably spoken well. I think 
at that time it was probably at the margin, but it was good — I can 



338 

understand that as an advocacy. How did you come to file that 
brief? Were you retained and paid to, or was that a volunteer? 

Judge Graber. I can't recall for certain. The best of my recollec- 
tion at this time, one of the other lawyers in the office had taken 
that case as a pro bono matter and asked me to assist. 

Senator SESSIONS. And you also 

Judge Graber. That is the best I can recall at this time. 

Senator SESSIONS. OK. In 1984, 2 years later, you joined with the 
ACLU in a brief arguing that an administrative rule limiting reim- 
bursement for elective abortions violated the indigent woman's 
right of privacy under the Constitution. Would you explain that? 

Judge Graber. Again, Senator, I have only a vague recollection 
of the specific arguments made in that brief because it was such 
a long time ago. The primary argument that was made in that 
brief, to the best of my memory, was an argument under the Or- 
egon State Constitution, which is somewhat different in its wording 
and history than the Federal Constitution. And the other thing I 
remember, that is memorable to me about that case was that when 
the Oregon Supreme Court decided it, it decided it on a basis that 
none of the parties had argued or thought of having to do with the 
structure of Oregon government and the permissibility of a rule 
being implemented by the emergency board. 

Senator SESSIONS. Well, I don't think they would have done well 
to have adopted your argument in that case. 

Judge Graber. Perhaps not. 

Senator SESSIONS. I can see one thing in that the right of an in- 
dividual to have an abortion you could argued involved the right 
of privacy. I don't agree. But this supposition it would seem to me 
to be outside the mainstream. 

Are you a member of the American Civil Liberties Union or have 
you ever been? 

Judge Graber. I was for a time, probably in the early 1980's for 
a short while. But I don't know the exact dates. 

Senator SESSIONS. Well, it is a remarkable organization. It has 
some fine people who are members of it. But it does adhere to a 
number of positions such as they oppose the death penalty, they 
oppose the "three strikes" sentencing laws, they are in opposition 
to school vouchers for sectarian schools, they oppose V-chips for tel- 
evision sets to limit what is shown, opposition to voluntary labeling 
of albums, and support of the partial-birth abortion, support of the 
constitutionality on the issue of racial preferences, and the decrimi- 
nalization of drugs. 

Senator Grassley. Is it OK if we move on? 

Senator SESSIONS. Yes, sir. 

Well, do you agree with all of those views? Do you have any con- 
cern about them? 

Senator LEAHY. Well, wait a minute, wait a minute, wait a 
minute. 

Mr. Chairman, I would ask if the nominee is going to be asked 
on specific issues that may be coming up — and, of course, that is 
her determination whether she wants to answer it or not is one 
thing. But to ask her whether she ascribes to everything in any or- 
ganization, I think, goes beyond the scope of these hearings. 



339 

Senator Sessions. Well, there is not enough time to discuss it. 
I withdraw the question. 

Senator Grassley. OK, thank you. 

Senator Leahy. And might I say, also. Justice Graber, when you 
are a litigant, you are going to argue your client's side, am I not 
correct? I mean, you are going to argue as strong as you can for 
that one side, as compared to when you are a judge and you have 
got to listen very carefully to both sides. Would that be a fair state- 
ment? 

Judge Graber. It would. Senator, and I mentioned in response 
to Senator Sessions' question that the law had changed greatly 
since I filed that brief. And, of course, my role has also changed 
from that of an advocate to that of a judge, and I appreciate the 
difference. 

Senator Grassley. Thank you. We dismiss you. 

Judge Graber. Thank you. 

Senator Grassley. You have been very patient with us and we 
thank you very much. 

Judge Paez. Thank you. Senator. 

Senator Grassley. I am going to call the next panel, and I am 
also going to add to the next panel the one remaining one we have 
for the U.S. Court of International Trade because, remember, we 
had taken Judith M. Barzilay out of order for the benefit of Senator 
Specter. 

So I would call Sam A. Lindsay, Hilda G. Tagle, and Delissa A. 
Ridgway at this point, and before you are seated, would you raise 
your right hand, each of you? 

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 Tagle. I do. 

Mr. Lindsay. I do. 

Ms. Ridgway. I do. 

Senator Grassley. Please be seated. Now, as is customary, we 
would give each of you an opportunity — we will start with Ms. 
Tagle, Mr. Lindsay and Ms. Ridgway — for an opening statement 
and to introduce family and friends. 

TESTIMONY OF HILDA G. TAGLE, OF TEXAS, TO BE U.S. 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS 

Judge Tagle. I have no opening statement, Mr. Chairman, but 
I would like to introduce my family and my friends. 

Senator Grassley. Please do. 

Judge Tagle. First of all, I should inform you that my four 
brothers and my nephew drove 1,700 miles, 30 hours straight, to 
be here, and they arrived here at 3:30 this morning. So I am very 
proud to — and I am going to ask if it is all right with the chairman 
to have them stand when I call their names. 

My nephew, Santiago Tagle, Jr., who I raised since he was 10 
years old; my brother, Manuel, from Corpus Christi; my brother, 
Jerry, from Robstown; my brother, Joe, also from Robstown; and 
my brother, Jimmy. And these are my family who are here. 

I also have a very good friend originally from Robstown, but now 
from Birmingham, AL, Phillip Tobias, who is here. And I have my 



340 

court manager, Cathy Barrera, who is here, who also drove 30 
hours to be here. And I have three very good friends, my comadres, 
I call them; they are my very good friends, Alda Grodines, Paula 
Waddle, and Rosario Carrizo. 

Senator Grassley. Well, you have much support, much support. 

Senator Leahy. I might say, also, Mr. Chairman, that we should 
make sure — ^you are going to enjoy the fact, and will get copies of 
that part of the transcript because their names and the fact that 
they are here becomes a matter of the permanent history of the 
U.S. Senate. 

Judge Tagle. Thank you. 

Senator Grassley. Yes, and thank you for making that clear. 
Senator Leahy. 

Mr. Lindsay, you can make an opening statement and you can 
also introduce your family and friends. 

TESTIMONY OF SAM A. LINDSAY, OF TEXAS, TO BE U.S. 
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS 

Mr. Lindsay. Thank you, Mr. Chairman. I have no opening state- 
ment, but I am extremely grateful to be here. I would like to intro- 
duce to the committee my wife, Kathleen Lindsay; my oldest 
daughter, Constance; my little daughter, Rachel; my youngest 
daughter, Heather. I also have my brother, who is a retired colonel 
from Delaware, Joe Lindsay. I also have here my sister. Dr. Bev- 
erly Lindsay, from Pennsylvania. 

Senator Grassley. Ms. Ridgway. 

TESTIMONY OF DELISSA A. RIDGWAY, OF THE DISTRICT OF 
COLUMBIA, TO BE A JUDGE OF THE U.S. COURT OF INTER- 
NATIONAL TRADE 

Ms. Ridgway. Thank you very much. I have no opening state- 
ment, Mr. Chairmgin, but I too am very grateful to be here. Com- 
pared to the other nominees, I am fljdng solo, relatively speaking. 
I do have several friends with me here today, and colleagues. I 
would like to introduce my former special assistant, David Blake, 
and my current special assistant, Sebastian Saviano. I am grateful 
to have them here with me today. 

Senator Grassley. Yes, thank you. 

Judge Terrell. I am Judge Mary Terrell and I am here in sup- 
port of Ms. Ridgway. 

Senator Grassley. Well, thank you very much. 

Ms. Ridgway. I did not know that Judge Terrell was here and 
I thank her, as well, for her presence. 

questioning by senator grassley 

Senator Grassley. Thank you. Judge, for making that known. 

I would first ask questions of the two district nominees and then 
to Ms. Ridgway. So at this point, it would be just you two. 

For both of you, do you have any legal or moral beliefs which 
would inhibit or prevent you from imposing a death sentence in 
any criminal case that might come before a Federal judge? 

Judge Tagle. Are you asking me to answer first, Mr. Chairman? 

Senator Grassley. Yes. 



_ ^ 341 

Judge Tagle. I have no such reservations. As a matter of fact, 
I have presided over at least one capital murder case last year and 
I am currently in the middle of the voir dire of another capital 
murder case. 

Senator Grassley. Mr. Lindsay. 

Mr, Lindsay. I have none, Mr. Chairman. 

Senator Grassley. I am sure that you are very aware of the Su- 
preme Court's decision last term regarding the Adarand and 
Croson decisions. Please explain to the committee your understand- 
ing of those decisions and their holdings concerning the use of race 
to distribute Government benefits or to make Grovernment contract- 
ing or hiring decisions. I will start with you, Ms. Tagle. 

Judge Tagle. The Supreme Court has said that all racial classi- 
fications, or any racial classifications, should be scrutinized very 
closely by the judiciary and that unless there is a compelling State 
interest that any remedy should be tailored very narrowly to fit 
that compelling State interest. 

Senator Grassley. Mr. Lindsay. 

Mr. Lindsay. Mr. Chairman, I agree with the statement by 
Judge Tagle, and I would add, however, that race-based remedies 
should be used in situations only to remedy the present effects of 
past discrimination. 

Senator Grassley. Please state in detail your best independent 
legal judgment, irrespective of existing judicial precedent, on the 
lawfulness under the equal protection clause of the 14th amend- 
ment and Federal civil rights laws of the use of race-, gender- or 
national origin-based preferences in such areas as employment de- 
cisions; for instance, hiring, promotion, layoffs; also, college admis- 
sions and scholarship awards and the awarding of Grovernment 
contracts. 

Ms. Tagle. 

Judge Tagle. I believe that the law of the land being that any 
protected class — it should be very limited — ^that a court or a judge 
having before him or her a case involving those issues should very 
closely scrutinize the facts as they are before the court because, you 
know, as far as my own independent legal judgment, I think a 
judge should always look at what the precedent is and, you know, 
what that court has — similar courts have decided. 

Senator Grassley. Mr. Lindsay. 

Mr. Lindsay. Mr. Chairman, I think my independent legal judg- 
ment would somewhat be shaped by precedent and the Constitu- 
tion. But in those situations, if there is going to be an exception, 
it has to be narrowly drawn, and to avoid claims of discrimination 
by this group or that group, a court's role should be one in which 
it takes into account the fundamental rights and the action by the 
court to reflect that if you are going to draw an exception, there 
should be a compelling reason. They should only do so in excep- 
tional cases. 

Senator Grassley. Are you committed to following Supreme 
Court precedent and the rulings of the Federal circuit court of ap- 
peals for your district faithfully and giving them full force and ef- 
fect even if you personally disagree with such precedent or rulings, 
Ms. Tagle? 



342 

Judge Tagle. Yes, Mr. Chairman. As a matter of fact, I think 
that a comparable question is something that is asked for prospec- 
tive jurors in voir dire in a trial. They are asked, can you follow 
the law even if you personally disagree with, because they will be 
the judges of the facts. But they are bound by the law as given to 
them by the court, and I pledge that I will do that. 

Senator Grassley. Mr. Lindsay. 

Mr. Lindsay. Yes, I am, Mr. Chairman. 

Senator Grassley. OK. 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 on the merits? Ms. Tagle. 

Judge Tagle. Mr. Chairman, I would — I'm sorry. I would follow 
that precedent. 

Senator GRASSLEY. Mr. Lindsay. 

Mr. Lindsay. I would have to follow the precedent of the Su- 
preme Court or the court of appeals. 

Senator GRASSLEY. Under what circumstances do you believe it 
appropriate to declare a law of Congress unconstitutional? Ms. 
Tagle. 

Judge Tagle. Well, I am assuming — ^that supposes that I would 
do that because what I would tell you is that as a judge, I am obli- 
gated to look at what the plain language of a statute is and then 
to look at what other opinions or, you know, precedent in similar 
statutes might be, whether in this jurisdiction or other jurisdic- 
tions. I think that all statutes should be looked at with the pre- 
sumption that they are constitutional and I would not do so — I 
would not proceed with the premise that something is unconstitu- 
tional, but rather that it is constitutional. And so I would look at 
the language and precedent and the interpretation of a similar or 
comparable statute. 

Senator Grassley. Mr. Lindsay. 

Mr. Lindsay. Mr. Chairman, the first thing I would do, as Judge 
Tagle said, is I would begin with a presumption that the statute 
is constitutional or valid, and then I would look to the plain lan- 
guage of the Constitution. And if I get no help there, I would go 
to the prior precedents and if that, too, is unclear, I would look at 
legislative history and make the best legal determination that I 
could. 

Senator Grassley. You have stated that — and this is for both of 
you — as a district court judge, you would be bound by the Supreme 
Court precedent and the rulings of the Federal circuit court of ap- 
peals for your district. There may be times, however, when you will 
be faced with cases of first impression. What principles will guide 
you or what methods will you employ in deciding cases of first im- 
pression? 

Judge Tagle. I think it is very important to look at the prece- 
dent or the rulings in other jurisdictions in comparable situations. 
I think you have an obligation as a judge to find the most analo- 
gous situation possible in a case because cases are different and 
you are not always going to find it directly on point. But I think 
that the method that I use, which is always looking for the most 
analogous precedent, and if not, then try to look at what makes 



343 

sense — I have a commonsense rule of thumb, what makes sense in 
this case. 

Senator Grassley. Mr. Lindsay. 

Mr. Lindsay. I would do much the same, Mr. Chairman. I think 
when there is no precedent, no courts have ruled and the Constitu- 
tion is silent, then the best thing you can do is look to other cir- 
cuits or other cases and try to fmd a case that is closely analogous 
and then use your best independent legal judgment. 

Senator Grassley. Ms. Ridgway, I spoke to a person who will be 
your colleague with a question. I am also chairman of the Inter- 
national Trade Subcommittee of the Senate Committee on Finsince, 
and so I am very interested in the evolvement of our global econ- 
omy. 

Do you anticipate that your role and the role of the Court of 
International Trade becoming more important as this happens? 

Ms. Ridgway. Thank you, Mr. Chairman. Indeed, the role of the 
court is growing in importance with the growth of the global econ- 
omy, and I think that we can be very proud indeed that other coun- 
tries look to our system of trade regulation here, as well. So, it is 
an important subject matter not only for this country and those 
who do business in this country and with this country, but for the 
rest of the world as well. 

Senator Grassley. Could you explain how your training or expe- 
rience will serve you as a member of the International Trade 
Court? 

Ms. Ridgway. Of course. I have more than a decade of experience 
in international law, and that includes both international and arbi- 
tration litigation matters, as well as international transactional 
work, international business basically. In fact, I should note that 
one of my former students at American University when I was a 
professor there — one of my students in international business is, I 
have just learned, an aide to Senator Boxer and was here in the 
room earlier. So, I have that experience. 

I also have basically 3 Viz years of judicial experience in my cur- 
rent post. I have adjudicated literally hundreds — in fact, thousands 
of cases over that 3y2 year period. I have a very strong background 
in administrative law. Before I began my work in international 
law, I did administrative adjudication in cases pending before the 
Nuclear Regulatory Commission and taking those cases on review 
to the U.S. court of appeals. So I have a strong background in ad- 
ministrative law, which is important because most of the cases that 
come to the Court of International Trade are essentially judicial re- 
view of agency action, the international trade agencies. 

And then finally, as I indicated earlier, I have taught inter- 
national trade, as well as international arbitration and inter- 
national business transactions, for 3 or 4 or 5 years. I am actually 
not sure how many years. So, I have a strong working knowledge 
of the court, as well as of the international trade agencies. 

Senator Grassley. My last question is whether or not you are 
committed to following Supreme Court precedent and giving it full 
force and effect even if you disagree with it personally. 

Ms. Ridgway. Absolutely, Mr. Chairman. 

Senator Grassley. Thank you, and I thank the three of you for 
answering my questions. 



SO-S'^l QB - n 



344 

I now turn to Senator Leahy, but before then, could I ask if Sen- 
ator Sessions could finish the meeting for me? 

Senator Sessions. I would, and I only have a few questions. 

Senator Grassley. OK, but I want to turn to Senator 

Senator LEAHY. We might be able to zip it even faster. 

Senator Grassley. I wanted to turn to Senator Leahy. 

Senator Sessions. I believe he can finish 

Senator Leahy. I will withhold my questions because I think you 
have asked the important ones, Mr. Chairman, and if they aren't 
too lengthy from my friend from Alabama, I may even forgo them 
altogether. I am ready to go with these three. 

Senator Sessions [presiding]. Well, I think they have the sup- 
port of the President. That is a great honor to be supported for this 
office, and you also have the support of two fine Senators in Kay 
Bailey Hutchison and Phil Gramm. And your background looks 
good to me and I don't really have any questions. I think the chair- 
man has asked them. We wish you the very best. 

I had the pleasure of practicing 15 years full-time before a Fed- 
eral district judge, and I hope you will remember those poor pros- 
ecutors. Sometimes, they make mistakes, too, but they need a little 
kindness, too. 

Senator Leahy. We never did; we never made mistakes. 

Senator Sessions. You didn't? 

Senator Leahy. No. 

Senator Sessions. Well, if they do, have some mercy every now 
and then. 

Senator Leahy, do you have an5rthing else? 

Senator Leahy. No; I have no questions. 

Senator SESSIONS. Well, we congratulate you on your nomina- 
tion. I am sure these nominations will go forward and be presented 
through the Senate. I know of no objections to your nominations. 

So with no further business, we are adjourned. 

[Whereupon, at 3:52 p.m., the committee was adjourned.] 



345 



SUBMISSIONS FOR THE RECORD 



SENATE JirDICIAKY COMMITTEE QUESnONNAUffi 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

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

Judith Barzilay, nee Morgenstem (1944-65), Judith Kimbril (1965-73) 

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

Residence: 

Teaneck, NJ 07666 

OfTice: 

Sony Electronics Inc. 
One Sony Drive 
Park Ridge, NJ 07576 



3. Date and place of birth 

Januarys, 1944 
Russell. KS 



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 Sal Barzilay, who also uses the name Doron Barzilay, and is a 
senior programmer analyst at Depository Trust Company, 55 Water Street, New 
York, NY 10013. 



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

Rutgers University School of Law, Newark, 1978-1981, Juris Doctor, 1981. 
Rutgers University School of Library and Information Science, 1970-1971, 

Masters Degree in Library and Information Science, 1971. 
Wichita State University, 1962-1965, Bachelors Degree, 1965. 
Stem College, New Yoric, New York, 1961-1962, transferred. 



346 



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. 

Non-profit, directorships : 

1996 to present: Ramapo College Foundation 
Ramapo College, Mahwah, New Jersey 07430 

1992-present: American Asso. of Exporters and Importers 
1 1 West 42nd St., New York, NY 10036 

Employment: 

1988 to present: 

Sony Electronics, Inc. 

One Sony Drive 

Park Ridge, NJ 07656 

1988-89: Senior Attorney 

1989-95: Vice-President, Import/Export Operations 

1996-present: Vice-President, Government Affairs 

1986-1988: Senior Litigation Associate 
Siegel, Mandell, and Davidson 
1515 Broadway, 43rd floor 
New York, NY 10036 

1983-1986: Trial Attorney . .- 

US Department of Justice 

International Trade Field Office 

26 Federal Plaza 

New York, NY 10013 ;• ; 

9/82-1 1/83: Attorney 
Williams, Caliri, Niiller and Otiey 
1428 Rt. 23 
Wayne, NJ 07470 

9/81-9/82: Uw Clerk 
Honorable Robert Tarleton 
. ■ New Jersey Superior Court 
Jersey City, NJ 07306 



347 



5/80-9/80: Law Clerk 

John Keale 

Carf)enter, Bennett and Morrissey 

Gateway 3 

Newark, NJ 07012 

ini-llli: Reference Librarian, East Brunswick Library 
2 Jean Walling Civic Center 
East Brunswick, N J 08816 

1/76-8/76: Reference Librarian, Somerset College 
PO Box 3300 
Somerville, NJ 08876 

9/75-1/76: Reference Librarian, Woodbridge Library 
George Frederick Plaza 
Woodbridge, NJ 07095 

9/71-6/74; Reference Librarian, Suffolk County College 
533 College Road 
Selden,NY 11784 

9/68-6/69: English Teacher, Hamilton School 

90 Park Ave. 

Hamilton Township, NJ 08690 

2/68- 6/68: English Teacher, Lawrence High School 
2525 Princeton Pike 
Lawrenceville, NJ 08648 

10/67- 2/68: Editor, Carter Wallace Pharmaceuticals 
POBox 1101 
Cranbury,NJ 08512 

1/65-6/67: High School English Teacher, 
Board of Education 
Wichita, KS 672 17 



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

I have not served in the military. 



348 



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

In 1965, 1 was named an outstanding senior at Wichita State University and cited 
for service to the school. In 1996, 1 was honored at the 1 00th anniversary dinner 
as a distinguished alumna. 

At Rutgers University, I was elected to Moot Court Board and ser\'ed as an 
advisor to the appellate practice clinic. In 1981 my partner and I won best brief in 
the National Association of Trial Lawyers' National Trial Moot Court 
competition. 

In 1993, 1 was recognized as a TWIN awardee by the YWCA of Bergen County, 
New Jersey at its Tribute to Women and Industry. 

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 
title and dates of any ofTices which you have held in such groups. 

From approximately 1981 to 1989, 1 belonged to the American Bar Association 
and the New Jersey State Bar Association. Since 1984, 1 have been a member of 
the Customs and International Trade Bar Association and have served on its 
committee on Customs practice since 1 99 1 Currently, I serve on a special 
disbarment panel convened by the president of the association pursuant to the 
Rules of the United States Court of International Trade. 

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 Organization: 

I have been on the Executive Board of the American Association of Exporters and 
Importers since 1992 and a member since 1989. It lobbies on matters of interest 
to importers and exporters. 

Other Organizations: 

In 1995 I was appointed by Secretary of the Treasur>', Robert Rubin, to his 
Advisory Committee on Customs Operations and was reappointed for a second 
term this spring. I serve on its subcommittee for the agenda. 

Executive Board of Governors, Ramapo College, 1 996-present. 
Women in International Trade, New York City chapter, 1988-present. 
Rutgers University Law School Alumni Association, 1 98 1 -present. 
Wichita State University Alumni Association, 1 990-present. 



349 



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. 

Courts of the State of New Jersey, 1981. 

United States District Court for the District of New Jersey, 1981 . 

United States Court of International Trade, 1983. 

United States Court of Appeals for the Federal Circuit, 1984. 

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

I am enclosing copies of two specialized papers published by organizations active 
in advising businesses in importing and exporting. 

American Association of Importers and Exporters, Compliance under the 
Modernizaiton Act, June 1995. See Attachment A. 

National Association of Manufacturers, Government Trade Regulations Along the 
Global Supply Chain: Avoiding Pitfalls and Maximizing Opportunities, March 
1996. See Attachment B. 

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

1 am in excellent health. My last physical examination was on June 16, 1997. 

14. Judicial Office: State (chr^ologically) any judicial offlces 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 significanfy>pinions 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. 



350 



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. 

Since my appointment in 1995, 1 have served on the Treasury Advisory 
Committee on Commercial Operations of the United States Customs Service. 

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; 

After graduation, I clerked for the Honorable Robert Tarleton, 
Superior Court of New Jersey, Hudson County, from 9/81 to 8/82. 
During that time. Judge Tarieton sat in both the criminal and 
chancery divisions. 



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

I have not practiced alone. 



3. the date, 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; 

From September 1982 to November 1983 1 was an associate at Williams Caliri 
Miller & Otiey, 1428 Rte. 23, Wayne, New Jersey, a general practice law firm. 

From November 1983 to March 1986 I was a trial attorney in the International 
Trade Field Office, United States Department of Justice, 26 Federal Plaza, New 
York. NY 10002. 

From March 1986 to November 1988 I was a senior litigation associate at Siegel, 
Mandell & Davidson, 1515 Broadway, 43rd floor. New York, NY 10036, one of 
the oldest, continuously existing customs and international trade specialty law 
firms. 

From November 1988 to the present I have been employed by Sony Electronics, 
Inc., One Sony Drive, Park Ridge, NJ, 07576 From November 1988 to 
September 1989, 1 was a senior attorney in the law department. From September 
1989 to January 1995, 1 was Vice President, Import and Export Operations in the 



351 



Logistics Division; and from January 1995 to the present I have been Vice 
President for Government Affairs. 



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 the time of my clerkship in 1982 through my association with Williams 
Caliri in 1983, 1 handled criminal and commercial litigation matters, bankruptcy 
proceedings, and matrimonial matters as well as municipal court trials. 

At the Justice Department, from 1983 to 1986, 1 represented the United States in 
customs and trade matters, including product classification, country of origin 
marking issues and penalty cases initiated against importers for improper 
importation of goods, including breaches of import bonds, pursuant to the 
provisions of 28 USC sec. 1581-1585. I conducted trials, motions and appeals in 
matters of import classification and federal jurisdiction, valuation of imported 
merchandise, appropriateness of agency action in prohibiting the impwrt of 
merchandise and seizures. I also pursued matters on behalf of American 
manufacturers under 19 USC sec. 1516 and represented the United States at the 
Court of Appeals for the Federal Circuit. 

From 1986 to 1988, at Siegel, Mandell & Davidson, I advised firms such as 
Macy's, Liz Claiborne, Isuzu Motors of America, Funai Electric, Fujitsu General, 
on US customs and regulatory matters including import, export and antidumping. 
I litigated before the Court of International Trade and the Court of Appeals for the 
Federal Circuit and represented our clients before regulatory agencies such as 
the Department of Commerce, International Trade Commission and the US 
Customs Service. I also wrote testimony for clients' appearances before 
congressional committees in retaliatory trade cases. 

In November 1988, 1 joined the Sony Corporation's electronics division as its first 
in-house international trade attorney. I advised the corporation on a number of 
legal issues involving international trade; antidumping, classification and 
value of imported merchandise, and licensing of product for export. 

In 1989, 1 was promoted to Vice President, Import and Export Operations and 
charged with the task of building a professional group to handle 
these functions for Sony's multi-billion dollar import and export activity. Using 
my knowledge of international trade statutes and regulations, I translated the 
regulatory requirements into business operations, both manual and automated to 
ensure compliance. Under my direction, the compliance function was brought in 
house resulting in no US Customs penalty actions or Department of Commerce 
inquiries. I prepared the first comprehensive import/export procedures manual 



352 



and developed a regulatory education program for corporate executives. I 
spearheaded the NAFTA preparation task force to prepare Sony Electronics to 
operate within the requirements of the agreement. The company's first automated 
systems to support these activities were designed and implemented under my 
direction, including a records retention system to support US government audits 
and an export compliance module to ensure legal export transactions These 
systems have gained national recognition. 

Since January 1996, 1 have been Vice President, Government Affairs. In this 
capacity I advise the corporation on government activities including international 
trade and telecommunications issues which affect Sony Electronics' business 
interests in the United States. I analyze legislative and administrative initiatives, 
recommend positions to senior executives, and represent the company at 
various industry and government venues. 



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

Except for a short time in the beginning of my law practice when I was involved 
in a variety of commercial and domestic litigation matters for businesses and 
individuals, I have specialized in the international trade area. 

During the time I worked for the government, my sole client was 
the US Customs Service In private practice I represented importers 
and exporters ranging from Fortune 500 companies and major 
multinationals to small family owned businesses. From 1988, 1 
have served one client: Sony Corporation of America, most 
particularly Sony Electronics Inc., a Delaware corporation. 



1. Did you appear in court frequently, occasionally or not at all? If 
the frequency of such appearances in court varied, describe each such 
variance, giving dates. 

At the beginning of my career, while with Williams, Caliri, Miller & Otley, I was 
assigned all the municipal court work, including pro bono obligations of the firm. 
This gave me an excellent chance to practice my skills in these venues, handling 
driving under the influence, disorderly persons and other similar matters, at 
least once or twice a month. I also argued motions in NJ Superior Court on land 
use and collection issues, appeared in bankruptcy court and in federal district 
court for motion practice. 

During the years 1983 to 1988, 1 appeared in court frequently, at least once a 
week on motions or trials, especially when I practiced with the Justice 
Department, where I participated in ten trials and was lead counsel in seven. I 
drafted papers for numerous motions, some of which I argued before the court. I 

8 



353 



appeared before the Court of Appeals for the Federal Circuit four times at 
appellate argument. 

At Siegel, Mandell and Davidson, much of our litigation matters were decided 
on the papers, especially in the context of appealing an agency decision to the 
Court of International Trade. Nevertheless, 1 argued several motions, was lead 
counsel in one trial, and argued one appeal during my three years with the firm. 

Since joining Sony Electronics in 1988, 1 have not appeared in court. 



2. What percentage of these appearances was in: 

(a) federal courts; 85% 

(b) state courts of record; 10% 

(c) other courts. 5% 

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 have tried eleven matters to judgment. I conducted the entire trial in all 
eleven. In four I was sole counsel. In seven, I was lead counsel and other 
attorneys participated in the briefing process. 

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 members of co-counsel and 
of principal counsel for each of the other parties. 

The following represent my most significant litigated matters. All were litigated 
either at the United States Court of International Trade or the United States 



354 



Court of Appeals for the Federal Circuit If there were motions as part of the 
proceedings, I wrote the entire brief, subject to review, and argued the motion, if 
heard. In cases that proceeded to trial, 1 conducted all pre-trial motions and 
discovery, conducted the trial and wrote all the pre- and/or post-trial briefs. 

1. Canadian Fur Trappers Corp.. et. al. v United States . 691 F. Supp. 364 (CIT 1988). 

1 represented Canadian Fur Trappers, an importer of goods assessed 
countervailing duties by the Commerce Department in an agency proceeding. We 
challenged the method in which liquidation (final assessment of duties by the 
Customs Service) had occurred after the final agency review of the order. This 
case was significant because it was the first adjudication of the "deemed 
liquidation" statutory scheme pursuant to 19 USC sec. 1504 in the context of an 
antidumping/countervailing duty proceeding. The Department of Commerce had 
failed to liquidate the entries at issue for more than 90 days after the close of the 
countervailing duty period of review. I argued that the government's failure to 
liquidate entries at issue more than 90 days after the suspension of liquidation 
terminated resulted in automatic liquidation without additional duties. I also 
argued that interest should not have been assessed. The court held that the 
deemed liquidation statute did not apply in this context as it did not specify 
consequences for the government's failure to actively liquidate. I was partially 
successful in the interest argument and the court mandated the agency to 
recalculate the interest in favor of my client. 1 developed the arguments on behalf 
of Canadian Fur Trappers, with others in my firm. I wrote the brief and argued 
before the United States Court of International Trade, Judge Tsoucalas, on 
December 9, 1987. 

PlamtifFMeldisco was represented by Teresa M Polino formerly of Mudge, Rose, 
Guthrie, Alexander and Ferdon, now at Sandler, Travis and Rosenberg, 1341 G. 
St., NW, Washington, DC 20005, 202 638-2230. The United States was 
represented by Velta A. Melnbrencis, Commercial Litigation Branch, Civil 
Division, US Department of Justice, Washington, DC. 20530, 202 307-0369. The 
Footwear Industries of America, an amicus, was represented by Lauren R. 
Howard and Michael R. Kershow, Collier, Shannon, Rill & Scott, 1055 
Thomas Jefferson Street, Washington, DC 20007, 202 342-8400. 



2. Bantam Travelware Div. v. United States. 858 F.2d 742 (Fed.Cir. 1988). 

I represented Bantam Travelware at both the trial in the Court of International 
Trade and at the appeal. We argued that the luggage imported by Bantam should 
be reclassified at a lower rate of duty because it contained braided components. 
Historically imported luggage containing any amount of braid regardless of its 
usefulness had been classified in a tariff provision with a lower rate of duty than 
luggage without braid. At trial. Judge Nicholas Tsoucalas heard evidence 
concerning the amount and significance of braided handles in luggage and held 

10 



355 



that the subject luggage could not be classified in the provision claimed by 
Bantam. We appealed and, unfortunately, could not secure a reversal. The Court 
of Appeals for the Federal Circuit, Judge Paul Michel presiding, upheld the lower 
court's denial of the reclassification of the imported luggage. 1 conducted the 
trial, wrote all the briefs, both trial and appellate and argued the appeal. 

The United States was represented at both proceedings by James A Curley of the 
International Trade Field Office, US Department of Justice, New York, NY 
212-264-9230. 



3. Nissho-Iwai American Corp. v. United States . 771 F.2d 1502 (Fed. Cir. 

1985). 

I successfully represented defendant-appellee the United States in this appeal 
which upheld the Court of International Trade's classification of tool joints for 
oilfield equipment under a provision for a higher rate of duty than that claimed by 
plaintiff-appellant. This case was significant because it litigated a typical issue 
that comes before the court of International Trade: as tariff classification duty 
rates are lowered for certain types of merchandise, plaintiffs try to apply those 
decisions to other merchandise related in lesser degrees to the initial merchandise 
This case provided the decision which clearly set out what merchandise would be 
covered under the newly lowered duty rate and which would be excluded 

Nissho-lwai was represented by Peter Baskin, Sharrets, Pale, Carter & Blauvelt, 
67 Broad Street, NY, NY 10004, 212 425 0055. 



4. Grover Piston Ring v. United States . 752 F.2d 626 (Fed. Cir. 1985). 

In this case, the Court had granted the government's motion to dismiss for lack of 
jurisdiction and the plaintiff appealed. The appeal was heard before Judge Jack 
R. Miller of the Court of Appeals for the Federal Circuit. I represented 
defendant-appellee the United States in a question of jurisdiction where the 
Court of International Trade held that plaintiffs claim for reliquidation of entries 
of merchandise could not be heard for failure to exhaust administrative remedies. 
The attorney for Grover had not filed a proper summons and protest because he 
had not listed the numbers of each of the 100 entries he was protesting on either 
the protest form or the summons filed with the Court of International Trade This 
was a case that demonstrated that statutes which give permission to sue the 
government must be strictly construed. As a new attorney to the practice, I 
learned a valuable lesson: that judges must apply the law to the case at bar, even 
when the result may seem unfair to those not steeped in the principles of 
statutory construction. 



II 



356 



The attorney for PlaintifFwas John D. Bird of Churchill, Duback and Smith, now 
at Bird, Martin & Salomon, 735 N. Water St., Milwaukee, Wisconsin, 52301, 
4)4 276-7290. 



5. Funai Electric Co. Ltd. v.. United States . 713 F. Supp. 420 (CIT 1989). 

I represented the respondent that challenged the Commerce Departments 
inclusion of a combination TVA^CR in an antidumping duty order which 
specifically named only television receivers. We also claimed that the method of 
calculating dumping margins was incorrect. Whether a product falls within the 
scope of an antidumping duty order is a critical determination and can be the 
subject of significant disagreement involving detailed comparisons of products. 
We argued that the presence of the VCR component, its function different from 
that of a mere television receiver, and its significant cost compared to a simple 
television brought it outside the scope of the order. Commerce disagreed and the 
Court of International Trade, Judge Watson, refused to overturn the decision of 
the agency. The motion was decided on the papers. 

The Commerce Department was represented by Elizabeth Seastrum of the 
Commercial Litigation Branch, Civil Division, US Department of Justice, now 
in the Office of the General Counsel, Commerce Department, Washington, DC, 
202 482-0834. 



6. Pabrini. Inc. v. United States , 630 F. Supp. 360 (CIT 1985). 

I successfully represented the United States against the claim by the importer that 
umbrellas were properly marked with country of origin marking under the statute 
which called for "conspicuous" marking so that the "ultimate purchaser" would 
have knowledge of product origin at time of purchase. The laws of the United 
States require that imported products enter this country with country' of origin 
marking legible, conspicuous and permanent so that the ultimate purchaser can 
see it and, thus, make an informed determination whether to buy products that 
were manufactured outside the United States. The marking on these umbrellas 
was on a small tag that was attached to one of the ribs of the umbrella so that it 
was not visible unless the umbrellas were opened. In addition, these umbrellas 
were purchased to be given away as incentive gifts for attending a race track. 
Plaintiff claimed that the marking was proper and that, in any event, because the 
umbrellas were not imported to be sold, they did not come within the purview of 
the statute. Judge DiCarlo of the Court of International Trade held that the 
umbrellas were covered by the statute and were not properly marked because the 
tag was not conspicuous. This case was significant because it further defined the 
important terms: "conspicuous" to mean visible on the product in its condition as 
sold and "ultimate purchaser" to include the recipient of a gift meant to 
encourage commercial patronage. 

12 



357 



Attorney for the plaintiff was Leonard M. Fertman of Los Angeles, California, 
who unfortunately died recently. 



7. Belfont Sales Corp. v. United States . 666 F. Supp. 1 568 (CIT 1987). 

I represented the United States at trial in the Court Of International Trade which 
detemiined the classification of quartz analog watches. Plaintiff claimed that 
they could not be classified as watches with movements as they were electronic 
and similar to digital watches which had been the subject of a prior case. 
Traditionally, watches had a very high rate of duty relative to other products. 
When the first "electronic" liquid crystal display digital watches were imported, 
Texas Instruments litigated an important case in the Court of International Trade 
which held that, because they had no movements, digital watches could not be 
classified as watches and thus took a much lower rate of import duty. Belfont 
attempted to apply this argument to analog quartz watches. The trial was held 
before Judge Aquilino who found that analog quartz watches, in contrast to digital 
watches, contained a movement that controlled the hands on the face of the 
watch, but ruled in plaintiffs favor because the watches at issue were not 
designed to be rewound withm 47 hours, as the tariff provision for watches with 
movements required. 

