-

l

'S. HRG. 1^-505, Pr. 9

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

V

^OSj:/i j

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIAEY

UNITED STATES SENATE

ONE HUNDRED SECOND CONGRESS

SECOND SESSION

ON

CONFIRMATION HEARINGS ON APPOINTMENTS

TO THE FEDERAL JUDICIARY

MAY 14, JUNE 4, 18, AND JULY 1, 1992

Part 9

Serial No. J-102-7

Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY

JOSEPH R. BIDEN. JR., Delaware, Chairman

EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina

HOWARD M. METZENBAUM, Ohio ORRIN G. HATCH, Utah

DENNIS DECONCINI, Arizona ALAN K. SIMPSON, Wyoming

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

HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania

PAUL SIMON, Illinois HANK BROWN, Colorado

HERBERT KOHL, Wisconsin

RONALD A. KLAIN, Chief Counsel

CYNTHIA C. HOOAN, Staff Director

THADDEUS E. STROM, Minority Chief Counsel and Staff Director

(II)

a^jil^
CONTENTS

HEARINGS HELD

Pagf

Thursday, May 14, 1992 1

Thursday, June 4, 1992 195

Thursday, June 18, 1992 397

Wednesday, July 1, 1992 , 597

THURSDAY, MAY 14, 1992

STATEMENTS

DeConcini, Hon. Dennis 1

Exon. Hon. J. James 1

Hoagland, Hon. Peter, Representative from Nebraska - 2

Barrett, Hon. Bill, Representative from Nebraska 4

Kerrey, Hon. J. Robert 5

Bradley, Hon. Bill - 5

Lautenberg, Hon. Frank R 6

Bumpers, Hon. Dale 7, 9

Pryor, Hon. David 12, 13

Mack, Hon. Connie 15

Hammerschmidt, Hon. John Paul, Representative from Arkansas 15

Thornton, Hon. Ray, Representative from Arkansas 16

Kennedy, Hon. Edward M 28

Kerry, Hon. John 29

TESTIMONY OF NOMINEES

Arnold, Judge Morris S., to be a U.S. circuit judge for the eighth circuit 17

Boudin, Judge Michael, to be a U.S. circuit judge for the first circuit 30

Simandle, Judge Jerome B., to be a U.S. district judge for the District of New

Jersey „ 31

Kopf, Judge Richard G., to be a U.S. district judge for the District of Nebraska 35

QUESTIONNAIRES AND OTHER SUBMISSIONS

Arnold, Judge Morris S.:

Testimony 17

Letter to Senator Thurmond in answer to question about sentencing

guidelines 23

Letter to Chairman Biden from Richard L. Gill, in support of nominee 26

Questionnaire 38

Boudin, Judge Michael:

Testimony 30

Questionnaire 69

Kopf, Judge Richard G.:

Testimony 35

Questionnaire 163

Simandle, Judge Jerome B.:

Testimony 31

Questionnaire 130

(in)
IV

THURSDAY. JUNE 4, 1992

STATEMENTS „

Page

Kennedy, Hon. Edward M 195

Graham, Hon. Bob 196

Mack, Hon. Connie 197

Moynihan, Hon. Daniel Patrick 198

Rockefeller, Hon. John D, IV 209. 224

D'Amato. Hon. Alfonso M 213, 215

TESTIMONY OP NOMINEES

Black, Judge Susan H., to be a U.S. circuit judge for the eleventh circuit 199

Sotomayor, Sonia, to be a U.S. district judge for the Southern District of New

York 202

Preska, Loretta A., to be a U.S. district judge for the Southern District of

New York 204

Keeley, Irene M., to be a U.S. district judge for the Northern District of West

Virginia 207

QUESTIONNAIRES AND OTHER SUBMISSIONS

Black, Judge Susan H.:

Testimony 199

Questionnaire 226

Keeley, Irene M.:

Testimony 207

Questionnaire 354

Preska, Loretta A.:

Testimony 204

Questionnaire 317

Sotomayor, Sonia:

Testimony 202

Questionnaire 281

THURSDAY, JUNE 18, 1992

STATEMENTS

Metzenbaum, Hon. Howard M 397

Levin, Hon. Carl 398

Riegle, Hon. Donald W., Jr 399

Henry, Hon. Paul B., Representative from Michigan 407

Upton, Hon. Frederick S., Representative from Michigan 407

Rudman, Hon. Warren 408

Dole, Hon. Robert 409

Smith, Hon. Bob 411

Specter, Hon. Arlen 412

Wofford, Hon. Harris 413

Warner, Hon. John W 414, 415

de Lugo, Hon. Ron 417

Hodge, Hon. Derek, Lt. Gov., U.S. Virgin Islands 418

TESTIMONY OF NOMINEES

Stahl, Judge Norman H., to be a U.S. circuit judge for the first circuit 422

Robreno, Eduardo C, to be a U.S. district judge for the Eastern District of

Pennsylvania 426

Quist, Gordon J., to be a U.S. district judge for the Western District of

Michigan 428

Moore, Thomas K., to be a U.S. district judge for the District of the Virgin

Islands 432
QUESTIONNAIRES AND OTHER SUBMISSIONS

Moore, Thomas K.: P»«e

Testimony 432

Responses to written questions 440

Questionnaire 563

Quist, Gordon J.:

Testimony 428

Letters supporting the nominee 402

Responses to written questions 443

Questionnaire 521

Robreno, Eduardo C:

Testimony 426

Questionnaire 485

Stahl, Judge Norman H.:

Testimony 422

Biography 420

Responses to written questions 437

Questionnaire 446

WEDNESDAY, JULY 1, 1992

STATEMENTS

Kohl, Hon. Herbert 597

Nickles, Hon. Don 598

Boren, Hon. David L 598

Bond, Hon. Christopher 599

Hasten, Hon. Robert W., Jr 600

Seymour, Hon. John 602

DeConcini, Hon. Dennis 604

TESTIMONY OF NOMINEES

Leonard, Timothy D., to be a U.S. district judge for the Western District of

Oklahoma 610

Baird, Lourdes G., to be a U.S. district judge for the Central District of

California 614

Gonzalez, Irma E., to be a U.S. district judge for the Southern District of

California 618

Randa, Rudolph T., to be a U.S. district judge for the Eastern District of

Wisconsin 622

QUESTIONNAIRES AND OTHER SUBMISSIONS

Baird, Lordes G.:

Testimony 614

Questionnaire 661

DeConcini, Hon. Dennis:

Letters in support of nominee. Judge Irma Gonzalez 604

Gonzalez, Irma E.:

Testimony 618

Questionnaire 696

Leonard, Timothy D.:

Testimony 610

Questionnaire 627

Randa, Rudolph T.:

Testimony 622

Questionnaire 727
VI

ALPHABETICAL LISTING OF NOMINEES FOR FEDERAL APPOINTMENTS

Page

Arnold, Judge Morris S., to be a U.S. circuit Judge for the eighth circuit 17

Baird, Lourdes G., to be a U.S. district judge for the Central District of

California 614

Black, Judge Susan H., to be a U.S. circuit judge for the eleventh circuit 199

Boudin, Judge Michael, to be a U.S. circuit judge for the first circuit 30

Gonzalez, Irma E., to be a U.S. district judge for the Southern District of

California 618

Keeley, Irene M., to be a U.S. district judge for the Northern District of West

Virginia 207

Kopf, Judge Richard G., to be a U.S. district judge for the District of Nebraska 35

Leonard, Timothy D., to be a U.S. district judge for the Western District of

Oklahoma 610

Moore, Thomas K., to be a U.S. district judge for the District of the Virgin

Islands 432

Preska, Loretta A., to be a U.S. district judge for the Southern District of

New York 204

Quist, Gordon J., to be a U.S. district judge for the Western District of

Michigan 428

Randa, Rudolph T., to be a U.S. district judge for the Eastern District of

Wisconsin 622

Robreno, Eduardo C, to be a U.S. district judge for the Eastern District of

Pennsylvania 426

Simandle, Judge Jerome B., to be a U.S. district judge for the District of New

Jersey 31

Sotomayor, Sonia, to be a U.S. district judge for the Southern District of New

York 202

Stahl, Judge Norman H., to be a U.S. circuit judge for the first circuit 422
CONFIRMATION HEARING ON MORRIS S.

ARNOLD, MICHAEL BOUDIN, JEROME B. SIMANDLE, AND RICHARD G. KOPF

THURSDAY, MAY 14, 1992

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:10 a.m., in room

SD-G50, Dirksen Senate Office Building, Hon. Dennis DeConcini,

presiding.

Present: Senators DeConcini and Thurmond.

OPENING STATEMENT OF SENATOR DeCONCINI

Senator DECONCINI. The Senate Judiciary Committee will come

to order, and my apologies for the tardiness. I was upstairs in another room with other things.

We will have the nominations today of various judgeships, and

because of the number of Members that are here, we will take

them first on each.

Please sit down. Senator Bradley. You may sit there. Every Senator, if there is enough room, may come up and sit down.

Let me do the Senators' statements first, and then we will have

the nominees. We have so many. Senator Mack, come on up here.

Are there any other Members of Congress?

Senator Exon.

Senator EXON. Mr. Chairman, Senator Pryor is on his way.

Senator DECONCINI. We will do all the Members, so they can get

on with their duties. Please sit down, Mr. Hammerschmidt. Mr.

Hoagland is also here. Would you like to bring a chair, and we will

start right in.

We are just going to start with Senator Exon on behalf of Richard Kopf. Senator Exon, you may proceed with your introductory

remarks.

STATEMENT OF HON. J. JAMES EXON, A U.S. SENATOR FROM THE

STATE OF NEBRASKA

Senator EXON. Mr. Chairman, thank you very, very much. We

have many Members of the U.S. Senate here, so I will be very, very

brief.

We are here today because we are all very much concerned

about the quality of the Federal bench, and I am here today to give

a very strong recommendation for Mr. Richard Kopf, a very, very

(l)
well-known, highly qualified attorney with a varying background

and various places of residence in my State of Nebraska.

As has been my custom now for 13 years, I believe I have come

before the Judiciary Committee on each and every judgeship that

has gone through the selection process, the nominating process. I

have been here for 13 years. Two years I was here under President

Jimmy Carter, and the rest of the time I have been here under the

Presidencies of President Reagan and now President Bush. In each

and every instance when the nominating process has been gone

through, whether it has been the Democratic process of nomination

or the Republican process of nomination, I have agreed that the

process has worked well and that highly qualified individuals have

been recommended to the Judiciary Committee. Therefore, I have

never blue-slipped anyone that has come before the committee,

which, as the chairman knows, can be done.

Certainly of all of the individuals that I have recommended previously that I think have gone on to serve with great distinction on

the Federal bench, I believe that Judge Kopf fits that mold exactly.

In fact, I would rate him very, very high of all of the people that I

think would be highly qualified for this very, very important position.

When Judge Kopf comes before the committee today, I hope that

I can be here with him. It so happens that this has been a very,

very busy, unusual day in the U.S. Senate, and that might not be

possible. But I just want you to know that this Senator from Nebraska—and I also can speak for my colleague. Senator Kerrey,

who I think will try and be here today also, we both have the highest regard for and highly recommend Judge Kopf to be confirmed

as quickly as possible by this committee and then by the U.S.

Senate.

Mr. Chairman, I thank you very much.

Senator DECONCINI. Thank you, Senator Exon.

We are going to take Mr. Hoagland now, who is also here for the

nominee, Mr. Kopf. Mr. Hoagland, we are pleased to have you

here. My apologies for having you wait.

STATEMENT OF HON. PETER HOAGLAND, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEBRASKA

Mr. HOAGLAND. Well, thank you. Senator. It is certainly a pleasure to see you again this morning and to have this opportunity to

appear before this distinguished committee in support of the nomination of Richard Kopf for the U.S. District Court for the district of

Nebraska.

Mr. Chairman, my knowledge of Mr. Kopf dates back to 1983

when we first met. I was a member of the Nebraska unicameral

legislature then, and Magistrate Kopf was retained as special counsel to investigate the collapse of a State-chartered, State-regulated

State bank, and a special commonwealth committee was formed.

Mr. Kopf was special counsel for that, and that ultimately led the

legislature to vote to impeach our sitting attorney general. Mr.

Kopf then, because of his excellent work as a special counsel for

the legislature on the commonwealth matter, was chosen to prosecute the case for the unicameral legislature and the Nebraska Su-
3

preme Court. I attended those proceedings from time to time as a

representative of the legislature, and I observed that trial. He did a

very good job, and not just technically but in pursuing the public

interest in that case.

Mr. Kopf in recent years has been a U.S. magistrate in Omaha.

While I have never appeared before him in that capacity, I am generally familiar with his performance. He has received very high retention ratings in polls conducted among Nebraska attorneys and

has done very well in that capacity as well.

As a litigator off and on for 19 years myself, I have often reflected on the qualities that are needed in a sound judge. I have always

thought temperament and disposition were the No. 1 qualities;

second, fairness and openmindedness; third, a capacity for hard

work; and, fourth, intellectual ability. Those are the four things

that I have looked for in thinking about and evaluating dozens and

dozens of judges I have appeared before as a litigator, and generally thinking on this subject through the years.

I would have to say that Mr. Kopf rates very highly in all four of

those capacities. He has a very even disposition, a very even temperament, and I think that, ahead of anything else, really is critical for a good judgeship. He is very fair and openminded.

If you review his resumes, he clearly has the capacity for hard

work, having prepared papers and presented papers annually on

developments in Nebraska law before members of the Nebraska

Bar Association. And I think his intellectual ability is also very

high. He has high native intelligence and is very capable.

Let me just underscore two final points, Mr. Chairman, and then

I will end this presentation.

There are two particularly good things about Mr. Kopfs nomination, I think, from the point of view of the sort of person the Justice Department has presented us with. First of all, he has had at

least three public jobs: As a law clerk, as counsel to the unicameral, and then many years on the bench as a magistrate, which has

given Nebraskans and others an opportunity to observe him. And

the fact that he has held previous employment involving the exercise of judicial powers is very, very helpful. I would certainly encourage the Justice Department to present us with these kinds of

candidates, people that have held judicial positions before, so we

have some basis on which we can judge. In Mr. Kopfs case, he has

done very, very well in those capacities.

Second, Mr. Kopf has had substantial litigation experience in his

lifetime, beginning shortly after he graduated from law school, first

as a law clerk to a U.S. Court of Appeals judge for the eighth circuit; and then he worked principally as a litigator through his

legal practice, and that kind of extensive litigation experience is

extremely important if one is to be a good judge, in my view. And I

would urge the Justice Department to present us with candidates

with litigation experience as well.

Now, I have talked too long, Mr. Chairman. Let me just give my

unqualified endorsement of his nomination.