Plaintiffs counsel was Stephen R. Sosnov, Sosnov and Associates, 540 Swede 
Street, Non-istown, PA 19401, 610 279-8700, 



8. New Trends. Inc. v. United States . 645 F. Supp. 957 (CIT 1 986). 

I successfully represented the United States at trial in the Court of International 
Trade where the importer argued that a commission to an overseas agent should 
not be included in dutiable value as it was a legitimate buying agency commission 
within the meaning of the valuation statute. This was one of a number of cases 
that clarified the difference between a buying or selling commission under the 
new value statute which mandated that only a selling commission was included in 
the dutiable value of imported merchandise. Of course, after the statute was 
passed, many importers made the claim that all commissions were buying ones, to 
exclude them ft-om dutiable value. After we demonstrated at trial that the 
"agent" had controlled too many elements of the transaction and had borne the 
risk of loss. Chief Judge Re held that the commission paid was for the activities 
of a seller not a buying agent and was therefore properly included in the dutiable 
value of the imported merchandise. 

The importer was represented by Ralph Perry-Miller, of Johnson, Johnson and 
Johnson, now of Perry-Miller and Beasley, 3300 Oak Lawn Ave., Suite 675, 
Dallas, TX 75219, 214 522-7979. 



13 



358 



9. Wregg Imports v. United States . 10 CIT 679 (1986). 

I represented the United States in a case where the importer claimed at trial that 
Russian nesting dolls, "matreshkas," should be classified as articles of wood and 
not as "dolls". The tariff defined "doll" as any representation of a human being. 
Plaintiff claimed that the nesting dolls did not display enough human 
characteristics to place them within that definition because they lacked such 
features as separately delineated limbs. Judge DiCarlo of the Court of 
International Trade disagreed and upheld the classification of the matreshkas as 
dolls, thus upholding the principle of expansive tariff provisions. 

Counsel for Wregg Imports was Joseph P. Cox, of Stein, Shostak & O'Hara, 515 
So. Figueroa Street, Suite 1200, Los Angeles, CA 90071, 213 486-0010. 



10. Ehrenreich Photo-Optical Industries. Inc. v. United States . 10 CIT 203 
(1986). 

I successfully represented the United States at trial where the importer argued 
that large automated photographic enlargers should be classified as 
photofinishing equipment and not under the specific provision for enlargers. 
Tariff law has long held that a product must be classified where it is most 
specifically described and that a provision which names the item, an "eo 
nominee" provision, is the one most proper for its classification even if the 
product at issue contains more features than were contemplated when the tariff 
schedules were wTitten. After a two-day trial which encompassed three witnesses 
for each side. Judge Bernard Newman of the Court of International Trade rejected 
plaintiffs argument that the enlargers had been technically enhanced to the extent 
that they were no longer named in the provision for enlargers and held that they 
were correctly classified as the government had claimed. This case was 
significant in giving further guidance as to the parameters of eo nominee product 
classification. 

Counsel for the importer was Joel Simon of Serko and Simon, One World Trade 
Center, Suite 3371, NY, NY 10048, 212-775-0055. 



Because all cases listed above are more than five years old, I list below members 
of the legal community with whom I have had recent professional contact. 

Karen P. Binder, Esq. 
United States Custom Service 
Office of Assistant Chief Counsel 
26 Federal Plaza, Room 258 
New York, NY 10278-0022 
212 264-9271 

/ 14 



359 



Peggy Chaplin, Esq. 

Sandler, Travis & Rosenberg, PA. 

1 1 1 South Calvert Street, Suite 2700 

Baltimore, MD 21202 

410 385-5208 

Michelle F. Forte, Esq. 
Ciba-Geigy Corporation 
520 White Plains Road 
3rd Floor Legal Department 
P.O.Box 2005 
Tarr>town,NY 10591-9005 
914 785-2483 

Sandra L. Friedman, Esq. 
Barnes, Richardson & Colbum 
475 Park Avenue South 
New York, NY 10016 
212 725-0200 

Brian S. Goldstein, Esq. 

Siegel, Mandell & Davidson, PC. 

One Astor Plaza 

1515 Broadway - 43rd Street 

New York, NY 10036 

212 944-7900 

Joseph S. Kaplan, Esq. 
Ross & Hardies 
Park Avenue Tower 
65 East 55th Street 
New York, NY 10022 
212 418-0627 

Susan Kohn-Ross, Esq. 
S.K. Ross & Associates 
5777 West Centuiy Blvd., Suite 520 
Los Angeles, CA 90045 
310-410-4414 

Michael P. Maxwell 

Grunfeld, Desiderio 

707 Wilshire Blvd, Suite 5555 

Los Angeles CA 90017 

213-624-1970 



15 



360 



Marshall V. Miller, Esq. 
Miller & Company, PC. 
4929 Main Street 
Kansas City, MO 64112 
816-561-4999 

David Newman, Esq. 
Sony Electronics 
1 Sony Drive 
Park Ridge NJ 07675 
201-930-7222 

Ms. Deborah E. Rand 

US Customs Service 

Six World Trade Center, Rm. 732 

New York, NY 10048 

212-466-4562 

Marjorie M. Shostak, Esq. 
Stein, Shostak, Shostak & O'Hara 
515 South Figueroa Street, Suite 1200 
Los Angeles, CA 90071-3329 
213-486-0010 



19. Legal Activities: Describe the most signiflcant 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 December 1993, Congress passed the Customs Modernization Act as 
part of the NAFTA implementation legislation. This legislation represented the 
most sweeping changes to the way importers and the government conducted the 
mechanics of US trade regulation in this century. It also changed the legal 
liabilities imposed on importers by the entry of imported goods into the 
commerce of the United States. My participation in the activities leading up to its 
passage and the subsequent process of working with the agencies to promulgate 
regulations pursuant to the statute have been among the most significant, and 
interesting, of my legal career. 

As a member of the American Association of Exporters and Importers, and its 
committees on automation and Customs practice, I helped develop the industry's 
positions with regard to the proposed legislative initiative. The trade and the 
agencies were united in their goal of streamlining the entry process. All 
participants knew that the existing importing system-paper intensive and 

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361 



transaction based-could not survive and only automation and other business 
process modernization could ensure the continued necessarily strict regulation 
of imports into the United States. The existing statutory scheme had to be 
significantly changed. 

For instance, the old statute required that paper entry documents be filed at the 
port where the goods legally entered the commerce of the United States. How 
could this requirement be changed to allow the electronic submission of 
information to the government in keeping with current business 
communication, but still facilitating the inspection of goods at time of entry 
should the agency decide inspection was required for compliance with one of the 
many import regulations'' This and other similar issues occupied our discussions 
for months with proposals and counter proposals offered for analysis. In the end, 
the trade and the agencies were able to agree on a compromise legislative vehicle 
that was ultimately passed. 

Immediately the rewrite of the regulations began. It was estimated that over 
seventy per cent of the US Customs regulations, Title 19 of the Code of Federal 
Regulations, would need to be revised. The Customs and International Trade Bar 
Association's committee on Customs practice became the focal point for 
reviewing draft regulations issued by the Customs Service for comment prior to 
the formal notice and comment period triggered by publication in the Federal 
Register pursuant to the Administrative Procedures Act. I participated actively in 
that process. One of the most interesting issues concerned the new statute's 
imposition of liability on importers for proper classification and value of 
imported merchandise. The prior statute had required only that importers 
accurately describe the merchandise so that the Customs Service could properly i 
classify and value it for the purpose of assessing import duties. The new law 
required importers, using "reasonable care" to classify and value merchandise, 
therefore making them legally liable for accurate product classification and 
value. This was a significant change in importers" legal responsibility. This 
change, combined with significantly increased penalties for non-compliance, 
led to serious and prolonged discussions between the bar and the agency over the 
definition and identification of "reasonable care" in the import process. This 
and other similar issues have occupied the work of the committee for the past 
few years. We analyze draft regulations and so-called straw man proposals-all 
with the goal of producing final regulations which can protect the trade interests 
of the United States while, at the same time, permitting the growth of 
international commerce. 

My work on Secretary Rubin's Trade Advisory Committee on Commercial 
Operations of the US Customs Service has afforded me the opportunity to see 
how one trade agency is preparing for the future and some of the issues it is 
facing as trade and trade procedures standardize internationally. I was 
appointed to the Committee in 1995 as one of twent)' distinguished 
participants in the industry' and was reappointed for a second term this past 



17 



362 



summer. The members act as a sounding board for Customs as it plans its future 
actions— systems development and promulgating regulations pursuant to 
the Customs Modernization Act passed as part of the NAFTA implementing 
legislation in December 1993. 



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 for any 
fmancial or business interest. 

I am currently employed by Sony Electronics Inc and am enrolled in their 401k 
plan and have certain rights to a pension under their plan for all employees. 
When I leave Sony, I will be eligible for bonus and severance payments 



2. Explain how you will resolve any potential conflict of interest, 

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

Should Sony Electronics or any Sony division bring litigation before the Court of 
International Trade, I would expect to recuse myself and to resolve all potential 
conflicts in accordance with the applicable rules of judicial conduct 

3. Do you have 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 Financial Disclosure Report attached. 

5. Please complete the attached financial net worth statement in detail (Add 
schedules as called for). 

See attached Financial Statement: Net Worth. 



363 



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. 

During the election of 1972 I was a member of a Suffolk county college 
professors group supporting the presidential campaign of George McGovem. We 
organized neighborhood campaigning and helped transport elderly voters to the 
polls. 

During the primary campaign of 1988 I worked for the presidential campaign 
of Robert Dole helping to marshall support among the New York legal 
community. 

During the election in 1992 1 worked for the Bergen Count\ Democratic Party 
as a campaign volunteer manning phone banks urging people to vote. 



364 



FINANCIAL DISCLOSURE REPORT 

FOR CALENDAR YEAR 1996 






1. Person Rcporcing iLaat name, (iret, middle initi»ll 

Barzilay, Judith K. 


2 Court or Organization 

Court of International Trade 


1 /3V '5 


4- Title (Arclcle III ludqei Indicate active or 

•enlor atstua; Ragi.crate Judges indicate 
judge '""■ " P*"-""! 

nominee: Court of International 
Trade 


S. Report Type (check appropriate type) 
_ InitUl Annual Fin«l 


€. Reporting Period 

1 n/os 1/3-1 /)s 


7. Chattbera or Office Addresa 

One Federal Plaza 
New York, K.Y. 1000? 


8, On Che basis of the information contained in this Report and 
any modifications pertaininq thereto, it la, in tny opinion, 
in cotrqjliance with applicable laws and regulations. 


IMPORTANT NOTES: The instrudions accompanying this form musl be followed. Complete all parts, 
checking the NONE box for each seaion where you have no reportable information. Sign on last page. 



I. POSITIONS. (Reporting individual only, see pp. 9-13 of Instructions.) 



D 



POSITION 
NONE (No reportable positions) 



NAME OF ORGANIZATION/ENTITY 



vir-P Prssidgrit Covprnmsnt AffaiT-.q Sony Slfir.tronics Inc. 

Director Aap.vic.p.n Asso. of Exporter.<; "■- Tir porters 

Director Ramapo Colles:e Foundation 



II. AGREEMENTS. (Reporting indi\idual onK-. sec pp 14-17of Instructions.) 

DATE PARTIES AND TERMS 



Q 



NONE (No reportable agreements) 



III. NON-INXTSTMENT INCOME. (Reporting individual and spouse; sec pp. 18-25 of Instructions.) 
DATE SOURCE AND TYPE GROSS INCOME 

(yours, not spouse''^} 



D 



NONE (No reportable non-investment income) 



1997 

1996 

1 996, 1 9 97 
iqQ6, i qq? 

1997 



1997 



Rnny Kl pr.tT-nni r a Inn, .gal .qry prirt hnnii.e; 

Sony Electronics Inc. salary and bonus 

Paid Prescriptions Inc. (S) salary 

Cliasu Hulluu Shartjliuldur Bijrvimjti (3) aalary 

Kor^enstern Oil Operations ( S) consultinp; 

Smith Barney (S) salary 



ABC Television {S) pension 



$i.sn.nf)n 

5 160,000 



FINANCIAL DISCLOSORE REPORT 



365 



Barzilay, Judith M, 



/51/ 



IV. REIMBURSEMENTS and GIFTS - Irunsporladon, lodging, food, cnlcnammcm. 

(Includes those lo spouse and dependent children; use the parenthciicals "(S)" and '(DC)' lo indicate repitnable 
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-3'.) of Instructions.) 

SOURCE DESCRIPTION 



NONE (No such reportable reimbursements or gifts) 



exempt 



n 



V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parcnihcticals '(S)' and "(DC)' to 
indicate other gifts received by spouse and dependent children, respectively. Sec pp. 30-33 of Instructions.) 
SOURCE DESCRIPTION 

NONE (No such reportable gifts) 

eTempt 5- 

S. 

S_ 



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 '(DC)' for liability of a dependent child. See pp. 34-36 of Instructions.) 

CREDITOR DESCRIPTION VALUE CODE' 



n 



NONE (No reportable liabilities) 

Knip:ht Tuition Payment Plan tuition loan (J) 
Stafford Loan Prograni tuition loan (DC) 



•Valu* CodMi J-S1S,000 or Uaa K-S1S,001-SS0. 000 L-$SO,001-S100,000 H-$100,001-S2SO,000 H-S2SO.0O1-SSOO.000 

_ X,.t --. .. _. --^000, 001-J5, 000.000 P2-»5,000. 001-525, 000, 000 



O.OOi-aSO.OOO.OQO W-S50 



366 



FINANCIAL DISCLOSURE REPORT Barzilay, Judith K 



1 /31/ 9£ 



VII. Page 1 INVESTMENTS and TRUSTS - income, vjluc. irjnsaclicms (Includi:s those ofspousi 
and dcpt-ndcnl childri;n. Sec pp- 37-54 of Inslrucliims.) 



D»s-7i-ipCion of As.^scs 

ing individual and spouse, -(Si*" for 
sepacdCe o-nerahip by spouse. "(DC)" 
for ownership by dependent child. 

exempt from prior disclosure. 


''"5'-?n 


''Sri^'"' 


— -""-—— 


Code 


Type 


Code" 


(O-w; 


Jype 
mirger. ' 


It not exempt from diaclcsure | 


-il 


Se" 


c^r 


,^v-^iji" 


NONE INJ reporcable 




















' Income ?und 


r. 


Div 


K 


T 












: Progressive Liversifie 


i 


















' Fidelity 31ue Chir; 




Dn'v 


K 


T 
T 












J Teachers Ins. Annuity 


A 


Div 


J 














; College Retirement 


E 


Div 


L 


T 












' ms new Dinensions (J) 


B 


Div 


J 


T 












7 IDS Grovrth ?und (J) 


A 


Div 


J 


T 












s IDS Cash .^anasement (J 


) A 


Div 


J 


T 












3 




















■ 




















:. 




















u 




















n 




















1. 




















.s 




















u 




















w 




















le 




















]dr'r.%^^- f:ii6°sS:=L5s'Soo i:l!cS°io!=5!°?oS:l?6"'™ gr!li°SSi'Jli°??,„oo,ooo liin-.lll:lll-T^r. 


- -' WMBaim.^^... ^^^^^—' ^^^^i^i.^^-— 


ICO*' "2""*^ SriSSk'iJllt S-Co.t lr..l ..t.ce only] S.Aj..j™nt T.C..h/M.rk.t 



367 



VIII. ADDITIONAL INFORMATION OR EXPLANATIONS (Indkaie pan or Report.) 



IX. CERTIFICATION. 

In compliance with (he provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of (he Advisory Commiiiee on Judicial 
Aciiviiies, and lo (he bes( of my laiowledge a( the (ime after reasonable inquiry, I did not perfonn any adjudicatory function ui any litigation 
during (he period covered by this report in which I. my spouse, or my minor or dependent children had a flnancial interest, as defined in 
Canon 3C(3Xc), in the outcome of such litigadon. 

I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if any) is 
accurate, (me, and complete to the best of my knowledge and belief, and that any information not reported was withheld because it met 
applicable sianitory provisions permining non-disclosure. 



I fiinher certify (hat earned income from outside employment and honoraria and (he accep(ance of gifts which have been reponed are 
in compliance with (he provisions of S U.S.C. A. app. 4, $ 501 e(. seq., 5 U.S.C. § 7353 and Judicial Conference regulations. 



Signaiure, 



AA\. tf\ '^t^v?'j^y": 



Dan. January 51, 1998 



NOTE: ANY I( 
SUBJECT TO Cr 



SIPUAL WHO KNOWir^OLY AND WILFULLY FALSIHES OR FAILS TO FILE THIS REPORT MAY BE 
) CRIMINAL SANCTIONS (5 U,S.C. App. 4. $ 104.) 



FIUNC INSTRUCTIONS: 



Mail ligoed origiiiil and 3 additiaiiil capita lo: 



Conmiiuee on Financial Diadoniie 
Admjniitntive Office of the 

United Stalea Comti 
Suite 2-301 

One Columbus Circle, N.E., 
Wasbingtoa, D.C. 20S44 



368 



FINANCIAL STATEMENT 1 


NETWORTH: Judith M.Barzllay i 


i 1 1 


ASSETS 1 ! LIABILITIES 




Cash on hand in banks 


7.300 j JNotes payable to banks-secured 





U.S. Government securities. ..add 





! Notes payable to banks unsecured educ. loan 


40.000 


Listed securities, add schedule 


6.400 


Notes payable to relatives 





Unlisted securities .add schedule 





'Notes payable to others 





Accounts and notes receivable: 


' 'Accounts and bills due 





Due from relatives and friends 


1 Unpaid income tax 





Due from others 





iOther unpaid tax and interest 





Doubtful 





! Real estate mortage payable— add schedule 


158.000 


Real estate owned. .add schedule 


300,000 ! IChattel mortgage and other Mens payable 





Real estate mortgages receivable i i i Other debts-itemize: 




Autos and other personal property 25.000 1 home improvement 


7.500 


Cash value-life insurance Oil consumer 


2,500 


Other assets. .itemize: 1 tuition 


5,000 


401 K 220.000 




Retirement Annuity (TIAA-CREF) \ 83.000 t 




Pension (est.) j 100.000! [Total liabilities | 223,000 | 


Spouse pension (est.) i 40.000 ^ Net Worth 


558,700 


Total Assets I 781.700! :Total liabilities and net v*forth 


781.700 


CONTINGENT LIABILITIES 


I GENERAL INFORMATION 




As endorser, comaker or guarantor 


10.000 1 Are any assets pledged? (Add schedule) 


No 


On leases or contracts i i Are you defendent in any suits or legal actions 


No 


Legal Claims I i 'Have you overtaken bankruptcy No 


Provision for Federal Income Tax i | ' j 


Other special debt 1 ' 



Pagel 



369 

Financial Statement : Net Worth: Judith M. Barzilay 



Schedules 



Listed Securities 

1 .) IDS New Dimensions 
2.) IDS Cash Management 
3.) IDS Growth 



Shares Owned 


Value 


123.129 


S 3,206.89 


2,643.78 


$ 2,678.32 


95.872 


$ 3,193.40 



Real Estate Owned 

Teaneck, NJ 07666 5300,000 (est. value) 

principal residence 



Mortgages (on principal residence) 

Holder Amount 

1.) First Union Mortgage Corp. 139,500.00 

2.) ABC Employee Credit Union 18,600.00 



370 



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. 

When I practiced with the New Jersey firm of Williams Caliri Miller & Otley, I 
handled a large number of pro bono matters: municipal court appearances mostly. 
As my practice specialized in the international trade area, I was not able to 
continue. 

However, because I spent a significant portion of my adult life as a teacher, it has 
been my practice to use my legal knowledge to work with young people. In the 
spring of 1996, 1 acted as an advisor to the Bergen County Superior Court and its 
Division of Youth and Family Services in a pilot program begun by Seton Hall 
Law Center in Newark to reduce recidivism by introducing young offenders to the 
principles of our judicial system through mock trial activities. 1 coached the 
defense team in a trial modeled after an actual case in Bergen County. The 
"case" was tried in a courtroom with young people chosen by the family court 
judge playing roles of attorneys, witnesses, jury and judge. The program is now 
being evaluated for permanent status and I fully intend to participate in the next 
phase. 

In addition, through the Bergen County YWCA, I speak at local high schools to 
educate students in careers available in the fields of law and international trade 
and to raise their level of awareness of the importance of international trade to the 
US economy and therefore to their futures. I usually give these presentation at 
least six times a year. 

\ ^ 

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 individual discriminate of 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 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 

21 



371 



end (including the circumstances which led to your nomination and interview in 
which you participated). 

To my knowledge, there is no formal method of recommending candidates for 
nomination to the Court of International Trade. The following describes the 
events leading up to my nomination. In March 1997, 1 met with Senators Arlen 
Specter and Joseph Biden to discuss my interest in becoming a judge on the Court 
of International Trade. Senator Biden subsequently wrote to the President 
bringing my credentials to his attention. In June, I was contacted by the White 
House counsel's office and asked to complete answers to several written 
questionnaires sent to potential nominees. In July, I was interviewed by 
representatives of the White House Counsel's office and the Justice Department 
In December, I met with an agent of the Federal Bureau of Investigation to review 
personal data and, in January 1998, with a member of the American Bar 
Association's Standing Committee on the Judiciary to discuss my professional 
background for the purpose of evaluating my candidacy. 

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." 

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 ofthu "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 fai^reaching order extending to broad classes of individuals; 

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

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

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

It is the legislature's responsibility to make laws based on the will of the people 
A judge's role is to apply the laws of the legislature to the facts of the case to be 
adjudicated. The m^ority of cases coming before the Court of International 



372 



Trade involve statutory interpretation for which there are well-defined 
historical legal principles. I would expect to follow these principles in any case 
which comes before me. 

The ability of a judge on this court to engage in adjudication which goes beyond 
the specific case or controversy and tends toward widely expanding 
jurisdiction is severely limited by two important factors: specific grants of 
jurisdiction by statute and complete administrative review and defining of the 
issues prior to hearing by the court. Therefore, judges on the Court of 
International Trade, in addition to adjudicating specialized legal issues, are given 
very specific guidance with regard to the manner in which these issues are to be 
decided and the parameters of their decisions. This guidance speaks to issues 
such as ripeness and standing and is clearly set out by statute and case law 
precedent. 



23 



373 

QUESTIONNAIRE FOR JUDICIAL NOMINEES 
L BIOGRAPHICAL INFORMATION (PUBLIC) 

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

Susan Pia Graber 

I have never used another name. 

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

Place of Residence: Portland, Oregon 

Office: Oregon Supreme Court 

1163 State Street 
Salem, Oregon 97310 

3. Date and place of birth. 

July 5, 1949 

Oklahoma. City, Oklahoma 

4. MaotaLStitllS (include maiden name ofwife, or husband's name). List spouse's 
occupation, employer's name and business address(es). 

Married 

Spouse: Christopher William June 

My husband is a self-employed consultant and mediator (as sole owner and employee of 

On-Point, Inc.) 

1975 S.W. Edgewood Road 

Portland, Oregon 97201 

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

Wellesley College 
Wellesley, Massachusetts 
Attended 1%S • 1969 
Bachelor of Arts, 1969 



I-l 



374 



Yale Law School 
New Haven, Connecticut 
Attended 1969 -1972 
Juris Doctor, 1972 

6. Employment Record ; List (by year) all business or professional corporations, 

companies, firms, or other enterprises, partnersKips, 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. 

6(A). Paid Employment 



6/70 - 8/70: 



United States Attorney 
(Sidney I. Lezak) 
Portland, Oregon 



summer law clerk 



6/7 1-8/71: Sutm, Thayer & Browne 

Albuquerque, New Mexico 



summer law clerk 



9/72 - 5/74: Legal Division 

New Mexico Bureau of Revenue 
Santa Fe, New Mexico 



Assistant Attorney General 



7/74 - 3/75: Jones, Gallegos, Snead & Wertheim, PA. 

Santa Fe, New Mexico 



Associate 



4/75 - 3/78: Taft, Stettinius & Hollister 

Cincinnati, Ohio 



Associate 



5/78 - 2/88: 



2/88 - 5/90: 



Stoel Rives Boley Jones & Grey 
(now known as Stoel Rives LLP) 
Portland, Oregon 

Oregon Court of Appeals 
Salem, Oregon 



Associate until 1981; 
Partner 1981-88 



Judge; Presiding Judge of 
Department 3 -1989-90 



5/90 - date: Oregon Supreme Court 

Salem, Oregon 



Associate Justice 



1-2 



375 



6(B). Uncompensated Boards of Directors (etc.). 

1972-74 - Director, Santa Fe County Legal Aid Society (dates approx.) 
1980-85 - Director, Oregon Chapter of N ARAL (dates approx.) 
1980-88 - Director, Responsa Club (Jewish discussion group) (dates approx.) 
1981-87 - City Club of Portland 

-1981-83 Board of Governors 

-1985-86 Second Vice-President 

-1986-87 First Vice-President 
1983-88 - Director, Democratic Business Forum (dates approx.) 
1984-date - U.S. District Court of Oregon Historical Society 

-Corporate Secretary, 1984-85 

-Director, 1985-date 
1986-88 - Director, Democratic Victory Fund (dates approx.) 
1986-93 - Board of Visitors, University of Oregon School of Law 
1990-91 - Board Member, Oregon Law Foundation 
1990-93 - Oregon Appellate Judges Association 

-President, 1992-93 

-Vice-President, 1991-92 

—Secretary-Treasurer, 1990-91 
1994-date - Board of Visitors, Northwestern School of Law at Lewis & Clark College 
1995-date - Member, Defense Advisory Committee on Women in the Services 
(DACOWITS) 

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. 

1994-date - Member, Editorial Advisory Board, State-Federal Judicial Observer * 
1994 - Invitee to symposia on state-federal judicial relations (American Judicature 

Society; State Justice Institute) 
1993-date - Chair, Rhodes Scholar Selection Committee for Oregon 
1 986 - Founder's Award for pro bono service. Northwest Women's Law Center 

(Seattle) 
1969 - At Wellesley College, Phi Beta Kappa; Durant Scholar (highest academic 

category) 

* The task of the Editorial Advisory Board is simply to write articles and suggest topics, 
not to perform editorial tasks on the writings of others. In that connection, I have written only 
one article, which is listed as published writing (c) in question I2(AX1). 

1-3 



50-531 98-11 



376 



9. Bar Assocuitioiis : 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. 

9(A). Present memberships in professional associations: 

American Bar Association 

— Appellate Judges Conference Committee on Appellate Practice, 1997-date 
American Law Institute 

-Adviser to Federal Judicial Code Project, 1996-date 
Oregon Af^llate Judges Association 

-President, 1992-93 

-Vice-President, 1991-92 

-Secretary-Treasurer, 1990-91 

-Chair, Education Committee, 1993-94 
Oregon State Bar 
Oregon Women Lawyers 
National Association of Women Judges 

9(B). Past memberships in professional associations (dates are approximate onlvV 

1978-88- Mulmomah (County) Bar Association 

1981-88 - Oregon Society of Hospital Attorneys 

1978-88 - Oregon School Boards Association 

1978-88- Association of Workers' Compensation Defense Attorneys 

1972-78 - State bar associations in New Mexico and Ohio as required 

9(C). Activities related to federal courts: 

1984-date - U.S. District Court of Oregon Historical Society 

-Charter member 

-Corporate Secretary, 1984-85 

-Director, 198S-date 
1990-date - Member. State-Federal Judicial Council 

1994 - Chair, Subcommittee on Certification of State Law Questions, and author 

of its reports to dte State-Federal Judicial Council 
1994-date - Member, Death Penalty Habeas Corpus Rules Conmiittee. drafting local 

rules for the U.S. District Court for the District of Oregon 
1992 - Member, U.S. District Court of Oregon Magistrate Selection Cormnittee 
1992-93 • Co-chair, Plaiming Committee for 1993 Western Regional Conference on 

State-Federal Judicial Relationships 
1986-87 - Member, Conunittee to Study die Function and Organization of the Ninth 

Circuit Judicial Conference 



1-4 



377 



1983-88 - Oregon Lawyer delegate to the Ninth Circuit Judicial Conference; elected 
chair of Oregon lawyer representatives (1984-85); elected chair of Lawyer 
Representatives' Coordinating Committee of the Ninth Circuit (and ex-officio 
member of Executive Committee of the Ninth Circuit Judicial Conference and 
member of the Program Subcommittee) (1985-86); chair of Program 
Subcommittee (1986-87); chair of Executive Committee (1987-88) 

9(D). Activities related to state courts: 

1995-date - Co-chair, Oregon Supreme Court/Oregon State Bar Task Force on Gender 

Fairness 
1992-95 - Member, Oregon Judicial Conference Retirement & Salary Committee 
1989-95 - Member, Council on Court Procedures 
1988-90 - Member, Oregon State Bar Pro Bono Committee 
1988-89 - Chair, Judicial Department Appeals Board 
1988-89 - Chair, Judicial Conference Benefits Committee, and author of its report to the 

Legislative Assembly 
1988-91 - Member, Judicial Conference Education Committee; Program Chair, 1990 

Oregon Judicial Conference 
1985-87 - Member, Oregon State Bar Judicial Administration Committee; Chair, 

Subcommittee on District-Circuit Court Consolidation (1986) and author of its 

report 
1983-85 - Member, Multnomah Bar Association Circuit Court Liaison Conmiittee 
1982-84 - Member, Multnomah Bar Association Committee on the Present and Future 

Status of Women Lawyers in Multnomah County 
1981-85 - Member, Oregon State Bar Legal Aid Committee; Chair, 1983-84 

9(E). Other law-related committees, conferences, boards, and memberships : 

1994-date - Board of Visitors, Northwestern School of Law at Lewis & Clark College 

1990-91 - Board Member, Oregon Law Foundation 

1988-90 - Master, American Inns of Court 

1986-93 - Board of Visitors, University of Oregon School of Law 

1979-88 - Governor's Advisory Council on Le^ Services 

10. Other Membershipa : List all organizations to which you belong that are active in 
lobbying before public bodies. Please Ibt all other organizations to which you 
belong. 

I do not belong to any organization that is active in lobbying before public bodies, with 
the exception of the Oregon Judicial Conference, wliich lobbies on behalf of Oregon 
judges concerning such matters as judicial salaries and benefits. 



1-5 



378 



I belong to the following organizations in addition to those listed in answer to 
Question 9: 

Multnomah Athletic Club (Portland) (bylaws attached) 
Temple Beth Israel (Portland) 

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. 

11(A). State courts (admission to the highest court of each state and all inferior state courts): 

New Mexico (1972) 
Ohio (1977) 
Oregon (1978) 

I am on inactive status in New Mexico and Ohio. I took inactive status because I no 
longer practice in those states. 

11(B). Federal courts: 

United States Supreme Court (1986) 
United States Court of Appeals for the Tentii Circuit ( 1 974) 
United States Court of Appeals for the Sixth Circuit (1976) 
United States Court of Appeals for the Seventh Circuit (1977) 
United States Court of Appeals for the Ninth Circuit (1979) 
United States Court of Appeals for the Federal Circuit (1985) 
United States District Court for the District of New Mexico (1972) 
United States District Court for the Southern District of Ohio (1977) 
United States District Court for the District of Oregon (1978) 
United States Court of Federal Claims ( 1 98 1 ) 



1-6 



379 



12. Published Writings : List the titles, publishers, and dates of books, articles, reports, 
or other published materia! 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. 

12(AX1). Published writings: 

(a) "The Legal Landscape of the U.S. District Court for Oregon: A Review of The First 
Dutv: A History of the U.S. Di .strict Court for Oregon" 24 Envtl. Law 1699 (1995). 
Although I was the sole listed author, my law clerk assisted in the drafting. 

(b) "A Tribute to Edwin J. Peterson," 73 Or. Law Rev. 73 1 (winter 1 994). I was a co-author 
and prepared most of the initial draft of the article. 

(c) "Obiter Dictum: Substantive Legal Issues Create Tensio ns Between State and Federal 
Courts ." State-Federal Judicial Observer, No. 7 at 2, joint publication of the Federal 
Judicial Center and the National Center for State Courts (October 1994). This article 
was based on an oral presentation that I made to the 1993 Western Regional Conference 
on State-Federal Judicial Relationships, of which I was co-chair with Judge Stotler. It is 
my own work, although a law clerk assisted in the underlying legal research. 

(d) "Strategies for an Effective Brief," A ppeal and Review (1993). I was a co-author, 
preparing about half the initial draft and taking a major editing role for the whole 
chapter. 

(e) "Looking at Feminist Legal Theory fi-om the Bench," The Advocate at 35 (Northwestern 
School of Law, Lewis & Clark College) (summer 1992). This article was based on an 
oral presentation that I made to a law school conference. It is my own work. 

(f) Yale Law School Career Development Office, Judicial Clerkship Guide (September 
1992), "Judicial Clerkships in State Courts." 

(g) Letter to firm newsletter of Taft, Stettinius & HoUister (Cincinnati, Ohio) (August 1994). 
(h) 1992 Voters' Pamphlet Statement. 

(i) 1 988 Voters' Pamphlet Statement. 

(j) "Oregon State Bar Committee Studies Proposed Consolidation of District and Circuit 
Courts." The Oregon Litigation Journal (Vol. 7, No. 1, April 1987). This article is 
entirely my own work. 



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380 



(k) "Class Actions," Civil Pleading and Practice (1985 edition). (Co-author.) I wrote and 
edited about half this chapter. 

(1) "Attorney Fees." Civil Litigation (1982 editJonV (Co-author.) I wrote and edited about 
half this chapter. 

(m) "Report on Structure of the Oregon Legislative Assembly," City Club Bulletin of Portland 
(February 25, 1981 ). (Co-author.) Three or four members of this committee, including 
me, were primarily responsible for drafting the report. 

(n) Book Review of "A Hairdresser's Experience in High Life, by Mrs. Eliza Potter: 

Cincinnati Society in the Mid-Nineteenth Century," published in Vol. 25, The Bulletin, 
The Cincirmati Historical Society Library (1967). I wrote the article, but it was edited by 
the historical society's staff. 

12(AX2). In addition to the foregoing published items, I have written or edited numerous 
Continuing Legal Education materials to accompany presentations on topics as diverse as 
preparing witnesses for trial, appellate procedure, written and oral advocacy, evidence, ethics, 
business torts, workers' compensation, and family law. These materials consist mainly of case 
summaries and outlines for discussion. I have located the following: 

(a) 1989 Oregon Evidence (course book from the September 1 5, 1989, seminar), published 
by Oregon Law Institute - Chapter 5, "Tlecent Recipes from the Oregon Courts: How to 
Preserve Objections and Stay Out of Other Evidentiary Jams" 

(b) Oregon State Bar Family & Juvenile Law 1990 Fall Conference, "Appellate Case 
Review" and "Appellate Case Review Supplement" 

(c) Constitutional Rights and Civil Liberties in the 1990s (course book from the November 
6-11, 1991, seminar), published by Oregon Criminal Defense Lawyers Association - 
Chapter 8, "Oregon Constitutional Issues" 

(d) Enhancing Your Chances of Wirming on App eal (course book from the September 20, 
1991, seminar), published by Oregon Law Institute - Chapter 2, "Effective Brief Writing" 
(co-author) 

(e) Oregon State Bar Family & Juvenile Law 1993 Spring Conference, "Appellate Case 
Review" and "Appellate Case Review — Supplementary Cases" 

(f) "State-Federal Judicial Relationships in the West A Legal Overview from the 
U.S. Court of Appeals for the Ninth Circuit" (June 4, 1993) 

(g) "Strategies for an Effective Brief and "Effective Oral Advocacy" (September 29, 
1993) 

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381 



(h) Oregon Appellate Judges Association Continuing Legal Education Program 
(November 24, 1993) - outline of program 

(i) Evidence and Trial Practice (course book from the December 3, 1993, seminar), 

published by Oregon Law Institute - Chapter 3, "Conduct Becoming to an Officer of the 
Court: Ethical Considerations in the Litigation Process" 

(j) "Appellate Review," in a program on Land Use (March 31, 1994) 

(k) Persuading Appellate Judges (course book from the September 22, 1994, seminar), 

published by Oregon Law Institute - Chapter 3, "Writing an Effective Brief and Making 
an Effective Oral Argument" 

(1) "Appellate Review of Workers' Compensation Cases" (September 29, 1994) 

(m) Oregon Appellate Judges Association Continuing Legal Education Program 
(October 12, 1994) - "Statutory Construction" 

(n) How Far Can T Go? Zealo us Representation and Its Limits (course book from the 
December 2, 1994, seminar) - notes of remarks 

(o) "Statutory Construction" - Outline of remarks to Public Employment Relations 
Conference (April 20, 1995) 

(p) Eleventh Annual Pacific Northwest Bankruptcy & Credit Seminar (Seattle, Washington) 
- November 17, 1995 - "Recent Oregon State Court Decisions Affecting Creditors Rights 
and Bankruptcy Law" 

(q) "Ten Tips (Each) for Writing Effective Appellate Briefs" (co-presenter) - 1 found an 
incomplete outline of a presentation, with no date shown. 

(r) October 11,1 996 - Oregon Law Institute educational program on constitutional law - 
"Making and Defending Constitutional Challenges" 

12(A)(3). I also was the author of the following unpublished committee reports: 

(a) "Report on District-Circuit Court Consolidation" (September 1986) 

(b) "Report of the Judicial Benefits Committee on Judges' Benefits in Oregon" (December 
1988) 

(c) "Report to the State-Federal Judicial Council of Oregon from the Committee on 
Certification of State Law Questions" (April 1994 and July 1994) 



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382 

Those reports represent the consensus of the committees, but I drafted the reports. 
12(AX4). I also was the author of the following reports to DACOWTTS: 

(a) Report of DACOWTTS visit to a Military Installation: USCGC Morgenthau (Portland, 
Oregon), Memorandum for the Director, DACOWITS and Military Women Matters 
(June 7, 1995) 

(b) Report of DACOWTTS visit to a Military Installation: Oregon Air National Guard, 
142nd Fighter Wing (Portland, Oregon) , Memorandum for the Director, DACOWTTS 
and Military Women Matters (August 10, 1996) 

12(BK1)< Speeches on issues involving constitutional law or legal policy : 

(a) February 16, 1984 - Testimony of Susan P. Graber and Dana A. Rasmussen 
before the House Task Force on Program Evaluation 

(b) May 13, 1988 - Panel discussion at education program of Oregon Criminal Defense 
Lawyers' Association - "The Case Against Press Cameras in the Courtroom" 

(c) June 15, 1988 - Umatilla-Morrow County Doctor/Lawyer Banquet - "The Case against 
Mandatory Pro Bono Service" 

(d) November 1, 1988 - "A View from the Court of Appeals" 

(e) April 12, 1989 - Testimony of Susan P. Graber on H.B. 2342 

(f) May 19, 1989 - Testimony of Susan P. Graber on H.B. 292 1 

(g) September 9, 1989 - Panel discussion on "Women and the Law" at Oregon 
Women's Political Caucus convention 

(h) Early 1990 (probably about March) - Interview for "Women in Unison Magazine" (story 
published in May/June 1990 issue) 

(i) May 20, 1990 - Commencement Address, University of Oregon School of Law 

(j ) September 2 1 , 1 990 - Speech to New Admittees to the Oregon State Bar 

(k) April 19, 1991 - Northwestern School of Law at Lewis & Clark College - "Looking at 
Feminist Legal Theory from the Bench" 

(1) June 10, 1991 - "A Day in the Life of an Oregon Supreme Court Justice" 



MO 



383 

(m) January 15, 1992 - Keynote Address, Metropolitan Human Relations Commission 

(n) January 16, 1992 - Keynote for new lawyers' seminar - "Some 2,000- Year-Old Advice" 

(o) February 24, 1992 - "The Future for Young Women in the Law" 

(p) March 12, 1992 - Federal bar association - "Complementary Judicial Activity by Federal 
and State Court Systems in Oregon" 

(q) Date unknown - Tribute to U.S. District Court Judge James M. Bums 

(r) November 5, 1993 - Keynote, Volunteer Lawyers' Project, Annual Awards Banquet 

(s) April 9, 1994 - Remailcs, swearing-in ceremony for United States Attorney 
Kristine Olson 

(t) August 19, 1994 - "Talk Law" radio program (KUDC) - outline of topics 

(u) February 23, 1995 - Keynote, League of Women Voters of Rogue Valley, 75th 
Aimiversary Dinner - "The Power of Women" 

(v) March 5, 1996 - Corrected transcriprt of presentation by Susan P. Graber and 

Kristine Olson to the Women's Law Forum, University of Oregon School of Law 

(w) April 25, 1996 - "Court Composition" presentation by Chief Justice Wallace P. 
Carson, Jr., and Justice Susan P. Graber to Washington State commission 
studying the structure of the Washington Supreme Court 

(x) August 10, 1996 - Interview for the AirScoop Newsletter (published September 1996) 

(y) November 1, 1996 - Luncheon Address, Conference on Judaic Law and Environmental 
Ethics - "Personal Ethics in Judicial Decision Making" 

12(BX2). I have located several news articles about speeches. Some refer to speeches as to 
which I have found no copies or notes. 

(a) February 26, 1981 - United Press International, Regional News, Oregon (regarding City 
Club of Portland report) 

(b) March 7, 1981 - United Press International, Regional News, Oregon (regarding City Club 
of Portland report) 

(c) October 1983 - Laivel Sorenson, "Women in the Law: A Woman's Unwritten Code for 
Success," 69 Oct ABA Journal 1414 

I-ll 



384 



(d) June 2, 1990 - Portland Oregonian. "Graber Joins Supreme Court: Oregon's New Justice 
Thanks Mother, Credits Colleagues for her Rise to Top State Bench," 1990 WL 8398037 

(e) January 1 7, 1 992 - Portland Qregonian C2, "Justice Says Society's Reliance on Judicial 
System Unhealthy" 

(0 March S, 1992 - Portland Qregonian. "Religion: Seminary Elects Chairman of Trustees," 

1992 WL 6810228 

(g) October 2, 1993 - Portland Oregonian C 14, "Accent on Religion & Ethics Calendar," 

1993 WL 11693451 

(h) November 21,1 993 - Portland Oregonian L 02, "Tropical Treats Greet Guests at 
Auction," 1993 WL 1 1710409 

(i) June 26, 1996 - Post and Courier (Charleston, SC), page 14, "Bosnian Elections Are a 
Gamble" 

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

The present state of my health is very good. The date of my last physical examination 
was March 14, 1997. 

I have mild intermittent asthma. For that condition I take prescribed inhaled medications 
(Azmacort. Atrovent) as needed and, in addition, from time to time take systemic adrenal 
cortical steroids (prednisone). 

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

14(A). Prior judicial office: 

Judge, Oregon Court of Appeals 

Period of service: February 11, 1988 - May 1, 1990 

Appointed initially to fill a mid-term vacancy. Thereafter, elected in a state-wide 

nonpartisan election. 
I served as Presiding Judge of Department 3 in the years 1989-90, by appointment of the 

Chief Judge of the Court of Appeals. 

The Court of Appeals has state-wide jurisdiction of all civil and criminal appeals, 
except death-penalty cases and appeals from the Tax Court, and for review of most 
actions of state administrative agencies. 

1-12 



385 



14(B). Present judic ial office: 



Associate Justice, Oregon Supreme Court 
Period of service: May 2, 1990, to date. 

Appointed initially to fill a mid-term vacancy. Thereafter, elected in a state-wide 
nonpartisan election. 

The Oregon Supreme Court is created and its role is defined by Amended Article 
Vn of the Oregon Constitution. Its is primarily a court of review; that is, it reviews the 
decisions of the Court of Appeals in selected cases. The Supreme Court decides which 
cases to review, usually selecting those with significant legal issues calling for 
interpretation of the constitution, laws or legal principles affecting many citizens. In 
addition to its review function, the Supreme Court hears direct appeals in death penalty 
cases and Tax Court cases, and it may accept original jurisdiction in mandamus, quo 
warranto, and habeas corpus proceedings. Further, the Supreme Court has the 
responsibility for the admission of attorneys to practice law in Oregon and the power to 
reprimand, suspend, or disbar attorneys and to discipline judges. Finally, the court 
exercises a rule-making function with respect to such matters as rules of appellate 
procedure, rules of procedure in lawyer discipline cases, and rules relating to judicial 
discipline. 

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 ail 
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 constitutionai 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. 

(opinions are listed in chronological order within each category) 

15(1) Ten most significant opinions: 

1. U.S. National Bank v. Boge, 311 Or 550. 814 P2d 1082 f 199n 

2. State v Williams. 313 Or 19. 828 P2d 1006 n992V 

3. State v. Plowman, 314 Or 157 838 P2d 558 n992V 

4. HuffinanandWrightLoggingCo v Wade .317Or445.857P2dl0in993V 

5. GTE Northwest . Inc. v. Public Utilitv Commission. 321 Or 458. 900 P2d 495 n995V 

6. McCiantv v Staudenraus. 321 Or 532, 901 P2d 841 (1995). 

1-13 



386 

7. Greist v Phillips. 322 Or 281. 906 P2d 789 H 995 V 

8. Mclntire v. Forbes. 322 Or 426. 909 P2d 846 (19961 

9. St, Paul Fire v. McCormick & Baxter Crgowtine. 324 Or 1 84, 923 P2d 1 200 ( 1 996). 

10. State ex rel Huddleston v. Sawver . 324 Or 597. 932 P2d 1 145 (1997V 
15(2XA). List of appellate opinions where decisions I authored were reversed: 

(1) Oregon Supreme Court cases reversed by the United States Supreme Court: 

(a). Oberg v. Honda Motor Co.. 316 Or 263. 851 P2d 1084 (19951. reversed and remanded 
512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994V on remand 320 Or 544, 888 P2d 8 
(1995). 

This is a products liability action in which a jury found the defendant manufacturer liable for the 
plaintiffs injuries and awarded compensatory and punitive damages. When the defendant 
sought review of the size of the punitive damages award, the Oregon Supreme Court held that 
the punitive damages did not violate due process, because the jury was instructed properly about 
the substantive criteria to be used in making the award and because the state constitution 
restricts the courts' power to correct excessive verdicts. The United States Supreme Court held 
that Oregon's denial of appellate review of the size of punitive damages awards violated the 
Fourteendi Amendment's Due Process Clause. 

(b) Gilliam Countv v. Dept. of Environmental Oualitv. 316 Or 99. 849 P2d 500 (1993 V 

reversed and remanded 51 1 US 93. 1 14 S Q 1345. 128 L Ed 2d 13 (1994V on remand 
319 Or 251, 876 P2d 749 (1994). 

This case concerns the validity of regulations imposing a surcharge on the disposal in Oregon of 
solid waste generated outside the state. The Oregon Supreme Court upheld the regulation on the 
ground that the surcharge was a valid compensatory fee, because it had an express nexus to the 
actual costs incurred by the state in the regulation of that waste. The United States Supreme 
Court held that the surcharge is facially invalid under the negative Commerce Clause. 

(2) Oregon Court of Appeals cases reversed by Oregon Supreme Court: 

(a) State v. Moylett 101 Or App 86, 789 P2d 677 (1990), affirmed in part reversed in part 
313 Or 540, 836 P2d 1329 (1992). 

This criminal case involves the suppression of evidence obtained from three blood samples in a 
prosecution for driving under the influence of intoxicants. The Court of Appeals upheld die 
suppression of a sample drawn before a search warrant was obtained, because there were no 
exigent circumstances justifying the extraction, and reversed the suppression of the two samples 

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387 



drawn after the warrant was obtained, because the officer's affidavit supported a finding of 
probable cause to support the charge. The Supreme Court held that the evidence resulting from 
all three tests should be suppressed as to a charge for driving under the influence, but that the 
evidence from the two samples drawn after the warrant was obtained was admissible as to 
charges for assault and criminal mischief. 

(b) Franklin v Spencer. 97 Or App 202, 776 P2d 1 3 ( 1 989), reversed and remanded 309 Or 
476, 789 P2d 643 (1990) 

This case concerns the reinstatement of judgment liens against a mortgagor when the 
mortgagor's grantees have redeemed property after a foreclosure sale. The Court of Appeals 
held that, in those circumstances, judgment liens against a mortgagor that had attached to the 
property before the grantees' purchase were not revived. The Supreme Court held that the 
grantees own the property subject to the judgment liens 

(c) Yamaha Store of Bend. Inc. v. Yamaha Motor Corp . 98 Or App 290, 779 P2d 1 06 1 
(1989V affirmed in p a rt, reve rse d in part 3 10 Or 333, 798 P2d 656 (1990). 

In this price discrimination case, the Court of Appeals held that the devaluation of inventory was 
a proper measure of damages. The Supreme Court disagreed. 

(d) Samuel v. Frohnmaver . 95 Or App 561, 770 P2d 914, reversed 308 Or 362, 779 P2d 1028 
(1989). 

The plaintiff, who had prevailed in an action for indemnification by the state, sought to recover 
attorney fees incurred in bringing that indemnification action. The Court of Appeals held that a 
trial court has the authority to award attorney fees when a declaratory judgment action seeks to 
compel a public official to do his or her duty. The Supreme Court concluded that a trial court 
does not have the authority to award attorney fees, in the absence of specific statutory or 
contractual authority. 

(e) State ex rel Juv. Dept. v LauflFenherger 93 Or App 757, 764 P2d 568 (1988), ismssd 
and remanded 308 Or 159, 777 P2d 954 (1989). 

The Court of Appeals held that, in a case involving a juvenile court's placement of a child who 
was a ward of the court, the governing standard was the "best interests of the child." The 
Supreme Court held that that was not the appropriate standard; rather, the proper standard was a 
preference for parental custody. 

(f) State vHit2L 92 Or App 136, 757 P2d 448, reversed 307 Or 183, 766 P2d 373 (1988). 

In this criminal case, the defendant, who was convicted of a crime, contended on appeal that the 
state had failed to prove an element of the crime. The Court of Ai^)eals affirmed the conviction 
on the ground that the defendant's claim of error was not {n'eserved. Reversing the conviction, 

1-15 



the Supreme Court held that preservation was adequate and that there was insufficient evidence 
to establish an element of the crime. 

15(2XB) Oregon Court of Appeals cases affirmed with significant criticism by the Oregon 
Supreme Court: 

(1) Poland V.Jackson County . 101 Or App 632, 792 P2d 1228, aflif med. in part on otlier 
grounds 311 Or 167, 807 P2d 801 (1991). 

This land use case concerns a Land Use Board of Appeals' (LUBA) decision regarding a 
proposal to site a destination resort on land zoned for farm use. The Court of Appeals held that 
LUBA had erred in determining that the proposal could not be reviewed for compliance with a 
land use plaiming goal established by a state agency, but that the error was harmless because the 
proposal did comply with that goal. The Supreme Court disagreed with that part of the Court of 
Appeals' opinion holding that the proposal is subject to independent review for compliance with 
the goal. 

(2) Dunlapv Dickson- 9 1 Or App 1 50, 754 P2d 27, affirmed, in part on other grounds 307 
Or 175, 765 P2d 203 (1988). 

This negligence case, involving a collision between a tractor-trailer and a cow, was based on 
theories of statutory liability and common-law negligence. The Court of Appeals held that the 
defendant, owner of the cow, was statutorily liable, under a simple negligence standard, but that 
the plaintiff driver had no common-law right of action. Conversely, the Supreme Court held that 
tlic plaiutiff could not iccovci on a statutoiy llicory but tliat he could bring a coiiuuon-law 
negligence action. 

1S(3) Significant opinions on federal or state constitutional issues: 

(A) Oregon Supreme Court : 
Coalition for Equit School Fund, v State of Oregon. 31 1 Or 300. 81 1 P2d 1 16 (1991). 
State V. Wolfs. 312 Or 646. 826 P2d 623 (1992). 
State v. Williams. 313 Or 19. 828 P2d 1006 (1992). 
State V Plowman. 314 Or 157. 838 P2d 558 (1992). 
Bartz V State of Oregon. 3 14 Or 353. 839 P2d 217 (1992). 
State V. Wimber. 315 Or 103. 843 P2d 424 (1992). 



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389 



Moser v. Frohnmaver . 3 15 Or 372, 845 P2d 1284 (1993) (concurring in part and specially 
concurring in part). 

Crilliam County v Dept of Environmental Quality . 316 Or 99, 849 P2d 500 (1993), reversed and 
remanded. 511 US 93, 1 14 S Ct 1345, 128 L Ed 2d 13 (1994), on remand 319 Or 251, 876 P2d 
749(1994). 

Oberg V.Honda Motor Co. . 316 Or 263, 851 P2d 1084 (1995), reversed and remanded, 512 US 
415, 1 14 S Ct 2331, 129 L Ed 2d 336 (1994), on remand 320 Or 544, 888 P2d 8 (1995). 

Cope V. City of Cannon Beach . 317 Or 339, 855 P2d 1083 (1993). 

Huffinan and W right I^gpny Co. v. Wade. 317 Or 445. 857 P2d 101 (1993). 

Ecumenical Ministries v. Oregon State Lottery Comm. . 318 Or 551, 871 P2d 106 (1994). 

Barcikv.Kubiaczvk. 321 Or 174, 895 P2d 765 (1995). 

GTE NorthwesL Inc. v. Public Utility Commission . 321 Or 458, 900 P2d 495 (1995). 

Bovtanov Fritz . 321 Or 498. 901 P2d 835 (1995). 

Cireist v. Phillips . 322 Or 281. 906 P2d 789 (1995). 

Mclntire v. Forbes . 322 Or 426, 909 P2d 846 (1996). 

State V. Charboneau. 323 Or 38. 913 P2d 308 (1996). 

State v.Kitzman . 323 Or 589, 920 P2d 134 (1996). 

Stovallv State of Oregon. 324 Or 92, 922 P2d 646 (1996). 

State vPrickett. 324 Or 489. 930 P2d 22 1 (1997). 

State ex rel Huddleston v. Sawver . 324 Or 597, 932 P2d 1 145 (1997). 

State v. Larson. 325 Or 15. 933 P2d 958 (1997). 

(B) Oregon Court of Appeals: 

State V Dorev . 100 Or App 457, 786 P2d 1288 (1990). 

State ex rel Juv. Dept. v. Stevens . 100 Or App 481, 786 P2d 1296 (1990). 



1-17 



390 

State V. Monroe . 101 Or App 379, 790 P2d 1 1 88 ( 1 990). 

Willianis V Board of Parole. 98 Or App 716, 780 P2d 793 (1989). 

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. 

From 1979-88, 1 served on the Governor's Advisory Council on Legal Services for 
Oregon, by appointment. 

Although 1 have not had any "unsuccessful candidacies for elective public office"; 

(a) In about 1982 or 1983, 1 ran unsuccessfully for the Board of Governors of the Oregon 
State Bar; that is not a public office in the usual sense. There were five candidates for two 
positions, and 1 believe that I ran third. 

(b) I had an "incomplete" candidacy in the following circumstances. In October 1987, 
while I was a practicing lawyer, I filed for a position on the Oregon Supreme Court that was to 
become vacant by reason of the anticipated retirement of Justice Campbell. In January 1988, 
Judge Young, who was a member of the Court of Appeals, died. Governor Goldschmidt 
appointed me to fill Judge Young's seat. 1 then withdrew from the Supreme Court race and ran 
instead (successfully) to retain the Court of Appeals seat. In 1990, 1 was appointed to the 
Oregon Supreme Court and, in 1992, ran successfully to retain that seat. 



17. Ltgal Carwp 



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; 

No. 

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

No. 



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391 



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

9/72 - 5/74 Legal Division Assistant Attorney General 

New Mexico Bureau of Revenue 
Bataan Memorial Building 
Santa Fe, New Mexico 

7/74 - 3/75 Jones, Galiegos, Snead & Wertheim, P.A. Associate 

215 Lincoln Avenue 
Santa Fe, New Mexico 

4/75 - 3/78 Taft, Stettinius & Hollister Associate 

Fourth and Walnut Streets 
Cincinnati, Ohio 

5/78 - 2/88 Stoel Rives Boley Jones & Grey Associate until 1 98 1 ; 

(now knowrn as Stoel Rives LLP) Partner 1981-88. 

900 S.W. Fifth Avenue 
Suite 2300 
Portland, Oregon 97204 

2/88-5/90 Oregon Court of Appeals Judge; Presiding Judge of 

300 Justice Building Department 3 - 1 989-90. 

1162 Court Street N.E. 
Salem, Oregon 973 10 

5/90 - date Oregon Supreme Court Associate Justice 

1163 State Street 
Salem, Oregon 97310 

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? 

9/72 - 5/74: 

At the New Mexico Bureau of Revenue, my major tasks were to draft rulings, 
regulations, and proposed legislation; respond to questions from taxpayers; take contested cases 
to administrative hearings; research and write legal memoranda and briefs; and argue cases at 
the New Mexico Court of Appeals. 



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392 



7/74 - 3/75: 

At the Jones law firm, my major tasks were to perform legal research; draft legal 
memoranda, client letters, wills, and briefs; assist in litigation matters; and argue appeals in both 
state and federal courts. 

4/75 - 3/78: 

At the Taft firm, I performed legal research; drafted legal memoranda, brieft. 
Office of Federal Contract Compliance Programs (OFCCP) compliance reports, affirmative 
action plans, and other documents; assisted in trial preparation; and attended arbitrations and 
hearings before the National Labor Relations Board and state agencies. 

5/78 - 2/88: 

At the Stoel Rives firm, my practice was wide-ranging. About half involved 
"office practice" (giving client advice, drafting non-litigation documents such as employment 
agreements and personnel manuals) and about half involved litigation. Of the litigation matters, 
roughly one-quarter were in federal court or included federal issues. Roughly one-quarter of the 
litigation matters were appeals. I became a partner in 1981 . 

2/88 - 5/90: 

The Court of Appeals has state-wide jurisdiction of all civil and criminal appeals, 
except death-penalty cases and appeals from the Tax Court, and for review of most actions of 
state administrative agencies. 

5/90 - date: 

The Oregon Supreme Court is primarily a court of review with respect to 
decisions of the Court of Appeals. The Supreme Court usually selects cases with significant 
legal issues calling for interpretation of the constitution, laws or legal principles affecting many 
citizens. The Supreme Court also hears direct appeals in death penalty cases and Tax Court 
cases, and it may accept original jurisdiction in mandamus, quo warranto, and habeas corpus 
proceedings. Further, the Supreme Court has the responsibility for the admission of lawyers to 
practice law in Oregon and the power to discipline lawyers and judges. Finally, the court 
exercises a rule-making fiinction with respect to such matters as appellate procedure. 

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

9/72 - 5/74: 

At the New Mexico Bureau of Revenue, I specialized in state and local taxation. 
The state was my only client. 

7/74 - 3/75: 

At the Jones law firm, the focus of tiie firm's practice was plaintiffs' woric, 
especially litigation. Typical clients were individuals and small businesses. 



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4/75 - 3/78: 

At the Taft firm, I was assigned to the Labor Law Department and worked 
exclusively for management. Typical clients were medium to large corporate employers in 
industries such as manufacturing and distilling. 

5/78 - 2/88: 

At the Stoel Rives firm, I was assigned to the Labor Law Section, where my 
practice was on behalf of management clients. Labor and employment law accounted for about 
half my practice. Additionally, I was involved in general litigation, appellate practice, and 
representation of hospitals. Typical clients were small to large corporate entities in a wide range 
of businesses, including such entities as Fred Meyer, Inc., North Lincoln Hospital, Prudential- 
Bache Securities, Tektronix, Inc., Reed College, First Interstate Bank, and Freightliner 
Corporation. 

2/88 - 5/90: 

As a judge of the Oregon Court of Appeals, I heard and decided cases in nearly 
every area of law except taxation, involving individuals and entities of all kinds. 

5/90 - date: 

As an associate justice of the Oregon Supreme Court, I have been a generalist, 
hearing and deciding cases in every area of law and involving individuals and entities of all 
kinds. 

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. 

9/72 - 5/74: At the Bureau of Revenue, I appeared regularly at 
administrative hearings and in the New Mexico Court of Appeals. 

7/74 - 3/75: At the Jones firm, I appeared in court occasionally. 

4/75 - 3/78: At the Taft firm, I did not appeal in court, with the exception 
of occasional federal appeals. 

5/78 - 2/88: At the Stoel Rives firm, I appeared in court occasionally. 

2. What percentage of these appearances was in: 
(a) federal court; 

At the Bureau of Revenue, 0% 
At the Jones firm, about 10% 
At the Taft film, 100% 
At Stoel Rives, about 25% 

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(b) state courts of record; 

At the Bureau of Revenue, about 25% 

(New Mexico Court of Appeals) 
At the Jones firm, about 90% 
At the Taft firm, 0% 
At Stoel Rives, about 75% 

(c) other courts. 

At the Bureau of Revenue, about 75% 

(administrative agency hearings) 
At the Jones firm, 0% 
At the Taft firm, 0% 
At Stoel Rives, 0% 

3. What percentage of your litigation was: 

(a) civil; 

99% 

(b) criminal. 

1% (I recall one criminal appeal that I handled 
while at the Jones firm.) 

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 

To the best of my recollection, I tried to verdict or judgment in trial courts of 
record (rather than settled) about 12 cases. To the best of my recollection, I was sole counsel in 
2 of those cases, lead counsel in 4, and associate counsel in the remainder. 

5. What percentage of these trials was: 

(a) jury; 

One of the cases was tried to a jury for about one month, and another for about 
one week. This represents about 15% of the matters litigated. 



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(b) non-jury. 

The remainder of the cases (about 85%) either were pursued to judgment on legal 
grounds (summary judgment, dismissal) or were non-jury. 

18. Litigation ; Describe the ten most significant litigated matters which yon 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. 

(A) Donald Robes on v Central Oregon District Hospital 

Court: United States District Court for the District of Oregon. Judge: Magistrate Judge 
Michael Hogan (£)ocket No. 80-800). 

The plaintiffs claim was brought pursuant to 28 USC § 1981; he alleged that his 
public employer had violated his right to due process when firing him. He also claimed 
wrongful termination under state law. 

I represented Central Oregon District Hospital; our firm was hired by its insurer. 
Farmers Insurance. The case was resolved on summary judgment in favor of my client. I was 
primarily responsible for handling the case. The case was significant in my practice because it 
involved a public employer, whereas most of my practice involved private employers. 

This case was resolved in 1981. 

Co-counsel: George H. Fraser 
Stoel Rives LLP 

900 SW Fifth Avenue. Suite 2300 
Portland, Oregon 97204 
Telephone: (503)224-3380 

Opposing counsel: George Rakestraw (deceased). 

(B) Tolbert v Firs t Interstate Bank of Oreyon 

Court: Multnomah County Circuit Court. Judge: R. William Riggs (Docket No. A8004- 
02328). 

1-23 



396 



This was a class action seeking to invalidate the Bank's charges for insufficient 
funds (NSF) checks and to recover damages and attorney fees. Although the plaintiffs began 
with three main theories - unconscionability, breach of the duty of good faith, and unlawful 
penalty - the first two were eliminated before trial. Sss Tolbert v. First National Bank. 3 12 Or 
485, 497, 822 P2d 135 (1991) (affirming the circuit court's decision to eliminate all but one 
theory before trial). The theory tried was that the NSF charge constituted an invalid "penalty" 
under Oregon law. This case was significant, because the legal issues relating to die validity of 
NSF fees were of wide application. 

Stoel Rives represented the Bank. 1 was "second chair" at trial, questioning some 
of the witnesses. 1 also was responsible for coordinating most of the pre-trial preparations 
(including discovery, motion practice, legal research, exhibit selection, and witness preparation). 
I also was a major drafter of the legal briefing in the case. 

The Bank obtained a jury verdict in its favor in March 1985, after a trial of about 
one month. 

Co-counsel: William M. McAllister 
Christine Kitchel 
Edward J. Reeves 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503)224-3380 

Opposing counsel: Henry Carey (deceased) 

Phil Goldsmith 

Banks & Sacks 

Suite 1450, 222 S.W. Columbia 

Portland, Oregon 9720 1 

Telephone: (503)224-2301 

John D. Ryan 
John D. Ryan, PC 
1760 S.W. 90th Avenue 
Portland, Oregon 97225 
Telephone: (503)297-3137 

(C) Best v United States National Bank 

Court: Multnomah County Circuit Court Judge: R. William Riggs (Docket No. A790S- 
02523). 

Like Tolbert this was a class action challenging the Bank's NSF fees. The 
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397 



theories included penalty, unconscionability, and breach of the duty of good faith. The Bank 
also argued affiimatively that the plaintiffs' state-law theories were preempted by federal 
banking law. This case was important because of its development of the legal theories of 
penalty, unconscionability, and good faith in the context of a bank's NSF charges, as to which no 
definitive Oregon precedent then existed 

Stoel Rives represented the Bank. I was responsible for coordinating legal 
research and was a major drafter of the legal briefing in the case. 

The Bank obtained summary judgment in its &vor in about 1983 or 1984. (When 
the case was on appeal in the Oregon appellate courts, this Bank hired another law firm, and the 
First Interstate Bank hired Stoel Rives to try the Tolbert case, above.) Seg ] 
Eank, 303 Or 557, 739 P2d 554 (1987) (returning the case to circuit court for further 
proceedings on the claim for breach of the duty of good faith). 

Co-counsel: William McAllister 
Christine Kitchel 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503)224-3380 

Susan K. Eggum 
Susan K. Eggum, PC 
710 Ben Franklin Plaza 
1 S.W. Columbia Street 
Portland, Oregon 97258 
Telephone: (503)228-9607 

Opposing counsel: Henry Carey (deceased) 

Phil Goldsmith 

Banks & Sacks 

Suite 1450. 222 S.W. Columbia 

Portland, Oregon 97201 

Telephone: (503)224-2301 

John D. Ryan 
John D. Ryan, PC 
1760 S.W. 90th Avenue 
Portland, Oregon 97225 
Telephone: (503)297-3137 



1-25 



398 



Henry Kantor 
District Court Judge 
Multnomah County Courthouse 
1021 S.W. Fourth Avenue 
Portland, Oregon 97204 
Telephone: (503) 248-3972 

(D) Whitlow V.Kodak 

Court: United States District Court for the District of Oregon. Judge: James Redden 
(Docket No. 80-938). 

In this case, the plaintiff sued his former employer for contract damages arising 
out of his termination from employment. The action was brought in federal court based on 
diversity jurisdiction. 

1 represented the plaintiff, Joseph Whitlow. I was co-counsel with D. Richard 
Hammersley, who had his own practice. I was responsible for the legal research, briefing, and 
argument of motions. I played a smaller role in the factual preparation of the case and in 
jjroceedings before the jury. After a trial of less than one week, we obtained a jury verdict in the 
plaintiffs favor, for the full amount sought. (The case later settled during the pendency of 
Kodak's appeal.) The complaint was filed in 1980, and the trial took place in about 1982. 

Co-Counsel: D. Richard Hammersley 
Suite D, 324 S.W. 7th 
P.O. Box 1005 
Newport, Oregon 97365 
Telephone: (541)265-2555 

Opposing counsel: 

Donald W. McEwen 

McEwen, Gisvold, Rankin, Carter & Streinz 

1600 Standard Plaza 

1100 S.W. Sixth Avenue 

Portland, Oregon 97204 

Telephone: (503)226-7321 

Mr. McEwen was joined by co-counsel from Kodak, but I have no recollection of 
their names. 

(E) Gray. Fancher. Holmes and Hurley v. Martin 

Court Deschutes County Circuit Court. Judge: George W. Neilson (Docket No. 
28902). 



1-26 



399 



The plaintiff, a prominent law firm in Central Oregon, sued a former law partner 
for an accounting when he retained a large contingency fee that was paid shortly after his 
departure from the firm. He brought a counterclaim for money due under the parties' partnership 
agreement. 

Stoel Rives represented the plaintiff law firm. I was "second chair" at trial. I was 
responsible for much of the pre-trial preparations and, at tiie bench trial, gave the opening 
statement and questioned some of the witnesses. I also was responsible for the legal research 
and briefing. 

The case was tried in November 198 1 . At trial, the plaintiff law firm won on its 
claim and obtained dismissal of the counterclaim. On appeal, the Oregon Court of Appeals 
affirmed with respect to the law firm's claim but reversed the dismissal of the counterclaim. 
Cirav v. Martin. 63 Or App 173. 663 P2d 1285, rev den 295 Or 541 (1983). This is a leading 
case in Oregon on the legal consequences that arise from the break-up of a law firm. 

Co-Counsel: George H. Fraser 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503)224-3380 

Opposing counsel: 

George L. Kirklin 
Lane Powell Spears Lubersky LLP 
Suite 800, 520 S.W. Yamhill Street 
Portland, Oregon 97204 
Telephone: (503)226-6151 

(F) Dong and Lee v William Colbum and Clement Lenhertz 

Court: Multnomah County Circuit Court. Judge: Charles Crookham (A8308.05339). 

The plaintiffs brought an action for (among other things) breach of contract 
arising out of a partnership for development of mining claims; securities law violations; fraud; 
breach of fiduciary duty; negligence; Oregon Racketeer Influenced and Corrupt Organization 
Act (ORICO); and an accounting. 

Stoel Rives represented the defendants, who lived out of state. I was lead counsel 
on the case. In July 1984, we obtained a dismissal on the basis of no personal jurisdiction. 



1-27 



400 



Co-counsel: Rives Kistler 

Appellate Division 
Department of Justice 
400 Justice Building 
1 162 Court Street N.E. 
Salem, Oregon 97310 
Telephone; (503) 378^W02 

Opposing counsel: 

Kim T. Buckley 

Esler Stephens & Buckley 

Suite 2050, 1001 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503)223-1510 

Gary I. Grenley 

Grenley, Rotenberg, Evans, Bragg & Bodie, PC 

Suite 2121 

1211 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503)241-0570 

(G) In re Electric ian's Apprenticeship of Jane F. Martin 

Court (agency): Oregon Bureau of Labor and Industries. Judge (head of agency): Mary 
"Wendy" Roberts. Hearings officer: Dale Price (BOLI Docket No. 64-79). 

This was an administrative proceeding. The Joint Apprenticeship and Training 
Committee had terminated Ms. Martin's electrician's apprenticeship on the basis of unfavorable 
reports from employers. Ms. Martin challenged the termination on the ground that those 
employers had given bad reports in retaliation for Ms. Martin's complaints about sex 
discrimination and sexual harassment. 

I represented Ms. Martin. I vvas lead counsel and, vnth one other lawyer, was 
responsible for the entire case, including discovery, legal research, trial preparation, and hearing. 
The Commissioner ruled in Ms. Martin's favor and reinstated her to the apprenticeship. The final 
decision was issued on December 18, 1981, and is considered a landmark administrative 
decision for Commissioner Roberts. 

Co-counsel: Pamela L. Jacklin 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, OR 97204 
Telephone: (503)224-3380 

1-28 



401 



Opposing counsel: 



Peter B. Higgins (retired) 
14345 S.W. 100th Avenue 
Tigard, OR 97224 
Telephone: (503) 639-3890 



* « « * * 



The remainder of the fully litigated matters are ones as to which my records and 
memory are too sketchy to permit inclusion. However, I participated in cases that had 
significant motions prior to settlement or were complex civil matters. 

(H) Lea R. Lakeside v. Freightliner Corporation 

Court: United States District Court for the District of Oregon. Judge: Helen Frye 
(Docket No. 83-1259). 

The plaintiff sued on theories of sex discrimination and retaliation under Title 
Vn, as well as on state-law theories of breach of contract and wrongful termination. The case 
settled on the eve of a scheduled jury trial. 

I represented the defendant. I was co-counsel on an equal basis with another 
Stoel Rives partner. We were personally responsible for drafting pleadings, performing legal 
research, briefing, taking and defending depositions, selecting exhibits, preparing witnesses, 
writing jury instructions, and the like. Settlement occurred in 1985. 

The case presented issues that were typical of my employment law practice and 
was nearly completed at the time of settlement. Sse Lakeside v. Freightliner Corp. . 612 F Supp 
10 (D Or 1984) (defendant's motion for partial summary judgment on breach of contract claim 
granted; plaintiffs motion for leave to amend granted). 

Co-counsel: Susan M. Hammer 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503)224-3380 

In-house co-counsel: Paul G. Hurd 

Freightliner Corporation 
4747 N. Channel Ave. 
P.O. Box 3849 
Portland, Oregon 97208 
Telephone: (503)735-8533 



1-29 



402 



opposing counsel: David J. Sweeney 

Brownstein Rask Arenz Sweeney Kerr & Grim, LLP 
1200 S.W. Main Street 
Portland, Oregon 97205 
Telephone: (503)221-1772 

Mark B. Weintraub 
Federal F*ublic Defender's Office 
Suite 400, 44 West Broadway 
Eugene, Oregon 97401 
Telephone: (541)465-6937 

(I) Charles F. Wolfe v. Weste rn Conference Teamsters Pension Trust Fund 

Court: United States District Court for the District of Oregoa Judge: James Redden 
(Docket No. 83-6467). 

In this case, the plaintiff group sued to recover additional pension benefits from 
the Teamsters Pension Trust Fund. The theories were based on both statutory and contractual 
grounds. 

I represented the plaintiffs, who were former employees of a United Foods plant 
in Albany, Oregon. I was lead counsel and thus had overall responsibility for all aspects of the 
case, including legal research, briefing, factual investigation, and settlement negotiations. The 
case settled in 1985. The resolution of this case helped a number of people obtain additional 
pension benefits. 

Co-counsel: Eileen Drake 

Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503) 224-3380 

Thomas I. Kramer 
Amburgey & Rubin, PC 
Suite 450, 1750 S.W. Harbor Way 
Portland, Oregon 97201 
Telephone: (503)221-0309 

Op]x>sing counsel: Ronald T. Adams 
Black Helterline 

Suite 1200, 707 S.W. Washington Street 
Portland, Oregon 97205 
Telephone: (503)224-5560 



1-30 



403 



identity. 



Mr. Adams had co-counsel from out of state, but I do not recall that person's 



(J) Merrill. Lvnch v. Prudential-Bache Securities and Karl Keiloff 

Court: Multnomah County Circuit Court. Judge: Jack Beatty (Docket No. A8309- 
05804). 