Thank you.

Senator DECONCINI. Thank you. Representative Hoagland.

We will now hear from Representative Barrett.
STATEMENT OF HON. BILL BARRETT. A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEBRASKA

Mr. BARRETT. Thank you, Mr. Chairman. It is a pleasure for me

to accompany this morning a jurist of the highest qualifications

and character as he appears before this committee to seek your approval for his nomination to the U.S. district court. It is, in fact, a

very special privilege because I happen to admire this distinguished fellow Nebraskan very much, and I am pleased to call him

my very good personal friend.

Mr. Chairman, I am new on the other side of the Hill, and I have

no desire to shift my allegiance to your side of the Hill, except to

say that this was one time when I truly wish that I had a chance to

vote for this gentleman. This is one of the finest jurists I have

known in my lifetime. He has served as my family attorney. He

has served as an attorney for my business.

The magistrate has a very, very impressive trial record, as has

been suggested already. He has tried a significant number of cases

as a magistrate, which reflects, I think, the confidence that the district judges have in his ability.

He received an extremely high retention ranking on the Nebraska bar polls in both 1988 and 1989. I won't go into any great detail

because I know this committee has substantial material and evidence which has been prepared for the committee for this confirmation hearing.

Of note, however, I do want to mention, I believe, that all of the

active and the senior Federal judges, both on the circuit court of

appeals and on the district court, are enthusiastically in support of

his nomination. As a matter of fact, a former colleague of yours.

Senator Roman Hruska, a former Member of this body, is also enthusiastically in support of Richard Kopf. I think Mr. Hruska has

knowledge of and experience in judicial selections, certainly during

his service in the U.S. Senate. In fact, it might be considered

almost encyclopedic.

I came to the Congress from the Nebraska Legislature where I

served as speaker for the 4 years immediately preceding my 1990

election. I will not go into any great detail because Representative

Hoagland has touched on Mr. Kopfs experience in a very serious

case involving an impeachment of a sitting attorney general,

among other things. I helped select Richard Kopf to serve as special counsel to the legislature, and he fulfilled that obligation in an

especially distinguished and professional manner.

As a matter of fact, the lawyer that he opposed, the lawyer for

the former attorney general, has nothing but the highest praise for

Rich Kopf, despite what became a very, very bitter and heartwrenching impeachment proceeding.

I have never known Rich to be anything less than dedicated to

the job at hand, diligent, and extremely thorough.

In conclusion, Mr. Chairman, let me offer just a personal note, if

I might. Rich was just married a couple of weeks ago. He has just

returned from his honeymoon. This committee and the vote by the

Senate will certainly launch him into a new stage of his legal

career at the same time that he undertakes a new challenge in his
personal life. How apropos that he will need his substantial judicial

talents and his wisdom in both of these endeavors.

I wish him all the luck and success in both endeavors, as I know

you do, Mr. Chairman, and I thank you very much for this opportunity to speak on his behalf.

Senator DECONCINI. Thank you. Representative Barrett.

I see that Senator Kerrey is here on behalf of Mr. Kopf.

STATEMENT OF HON. J. ROBERT KERREY, A U.S. SENATOR FROM

THE STATE OF NEBRASKA

Senator KERREY. Mr. Chairman, I, as well as Senator Exon and

Congressman Barrett and Congressman Hoagland, am pleased to

be here to introduce Federal Magistrate Richard Kopf to the committee. Magistrate Kopf has been nominated by the President to be

U.S. district judge for the district of Nebraska, and I both personally and professionally enthusiastically support this nomination.

' ' ;ate as both a practicing attorney and as a

a consequence, he has sound and broadh an advocacy as well as a judicial role. He

;ted by the legal community and is respectd public.

le legal scholar who well understands the

leral and State law. Magistrate Kopf has a

He as well has a very calm demeanor and a

>f the thoughts and needs of litigants, witms who come into contact with the courts,

he is an individual of the highest personal

ss effectively qualify Magistrate Kopf to be

al judge, and I respectfully submit that he

I judiciary with genuine distinction.

Thank you.

Senator DECONCINI. Thank you. Senator Kerrey.

Thank you, gentlemen, who have been here for Mr. Kopf.

We will now proceed to Mr. Simandle—Jerome Simandle—and

we will hear from Senator Bradley and Senator Lautenberg.

STATEMENT OF HON. BILL BRADLEY, A U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Senator BRADLEY. Thank you very much, Mr. Chairman. It is a

privilege to be here today to introduce Jerome Simandle who has

been nominated for district judge for the district of New Jersey.

Jerry Simandle is respected by the lawyers who practice before

him and by the judges who see his work every day. His legal career

has been one of public service, first in the U.S. attorney's office and

then as a Federal magistrate. He has tried both civil and criminal

cases and has presided over both extremely well. He has a distinguished academic career as a writer and as a teacher.

Following his graduation from law school, Jerry Simandle

clerked for Judge John Gerry, now chief judge of the U.S. District

Court for New Jersey. He went from John Gerry's chambers to

serving as assistant U.S. attorney in New Jersey in both Newark

and Trenton. He was appointed U.S. magistrate in 1983 and was

unanimously reappointed in 1991 for a second 8-year term. I be-
lieve that Judge Simandle is an extremely qualified nominee for

district judge, and I believe the committee will agree with me after

the hearing process concludes.

It gives me great pleasure to introduce and recommend him to

this committee. Do not mistake the brevity of my statement for

anything other than very strong support for his confirmation.

Senator DECONCINI. Thank you, Senator Bradley.

Senator Lautenberg.

STATEMENT OF HON. FRANK R. LAUTENBERG. A U.S. SENATOR

FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Thank you very much, Mr. Chairman. I

join with my colleague. Senator Bradley, in supporting the nomination of Magistrate Judge Jerome Simandle to become U.S. District

Court Judge for the District of New Jersey. I know that Senator

Bradley, objective as he is, had no bias at all in favor of Judge Simandle because they both went to Princeton. Senator Bradley

handed me that note to make comments on.

Judge Simandle has had a distinguished career. He has demonstrated a lasting commitment to public service, and I am sure that

he is going to serve his community with great distinction on the

district court bench. And I enthusiastically recommend him to you.

As you have heard, he received a law degree, after graduating

from Princeton, from the University of Pennsylvania where lie was

an editor of the Law Review. He then became an assistant U.S. attorney, first in Newark, then in Trenton where he became the attorney-in-charge in 1983. In the same year, he became a magistrate

judge in the district court and was reappointed unanimously for

another 8-year term in 1991. In each of these positions, Mr. Chairman, Judge Simandle has served with distinction.

His primary areas of activity as an assistant U.S. attorney were

toward civil rights, labor law, environmental law, and administrative law. He has developed experience in a wide variety of legal

matters that come before the court, including criminal law. He has,

by all accounts, demonstrated the judicial temperament he is going

to need in his new position.

Particularly interesting to me, as a member of the Senate Environment and Public Works Committee, he has extensive involvement representing the Government in environmental cases, including Superfund. As the Federal courts increasingly hear cases involving important environmental issues. Judge Simandle's experience should prove especially helpful.

He also is filling a position that has been open too long. The

Camden Federal District Court has labored under a crushing workload with a depleted roster of judges available to conduct the

court's business. Judge Gerry, the chief judge, and his colleagues as

well as citizens of south New Jersey, who look to the court to resolve disputes and secure justice, need and deserve swift action on

this nomination.

I am pleased, Mr. Chairman, to make this recommendation because Judge Simandle will make an excellent addition to the court.

He has received the highest rating from the American Bar Associa-
tion, and I am certain that the committee will give this nomination

a positive recommendation. I hope so.

I thank you very much.

Senator DECONCINI. Thank you. Senator Lautenberg. I can

assure you we will do just that.

The next nominee is Morris S. Arnold for U.S. circuit judge of

the eighth circuit.

Senator Bumpers.

STATEMENT OF HON. DALE BUMPERS, A U.S. SENATOR FROM

THE STATE OF ARKANSAS

Senator BUMPERS. Mr. Chairman, thank you very much. I will

submit my formal statement for the record and just summarize it

very briefly for you.

Senator DECONCINI. It will appear in the record.

Senator BUMPERS. I am very pleased to introduce Morris Sheppard Arnold to this committee. Morris Sheppard was a U.S. Senator from Texas, and our nominee this morning is a grandson of

Senator Sheppard. He was born in Texarkana, TX, but had the

good judgment to spend most of his life on the correct side of State

Line Avenue in Texarkana, AR.

He would need no introduction whatever in Arkansas. The

Arnold family, as jurists and lawyers, is extremely well known and

respected. He started at Yale University but came back to the University of Arkansas where he got his undergraduate degree and his

law degree; later went back to Harvard and got a master's and a

doctorate at Harvard Law School.

Before he became a Federal judge in 1985 for the Western District of Arkansas, he taught as a teaching fellow at Harvard. He

taught at the University of Indiana, the University of Texas, the

University of Pennsylvania, the University of Michigan, and the

Stanford University. He was the Altheimer distinguished professor

of law at the University of Arkansas and later, immediately prior

to his becoming a district judge, was dean at the University of Indiana Law School in Bloomington.

He is the author of many books, including one which he just presented me on colonial Arkansas. He has written nine books and an

awful lot of articles and book reviews. He is a very popular speaker.

He started his law practice in his father's firm in Texarkana,

and he remained active in another way. While he was teaching at

the University of Arkansas at Little Rock and the Legal Services

Corp. was taking these huge cuts in the early 1980's, Judge Arnold

started what was called Volunteers of Central Arkansas Legal

Services. VOCALS was the acronym, and it was simply recruiting

lawyers all over Arkansas, and especially in central Arkansas, to

do pro bono work to try to take up some of the slack.

One of his greatest claims to fame, of course, is that he is the

brother of another Judge Arnold, Judge Richard Arnold. You may

find this interesting, Mr. Chairman, that Morris Arnold, once confirmed, and Richard Arnold will be the first two brothers ever to

sit on a court of appeals, the same court of appeals. One is a Re-
8

publican; one is a Democrat. So I don't know how this is going to

wash out.

I personally don't like Morris Arnold's resume as well as I do

Richard's because Richard can put on his resume that he was a legislative assistant to the very distinguished senior Senator from Arkansas when I first came to the Senate.

I enthusiastically endorse him for your consideration and confirmation, but, Mr. Chairman, I also beg your indulgence in leaving.

We are having a hearing on my own bill up in the Energy Committee.

Thank you very much.

[The prepared statement of Senator Bumpers follows:]
9

It is my privilege to Introduce Morris Sheppard Arnold to the

members of the Senate Judiciary Committee today. Judge Arnold

needs little introduction to this Committee since he is already

serving with distinction as the United States District Judge for the

Western District of Arkansas. He needs even less introduction In

Arkansas where he Is very well known.* If the distinguished

members of this Committee were ail Arkansans, I would only have

to say, This is Morris S. "Buzz" Arnold of the Texarkana Arnolds,"

and you would not only know who he was, you would also know

his entire family.

Judge Arnold was born in Texarkana, Texas, but he spent

most of his life on the other side of State Line Avenue, the street

that divides Texarkana, Texas, from Texarkana, Arkansas. He

attended Yale University and graduated from the University of

Arkansas at Fayetteville after earning both a bachelors and a law

degree. He continued his education at Harvard Law School where

he completed masters and doctorate degrees In law.
10

Before assuming the position of United States District Judge

In December, 1985, Judge Arnold taught In several law schools for

almost fifteen years. He was a teaching fellow at Harvard Law

School, and served on the faculty at the University of Indiana at

Bloomlngton, the University of Texas, the University of

Pennsylvania, the University of Michigan, and Stanford University.

In addition, he was the Aithelmer Distinguished Professor of Law at

the University of Arkansas at Little Rock and the Dean of the Law

School at the University of Indiana at Bloomlngton.

Judge Arnold is the author of nine books and numerous

articles and book reviews. He Is also a popular speaker and

lecturer because of his well prepared, carefully researched

presentations.

Judge Arnold's first law-related Job was in Texarkana where

he worked in his father's and brother's law firm. During his years

of law teaching. Judge Arnold continued his association with that

firm by serving In an "of counsel" position.
11

Judge Arnold also remained active In law practice In another

way. During the time that he taught at the University of Arkansas

at Little Rock School of Law, Legal Services Corporation suffered

major budget cuts. As a result, the local program that delivers

legal services to the poor also had its budget cut. The attorneys in

Little Rock banded together to form a group called "Volunteers of

Central Arkansas Legal Services" or "VOCALS." The members of

VOCALS agreed to handle several cases a year or contribute a

certain sum of money to Central Arkansas Legal Services in order

to belong to the organization. Some people might think that the

Aithelmer Distinguished Professor of Law was too distinguished to

actually represent someone who couldnt afford to hire a lawyer,

but Judge Arnold didn't. He accepted the required number of

cases during each of the years that he lived In Little Rock.

One of Judge Arnold's greatest claims to fame Is that he is

the brother of another Judge Arnold, Judge Richard Arnold, the

Chief Judge of the United States Court of Appeals for the Eighth

Circuit. Judge Richard Arnold's resume is even more impressive

than Judge Morris Arnold's resume — Richard served as my

legislative director during my first years in the Senate.
12

Senator DECONCINI. I understand, Senator, and I regret keeping

you here as long as we have had to do that.

Senator Pryor.

STATEMENT OF HON. DAVID PRYOR, A U.S. SENATOR FROM THE

STATE OF ARKANSAS

Senator PRYOR. Thank you, Mr. Chairman.

Mr. Chairman, I have a statement I would like to submit for the

record on behalf of Judge Arnold.

Senator DECONCINI. It will appear in the record.

Senator PRYOR. I am very honored this morning to be here, and

also I am very honored to appear with my senior colleague. Senator Bumpers, and also my two very good friends and colleagues

from the House of Representatives, Congressman John Paul Hammerschmidt and Congressman Ray Thornton, who are here also to

voice their support for Judge Arnold.

Mr. Chairman, I had an opportunity to review a letter that was

written about Judge Arnold. It was submitted to Senator Joseph

Biden, the chairman of the committee, March 18 by an attorney,

Richard L. Gill, in Minneapolis. Mr. Chairman, I ask unanimous

consent that this letter be made an official part of the record. I

would like, if I could Mr. Chairman, to read one paragraph from

this letter.

Judge Arnold conducts his courtroom in a fair, even-handed manner. Although he

exercises firm control over the course of the proceedings, he is at all times polite

and courteous to counsel, witnesses, court personnel and members of the jury. From

the onset of the trial, it was evident that he had carefully reviewed the pre-trial

written submissions by the parties and that he was aware both of the factual context of events pertinent to the lawsuit and the controlling elements of products liability law. Although I disagreed with several of his evidentiary rulings during the

trial, I was afforded adequate opportunity to present my position and I never felt

that his rulings were based on bias or preconceptions.

Mr. Chairman, I think that this in itself indicates the degree of

commitment that Judge Arnold has had and still has and will continue through the remainder of his life to have to law.

I can recommend him highly. He has been a superb attorney. He

has been an outstanding judge. He is very qualified, and it is a real

pleasure to be here today on his behalf.

Thank you, Mr. Chairman.

[The prepared statement of Senator Pryor follows:]
13

Nomination of Judge Monte S. Amolo

Mr. Chairman, [members of the committee,] It Is Indeed a pleasure for me

to be here today joining my colleagues from Arkansas to Introduce this fine

nominee to the Eighth Circuit Court of Appeals, Judge Morris Arnold. I believe

Judge Arnold's intelligence, erudition, and good character Insure that he will

perform admirably on the Eighth Circuit, and I wholeheartedly support his

nomination. Moreover, I am delighted that Judge Morris Amiod's elevation to

the court will give Arkansas the distinction of having two brothers on the same

circuit court, since Judge Richard S. Arnold currently serves on the Eighth

Circuit and will soon be Its chief Judge.

To say that Judge Arnold Is brilliant man Is without question, an

understatement I will not belabor Judge Arnold's educational and teaching

career, but suffice It to say that the Judge Is Imminently qualified to draw up a

Wof top ten law schools, because he has spent time at all of them. Judge

Arnold's extensive writings on ancient English legal history, Arkansas history,

and other topics, are further testament to the depth and breadth of his Intellect

Judge Arnold's vast abilities Insure us that he will conduct his courtroom

wen and deliver sound opinions. More Importantly, though, with men as

intelligent and knowledgeable as Judge Arnold sitting on the bench, the public

will have confidence that our legal system can wisely and fairly Judge complex

disputes, protect the rights of the people, and deliver justice. At a time when
14

the courts of our country are Increasingly forced to consider such explosive and

complex Issues as abortion, desegregation, and taxation, and at a time when

government institutions in general are held In such low esteem by the public, it

Is very important for the people to believe these controversial matters are In the

hands of capable and honorable men like Judge Arnold.

We have all reviewed Judge Arnold's educational career, his writings, and

his personal history, and we all agree what a fine candidate he is. What truly

matters, though, is how Judge Arnold performs on the bench, and I have with

me a letter from an attorney who appeared before Judge Arnold's district court

and found the experience to be strong testimony to his qualification for the

Eighth Circuit Court of Appeals. I do not know this attorney, Mr. Richard L. Gill

of Minneapolis, and moreover, Mr. Gill claims that prior to his appearance In

Judge Arnold's court in March of this year he had never met the Judge. I must

assume that Mr. Gill's letter is sincere and unsolicited. If I may, I would like to

read a portion of this letter.

This letter paints the picture of the type of Judge we ail want serving on

the bench: conscientious, courteous, impartial, and effective. I think that says it

all Mr. Chairman. I am happy to support Judge Arnold, and I hope your

committee and the full Senate give his nomination speedy approval.
15

Senator DECONCINI. Senator Pryor, thank you for that strong,

strong recommendation of Mr. Arnold.

We will now hear from Senator Mack of Florida.

STATEMENT OF CONNIE MACK, A U.S. SENATOR FROM THE

STATE OF FLORIDA

Senator MACK. Thank you, Mr. Chairman. First of all, let me

thank you for holding this hearing. Many may be wondering what

a Florida Senator is doing here. You have heard Democrat and Republican; you have heard Arkansas and Texas. But what in the

world does Florida have to do with this nomination?

The interesting thing is that Buzz Arnold and I are cousins. As

Senator Bumpers indicated a moment ago, our grandfather, Morris

Sheppard served in the U.S. Senate and was the dean of the U.S.

Senate when he died in 1941. When I have the occasion to go by

the office of the Senate Democratic whip, I have the opportunity to

see my grandfather's picture hanging in the office. So I have a very

special reason to be here to recommend my cousin, Buzz Arnold to

this committee.

Frankly, Buzz and I did not meet until I became involved in politics. We knew about each other but didn't have the opportunity to

meet until we were introduced by Buzz's brother and my cousin,

Richard Arnold, who currently sits on the eighth circuit court.

I strongly urge and recommend Buzz's confirmation. He is an

outstanding scholar, has a distinguished career and a clear commitment to the law.

Again, I just appreciate the opportunity to come by and say a

few words on his behalf. As you can imagine, this is a unique and

yet very special moment for me to have an opportunity to introduce my cousin to the committee.

I thank the Chair.

Senator DECONCINI. Thank you. Senator Mack.

Representative Hammerschmidt, we are very pleased to have you

here.

STATEMENT OF HON. JOHN PAUL HAMMERSCHMIDT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS

Mr. HAMMERSCHMIDT. Thank you very much, Mr. Chairman and

Senator Thurmond. It is a distinct pleasure for me to join my colleagues and friends. Senator Bumpers and Senator Pryor and Congressman Ray Thornton, to support the nomination to the distinguished members of this committee of Judge Morris "Buzz"

Arnold, a U.S. district judge, a fellow Arkansan and a close personal friend, who, of course, has been nominated by President Bush to

fill a vacancy on the U.S. Court of Appeals for the Eighth Circuit.

While recognizing the committee has carefully reviewed Judge

Arnold's credentials and most of the things about his life have already been said here, I would like to just reiterate a few of the

highlights of his distinguished career.

He holds a bachelor of science degree in electrical engineering

and a bachelor of law from the University of Arkansas where he

was editor-in-chief of the Law Review. He also has a master's and a

doctorate in law from Harvard University, where he won the covet-
16

ed Frank Knox Memorial Fellow Award to study at the University

of London. Judge Arnold has also taught law at several prominent

universities and was dean of Indiana University's Bloomington

School of Law immediately prior to being appointed to the Federal

bench, where he has served with great distinction.

I will mention again, as the others have, that he comes from a

very distinguished family of Arkansas lawyers, his grandfather

having founded a well-known law firm in Texarkana, and his

brother Richard now serves as chief judge of the eighth circuit.

Also, his maternal grandfather was a U.S. Senator from Texas, and

you just heard from his first cousin, one of your colleagues, Connie

Mack of Florida.

Again, I appreciate this opportunity, Mr. Chairman and Senator

Thurmond, to support the nomination of Judge Arnold to this distinguished committee.

Thank you very much.

Senator DECONCINI. Representative Hammerschmidt, thank you

very much.

We will now hear from Representative Thornton.

STATEMENT OF HON. RAY THORNTON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARKANSAS

Mr. THORNTON. Mr. Chairman, Senator Thurmond, it is a privilege to be here before this distinguished panel to recommend Judge

Morris Arnold for confirmation to the circuit court of appeals.

Judge Arnold was a constituent of mine in the 1970's when I represented the Fourth Congressional District in Washington, and 1

have had the privilege over the years of getting to know him well.

He is truly an outstanding intellect, but he combines with that a

sense of justice which is rare in today's world. And adding to that

sense of justice, he brings a concern for individuals upon which our

system of government is grounded.

I think that his appointment and confirmation to the circuit

court of appeals will put that circuit court in shape as one of the

best appellate courts in our Nation. He will join there his brother,

Richard Arnold, with whom I have had a long history of friendship

and respect. And my enthusiasm for his confirmation is complete,

sir. He is a man of great intellect, of great character, wisdom, and

fairness, and will do credit to our Federal judiciary.

Senator DECONCINI. Thank you. Representative. Thank you very

much for joining us here.

We will now take the nomination of Mr. Arnold, if he would

please come forward.

Mr. Arnold, would you please raise your right hand? Do you

swear that the testimony you are about to give the committee is

the truth, so help you God?

Judge ARNOLD. I do.

Senator DECONCINI. Please be seated, and any introductory remarks you care to make, Mr. Arnold. You have heard so much

from your friends and colleagues here, I don't know what you could

add. But you have an opportunity to do so if you would like.
17

TESTIMONY OF MORRIS S. ARNOLD. FORT SMITH, AR. TO BE U.S.

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT

Judge ARNOLD. I wonder if I might introduce some guests I have,

Mr. Chairman.

Senator DECONCINI. I wish you would, sir.

Judge ARNOLD. I have my distinguished brother, Richard S.

Arnold, chief judge of the U.S. Court of Appeals for the Eighth Circuit; my aunt, Dr. Lucille Keyes, now of Washington; and my

friends, Phil and Bessie Anderson, George and Judy Proctor, and

Judge Bob Faulkner, who have come along with me as well today.

Thank you very much, Mr. Chairman.

Senator DECONCINI. DO you have any other statement you care

to make?

Judge ARNOLD. I do not. Thank you.

Senator DECONCINI. Mr. Arnold, I think we will get to the questions now. You have an outstanding career behind you, a great

future ahead of you. The bar has recommended you well qualified.

Your representatives here speak highly of you, and I know you

have discussed at some length with the committee your membership in certain clubs that discriminate or at least allegedly discriminate based on race, religion, and gender. And I know that you

have answered a multitude of questions, and in your questionnaire,

you state that you currently are a member of the Country Club of

Little Rock, AR.

It is my understanding—and please correct me if I am wrong—

that this club, although it has women, Asians, and Jewish members, has never had an African-American member. Can you give us

some background on the club, when you joined it and prior to joining it, and did you inquire and did you know that it did not take

African-Americans? And when you joined the club or at any time

shortly thereafter, when did you find out regarding this, and what

actions have you taken, if any?

Judge ARNOLD. Thank you. Senator. When I joined the Country

Club of Little Rock in 1988, I knew, as you said, that it had Asian,

Jewish, and, of course, women members but had no black members.

I think it is not accurate that they have a record of discriminating

against black persons. If that had been the case, I would not have

joined the club.

It is accurate that they have never had a black American, a

black African-American member, but none had ever applied for

membership. And my reading of the current social arrangement in

Little Rock, AR, and the environs is that there would be no difficulty whatever in the admission of a black person if such a person

should apply to the club. So I joined the club knowing those things.

Since I joined the club knowing those things, I have made an

effort to recruit black members to the club, and, in fact, an effort

of which I was a part has recently succeeded in having a black gentleman sponsored for membership. His application has been received as an application and approved as an application, and he is

presently involved in the process of becoming a member.

I predict that this effort will succeed.

Senator DECONCINI. When you say you "predict," I realize you

don't run the club, but what is going on now? Is there a qualified
18

member pending before the admissions committee, before the board

of directors? Is it necessary to change the rules or the bylaws of the

club?

Judge ARNOLD. Oh, no. There is no racially relevant bylaw.

There is no bylaw that excludes persons on the basis of race. And,

in fact, when I joined the club, I got a written assurance to that

effect and also that there has never been a policy or practice of excluding black persons from membership.

Senator DECONCINI. HOW many are pending now for membership?

Judge ARNOLD. Black Americans?

Senator DECONCINI. Yes.

Judge ARNOLD. One.

Senator DECONCINI. One?

Judge ARNOLD. Yes, sir.

Senator DECONCINI. And when do you think they will make a determination on that application?

Judge ARNOLD. I think that is a difficult thing to predict. I would

think that within a year or perhaps less. It usually takes quite a

while to get into the club. In fact, I think it took me 6 or 7 years,

but I hope that this doesn't happen to this gentleman.

Senator DECONCINI. IS that based on not having memberships

available?

Judge ARNOLD. That is correct.

Senator DECONCINI. IS that what takes so long?

Judge ARNOLD. The procedure from this point, as I understand it,

is that a screening committee will report back to the board and

then the gentleman's name will be posted for members' comments.

After a 30-day posting period, the board will vote on the application, and then if, as I very much hope and expect, the application

is successful, he will be placed on a waiting list.

Senator DECONCINI. SO none of that has happened yet?

Judge ARNOLD. It has not. The screening committee currently

has him under consideration.

I would like to say, Senator, if I may that I took an active part in

this process and wrote several letters and called several people and

talked to numerous influential members of the Country Club of

Little Rock to assure that this application was, in fact, accepted.

And I am trying at the moment to make sure that the application

is being speedily processed.

Senator DECONCINI. Mr. Arnold, the newspapers, which are not,

indeed, accurate often, they have made reports and characterized

and actually used the words "segregated" and "discriminatory" relating to this club. What is your reaction to those?

Judge ARNOLD. I think those characterizations are inaccurate for

the reasons that I have given. Moreover, it is certainly not segregated in this sense: There have been numerous occasions on which

black guests have been entertained at the club throughout the

entire facility.

Senator DECONCINI. Judge, if this is going to take maybe 6 years,

maybe 2 years, some period of time that is certainly not in the immediate future, foreseeable future even, maybe, what kind of a

message do you think it delivers to the public when our circuit

court judges remain even though they support membership of
19

black Americans in the club and yet there are none? Are you concerned about that?

Judge ARNOLD. I am concerned about it, and if it takes an unreasonable amount of time, I will resign from the club. I think at the

moment I am clearly in compliance with the Senate's policy of

August 2, 1990, because I am making bona fide and continuing efforts to have this gentleman admitted to the club.

Senator DECONCINI. DO you think the club would make any special considerations regarding this member to try to find a balance

within its membership and perhaps authorize an additional membership? Is that under consideration?

Judge ARNOLD. I am urging them to do that, Mr. Chairman, but I

don't know that I could truthfully tell you whether that would

happen or not. I iust don't know. I consider it personally a matter

of some urgency, but

Senator DECONCINI. I do, too. Judge. I am sorry, in a way, that

these questions or issues have become as prominent as they are. I

have always felt that they are important. But they really have

become prominent, and I think in light of today's race relations

and the issues on the front page, it is very important for judges to

understand and recognize that and also to take demonstrative

steps. You appear to have done that, but if, in fact, we are talking

about a long wait here, it seems to me that confirming a judge in

such a position, having them continue to sit on a court, certainly

poses an image problem, not as to the ability of the judge but the

fairness of what our judicial system is.

That is just one Senator's opinion. I am not sure that is the colV«tive opinion of this committee even.

Turning to some other clubs that you belong to, the Racquet

Club of Philadelphia, the Union League of Philadelphia, the Athenaeum Club of London, and the Noon Civics Club of Fort Smith,

AR, it is my understanding—and please correct me, Mr. Arnold—

that during your membership in these organizations, women,

either by express prohibitions or by customs, were not permitted as

members of those clubs.

How long were you a member of those clubs? I think that is in

the record, and you don't have to be explicit right now. And when

did you first realize that women were not admitted to any of these

organizations?

Judge ARNOLD. All but the Noon Civics Club I was a member of

from about 1977 to 1980; that is, the clubs in Philadelphia. I was

aware at that time that women were not admitted, but I voted in

each instance to change the bylaws. The bylaws have been successfully changed in those clubs to admit women, and that has been 10

or 15 years ago that that has happened.