This case involved the enforceability of a non-competition agreement by a former 
Merrill, Lynch broker; the propriety of Prudential-Bache's recruitment of him; and related issues. 
Among other things, the plaintiff sought a temporary restraining order and a permanent 
injunction. 

I was local lead counsel in the matter. Along with an out-of-state lawyer (whose 
name I do not recall), I was primarily responsible for legal research, briefing, argument, and all 
other aspects of case preparation. The case settled in the early or mid 1980's when it was very 
nearly completed. 

Co-counsel: Richard S. Gleason 
Stoel Rives LLP 

900 S.W. Fifth Avenue, Suite 2300 
Portland, Oregon 97204 
Telephone: (503) 224-3380 



I do not recall the name of the out-of-state lawyer for Prudential-Bache who 



worked with us. 



Opposing counsel: Steven K. Blackburst 

Ater Wynne Hewitt Dodson & Skerritt, LLP 
Suite 1800, 222 S.W. Columbia Street 
Portland, Oregon 97201 
Telephone: (503)226-8439 

Rick T. Haselton 

Judge, Oregon Court of Appeals 

300 Justice Building 

1162 Court Street N.E. 

Salem, Oregon 973 10 

Telephone: (503) 986-5678 



1-31 



404 



Because the foregoing cases are older than five years, a list of 12 members of the legal 
community who have had recent contact with me follows: 

1. Sally L. Avera 

Public Defender , 

603 Chemeketa Street N.E. 
Salem, Oregon 97310 
(503) 387-3349 

2. Jeffrey M. Batchelor 

Lane Powell Spears Lubersky, LLP , i - ., 

Suite 800 

520 S.W. Yamhill Street 

Portland, Oregon 97204 

(503)778-2157 

3. Robert H. Fraser 

Luvaas, Cobb, Richards & Fraser, PC 

Suite 300 

777 High Street 

Eugene, Oregon 97401 

(541)484-9292 

4. Peter Gartlan 

Public Defender's Qffice 
603 Chemeketa Street N.E. 
Salem, Oregon 973 10 
(503)378-3349 

5. Judy Shipler Henry i 
Willamette University College of Law 

245 Winter Street S.E. 
Salem, Oregon 97301 
(503)370-6438 

>. Rives Kistler 

Appellate Division 
Department of Justice 
400 Justice Building 
1162 Court Street N.E. 
Salem, Oregon 97310 
(503)378-4402 



1-32 



405 



7. Sidney I. Lezak 

Newcomb, Sabin, Schwartz &. Landsverk 

Suite 4040 

1 1 1 S.W. Fifth Avenue 

Portland, Oregon 97204 

(503) 228-8446 

8. Virginia L. Linder 
Solicitor General 
400 Justice Building 

1 162 Court Street N.E. 
Salem, Oregon 973 10 
(503) 378-4402 

9. The Honorable Edwin J. Peterson 
Willamette University College of Law 
245 Winter Street S.E. 

Salem. Oregon 97301 
(503) 375-5399 

10. The Honorable Ellen F. Rosenblum 
Circuit Court Judge 
Multnomah County Courthouse 
1021 S.W. Fourth Avenue 
Portland, Oregon 97204 

(503) 248-5029 

11. Robert K. Udziela 

Pozzi Wilson Atchison, LLP 
Suite 1400 

1 100 S.W. Sixth Avenue 
Portland, Oregon 97204 
(503) 226-3232 

12. James N. Westwood 

Miller, Nash, Wiener, Hager & Carlsen, LLP 

Suite 3500 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

(503)224-5858 



1-33 



406 



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.) 

19(A) A large proportion of my in-court time was devoted to appeals in both state and 

federal courts. Those cases involved a wide range of topics, including employment law, 
taxation, administrative law, construction liens, insurance, banking, attorney fees, and 
procedural issues. I believe that that experience is relevant to a position on the United States 
Court of Appeals for the Ninth Circuit. 

During my years of practice, I briefed about 50 appellate cases, most of which I 
also argued. The briefing process required me to read transcripts and exhibits, to select issues 
for development on appeal, and to perform legal research and analysis, all with a decision- 
maker's perspective in mind. Those assignments are similar to the tasks that an aj^llate judge 
undertakes. In addition, the oral argument process required me to find concise and persuasive 
ways to present legal arguments orally, a skill also required of a judge on a collegial court 

19(B) Another significant part of my legal activities has involved my efforts to improve 

the administration of justice through committee work and education, as more fully described in 
my answer to Question 9, above. Examples include: 

( 1 ) I have been active in efforts to improve state-federal judicial relationships. In 
that connection, I serve as a member of Oregon's State-Federal Judicial Council and of the 
Editorial Advisory Board of the State-Federal Judicial Observer : have participated in symposia 
OP state-federal judicial relations; helped to plan the 1993 Regional Conference on State- 
Federal Judicial Relationships; and have taken part in activities related to federal courts, such as 
working for almost six years on the Ninth Circuit Judicial Conference. With respect to state 
courts. I was active in Oregon State Bar committees on I^gal Aid (1981-85; committee chair in 
1983-84); Judicial Administration (1985-87), and Pro Bono Service (1988-90). I have been 
similarly active in work on commissions. At present I am co-chair of the Oregon Supreme 
Court/Oregon State Bar Task Force on Gender Fairness, which is studying whether and, if so, 
how the Oregon judicial system and the legal profession treat people unfairly on the basis of 
gender. I also served for several years as a member of the Coimcil on Court Procedures, which 
works to improve procedure in civil cases. 

(2) I have worked to educate lawyers, judges, and members of the public about the 
law. For instance, I have taught at many Continuing I^gal F^ucatinn programs for lawyers and 
participated in an American Inns of Court program whose mission is to train new lawyers in trial 
skills and to enhance professional standards. With respect to students, while a lawyer I 
participated in a law-related education project for the Portland PubUc Schools, and I have been 
part of higli school legal education projects involving a mock trial and involving study of the 



1-34 



407 



Constitution. Additionally, I have been a member of the Board of Visitors at two of Oregon's 
three law schools and have taken part in several moot court programs at law schools. Finally, I 
have organized and taught at Judicial education conferences for both state and federal judges. 



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 

Since I became a judge in 1988, 1 have been a member of the Oregon Public 
Employees Retirement System (PERS). My membership account balance is $89,262.07, and I 
have a deferred income account balance of $12,815.62. It is my understanding that, if I leave 
state employment, I wall have the option to receive statutorily defined benefits upon reaching 
retirement age or to terminate participation in PERS by receipt of a lump sum. I have not 
decided which option to take should I be confirmed. 

My husband, William June, has deferred income of approximately $34,000 due 
from prior employment by Portland General Electric Corp. (now a part of Enron Corp.), to be 
paid out in 130 monthly installments. 

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. 

The categories of litigation that are likely to present potential conflicts of interest 
include: cases involving Portland General Electric Corp. or Enron Corp.; cases in which a law 
firm representing a member of my immediate family represents a party; and cases in which the 
court on which I now sit, or a judge of the court, is a party. 

I intend to screen each case and to recuse myself in the event of any conflict of 
interest. In any situation of doubt, presenting a possible conflict of interest, I intend to seek 
advice. When in doubt, I will opt for recusal. 

Of course, I intend to follow the applicable 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. 



50-531 98-14 



408 



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.) 

A copy of the Financial Disclosure Report form (AO-10) is attached. 

5. Please complete the attached financial net worth statement in detail (Add schedules 
as called for). 

A statement of financial net worth is 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. 

Before becoming a judge, I played a minor role (e. g. . stuffing envelopes) in 
several political campaigns. To the best of my recollection, they are: 

Eugene McCarthy (President) - 1968 

Tom Mason (state representative) - 1979-85 

Jim Gardner (Secretary of State) - 1 983 

Hans Linde (Oregon Supreme Court ) - 1983-84 

Jonathan Newman (Oregon Court of Appeals) - 1981-82 

Michael Marcus (Oregon District Court ) - early 1980's 

There were two campaigns in which I played more than a minor role. 

(a) In 1 986, 1 was Finance Chair for the Committee to Keep Judge Mary Deits on the 
Court of Appeals. Judge Deits, the incumbent, was challenged by Charles Erwin. My role was 
to coordinate fund-raising efforts among lawyers. 

(b) In 1986, 1 was a member of the steering committee of Women for Goldschmidt. 
Neil Goldschmidt was running for Governor of Oregon; his opponent was Norma Paulus. The 
main functions of Women for Goldschmidt were to suggest fimd-raising sources among women 
and to suggest themes that might appeal to female voters. 

Before becoming a judge, I also took part in the following activities: 

(a) Campaigners (approximately 1 982-86), a group of Democrats who met 
informally, over breakfast, to discuss issues of mutual interest; 



n-2 



409 



(b) Democratic Business Forum (approximately 1983-88), a group of moderate 
Democrats interested in discussing business-related issues; and 

(c) Democratic Victory Fund (approximately 1986-88), an entity that helped to raise 
funds for Oregon E>emocrats. 

These positions were volunteer (unpaid) and occupied about 5 hours per week. 



HL GE^fERAL (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. 

The two main areas in which I have engaged in pro bono and conmiunity service 
activities are efforts to improve equality and the delivery of legal services and educational 
efforts. 

(A) Improving Equality and the Delivery of Legal Services. 

(1) Through activities of the Oregon State Bar: I was active in Oregon State Bar 
committees on Legal Aid (1981-85; committee chair in 1983-84); Judicial Administration (1985- 
87), and Pro Bono Service (1988-90). I also was a member of the Board of the Oregon Law 
Foundation in 1990-91. 

(2) Through work on commissions: At present I am co-chair of the Oregon Supreme 
Court/Oregon State Bar Task Force on Gender Fairness. The charge to the Task Force is "to 
study whether and, if so, how the Oregon judicial system and the legal profession treat people 
imfairly on the basis of gender; to recognize fair treatment where it exists; and to make 
recommendations for change where it does not." The Task Force began its work in late 1995 
and is expected to issue its report in the fall of 1997. Additionally, since 1995 1 have been a 
member of the Defense Advisory Committee on Women in the Services (DACOWTTS), whose 
mission is to advise the Secretary of Defense on issues relating to the women in the services. I 
also served for several years as a member of the Council on Court Procedures, which works to 
improve procedure in civil cases. From 1979 to 1988, 1 served on the Governor's Advisory 
Council on Legal Services. 

(3) Through public service: While a lawyer, I volunteered time on a pro bono basis to 
act as an arbitrator and mediator. When a new lawyer in New Mexico, I served on the Board of 
Directors of Santa Fe County Legal Aid. in 1983-86, 1 served as a member of the Jewish 
Community Relations Committee in Portland. One of its functions is to improve relationships 
among all segments of the community, with one of the goals being to foster equal treatment 

(4) Through direct delivery of services: When a lawyer, I handled some cases on a pro 
bono or reduced-fee basis. Among these were In re Martin, discussed earlier in these materials 
at pages 1-28 -1-29, and Blair v. Washington State Universitv. 108 Wash 2d 558, 740 P2d 1379 
(1987), a sports equity case that I argued successfully in the Washington Supreme Court. As a 
result of my work on the Blair case, I (among others) received the Founder's Award for Pro Bono 
Service of the Northwest Women's Law Center (Seattle). 



410 



(B) Education. 

1 . Of lawyers: I participated in an American Inns of Court program to train new lawyers 
in trial skills and to enhance professional standards. I also have participated in numerous 
Continuing Legal Education programs for practicing lawyers on topics as diverse as preparing " 
witnesses for trial, appellate procedure, written and oral advocacy, evidence, ethics, business 
torts, workers' compensation, and family law. I was a co-author of Oregon State Bar CLE 
chapters on class actions, attorney fees, and brief-writing. 

2. Of students: I have been a member ofthe Board ofVisitors at two of Oregon's three 
law schools. I have participated in several moot court programs at law schools and in a high 
school legal education project. When a lawyer, I participated in a law-related education project 
for the Portland Public Schools. 

3. Of judges: I have been deeply involved injudicial education, as evidenced by having 
been program chair for the Ninth Circuit Judicial Conference and the Oregon Judicial 
Conference, a member ofthe Oregon Judicial Conference Education Committee for about three 
years and its chair, and co-platmer ofthe Western Regional Conference on State-Federal Judicial 
Relationships. 

4. Ofthe public: For many years I have been a Director ofthe U.S. District Court of 
Oregon Historical Society, one of whose functions is educational. Previously I served on the 
Research Board ofthe City Club of Portland (as its vice-chair. Second Vice-President ofthe 
Club, and as its chair. First Vice-President ofthe Club) and on the Club's Board of Governors, 
helping the Club to perform its function of producing objective reports on matters of public 
concern, in order to educate its members and the public. 

***** 

Although it is difficult to quantify my participation in the foregoing activities, I 
estimate that I have spent 5 hours per week, on average, throughout my professional life. 

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? Ifso, list, with dates of membership. What have you done to 
try to change these policies? 

No. 



m-2 



411 



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

There is no selection commission in my jurisdiction to recommend candidates for 
nomination to the United States Court of Appeals. 

When I learned of the impending retirement of Ninth Circuit Judge Edward 
Leavy, whose chambers are in Portland, I informed the President by letter of my interest in being 
considered for that vacancy. His response stated that he had referred the matter to the White 
House Counsel's Office. In the course of the judicial selection process, I have been interviewed 
by representatives of the White House Counsel's Office, the Justice Department, the Federal 
Bureau of Investigation, and the American Bar Association's Standing Committee on Federal 
Judiciary. I also met with Oregon's two United States Senators, Ron Wyden and Gordon Smith. 
Finally, I have completed (in addition to this form) forms for the Justice Department, FBL, and 
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? Kso, 
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; 



m-3 



412 



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 concern with "judicial activism" stated by the question is not, of course, 
limited to the federal system. It is an issue to which I have given much thougjit during the last 
nine years, in my role as a state appellate court judge. I have drawn the following conclusions. 

A fundamental premise of our governmental design is the separation of powers. 
The framers of both the United States and Oregon constitutions created each of the three 
branches of government to serve a different function. Each branch complements the others, but 
none should usurp the differently defined roles of the others. 

The federal and state constitutions give to the legislative branch the power to 
make laws. It is in the elected legislature, where a variety of constituencies are represented, that 
policy debates and choices are to take place. 

By contrast, it is the role of the judiciary to apply the laws that the legislature has 
written. That is, a judge should apply the law without seeking to bend its meaning to achieve a 
specific outcome that may be to the judge's personal liking. 

Those views to which I subscribe are deeply held, and I have voiced them 
publicly. For example, in a 1991 speech at a local law school, 1 said: "I am called on to enforce 
statutes that I might not have voted for had I been a legislator, but that is not my job; I am not a 
legislator. My job is to enforce that law, even if I privately think that it is an unwise law." The 
approach that I have articulated about judicial decision making would continue to apply to my 
role as a federal appellate judge, if I were to be confirmed. 



ffl-4 



413 




414 



elect officers annually as provided in the Bylaws. Each such 
election of officers shall uke place at the meeting of the Board 
ofTrustccs duly convened immediately following adjournment 
of the annual meeting of members or on any such earlier 
meeting date of the Board of Trustees duly convened provided 
such earlier date is not more than eight (8) days prior to the 
date of such armual meeting of members. 

ARTICLE V 

Limitation of Liability 

To the fiillest extent pernurtcd by law, no trustee or uncom- 
pensated officer of the corporation shall be personally liable to 
the corporation or its members for monetary damages for 
conduct as such trustee or officer. Without limitmg the gener- 
ality of the foregoing, if the provisions of the Act are amended 
after this Article V becomes effective, to authorize corporate 
action fiirther eliminating or linunng the personal liability of 
such trustees or officers of the corporation, then the liability 
of such trustees and officen of the corporation shall be elimi- 
nated or limited to the fulfesi extent permitted by the Oregon 
Revised Statutes, as so amended. No amendment or repeal of 
this Article V, nor the adoption of any provision of these 
Restated Articles inconsistent with this Article V, nor a change 
in the law, shall adversely affect any right or protection that is 
based upon this Article V and peruins to conduct that 
occurred prior to the time of such amendment, repeal, adop- 
tion or change. No change in the law shall reduce or elimi- 
nate the rights and protections set forth in this Article V unless 
the change in law specifically requires such reduction or elim- 
ination. 

ARTICLE VI 

Dissolution 

Upon dissolution of the corporation and after payment or 
provision for payment of all of its Uabilities, the remaining 
assets of the corporation upon liquidation and wind-up of its 
affairs shall be distributed to its members pursuant to the plan 
adopted by the Board ofTrustees in compliance with applica- 
ble laws. 



BYLAWS OF THE 
MULTNOMAH 
ATHLETIC CLUB 

As Amended and Restated Effective March 27, 1995 

Article I. Organization and 
Management 

Section 1. Name 

The name of this nonprofit corporation shall be 
Multnomah Athletic Club ("Club"). 

Section 2. Management 

The Board ofTrustees ("Board") shall be vested with 
authority for overall management of the Club. The Board may 
fiom time to time approve policies, procedures, rules or regu- 
lations concerning Club activities, membership, property and 
any other Club matters. Such policies, procedures, rules or 
regulations may be published from time to time as House 
Rules. 

Article II. Members and Memberships 

Section i. Membership Classes 

The Club shall have the following membership classes: Adult 
Resident; Adult Nonresident; Junior and Intermediate; and 
Athletic, Civic and Social. The Board from time to time may, in 
compliance with applicable law, establish, change or abolish 
membership classes or categories within membership classes. 

Section 2. Admission of Members 

(1) Admission of members shall be pursuant to these Bylaws 
and policies, procedures, rules or regulations estabhshed from 
time to time by the Board. 

(2) Except as other^vise provided m these Bylaws, recom- 
mendations for membership may be presented only by an 
Adult Resident or Adult Nonresident member in good stand- 
ing for at least one year and who has known the nominee for 
at least three years. Current Board members may not propose 
an application or be used as a reference. 

(3) Subject to the powers of the Board in all cases to grant 
membership, the Membership Coiruiuttee as described below 



33 



415 



(b)Thc Club shall make available a statement of the 
financial condition of the Club. 

(c) The members entitled lo vote shall consider and 
act upon matters that are properly before the membership. 

Section 2. Special Meetings 

(1) A special meeting of the members shall be held: 

(a) Upon call of the President or the Board; or 

(b) Upon written demand, signed by not less than 
five percent of those members eligible to vote. 

(2) The members entitled to vote shall consider and act 
upon only matters within the purpose or purposes described 
in the special meeting notice. All special meetings shall be held 
at the Club. 

Section 3. Notice 

(l)The Club shall give written notice to al! members enti- 
tled to vote at the meeting and to any other person as 
required by law, the Restated Articles or these Bylaws. 

(2) The notice shall sute the place, date and time of each 
meeting; and any matter or matters to be submitted to the 
membership; and for special meetings, a description of the 
purpose or purposes for which the meeting is called. The 
notice shall be mailed to members no fewer than seven days 
before the meeting if sent by first class or registered mail; oth- 
erwise, notice shall be mailed no fewer than 30 days before 
the meeting. Notice shall be mailed no more than 60 days 
before any meeting. 

Section 4. Voting 

(1) A member encided to vote is entided to one vote on 
each matter submitted to the membership. Voting shall be in 
person only and not b)' proxy 

(2) The vote of the majority' of the memben present and 
entitled to vote at any meeting shall be necessary for the 
adoption of any matter, except as otherwise required by law. 
the Restated Articles or these B\ laws. 

Section S Quorum 

Those members present who are entitled to vote at anv 
annual or special meeting shall constitute a quorum at such 
meeting. 

Article IV. Trustees 

Section 1. Duties ojBoard 

All corporate powers shall be exercised b\ or under the 
authority of the Board, and the affairs of the Club shall be 

• 36 • 



managed under the direction of the Board, subject to any lim- 
itation set forth in the law, the Restated Articles or these 
Bylaws. 

Section 2. Number of Trustees 

There shall be 12 members of the BoardThe members of 
the Board shall be divided into three classes, consiuing of four 
trustees in each class, each class to serve a staggered term as 
described below. 

Section 3. Election of Trustees 

(1) At each Annual Meeting of members, four trustees shall 
be eleaed in the manner provided below to serve for a three- 
year term and until their successors are elected. 

(2) A Nominating Committee shall nonimaie candidates for 
election as trustees at the Annual Meeting. TTie Board shall 
appoint members to the committee on or before October 31 
of each year and shall designate one member of the commit- 
tee to act as chairperson. The committee shall be composed of 
seven members: two members who have been President of the 
Club within the previous ten years and five Adult Resident 
members of the Club. No current member of the Board shall 
serve on the committee. The Club shall post the names of the 
members of the committee on the Club bulletin board within 
five days after appointment. 

(3) The Nominating Comnuttee shall select four candidates 
for election as trustees from the Adult Resident members of 
the Club. The Committee shall post the name, address and 
occupation of each candidate on the Club buUetm board for a 
period of not less than 30 days before the date of the Annual 
Meeting. 

(4) Any two percent or more of the Adult Resident mem- 
bers, who have been such for at least six months, may sign a 
petition nominating any Adult Resident member as a candi- 
date for election as a trustee at the Annual Meeting, not 
exceeding, however, in any one petition, the number of 
trustees to be elected. Every such petition shall be presented 
to the Secreury of the Club not less than 20 days before the 
Annual Meeong.The Sccreur>' shall cause the name, address 
and occupation of each candidate so nominated to be posted 
on the Club bulletin board for a period of not less than 10 
days before the date of the Annual Meeting. 

(5) If candidates are noniinated by petition, the Board shall 
prepare a ballot with the names of all candidates for election 
as trustees. 

(6) At the Annual Meeting, if no candidates for election as 



37 



416 



Section 2. Tax Representative 

The Club shall have a Tax Representative who shnll be the 
General Manager or other emplo\ee as designated by the 
Board. The Tax Rcprcsentati\'C shall not be an officer of the 
Club and shall have the limned dua' and authority co manage 
and report on all tax related matters of the Club, including 
signing all Club ux returns. 

Article VII. Indemnification 

Section 1. Indemnification 

(l)Thc Club shall indemnih". to the fullest extent permitted 
by law, any current or past trustee, officer or General Manager 
of the Club who is made or threatened to be made a party to. 
witness in, or otherwise involved m, any action, suit or pro- 
ceeding, whether civil, criminal, admmistrative. investigative, or 
othenvise ("Actions"), by reason of his or her position as such 
trustee, officer or General Manager, against any and all claims, 
liability and expenses arising out of such Actions, 

(2) Indemnification provided by the Club shall not be exclusive 
of any rights to which the person mdemniSed may otherwise be 
cntided under any provision of the law, Resuted Articles, these 
Bylaws, agreement, policy of insurance or otherwise. 

(3) Indemnification provided by the Club under Section 1. 
paragraph 1 above, shall be considered a contractual right 
between the Club and such person and shall continue to cover 
any trustee, officer or General Manager after such person ceas- 
es to serve in said capacity and shall be bindmg on the Club 
and inure to the benefit of such persons heirs and personal (or 
legal) representatives. 

(4) Indemnification pursuant to this Arncle shall be reduced 
by the amount of any other indemnification or reimburse- 
ment, including insurance coverage amounts, for such person 
with respea to the liability and expense for which indemnifi- 
cation IS claimed- 

(5) The Board may in its sole discretion indemnify Club 
employees, agents and others as it deems advisable and m the 
manner permitted by law. 

Article VIII. Committees 



{2)Thel>resr 
nieinben of all 
chair the Budg< 



nd Fii 



jally appoint a chairperson an 
xcept that the Treasurer shall 
; Committee 



ctee shall be responsi- 
^'n activities and for 
to the Board. The 

iphsh 



imrruttees to ; 



Section 2. Committee Duties 

Subject to Board approval, eac 
blc for establishing and monitoring its 
reporting and making recommendatio 
Board fioni ome to time may direct o 
ccruin tasks and charges. Each committee chairperson shall be 
responsible for the supervision of the committee and its duties. 
Without prior approval of the Board, committees shall have no 
right or authority to act on behalf of the Club or to enter into 
any contracts binding upon the ClubThe chairperson shall 
annually subrmt a written report on the activities of the com- 
nuttee during the year. 

Section 3. Athletic Committee 

The committee shall recommend, establish and monitor 
policies, procedures and programs for athletic activities and 
services to Club members. The coninmtce shall have not less 
than eight Adult Resident members. As authorized from time 
to time by the Board, the athletic activities of the Club shall 
be divided into various categories under the direction of one 
or more sports committees, which shall be under the direction 
of the Athletic Committee. 

Section 4. Budget and Finance Committee 

The committee shall recon 
financial pohcies, procedures, programs, budgets and i 
ments. The Treasurer shall be 
shall have not less than eight Adult Resident members, two of 
whom shall be current Board members, one each fi-om the 
first and second year class, and r\vo of whom shall be former 
Board members, preferably prior Club Treasurers. 

Section 5. House Committee 

The committee shall recommend, establisii, monitor and 
enforce rules of conduct for Club members. The committee 
shall have r.ot less than eight Aduk Resident members. 



Section 1. Committees 

(I) The Club shall have the following standing conmiittees: 
Athletic, Budget and Finance. House, Long Range Planning. 
Membership, Property and Social, The Board from time to 
rime may establish or dissolve othe 



Section 6. Long Range Ptanning Committee 

The committee shall recommend and monitor long-range 
policies and plans. The committee shall have not less than 
eight Adult Resident members, five of whom shall be mem- 
bers at large and three of whom shall be trustees, one from 



40 



417 



nNANClAL DISCLOSURE REPORT 

NOMINATION 



1. Parson Raperting (Last nmwM, first, niddls initlalt 

Graber, Susan P. 


U.S. Court of Appeals, 
Ninth Circuit 


3. Data of Raport 

8/1/97 


4. TltU (krtlcia III jadass Indicats activa or 

aanloE atatna; Hagiatrata )udgaa Indlcata 
fall- or partitl.J) 

U.S. Circuit Judge-nominee 


5. Raport Typa (chacic appropriata typa) 

I lit.idn.tloi.. Data 7 /Iff 97 

iDltial Annual Pinal 


6. Raportiog Pariod 

1/1/96-7/29/97 


7. Chaabara or Offica Addraaa 

Oregon Supreme Court 
1163 State Street 
Salem, OR 97310 


8. on tha baaia of tha information containad in this Raport and 
any Bodificationa partaining tharato, it la, in ay opinion, 
in coaplianco with applicabla laws and ragnLations. 


IMPORTANT NOTES: The instructions accompanyicg this fonn must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable information. Sign on last page. 



I. POSITIONS. (Reporting individual only, see pp. 9-13 of Instructions.) 



D 



POSITION 
HONE (No reportable positions) 



NAME OF ORGANIZATION/ENTITY 



Director 


U.S. District Court of Oreaon Historical Society 


Board of Visitors 


Northwestern School of Law, Lewis & Clark Col. 


Trustee 


Child's Trust 



II. AGREEMENTS. (Reporting individual only, see pp. 14-17 of Instruaions.) 
DATE PARTIES AND TERMS 



□ 



NONE (No reportable agreements) 



I am entitled to retirement benefits from the State PERS 
(Public Employes' Retirement System). I have the options 
to withdraw a lump sum (amount undetermined at this time) 
upon leaving state employment or to await retirement 
benefits. I have not decided which option I would take 



but will contact the AG's office when I do. 
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 
DATE SOURCE AND TYPE 



D 



NONE (No reportable non-investment income) 



1995 



7/1/97 
95/96/97 



State 


of 


Oreaon, 


W2 


Income 


State 


of 


Oreaon 


W2 


[ncome 


State 


of 


Oreaon 


W2 


Income 



Husba nd W2 income from ON POINT 



GROSS INCOME 

S 82882.96 

S 84986.00 

S 52429.00 

S 0.00 



418 



RUi« of P«raon Raporting D»te ol Report 

FINANCIAL DISCLOSURE REPORT G„ber, Susan P. 8/1/97 

[V. 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 



n 



HONE (No such reportable reimbursements or gifts) 
EXEMPT 



n 



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 $_ 

$_ 

$. 

$. 



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* 



Q 



NONE (No reportable liabilities) 






419 



FINANCIAL DISCLOSURE REPORT 



Majse of Person Reporting 

Graber, Susan P. 



8/1/97 



VIL Page 1 INVESTMENTS and TRUSTS - income, value, transactions (Includes tiiose of spouse 
and dependent children. See pp. 37-54 of Instructions.) 



A. 

D«mcrlption of Aseatfl 
(Iboluduig trust asBBts) 

Indlctt* whare •ppUcable, owner of 
the Assst by ualng tha parent hot leal 


B. 


*^-, 


Tranaactlona during raportlbg pariod 


reporting 
porlod 


reporting 
period 


Ing Indlviau.l and spouao, MS)* for 
••parata o*merahip by apoUBo, MDCJ- 
tor ownership by dap«ndent child. 

Place -tX)' after each annet 
exempt from prior dlacloaure. 


(1) 

-odi 

«-B) 


(2) 

rM: 


rode 
(J-P) 


(2) 

Value 
Ketbod3 
Code 


I" 1 


It DOt «xeiBpt CroB dlacloaore | 


buy, fell, O.t.l 
nerger, Honth- 
red«np- Day 


(51 (<) 

VelueZ O.lnl 


Ide„tI?J of 
buyer/aeller 


NONE (No reportable 
tranaactione} 










E 


X 


E 11 


, 


T 


1 Fidelity Puritan Fund/SPG (J) 


» 


ividend 
















2 Fidelity Puritan Fond/ SPG (J) 


■> 


H.trib„ 
















3 Ood^, cox B.l.nced Pond/SPC 


B 


Jlvid.nd 


















» 


Di.trlb. 
















S Dodge Cox Income Fund/ SPG (J) 


. 


Dividend 
















« Pij..lU, .„« „.n.,„/ SP= 


A 


Oivid.nd 




































B ri..U., ..... „.n.,.,/,., 




















9 Fidelity ABcet Hanager/[J) 




















10 Fidelity Equity Income 11/ SPG 


B 


.ivid.nd 
















11 Fidelity Equity Income II/(J) 


C 


Di.triSu 
















Fund/{J) 


» 


0i»id.nd 


.- 


T 












'' ''\"e^^"cofpor*t«7s7G^''J^ 


. 


01vid.nd 


















» 


int.re.t 


^ 


T 












15 Fidelity Equity Income II/SPC 






















E 


„.v>d.nd 
















17 Fidelity Equity Income II/(J) 


^ 


Di.t.i.„ 
















18 Fidelity Equity Income 11/ (J) 




















> ;sir5^?'s.^fs-i i:iii!ss.°[o'i?s,ooo r.nCoi^"..'&.o.c nii;^i^^^i.o...o i:ii:r..\% ii!i§s?ooo 


' Ti-ci?^'?i . p=, ^:iii6?ss."o'ii;o.ooo s:uio?si>'?on?:sss,ooo t:^s;;";i.ra;;si?ss» "-'-■°" " "-■•"' 


^ rs-cS!!^?!,— - 8:JE?"i"i. ;:S?SU-' •"•" -"• l:^"l""5 — — _J 



420 



FIKANCIAL DISCLOSURE REPORT 



Graber, Susan P. 



3/1/97 



VII. Page 2 INVESTMENTS and TRUSTS - income, value, transactions (Includes those of spouse 
and dependent children. See pp. 37-54 of Instructions.) 



A. 

DcBcription of Aaaata 
(including tru.t >6Bat» 

IndlcBta where applicable, o*mer of 


B. 

during 
period 


C. 

reporting 
period 


D. 

Tr«nBaction« during reporting period 


ing individusL and apoaao, "<Si"for 
aeparato ovnerahip t^ apouse, '(DC)' 
foroimerehlp by aapendent child. 

Place '(!)• after each aaaet 
esatapt troa prior diacloaure. 


<1> 
rode 


(2> 

Int.) 


<l) 

Value; 


(0-W) 


au 


U not exempt Jrtn dl.olo.ure | 




°5.y' 


(J-PI 


<<) 
(1-8) 


Identity of 


NONE (No reportable 
tranaactione) 










E 


X 


E 1 


: 


T 


19 Fidelity Equity Income 11/ (J) 




















20 Fidelity Diaciplined Equity/ 




Ko„. 
















'■ ''S:.'^,?i:!'.fsr'!r •'-' 


» 


D.v...„. 


- 


T 












23 Fidelity Contra/(Ix:) 


B 


D.vi.,„. 


" 


T 












23 Fidelity Contra/(DC) 


B 


Diatrlbu 


K 


T 












24 Janua Twenty/{DC) 


' 


o„u,„a 


J 


T 














« 


0..»i.„ 


J 


r 












» S.I.C ,„.,«or. ra„.„DC, 


« 


ow...„a 


J 


T 












., S.l.=t I„v„tO.. r.„./.OC, 


« 


r,..„..„ 


J 


T 












.0 St„„, c™„ ..nd.». I« (^) 


c 


.>v...„a 


^ 


T 












„.„„„,c„™o„.„„a/w.:«.C5^ 





o..t,... 


. 


T 












30 -UU^ auoe .01 . (^^X^ 


« 




» 


T 












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« 


Dividend 


" 


T 












3..ij,^nU,,.o-P....dstoc./W.^^N^ 





o..„i^ 


K 


T 












" °-'°-" '""'" '" ^^N) 


" 


o.v.a.„<. 


- 


T 












34 Oakmark: Fund/ WJ IRA T <z\ 


« 


0..t.i.„ 


- 


T 












35 Vanguard Index 500/ HJ IRa(^<^J 


« 


Olvia^n. 


K 


T 














» 


01vl..„. 


- 


T 












' ;ssrsi!-S.rs;i S:?k?SS.°fo^"".ooo ?:|l6?S5.'?o1ilS?ooo §:|i65!Jor.rs;?S.o.ooo i:5l^2°i.^S |!!6SS?ooo 


= llii-^'il . 03, 2:Ul6?SSi-o'l"o,ooc 5:n?6?SJ/?o'l?:SSS,ooo izit^^^ll^Al^^^. "— " " '»°-°°° 


' ysircSi!^?^,^-- s:sig"i:ti. ?:S-^t"- -- -'- ^:^n-^ —"-' 



421 



FINANCIAL DISCLOSURE REPORT 



Graber, Susan P. 



VII. Page 3 INVESTMENTS and TRUSTS -- income, value, transactions (Includes those of spouse 
and dependent children. See pp. 37-54 of Instructions.) 





A. 
DeecriptioD at Aoeeta 
(including trust ■■■ate) 

Indicate where applicable, owner of 
the aaaet by using the parenthetical 


B. 

reporting 


c. 

reporting 
period 


D. 

Tranaacti-onfl during reporting period 




"(O)* £or joint ownerahip of report- 
ing Indlviaual and apoaae, "(Si* lor 
separate ownerahip by apouae, » fDC)' 
for ownerahip by dependent chi.ld. 

Place '(X)- after each aeoot 
exempt team prior diecloBure. 




Type 

jiv!,; 


(1) 


(2) 

Hethod3 
(0-W| 


iiL - 


If not exempt from diecloBUre | 




4r|ai, 


,dll 


(J-P) 


-ode 
lA-B) 


Identity o, 
buyer/aeller- 


NONE (HO reportible 










E 


X 


E 1 


: 


T 




37 Columbia Special Fund/ HJ IRaQ^ 


c 


i.tribu 


















38 Fidelity Magellan/ SPG IRA 


A 


dividend 


^ 


T 














39 Fidelity Magellan/SPG IRA 


D 


»i.triP„ 


K 


X 














40 Fidelity Growth and Income/ 
SPG IlOl 


c 


Dividend 


« 


T 














41 Fidelity Growth and Income/ 
SPG iiIa 





Oi.t.i.^ 


" 


T 














« r.<i.l.ty contra/ SP= IK. 


A 


o.v.aend 


^ 


T 














O Fidelity contr./ SP= IRA 


o 


D.„„b„ 


L 


T 














44 Fidelity Low Priced Stock 


A 


Cv.dend 


K 


T 














«5 r.d.lity LOW Pr.=,d StOcW SPC 


D 


D..t„b„ 


« 


T 














« Po.tl.nd =,n.r.l Co™o„ 


A 


Oiv.d.„d 


^ 


T 














47 Pacific Power Common/ (J) 


A 


0.v>d.„d 


. 


T 














48 On Point "S- Corp (S) 







^ 


T 














49 T Rowe Price Equity Income .1 






" 


T 














50 Vanguard Equity Income Fund __i 






" 


T 














SI r ROW. P.io. .,„ity I„=o„. ^ 






" 


T 














...... v.. .d..„t.,.„o„,y 5 






L 


T 














53 






















54 


















1 




' \ilTiirM^'=fll\ ^:ii5?ssi°fo^ii;,oo„ ?:U6?sji'?o"dis?ooo r.i!65;jorti%;!Soo.ooo ui:i°i.it iiyd^o 




' TlircS?^"! . .3, ^:|il6?SSi"o'IIS„,„oo 5:U§6?SJ,'?o'i!;SSS,„oo i^-ll^A]^Ci. "=='°°-°°' " "^"■°°° 




3 V..e^„.t.od_C,.„. 8;.ppi....^ .^Co.i,...! .... „„iy, S;....„..t .=...,„„.. 



422 



FINANCIAL DISCLOSURE REPORT 



Rase of Person Reporting 

Graber, Susan P. 



te of Report 

3/1/97 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Report.) 

Section VII. 

William June is sole owner and only employee of ON POINT, an S corporation. He 
consults and mediates as an OH POINT employee. 



I. POSITIONS (Cont'd.) 

POSITION 



NAME OF ORGANIZATION/ENTITY 



423 



FINANCIAL DISCLOSURE REPORT 



Nuna of Paraon Reporting 

Graber, Susan P« 



Date of Rapoi-t 

8/1/97 



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), 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, section 501 et. seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. 




Signature g5"L-%^->^\) • ^/'\S'^--<^^*^-"^ Date Aug. 1, 1997 

NOTE: ANY INDIVIDUAL WHoOkNOWINGLY 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 



424 



Income for 1995 and 1996. Estimate for year to date 1997 

1995 - - - - - - - 

1995 wages and salaries 

• Susan P. Graber W-2 income State of Oregon 

• William June W-2 income Portland General (SERP) 

• William June W-2 income Portland General (Deferred) 

• William June 1099 R income Portland General 

1995 Incidental Income 

Sale of items at Second to None consignment store 



$84,986.99 
$7,929.60 
$14,068.36 
$8,767.68 



$60.00 



1995 Investment Income . ._ 

Susan P Graber Account at Charles Schwab—Dividends 

Fidelity Balanced Fund 

Fidelity Puritan Fund ,, . 

Dodge Cox Balanced Fund 

Dodge Cox Income Fund 

Fidelity Asset Manager 

Fidelity Equity Income II 

N&B Guardian Fund 

Scudder Short Term Bond 

Vanguard Short Term Corporate Bond Fund 
Total Ordinary Dividends 

Susan P Graber Account at Charles Schwab~LT Capital Gains 

• Fidelity Puritan Fund 

• Dodge Cox Balanced Fund 

• Dodge Cox Income Fund 

• Fidelity Equity Income II 

Total Capital Gains Distributions ' , 



$961,25 

$2236.41 

$1128.73 

$384.98 

$2253.88 

$1142.23 

$191.56 

$107.46 

$233.76 

$8640.26 



$961.25 

$770.13 

$50.22 

$528.58 

$2177.67 



Susan P Graber Account at Charles Schwab- Non Taxable Distributions 

• Scutter Short Term Bond Fund $68.25 

• Scutter International Bond Fund $429.78 
Total Non Taxable Distsributions $498.03 



Susan P Graber Account at Charles Schwab-Interest Income 
• Schwab One Interest 



$238.26 



Susan P Graber Account at Charles Schwab—Gains and Losses on Sale 



Fidelity Asset Manager 
Fidelity Balanced Fund 

N&B Guardian Fund 
Scutter ST Bond 
Scudder Intematational 
Schwab 1000 Fund 



$2229.59 LT Gain 
$157 26 ST Loss 
$4350.24 LTLoss 
$10400 00 LT Gain 
$4747.00 LT Loss 
$1369 00 LT Gain 
$222 1.24 ST Gain 



425 



William June Account at Charles Schwab-Dividends 




• Schwab Money Market Fund 


$716.21 


• Fidedlity Disciplined Equity 


$2247.55 


• Fidelity Asset Manager 


$884.21 


• Fidelity Equity Income II 


$1006.42 


• N&B Guardian 


$227.23 


Total Ordinary Dividends 


$5081.62 


William June Account at Charles Schwab-LT Cap Gains 




• Fidelity Disciplined Equity 


$761.08 


• Fidelity Equity Income II 


$609.15 


Total Capital Gains 


$1370.23 


Willliam June Account at Charles Schwab-Gains and losses on 


Sale 


• Fidelity Assset Manager 


$157.22 ST Gain 




$3279.64 LT Gain 


• N&B Guardian Fund 


$223.11 ST Gain 




$8898.83 LT Gain 



1996 



1996 Wages and Salaries 

• Susan P Graber W 2 State of Oregon 

• William June W-2 Portland General SERF 

• William June W-2 Portland General Deferred Comp 

• William June 1099 R Portland General 

• William June W-2 ON POINT 



$82882.96 

$7929.60 

$6514.45 

$6767.68 

$12000.00 



1996 Investment Income 



Susan P Graber account at Charles Schwab—Dividends 

• Fidelity' Puritan Fund 

• Dodge Cox Balanced Fund 

• Dodge Cox Income Fund 

• Fidelity Asset Manager 

• Fidelity Eqity Income II 

• Schwab Va'ue Advantage 

• Vanguard Fixed Income Snort Term Corporates 
Total Di'.iflcnds 



$2208.30 

$1884.47 

$655.34 

$629.42 

$1323.20 

$344.66 

$997.14 

$8042.53 



Susan P Graber account at Charles Schwab— ST Gains 

• Fidelit)' Puritan Fund 

• Dodge Cox Balanced Fund 

• Fidelit>' Equity Income II 
Total ST Gams 



$1042.65 
$143.63 
$805.33 
$1991.61 



Susan P Graber account at Charles Schwab- Interest 
• Schwab One interest 



$5391 



426 



Susan P Graber account at Charles Schwab— Gains and Losses on sale 

• Dodge Cox Income Fund 

• Fidelity Asset Manager 

• Fidelity Equity Income 11 

• Vanguard Fixed Income Short Term Corporates 

William June account at Charles Schwab- Dividends 

• Fidelity Equity Income II ' 

• Schwab Money Market Fund 

• Schwab Value Advantage 
Total Dividends 

William June account at Charles Schwab- ST Gains 

• Fidelity Equity Income 11 

William June account at Charles Schwab- LT Gains 

• Fidelity Equity Income II 

William June account at Charles Schwab-Gains and Losses on sale 

• Fidelity Disciplined Equity Fund 



$1249.41 ST Gain 
$249.96 ST Gain 
$10038.97 LT Gain 
$72.57 LT Gain 
$117.00 ST Loss 



$1703.33 
$240.48 
$310.65 
$2254.46 



$1201.70 



$4011.72 



$74.35 ST Loss 
$612.74 LT Loss 



1997 Estimate to 7/29/97 



Susan P Graber W-2 Income - State of Oregon (7/1) $52,429.09 

William June W-2/1099 R Income - Portland General (7/1) $8,350.00 

Susan Graber Schwab Account Investment Income (6/30) $3,844.31 

William June Schwab Account Investment Income (6/30) $4,35 1 .89 



427 

FINANCIAL STATEMENT 
NET WORTH 



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



ASSETS 




UABIUIXES 


= 


Cuh on biad uid in bub ' 2',20o' ' 'jp»i p«yiblc to binln-ttcared { 


- 






lU. Goveauneot Hcarida-idd 
icbcdule 


- 








- 






15 


100 




Notes payable to idathrcs 


- 






tJolisted ifniritin iriri icfacdule 


- 






Notes payable to when 


- 




1 




- 






Accounts and ^*^i* due 


_ 




1 


Due {nm icUavu uid friends 


- 






Unpaid iDcomc tax 


- 




1 


Due from ochen 


- 






Other unpaid tax and iatcRst 


- 




! 


Doobl&l 


~ 






Real estate moR(a(es payable-add 

schedule HOME : 


142 


,000 




Retl esute owned-ftdd Kfaedale ^gf^^ . 


432 


500 




Chand taatttf* •od other liens pay- 
able 


- 






Real Cftile rao(tgi|U tcceivible 


- 








- 






Autoi tnd othct penonil pnpenjr 


4 


000 












Cull value-Iile insunnoe 


56 


800 












Olher usea-ilemize: see attached 


2,236, 


000 






















, 






























Total i^'^wt^^^'f 


142 


000 












NctWoAh 


2,604 


600 




Tool AucU 


2,746, 


600 




Total liabililies and net worth 


2,746 


600 




CONnNGETa UABIUIXES 








CENEttAL INFORMATION 








As endancf, <^mair#^ or Wfuatuot 


none 






Are any assets ^edccd? (Add sched- 
ule.) 


no 






On k*ies or conncu 


none 






Are yoa defcodant in any suits or le|al 
actions? 


no 






1 Legal Cliims 


none 






Htvc you ever taken bubupiey? 


no 






ll Provisiaa £or Fvienl lo'^ome Tax 


none 


1 : 










1 Olher ipesiil deb< 


none | 











428 



Attachment to Financial Statement of Net Worth 

Schedule of Listed Securities 

• 15.31 shares Pacific Power and Light $0 3 

• 362 73 Shares Portland General Corporation (to be exchanged for ENRON due to merger) $14.7 

Schedule of Real Estate 

• Home $432 5 

Schedule of Real Estate Mortgages 

• Home Mortgage $1420 

Detailed net worth statement attached. 



429 



7/29/97 

Net Worth 

Susan P Graber, husband William June, and daughter Rachel Anne June-Graber 

Assets 

• Cash in Wells Fargo Checking Account $ 2,21716 

Susan P Graber Charles Schwab Account: 

• T Rowe Price Equity Income Fund $111,32815 

• Schwab Value Advantage Money Mkt $ 83,207 72 

• Schwab Money Market - Cash $ 4,986.17 

William June Charles Schwab Account; 

• T Rowe Price Equity Income Fund $ 1 66,64 1 84 

• Vanguard Equity Income Fund $168,262.02 

William June Common Stock 

• 15.31 Shares Pacific Power and Light @ $20 17 $ 308 80 

• 362.73 Shares Portland General Electric @ $40 770 $14,788 58 
(To be exchanged for ENRON due to merger) 

William June interest in ON POINT Sub S Corp. 

• 1996 year end basis $ 7,777.00 

William June Deferred Income 
Portland General Electric 

• Account Balance 3/3 1/97 $ 33,878.71 

Susan P Graber Fidelity IRA 

• Fidelity Contra Fund $113,565 00 

• Fidelity Growth and Income Fund $23 5 , 84 5 00 

• Fiddity Low Priced Stock Fund $1 16,565.00 

• Fidelity Magellan Fund $ 37,635.00 

Susan P Graber Oregon Public Employees 
Retirement System (PERS) 

• Membership Account Balance $ 89,262.07 

Susan P Graber Oregon Savings Growth Plan 
(Deferred Income - PERS) 

• T Rowe Price International Fund; Scutter 

International Fund; Templeton Foreign Fund $ 12,81 5 62 

William June - 401k - Portland General Electric 

• Balance 5/31/97 $630,557 98 

William June - Schwab IRA 

• Fidelity Low - Priced Stock Fund $ 41,499.22 

• OakmarkFund $ 60,915.87 

• Vanguard Index 500 $ 44,727.97 

• Strong Common Stock Fund $ 91,085.11 



430 



William June - Fidelity Blue Chip Growth SEP IRA 

• Balance 12/31/96 5 11,348.17 

William June - Pacific Mutual Life Insurance 

. Cash Value $56,832.00 

William June & Susan Graber Residence 

• Current Tax Assessed Value $432,500.00 

William June & Susan Graber Automobiles 

VW Quantum ( 1 984), VW Jetta ( 1 985), Acura ( 1 988) 

. Estimated Value $ 4,000.00 

Rachel Anne June-Graber Trust 

Susan P Graber, Trustee 

. Fidelity Contra Fund 12/31/96 $ 36,844 41 

• Janus Twenty Fund 12/31/96 $ 4,292.03 

Rachel Anne June-Graber 
William June, Custodian 

• Twentieth Century funds Select 9/30/96 $ 6,009.29 

William June interest in Sunny June Farm LLP 

• (Family farm property, Powshiek County, Iowa) $ 78,000.00 

William June interest in Ethel I June Residual Trust 

• (William June, trustee) Schwab Money Market $ 30,000.00 

William June interest in Charles K June Residual Trust 

• (Winston Anderson, trustee) $ 19,000.00 

Family Assets Total $2,746,687.00 



Liabilities 



00.00 



00 00 



William June and Susan P Graber Credit Cards 

• All cards current - $ 

William June and Susan P Graber 

Wells Fargo Home Equity Line >. — , 

$ 

• Current 

William June and Susan P Graber Wells Fargo 

Home Mortgage ci^oAnnnn 

• Balance due as of 10/12/96 - $142,000 00 

F,n.iK.i,hiimes Total $142,000^ 
FAMTIV NET WORTH . $2,604,687.00 



431 



Jan. 7, 1997 

JANUARY 7, 1997 
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. FULL NAME: (Include any former names used.) 

Richard Anthony Paez 

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

2534 Ivanhoe Drive 
Los Angeles, CA 90039 

United States District Court 
Roybal Federal Building 
255 E. Temple Street, Suite 760 
Los Angeles, CA 90012 

3. DATE AND PLACE OF BIRTH: 

May 5, 1947 

Salt Lake City, UT 

4. MARITAL STATUS: Include maiden name of wife, or husband's 
name.) List spouse's occupation, employer's name and business 
address (es) . 

Married 

Dieuie M. Erickson 
(Presently unemployed) 

5. EDUCATION: List each college and law school you have attended. 
Including dates of attendeuace, degrees received, and dates 
degrees were grzuited. 

COLLEGE: 

Brigham Yoxing University 
Provo, UT 

September 1965 - June 1967 auid 
September 1968 - June 1969 
Bachelor o£ Arts, June 1969 

University of California at Irvine 

Irvine, CA 

September 1967 - June 1968 



432 



Jan. 7, 1997 

LAW SCHOOL: 

University of California at Berkeley (Boalt Hall) 

Berkeley, CA 

September 1969 - June 1972 

Juris Doctor, J\ine 1972 

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 

1. July 11, 1994 to date 

United States District Court "" 
Central District of California 
Los Angeles, California 90012 
District Court Judge 

2. May 1981 to July 11, 1994 
Los Angeles Municipal Court 
110 N. Grand Avenue 

Los Angeles, CA 90012 
Municipal Court Judge; became 
Presiding Judge in 1988 

3. October 1976 - May 1981 

Legal Aid Foiindation of Los Angeles 
1550 W. Eighth St. 
Los Angeles, CA 90017 

Senior Counsel- -October 1976 - January 1978 
Director of Litigation-- January 1978 - December 1980 
Acting Executive Director and Director of Litigation 
January 1981 - May 1981 

4. February 1974 - October 1976 
Western Center on Law and Poverty 
3701 Wilshire Blvd. 

Los Angeles, CA 90010 
Staff Attorney 

5. August 1972 - January 1974 
California Rural Legal Assistance 
629 Main Street 

Delano, CA 93215 
Staff Attorney 



433 



Jan. 7, 1997 

Boards of Directors 

Hollywood-Los Fellz Jewish Commvmlty Center 

1110 Bates Ave. 

Los Angeles, CA 90027 

Member, Board of Directors, 1992 to January 1995 

Los Angeles County Bar Association 

Alternative Dispute Resolution Services, Inc. 

617 S. Olive St. 

Los Angeles, CA 90014 

Member, Board of Directors, 1993 to June, 1996 

Public Counsel 

3535 W. 6th Street 

Los Angeles, CA 90020 

Member, Board of Directors, 1984 - 1987 

Mexican-American Bar Association 

of Los Angeles County 

Member, Board of Trustees, 1981 



7. MILITART SERVICE: Have you had cmy military service? If so, 
give particulars. Including the dates, branch of service, rank 
or rate, serial number and type of discharge received. 

No. 

8. HONORS AND ANARDS: List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of Interest to the Committee. 

1980 - Benito Juarez Award For Outstanding 
Legal Accomplishments 
Presented by Los Angeles Coiinty 
Mexican-American Bar Association 
Los Angeles, Ca. 

9. BAR ASSOCIATIONS: List all bar associations, legal or 
judicial-related committees or conferences of which you are or 
have been a member, £uid give the titles and dates of euiy 
offices which you have held in such groups . 

A. Bar AssociationB 

• State Bar of California 
December 1972 to present 

• Los Angeles County Bar Association 

3 



434 



Jan. 7, 1997 
1978 to present 
Committee Meanberships : 

► Economical Litigation Committee, 1983 and 1984 

► Mvmicipal Courts Committee, 1986 and 1987 

► Special Committee on California Rape Laws, 1978 

► State Courts Committee - 1988 to 1994 



Federal Bar Association 

Los Angeles Chapter . ': ■ 

1994 to date 

Mexican-American Bar Association of Los Angeles 
County 

1976 to present 

► Member, Board of Trustees, 1981 

Judicial -Related Committees 

• Member, California Judicial Coxmcil. Chief 
Justice Malcolm Lucas appointed me to the 
Council twice from 1991 - 1993 and from 1993 - 
1995. The State Judicial Council is the 
policy-making body for the California 
judiciary, euid it is chaired by the Chief 
Justice of the Supreme Court. 

During my tenure on the Coxincil, I served on 
the M\inicipal Court, Court Management, 
Strategic Planning, Rules, and Executive 
Committees. I resigned from the Co\incil when 
I assumed my present duties as a United States 
District Judge in 1994. 

Prior to my appointment to the Judicial Council I 
served on several Coiincil advisory committees : 

• Chair, Judicial Co\incil Advisory Committee on 
the eight-person Municipal Court Civil Jury 
Project, 1987 and 1988. Appointed by Chief 
Justice Malcolm Lucas. 

• Member, Judicial Covincil Advisory Committee on 
Trial Court In^rovement Fvmd, 1988. Appointed 
by Chief Justice Malcolm Lucas . 



. 435 



Jan. 7, 1997 

• Member, Judicial Coiincil Advisory Committee on 
State Trial Court Funding, 1990. Appointed by 
Chief Justice Malcolm Lucas . 

• Chair, Executive Committee of the Los Angeles 
MTinicipal Court, 1988. 

• Member, Executive Committee of the Los Angeles 
Municipal Court, 1984, 1986 - 1989. 

• Chair, Los Angeles Coxinty Municipal Court 
Judges' Association (MCJA) , 1990 - 1991. 

The MCJA is a statutorily authorized 
association of the Los Angeles Co\inty 
Municipal Court judges through which the 188 
m\inicipal court judges in Los Angeles County' s 
24 separate judicial districts work together 
on issues of common concern. 

• Chair, Los Angeles County Municipal Court 
Judges' Association, Marshal Committee, 1986 - 
1988. 

• Member, California Center for Judicial 
Education and Research, New Judge Education 
Planning Committee, 1988 - 1991. 

• Member, California Center for Judicial 
Education euid Research, Civil Proceedings 
Bench Book Planning Committee, 1990 to July, 
1994. 

10. OTHER MEMBERSHIPS: List all organizations to which you belong 
that are active in lobbying before piiblic bodies. Please list 
all other organizations to which you belong. 

The Los Angeles County Bar Association euid the Mexican- 
American Bar Association engage in lobbying activities before 
the California Legislature and other public bodies. The State 
Judicial Council and the Municipal Court Judges Association, 
of which I was a former member regularly lobbied the State 
Legislature . 

I belong to the following additional orgeuiizations : 

Hollywood-Los Feliz Jewish Commiinity Center 

1110 Bates Ave. 

Los Angeles, CA 90027 

Member, Board of Directors, 1992 to Jemuary 1995 



436 



Jan. 7, 1997 

Los Angeles County Bar Association 

Alternative Dispute Resolution Services, Inc. 

617 S. Olive St. 

Los Angeles, CA 90014 

Member, Board of Directors, 1993 to June, 1996 

Public Counsel 

3535 W. 6th Street 

Los Angeles, CA 90020 

Current Member, Advisory Committee on Strategic 

Planning. 

Past Member, Board o£ Directors, 1984 - 1987 

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 mesibership. Give the same information for 
administrative bodies which require special admission to 
practice. 

State Bar of California 
California Supreme Court 
December 1972 

United States District Court 
Eastern District of California 
1972 

United States District Court 
Central District of California 
1973 

United States Court of Appeals for the Ninth Circuit 
December 1975 

United States Supreme Court 
May 1977 

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 availeJsle 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. 

Speeches 

1. October 24, 1994 



437 



Jan. 7, 1997 

Remarks at Induction Ceremony, United States 
District Court, Los Angeles, CA 

2. November 18, 1994 

Remarks at Induction Ceremony for Municipal Court 
Judges, Los Angeles Municipal Court 
Los Angeles, CA 

3. November 18, 1994 

Remarks, Mexican Amerlceui Bar Association 
Law Student Awards Dinner 

4. April 1995 
"Diversity on the Bench" 

The Judge Mario G. Olmos Law & Cultural Diversity 
Memorial Lecture Series 

U.C. Berkeley School o£ Law (Boalt Hall) 
Berkeley, CA 

Testimony before Leaialative Committees 

5. In 1992 & 1993 I testified, on behalf of the Los 
Angeles M\inicipal Court, before the California 
Assembly Judiciary Committee on legislation that 
would have restricted defendants in leuidlord- tenant 
cases from asserting various affirmative defenses 
unless the defendeuit made a pre-trial deposit of 
the amount of rent in dispute. 

6. In 1991 I testified, on behalf of the Los Angeles 
County Municipal Court Judges Association, before 
the California Assembly Judiciary Committee in 
favor of the Trial Court Realignment and Efficiency 
Act of 1991. 

7. 1987 I testified, on behalf of the Los Angeles 
Municipal Court, before the California Senate 
Judiciary Committee in support of legislation for a 
pilot project authorizing judicial voir dire in 
criminal cases. 

Continuing Legal & Judicial Education 

8. November & December 1995 
Panel Member 

Federal Civil Procedure - Recent Developments 
Los Angeles County Bar Association 
Litigation Section 
Los Angeles, Ca. 



438 



Jan. 7, 1997 



9. July 1995 .,-,,-r (r^. 
Panel Member 

Litigating Section 1983 Claims 
Callfoimla Continuing Legal Education 
of the Bar (CEB) 
Los Angeles, Ca. ■- ;. .i • ■< 

10. April 1995 
Panel Member 

Jury Selection & Persuasion In the '90s 
American Bar Association West Coast 
White Collar Crime Committee 

11. December 1994 
Panel Member 
New Judges - New Rules 
Association of Business Trial Lawyers 
Los Angeles, Ca. 

12. 1983-1994 
While a state court judge I was actively Involved 
in continuing legal education for judges through 
the California Center for Judicial Research and 
Education (CJER) . I lectured on California civil 
procedure for judges at CJER's Continuing Judicial 
Studies Program, Judges College, and New Judges 
Orientation Programs . I also lectured on select 
civil law topics at CJER' s Civil Law, and M\inicipal 
Court Institutes. 

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

Excellent 

Last physical examination; November, 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. 

United States District Judge 

Central District of California 

Nominated by President Clinton, March 1993 

Confirmed by the United States Senate, June 15, 1994 

Appointed by President Clinton, June 16, 1994 

Oath of office, July 11, 1994 

Municipal Court Judge 



13, 



439 



Jan. 7, 1997 

Los Angeles Mxiniclpal Court 

Appointed April 1981 by Governor Ednnind G. Brown, Jr. 

Elected Jtme 1982 

Re-elected J\ine 1988 

Re-elected June 1994 

Resigned, July 11, 1994 

The Municipal Court is a court of limited jurisdiction. 
It has jurisdiction over all misdemeanor crimes and civil 
cases in which the amount in controversy does not exceed 
$35,000. The Municipal Court also conducts all felony 
preliminary hearings. 

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 significeuit 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 were not officially 
reported, please provide copies of the opinions. 

(1) OPINIONS 

[1] Colello V. U.S.S.E.C . 908 F.Supp. 738 (CD. Cal , 
1995) 

[2] Securities and Exchange Commission v. Cross 
Financial Services. Inc. . 908 F.Supp. 718 (CD. 
Cal. 1995) 

[3] U.S. V. White . 893 F.Supp. 1423 (CD. Cal. 1995) 

[4] Zero Corporation v. Employers Insurance of Wausau . 
No. CV 94-3164-RAP (CD. Cal. Dec. 16, 1994) (Order 
granting in part emd denying in part plaintiff's 
motion for summary adjudication.) 

[5] Richard v. City of Pasadena , 889 F.Supp. 384 (CD. 
Cal. 1995) 

[6] Sentex Systems. Inc. v. Hartford Ace. & Indem. Co. . 
882 F.Supp. 930 (CD. Cal. 1995) 

[7] Beliveau v. Caras . 873 F.Supp. 1393 (CD. Cal. 
1995) 

[8] Pacifica Corporation v. City of Camarillo . 

9 



50-531 98-15 



440 



Jan. 7, 1997 

149 Cal.App.3d 168 (1983) 

[9] Carter v. Miinicipal Court . 
149 Cal.App.3d 184 (1983) 

[10] J. Paul Getty Museum v. County of Los Angeles . 
148 Cal.App.3d 600 (1983) 

(2) REVERSALS 

[a] District Court Orders and Judgments 

1. In Re Grand Jury Proceedings (Mora) . 
71 P. 3d 723 (9th Cir. 1995) 

I ordered a witness to produce certain 
corporate documents before the grand jury. As the 
Ninth Circuit had not addressed the precise issues 
raised by the witness I relied upon the most 
factually euialogous case. In Re Grand Jury Siibpoena 
dated November 12. 1991. FJG 91-5 (MIA) . 957 F.2d 
807 (11th Cir. 1992) . The Ninth Circuit disagreed 
and instead adopted the contrary reasoning of the 
Second Circuit Court of Appeal, In Re Grand Jury 
Subpoenas Duces Tecxim . 722 P. 2d 981 (2d Cir. 1983) . 
The Ninth Circuit reversed my ruling that the grauid 
jury witness was in conten^t of court and remanded 
the case for further proceedings consistent with 
the decision of the Second Circuit. 

2. Viam Corp. v. Iowa Export -Import 
c Trading Co . . 

84 P. 3d 424 (Ped.Cir. 1996). 

This declaratory relief action involved a 
claim of patent invalidity and non- infringement 
against an Italian con^any and owner of the 
disputed patent. I granted the Italicui compeuiy' s 
motion to dismiss for lack of personal 
jurisdiction. I ruled that xinder established Ninth 
Circuit law, the Italian compamy did not have 
sufficient "minimum contacts" with California to 
assert personal jurisdiction over it. I 
subsequently dismissed the plaintiff's action. 

The Pederal Circuit reversed, concluding that 
the Italiiui con^iuiy' s exclusive distribution 
agreement with an Iowa corporation established a 
regular distribution channel to markets throughout 
the United States, including California. The court 

10 



441 



Jan. 7, 1997 

held that the Italian company' s exploitation of the 
California market, through its exclusive 
distribution agreement, constituted sufficient 
contacts with California to support personal 
jurisdiction under the Due Process Clause of the 
Fifth Amendment. 

3. Disenos Artisticos Industriales. S.A.; Lladro 
USA. Inc. V. Costco Wholesale Corporation . 

97 F.3d 377 (9th Cir. 1996). 

In this action for copyright infringement 
\inder section 602 of the Copyright Act I granted 
stimmary judgment for plaintiff on the grounds that 
the copyright ovmer did not grant either express or 
is^lied authority to import Lladro figurines into 
the United States. The judgment enjoined defendeuit 
from selling Lladro figurines at its discount 
retail stores. 

The Ninth Circuit reversed my judgment 
concluding that under the distribution network 
established by the copyright owner, the copyright 
owner impliedly granted authority to certain buyers 
to import the disputed figurines into the United 
States. 

4. Jacobs V. Tremsocean Entertainment , 99 F.3d. 
1146 (Table) (9th Cir. 1996) (Unpublished 
disposition) . 

In this Individual and shareholder derivative 
action under the Copyright and Lanheun Acts, I 
dismissed the plaintiffs' action finding that the 
plaintiffs could not state a claim for relief as 
beneficial owners of the subject copyright. In 
essence, I concluded that the plaintiffs did not 
have standing as holders of an unexercised and 
expired option that involved the copyright. 

The Ninth Circuit reversed, concluding that on 
the facts alleged, plaintiffs could state a claim 
under the Copyright Act since they contended that 
the defendants improperly usurped a corporate 
opportunity and could possibly establish beneficial 
ownership in the copyright by virtue of a 
constructive trust. The Ninth Circuit affirmed the 
dismissal of the Lanham Act claim. 

A copy of the Ninth Circuit's unpublished 

11 



442 



Jan. 7, 1997 

opinion is attached. 

5. HMT Investment Corporation v. Kupetz (In re 

Kahlenberg Liimber Compcuiv, Inc.) . F.3d 

(Table) (9th Cir. 1996) (Unpublished disposition) . 

This case involved eui appeal from a judgment 
of the bankruptcy court in an adversary proceeding 
involving a claim of legal malpractice by a 
creditor of the debtor against the attorney for the 
bankruptcy trustee. The bankruptcy court denied 
the creditor's motion to remand the action to state 
court finding that the dispute was within its core 
jurisdiction. The bankruptcy court then granted 
the defendeuits' motion for summary judgment after 
concluding there was no attorney- client 
relationship between the creditor and the trustee's 
attorney. 

The creditor appealed to the district court. 
I affirmed the judgment of the bankruptcy court in 
all respects. 

The Ninth Circuit affirmed my decision that 
the adversary proceeding was within the bankruptcy 
court's core jurisdiction, but foxind that there 
were material triable issues of fact regarding the 
existence of an attorney-client relationship. The 
Ninth Circuit reversed my judgment and remanded the 
matter to the bankruptcy court for further 
proceedings . 

A copy of the Ninth Circuit's iinpublished 
opinion is attached. 

[b] Municipal Co\irt Orders and Judgements. 

Judgments and orders of mine as a Los Angeles 
Municipal Court judge were reviewed by the Los Angeles 
County Superior Court Appellate Department. Since the 
Appellate Department did not pviblish meiny opinions, I did 
not keep a record of every judgment or order I rendered 
in which a party sought appellate review. The following 
is a list of cases I cun aware of, where a judgment or 
order I issued was reversed. 



[1] L.A.M. Construction. Inc. v. KRIZ . 
14 Cal.App. 4th Supp. 1 (1993) 



12 



443 



Jan. 7, 1997 

In this action, I granted a motion for svunmary 
judgment, ruling that an action to enforce a 
$23,999 mechanic's lien which had been filed 
originally in the Superior Court emd was later 
transferred to the Miuiicipal Court had not been 
filed timely in the proper court as required by 
California Civil Code 

S 3144. The Appellate Department reversed, holding 
that the action was filed timely under Civil Code § 
3144 and Code of Civil Procedure § 396. 

[2] Vanitzian v. Shuoar . L.A.M.C. #89 K47115; L.A.S.C. 
#BV18980 (1983) 

In this action I entered judgment for the 
plaintiff on a claim for \inpaid overtime 
condensation. Although the Appellate Department 
affirmed my siibstantive findings and rulings, it 
reversed with instructions to recalculate the 
amount of deunages due plaintiff. 

[3] Senator v. Southern Pacific Ecmipment Leasing . 
L.A.M.C. #91 K13877, L.A.S.C. #BV19221 (1983) 

In this case, I sustained a demurrer to 
plaintiff's allegations of fraud and conspiracy 
against several of the defendemts without leave to 
amend. The plaintiff appealed, and the Appellate 
Department reversed, holding that plaintiff's fraud 
and conspiracy allegations were sufficient to state 
a claim for relief. 

[4] Galvez v. Los Angeles Unified School District , 
L.A.M.C. #F3065, L.A.S.C. #A16305 (1985) 

In this personal injury action, I granted a 
motion for summary judgment finding that 
plaintiff's action was barred by the applicedsle 
statute of limitations. The Appellate Department 
reversed, finding there was a triable issue of 
material fact regarding the timeliness of 
plaintiff's action. 

[5] Rogers v. Kelsev . L.A.M.C. #F32052, L.A.S.C. 
#A16031 (1984) 

In this action to recover unpaid attorney' s 
fees, I granted plaintiff's motion for s\immary 
judgment. In accordance with local court rules, I 
did not consider the defendant's opposition papers 

13 



444 



Jan. 7. 1997 

which were filed late. The Appellate Department 
reversed, finding that 1 erred in not considering 
the defendauit's opposition papers. 

[6] Vivas V. Southern California Rapid Transit 
District . L.A.M.C. #F2562, L.A.S.C. #A16264 (1985) 

In this personal injury action, I granted the 
defendant's motion for siuonary judgment ruling that 
as a matter of law, the defendeuit bus company was 
not negligent. The Appellate Department reversed 
finding there were material triable issues of fact 
regarding defendant's negligence. 

[7] Vega v. Olivarez . L.A.M.C. #F31314; L.A.S.C. 
#A15813 (1983) 

In this action, I denied defendcuit's motion to 
vacate a default judgment. On appeal, the 
Appellate Department reversed, finding that the 
circumsteuices which led to defendeuit's default 
constituted excusable neglect within the meaning of 
California Code of Civil Procedure § 473. 

[8] Castillo V. Friedman . 197 Cal.App,3d Supp. 6 (1986) 

A former tencuit claimed her former Icuidlord 
obtained her wrongful eviction through a fraudulent 
misrepresentation and alleged that her eviction 
violated the Los Angeles City Rent Stabilization 
Ordinance. I found for the plaintiff, and the 
defendant appealed. The Appellate Department 
affirmed on the liedsility issue auid reversed on the 
measure of damages. 

Copies of the unpublished opinions are attached. 

(3) SIGNXFICAMT OPXNXONS ON FEDERAL OR STATE CONSTITOTIONAL 
ISSUES 

1. Colello V. U.S.S.E.C . 908 F.Supp 738 (CD. Cal. 
1995) 

2. U.S. V. White . 893 F.Supp. 1423 (CD. Cal. 1995) 

3. Richard v. City of Pasadena . 889 F.Supp. 384 (CD. 
Cal. 1995) 

4. Carter v. Municipal Court . 149 Cal.App.3d 600 
(1983) 

14 



445 



Jan. 7, 1997 

5. Los Angeles Times v. Comitv of Los Angeles . 
No. 95-6972 (CD. Cal . Nov. 14, 1996) 

A copy of the unpublished order granting sxunmary 
judgment is attached. 

6. Bette Page v. Something Weird Video . No. 94-2327 
(CD. Cal. Dec. 3, 1996). 

A copy of the iinp\iblished order granting s\ammary 
judgment is attached. 

16. PUBLIC OFFICS; State (chronologically) any p\ablic offices you 
have held, other than judicial offices, including the terms of 
service and whether such positions were elected or appointed. 
State (chronologically) emy unsuccessful candidacies for 
elective piiblic office. 

None. 

17. LEGAL CAREER: 

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

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

Following graduation from law school, I did not 
serve as a judicial law clerk. 

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

I never practiced law as a sole practitioner. 

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

• August 1972 - January 1974 

California Rural Legal Assistance 
Delano /McFarland Regional Office 
629 Main Street 
Delano, CA 93215 
Staff Attorney 

• February 1974 - October 1976 

is 



446 



Jan. 7, 1997 

Western Center on Law and Poverty 
3701 Wllshlre Blvd., Suite 208 
Los Angeles, CA 90010 
Staff Attorney 

October 1976 - May 1981 

Legal Aid Foimdation of Los Angeles 

1550 W. Eighth Street 

Los Angeles, CA 90017 

Senior Co\insel, October 1976 - January 1978 

Director of Litigation, January 1978 
December 1980 

Acting Executive Director and Director of 
Litigation, Jcmuary 1989 - May 1981 

Blay 1981 - July 1994 

Judge, Los Angeles Municipal Court 
110 N. Grand Avenue 
Los Angeles, CA 90012 

July, 1994 to date 

United States District Court Judge 
Roybal Federal Building 
255 E. Temple Street, Suite 760 
Los Angeles, CA 90012 



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

Following graduation from law school in 1972, 
I was hired by California Rural Legal Assistance 
(CRLA) , a federally funded rural legal services 
program. I worked as a staff attorney in CRLA' s 
McFarleuid/Deleuio office which was located in Kern 
County in California's Sam Joaquin Valley. 
While at CRLA, I represented low- income individuals 
(many of whom were non-English speaking farm 
workers) in a variety of civil matters before state 
and federal courts, and administrative bodies. I 
also worked within various commiinity groups in our 
local service area. 

In Jamuary 1974, I left CRLA and relocated to 
Los Angeles, California. At that time, I begem 

16 



447 



Jan. 7, 1997 

working for the Western Center on Law and Poverty, 
a federally funded legal services support center 
for Southern California Legal Services programs. I 
was ez^loyed as a staff attorney. While at the 
Western Center, I worked on cases with attorneys 
from neighborhood legal services offices. I 
provided advice and coxinsel on substcuitive legal 
questions; technical assistance on litigation 
matters; co-counsel assistance on civil cases in 
state £uid federal courts at both the trial euid 
appellate court levels; and I litigated cases on my 
own that were referred by attorneys from local 
legal services programs . 

In October, 1976, I left the Western Center to 
work for the Legal Aid Foundation of Los Angeles as 
a Senior Coiinsel. As a Senior Counsel, my 
responsibilities were similar to those I had 
performed at the Western Center. The principal 
difference was that I worked directly for a local 
legal services program that en^loyed 40 attorneys 
in branch offices throughout the City of Los 
Angeles. In 1978, I became the Director of 
Litigation for the Legal Aid Foundation of Los 
Angeles. In that capacity, I assumed 
responsibility for the Fo\indation' s overall 
litigation efforts. I was also responsible for 
supervising the program' s senior and managing 
attorneys. Throughout those years, I continued to 
litigate cases involving complex legal euid 
procedural issues, both on my own and as co-coiinsel 
with other Foundation attorneys. 