Senator DECONCINI. Did you play a role in that other than

voting?

Judge ARNOLD. I did not because I was not a particularly prominent person, was not a member of any committee, had no particular influence. I did talk to some of the people that I knew who were

members, and

Senator DECONCINI. SO all of those clubs for the last 10 years

have accepted women?

Judge ARNOLD. At least, yes, sir.
20

Senator DECONCINI. And do they accept blacks and other minorities?

Judge ARNOLD. Oh, yes, sir. Now, the Noon Civics Club I resigned

from about a year ago, a little over a year ago. That is the club in

Fort Smith. When I first moved to Fort Smith, AR, where I presently reside, I was asked to join the Rotarians Club, and I refused

because they had a bylaw that excluded women.

I was then asked to join the Noon Civics Club, and they had no

bylaw excluding women; and though they had no women members,

they assured me there would be no difficulty in a woman applying

and being accepted as a member. When, however, I sponsored a

woman for membership, there was some apparent difficulty raised

by a number of the members. I resigned from the club.

Senator DECONCINI. IS that the only club you have resigned

from? The other clubs you are still a member of?

Judge ARNOLD. Oh, no, sir.

Senator DECONCINI. You have resigned from all those clubs?

Judge ARNOLD. I have. No, I haven't been a member of any of

those Philadelphia clubs since 1980. That is ancient history. The

Athenaeum Club I resigned from in 1986. That is the London club.

I do not presently belong to any all-male clubs.

Senator DECONCINI. DO you belong to any club besides the Country Club that does not—or, to your knowledge, has a policy of nonacceptance of minority members?

Judge ARNOLD. I do not.

Senator DECONCINI. Judge Arnold, as you are already aware, a

petition opposing your nomination has been circulated to members

of the committee. This petition was submitted by followers of the

Reverend Tony Alamo. The petition alleges, in part, that you made

erroneous rulings in cases involving Mr. Alamo or his organization.

This is a matter that you have discussed with the committee staff,

I know. However, I would like again to give you the opportunity on

the record to discuss the matter here.

Can you give us your reaction to that?

Judge ARNOLD. I think it is very difficult in a small space, in the

length of time that I can conscionably ask the committee to listen

to me on this subject, to give a totally accurate picture of my difficulties with the Reverend Tony Alamo. Let me simply say two or

three things, if I may.

First of all, Mr. Alamo has asserted, I think, in his petition that I

lacked jurisdiction in one of his cases and apparently rushed to

judgment either out of ignorance or in an effort to do something to

him that was motivated by personal concerns.

As to whether or not I had jurisdiction in his case, I think I

would like to refer the committee to the opinion of the court of appeals, which held that, in fact, I did have jurisdiction on two or

three alternate grounds.

As far as any prejudice against Mr. Alamo is concerned, I would

like to call the committee's attention to the fact that I was recently

reversed in one of Mr. Alamo's cases because I believed the testimony that he and his followers provided. The court of appeals said

I was clearly erroneous in believing his testimony and those of his

followers because Mr. Alamo quite plainly had an attitude about

litigation that caused him to be a kind of practiced perjurer. So I
21

think that it would be difficult for anyone to claim successfully

that I have exhibited any prejudice against Mr. Alamo.

I would like to say, too, Mr. Chairman, if I might, that Mr.

Alamo threatened to kidnap me, claimed before his court that the

Christian militia would come and arrest me and yank me out of

my house, and that if anyone died as a result of my actions, that I

would be killed. He was indicted for that and tried.

Senator DECONCINI. What was the outcome?

Judge ARNOLD. He was acquitted.

Senator DECONCINI. When is the last contact you had with Mr.

Alamo or the last time he was before you?

Judge ARNOLD. The day of that trial, though I have had reports

that he is still following me around, that he has me under surveillance.

Senator DECONCINI. Has that necessitated you to take any security measures?

Judge ARNOLD. For 4 months I did have 24-hour protection from

the U.S. Marshals Service.

Senator DECONCINI. Judge Arnold, let me pursue another matter

with you. If you are confirmed and you are sitting on the circuit

court and there is a case before you that has no clear Supreme

Court precedence on the point before you, but which was clearly

governed by the eighth circuit past decisions with which you did

not agree, because you weren't there nor did you agree, what do

you believe your obligation is in such a situation? How would you

approach such a situation?

Judge ARNOLD. My obligation would be to follow the precedent of

tVve eighth circuit unless I thought it was wrong and I could convince a sufficient number of the members of the court to overrule

it.

Senator DECONCINI. AS you know, in many circumstances a case

is heard by the entire membership of the court of appeals rather

than the three-judge panel. In some courts, like the District of Columbia here, more and more cases are going before the full court,

causing many judges and some litigants to complain that the orderly consideration of cases and circuit precedence is at risk. When do

you think it is appropriate for the full court to appeal to hear a

case? And do you have any concerns about excessive resort to such

reviews?

Judge ARNOLD. I don't have any experience, of course, as yet

with the number of occasions on which such reviews are, in fact,

exercised. I think under the rule a case may be taken en banc in

the event the case is conflict with some other precedent of the

eighth circuit or if it is conflict with some case of the Supreme

Court of the United States or if it is a case of extraordinary importance. I believe that is what the rule says. What a case of extraordinary important is, of course, is a matter for individual judgment,

but I would assume that that would mean at a minimum that cases

that involved private rights and probably only State law matters

would not very frequently qualify for review under that criterion.

Senator DECONCINI. Thank you. I will yield to the Senator from

South Carolina. He has another engagement, and he can pursue

his questions.

Senator THURMOND. Thank you very much.
22

We are glad to have you with us and congratulate you on your

appointment.

Judge ARNOLD. Thank you, Senator.

Senator THURMOND. And I hope you have a productive and

happy career on the bench.

Judge ARNOLD. Thank you.

Senator THURMOND. I just have three real quick question and

then I need to leave. I will be back a little later.

As an appellate judge, you will be reviewing decisions of district

court judges. What criteria do you intend to use in reviewing these

decisions and trial records?

Judge ARNOLD. Well, if the person appealing has asserted that

the trial court has made an error in finding a particular fact, then,

of course, my duty would be to review that decision on the socalled—on a basis of standard of review of clearly erroneous. That

is, a question that an appellate judge would ask himself or herself

would be whether this finding was clearly erroneous on the record.

If the matter that is appealed is a matter of law, then, of course, it

is a question that is reviewed by the court of appeals de novo, as

we say; that is, we examine the record for the purpose of determining whether the judge got the law right or wrong.

Senator THURMOND. Judge Arnold, as a Federal trial court judge,

did you find the uniformity provided by the U.S. sentencing guidelines to be beneficial, and do you support the guidelines?

Judge ARNOLD. I think it has been beneficial. I think, on the

other hand, the guidelines are a mixed blessing. I think there are

some aspects of the guidelines that probably need some attention,

and if I might just mention two of those briefly. Senator. One

is

Senator THURMOND. Would you mind just placing those in the

record to save time?

Judge ARNOLD. Yes, sir, I will be delighted to do that.

Senator THURMOND. And if you would write the chairman of the

committee and also write me as ranking member, I would appreciate it.

Judge ARNOLD. All right, sir. I will be glad to.

[The information of Judge Arnold follows:]
23

UNITED STATES DISTRICT COURT

WVSTEMN OtVTRtCT OF AHKANSAS

POST OPP1CI BOX ISO*

rOMT SMITH AHKANtAB 7IBOI

May 14, 1992

Senator Strom Thurmond

218 Russell Senate Office Bldg.

Washington, D.C. 20510-4001

Dear Senator Thurmond:

Thank you for all your courtesies today at my confirmation

hearing. 1 appreciate the opportunity to answer briefly your

question about the sentencing guidelines.

I think that the sentencing guidelines have proved to be a

significant contribution to the criminal process. The provision

In the guidelines that makes it impossible for the judge to change

his or her mind after sentencing is pronounced Is, in my mind, too

restrictive. It is the only matter that I know of that a district

judge is forbidden to reconsider. Perhaps the Judiciary Committee

would like to review this provision.

Many thanks again for all your good help.

Sincerely,

^7. • *$. --^L^JUL

Morris S. Arnold

U. S. District Judge

MSA/ab
24

Senator THURMOND. Judge Arnold, what problems areas, if any,

have you been able to identify in the criminal justice system at the

Federal level?

Judge ARNOLD. In the criminal justice system, other than the

sentencing guidelines, which I have indicated already perhaps have

some difficulties associated with them, I think I have really identified nothing of particular difficulty. I think that the criminal justice system works reasonably well—in fact, quite well.

Senator THURMOND. Thank you very much.

Judge ARNOLD. Yes, sir.

Senator THURMOND. I will be back in a little bit.

Senator DECONCINI. Thank you. Senator Thurmond.

Judge Arnold, just to finish up, judicial temperament is always a

term used, I think, rather loosely and very hard to define. And you

have served on a court and as a distinguished lawyer. I am sure

you have seen what you might consider judicial temperament that

wasn't to your standards or at least was irritant.

What is your definition of proper temperament for a judge that

has been confirmed under the laws and Constitution of our country

for lifetime appointment? And as the office grows on the person,

human nature, it is only natural you do change. There is no question about it.

How do you address that, having been on a court and now seeking to a higher court with a lifetime appointment? Do you think

about that?

Judge ARNOLD. I do quite a lot. It seems to me that a judge owes

his or her best to every case that comes before the court, to listen

courteously, to take everyone's argument seriously, and to devote

the time and effort necessary to come up with a judgment which,

though clearly will disappoint one side or another, will at least

leave both sides with the correct impression that the judge did his

or her best to do the just and legal thing.

I think that my judicial temperament has probably improved a

little over the years. I know there are some judges perhaps whose

temperament gets worse simply out of perhaps having become

{aded after the passage of time. I think in my own case, as the job

las gotten a little easier because of the experience I have acquired

in the last almost 7 years, I think I have probably been a little bit

better about making sure that everybody had an opportunity to say

what he or she wanted.

It is obviously the case that, as judges, we must get things right,

but I have learned that we must do two other things, too: We must

get them done, and we must allow people to have their say. In

other words, the purpose of a court, perhaps the main purpose, is

to get a dispute settled correctly. But it must also be done in the

context where people think that they have had their full day in

court, that they have had an attentive and sentient being in front

of them, and that they have had an opportunity to say everything

of relevance.

Senator DECONCINI. Thank you. Judge Arnold, for your testimony and your frankness in addressing a very sensitive question. I

can assure you the committee will give the utmost consideration to

the fine recommendations you have here and your answers to questions, and this hearing will play a major role in our determination.
25

I wish you well. You have a fine legacy of judicial experience and

success, as your whole family does, and we welcome this type of

nominee being presented before us. Thank you.

Judge ARNOLD. Thank you, Mr. Chairman.

[The following letter was subsequently supplied for the record:]
26

ROBINS. K.APLAN. MILLER 8 CIR.E5I

ATTOMMCVS AT LAW Oj-..

AriA*.tA 2800 bUALU PLAZA

•0«TO. X*5""LU A»tXUI

e_iCi<) MINNEAPOLJS. MINNESOTA 55.102-2015

TELEPHONE (012) 3A9-8900

FACSrMILE (012) 339-Al8(

March 18, 199J

•JCHAKD I_ GILL

(•UIJ

Hon. Joseph Biden

Chairman, Senate Judiciary Committee

United States Senate

Washington, DC 20510

Re: Nomination of Judge Morris Arnold to Eighth Circuit Court

of Appeals

Dear Senator Biden:

I am a trial attorney from Minnesota who was admitted to practice

In 1971. During the last 10 years, I have tried law suits in

several federal courts throughout the country. Last week, I

represented a client in a products liability trial before Judge

Morris Arnold of the United States District Court for the Western

District of Arkansas. Prior to this case, I had never set Judge

Arnold and was unfamiliar with him. It is my understanding that

Judge Arnold has been nominated for appointment to the Eighth

Circuit and is presently awaiting his confixaatlon hearings. Hy

purpose in writing is to encourage your committee to recommend that

Judge Arnold's nomination be approved.

I realize that Judge Arnold's nomination hardly requires letters

of recommendation from members of the trial bar and this letter is

certainly unsolicited. Nevertheless, given the importance of

Circuit Court appointments, I feel obliged to share my impression

of Judge Arnold's judicial qualifications with you and your

committee.

Judge Arnold conducts his courtroom in a fair, even-handed manner.

Although he exercises firm control over the course of the

proceedings, he is at all times polite and courteous to counsel,

witnesses, court personnel and members of the jury. From the onset

of the trial, it was evident that he had carefully reviewed the

pre-trial written submissions by the parties and that he was aware

both of the factual context of events pertinent to the lawsuit and

the controlling elements of products liability law. Although I
March 18, 1992

Page 2

disagreed with several of his evidentiary rulings during the trial,

I was afforded adequate opportunity to present my position and I

never felt that his rulings were based on bias or preconceptions.

Finally, although Judge Arnold may very well have reached his own

views regarding the merits of the parties' claims, he never

communicated any indication of his sentiments to the jury.

If my one trial in Judge Arnold's courtroom is an accurate

Indication of his judicial qualifications and temperament, and I

strongly suspect that it is, the Eighth Circuit would be very

fortunate to have him as a member.

Very truly yours,

ROBINS, KAPLAN, MILLER & CIRESI

/y

'Richard L. Gill

RLG:da

Bon. David Pryor

Bon. Dale Bumpers

60-251 0-93 — 2
28

Senator DECONCINI. We will now go to the nomination of Michael Boudin for the Circuit Court of the First Circuit. Senator

Kennedy is here. You may join Judge Boudin, if you would like to

come up at this time. We will go directly to your questioning.

Senator Kennedy, we are pleased to have you here, and you may

proceed, sir.

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR

FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thanks very much, Mr. Chairman. I want to

express our appreciation to the chairman of the committee. Senator Biden, for his willingness to move expeditiously on this really

superb nomination by the President for the U.S. Court of Appeals

for the First Circuit.

Judge Michael Boudin's life has been associated with excellence

in every sense: he was an outstanding student at Harvard Law

School, where he was the president of the Harvard Law Review; a

clerk for Judge Henry Friendly on the Second Circuit Court of Appeals; and then clerk for Justice John Marshall Harlan. And for

more than 20 years, he worked at the highly regarded law firm of

Covington and Burling here in Washington, DC, primarily focused

on appellate litigation. He became one of the very best in his field.

Through his pro bono efforts, which I found particularly compelling, Mr. Boudin has made an important contribution to the protection of the rights of indigent persons. He represented the tenant in

Pernell v. Southall Realty, in which the Supreme Court ruled in

1974 that the seventh amendment guarantees tenants the right to

a jury trial in eviction proceedings. He also played an important

role in convincing the Supreme Court to protect the interests of indigent parents when the Government seeks to terminate their parental rights.