In January, 1981, I was appointed Acting 
Executive Director by the Foundation's Board of 
Directors. As Executive Director, I was 
responsible for the overall administration of the 
program. I remained in this position iintil my 
appointment to the Los Angeles Municipal Court in 
May, 1981. 

As a Miinicipal Court Judge, I served in full- 
time criminal, civil, and administrative 
assignments. In the 13 years I served as a 
municipal court judge, I hamdled hundreds of 
criminal and civil trials, both jury and non-jury. 
In 1983, I served on assignment with the California 
Court of Appeal, Second Appellate District, 
Division 7. From June 1993 until the time of my 
appointment to the federal district court, I served 

17 



448 



Jan. 7, 1997 

on assignment with the Los Angeles Superior Court 
hearing civil juiry trials. 

As a United States District Court Judge since 
July of 1994, I have managed my own civil euid 
criminal calendars. These include civil and 
criminal law and motion matters, complex civil and 
criminal jury trials, civil court trials and 
bankruptcy appellate proceedings. 

Describe your typical former clients, euid mention 
the areas, if euiy, in which you have specialized. 

The typical clients I represented while 
working for federally- funded legal services 
programs were individuals whose incomes fell below 
the federally- established poverty guidelines. Meuiy 
of the clients I represented were African Americcui, 
Hispanic, and non-English speaking individuals. 
I did not specialize in any one area of the law. 
My primary interest was con^lex civil litigation in 
state and federal courts at the trial and appellate 
court levels . 

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 regularly \intil I became 
Executive Director of the Legal Aid Fo\indation of 
Los Angeles. While Executive Director, I made 
occasional court appeareuices . 

What percentage of these appeareuices was in: 

(a) federal courts; 30% 

(b) state courts of record; 70% 

(c) other courts 

What percentage of your litigation was 

(a) civil 100% 

(b) criminal 0% 

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



18 



449 



Jan. 1, 1997 

Approximately 10 cases as associate counsel 
and 15 cases as sole counsel. 

5. What percentage of these trials was: 

(a) jury; 0% 

(b) non-jury; 100% 

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

(a) the date of representation 

(b) the name of the court and the name of the 
judge or judges before whom the case was 
litigated; and 

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

(1) Chavez-Salido v. Cabell . 427 F.Supp. 158 (CD. 
Cal. 1977) (3-Judge Court), vacated and remanded 
436 U.S. 901 (1978); Opinion on remand, 490 F.Supp. 
984 (CD. Cal. 1980); reversed, 454 U.S. 432 
(1982) . 

In this action, the plaintiffs, all of whom 
were lawful resident aliens, were denied employment 
as deputy Los Angeles County probation officers 
because they were not United States citizens. 

The plaintiffs challenged the 
constitutionality of the statutory citizenship 
requirement, California Government Code 5 1041(a), 
on equal protection gro\inds. Although the three - 
Judge Federal District Court declared the statute 
unconstitutional as a violation of the Fourteenth 
Amendment, the United States Supreme Court 
reversed. Subsequently, the relevant state 
statutes were amended to allow resident aliens who 
have applied for United States citizenship to be 
employed as deputy probation officers. 

In this action I represented the three 

19 



450 



Jan. 7, 1997 

plaintiffs. I was sole coxmsel throughout all 
proceedings except the final argument before the 
United States Supreme Court. (I did not argue this 
case before the U.S. Supreme Court because at the 
time of oral argument, I was a municipal court 
j udge . ) 

Judge ; 



Senior U.S. District Judge Irving Hill 
Central District of California 
312 N. Spring Street -'' '' 

Los Angeles, CA 90012 

Co-Counsel ; ' 

Mary S. Burdlck, Esq. 
Supreme Court Appellate Proceedings 
1981 - 1982 

Western Center on Law £uid Poverty 
3701 Wilshire Blvd., Suite 208 
Los Angeles, CA 90010 
(213) 487-7211, ext. 27 

Defendant's Attorney ; 

Hon. Phillip H. Hickok 
Los Angeles Superior Court 
Dept. T 

12720 Norwalk Blvd. 
Norwalk, CA 90650-3188 
(310) 603-7211 

(2) Rank v. Nimmo . 460 F. Supp. 920 (CD. Cal . 1978); 
reversed, 677 F.2d 692 (9th Cir. 1982) . 

The plaintiff in this case was a Korecua War 
veteran who had financed the purchase of his home 
with a VA guaranteed home loan. When he was laid 
off from work in the early seventies, he was \inable 
to make his mortgage payments . The lender 
foreclosed and Initiated eviction proceedings. He 
then sought help from a local legal services 
program. 

This case involved the obligation of the 
Veterans Administration to service the plaintiff's 
VA-guaranteed home loan so that he could avoid 
foreclosure and retain his home. The district 
court held that the VA failed to meet its statutory 

20 



451 



Jan. 7, 1997 

and regulatory obligations emd set aside the 
foreclosure sale of the veteran's home. The Ninth 
Circuit reversed finding the plaintiff could not 
state a private cause of action under the 
applicedsle statutes and regulations. 

I represented the plaintiff in this action. I 
filed the action and acted as lead counsel \intil I 
left the Western Center on Law and Poverty. 
Thereafter, Richard Rothschild and I served as co- 
counsel. (I did not argue this case before the 
Ninth Circuit because at the time of oral arg\ament 
I was a miinicipal court judge.) 

Judge ; 

Senior U.S. District Judge Laughlin Waters 
Central District of California 
Roybal Federal Building 
255 E. Temple Street 
Los Angeles, CA 90012 

Defendant's Attorney ; 

Barry Trilling, Esq. 
Pepper, Hamilton & Scheetz 
1 Mellon Bank Center 
50th Floor 

Pittsburgh, PA 15219 
(412) 454-5000 

Co-Co\insel ; 

Richard Rothschild, Esq. 
Western Center on Law and Poverty 
3701 Wilshire Blvd., Suite 208 
Los Angeles, CA 90010 
(213) 487-7211 

3. Muraia v. Municipal Court . 15 Cal.3d 286 (1975) 

In this consolidated criminal action, we 
represented a nvimber of individuals who were 
charged with minor misdeme2uior offenses while 
participating in a farm workers' strike in Kern 
Covmty, California. Defendemts were arrested 
solely because of their involvement in the strike 
and sought to assert discriminatory enforcement of 
the law as an affirxiative defense. The trial court 
found that the defendants made a prima facie 

21 



452 



Jan. 7, 1997 

showing of discriminatory enforcement of the law, 
but ruled that the defendeuits could not raise this 
defense. The Court of Appeal and the California 
Supreme Court held that the defendants could assert 
discriminatory enforcement of the law as an 
affirmative defense. The Kern County District 
Attorney's office then dismissed the charges 
against all the def endeuits . 

I handled this case through the Court of 
Appeal proceedings with co-counsel Ken Rice and 
Miguel Garcia. 

We represented the defendants in this action. 

Judge: 

Hon. Gerald Davles, Ret'd. 
Kern County Superior Court 
1415 Truxton Avenue 
Bakersfield, CA 93301-5216 

Co-Counsel ; 

Ken Rice, Esq. 

215 North Lincoln Street 

Box 520 

Santa Maria, CA 93456 

(805) 925-2611 

Miguel F. Garcia, Esq. 
5842 Beverly Blvd. 
Los Angeles, CA 90022 
(213) 723-1890 

People's Attomev ! 

Kern Co\anty District Attorney's Office 
Bakersfield, CA 
(805) 861-2421 

Civil Service Comm. v. Superior Court (Price) . 
63 Cal.App.3d 627 (1977) 

In this action, the Coiinty of Los Angeles had 
terminated plaintiff's employment for misconduct. 
He appealed to the Los Angeles County Civil Service 
Commission, but after an evidentiary hearing, his 
termination was affirmed. He then sought judicial 
review. He could not, however, afford the cost of 

22 



453 



Jan. 7, 1997 

the administrative hearing trauiscript. 

Because the termination o£ plaintiff's 
employment involved a vested right under California 
law and independent judicial review, the trial 
court, upon plaintiff's motion, ordered the Civil 
Service Commission to prepare a treuiscript of the 
administrative hearing at its own expense. The 
Commission then sought appellate review. The Court 
of Appeal reversed. 

Although the Court of Appeal denied relief, 
the Legislature ultimately amended California Code 
of Civil Procedure section 1094.5 to allow an 
administrative agency to furnish the trial court 
with a copy of the administrative record at its 
expense. 

I represented the plaintiff in the superior 
euid appellate courts. Georgia Frcoiklin was co- 
counsel . 

Judge ! 

Hon. Norman Dowds, Ret'd. 
Los Angeles Superior Court 
110 No. Grand Ave. 
Los Angeles, CA 90012 

Defendeuit's Counsel ; ^- 

Principal Deputy Coiinty Coxinsel 

David L. Muir, Esq. 

500 W. Temple St., Suite 648 

Los Angeles, CA 90012 

(213) 974-1876 

Co-Counsel ; 

Georgia Freuiklin, Esq. 
944 15th Street, #2 
Santa Monica, CA 90403 
(310) 394-3936 

Ponce V. City of Tulare . Tulare Co\inty Superior 
Court, Civ. No. 74-581 (filed 1/29/73) 

In this employment discrimination action vmder 
42 U.S.C. section 1981, a group of Black and 
Mexican-American plaintiffs challenged the hiring 

23 



454 



Jan. 7, 1997 

euid promotional practices o£ the City o£ Tulare. 
The Superior Court fovmd intentional discrimination 
by the City against Black and Mexican-Americcui 
applicants and employees in phase one of the trial 
and awarded damages in phase two. The trial court 
also awarded attorneys' fees under 42 U.S.C. 
section 1988. 

Prom 1978 through 1978, I was one of the trial 
attorneys in the first phase of the case. My co- 
counsel were Tomas Olmos and David Bryson. 

Judge ; 

Hon. Leonard Ginsburg (deceased) 
Tulare County Superior Court 
County Civic Center 
Visalia, CA 93291-4593 

Co-Counsel ! 

David Bryson, Esq. (phase I) 
National Housing Law Project 
2201 Broadway, #815 
Oakland, CA 94612 
(510) 251-9400 

Tomas Olmos, Esq. (phase I) 

6300 Wilshire Blvd. #1500 

Los Angeles, CA 90048 - 

(213) 653-6530 

Defendant ' s Attorneys ; 

John Berryhill, Esq. (deceased) 
Tulare, CA 

Louie La Rose, Esq. (deceased) 
Visalia, CA 



Tonaol V. Userv . Civ. No. 76-100-WTS (N.D. Cal . , 
judgment entered 2/1/77), aff'd in part and rev'd 
in part, 601 F.2d 1091 (9th Cir. 1979) 

This was a nationwide class action under the 
Emergency Unemployment Compensation Act of 1975 
which challenged former 20 C.F.R. § 618.15 (a) and 
(f ) . This regulation prohibited states from 
applying their unen^loyment insurance waiver of 

24 



455 



Jan. 7, 1997 

overpayment provisions to overpayments o£ Federal 
Supplement Benefits (FSB) . The district court 
entered judgment on behalf of the plaintiffs 
declaring the regulations inconsistent with the 
federal statute. The district court denied 
plaintiffs' request for attorneys' fees under 42 
U.S.C. § 1988 on the grounds that plaintiffs' 
action did not state a claim for relief under 42 
U.S.C. § 1983. On appeal, the Ninth Circuit 
affirmed the judgment on the merits and reversed 
the district court's denial of attorneys' fees. On 
the attorneys' fees issue, the Ninth Circuit held 
that a deprivation of rights secured by federal 
statutory law could be enforced under 42 U.S.C. 
S 1983. 

We represented the plaintiffs. Richard M. 
Pearl and I were co-counsel. I was responsible for 
the class certification proceedings. 

Judge: 

U.S. District Court Judge William Orrick 
Northern District of California 
450 Golden Gate Avenue 
Scm Fremcisco, CA 94102 

Defendant's Attorney ; 

William T. McGlvem, Jr., Esq. 
Assistant U.S. Attorney 
San Francisco, CA 
(415) 556-5718 

Co-Counsel ; 

Richard M. Pearl, Esq. 
685 Market Street, #690 
Sam Francisco, CA 94105 
(415) 243-9912 

Ponce V. Housing Authority of Tulare County . 389 
F.Supp. 625 (E.D. Cal. 1973) 

In this case, we represented tenants who 

opposed the in^osltlon of a project-wide rent 

Increase in a Farmers Home Administration low 
Income housing project. 

This case established the due process rights 

25 



456 



Jan. 7, 1997 

o£ low- income tenants residing in Fanners Home 
Administration- finzuiced housing projects to receive 
adveuice notice and an opportunity to be heard 
before the imposition o£ project-wide rent 
increases. 

> We represented individual teneints as well as a 
tenants' union in their efforts to secure 
meeuiingful participation in the decision to 
increase rents. 

Richard M. Pearl euid I were co-counsel. 

Trial Judge ; 

U.S. District Judge Thomas J. McBride 

Eastern District of California 

650 Capitol Mall 

Sacramento, CA 95814 ^> 



Co-Counsel ; _ :! 

Richard M. Pearl, Esq. 
685 Market Street, #690 
Scm Francisco, CA 94105 
(415) 243-9912 

Defendant's Attorney . - 

Lloyd Hicks, Esq. 
119 S. Church Street 
Visilia, Ca 93279 
(209) 733-1065 

Johnson v. Marshall . Civ. No. 76-4015-F (CD. Cal., 
partial consent judgment entered 7/20/78, final 
judgment entered 3/21/79) 

In this action, the plaintiff was siumoarily 
terminated from Los Angeles County's Comprehensive 
Employment and Training Act (CETA) program. 
Contrary to Department of Labor regulations, she 
was denied any opportunity to contest her 
termination . 

This case sought to compel Los Angeles County 
to implement a grieveuice procedure for persons 
employed by the County as required by the 
Comprehensive Employment and Training Act of 1976 
(CETA) . The class action aspects of this case were 

26 



457 



Jan. 7, 1997 

resolved by a partial consent decree whereby the 
County agreed to implement the required grievance 
procedures and to provide discharged CETA 
participants with the opportunity to request a 
hearing to contest their termination. The 
additional claims o£ the named plaintiff as well as 
her request for cui award of attorney' s fees \jnder 
42 U.S.C. U 1988 were rejected by the district 
court . 

In an unpublished Memorandum Opinion, the 
Ninth Circuit affirmed the district court's 
judgment with respect to the plaintiff's individual 
claims but reversed the denial of attorney fees 
under 42 U.S.C. S 1988 for the work performed in 
connection with the consent decree. 

We represented the plaintiff. Sandra Pettit, 
Michael Wine and I were co-counsel. 

Judge ; 

Judge Warren J. Ferguson 
Ninth Circuit Court of Appeals 
500 Federal Building 
34 Civic Center Plaza 
Santa Ana, CA 92701 

Co-Counsel ; 

Seuidra Pettit, Esq. 
221 E. Glenoaks Blvd. 
Glendale, CA 91207 
(818) 546-1631 

Michael Wine, Esq. 

P.O. Box 91564 

City of Industry, CA 91715-1564 

(818) 333-7029 

Defendemt's Attorney ; 

Kathy Tooks Vaughns 

University of Maryland 

School of Law 

500 W. Baltimore St., Room 230 

Baltimore, MD 21201 

(410) 706-7069 

Joe Ben Hudgens, Esq. 

27 



458 



Jan. 7, 1997 

Deputy County Counsel 

500 W. Tes^le St., #648 

Los Angeles, CA 90012 ... 

(213) 526-6158 

9. Mavorauin-Cedcmo v. Fink . Civ. No. 78-1429-LEW 
(filed 4/13/78 CD. Cal.) 

This action challenged the constitutionality 
of former 19 U.S.C. § 1594 which allowed U.S. 
Customs officials to seize vehicles as security for 
payment of a penalty assessed under 19 U.S.C. § 
1549 and 146Q without notice and without an 
opportunity to be heard. Shortly after this case 
was filed, the U.S. Customs Service changed its 
procedures to provide for notice and a prompt 
opportxinity to contest the seizure of a vehicle. 
The district court denied class certification. 
Thereafter, the case settled with plaintiff Cedano 
receiving his car and $500, and plaintiff Hirales 
receiving $900. Despite the nominal settlements, 
this case was one of the precipitating factors 
leading the U.S. Customs Service to change its 
regulations to ensure due process safeguards for 
owners of seized vehicles. I was solely 
responsible for this case. 

Judge: 

Senior U.S. District Judge Laughlin Waters 
Central District of California 
255 E. Temple Street 
Los Angeles, CA 90012 

Defendant's Attorney ; 

Hon. Stephen D. Petersen 

(Former Assist£uit United States Attorney) 
Los Angeles Superior Court 
Northwest District - Van Nuys 
6230 Sylmar Ave. 
Van Nuys, CA 91401 

(818) 374-3104 

10 Fair V. Hills . Civ. No. 75-2455-DWW (filed 7/18/75, 
dismissed 12/76 CD. Cal.) 

This action involved a challenge to the bulk 
sale of 160 FHA repossessed homes in Szui 
Bernardino, California by the United States 

28 



459 



Jan. 7, 1997 



Department of Housing and Urbsm Development. The 
district court enjoined the private developers from 
rehabilitating, selling, or in any way disposing of 
the 160 homes without taking certain steps to 
ensure the viability of the proposed development. 
This case was significant because the 160 
repossessed homes were located in a low- income 
neighborhood in San Bernardino. The plaintiffs 
sought to compel HDD to in^jose certain conditions 
on the bulk sale that would ensure the success of 
the private redevelopment project. After the 
district court's ruling on the preliminary 
injunction, the case settled. 

We represented the plaintiffs in this case. 
Mary Burdick and I were co-counsel. 

Judge ! 

Senior U.S. District Judge David W. Williams 
Central District of California 
255 E. Temple Street 
Los Angeles, CA 90012 

Co-Coiinga1 • 

Mary S. Burdick, Esq. 

Western Center on Law euid Poverty 

3701 Wilshire Blvd., Suite 208 

Los Angeles, CA 90010 

(213) 487-7211, ext. 27 

Defendant's Attomfty ' 

Leland Stark, Esq. 
9454 Wilshire Blvd., #900 
Beverly Hills, CA 90212 
(310) 278-6750 

In addition to the above -referenced attorneys, the 
following is a list of attorneys and judges who are 
familiar with my judicial work: 

1. Hon. Aviva K. Bobb 

Los Angeles Superior Court 

111 N. Hill Street 

Dept. 82 

Los Angeles, CA 90012 

(213) 974-5883 

29 



460 



Hon. Edward Ferns 
Los Angeles Superior Court 
Department 133 
210 West Ten^le Street 
Los Angeles, CA 90012 
(213) 974-5783 

Barton C. Gaut, Esq. 
Bert, Bert & Grieger 
400 Mission Square 
3750 University Ave. 
Riverside, CA 92502 
(909) 686-1450 



4. Beth Jay 
Legal Director 
Chief Justice's Staff 
303 2nd Street 

San Francisco, CA 94107-1317 
(415) 396-9414 

5. Haywood Kaiser, Esq. 
Mitchell, Slberberg & Knupp 
1137 West Olyn^jlc Blvd. 

Los Angeles, CA 90064 
(310) 312-2000 

6. Raoul Kennedy, Esq. 
Crosby, Heafy, Roach & May 
1999 Harrison Street 

P.O. Box 2084 

Oakland, CA 94604-2084 -. 
(510) 763-2000 

7. Louise La Mothe, Esq. 
Rlordan & McKlnzle 

300 S. Grand Ave., 29th Fl. 
Los Angeles, CA 90071 
(213) 629-4824 

8. Nora Meuiella 

United States Attorney 
Central District of California 
312 N. Spring St. 
Los Angeles, Ca 
(213) 894-2401 

9. Carol Meeden, Esq. 
Callahan, Blaine & Williams 

30 



Jan. 7, 1997 



461 



Jan. 7, 1997 

18800 Von Kamum Ave., Ste. 800 
Irvine, CA 92715 
(714) 553-1155 

10. Lee Ann Meyer, Esq. 
Bridges & McCormick 

3750 University Ave., Ste. 240 
Riverside, Ca. 92501 
(909) 682-2760 - Work 

11. J. David Oswalt, Esq. 
Quinn, Kully & Morrow 
520 S. Grand Ave. 
Eighth Floor 

Los Angeles, CA 90071-2608 
(213) 622-3799 

12. Eskel H. Solomon, Esq. 
Deputy City Attorney 
1700 City Hall East 
200 N. Main Street 
Los Angeles, CA 90012 
(213) 485-0735 

13. Michael Stem 

445 S. Figueroa, Ste. 2222 
Los Angeles, CA 90012 
(213) 624-2969 

19. LEGAL ACTIVITIBS: 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 the years I worked in legal services, my "legal 
activities" primarily involved civil litigation. Many of the 
cases I worked on settled prior to trial, emd several of the 
more significant ones are described above. Litigating cases, 
however, was not the only legal activity I pursued. As 
Director of Litigation of the Legal Aid Foundation of Los 
Angeles, it was my responsibility to provide overall direction 
for the Legal Aid Foimdation's legal work. This involved 
setting program priorities in consultation with the client 
community and program staff, and then ensuring that the 
Foundation's resources were devoted to in5>lementing the 
established priorities. 

31 



462 



Jan. 7, 1997 

In the years that I have been a judge, I have worked on 
a number of issues to In^rove the administration o£ justice. 
As Presiding Judge of the Los Angeles M\inicipal Court in 1988, 
I started the Court's attempt to implement a criminal trial 
delay reduction program. I also developed a program to 
improve the Court's use of Temporary Judges (attorneys 
appointed to act as ten^orary judge for a limited time) by 
requiring training, supervision cuid monitoring of their work. 
I also supported a number of projects that sought to achieve 
greater judicial cooperation between the Municipal and 
Superior Courts in Los Angeles County. 

As Chair of the Los Angeles Municipal Court Judges' 
Association (MCJA) , I testified before the Legislature in 
support of legislation that required greater cooperation and 
joint utilization of resources between the Mxinicipal euid 
Superior Courts. . ; ,: 

As Supervising Judge of the Los Angeles Mvmicipal Court's 
civil judges, I instituted a civil trial court delay reduction 
project. This resulted in a major change in the way the Court 
calendared civil cases. Under this new system the court 
converted its master calendar system to a direct "federal 
style" system; estedslished an arbitration and settlement 
conference program; and implemented a computerized tracking 
system for all general civil cases. As a result of this 
program, the Court eliminated considerable delay in the time 
it took to resolve civil cases. 

In addition to my past involvement in judicial 
administration, I was also active in judicial education with 
the California Center for Judicial Education and Research 
(CJER) . I taught civil law and procedure to many judges 
throughout California at numerous judicial education programs 
sponsored by CJER. Through my involvement with CJER, I sought 
to share my experience with other less experienced judges as 
well as to improve my own legal knowledge. 

Finally, from 1991 to 1994, I had the opportunity to 
serve on the State Judicial Council, the policy-making body 
for the California judiciary. I served at a time when 
significant change was taking place within California's trial 
court system. I was an active participant In the Council tuid 
supported such court reform measures as trial court delay 
reduction, unification and consolidation of the trial courts, 
state trial court funding, and greater planning by the Council 
to address the future needs of the California judiciary £uid 
the state's increasingly diverse population. 

As a United States District Judge, I have been active in 

32 



463 



the Central District's Case Management and Assignment, and 
Automation Committees. I have also participated in continuing 
legal education programs for the Bar by speaking at programs 
sponsored by the Los Angeles Coxinty Bar Association's 
Litigation Section (Federal Civil Procedure Recent 
Developments: November & December 1995) ; California Continuing 
Education of the Bar (CEB) (Litigating Section 1983 Claims, 
July 1995) ; American Bar Association White Collar Crime West 
Coast Committee (Jury Selection & Persuasion in the '90s, 
April 1995) and Association of Business Trial Lawyers (New 
Judges - New Rules, December 1994) . 



II. FIN2\NCIAL 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 a Los Angeles County Miinicipal Court Judge, I was 
allowed to participate in the County's Tax Deferred Savings 
Plan (401K) and Deferred Compensation programs. When I 
resigned my m\inlcipal court position, I was able to traxisfer 
my 401k savings to an Individual Retirement Account. Since I 
was not cJsle to transfer my deferred compensation to eui IRA 
account, I elected a delayed distribution that begins in 2002. 
The current market value of my deferred compensation is 
approximately $45,000. 

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 cuid flneuicial arrangements that are likely to 
present potential conf licts-of-lnterest during your initial 
service in the position to which you have been nominated. 

All of my fineuicial investments are in stock mutual funds 
managed by Fidelity Investments. Accordingly, I do not 
emticipate any conflict-of-interest problems. The only 
possible conflict of interest would be if I were assigned a 
case where IBM, my wife's former employer, is a party to the 
action. If this happened, I would recuse myself from the 
case. In the event of any other potential conflict of 
interest, however, I would follow euid comply with the 

33 



464 



Jan, 7, 1997 

guidelines for the Code of Judicial Conduct for the federal 
judiciary. 

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

No. 

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

A copy of my initial Financial Disclosure Report is 
attached. 

Please complete the attached financial net worth statement in 
detail (Add schedules as called for) . 

See attached form with schedules. 

Have you ever held a position or played a role in a political 
cas^algn? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, your 
titles and responsibilities. 

No. 



III. GENERAL POLICY 

An ethical consideration xinder 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 disadvauitaged. " Describe what you have done o 
fulfill these responsibilities, listing specific Instances and 
the amount of time devoted to each. 

I fully appreciate the ethical consideration set forth in 
Canon 2 in the ABA' s Code of Professional Responsibility. As 
my response to Question No. 17 indicates, from the time I 
graduated from law school until my appointment to the 
municipal court, I represented disadvantaged individuals. I 
sought to provide quality representation to low income 
Individuals who could not afford to hire private attorneys. 

34 



465 



Jan. 7, 1997 

As a judge, I have sought to demystify the state auid 
federal judicial systems by taking time to explain how the 
system works to unrepresented litigants, jurors and those who 
visit the courthouse. I have also spoken to students at local 
schools and to students who visit the courthouse. 

The Americsui 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 ceuididates for nomination to the federal courts? If 
so, did it recoimnend 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. However, neither of the judicial selection 
committees esteJalished by Senators Barbara Boxer or Dianne 
Feinstein were involved in my nomination to the Ninth Circuit 
Court of Appeals . 

In November 1995, I was contacted by the White House 
Counsel's Office £ind informed that I was under consideration 
for nomination to the Ninth Circuit Court of Appeals. I was 
also informed that my name would be sent to the Federal Bureau 
of Investigation (FBI) for a background investigation cuid to 
the Americeui Bar Association (ABA) for soi evaluation of my 
qualifications. I was then sent several questionnaires and 
forms to complete for the FBI, ABA, Justice Department, emd 
Senate Judiciary Committee. 

I was subsequently interviewed by the FBI and ABA, suid 
spoke by telephone on several occasions with representatives 
of the White House Counsel's Office. 

In late November 1996, I was formally advised by the 
Administration that the 104th Congress failed to act on my 
nomination to the Ninth Circuit. In December 1996, I was 
Informed by the Administration that I was being considered for 
renomination to the Ninth Circuit. I was asked to update the 
information * provided to the Senate Judiciary committee 

35 



466 



Jan. 7, 1997 

previously. 

4. Has cinyone 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 a case, 
issue, or question? If so, please explain fully. 

:■:■ •■-■ /■■^' -Nto. -■■' ^-■ 

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 bremch 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. 

Both my litigation experience emd my years on the state 
£md federal bench suggest that the routine business of the 
federal courts is the resolution of specific grievances of 
individuals and entities, whether public or private. It 
sometimes happens that the decision in, or resolution of, a 
particular case may have ramifications for other cases, but 
judges must decide the cases before them nonetheless. The 
courts are not free to dismiss a case or refuse to decide it 

36 



467 



Jan. 7, 1997 

singly because the outcome may affect non- litigants. 

It bears notice that broad class-wide relief is not 
readily availeQjle. Rule 23 of the Federal Rules of Civil 
Procedure sets forth specific requirements that must be met 
SLnd is^oses on the trial court the responsibility to make the 
determination upon a proper showing by the party seeking class 
certification. Given the limited resources of the judiciary, 
the alternative of class-based relief, in appropriate 
circTjmstances, can aid the court in achieving a balance 
between the just resolution of a dispute etnd the expeditious 
management of the entire caseload. 

In some instances, federal judges have imposed broad 
orders against governmental euid other institutions. This, 
however, is not and should not be the norm. Judges should 
approach the question of appropriate relief cautiously. Where 
governmental or other entities fail or refuse to comply with 
a court order, however, courts must, of course, enforce their 
own orders . Any other course would iindermine the 
effectiveness of and public confidence in the judiciary. This 
does not mean that a judge should become a program 
administrator, but rather that the court must ensure that its 
orders and judgments are based on solid legal authority in the 
first instance and then should use reasoncible means to ensure 
that its rulings are accorded respect and implemented 
accordingly . 

Finally, on the issues of stcinding and the private 
enforcement of statutory rights, the trend in the past decade 
has been to tighten the requirements for standing as well as 
to limit the "private right of action" to situations in which 
express statutory authority exists. In this regard, some 
criticism suggests that standing requirements are too 
restrictive emd deny individuals access to the courts . 

As a trial judge, I have for msuiy years understood the 
responsibility to know the law, determine the facts in an 
unbiased fashion, and apply the law to the particular facts 
before me to achieve a just result. With this knowledge and 
experience, I believe I can better assume the duties and 
responsibilities of an appellate court judge, appreciating 
fully the way that Issues and parties "present themselves" to 
the trial court and the trial court's ongoing efforts to 
balance the law and the facts properly and correctly. Both as 
a state and federal court judge I have always adhered to 
established precedent and I recognize and accept my obligation 
to follow precedent as an appellate court judge as well. 



37 



468 



JANUARY 1997 
HNANCIAL STATEMENT 

NET WORTH 



ASSETS 

Cash on Hand &. 
In Banks 

Listed Securites... 



$3,000 



Unlisted Securities... ;. 

U. S. Govt. Securities. 

Accounts & Notes .... 45 ,000 

(Mutual Funds) 

Due from others.... 

Real Estate Owned 435,000 

Real Estate Mortgages 

Receivables 

Autos & 

Personal Prop 49,000 

Cash Value 

Life Insurance.... 

Other Assets 417,000 

(Vested Interest in 
Retirement Funds) 

Total Assets $949,500 



LIABILITIES 
Notes to Banks 



Notes Payable 
to Relatives. 



Notes Payable 
to others.... 



Accounts & Bills $ 10,000 

Unpaid Income Taxes 

Other Unpd. Tax & Int 

Real Estate 

Mortgages 263,000 

Chattel Mortgages. . . . 18,000 
Other debts 



Total Liabilities. . . . $291 ,000 
Net $658,000 



469 



JANUARY 1997 
ASSET SCHEDULE 



Real Estate Owned 

1. Single Family Residence 
2534 Ivanhoe Drive 
Los Angeles, CA 

Market Value $ 350,000 



2. Condominium 

7806 Birch Bay Drive 
Blaine, WA 

Market Value 85,000 



Accounts Due 

Fidelity Investments 

Boston, MA 

Stock & Bond Mutual Funds 

Market Value 45,000 



Other Assets 

Vested Interest In Retirement Funds 

Richard 

L.A. County Deferred Comp 45,000 

IRA (Fidelity Invest.) 205,000 

Diane 

IBM 40IK Savings 45,000 

IRA (Fidelity Invest.) 10,000 

IBM Retirement 12,000 

Total Other Assets $417,000 



470 



JANUARY 1997 
LIABILITIES SCHEDULE 



Real Estate Mortgages Payable -^ '' ;- " _ 

1. 2534 Ivanhoe Drive ... 
Los Angeles, CA 

SFR Mortgage (30 yr.) $ 207,000 

2. 7806 Birch Bay Drive 
#111 

Blaine, WA. - .: 

Condo. Mortgage 56,000 

Sub-Total 263,000 

Chattel Mortgages (Autos) ■ .; :- ■ . ■. , .• 

1. 1995 Volvo 940 (Lease) 18,000 

TOTAL $281,000 



471 



JANUARY 1997 
FINANCIAL STATEMENT 

NET WORTH 



CONTINGENT LIABILITIES: 

Endorser, Co-maker, or Guarantor None 

On Leases or Contracts None 

Legal Claims None 

Provision for Federal Income Tax None 

Other Special Debt None 

GENERAL INFORMATION 

Are any assets pledged? No 

Are you a defendant in any 

suits or legal actions? No 

Have you ever taken bankruptcy? No 



50-531 98-16 



472 



FINANCIAL DISCLOSURE REPORT 

NOMINATION 



^fKS 






1, Person Reporting (Last n 

PAEZ, RICHARD A. 



DISTRICT COURT JUDGE, ACTIVE 



NINTH CIRCUIT COURT OF APPEALS 

5 . Report Type 



01/07/97 



ROYBAL FEDERAL BUILDING 
255 E. TEMPLE ST., STE . 760 
LOS ANGELES, CA 90012 



pplicable laws and reguiatioi 



IMPORTANT NOTES: The instnictioas accompanying this form must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable infonnation. Sign on last page. 



I, POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.) 

POSITION NAME OF ORGANIZATION /ENTITY 

NONE INo reportible positions) 



DIRECTOR 



L.A. CO. BAR. DISPUTE RESOLUTION SVC. INC. 
HOLLYWOOD LOS FELIZ JEWISH COMMUNITY CENTER 



II. AGREEMENTS. (Reporting individual only, see pp. 14-17 of Instructions.) 

DATE PARTIES AND TERMS 



n 



09/94 



reportable agreenents 



LOS ANGELES CO. TAX DEFERRED COMPENSATION PROGRAM 



Deferred Salary Pavtnents - 



4 annual pavmenta beqinninQ 2002 



ni. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 



SOURCE AND TYPE 



n 



1995 



NONE {No reportable non- Investment Income) 



IBM Corporation (a) Salary 



IBM Corporation (S) Salary 



$ 


0.00 


s 


0.00 


s 


s 


s 



473 



PIHAMCIAL DISCLOSURE REPORT 



Nane of Peraon Reporting 

PAEZ, RICHARD A. 



01/07/97 



IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment 

(Includes those to spouse and dependent children; use the parenthetical *(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 auch reportable 

The Aspen Institute 



September 15-17. 1995 - Oueenstown, Maryland 

International Law Seminar 

Transportat ion/Lodoing / Food 



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 VALUE 



reportable gifts) 



VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where apphcable, person responsible 
for liability by using the parenthetic^ '(S)' for separate liability of the spouse, '(J)' for joint Uabihty of reporting 
individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.) 

CREDITOR DESCRIPTION VALUE CODE* 

NONE 



reportable liabilities) 



IBM Corp. 401K Savings Plan(S) Loan 



United States Savings Bank (J) Mortgage Loan 



- 9356, 



001 - $S00.000 - «S00.001 - $1,000,000 p - Mors than : 



474 



FINANCIAL DISCL0SX7RE REPORT 



Name of Person Reporting 

PAEZ, RICHARD A. 



01/07/97 



VII. Page 1 INVESTMENTS and TRUSTS - income, value, transactions (includes those of spouse 
and dependent children. See pp. 37-54 of Instructions.) 



Description o£ RsaetB 
(including cruBC asflete) 

Indicate where applicable, owner ot 
the asset by using the parenthetical 
"(JC for ioint ownership of report- 
ing individual and Bpouse. '(S)* for 
separate ownership by apouse, '(DC)* 
for ownership by aependent child. 

Place "(X)" after each asset 


reporting 
period 


Gross value 
ac end of 
reporting 


Transactions during reporting period 


(1) 

Amt.l 
Code 


(21 

Type 

(|-9-. 


tl) 


(21 
Value 
(0-5) 


buy?'lell, 
merger. 


If not exeicpt from disclosure | 


Date: 
oiy' 


(31 
Value2 

(J-P? 


|S' 


buyer/seller 
(if private 


NONE (No reportable 




















1 Condominium (J) Whatcom Co, MA 






^ 


" 










see Pert VIII 


2 Fidelity Investments (Jf 




















3 ^.u.l ^^.. 




















4 - Magellan Fund 


A 


Divide 


K 


T 












B . C Mu„i Hi,. VM 


s 


Divide 


^ 


T 


Sal 


t/f^ 


■r 


4 




6 - Fidelity Asset Mgr/G 


A 


Divide 


^ 


T 


sell 










7 - Fidelity Equity Inc. II 


B 


Divide 


K 


T 


Sell 


9/94 


^ 


» 




8 L.A. Co. De£ Con?) . 


B 


Divide 


K 


- 












, IHA-r.d=li., ■nv^t-.nr. 




















10 Mutual Fund: 




















n - ,co„». ^d, 


A 


Divide 


M 


T 












12 IHA - Fidelity Inv (S) 




















13 - (Contra Fund) 


» 


Divide 


. 


T 












14 IBM 401k Savings Plan (S) 


B 


Divide 


H 


T 












15 IBM Credit Onion 


A 


intere 


. 


T 












16 -Fidelity Equity Inc. II 


B 


Divide 


K 


T 


sell 


,/,. 


^ 


A 




IV 




















18 




















^ '^TclS-X'^Si |:|k?SS.°[o^li§.coa l:|h°gi.^o'lil§%oo SIlol'SofM^S'Socooo g:g|^°J^ llf6S§°ooo 


' TiircS?-?!..,, £IM6?SS.°fo'liSo.ooo §:|ll6?SJ.^?o'i;;SSS.ooo^?4°2U°s!!8?6°SSo -'"— = »-.ooo 


3 Value Method Codes t Q-Apprai»al R-Co8t(re«l estate only) S-Assesoent T-Caoh^larket 
(See Col. ca) O-Boott Value V-Other W-Estioaced 



475 



FINANCIAL DISCL0SX7RE REPORT 



Naiae of Person Reporting 

PAEZ, RICHARD A. 



01/07/97 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate pan of Report) 



Part VII #1 My spouse and I jointly own a condominium in Whatcom County. 
Washington with her parents. We receive no income from this property. My 



wife's parents reside in the condominium. 



Part III My wife terminated her employment with IBM on May 30. 1996. 



476 



-FINANCIAL DISCLOSURE REPORT 

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 been reported are in compliance with the 
provisions of 5 U.S.C. A. app. 7, 501 et . seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. /O 

/Z^,.L&^ /c' '\C-'^ Date /- 7' 97 



Signature 

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. A. APP. e 
104, AND 18 U.S.C. 1001.) 



FILING INSTRUCTIONS: 
Mail signed original and 3 additional copies to: 



Committee on Financial Disclosure 
Administrative Office of the 
United States Courts 
Washington, D.C. 20544 



477 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former names used.) 
HILDA GLORIA TAGLE 



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

Home address 229 Country Club Drive 

Corpus Christi, Texas 78412 

Office address 148th District Court 

901 Leopard, Suite 903 
Corpus Christi, Texas 78401 



Date and place of birth. 

December 18, 1946 

Corpus Christi, Nueces County, Texas 



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. 

Del Mar College 

Fall, 1965 - Summer, 1967 

Associate of Arts, May 24, 1968 

Summer, 1982/audit; Summer, 1983; Fall, 1983 

East Texas State University 

Fall, 1967 - Summer, 1969 

Bachelor of Arts, May 24, 1969 

Summer, 1973; Summer, 1974 (Courses required for secondary 

school teacher certification, obtained, 1974) 

North Texas State University 

Fall, 1969 - Spring, 1971 

Master of Library Science, May 18, 1971 



478 



University of Houston 

Spring, 1972; Fall, 1972; Spring, 1973/withdrew, schedule 

conflict, (Courses required for secondary school teacher 

certification) 

University of Texas School of Law 

May, 1975 - August, 1977 

Doctor of Jurisprudence, August 18, 1977 

Corpus Christi State University/Texas A&M University- 
Corpus Christi 
Summer, 1985/withdrew, schedule conflict (elective) 

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

January 1, 1995 - present 
Judge, 148th District Court 
901 Leopard, Suite 903 
Corpus Christi, Texas 78412 

July 1, 1985 - December 31, 1994 
Judge, Nueces County Court at Law No. 3 
901 Leopard, Suite 703 
Corpus Christi, Texas 78412 

September 1, 1981 - May 31, 1985 

Instructor 

Legal Assistant Program 

Del Mar College 

Ayers at Baldwin 

Corpus Christi, Texas 78404-3897 

June 15, 1984 - July 15, 1984 

Intern 

Congressman Solomon P. Ortiz 

U.S. House of Representatives 

2136 Raybum Building 

Washington,, D.C. 20515 

September 10, 1981 - June 30, 1985 

Solo practitioner 

1521 S. Port 

Corpus Christi, Texas 78405 



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479 



February 2, 1980 - September 9, 1981 

Assistant District Attorney 

Nueces County District Attorney 

901 Leopard 

Corpus Christi, Texas 78401 

October 16, 1978 - February 1, 1980 

Assistant County Attorney 

Nueces County Attorney 

901 Leopard 

Corpus Christ, Texas 78401 

September, 1977 - October, 1978 

Assistant City Attorney 

City of Corpus Christi 

1201 Leopard 

Corpus Christi, Texas 78401 

January, 1977 - August, 1977 

Law clerk/Legal Aid Society of Central Texas 

209 W. 9th, Suite 200 

Austin, Texas 78701 

September, 1975 - December, 1976 

Research Assistant 

University of Texas School of Law 

2600 Red River 

Austin, Texas 

September, 1971 - May, 1975 

Librarian 

Strake Jesuit College Preparatory 

8900 Bellaire Boulevard 

Houston, Texas 77036 

June, 1970 - August, 1971 
Professional Library Assistant 
North Texas State University Library 
Denton, Texas 76203 

January, 1970 - May, 1970 

Aide 

Kiddie Korner/Sherman Drive Learning Center 

808 Sherman Drive 

Denton, Texas 76203 

February, 1968 - August, 1969 
Student Assistant 
Foreign Language Department 
East Texas State University 
Commerce, Texas 75428 



-3- 



480 



Fall, 1966 - Sximmer, 1967 

Student Assistant 

Home Economics Department 

Del Mar College 

Ayers and Baldwin 

Corpus Christi, Texas 78404 



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



No military service. 



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

Alpha Chi Honorary Society, 1969 
East Texas State University 

Alpha Lambda Sigma Honorary Society, 1971 *> 

North Texas State University 

Business Person of the Year, 1988 

Corpus Christi Hispanic Chamber of Commerce 

"Celebrate Literacy" Award, 1990 

Corpus Christi Council for the International Reading 

Association 

"Good Gals" Award, 1990 

Texas Women's Political Caucus 

Outstanding Citizen Award, 1991 
United Married Couples 

Recognition and Scholarship Banquet, 1991 

League of United Latin American Citizens Council 26 

Y Women in Careers Award, 1991 
Young Women's Christian Association 

"Hand in Hand" Award, 1995 ' 

St. John Baptist Church 



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. 

-4- 



481 



Bar associations: 

Corpus Christi Bar Association 
c. 1980 - present 

Lawyers for Literacy Committee, 1988-1989 
Law Day Committee, 1992-1993 

Women Lawyers of the Coastal Bend 
Founding Chair, 1988-1990 
1988 - present 

Mexican American Bar Association of the Coastal Bend 
Founding Member, 1992 - Present 

State Bar of Texas 

Co-Chair, 1992 Annual Meeting Planning Committee 
Opportunities for Minorities Committee, 1990-91 
Continuing Legal Education Committee, 1991-92 
Women and the Law Section 

Council Secretary, 1989-90 
Hispanic Issues Section 

Legal committees : 

Texas Bar Foundation 

Supreme Court of Texas Board of Law Examiners 

Character and Fitness Division, District 11 
Committee on Admissions 

Judicial-related committees or conferences: 

State Commission on Judicial Conduct, 1989-1994 

Supreme Court of Texas Judicial Education Executive 
Committee, 1988-89 

State Bar of Texas Judicial Section 

Resolutions Committee, 1987-1988 
Bylaws Revision Committee, 1988-1989 

10. Other f **=']n>?<'r ?hips : 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 : 

National Women's Political Caucus 
1987 - present 

-5- 



482 



National Steering Committee, Judicial/Dispute Resolution 
Committee Chair, 1993-1995 

Texas Women's Political Caucus 

1987 - present • -..t 

Other organizations: 

Southern Regional Council (Supersedes 

Commission on Interracial Cooperation, founded 1918) 

1990 - present 

Hispanic Women's Network of Texas 
1987 - present 

President's Board of Advisors • ■ 

Texas A & M University - Corpus Christi 
1992 - present 

Del Mar College Foundation " c 
1994 - present - . ~ru --: 

South Shore Christian Church 

1990 - present . »• 

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

Supreme Court of Texas, November 11, 1977 (Supreme Court of 
Texas, Courts of Appeal, state district courts, county courts, 
county courts at law, justice of the peace courts, municipal 
courts, administrative courts) 

United States District Court for the Southern District of 
Texas, 1978-circa 1986 (I allowed it to lapse because I was on 
the bench in 1986 and was not able to practice law.) 
Reinstated November 15 or 16, 1989 

Supreme Court of the United States, June 25, 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 

-6- 



483 



reports about the speech, and they are readily available to 
you, please supply them. 

"Literacy and the Courts." Corpus Christi Lawyer, Spring, 
1990, Vol.4, No. 1. (Pages 7 A-J) . 

Texas Center for the Judiciary, Inc. 

1987 Regional Judicial Conferences, "Setting, Revoking, 
and Forfeiting of Bail Bonds" 
(Pages 7 K-Z and A1-A43) 

State Bar of Texas 

Judicial Section, 1989 Annual Conference, "Literacy and 
the Courts" 

Mexican American Bar of the Coastal Bend 

1993 Annual Continuing Legal Education Seminar, "Handling 
a Simple Probate" (Pages 7 B1-B12) 

Mexican American Bar of Texas 

1994 Annual Meeting, "Incompetency, Insanity, and Mental 
Illness" (Pages 7 C1-C29) 

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

Excellent. 
April 14, 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. 

148th District Court 

Elected term: January 1, 1995 - December 31, 1998 

Court of general jurisdiction: felonies, civil matters, 

including Texas Family Code 

Nueces County Court at Law Number Three 

Appointed term: July 1, 1985 - December 31, 1986 

Elected term: January 1, 1987 - December 31, 1990 

Elected term: January 1, 1991 - December 31, 1994 

Court of general jurisdiction: $100,000 limit in civil 

matters, misdemeanors, probate, mental illness and chemical 

dependency commitments, and condemnation. 

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 

-7- 



484 



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) Texas law does not require written opinions by trial 
judges . 

(2) NUMBER 13-91-622-CV and 13-91-623-CV, COURT OF APPEALS, 
THIRTEENTH JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

IN RE: ESTATE OF WILLIAM D. WALLOCK, DECEASED 

AND 

IN RE: ESTATE OF JANICE E. WALLOCK, DECEASED 

Estate of Wallock . 846 S.W.2d 536 

(Tex.App. — Corpus Christi 1993) 

The issue on appeal was whether the claim by Encino- 
Cimarron against the estates of William and Janice 
Wallock was properly classified and approved. The Court 
of Appeals sustained the appellant's point of error and 
VACATED the trial court's order of April 4, 1993, 
allowing Encino-Cimmarron General Partnership's claim be 
classified as a Class 8 claim under the Texas Probate 
Code Sec. 322, subject to an accounting by the parties. 
The court's judgment was reversed and remanded. 

NUMBER 13-91-654-CR, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

TODD EUGENE SIMMONS , APPELLANT 

V. 

THE STATE OF TEXAS 

(Opinion not published, copy attached. Pages 8 A-H) 

The jury found appellant guilty of driving while 
intoxicated. The information alleged a prior driving 
while intoxicated conviction, and the trial court 
assessed punishment ninety days' confinement and a five- 
hundred dollar fine. Appellant contended that the 
information charging him with the offense did not give 
him adequate notice to prepare his defense, that the 
evidence was insufficient to prove the allegations in the 
information, and that the trial court erred in allowing 
the State to reopen its case to prove the enhancement 
allegation of the information. The Court of Appeals 
affirmed in part. The Court concluded that there was an 
abuse of discretion in allowing the State to re-open 
after argument for the purpose of proving up the prior 

-8- 



485 



conviction. The cause was reversed and remanded for 
trial on punishment only. 



NUMBER 13-86-150-CV, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

J.E. KEATON AND ONIETA KEATON, APPELLANTS 

V. 

R. DAKIN & COMPANY, APPELLEE 

Keaton v. Dakin . 716 S.W.2d 726 

(Tex.App. — Corpus Christi 1986) 

The trial court granted summary judgment for appellee 
(plaintiff). Appellants argued the summary judgment 
evidence established that a material fact issue existed 
as to whether the subject merchandise was sold or 
delivered to appellants or on their behalf. The court of 
appeals ruled that appellee's summary judgment proof was 
insufficient, and reversed and remanded for trial on the 
merits. 



NUMBER 13-91-606-CR, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

ALBERT A. NEGRINI , APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 
Nearini v. State . 853 S.W.2d 128 
(Tex.App. — Corpus Christi 1993) 

Appellant was found guilty of driving while intoxicated, 
and the trial court assessed punishment of 180 days in 
jail, probated for two years, and a $500 fine. The Court 
of Appeals reversed and remanded for a new trial on the 
basis of error in refusing to allow a probation officer 
to testify as an expert about the "bum-off," or rate at 
which liver metabolizes alcohol and eliminates it from 
the body. 



NUMBER 13-92-489-CR, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

WILLIAM ERNEST PADDOCK, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

(Opinion not published, copy attached Pages 9 A-L.) 

On original submission, the Court of Appeals found 
harmless error in the trial court's ruling which 

-9- 



486 



permitted the State to cross-examine appellant about his 
drinking habits. 

On rehearing, the Court of Appeals ruled that the error 
was not harmless, and reversed and remanded for new 
trial . 



NUMBER 13-94-77-CR, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

KENNETH EARL GIBSON, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

(Opinion not published, copy attached Pages 10 A-M.) 

In a bench trial, the defendant was found guilty of 
possession of marijuana. In reviewing the evidence on 
affirmative links of the defendant to the contr2±)and, the 
Court of Appeals found that the evidence was 
insufficient, and reversed and rendered judgment of 
acquittal . 



NUMBER 13-88-113-CR, COURT OF APPEALS, THIRTEENTH 
JUDICIAL DISTRICT OF TEXAS, CORPUS CHRISTI 

ROQUE ALANIZ, APPELLANT 

V. 

THE STATE OF TEXAS 

Alaniz vs. State, 754 S.W.2d 406 

(Tex.App. — Corpus Christi 1988) 

The motion to quash an amended information charging the 
defendant with driving while intoxicated was granted. 
The Court of Appeals held that the State's information 
set forth in plain and intelligible language sufficient 
information to enable the accused to prepare his defense, 
and was therefore, legally sufficient. The case was 
reversed and remanded, and the information was ordered 
reinstated. 



(3) Clifford Zarsky ' 

V. 

The State of Texas 

827 S.W. 2d 408 

(Tex.App. — Corpus Christi 1992, pet. ref'd), cert, 

denied, 113 S.Ct. 1586 (1993) 



-10- 



487 



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. 

State Commission on Judicial Conduct 
Member 

Appointed by Supreme Court of Texas, confirmed by Texas Senate 
Unexpired term: November 21, 1989 - November 19, 1991 
Regular term: November 19, 1991 - December 31, 1994 

Governor's Commission for Women 

Member 

Appointed by Governor Ann Richards 

Term: 1991 to 1993 



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; 

Did not clerk. 

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

September 10, 1981 - June 30, 1985 

Solo practitioner 

1521 S. Port 

Corpus Christi, Texas 78405 

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; 

January 1, 1995 - present 

Judge 

148th District Court 

901 Leopard, Suite 903 

Corpus Christi, Texas 78401 



-11- 



488 



-" • July 1, 1985 - December 31, 1994 i ■ 1, 
■ ' Judge 
. ' Nueces County Court at Law No . 3 ; 

901 Leopard, Suite 703 
Corpus Christi, Texas 78401 __,.. 

September 1, 1981 - May 31, 1985 , ,. .._,.,: 
Instructor ■-•,!•;: 

Legal Assistant Program 
' ' - Del Mar College 

Baldwin and Ayers 

Corpus Christi, Texas 78404-3897 , 

February 2, 1980 - September 9, 1981 . 

Assistant District Attorney 

Nueces County District Attorney - 

901 Leopard 

Corpus Christi, Texas 78401 

October 16, 1978 - February 1, 1980 
Assistant County Attorney 
- '" - Nueces County Attorney , -^ _ ; . •- 
901 Leopard r- • 

Corpus Christ, Texas 78401 

September, 1977 - October, 1978 

Assistant City Attorney 

City of Corpus Christi 

1201 Leopard 

Corpus Christi, Texas 78401 

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? 

September, 1977 - October, 1978 
Assistant City Attorney 
City of Corpus Christi 
'- Municipal court prosecution, including jury 

trials; drafting of civil service disciplinary 
notices and appeals; oversight of cable 
television regulations 

October 16, 1978 - September 9, 1981 
Assistant Nueces County Attorney and 
Assistant District Attorney 
Misdemeanor and felony prosecution 
Numerous non-jury and jury trials 
(guilt/innocence and punishment phases [juries 
can assess punishment]) 
September, 1981 - June, 1985 
General solo practice 

-12- 



489 



Criminal defense (adult and juvenile); family 
law, including a custody jury trial; worker's 
compensation, limited personal injury. 

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. 

September, 1977 - October 1978 
While an assistant city attorney, I prosecuted 
mostly pro se non-jury cases in the municipal 
court of the City of Corpus Christi. 
Attorneys represented defendants in relatively 
few cases. Hourly dockets of approximately ten 
cases resulted in three or four contested 
hearings per day. The majority of cases pled 
out after having been placed on the docket for 
non-jury trial. I had only one jury trial. I 
represented the city in approximately five 
contested hearings before the Civil Service 
Commission and in which the employees were 
represented by attorneys. 

October 16, 1978 - February 1, 1980 
As an assistant county attorney, I was solely 
responsible for the misdemeanor weekly jury 
trial docket of one of the four Nueces County 
courts-at-law to which I was assigned by 
rotation. Each jury trial docket consisted of 
approximately 20 to 25 cases, many of which 
would plead out (both pro se and with 
attorneys ) . Most contested cases were non- 
jury trials with attorneys, and occasionally 
with pro se defendants. Defendants who 
elected to go with a jury for guilt/innocence 
usually elected to go to the court for 
punishment. There were many pre-trial 
motions, such as motions to quash the 
information and motions to suppress in 
controlled substances and driving while 
intoxicated cases. I handled the court's 
weekly civil involuntary commitment docket, 
which usually consisted of five to 10 cases. 
All proposed patients were represented by an 
attorney ad litem. Most of the involuntary 
commitment applications were uncontested. The 
contested non-jury hearings averaged about one 
per week. 



-13- 



490 



February 2, 1980 - September 9, 1981 
As an assistant district attorney, I 
prosecuted felonies while assigned primarily 
to the 148th District Court of Nueces County, 
although I occasionally tried some cases in 
other Nueces County district courts which have 
general jurisdiction. I was solely 
responsible for the twice-monthly criminal 
jury trial dockets which consisted of 
approximately 10 to 15 cases each, as well as 
all pre-trial hearings, which were held during 
the latter part of each week. All defendants 
were represented by attorneys. Many cases 
pled out without a pre-trial hearing, and most 
of the cases that were originally contested 
were pled out after pre-trial hearings. Pre- 
trial motions included motions to suppress 
identification, confessions, fruits of 
searches with and without a warrant, and 
extraneous offenses, as well as motions to 
quash indictment. 

September 9, 1981 - June 30, 1985 
As a solo practitioner, my frequent court 
appearances were in the district and juvenile 
courts of Nueces County where I was appointed 
to represent indigent defendants . I tried one 
civil and two felony cases to a jury in the 
Nueces County district courts; one non-jury 
civil case in the district court and two non- 
jury juvenile cases in the juvenile court. In 
addition, I represented many adults charged 
with felonies in the district courts euid 
juveniles charged with misdemeanors and 
felonies in the juvenile court. Most of these 
cases were uncontested. 

2. What percentage of these appearances was in: 

(a) Federal courts 0% 

(b) State courts of record 75% 

(c) Other courts 25% 

3. What percentage of your litigation was: 

*' (a) Civil 5% 

(b) Criminal 95% 

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

-14- 



491 



County Court District 

at Law Court 

Sole counsel 44 21 
Chief counsel 

Associate counsel 7 3 

5. What percentage of these trials was: 

County Court District 

at Law Court 

(a) Jury 70% 95% 

(b) Non-jury 30% 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. (a) April, 1980 

State of Texas vs. Alicia Crawford 
79-CR-870-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) The defendant, Alicia Crawford was indicted for 
felony theft by passing a forged check. She elected 
to have the jury determine guilt/innocence and 
punishment. The jury found the defendant guilty and 
assessed punishment at five years confinement in 
the Texas Department of Corrections. The defendant 
was placed on probation for five years. 

(d) As co-counsel for the State I prepared the State's 
16 witnesses including the drive-in bank teller to 
whom the instrvunents were presented for payment, 
fingerprint expert, and an extraneous offense 
witness, bank records, and the confession of the 
defendant. I worked with the D.A.'s office 

-15- 



492 



investigator in locating witnesses, drawing up the 
subpoena duces tecum lists and for the logistics of 
the testimony sequence. This experience taught me 
that form may be exalted over substance when 
predicates for the admissibility of business 
records, forensic evidence and the confession of a 
defendant are not correctly laid. Through this 
experience, I learned how to make a trial with many 
witnesses flow smoothly. 

(e) Hon. Eric Brown (Co-counsel for State) 
1202 3rd Street 
Corpus Christi, Texas 78404 
512-881-9643 

Hon J. Manuel Banales (then Attorney for defendant) 

105th District Court 

901 Leopard 

Corpus Christi, Texas 78401 

512-888-0510 . 



2. (a) April - May, 1980 

The State of Texas vs. Cosme Velasquez 
:» ••. .. 79-CR-846-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) Defendant, 56 years old, was indicted for indecency 
with a child. He waived a jury. The court found 
the defendcint guilty, and assessed punishment at 
five years confinement in the Texas Department of 
Corrections. Defendant was placed on probation for 
five years, with 30 days in jail as a condition of 
probation, psychological counseling, and eibstention 
from consumption of alcohol . 

(d) As sole counsel for the State, I prepared the 
witnesses, and was responsible for the presentation 
of the evidence and argument. This case was 
significant because two of the State's ten 
witnesses were seven years old, including the 
victim, and whose susceptibility to leading 
questions caused their testimony to fluctuate. I 

learned the importance of a court's role in 
determining a child's competence to testify. 



-16- 



493 



(e) Celso Rodriguez (Attorney for defendant) 
2634 Gollihar 

Corpus Christi, Texas 78415 
512-857-2291 

3. (a) July - August, 1980 

The State of Texas vs. Larry Dickerson 
80-CR-290-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) The three-count indictment charged the defendant 
with aggravated rape, burglary of a habitation, and 
was enhanced with allegations of two prior 
convictions. The defendant elected to have the 
jury determine guilt/innocence and assess 
punishment. The jury found the defendant guilty, 
and assessed punishment at 99 years confinement in 
the Texas Department of Corrections. 

(d) As co-counsel (second chair) for the State, I was 
responsible for the preparation of the state's 18 
witnesses for the guilt/innocence phase, as well as 
reputation and expert fingerprint testimony for the 
punishment phase. The evidence included medical 
records of the victim, forensic evidence such as 
shoe tracks found at the scene and the matching 
shoe soles of the defendant. I was solely 
responsible for arranging all of the logistics of 
the state's case. Because of the large number of 
witnesses that the State called, I learned that a 
judge must simultemeously be concerned about 
unnecessary delays that try a jury's patience, as 
well as providing a fair trial to both the State 
and the Defendant. 

(e) William B. Mobley, Jr., Deceased 
(Lead counsel for State) 

Cage Wavell (Attorney for defendant) 
800 M. Shoreline, Suite 320 South Tower 
Corpus Christi, Texas 78401 
512-880-5757 

Jim Lawrence (Attorney for defendant) 

1743 Third Street 

Corpus Christi, Texas 78404 

512-884-5549 



-17- 



494 



4. (a) September - October, 1980 

The State of Texas vs. Frank Rodriguez 
80-CR-405 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) Defendant was indicted for the stabbing murder of 
his cousin. The defendant elected to have the jury 
determine guilt/innocence and punishment. The jury 
was instructed on murder; and the lesser included 
offenses of voluntary manslaughter if the jury 

;^' found the defendant acted under the influence of 

■7 "sudden passion" arising from an "adequate cause;" 

aggravated assault if the jury had a reasonable 

'-'--•' doubt that the defendant intended to kill the 

'" '~ deceased or cause serious bodily injury to him; and 

self-defense, including justification of the use of 

deadly force because of apparent danger. The jury 

found the defendant guilty of the lesser included 

offense of aggravated assault and sentenced him to 

ten years confinement in the Texas Department of 

- Corrections. Defendant was placed on probation for 

five years, and assessed a fine of $2,000. 

(d) As sole counsel for the State of Texas, I prepared 
and managed every facet of this trial, from jury 
voir dire to punishment. I was forced to resolve a 

;^ complication in the State's case which arose. Some 

' --^^ of the twelve witnesses for the State testified 

• favorably for the defendant. Nevertheless, the 

jury found the defendant guilty based on the 

testimony of the State's witnesses, and did not 

';_ .^ acquit on self-defense. 

This case provided excellent experience in the 
drafting of a court's charge, which was important 
both as an advocate in later cases, but most 
importantly as a trial judge who is responsible for 
providing the jury with proper instructions on the 
applicable law. 

(e) Frank Garza (Attorney for defendant) 
4525 Gollihar 

Corpus Christi, Texas 78411 
512-857-0233 



-18- 



495 



5. (a) December, 1980 

The State of Texas vs. Charles Whitsell 
80-CR-639-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) Defendant was indicted for aggravated robbery. The 
defendant elected to have the jury determine 
guilt/innocence and punishment. The jury found the 
defendant guilty, and assessed punishment at seven 
years confinement in the Texas Department of 
Corrections and a fine of $5,000, placed on 
probation for seven years. 

(d) As sole counsel for the State, I prepared the seven 
witnesses for trial, and was responsible for the 
entire trial, from jury voir dire to punishment, 
including the supplementary charge on range of 
punishment. This trial was an invaluable lesson in 
proving the validity of an identification of the 
defendant by an eyewitness to the crime. This 
lesson was helpful to me not only as a lawyer, but 
as a judge as well, who must rule on such issues in 
pre-trial motions to suppress identification. 

(e) James Lawrence (Attorney for defendant) 
1743 Third Street 

Corpus Christi, Texas 78404 
512-884-5549 



6. (a) January, 1981 

The State of Texas vs. Bobby Potts 
80-CR-781-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) Defendant was indicted for aggravated robbery. 
Defendant elected to have jury determine 
guilt/innocence and punishment. The jury was 
instructed on aggravated robbery and the lesser 
included offense of robbery. The defendant was 
found guilty of aggravated robbery, and punishment 
assessed at ten years confinement in the Texas 
Department of Corrections. Defendant was placed on 
probation for ten years. 

(d) As sole counsel, I handled the numerous pre-trial 
motions, includin'g a motion to suppress 
identification by the victim, which was denied, and 

-19- 



496 



the trial on the merits from voir dire to judgment. 
There was a separately indicted co-defendant 
involved in the commission of the robbery emd a 
conflict arose between them since Bobby Potts could 
not compel the co-defendant's testimony. This 
experience made me aware of the complications that 
arise when co-defendants are tried separately. The 
balancing of the Fifth Amendment right not to 
testify when there are multiple defendants is 
especially delicate in a district court where more 
and more felony prosecutions are gang-related. 

(e) Pat McGuire (Attorney for defendant) 
713 Coleman 

Corpus Christi, Texas 78401 
512-888-6840 



7. (a) April, 1981 

State of Texas vs. Ruben Aguilar 
80-CR-326-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) The defendant was charged with threatening imminent 
bodily injury while committing theft. He elected 
to have the jury determine guilt/innocence and 
punishment. The jury found the defendant not 
guilty. 

(d) As sole counsel for the State, I learned how 
colleagues on the same side of a case can work at 
cross purposes if the litigation is not 
coordinated. There were nine witnesses for the 
State, including the victim/eyewitness, but no 
forensic evidence. At the separate trial of co- 
defendant Rene Naranjo, Aguilar had been 
subpoenaed by a different prosecutor emd had 
testified without benefit of counsel. The court 
suppressed Aguilar's testimony. Without Aguilar's 
self -incriminating testimony, the jury was not 

:i convinced beyond a reasonable doubt by the victim's 

identity of Aguilar as one of the principals in the 
: robbery. This experience also taught me that a 

witness who is under indictment should be warned 
•v' • about his right not to testify, and to consider 

appointing an attorney to advise him before taking 

the stand. 



-20- 



497 



(e) Albert Pena (Attorney for defendant) 
615 Leopard, Suite 615 
Corpus Christi, Texas 78476 
512-884-3774 



8. (a) May, 1981 

State of Texas vs . Ernest Rodriguez 
80-CR-1027-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) The defendant was indicted for attempted capital 
murder and was accused of having shot at a police 
officer. A jury determined guilt/innocence and 
punishment. The defendant had an alibi defense. 
Jury found the defendant guilty, and assessed 
punishment at 10 years confinement in the Texas 
Department of Corrections. The defendant was 
placed on probation for 8 years. 

(d) As sole counsel for the State I was responsible for 
the preparation of the witnesses, and handled the 
trial on the merits from jury voir dire to the 
verdict on punishment by the jury. This case was 
significant because of the numerous witnesses (17) 
which had to be prepared for trial. The State's 
case in chief included many photographs and some 
confiscated items. I learned how necessary it is 
to ensure that all offers of evidence are ruled 
upon, and that a judge must make sure that the 
integrity of all admitted exhibits is maintained. 

(e) Amador Garcia (Attorney for defendant) 
1521 S. Port 

Corpus Christi, Texas 78405 
512-882-3396 



(a) February, 1981 

State of Texas vs. Ruben Firo 
80-CR-1038-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) Defendant was indicted for aggravated assault. He 
elected to have the jury determine guilt/innocence 
and punishment. After opening statement by the 
State, the defendant withdrew his plea of not 
guilty and entered a plea of guilty before the 

-21- 



498 



court pursuant to a plea agreement. He was 
sentenced to two years confinement in the Texas 
Department of Corrections, to run concurrent with 
cause no. 80-CR-1039. 



(d) As sole counsel for the State, I prepared the four 
eyewitnesses, police officers and medical evidence, 
voir dired the jury on guilt/innocence and 
punishment, handled the preparation of the 
defendant's judicial confession and stipulation and 
attached exhibits. The State's witnesses were very 
clear on identification, and their statements about 
the circumstances of the offense were consistent 
with each other- However, because I felt that the 
jury would not be sympathetic to the State's 
witnesses, I cut my losses and offered a 
recommendation on punishment in exchange for the 
defendant's plea of guilty. Now in my position as 
judge, I appreciate the discretion of the court to 
reject a plea agreement and simultaneously 
understand from experience that the agreement has 
been reached after both sides have weighed the 
strengths and wealcnesses of their respective cases. 

(e) Phlete Martin (Attorney for defendant) 
223 S. Tancahua St. 
Corpus Christi, Texas 78401 
512-883-1314 : - . 



10. (a) July, 1981 

State of Texas vs. Dennis Wallace 
81-CR-385-E 

(b) Judge Noah Kennedy (retired) 
148th District Court 

(c) The defendant was indicted for possession of 
pethidine. He elected to have the jury determine 
guilt/innocence and punishment. The jury found the 
defendant not guilty. 

(d) The police were given consent to search an apartment 
by a co-defendant. The defendant was found in his 
car at the apartment complex with the pethidine, 
and he gave a statement admitting his guilt. The 
defendant's pre-trial motion to suppress the 
confession was denied by the court. However, the 
jury was instructed that the co-defendant's consent 
to search the apartment did not apply to the 
automobile, that the voluntariness of the 

-22- 



499 



defendant's consent to search the automobile must 
be proven beyond a reasonable doubt, and that the 
defendant's statement must be disregarded unless 
the consent to search the automobile was voluntary. 
This acquittal taught me how important it is for 
jury instructions to be complete, because the law 
can make a difference in their verdict, in spite of 
the incriminating evidence. 

(e) Nate Rhodes (Attorney for defendant) 
713 Coleman 

Corpus Christi, Texas 78401 
512-888-6840 



Lawyers who know the quality of my work as a judge, and my 
judicial temperament: 

1. Douglas Tinker 
622 S. Tancahua 

Corpus Christi, Texas 78401 
512-882-4378 

2. Carlos Valdez 

Nueces County District Attorney 

901 Leopard 

Corpus Christi, Texas 78401 

512-888-0410 

3 . Steve Schiwetz 

Meredith, Donnell and Abernethy 
1500 One Shoreline Plaza-North Tower 
Corpus Christi, Texas 78401 
512-888-5551 

4. Martin C. Davis 
Davis and Hutchinson 
1270 Frost Bank Plaza 
802 N. Carancahua 

Corpus Christi, Texas 78470 
512-882-2272 

5. Lance Bruun 

802 American Bank Plaza 
Corpus Christi, Texas 78401 
512-888-8413 

6. Tom Wheat 
Kleberg and Head 

500 N. Water, Suite 1200 
Corpus Christi, Texas 
512-882-2821 

-23- 



500 



7. Monte English 

Hunt, Hermansen, McKibben and English 

1100 First City Tower II 

555 N. Carancahua 

Corpus Christi, Texas 78478 

512-882-6611 . - 

8. Douglas E. Chaves 

Chaves, Gonzales and Hoblit 

2000 Frost Bank Plaza 

802 N. Carancahua 

Corpus Christi, Texas 78470 

512-888-9392 . " „ 

9. M.W. Meredith, Jr. 

Meredith, Donnell and Abernethy 
1500 One Shoreline Plaza, North Tower 
Corpus Christi, Texas 78403 
512-888-5551 

10. Jorge Rangel 
Rangel and Chriss 

719 South Shoreline Blvd. , Suite 500 
Corpus Christi, Texas 78401 
512-883-8555 • - , , , 

11. Sandra Lee Watts ^ 
921 N. Chaparral, Suite 100 T 
Corpus Christi, Texas 78403 
512-884-5050 

12. Colleen McHugh , ' 
Matthews and Branscomb ^~ - 
802 N. Carancahua, Suite 1900 '.^^ 
Corpus Christi, Texas 78470 
512-888-9261 



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

As the result of my work on the State Bar of Texas Judicial 
Section Resolutions Committee, Judge George Thurmond, 
President of the Judicial Section, appointed me to the Bylaws 
Revision Committee in 1988. The draft of the proposed by-laws 
revision which I prepared was adopted almost in its entirety 
at the 1989 Judicial Section annual meeting. 

-24- 



501 



I was appointed to the Judicial Education Executive Committee 
by the Supreme Court of Texas in 1989. it was the 
responsibility of the Committee to oversee compliance with 
continuing legal education requirements for all judges in the 
State of Texas, ranging from part-time municipal judges, 
retired visiting judges, as well as full-time sitting trial 
and appellate judges. Committee recommendations to the 
Supreme Court for non-compliance included intermediate 
sanctions as well as referral to the State Commission on 
Judicial Conduct. 

I was appointed to the State Commission on Judicial Conduct by 
the Supreme Court of Texas in 1989, and was confirmed by the 
Texas Senate. The Commission has the constitutional 
responsibility of investigating allegations of unethical 
conduct on the part of any city, county, or state trial or 
appellate judge in the State of Texas, and for imposing 
sanctions such as private or public reprimands and 
recommendation to the Supreme Court of removal from office. 
Effective January 1, 1995 when I became a district judge, I 
also became ineligible as the county court at law member of 
the Commission as is required by the Texas Constitution, and 
therefore I had to resign. 



-25- 



502 

II. FIHANCIAL DATA AND CONFUCT 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. 

Bank of America (two IRAs) 

Mainstay Funds (deferred compensation plan) 

Public Employees Benefit Services Corporation/PEBSCO 

(deferred compensation plan) 
Nationwide Life Insurance Company (deferred compensation plan) 
Mutual of New York (deferred compensation plan) 
Rental income (1031 Campbell) - $450.00 per month 
Rental income (229 Country Club Drive) - $400.00 per month 

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 would follow the Code of Conduct for United States Judges in 
avoiding impropriety and the appearance of impropriety. I 
would keep informed about my personal and financial interests 
in order to identify cases in which it would be necessary to 
recuse myself and in which there might be even an appearance 
of impropriety. 

In order to identify any financial relationship which might, 
in my opinion, present actual or potential conflicts of 
interest, I would compile a list of all institutions in which 
I have a financial interest, such as financial institutions in 
which I have checking and savings accounts, and which 
administer my state and county deferred compensation funds. 
Similarly, I would compile a list of relatives as defined in 
the Ethics Reform Act of 1989, Title 5 U.S.C.A. Appendix 6, 
Section 109 (16), and social relationships which might present 
potential conflicts of interest. These names could then be 
cross-checked monthly with the names of parties in newly filed 
cases and additional parties brought into already pending 
cases. I would then disclose any conflict, actual or 
potential, and recuse myself accordingly. 

-26- 



503 



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

I have no plans, commitments, or agreements to pursue outside 
employment, with or without compensation. I would be 
interested in teaching if the assignment met with the approval 
of Judicial Conference of the United States, as required by 5 
U.S.C. Appendix 7, Section 502. 

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.) 

The sources and amounts of all income received are reflected 
in the attached Form AO-10 (Pages 27 A-E). 

5. Please complete the attached financial net worth statement in 
detail. (Add schedules as called for.) 

ATTACHED (Pages 27 F-G) . 

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 Ccunpaign, your 
title and responsibilities. 

Other than my own ccinpaigns in 1986, 1990 and 1994, I have 
played a role in the following political campaigns: 

Candidate: Richard M. Borchard 

for Nueces County Commissioner Precinct 3 
(Democratic Primary) 
Date: Spring, 1982 
Title: Steering Committee Chair 
Duties: Preside at meetings of steering committee. 