In 1987, Mr. Boudin left private practice to serve in the Justice

Department as Deputy Assistant Attorney General in the Antitrust

Division. His intelligence and conciliatory qualities impressed all of

his colleagues in the administration.

In 1990, President Bush appointed him to the Federal district

court here in Washington, where he gained a reputation for ability

and fairness and thoughtfulness on the bench.

Earlier this year, Mr. Boudin resigned from the District Court of

Washington in order to spend more time with his family in Massachusetts. He is currently a lecturer at the law school at Harvard

and is also working on a scholarly analysis of Judge Friendly's

career on the bench.

The Bush administration was justifiably reluctant to see the judicial branch lose his judicial talents. Based on all that he has accomplished during his career in the law, I am confident that Mr.

Boudin will be an excellent member of the First Circuit Court of

Appeals. I urge the committee to approve his nomination.

Senator DECONCINI. Senator Kennedy, thank you very much. I

understand that Senator Kerry, also of Massachusetts, has a statement which will appear in the record at this time. Thank you for

being here.

[The prepared statement of Senator Kerry follows:]
29

OF SKSATOR JOH»

II BOPPORT OP MOMIllATICm (V MICHASL

TO THI 0.8. FIRST CIRCUIT

Mr. Chalzunt it la with grMt pl«aa«r* to advloe you of ay

•troog •upport for th» noolnatlon of Kletusl Boodln to the

poaltion of fodaxal appollata jndga In the Pint Clroolt.

Naarly thirty year* aoo, Jodg* Boudir. had th« opportunity to

•erva •• a olork tor two of tha «rMt juriata of tha aid-cantnry,

H«nry Prlandly and John Barlan, whoa* vlrtuea of integrity,

intallact, and judgsmnt hava by all aoeoimta not metoly boen

notad by jodga Boudin, but amlatad.

Following thoao olwrkahipa, judga Bocdin aarvwd 31 ywara at

Corington and Burling, wbara ha Bpaaialiaed in appellate work on

ccaaplax caaai, bafora antarlng govam—nt aorvloe in tha Juatlca

DapartMBt in 1987, haadliag iapertant antitruat iaaoaa in thna

•ajor positional and than apandlng a yaar as a fodaral trial

jodgs la tha Diatriet of Oelimbia.

AS tha Haw TorX Tlaaa raoantly wxota, 'nowa of Mr. Boudin'•

ncMiaation haa plaaaad hia wida ciroia of adairara, who apan tha

political and intallaotnal apaotrua. Thay deaoriba hia aa

brilliant and conaoimtloua, with an aloquanca and breadth of

intoraata alaoat unheard of aaong lawyer*.-

A federal Judga quotad by the Times daaeribad Judga Boudin't

intallaot aa 'aaasing* and "aarioua," and containing 'tha aoat

raza kind of Intellectual honesty.' As the Tixoa noted, while hia

friends apaak of Mr. Boudin reverentially, they also do so a bit

raluotantly, fearing that bis intelligence, independence and

open-aindadneaa might actually hurt hia ohanoaa of being

—Ma—i by the Senate.

Barlier thia yaar. Judge Boudin resig/iad from his position

aa trial Judge, la order to spend aora tlaa in Boston with hia

wife and faadly. Thus, this appointnant raaoues for tha judiciary

a fine aind for tha right job — that of appellate judge — in

the right location — alose to home.

As the Aaerican Lawyar noted la an aztlole in Moraabar,

1991, titled "First Rate Centrists,' Judge Boudin is 'brilliant

and extraordinarily erudite* and aay soswday be nominated for tha

Supreaa Court aa a oonstitntionalist who baliavas also In

individual responsibility sad personal discipline.

The First Circuit, already one of tha jewel* of the federal

appellate systsoi, will be brightened furthar with this

appolntaant. I urge the Canalttee to oonflra Hiohael Boudin and

oongratulate President Bosh on this fine choice for the First

Cironit.
Senator DECONCINI. Judge Boudin, would you please stand and

raise your right hand? Do you swear the testimony you are about

to give today is the truth, so help you God?

Judge BOUDIN. I do.

Senator DECONCINI. Judge Boudin, please, you may make any

statement or introductions that you would care to at this time.

TESTIMONY OF MICHAEL BOUDIN. CAMBRIDGE. MA. TO BE U.S.

CIRCUIT JUDGE FOR THE FIRST CIRCUIT

Judge BOUDIN. I would merely like to introduce my wife, Martha

Field, who was kind enough to come here.

Senator DECONCINI. Welcome, Ms. Field. We are very pleased to

have you.

Judge you served for 14 months, as was pointed out by Senator

Kennedy, on the U.S. District Court for the District of Columbia,

resigning in January. Can you give us the reasons you resigned?

And do you believe that these reasons and circumstances will affect

your ability to serve if you are confirmed on the circuit court?

Judge BOUDIN. I found it was not compatible to try to be a trial

judge in the District of Columbia and have a family in Cambridge.

I had been managing a commute and arrangements previously

when I could go on teaching at Harvard. A trial judge's life in the

District of Columbia does not make that possible. And so the relations with the family had dwindled.

I also found on the district court that the trial work, which was a

remarkable education, was less to my taste and training than the

appellate part of being a trial judge. And when the administration

advised me in December that I would be considered for the first circuit, it seemed like a very attractive choice.

Senator DECONCINI. Thank you. Judge. There have been recent

proposals that losers in litigation be forced to pay legal fees or that

a presumption be created in favor of that to be overcome and the

court to make the final decision in certain types of lawsuits. This is

a system that is used in Great Britain today, as you probably know.

Some lawyers have commented that the proposal would reward

wealthy litigants and make it too risky for the average citizen to

bring suit.

Have you ever commented on or do you have any knowledge on

this? Or just your opinion would be helpful.

Judge BOUDIN. I have never written on the subject. I have two

brief reactions. One is that any arrangement which creates an encouragement to people to settle disputes short of trial, which the

English rule does in some situations, deserves some consideration.

And there are some variations on it that look promising, but one

would have to be very careful in tailoring it to deal with the situation of people who can barely afford a lawyer and who certainly

can't afford to pay large legal fees on the other side. So it seems to

me not a proposal which one can adopt without qualifications. It is

worth studying.

Senator DECONCINI. Judge, perhaps you have done some articles

that I am unaware of or some research or at least thought about

our country's litigation problems, the clogged court. Having served

on the court here, you are aware of it, I am sure. Have you pro-
31

posed any suggestions or ideas of how to reduce the litigation in

this society of ours without fundamentally altering the rights of individuals?

Judge BOUDIN. I think my reactions deal with smaller parts of

the problem, but at least from the perspective of a new district

judge, I was struck by the sense that the job is now as much a job

of management as of scholarship—you need both—and that the

training and the facilities for trial judges—I am sure it is not limited to Federal courts—are going to have to be oriented increasingly

toward mechanisms that let judges move cases through efficiently.

I am thinking everything from the materials which the Federal Judicial Center now prepares on a very practice level, items like the

Bench Book, to alternate dispute resolution regimes which the district court in this district has been working with. But it is no

longer going to be a matter of just taking cases and letting them

take their time. Judges are now going to have to be taught to be

managers.

My sense is it is much less true at the appellate level, although it

is true there to some degree.

Senator DECONCINI. What about the lawyer's responsibility? Is

there any way to enforce a more prudent action on lawyers not to

file so much litigation, or is that just part of the system?

Judge BOUDIN. My sense is that rules like rule 11 and similar

constraints work in discouraging outlandish cases. But the state of

the law is such that in an awful lot of situations, people can bring

suits in good faith without much chance of winning. And I don't

see those kinds of sanctions as significantly denting the problem.

My guess is in the end it is going to be a series of small reforms

and not any single solution that will help bring the problem under

control.

Senator DECONCINI. Judge Boudin, thank you for those observations. You have had a distinguished career, as pointed out by the

answers to your questions in your dossier that is in the file. And

you served certainly outstandingly in the district court here. We

welcome you here and look forward to pursuing your nomination.

Thank you, sir.

Judge BOUDIN. Thank you very much.

Senator DECONCINI. We will now take the nomination of Mr. Simandle, if you will come forward, please. Would you please raise

your right hand? Do you swear the testimony you are about to give

the committee is the truth, so help you God?

Judge SIMANDLE. Yes, I do.

Senator DECONCINI. YOU may make any introductions you would

care to make, please.

TESTIMONY OF JEROME B. SIMANDLE, CAMDEN, NJ. TO BE U.S.

DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY

Judge SIMANDLE. Thank you, Mr. Chairman. I would like to, if I

may, introduce my wife, Jane Darton.

Senator DECONCINI. Welcome, Jane.

Judge SIMANDLE. And my children, Roy Heck and Liza Heck.

Senator DECONCINI. Welcome.
32

Judge SIMANDLE. Mr. Chairman, I am also pleased to say that I

am accompanied by my law clerk, Tim Holman, and by Joseph

Irenas, who appeared before this very committee recently and

awaits his confirmation—rather, he awaits his swearing-in with the

U.S. District Court in New Jersey.

Senator DECONCINI. Very good.

Judge SIMANDLE. I am also accompanied by John Rother, who is

a dear friend from law school days.

Senator DECONCINI. Thank you.

Judge SIMANDLE. And may I also add, Mr. Chairman, my sister

has arrived. Patrician Hepner, and her daughter, my niece, Janelle

Hepner.

Senator DECONCINI. Thank you. You are all welcome here.

Mr. Simandle, you have been a magistrate for 9 years, I understand, and in many respects you have performed duties similar to

those of a Federal district court judge. If you are confirmed, how

will your responsibilities change, as you see them from day to day,

from the U.S. magistrate's that you have so well conducted yourself as?

Judge SIMANDLE. Mr. Chairman, as a magistrate in New Jersey, I

was responsible for the management of cases all the way up

through the time of the final pre-trial order. Then we would turn

the civil cases over to the district judge for trial and for disposition.

So if I am confirmed by the Senate, I would look forward to the flip

side of that, which is the trials of many more cases, handling of

more dispositive motions, injunctions, class actions on a dispositive

basis. And so my authorities, of course, would enlarge in the event

that I am confirmed.

I have also tried cases by consent of the parties, both jury and

nonjury, and so it is not unfamiliar territory for me.

Senator DECONCINI. I was just going to ask you, you have done

that on a number of occasions?

Judge SIMANDLE. Yes, I have, consistent with my other duties. I

hold about a thousand case-management type conferences per year

and also dispose

Senator DECONCINI. A thousand?

Judge SIMANDLE. Yes, sir, and also dispose of over a thousand

nondispositive motions, and some dispositive ones along the way on

a report and recommendation basis.

Senator DECONCINI. AS well as conducting some trials?

Judge SIMANDLE. Some trials, as long as they are not too long,

but, yes, sir.

Senator DECONCINI. How many trials have you had?

Judge SIMANDLE. TO a verdict, jury and nonjury, approximately

20.

Senator DECONCINI. From your experience as a magistrate, can

you offer us any suggestions how to improve the magistrate

system?

Judge SIMANDLE. Yes, I can. Magistrates are fully utilized in a

number of districts in the country and not so in others. By full utilization, I would propose magistrates should be more fully involved

in the management of cases. They should be involved from the beginning to the end of the case in efforts to resolve it. They may
33

help the parties to choose alternative dispute resolution mechanisms.

I know in New Jersey it is the magistrates who supervise the

Court of Next Arbitration Program, and I have been told it is one

of the most successful in the country in terms of the disposition of

cases and in terms of the satisfaction of the litigants. So expanding

the magistrate's duties in those areas I think would serve the district judges well. It helps to keep the district judges' desks a little

bit clean of the everyday interruptions that come up when there is

an emergency, in the discovery phase of cases, for instance. We are

much better able, I believe, to monitor the cases, to enforce our

orders, to deal with the attorneys on the day-kklay basis while the

district judge is busy themselves, increasingly so, with the criminal

side of the docket.

Senator DECONCINI. Should it be the responsibility more of the

district judges to use and encourage the magistrates to do more in

areas of settlement and managing the litigation?

Judge SIMANDLE. Yes, sir, but that is from my perspective and

privilege of having served in New Jersey. We have had that tradition for over 20 years now

Senator DECONCINI. Excuse me. And that tradition comes from

the district court wanting it that way and encouraging it; is that

what you are saying?

Judge SIMANDLE. Yes, it does, and it results in it being a very

attractive job. I doubt that I would have applied for this job in 1983

if it didn't have meaningful responsibilities attached to it.

Senator DECONCINI. And in your course of dealing with other

magistrates throughout the country in other district courts, you

find that there is a big variance between how active and how much

participation they actually take in the management, and particularly the settlement of cases?

Judge SIMANDLE. There is a variance ranging from no participation all the way up to full participation. But I do think, thanks to

the Civil Justice Reform Act, that there may be a trend in many of

the districts of the country, as they implement their plans, to use

magistrates more to enforce the district plans.

Senator DECONCINI. What do you do to try to reach settlement?

What is the mode? Do you have a settlement conference, or do you

just suggest subtly that the two sides ought to sit down before you

proceed to the next motion or whatever it is you are going to hear?

Maybe it is never the same, but can you give us a little background?

Judge SIMANDLE. Every case is different, and every case is the

same. We start at the very initial conference, which is usually

within 2 to 3 months after the case being filed, sitting down with

the attorneys, inviting their clients to attend or to be available by

telephone, and at least touching on the area of settlement.

I listen to the attorneys. If the attorneys say that this is a case

that can be settled if we just get a limited amount of additional information, then that is what I will do. I will carve out a period. We

will get that information, bring them back in for a follow-up settlement conference, and hopefully the case will be done.

In more elaborate cases, it is a continuing process. It would be a

big mistake to approach settlement too soon in some cases. We
34

need more information; there may be important dispositive motions

that have to be decided at the threshold. And I believe that the

mark of a good settling judge is one who is able to listen, one who

refrains from offering his or her views unless they are requested by

the parties and the judge feels informed enough to offer them.

I have worked with the parties in designing some very elaborate

settlement processes. There is one ongoing now that involves over

300 parties in one case, which is a Superfund site case. And with

judicial supervision, even a complicated settlement process can

save the parties a great deal of attorneys' fees, a lot of time, and

give them a result that everybody can live with, or at least, I suppose, a good settlement is a result where everybody is equally unhappy.

Senator DECONCINI. DO you apply the same standard or involvement with a district judge as you would a magistrate on settlement?

Judge SIMANDLE. I would rely on my magistrate to do a lot of the

work that has been done in this area. I would probably tend to be a

little more hands-on in the larger cases, especially as they approach the time of trial. So many of our civil cases, when they do

have to be tried, are consuming 2, 3, 4 weeks of civil jury trial

time, and I would be happy to devote a couple of hours to the final

effort to get it settled. But I would refrain from trying to settle a

non-jury case. I don't believe that it is appropriate for the finder of

fact—that is, the trial judge in a non-jury case—to be involved in

settlement.

Senator DECONCINI. TO be involved in settlement. Thank you.

Senator Thurmond.

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

Judge, we are glad to have you here and congratulate you on

your appointment.

Judge SIMANDLE. Thank you very much. Senator Thurmond.

Senator THURMOND. I think you are well qualified, and I will be

glad to support you.

You have already answered two questions I had in mind, and I

want to ask you this question: The phrase "judicial activism" is

often used to describe the tendency of judges to make decisions on

issues that are not properly within the scope of their authority. For

instance, some Federal judges have taken over hospitals or have

taken over prisons or have taken over school, and their job is to

interpret the law, not execute the law. The legislative bodies make

the law, and the executive branch enforces the law.

And your job, as I construe the Constitution, is to interpret the

law. Is that the way you construe it?

Judge SIMANDLE. Yes, Senator, it is the judge's job to interpret

the law, to follow precedent, and to observe stare decisis.

Senator THURMOND. And if we can get these judges to stay

within their scope of authority, it will save a lot of trouble and misunderstanding among the different branches of Government. So I

just want to point that out to you.

Judge SIMANDLE. Yes, and I agree with you, Senator.

Senator THURMOND. Thank you very much.

That is all, Mr. Chairman.
35

Senator DECONCINI. Thank you, Judge. I have no further questions.

Judge SIMANDLE. Thank you, Mr. Chairman.

Senator DECONCINI. Now we will have Richard Kopf to be U.S.

district judge in the district of Nebraska. Mr. Kopf, would you

please raise your right hand? Do you swear the testimony you are

about to give the committee is the truth, so help you God?

Judge KOPF. I do.

Senator DECONCINI. YOU may make any introductions you care

to make, sir.

TESTIMONY OF RICHARD G. KOPF, OMAHA. NE. TO BE U.S.

DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA

Judge KOPF. Mr. Chairman, here with me this morning is my

wife, Joan Kopf; her sister, June Edwards, and her husband. Bob

Tucker.

Senator DECONCINI. Welcome.

Judge KOPF. I might add that Mr. Tucker and Ms. Edwards are

with NASA, and they had some small part to play in NASA's very

successful recovery effort yesterday. It is a nice day for them as

well.

Senator DECONCINI. Well, that is good. We welcome them and

congratulate them on that effort that many of us watched on television this morning.

Mr. Kopf, you have been a magistrate, I understand, for 5 years.

You have heard the previous witness. Do you operate somewhat in

the same vein? Are you involved in the settlement of these cases?

Judge KOPF. I am. Senator. In the district of Nebraska, we are

fortunate in that our district judges have a history of utilizing the

magistrates to the fullest extent of the statute, and they do.

Senator DECONCINI. And do you feel a district judge should also

be involved in promoting settlements of cases?

Judge KOPF. I do. Once again, a district judge—any trial judge,

as a matter of fact—must be fairly careful about involvement, but

quite oftentimes it has been my experience, inasmuch as I have

had opportunities to try cases, that the ultimate trial judge sometimes can bring the parties to settlement where another mediator,

so to speak, might not be able to.

Senator DECONCINI. Your response to the committee questionnaire reflects that before you became a U.S. magistrate, you engaged in pro bono work on behalf of the disadvantaged. Do you believe the current voluntary system of providing pro bono services

works well enough and provides enough competent, capable lawyers for the problems of those who are indigent and cannot hire a

lawyer?

Judge KOPF. Senator, to be candid with you, I am not sure. I

worked fairly closely with attorney general Bob Spire, who is now

with Senator Kerrey, when Bob was the president of the Nebraska

Bar Association. And Bob believed very strongly in pro bono work,

but also believed that it must be voluntary. It is my sense, limited

to Nebraska, that our lawyers in Nebraska truly are devoted to pro

bono work. Whether that experience could be extrapolated outside

of Nebraska, I am not certain.
36

Senator DECONCINI. DO you believe that perhaps there should be

some mandatory requirements for lawyers to provide pro bono

work?

Judge KOPF. I think as an ethical matter, one is ethically obligated to engage in pro bono work now. In any event, I certainly would

have no personal opposition to mandatory pro bono work.

Senator DECONCINI. YOU would have no opposition?

Judge KOPF. NO, sir, I would not.

Senator DECONCINI. Judge, you have been involved with a

number of, I see—you probably have been involved, and I think

your record shows a number of habeas corpus petitions every year.

As we know, this is a growing problem that the Congress is attempting to resolve and limit, to some extent. The right to file, of

course, is fundamental in our system of justice. There are also concurrent efforts to ensure that defendants in capital cases have competent legal counsel from the initial trial through all subsequent

appeals.

Given your firsthand experience in the Federal court system,

how important do you believe it is for capital defendants to have

competent legal representatives? And do you think the system

should be improved, having seen what you have seen as a magistrate?

Judge KOPF. Senator, I obviously believe that it is absolutely critical that in capital cases, at either the Federal or the State level,

that the defendant be represented by first-class counsel. As you

know, under the Criminal Justice Act, we now appoint two lawyers

in every capital case that is brought in Federal court. I think that

is a system, along with the compensation that is attendant thereto,

is a system that the States might do well to consider.

Senator DECONCINI. In determining that, do you think it is necessary to statutorily point out or require so many trials or so many

cases? Or do you think it is safe to leave it with the judgment of

the court to not only make the appointment, but to make the judgment whether or not the lawyers who are appointed are truly competent?

Judge KOPF. Senator, as a lawyer, I think my answer would have

been different. As a judge in a capital case, I am personally persuaded that there should be some minimum criteria applied.

Senator DECONCINI. Thank you.

Senator Thurmond.

Senator THURMOND. Thank you.

Judge, what, in your opinion, is needed to speed up the disposition of Federal cases? You have been a Federal magistrate, and I

imagine you have some ideas on that.

Judge KOPF. Senator, in our district, I think the thing that we

can do to speed up the disposition of civil cases is to try criminal

cases in an expeditious fashion, thereby giving the trial judges an

opportunity to set firm trial dates for the civil cases. My experience

is that when you have firm trial dates on both the civil and criminal side, cases will move faster.

Senator THURMOND. In order to keep your docket up to date, you

don't mind working a little bit overtime if necessary, do you?

Judge KOPF. NO, Senator, I do not.
37

Senator THURMOND. We all work here about 12 hours a day, and

I imagine that judges wouldn't mind working a little bit overtime

to do that.

Judge KOPF. No, Senator, I would not.

Senator THURMOND. NOW, judicial temperament I think is important. I have seen some judges yell out at witnesses and jurors and

lawyers, and it is just inexcusable, I think. The more power you

have, the more humble you ought to be. Do you agree with that?

Judge KOPF. I do.

Senator THURMOND. Did you hear what I said about judicial activism a few minutes ago?

Judge KOPF. I did.

Senator THURMOND. Under our Constitution, the Congress makes

the law, the executive branch administers and enforces the law,

and the judicial branch interprets the law. Do you agree with that?

Judge KOPF. I do.

Senator THURMOND. Those are all the questions I have, Mr.

Chairman.

Senator DECONCINI. Thank you very much, Mr. Kopf. We have

no further questions.

Judge KOPF. Thank you.

Senator THURMOND. I wish you well on the bench.

Judge KOPF. Thank you.

Senator DECONCINI. The committee will stand in recess subject to

the call of the Chair.

[Whereupon, at 11:25 a.m., the committee adjourned subject to

the call of the Chair.]
38

I. BIOGRAPHICAL INFORMATION (PUBLIC)

1. Pull name

Morris Sheppard Arnold

2. Address: List current place of residence and office

addresses.

115 North 10th

Fort Smith, AR 72902

U. S. District Court

P. 0. Box 1606

Fort Smith, AR 72902

3. Date and place of birth.

October 8, 1941. Texarkana, Texas.

4. Marital status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and business

address(es).

Divorced. Formerly married to Jennelle Soderquist (Arnold).

5. Education: List each college and law school you have

attended, including dates of attendance, degrees received, and

dates degrees were granted.

Yale University, 1959-61.

University of Arkansas, 1962-68. B.S.E.E. 1965; LL.B. 1968.

Harvard Law School, 1968-71. LL.M. 1969; S.J.D. 1971.

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.

FROM/TO NAME OF EMPLOYER ADDRESS TYPE OF WORK

AMD SUPERVISOR

6/66-9/66 KRLD-TV Dallas, TX engineer

(Hittenburg)

5/68-9/68 Arnold & Arnold, Texarkana, AR lawyer

Attorneys

(Richard L. Arnold)
39

9/69-6/70 Harvard Law School

(Derek Bok)

Cambridge, MA teaching

fellow

9/71-7/77 Indiana University

(Doug Boshkoff)

Bloomington,

IN

prof, of law

sumner,

1977

U. of Texas

(Dean Smith)

Austin, TX prof, of law

9/77-1/81 U. of Penn.

(Lou Pollak, James

Freedman,

Martin Meyerson)

Philadelphia,

PA

prof, of

law,

assoc. dean,

vice pres.

6/81-1/84 n. of Ar

(Larry Averill)

Little Rock,

AR

prof,

of law

sumner,

1981

U. of Michigan

(Terry Sandalow)

Ann Arbor,

MI

prof, of

law

sunrner,

1982

u. of Texas

(John Sutton)

Austin, TX prof, of

law

1/84-1/85 U. of Penn.

(Robert Kundheim)

Philadelphia,

PA

prof, of

law

1/85-7/85 Stanford Law School

(John Hart Ely)

Stanford,

CA

vis. prof,

of law

7/85-12/85 Indiana 0.

(Ken Gros Louis)

Bloomlngton,

IN

dean of

law school

12/85-

present

U.S. District Judge Ft. Smith,

AR

federal

judge

7. MUitayy 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 t List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Awarded Knox Fellowship by Harvard University in 1970 to study

at the University of London. Hon. M.A., University of

Pennsylvania, 1978. Hon. J.D., University of Pennsylvania,

1986. Honorary Fellow, American Society for Legal History.

Member of: Tau Beta Pi, Eta Kappa Nu, Omicron Delta Kappa.

Honorary Member of Order of the Coif.

-2-
40

9. Bar Associationsi 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.

Arkansas Bar Association

Pulaski County Bar Association (Arkansas)

Tri-County Bar Association (Indiana)

President, American Society for Legal History, 1981-85

Federal-State Relations Committee, Judicial Conference of

the United States

State-Federal Judicial Council

10. Other Memberships i List all organizations to which you belong

that are active in lobbying before public bodies. Please list

all other organizations to which you belong.

I belong to no lobbying organizations. I belong to the Town

Club of Ft. Smith, the Country Club of Little Rock, Sons of

the American Revolution, the Noon Civics Club of Ft. Smith,

the Art Museum of Ft. Smith, and the Selden Society.

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.

Admitted to the bar of Arkansas, 1968. Admitted to the

federal courts for the Eastern and Western Districts of

Arkansas and the Northern District of Texas, 1968. Admitted

to the bar of Pennsylvania, 1984.

12. Published Writings! List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily available

to you, please supply them.

See attached.

13. Health! What is the present state of your health? List the

date of your last physical examination.

Excellent. Last examined in 1991.

-3-
41

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.

Special Chief Justice, Supreme Court of Arkansas, 1982.

Appointed. This is the highest court of the State of

Arkansas. It hears and determines appeals in all natters.

I was appointed to sit on one case.

Special Master, Pulaski County Chancery Court, 1983.

Appointed. This is a trial court with a general equitable

jurisdiction. It also has jurisdiction over probate matters.

United States District Judge, Western District of Arkansas,

1985-1991. Appointed.

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.

See attached.

16. Public Office: State (chronologically) any public offices you

have held, other than judicial offices, including the terms

of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

State Chairman, Republican Party of Arkansas, 1983 (Elected

by Republican State Committee].

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.

-4-
42

2. whether you practiced alone, and If so, the addresses

and the dates.

Sole practitioner. Little Rock, AR 1981-84.

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies with which

you have been connected, the nature of your connection

with each;

Associate, Arnold t Arnold, Texarkana, AR, 1968; of

counsel 1974-1985. Tom Arnold, P. 0. Box 1858,

Texarkana, AR, 75504, (501) 773-8491.

General Counsel, Republican Party of Arkansas, 1981-

82. Asa Hutchinson, 505 First National Bank Bldg.,

Fort Smith, AR, 72901, (501) 782-4028.

Member of Volunteers of Central Arkansas Legal

Services, 1983-84.

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?

1968: Full-time practice of law.

1971-81: Only an occasional case. Has engaged in

teaching.

1981-84: More active practice as General Counsel of

the Republican Party and sole practitioner. Also did

extensive law-oriented work as Vice President of the

University of Pennsylvania.

2. Describe your typical former clients, and mention the

areas, if any, in which you specialized.

Hy clients were often lawyers, but not by any means

always. Very frequently I specialized in mineral or

land cases. I also specialized in political cases -

- election contests, etc. — when I was General

Counsel of the Republican Party.

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.

Occasionally.

-5-
43

2. What percentage of these appearances was int

(a) federal courts. 10%

(b) state courts of record. 90%

(c) other courts.

3. What percentage of your litigation was:

(a) civil. 90%

(b) criminal. 10%

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.

One. Associate Counsel.

5. What percentage of these trials wasi

(a) Jury.

(b) Hon-jury. 100%

16. Litioation; Describe ten of the most significant litigated

matters which you personally handled and give the citations,

if the cases were reported, and the docket number and date if

reported. 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 dates representation; (b) the name of

the court and the name of the judge or judges before whom the

case was litigated; and c) the individual name, address and

telephone numbers of co-counsel and of principal counsel for

each of the other parties.

(1) Wolford v. Midwest Stone Co.. 1981. Independence County,

AR, Circuit Court, The Hon. Keith Rutledge. Judge;

Independence County, AR, Chancery Court, The Hon. Carl

McSpadden, Judge. Co-counsel: William Wilson, Esq.,

P. O. Box 71, Little Rock, AR 72203. (501) 375-6453.

Opposing counsel: John Norman Harkey, Esq., P. 0. Box

2535, Batesville, AR 72501. (501) 793-6818. I

represented the plaintiff-landlord in an attempt to

exercise a right of entry in a lease for a large marble

quarry. The case was settled.

(2) Fawcett fc Co. v. IP Inc. & William N. Carter. 1982-83.