Advise and assist the candidate with strategy 
and press releases. 



-27- 



50-531 98-17 



504 



General Election, 1992: 

Corpus Christ! Mexican American Democrats voter registration 

Summer, 1992* 

General Election, 1994 

Early get-out-the-vote phone bank volunteer 

Fall, 1994* 

*In discharging these activities, I have never used my full 
name or identified myself as a judge. 



-28- 



505 



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 1981 to 1985, I served the disadvantaged by accepting 
court appointments as I was building up my practice. Although 
I was paid by Nueces County, the fees did not fully compensate 
me for the time and effort I expended on the cases. 
Obviously, when I took appointments from the district courts, 
I knew that it was not possible to get paid the same as an 
attorney who was hired. However, as the result of 
representing indigent clients by court appointment, I have 
come to appreciate the public service performed by attorneys 
who do so. They are very professional, and do an excellent 
job for their clients. 

Since 1981, I have been involved in several civic activities 
which have served the disadvantaged. These included 
registering voters through the Southwest Voter Registration 
Progreun, which worked to educate residents of low-income areas 
of Corpus Christi about the power of the vote. 

During 1988-1989, I chaired the Lawyers for Literacy, a 
special committee of the Corpus Christi Bar Association which 
was formed at my suggestion. The committee recruited 
volunteers from the legal community to serve as tutors through 
the Corpus Christi Literacy Council. It also served to inform 
the lawyers about the creative ways in which they could help 
in alleviating the high rate of illiteracy. As examples, 
these could include providing office space for tutoring, and 
recommending the Corpus Christi Literacy Council as a 
beneficiary to a client who was planning his or her estate. 
The successful efforts of the committee served the 
disadvantaged in that a large percentage of illiterate adults 
in Nueces County were of lower income. 

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 

-29- 



506 



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? 

NONE. 



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

Senator Phil Gramm has a judicial selection committee in 
Texas . 

In February, 1995, I wrote to Congressman Henry B. Gonzalez, 
Dean of the Texas Congressional delegation, expressing my 
interest in the position of U.S. district judge for the 
Brownsville Division of the Southern District of Texas. 
Between March 8 and March 10, 1995, I briefly visited with 
Congressmen E. "Kika" de la Garza, Solomon P. Ortiz, Greg 
Laughlin, Gene Green, and Ken Bentsen (members of the Southern 
District of Texas Judicial Selection Committee), in Washington 
D.C. I introduced myself to Ms. Mary Hurst of Senator Phil 
Grzunm's staff and to a member of Senator Kay Bailey 
Hutchinson's staff. 

On March 10, 1995, at the request of Congressman De la Garza, 
chair, I submitted a Preliminary Questionnaire for Applicants 
for Federal Judicial Nominations in the State of Texas to the 
committee, which also included Congresswoman Sheila Jackson- 
Lee. At the request of Congressman De la Garza, I submitted 
a Personal Data Questionnaire for Applicants for Federal 
Judicial Nominations in the State of Texas on March 28, 1995. 
It is my understanding that as a result of its deliberations, 
the committee recommended my name to Congressmem Gonzalez. On 
April 1 , 1995, I was notified by Congressman Gonzalez that he 
was recommending my ncune to President Bill Clinton. 

Thereafter, I submitted two questionnaires for use by the 
Department of Justice, an American Bar Association Personal 
Data Questionnaire, a Senate Judiciary Committee 
Questionnaire, a Standard Form 86, SF 86 Supplementary Forms, 
tax-check waivers, and fingerprint cards, to the Associate 
Counsel to the President. 

Shortly after submitting the above information to the White 
House, I was interviewed via telephone by a representative of 
the Department of Justice. On May 26, 1995, I was personally 

-30- 



507 



interviewed by several other members of the Department of 
Justice in Washington, D.C. 

I was interviewed by Al Leal and Larry Myers, of the Federal 
Bureau of Investigation, on two separate occasions, once in 
June and another on July 19, 1995. 

On June 23, 1995, I submitted the American Bar Association 
Personal Data Questionnaire to Mr. William E. Willis and Mr. 
Pike Powers, chair and Fifth Circuit member of the American 
Bar Association Standing Committee on the Federal Judiciary, 
respectively. 

On June 28, 1995, at their request, I submitted a Personal 
Data Questionnaire to Senators Gramm and Hutchinson. 

On August 10, 1995, I was interviewed by Mr. Powers in Austin, 
Texas . 



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 judiciairy 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- 



508 



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

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

A judge should have a commitment to the balance of power 
created by the three branches of government. Furthermore, a 
judge should have a commitment to the independence of the 
judiciary. 

A judge should limit the use of her power to the issues before 
the court. The individuals involved in, or affected by, a 
dispute are in a better position to resolve the dispute, and 
should be encouraged to do so by proven methods, such as 
alternative dispute resolution. It is only when these methods 
have failed that it should be necessary for a court to resolve 
the parties' grievances and to use its coign of vantage as a 
neutral body to impartially apply the rule of law. 

In applying the rule of law, it is important for a judge to 
follow precedent. At the seune time that a judge should rule 
without fear of public criticism, a judge should always be 
mindful of the far-reaching consequences of rulings, not only 
on the litigeints, but on the public. 

Society has a duty to educate itself eOxjut rights and the 
responsibilities that come with those rights. It is not 
appropriate to use judicial power for the benefit of anyone 
who does not avail themselves of rights, if any, afforded by 
the law. To do so by loosening jurisdictional requirements 
such as standing and ripeness is to cross the line that 
separates judges from advocates. 

Criticisms of "judicial activism" are justified when the power 
of a federal judge is used to cure societal ills. It is the 
responsibility of communities to address societal problems 
through their elected representatives and philemthropy. It is 
incumbent on elected and civic leaders to educate their 
constituents on the needs of their communities. Once 
educated, commimities can understand why they, through their 
elected representatives, and not the federal courts, should 
deal with the problems of prisons, schools, and elections. 



-32- 



509 



FINANCIAL DISCLOSURE REPORT 

NOMINATION 



KKS 



•t,X' 



TAGLE, HILDA G. 


U.S DISTRICT COURT, TEXAS 


08/14/95 


U.S. DISTRICT JXTOGE - NOMINEE 


5. Reporc Typo (check appropriaCe typ«) 
X lto.in.tion, D.t. 08/10/JS 


6 Reporting Period 
01/01/5* - 07/31/JS 


901 LEOPARD, SUITE 903 
CORPUS CHRISTI, TEXAS 78412 


8 On the beaie of the information contained in thie Raport and 
any iK>di f i cat iona perTainina thereto, it ia, in i^* opinion, 
in compliance with applicable lawa and regulationa. 


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. 



I. POSITIONS. (Reporting mdividual only, see pp. 9-13 of Instructions.) 



D 



POSITION 

NONE <No reportable 



NAME OF ORGANIZATION/ENTITY 



TRUSTEE 



SANTIAGO TAGLE 


SAVINGS ACCOUNT 


MICHELLE TAGLE 


SAVINGS ACCOUNT 


DEL MAR COLLEGE 


FOUNDATION 



II. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.) 

DATE PARTIES AND TERMS 

NONE (No reportable a9reomence> 

NUECES COUNTY DEFERRED COMPENSATION AGREEMENT (NO CONTROL) 

TEXAS COUNTY AND DISTRICT RETIREMENT ACCOUNT (NO CONTROL) 

STATE OF TEXAS DEFERRED COMPENSATION AGREEMENT (NO CONTROL) 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 



n 



SOURCE AND TYPE 



GROSS INCOME 



RENT 


RENT 


NUECES COUNTY, 


TEXAS ; 


WAGES AS A COUNTY JUDGE 


NUECES COUNTY. 


TEXAS ,■ 


WAGES AS A COUNTY JUDGE 



$ 


5400 


00 


S 


4717 


00 


$ 


4950 


00 


S 


92007 


00 


$ 


92649 


00 



510 



HaBfl of Parson Raporting Data of Report 

FDJANCIAL DISCLOSURE REPORT |^^g^^ \^^^^ ^ | 08/14/95 

[V. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment 

(locludes 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 



n 



NONE 



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 



n 



n 



LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible 
for liability by using the parenthetical "(S)" for separate habihty of the spouse, "(J)" for joint liabihty 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 „pon:i,bl<i Uabilici..) 



BANC PLUS MORTGAGE CORPORATION MTGE ON RENT PROP. IN CORPUS CHRIST 



511 



FINANCIAL DISCLOSDRE REPORT 



TAGLE, HILDA G. 



08/14/95 



VI!. Page 1 INVESTMENTS and TRUSTS -- income, value, transactions (Includes those of spouse 
and dependent children. Sec pp. 37-54 of Instructions.) 



Indicate wh«r« applicable, owner of 
the aeeec by ualng the parenchecical 
"(J)" tor joint ownership o£ report- 
ing individual and apouaa, '(S)* foe 
eeparata ownership toy opouee, ■ (DC) ■ 
{or ownership by dependent child. 

Place -(X)- after each aesat 
exempt frott prior dieclosure. 


lncoa« 
p«riod 


Gross value 


Transactions during reporting period 


(11 
Cod« 


(31 

divT. 
"St.?' 


(1) 

coda 
(J-Pl 


nel^hod3 
Code 
(Q-W) 


(1) 

-IT, 


If not exempt fro* diocloauro | 


(2) 


Code 
(J-P) 


Code 


fs) 

buver/s)^ller 


NONE^ (Ito report^able 




















TEXAS (APPRAISAL 6-30-95) 


D 


..„c 


K 


Q 


^^^ 










. .^SJP,,£^>JJ^BKr 


= 


!„.„ 


K 


T 


^^^ 










^S!!i^"S?™T"op'"2?S3'iT 


B 


I„t,„ 


K 


T 


BX»^ 






























. «KW VO.K MP=, -«-,s™ 




















TOT^ »k™« n,«. 


» 


lnc„. 


^ 


T 


BXPHPT 












A 


.„.„. 


^ 


T 


HXBHPT 












A 


I„t.„ 


^ 


T 


BXB-PT 










=OV,«„=»T PUNO 


A 


!„„„ 


^ 


T 


SXKM^ 










■° J-- - -"OH.... P>X=. 


n 


I„C.„ 


.. 


T 


,n,»PT 










" 'Sff,S^-'l!Ss?i.^^" 


D 


I„t.r. 


^ 


T 


BXCHPT 










" "iSTJa^v-s^-.^eTgi.^-pu. 






















A 


■ „.„. 


^ 


T 


,n,«.PT 










» cr"°ffi?£5.-^\VH'^'?SS?=c^ . 


A 


,„.... 


^ 


T 


B^B-Pr 






























,. 




















n 




















>B 




















^ iS^f-S.'^i S:|h°SS.°L'|IS.oo. f:|io°SJ.'?o'lil2°.oo S:|!ol°So5M%;°Soo.ooo g:5i-°i.is |i^cSS%.. 


^ Tli:-cSf*Si . n„ !!:|Hi?SSA'o1i;o.oco S:nio?S5.'Li;:SSS.oo. fe:Si;;°?iJ%!?SSo°SSc """""^ " ""•°°° 


' Tsi;^cST^i°°*'"' 8:Ssrj!ii. ?:§?"«"" """ °"'*" sisS^rs^ss T.c..h/i..r*.t 



PAfiF. 27 C 



512 



FIHAHCIAL DZSCLOSTTRE REPORT 



Hum* of P«r*oti Rvporting 

TAGLE, HILDA G. 



Oac* of R«port 

08/14/95 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Report) 

II. AGREEMENTS (Cont'd.) 

DATE PARTIES AND TERMS 

DIVERSIFIED INVESTMENT ADVISORS ANNUITY (NO CONTROL) 



III. MOM- mVESTKENT INCOME (Cont'd.) 

DATE SOURCE AND TYPE GROSS INCOME 

1995 STATE OF TEXAS: WAGES AS A STATE JUDGE S 49710.00 

1995 NUECES COUNTY. TEXAS; SUPPLEMENT TO WAGES ST JUDGE S 4356.00 



513 



Nkb« of Poraon Raporting D«te of Report 

FDIAHCIAL DISCLOSURE REPORT tAGLE, HILDA G. 08/14/95 

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 ray 
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. A. app. 7, 501 et . seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. i 

Signature ^\^ .Uj^^^^^^ Date ^f ( ^ [ ^ <.^ 

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. A. APP. 6, 
104, AND 18 U.S.C. 1001.) 



FILING INSTRUCTIONS: 
Mail signed original and 3 additional copies to: 



Committee on Financial Disclosure 
Administrative Office of the 
United States Courts 
Washington, D.C. 20544 



514 



HILDA G TAGLE 

FINANCIAL STATEMENT 

NET WORTH 

As of June 30, 1995 



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 
Cash on hand and in banks 4,164 

U. S. Government secunlies - add 
schedule 

Listed secunties - add schedule (I) 44 • 

Unlisted secunties - add schedule 

Accounts and notes receivable: 

Due from relatives and friends 

Due from others 

Doubtful 

Real estate owned - add schedule (H) 1 3 1 ,78 1 

Real estate mortgages receivable 

Autos and other personal property 68,000 

Cash value - life uisurance - personal 7,360 

life insurance - nephew 4 1 

Other assets - itemize: 

Diversified Investment Advisors - Armuity 27,586 

IRA Accounts- Bank of America 18,119 

Nueces County Deferred Comp 

PEBSCO 84,669 

MainStay Funds 7,546 

Nationwide Life Ins Deferred Corap 3,045 

Texas County and District Retirement Account 67, 1 69 

Carlyle - Real Estate Lunited Partnership 

Total Assets 419,884 

CONTINGENT LL«LBILmES 
As endorser, comaker or gaurantor 

On leases or contracts 

Legal Clauns 

Provision for Federal Income Tax 

Other special debt 



LL\BILrnES 
Notes Payable to banks - secured 

Notes Payable to banks - unsecured 



Notes Payable to relatives 

Notes Payable to Others 

Accounts and bills due 

Unpaid mcome tax 

Other unpaid tax and mterest 

Real estate mortgages payable - add 
schedule (III) 

Chattel mortgages and other lines pay- 
able 
Other debts - itemize: 

New York Life 

Mutual of New York 



14,571 



Total liabilities 
Net Worth 



102,408 
317,476 



2,246 
2,356 



Total liabilities and net worth 4 1 9,884 

GENERAL INFORMATION 
Are any assets pledged? add schedule 

Are you defendant m any suits or legal 

actions' No 

Have you ever taken bankruptcy? No. 



515 



Hilda G. Tagle 
As of June 30, 1995 



Schedule I 



Listed Securities: 

Circle K Corporation, 3 shares owned $ 44 

Schedule II 

Real Estate Owned: 

Woodson Lot 4, Block 2 

Nueces County, Corpus Christi, Texas $ 44,819 

Edgewater Terrace Lot 6, Block 7 

Nueces County, Corpus Christi, Texas 85,080 

Amos Moore Replat, Lot 12, Block 4 

Nueces County, Robstown, Texas 1,882 

Total $ 131,781 

Schedule III 

Real Estate Mortgages Payable; 

Banc Plus - Rental Property 

Woodson Lot 4, Block 2, Nueces County 

Corpus Christi, Texas $ 14,771 

GMAC - Edgewater Terrace Lot 6, Block 7 

Nueces County, Corpus Christi, Texas 10,554 

Karen & Charles Teas - Edgewater Terrace 
Lot 6, Block 7, Nueces County 
Corpus Christi, Texas 56,807 

Total $ 82,132 



516 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 



1 . Full name (include any former names used.) 
Sam Allen Lindsay 



2. Address: Listcurrentplaceof residence and office address(es). 
Office 

ISOOMariUaSt. 
Suite 7C North 
Dallas, Texas 75201 



3. Date and place of birth. 

October 16, 1951 
San Antonio, Texas 



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

Married 

Kathleen Shelton Lindsay 

Part-time computer teacher 

First Baptist Academy 

P.O. Box 868 

Dallas, Texas 75221 



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

San Antonio Junior College, San Antonio, Texas; 
9/70 -12/71; 6/72 -7/72. 



517 



University of Puerto Rico, Rio Piedras, Puerto Rico 
1/72 - 5/72, Exchange Student. 

St. Mary's University, San Antonio, Texas, 1972 - 1974, 
B. A. History and Government, Magna Cum Laude, May, 1974. 

University of Texas School of Law, 1974 - 1977, 
Juris Doctor, May, 1977. 



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

a. American National Insurance Co., San Antonio, Texas (May - August, 
1974); insurance agent. 

b. Sigmor Shamrock Corporation, San Antonio, Texas; summer and sea- 
sonal employee in 1975 and 1976, employee and night manager at ser- 
vice station. 

c. Texas Aeronautics Commission, Austin, Texas; law clerk in 1975, 1976 
and 1977; staff attorney from 1 1/77 to 3/79. 

d. City of Dallas, Dallas, Texas, May 1 979 - Present (assistant city attorney 
from May, 1979 - January, 1990; executive assistant city attorney from 
January, 1990 - February, 1991; first assistant city attorney from February 
to December, 1991; acting city attorney from December, 1991 - May, 1992; 
city attorney from May, 1992 - present). 



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. 



518 



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

I graduated magna cum laude from St. Mary's University, San Antonio, Texas in 
1974. I was awarded the C. B. Bunkley award for exceptional service to the 
community by the J. L. Turner Legal Association in 1996. I was also awarded 
the Trailblazer Award by the South Dallas Business and Professional Women's 
Club, Inc. in April 1993 for being the first African-American City Attorney. 



9. Bar Associations : List all bar associations, legal or judicial-related committees 
or conferences of wiiich 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 Texas 

Dallas Bar Association 

J. L. Turner Legal Association 

Fifth Circuit Bar Association 

Judicial Nominating Commission of the City of Dallas 

Dallas hin of Court (Master since 1 993) 

Southwestern Legal Foundation (Trustee since 1994) 

Federal Judiciary Advisory Committee for the Northern District of Texas (1994) 

I have held the position of a master in the Dallas Inn of Court since 1993, and I 
have been a trustee of the Southwestern Legal Foundation since 1994. I do not 
hold a title or position in any of the other listed organizations. 

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

None. Jack and Jill of America, Inc. - Dallas Chapter. 



519 



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 of 
administrative bodies which require special admission to practice. 

United States Supreme Court, 1994 

United States Court of Appeals for the Fifth Circuit, 1982 

United States District Court for the Northern District of Texas, 1980 

Texas Supreme Court, State of Texas (all Texas courts), 1977 



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

Lecturer, "Suing and Defending Governmental Entities," State Bar of 

Texas Seminar, 1990, 1992 and 1993 
Lecturer, "Texas Open Meetings Act" - The Challenges Facing Local 

Governments, Federal Bar Association Seminar, Dallas, Texas, 

1993 
Lecturer, "Juvenile Curfew Ordinances" - The Challenges Facing Local 

Governments, Federal Bar Association Seminar, Dallas, Texas, 

1994 
Lecturer, "Children and Handguns: Implementing Curfew Ordinances to 

Reduce Juvenile Crime and Victimization," - Sixteenth Annual 

Black Family Conference - Sustaining and Enhancing Minority 

Communities: A Challenge to Eliminate Handguns, Hampton 

University, 1994 
Lecturer, "Juvenile Curfews and the Constitution: The Latest Round in a 

Continuing Debate," NIMLO Mid- Year Seminar, Washington, 
D. C, 1994 
Lecturer, "Preparing, Trying and Settling Auto Collision Cases," 

Governmental Liability, State Bar of Texas, Dallas, Texas, 
1995 

Copies of such speeches or articles are attached. 



520 



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

Excellent. 
January, 1997. 

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

None. 



15. Citations : If your 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 opin- 
ions listed were not officially reported, please provide copies of the 
opinions. 

Not apphcable. 



16. Pubhc 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 pubhc office. 

City Attorney of Dallas, Texas, May 6, 1992 to present. 
This is an appointed position for a two-year term. 1 was initially appointed4)n 
May 6, 1992, and I was reappointed in October, 1994 and in October, 1996. 
The City Council of the City of Dallas makes the appointment. I have not 
sought an elective office. 



521 



17. Legal Career : 

a. Describe chronologically your law practice and experience after grad- 
uation 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. wiiether you practiced alone, and if so, the addresses and 
dates; 

I have never practiced alone. 

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

I have worked at two entities since my graduation from law 
school, the Texas Aeronautics Commission and the Dallas 
City Attorney's Office. I have outlined below my tenure with 
each and the nature of my legal duties and areas of practice: 

Staff Attorney, Texas Aeronautics Commission (currently 
the Aviation Division of the Texas Department of Transpor- 
tation) 

1 50 East Riverside 
Austin, Texas 78704 
November 1977 - March 1979 

Conducted hearings regarding intrastate air carriers regulated 
by Commission. Prepared Commission rules governing 
hearings and grant procedures for cities and counties seeking 
state aid for airport construction and expansion. Provided 
legal counsel to Commission and staff. 



522 



Dallas City Attorney's Office 

1500 Manila Street 
7C North 

Dallas, Texas 75201 
May 1979 -Present 

Prosecution Division 

May 1979 -June 1980 

Prosecuted Class "C" misdemeanors involving violations of 

state penal code, traffic code, and various city ordinances and 

worked with senior attorneys on secondary assignments in 

Utigation division. 

Federal Litigation Section 
June 1980 - September 1986 

Handled cases involving civil rights, employment discrimina- 
tion, employee rights, zoning, constitutional and personal 
injury law. 

Head of Federal Litigation Section 
September 1986 - January 1990 

Handled cases involving civil rights, employment discrimina- 
tion, employee rights, zoning, constitutional and personal 
injury law. Supervised four attorneys. 

Executive Assistant City Attorney 
Chief of Litigation Division 
January 1990 - February 1991 

Supervised 24 litigation attorneys in cases involving civil 
rights, employment discrimination, employee rights, consti- 
tutional, zoning, personal injury, eminent domain, and wor- 
kers' compensation law, and briefed city council on litigation 
matters. 

First Assistant City Attorney 

February 1991 - December 1991 

Responsible for direct oversight of all litigation. Personally 

handled selected major cases. Responsible for personnel and 

administrative matters. Attended all city council meetings 



523 



and executive sessions. Advised city council, city employees 
and board members on legal matters. 

Acting City Attorney 
December 1991 - May 1992 
See duties for City Attorney. 

City Attorney 
May 1992 -Present 

Responsible for active and administrative supervision of 1 1 
employees, including 73 attorneys, 30 support staff members, 
and seven paralegals. Responsible for representation of City 
in all litigation and legal matters. Serve as legal adviser to 
City Council, City Manager, department heads and board and 
conmiission members. Provide legal representation to em- 
ployees and officers in litigation matters. Attend all meetings 
and executive sessions of the Dallas City Council. 

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 have worked at two entities since my graduation from law 
school, the Texas Aeronautics Commission and the Dallas 
City Attorney's Office. I have oudined below my tenure with 
each and the nature of my legal duties and areas of practice: 

Staff Attorney, Texas Aeronautics Commission (currently 
the Aviation Division of the Texas Department of Transpor- 
tation) 

1 50 East Riverside 
Austin, Texas 78704 
November 1977 - March 1979 

Conducted hearings regarding intrastate air carriers regulated by 
Commission. Prepared Commission rules governing hearings and 
grant procedures for cities and counties seeking state aid for air- 
port construction and expansion. Provided legal counsel to Com- 
mission and staff*. 



524 



Dallas City Attorney's Office 

1500 Manila Street 
7C North 

Dallas, Texas 75201 
May 1979 -Present 

Prosecution Division 

May 1979 -June 1980 

Prosecuted Class "C" misdemeanors involving violations of 

state penal code, traffic code, and various city ordinances and 

worked with senior attorneys on secondary assignments in 

litigation division. 

Federal Litigation Section 

June 1980 - September 1986 

Handled cases involving civil rights, employment discrimination, 

employee rights, zoning, constitutional and personal injury law. 

Head of Federal Litigation Section 

September 1 986 - January 1 990 

Handled cases involving civil rights, employment discrimination, 

employee rights, zoning, constitutional and personal injury law. 

Supervised four attorneys. 

Executive Assistant Citv Attorney 
Chief of Litigation Division 
January 1990 - February 1991 

Supervised 24 litigation attorneys in cases involving civil rights, 
employment discrimination, employee rights, constitutional, 
zoning, personal injury, eminent domain, and workers' compen- 
sation law, and briefed city council on litigation matters. 

First Assistant Citv Attorney 

February 1991 - December 1991 

Responsible for direct oversight of all litigation. Personally 

handled selected major cases. Responsible for personnel and 

administrative matters. Attended all city council meetings and 

executive sessions. Advised city council, city employees and 

board members on legal matters. 



525 



Acting City Attorney 
December 1991 - May 1992 
See duties for City Attorney. 

City Attorney 
May 1992 - Present 

Responsible for active and administratiye supervision of 1 10 
employees, including 73 attorneys, 30 support staff members, 
and seven paralegals. Responsible for representation of City 
in all litigation and legal matters. Serve as legal adviser to 
City Council, City Manager, department heads and board and 
commission members. Provide legal representation to em- 
ployees and officers in litigation matters. Attend all meetings 
and executive sessions of the Dallas City Council. 



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

My cUents are members of the Dallas City Council, the City 
Manager and his assistants, department directors, city employees 
and officers, and board and commission members. I am board 
certified in civil trial law by the Texas Board of Legal Specializa- 
tion. Prior to coming to woric at the City of Dallas, my clients 
were the five commissioners of the Texas Aeronautics Commis- 
sion and employees of the 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 dates. 

I appeared frequently, except for the last five years. I did not 
appear in court regularly during this time period because the 
nature of my administrative duties as City Attorney does not 
permit me to appear in court regularly. 



10 



526 



2. What percentage of these appearances was in: 

(a) federal courts; 
90% 

(b) state courts of record; 
10% 

(c) other courts. 
0% 



3. What percentage of your litigation was: 

(a) civil; 
100% 

(b) criminal. 
0% 



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 more than fifty cases, and the approximate breakdown 
is as follows: 

sole counsel - 1 2+ 
chief counsel - 25 
associate counsel - 1 5 to 20 



5. What percentage of these trials was: 

(a) jury; 
approximately 70% 

(b) non-jury, 
approximately 30% 



527 



18. Litigation : Describe the ten most significant litigated matters wdiich 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 liti- 
gation 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 be- 
fore 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. 

First Case 

a. Style, number, court and date of representation 

Outb. et al. v. Strauss, et al .. Civil Action No. 3:91-CV-1310-R; 

July 22-23, 1991 and July, 1992; 1 was lead counsel for all Defendants. 

United States District Court, Northern District of Texas. 

b. Citation 

This case is reported at 1 1 F.3d 488 (5th Cir. 1993), cert denied . 
128 L.E.2d 864 (1994). 

c. Sunmiary of and significance of case 

Several parents filed a suit challenging the constitutionality of a juvenile 
curfew ordinance enacted by the City of Dallas in June 1991 . I was lead 
counsel for the individual council members, the City of Dallas and other city 
officials who were sued. Plaintiffs raised numerous issues under the federal 
and state constitutions. After a bench trial, the district court held that the 
ordinance violated both constitutions on equal protection and free associa- 
tion grounds and permanently enjoined enforcement of the ordinance. The 
5th Circuit reversed and held that the ordinance was constitutional. The 
Supreme Court declined review of the case. This case has national signifi- 
cance because the ordinance has been an effective tool in addressing 
juvenile crime and has been used as a model across the nation by numerous 
cities that have adopted curfew ordinances. 



12 



528 



d. Name, address and telephone number of counsel and judge 

Co-Counsel for Defendants 

Katherine Knight 

5910 North Central Expressway 

Suite 1575 

Dallas, Texas 75206 

214-265-2499 



Anne C. Roland 
908 Warren Crossing 
Coppell, Texas 75019 
972-304-8568 

Counsel for Plaintiffs 
Bruce E. Anton 
705 Ross Avenue 
Dallas, Texas 75202 
214-741-9027 

Bruce A. Morrow 
2522 McKinney Avenue 
Dallas, Texas 75201 
214-871-9156 

Tona Trollinger 
11424 West 114 Street 
Overland Park, Kansas 662 1 2 
913-469-5037 

Judge in the Case 

The Honorable Jerry Buchmeyer 



529 



Second Case 

a. Style, number, court and date of representation 

Johnson, et al. v. The City of Dallas, et al. . Civil Action No. 3:94-CV-0991- 
X; date of representation was May 20, 1 994; I am lead counsel for all 
Defendants. United States District Court, Northern District of Texas. 

b. Citation 

This case is reported at 860 F. Supp. 344 (N. D. Tex. 1994) and 61 F.Sd 
442(5thCir. 1995). 

c. Summary of and significance of case 

This is a class action brought by homeless persons challenging several city 
ordinances. Plainti£fs contended that the ordinances, as enforced, violate 
their First, Fourth, Eighth, Ninth and Fourteenth Amendment rights under 
the U. S. Constitution. The district court concluded that the city's sleeping 
in pubUc ordinance was unconstitutional as applied to the homeless and 
enjoined enforcement of the ordinance. The court concluded that the re- 
maining ordinances were constitutionally vaUd and also concluded that the 
city could enforce the Texas Criminal Trespass Statute. On appeal, the 5th 
Circuit reversed and remanded the case because Plaintiffs did not establish 
they had standing to sue on their 14th Amendment claim. This case is 
pending before the district court and is significant because it deals with 
the issue of homelessness, \^ch is being litigated across the nation in 
several major cities. The ultimate issue that will need to be resolved is 
>\iiether homelessness is a "status" or "condition." 



d. Name, address and telephone number of counsel and judge 

Co-Counsel for Defendants 

Edwin P. Voss, Jr. 

1 500 Marilla Street 

7B North 

Dallas, Texas 75201 

214-670-3510 



14 



530 



Counsel for Plaintiifs 
Jeffie Massey 
P.O. Box 211 
Sheridan, Texas 77475 
409-732-9425 
and 

Steven P. Anderson 
3102 Maple Avenue 
Suite 220 

Dallas, Texas 75201 
903-465-2000 

Judge in the Case 

The Honorable Joe Kendall 



Third Case 

a. Style, number, court and date of representation 

Sullivan v. Dickenson, et al. . Civil Action No. CA3-85-2474-AJ, consoh- 
dated with Sullivan v. DBG Property Investors Corp ., Civil Action No. 
CA3-85-2475-AJ; May 13-17, 1990; I was lead counsel for Defendants 
Dickenson and City of Dallas. United States District Court, Northern 
District of Texas. 

b. Citation 

This case is not reported. 

c. Summary of and significance of case 

This case involved the shooting of an individual by an oflF-duty pohce 
officer, vA\o also worked as the night manager for the apartment com- 
plex where the shooting took place. According to Plaintiff, Dickenson 
dropped his handcuffs, and as Plaintiff picked them up and attempted to 
, hand them to Dickenson, Dickenson shot him in the abdomen willfully and 
without justification. The truth of the matter was that Plaintiff was intoxi- 



15 



531 



cated and picked up the dropped handcuffs to attack the officer. Plaintiff 
also sued the owner of the apartment complex because he alleged that 
Dickenson was as agent or employee of DBG Property Investors at the time 
of the shooting. 

Plaintiff sued under Section 1 983, the Texas Tort Claims Act and common 
law negligence for the injuries he suffered. He alleged that he was falsely 
arrested, illegally searched and unjustifiably shot by Dickenson. Sullivan 
also alleged that the action of Dickenson resulted from a policy or custom of 
the City of Dallas that permitted or condoned the illegal use of deadly and 
excessive force and inadequate training of police officers. 

The case proceeded to trial. The court granted a directed verdict for the 
City of Dallas and DBG Property Investors. The jury ruled in favor of 
Dickenson on all issues. This case was significant because Plaintiff sought 
approximately $4,000,000 in damages, and because a shooting involving a 
police officer is necessarily significant. 

d. Name, address and telephone number of counsel and judge 

Co-Counsel for Defendants City of Dallas and Dickenson 

Edwin P. Voss, Jr. 

1500 Marilla Street 

7B North 

Dallas, Texas 75201 

214-670-3491 

Counsel for Plaintiff 
Douglas R. Larson 
410 W. Main, Suite 101 
Mesquite, Texas 75149 
972-329-0160 

Co-Defendant's Counsel 

Lewis R. Sifford 

901 Main Street, Suite 6300 

Dallas, Texas 75202 

214-742-1200 



16 



532 



Judge in the Case 

The Honorable John B. Tolle 



Fourth Case 

a. Style, number, court and date of representation 

Maves v. The City of Dallas . Civil Action No. CA3-83-0462-F; date of 
representation was March, 1984; I was sole counsel for the City of Dallas. 
United States District Court, Northern District of Texas. 

b. Citation 

This case is reported at 747 F.2d 323 (5th Cir. 1984). 

c. Summary of and significance of case 

This case involved a constitutional challenge to an historic preservation 
regulation. I was sole counsel for the City of Dallas. Plaintiff Mayes 
owned a home in an historic preservation district in Dallas. Mayes was 
denied his request to make certain alterations to his property. He brought 
suit alleging that the city's exercise of its zoning power violated due process 
because the ordinance did not provide objective, specific standards that 
wouldpreventthearbitrary exercise ofthis power by city authorities. After 
a bench trial, the district court held for the city, and the case was affirmed 
on appeal. 

This case was significant because it validated the process that the City was 
using in reviewing certificates of appropriateness in historic zoning districts, 
and the court held that the ordinance provided specific, objective criteria so 
as not to offend the due process clause. 

d. Name, address and telephone number of coimsel and judge 

Counsel for Plaintiff 
Michael M. Daniel 
3310 Elm Street 
Dallas, Texas 75226 
214-939-9230 



17 



533 



Judge in the Case 

The Honorable Robert Porter (deceased) 



Fifth Case 

a. Style, number, court and date of representation 

Estate of Andrew Pigg. et al. v. Estate of Gary Blair, et al .. CA3-87-1796- 
C; date of representation was June, 1990; I was lead counsel for all 
Defendants. United States District Court, Northern District of Texas. 

b. Citation 

This case is not reported. 

c. Summary of and significance of case 

This was a civil rights and wrongful death case. The incident giving rise to 
the incident was a shooting in an apartment parking lot in which Plaintiff 
Pigg and Officer Blair shot each other after a scuffle. Pigg's estate conten- 
ded that Pigg only fired to defend himself. Pigg's Estate sued Blair's 
Estate, the chief of poUce, a police captain and the City of Dallas, alleging 
negligence and unlawful use of deadly force. Pigg's Estate also contended 
that the City of Dallas had a grossly inadequate system (policy) of training, 
supervising and evaluating police officers that caused Pigg to be deprived of 
his life and liberty in violation of the Fourth and Fourteenth Amendments to 
the U. S. Constitution. Plaintiffs sought damages in the amount of 
$3,000,000. 

The case proceeded to a jury trial in June, 1990. The City of Dallas, poUce 
chief and police captain were granted a directed verdict. After a three-day 
trial, the jury returned a verdict in favor of the Estate of Gary Blair and held 
that Blair did not use excessive force and that Pigg was 100 percent negli- 
gent. This case was significant because of the amount of money requested 
and the controversy generated in the community. Pigg's alleged accom- 
plice had been tried for capital murder and acquitted prior to the trial. It 
was important to establish to the community that the use of force was not 
excessive or unlawful. 



534 



d. Name, address and telephone number of counsel and judge 

Co-Counsel for all Defendants 

Edwin P. Voss, Jr. 

1500 Manila Street 

7B North 

Dallas, Texas 75201 

214-670-3491 

Counsel for Plaintiffs 
E. Brice Cunningham 
777 R. L. Thornton Freeway 
Suite 121 

Dallas, Texas 75203 
' 214-946-1153 ' 

Judge in the Case 

The Honorable Sam R. Cummings 



Sixth Case 

a. Style, number, court and date of representation 

Chandler, et al. v. The Citv of Dallas, et al. Civil Action No. CA3-85- 
2580-R; date of representation was September, 1990; I was lead counsel 
for all Defendants. United States District Court, Northern District of Texas. 

b. Citation 

This case is reported at 958 F.2d 85 (5th Cir. 1 992) and 2 F.3d 1 385 
(5th Cir. 1993), cerL denied . 128 L.E.2d 61 (1994). 

c. Sunmiary of and significance of case 

This was a class action brought by two individuals challenging the city's 
driver safety program. Plaintiffs contended that the driver safety program of 
the City of Dallas, because of certain physical standards it required of em- 
ployees before one was qualified to drive a city vehicle, discriminated 
against them and others who had certain physical impairments in violation 



19 



535 



of the Rehabilitation Act, the First Amendment, the Fourteenth Amendment, 
and Section 1983. The district court certified two classes, those with sub- 
standard vision and those with insulin dependent diabetes. After a bench 
trial, the court ruled in favor of Plaintiffs. On appeal the case was remanded 
because the findings of fact and conclusion of law were inadequate. On 
remand the district court again ruled for Plaintiffs. On the second appeal, 
the 5th Circuit reversed and rendered for the City of Dallas. This case was 
important because it challenged a program which has been in effect since 
1978 and continues to this day. Additionally, this ruling saved the City of 
Dallas millions of dollars. 



d. Name, address and telephone number of counsel and judge 

Co-Counsel for all Defendants 

John Schumann 

United States Department of Justice, Civil Division 

Federal Pro