Pulaski County, AR, Chancery Court, the Hon. Lee Munson,

Judge. Opposing counsel: Friday, Eldredge & Clark,

First National Bank Bldg., Little Rock, AR 72201.

-6-
44

(501) 376-2011. 1 represented one of the defendants in

an Interpleader case brought by a stakeholder In a sale

of an office building. The case was settled.

(3) Huchinason v. Liberty Mutual Ins. Co.. 1983. Pulaski

County, AR., Circuit Court, The Hon. Perry Hhitmore,

Judge. Co-counsel: Charles Hicks, Esq., Suite 1105,

Union National Bank Bldg., Little Rock, AR 72201.

(501) 371-0068. Opposing counsel: Winslow Drumnond,

Esq., 711 W. 3d, Little Rock, AR 72201. (501) 376-3021.

I represented the plaintiff in an effort to recover a

penalty for failing to settle an insurance claim

promptly. Judgment was entered against us.

(4) Georoe Smith v. Bill Clinton. Governor of the State of

Arkansas• 1983. United States District Court for the

Western District of Arkansas, The Hon. G. Thomas Eisele,

Judge. Co-counsel: Chuck Banks, Esq., U.S. Attorney,

P. 0. Box 1229, Little Rock, AR. 72203 (501) 378-5342.

Opposing counsel: Hike Gaines, Esq., Governor's Office,

Capitol Bldg., Little Rock, AR 72201. (501) 371-2345.

I supervised the effort by the plaintiff in this S 1983

action in federal court for deprivation of civil rights,

specifically being fired because he was a Republican.'

The case was settled.

(5) Eisele et al. v. the City of Little Rock. et al..

1983-85. Pulaski County Circuit Court, the Hon. Perry

Whitmore, Judge. Co-counsel, Doug 0. Smith, Esq., P. 0.

Box 1626, Ft. Smith, AR 72902. (501) 782-6041.

Opposing counsel: Jim Guy Tucker, Esq., 1000 Savers

Federal Bldg., Little Rock, AR 72201. (501) 688-8800;

Hugh Brown, Esq., Esq., Assistant City Attorney, Room

104, City Hall, Markham & Broadway, Little Rock, AR

72201. (501) 371-4527. I represented the plaintiffs in

this S 1983 action in state court. He alleged that the

defendants conspired with the City of Little Rock to

deprive us of our property without due process.

Specifically, we alleged that they filled their land and

changed the course of a creek, thereby increasing the

cost of developing our land. The case was settled.

(6) State of Arkansas v. Kenneth Rav Blanton. 1969-71.

Supreme Court of Arkansas and United States Supreme

Court. Represented convicted murderer on appeal to

Arkansas Supreme Court. The case is reported in 249 Ark.

181 (1970). Also represented same defendant in the

Supreme Court of the United States. I wrote the brief

in support of the petition for Writ of Certiorari. Cert,

was denied. See 401 U.S. 1003 (1971). The case raised

several interesting constitutional issues, including the

-7-
right of indigent defendants to Investigative and other

services, and the standing of a white defendant to raise

an objection to the systematic exclusion of black people

from his venire. Opposing counsel! Jo* Purcell,

deceased.

(7) Binalnoham v. Birminoheun. 1968. Miller County, AR,

Chancery Court, The Hon. Royce Nelsenberger, Chancellor.

Opposing counsel! Sherman A. Kusln, 406 Texas Blvd.,

Texarkana, TX 7S501. (214) 794-2561. Child custody

matter which challenged the mother's presumptive right

to custody at a time when that right was virtually set

in concrete.

(B) Mitchell Young, et al. v. City of Texarkana. Texas.

1968. District Court of Bowie County, TX, The Bon.

Morris Sheppard Rolston, Judge. Opposing counsel: Leon

F. Pesek, Sr., 420 Main, Texarkana, TX 75501. (214)

792-8891. An interesting election connected with a Model

Cities project. Judgment was rendered against my client

after a trial to the judge.

(9) State of Arkansas v. Thomas Powell. 1968. Circuit Court

of Miller County, AR, The Hon. William H. Arnold, III,

Judge. Opposing counsel: William F. Denman, Jr.,

Prosecuting Attorney (present whereabouts unknown). I

defended a little league coach accused of sexually

molesting several of his players. He pleaded guilty to

a reduced charge.

(10) I participated in a number of other trials in 1968 in

Arkansas and Texas state courts. They included personal

injury, criminal, and domestic relations matters.

Unfortunately, these files have been destroyed and I

cannot recall the particulars.

19. Leoal Activities! Describe the most significant legal

activities you have pursued. Including significant litigation

which did not progress to trial or legal matters that did not

Involve litigation. Describe the nature of your participation

in this question, please omit any information protected by the

attorney-client privilege (unless the privilege has been

waived.)

I taught law for fifteen years at numerous law schools

including the University of Pennsylvania, Stanford, Indiana,

and the University of Arkansas at Little Rock.

-8-
46

BIBLIOGRAPHY

NORRIS S. ARNOLD

PUBLICATIONS: BOOKS

OLD NATURA BREVIUM AND OLD TENURES, published

by Professional Books, Ltd., London, England (1974)

THE TEAR BOOK OF 2 RICHARD II (1378-79) (Ames

Foundation, Harvard Law School: 1975)

ON THE LANS AND CUSTOMS OF ENGLAND! ESSAYS IN

HONOR OF SAMUEL E. THORNE (ed. with Green, Scully,

and White) (1981)

SELECT CASES OF TRESPASS FROM THE KING'S COURTS,

1307-1399 (Selden Society, Volume 100, 1985)

UNEQUAL LAWS UNTO A SAVAGE RACE: EUROPEAN LEGAL

TRADITIONS IN ARKANSAS, 1686-1836 (1985)

ARKANSAS COLONIALS (with Core) (1986)

SELECT CASES OF TRESPASS FROM THE KING'S COURTS,

1307-1399 (Selden Society, Volume 103, 1987)

COLONIAL ARKANSAS: THE UNDISCOVERED LAND

(Forthcoming in 1991).

Editor, Studies in Legal History, published by

University of North Carolina Press in association

with the American Society for Legal History,

1975-1980. Twelve volumes published.

ARTICLES AMD REVIEW ARTICLES

Transmissibilitv of Contingent Interests. 20 ARK.

L. REV. 190 (1966) (Student Note)

The Doctrine of Worthier Title in Arkansas. 21 ARK.

L. REV. 394 (1967) (Student Comment)

The Origin of Jeofnil. 87 LAW QUARTERLY REVIEW 166

(1971) (with Dr. J. H. Baker of Cambridge University)

Law and Fact in the Medieval Jury Trial: Out of

Sight. Out of Mind. 18 AM. J. LEGAL HIST. 267 (1974)

Ex Nihilo Nihil. 83 YALE LAW JOURNAL 895 (1974)
47

ARTICLES AND REVIEW ARTICLES (Cont'd)

Transcending Debt and Covenant. 85 YALE LAW JOURNAL

990 (1976)

Pourteenth-Centurv Promises. 35 CAMBRIDGE LAW

JOURNAL 321 (1976)

Book Review of Hoxwltz, THE TRANSFORMATION OF

AMERICAN LAW, 1780-1860, 126 0. PA. L. REV. 241

(1977)

Statutes as Judgments; The Natural Law Theory

of Parllainentarv Activity. 126 U. PA L. REV. 329

(1977)

Accident and Mistake In the Fourteenth-Century Law

Of Torts. 128 U. PA. L. REV. 361 (1979)

A Historical Inquiry into the Right to Trial by Jury

in Coinolex Civil Litigation. 128 U. PA. L. REV. 829

(1980)

A Hodest Replication to a Lengthy Discourse. 128 0.

?A. L. REV. 986 (1980)

An Early Opinion of an Arkansas Trial Court.

5 0. ARK. LITTLE ROCK L. J. 397 (1982)

The Relocation of Arkansas Post to Ecores Rouges in

1799. 42 ARK. HIST. Q. 317 (1983)

The Arkansas Colonial Legal System. 1680-1776,

0. ARK. LITTLE ROCK L. J. 391 (1984)

Georoe I.. Haskins. 134 U. OF PA. L. REV. 1 (1985)

Towards an Ideology of the Early English Law of Obligations.

5 LAW AND HIST. REV. 505 (1987).

Doing More than Remembering the Ninth Amendment. 64 CHICAGOKOIT L. REV. 265 (1988).

A Judoe'B view of Legal History. 4 BENCHMARK 265 (1990).

The Mvth of John Law's German Colony on the Arkansas.

U. HIST. (1989).

-2-
48

BOOK REVIEWS

Donald w. Sutherland, THE ASSIZE OF NOVEL DISSEISIN,

18 AM. J. LEGAL HISTORY 364 (1974)

Samuel E. Thome's translation of Bracton,

DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE, 91 HARVARD

L. REV. 517 (1977)

Leonard W. Levy, A HISTORY OF THE OFFENSE OF

BLASPHEMY, 80 MICH. L. REV. 772 (1982)

Robert C. Palmer, THE COUNTY COURTS OF MEDIEVAL

ENGLAND, 1150-1350, HARV. L. REV. (1982)

Thomas A. Green, VERDICT ACCORDING TO CONSCIENCE,

38 STANF. L. REV. 265 (1985)

SPEECHES

Remarks at Federalist Society Conference at Stanford Law

School, 13 Sept., 1986.

"A Common Lawyer Looks at Administrative Law,* Heritage

Foundation, Washington, D.C, 9 December, 1986.

"The Civil Jury in Historical Perspective," ATLA Conference

on the Jury at Harvard Law School, summer, 1986 (?)

Remarks at Georgia Legal History Foundation meeting, Atlanta,

GA., 6 Jan., 1987.

Synopsis of the History of Arkansas, delivered to a bar group

at Little Rock in 1987.

Birkett Williams Lecture, Ouachita Baptist University,

Arkadelphia, AR., September 17, 1987.

'English Inns of Court,* delivered to the William Overton

American Inn of Court dinner in Little Rock in 1990.
49

MOST SIGNIFICANT OPINIONS

Modern American Life Insurance Co. v. Commissioner of Internal

Revenue Service, 830 F.2d 110 (8th Cir. 1987)

— quoted with approval. Colonial American Life Insurance

Co. v. Commissioner of Internal Revenue, 491 D.S. 244,

259, 109 S. Ct. 2408, 2417, 105 L. Ed. 2d 199 (1989)

Robertson Oil Company, Inc. v. Phillips Petroleum Co.,

No. 86-2120 (W.D. Ark. Nov. 5, 1991) (attached)

Lancaster v. Merchants National Bank, 752 F. Supp. 886 (W.D. Ark.

1990)

Laidlaw Waste Systems, Inc. v. City of Fort Smith, 742 F. Supp.

540 (W.D. Ark. 1990) , .

Miller v. Tony and Susan Alamo Foundation, 748 F. Supp. 695

(W.D. Ark. 1990)

W. J. (Jack) Jones Insurance Trust v. City of Fort Smith,

731 F. Supp. 912 (W.D. Ark. 1990)

Doe v. Human, 725 F. Supp. 1503 (W.D. Ark. 1989);

725 P. Supp. 1499 (W.D. Ark. 1989); aff'd without opinion,

923 P.2d 857 (8th Cir. 1990), cert, denied. Ill S. Ct. 1315,

113 L. Ed. 2d 24S (1991)

Giroir v. MBank Dallas, 676 F. Supp. 915 (E.D. Ark. 1987)

— cited in San Carlos Irrigation and Drainage District

v. Onited States. 877 F.2d 957, 959 (Fed. Cir. 1989)

Murray v. Whit Tatum Motors, Inc., 673 F. Supp. 981 (W.D. Ark.

1987)

Rini v. Oaklawn Jockey Club, 662 F. Supp. 569 (W.D. Ark. 1987),

rev•d, 861 F.2d 502 (8th Cir. 1988)
50

REVERSALS; REMANDS OR AFFIRMANCES

WITH CRITICISM

United States v. Williams, Crim. No. 89-40011-01/90-40004-01

(W.D. Ark. Aug. 8, 1990, Oct. 5, 1990), conviction aff'd,

sentence vacated and remanded, 935 F.2d 1531 (8th Cir. 1991)

*

Onited States v. Burks, Crim. No. 89-40008-01 (W.D. Ark. Feb. 14,

1990), conviction aff'd, sentence vacated and remanded,

934 F.2d 148 (8th Cir. 1991)

Robertson Oil Company, Inc. v. Phillips Petroleum Co., No. 86-2120

(W.D. Ark. Jam. 23, 1990), aff'd in part, remanded in part,

930 F.2d 1342 (8th Cir. 1991)

Lewis v. Windsor Door Co., No. 89-2112 (W.D. Ark. Feb. 7, 1990),

rev'd, 926 F.2d 729 (8th Cir. 1991)

United States v. Drunmond, Crim. No. 82-20016-01/Civil No. 88-2107

(W.D. Ark. Mar. 6, 1989), rev'd, 903 F.2d 1171 (8th Cir. 1990)

(continued)
51

REVERSALS; REMANDS OR AFFIRMANCES

WITH CRITICISM (continued)

Henderson v. Worthy. Mo. 89-4127 (W.D. Ark. June 4, 1990), remanded

in, unpublished opinion. No. 90-2034 {8th Cix. Jan. 4, 1991)

(attached)

Lavton v. United States. No. 89-4062 (W.D. Ark. Oct. 23, 1989);

Richardson v. Dnited States. No. 89-4064 (W.D. Ark. Oct. 30,

1989); rev'd. 919 F.2d 1333 (8th Cir. 1990)

United States v. Oliver. Crim. No. 89-20005-02 (W.D. Ark. Oct. 11,

1989), P9nYj,cti,on aff'd, sentence vacated and remanded. 908

F.2d 260 (8th Cir. 1990)

Chaney v. Falling Creek MBf.al Products,. Ho. 88-2024 (W.D. Ark.

Jan. 13, 1989), rev'df 906 F.2d 1304 (8th Cir. 1990) ••

Jackson v. Rheein Manufacturing Co.. No. 87-2117 (W.D. Ark.

Nov. 1, 1988; Dec. 8, 1988; Jan. 6, 1989), rev'd. 904 F.2d 15

(8th Cir. i990)

Voolsev v. Nationwide Insurance Co.. 697 F. Supp. 1053 (W.D. Ark.

1988), aff'd in part, rev'd in part. 884 F.2d 381 (8th Cir.

1989)

(continued)
52

REVERSALS; REMANDS OR AFFIRMANCES

WITH CRITICISM (continued)

RuijiseU v. ypo^. No. 86-4058 (W.D. Ark. April 22, 1988), rev'd.

879 F.2d 417 (8th Cir. 1989)

Shadle v. Superwood Corp.. No. 86-606S (W.D. Ark. Nov. 16, 1987),

> rev'd. 858 F.2d 437 (8th Cir. 1988)

Robertson Oil Company. Inc. v. Phillips Petroleum Co.• No. 86-2120

(W.D. Ark. Oct. 22, 1987), aff d in part, rev'd in part. 871

F.2d 1368 (8th Cir. 1989)

Hollomon v. Secretary of Health and Human Services.

No. 86-6074 (W.D. Ark. Aug. 20, 1987), rev'd in unpublished

opinion. No. 87-2182 (8th Cir. 1988) (per curiam) (attached)

Rini v. Oaklown Jockey Club. 662 F. Supp. 569 (W.D. Ark. 1987),

rev'd. 861 F.2d 502 (8th Cir. 1988)

pn^ted States v. Polvchron. Crim. No. 86-60016-01 (W.D. Ark.

Fob. 19, 1987), rev'd. 841 F.2d 833 (8th Cir. 1988), cert.

denied, 488 U.S. 851 (1988)

Dole v. Tony and Susan Alamo Foundation. No. 77-2183 (W.D. Ark.

Nov. 26, 1986), aff'd in part, rev'd in part. 842 F.2d 1018

{8th Cir. 1988)
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangement, 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.

•one.

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 keep a list of my stocks, and my clerks and I make sure that

I do not get involved in any cases in which I have a financial

interest. This is the only likely conflict of interest that

I can think of, though I would no doubt recuse in any case

involving the Republican Party of Arkansas since I am a former

chairman.

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 might engage in law teaching to a limited extent.

4. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year. Including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more. (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

See attached.

5. Please complete the attached financial net worth statement in

detail. (Add schedules as called for).

See attached.

C Have you ever held a position or played a role in a political

campaign? If so, please identify the particulars of the
title ami Tsazezn* -J— ••

i •Hjj «•• -n«" zxwcm -yi* i£ LSiii

im. kia

la

t ia UM.

-10-
55

FINANCIAL DISCLOSURE REPORT

*mpatt *i*itm4 by Uw ltkl«a

•tofon Act of mi, r«k. fa m.

loi-in, *,'tm*Mt M. tMf

CS U.i.C.A. App. •, |iltl-lU|

•. Cltat, •IMl. Inlil.ll

Arnold, Morris S. Sbh U.S. Circuit Court

of Appeals Kov 12, 1991

I*itl«la lit ]-««•• tM •••lor •(«(*•; KaeUt C»ll- Ot ^Mt-UMft)

8th O.S. Circuit Court of

Appeals Judge-active

ii.it ui «.>*••i m__ riM

January 1, 1991

thru

October 31. 199!

• •r OtCtM M4ra*a

P. O. Box 1606, Ft. Smith, Arkansas 72902

chnklnf Die NONE boi tor t.fh .fctjc* wlitrt yooi(i.« no trr"^'^*

I. POSITIONS. (Rcpotimj Indlvklual only; ice pp. 7-8 of tnlnicllons.)

rgsmon NAME OF PRqAMizATiQN^nmf • NONE (•<. r.port.bl« pa*iclDtiB)

Trustee Thomas S. Arnold Trust under the vill Of

Hilllan H. Arnold

Dean's Council,George Mason Univ.,Arlington, VA

H AGREEMENTS. (Reponlng Individual only, see p. 8-9 of InstmcUou.)

RAIT: DTE PARTIES AND TERMS HI NONR c»o T*ro.i.bi, •vr*MMt«|

ID. NON-INVESTMENT INCOME. (Reponlnt ImlMdual •«! spouc; KC pp. 9-12 of Immicllom.)

PATC SOURCE AND TYFE GROSS INCOME

(Hononrb OQIJ) (yvvrs, not spouse's)

• NONE (Ho r.rarL.bl.

7/20/91

Teaching at Lav and Economics Center

at Hanover, Nev Hawpghira S 9.000

5

$

$_:

$
56

HNANOAL DISCLOSURE REfOKT (a

Morns S. Arnold Mr 12. 1991

fV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment

(IfKtMrfcs tho* to ifouM mm4 4tpmdm chOdrai: me the Mmfhellcab '(5)' ud *(PC)* I* U«ealc f^art§M«

lllMtm <•<• and tlfU mtJ.n) kj •pooit «o2 fepodeiil tluWrtn. rapcttlnj.. So yra3-LJ of I

P

»OU»CK

E lam Mak •>»*rt.>;. >II^M

v and Econo»lcs Center

H«nover, Nex Hanpshire

masatniflt!

Travel to and froa Hanover,

' July 7 thru July 20, 1991

' Lav ant Econonics Ce nter

juir 7 thro July 20, 1991

NCAA Meetln'

• Mar 29 thro Jon* 1, 1991

KK.

and lodging for 5 daya-value cod* "J*

Airlin* fare-Hanover, NH-valu* cod* "J"

Travel to and froa Atlanta, GA-value cod* "J'

V. OTHER GIFTS, (lod.*. •

Indlolc olhtr tlfU n

SOURCE s

dtnt cfaDdrcn; OM Ibe

• 1 duidrai.

DBicmmoN

illKUclj •(S)' .OJ •(DC)a Co

. See WLIS-U of Winrna—J

NONE (PC «««» iMiirti* lift.)

VI. UABILITIES (Inrludc* ilioie of •pmuc •nd fcpmdenl tlillJrcn; Indicate where appDcable, pcnoi

fur MnMlltr br uslne the pnrrnthede*! *(S)* for Kparalc UabUIlT of •pousc, "(Jj* for Joliil UabUllr of rrmurthm

IndlTldual and iponsc, and •(DC)' tor Il.blllty of adependent cblld. ^ce pp.16-18 r^*-1I orliutructlons.}

Q

CRKDITOR

NONE i»o rM"if»l« ii.bimiM)

DESCRimON VAUJK COUlf

• > tlM.Ml l» ISM.MO 0 • 1IM.M1 W J1,*00,»C« ' 'f - MDO tMa ll,
57

nNANCIAL DISCLOSURE REPORT (conl'd)

Kama at Facaon Wputtipg

Morris S. Arnold Nov 12, 1991

VII. INVESTMENTS and TRUSTS - income, value, transactions. (iDdude. a.<»e or .pnuc

•nd dependent children; ice pp. 18-27 oT Insfracilanj.)

1

'^|iacl*dlttg a^si:

trwmt

fi^-;: mmmmKm] - ^Z

,F.t»sja,;

9

;v

ma..- c

r •(. .no o( ^ ^^IllffJIIIII^^I

»l')f (1). -> :' . Ill-;

m

agsli

;Rjafe-

>AM 1^ rKJt .x«»pl. (n« dUcicxuro 1

.•ID; i'1

' Siiii'r

NONE f r.potl.bl.

' Ft National Bank of

Ff <:»(hh A Int j T

1

Stephens, Znc

—^Cash Account A Int j T

' Southwestern Electric

Pover A Div j T

Shell Western A Roy J W

Keystone Garrett A Roy •j W

Southland Champion C Roy j H

Union Exploration A Roy j W

Exxon Corporation A Roy j M

• Account Receivable

Susan Mann A Int j T

'" Acct Rec, Lilly Llbr

Bloominqton, IN A A/R K T Sale 3/22 K E

Lilly Librar

Bloominqton,

" Stocks Held bv

Stephens, Inc. C Div

14 3,000 sh Artagraphs

Reproductions J T

" 800 sh Dillard's

Deot Store L T

300 sh Entergy Corp J T

' 123 sh IBM J T

" 200 sh Minn K T

" 750 sh Norfolk

sonthprn K T

M 252 sh Riggs

Natl Corp J T

^JJ- Cjl,.*! « Ml »-I|1.001 to .M.WH.. r-llO.OOl to IIOCWO O-SIOO.MI to Sl.000.COO p-i,;, ih.n Jl.OOO.W

^SpjjlfCllBll.-J.jlJO.OOl to IMO.KW J-l!l>0,001 to SI.OOO.OCO F-»or. «!..> 11.005.000 •

.iT^S^i.""" ?-W""i i-to.l |.«1 ..W. ioi, a.l.;..JL.„l"''•

,

" . f^.iflwk.i ,..,_.. (too CM. nj P-IOok *«!«• •- V-OtMr ..:...;,, "^TtlttM r^tt?i

gVlS'fti.11 • .n't-^M*' 'rMT
58

FINANCIAL DISCLOSURE REPORT (cont'd)

Morris S. Arnold

Data ot Kaear

Hov 12,n199l|

VII. INVESTMENTS and TRUSTS - income, value, transactions, (indmte thoic or

and dependent children; sec pp. 18-27 or losirnctlons.)

(InclttUnv trwt SBb). <• "

lr.,)lc.t«, -h«i« •pplicibl*; o-r,*r of lb* ••••I bv U«1HH tmm f»i«ni' •lie* 1

: NM« -tX):- ait*'•r"*.*""" '. a»aap\ Iro« prior «laelMar». • ^

VlKl3"':

'K«o»c;ii,i' V at.ood.ot > ; TraaaSotiofii 0ijii»,-iii«rUSfl ^iMo*

(k-tl)

t5) . in

valiM. talaa

• to-wi

HSBS

. ... Jt pot^wwa^t .ttoo dlacJoaw* j

id

(Km

NONE tRe t-ponabla

tncoaa, aaaata, or

•IBMMHH]

1,400 sh TLM Corp j T

' 167 sh Texas Utilitie 1 .j T

3

600 sh Tyson J T

Stock Div 4/16 j

1,600 sh Halmart L T

>

Tax Exemot Bonds

' Held by Stephens, Inc D Int

5,000 Atlanta, GA J T

• 50,000 Benton, AR School Dist K T Bot 5/7

" 5,000 Florida St J T

ii !>,080 fiSnalee County

Florida J T

" 2,000 Nev York City J T

l> 5,000 Oakland City J T

" 20,000 Osceola AR Ele Hater/Sewer - K T Bot 6/12

11 5,000 Pennsylvania St

npn1 Ohliaatlon J T

» 5,000 Pennaylvania St J T

" 10,000 SE Pennsylvani 1

J T

Little Rock Campus K T Bot 3/2!

" 5,000 Washington Sub Snnihahinn District J T

rKT,^!!'"1iftBHWa* CiKiSiK.HKtr.. ni^iSI'^ilWr. C^^-A^rrS^-

l»» CI. Cll OJf- P-HIO.OOI <" 1SM.0OO ff-1 M.II01 to Il.OOOjtM »-»or. U>in H .'KM. 0O0 ••• • -— --- -

HnSrStlSrtoWil rlrotilill tUl'lri-l Jlil. loljl J-l.:..Sonl ,y .... f-faaUH.rk.1 ..
59

FINANCIAL DISCLOSURE REPORT (conl'd)

—1 at raiaon MfoCtlaf

Morris S. Arnold Nov 12, 1991

VII. INVESTMEtsTTS and TRUSTS - income, value, transactions, (indudcs those or IPOUK

•nd dcpcndcnl cfandrcn; MC pp. 18-27 of InsfnicUons.)

ifaiMt^ AiiriiiMLiefikKfvdmMt or111

i^^BK

'Kir

ti) <*^.Vgt.*'.>'^.«*l^>»' '""* lU»cJo#M«« ., ., . 1 Bi

NONE f.o r-po^.bl.

iMOW, «•••!•, or

1 Stephens, Inc Individ

RPhirement Acct A IRA K T

1 Teachers Ins £> Annuit

E Ret/ N T

* Prudential Securities

Futures Account A F

8^ J T Bot 1/12

1 Prudential Securities Securities Account B Xnt K T Bot 1/12

'

•

10

il

13

M

ii

u

11

"

1

i Lii'lWli eoaM.v- a.ti.ooo ft ttA J ] - .••i-ji.Mi ii Ji.'^r/^''. c;*i;Wl,-tt';

:JriW.t?:*'^;r>jJ-/

iMi U'lif.oio " "

j i.i- CoU; 3.jis,o« « I,,; T. i-jirMf ti lio.Jfi , i.hfl.Afli u ilifi.Mi (.fi.jiM,6ii il iasilwi

nu— H.tb*J cod-, UPPMIMI ,T T Leili'I^i •SUu i^r; . -« f-CwiAWUl ,,'-^;. - 1 rta* cw. cai v-taM iktai • V-OUMt

. 'J r.-V.1

., -"'-"^? ••>:>:i. S.^i^r^.ii-.lf*.,!

60-251 O - 93
FINANCIAL DISCLOSURE REPORT (enM)

••— or raisoa —frtit

Morris S. Arnold Hov 12, 1991

VIII. ADDmONAL INFORMATION or EXPLANATIONS. (i.dk.u p«t or Rtport)

Part VII Sale off books to Lilly Library. Bloomtngton, IN ,

vas completed on March 22, 1991. .

IX. CERTIFICATION.

In compliance wllb the provUloas of 28 U.S.C 5 455 and of Advisory Opinion No. 57 of the Advisory Commfitcc or

Judicial Activities, ind to the best or my knowledge at the lime after reasonable Inquiry, I did not perform any adjodkslorj

Cunctkin In any Illlgailon during the period covered by this report In which I, my spouse, or my minor or dependent chOdrca

had a financla! Intercsl, as defined In Canon 3C(3)(c), In the onlcome of such liUsatkm.

I certify thai all Information {Ivcn above (Including Information pertaining to my spouse and minor or dcpesdcnl ekIMrea,

If any) Is accurate, true, and complete to the best of my knowledge and belief, and that any Information not reported nt

withheld because it met applicable statuioiy provisions pcrmllllag non-dlsdosnrc

I further certify that earned Income from outside employment and honoraria and the acceptance of sifts whicli have beca

rrpnrled rrpnried arc In opiftpllance oniipllance with tMbttrovlsIons tMbprovlsIons of 5 1U.S.CA. app. 7, 5 501 ct. icq.. 5 U.S.C | 7353 and Judicial Confcrcna ::JIZDi Signilure V^J. rz, mqi

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY PALSIFIES OR FAILS TO FILE THIS REPORT

MAY DE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S OS.CA. APP. 6, I 104, AND 18 U.S.C i I0D1.)

HUNO iNSTRUCnO^J

^tourinii l^i i«»Si|feS
61

NET WORTH ^ _ . ., ,

Provide a complete, current firanctil net worth sUtemcnt which ilemizu In dcUl) all aueti (including bank

accounts, rul estate. MCurlUes, trusts, investments, and other financial hotdings) all liabilities (including debts,

mortgaces, loans, and other financial cbli|ilioiu).o( yourself, your spouse, and other Immadlata members of

your household.

ASSETS.

CMA on hand Md 1* tanhi

US. C^wnmMH Motrttto—Add

IWvd MconOn—MM KhcduU

UnOftsd McudUe^—edd Khedult

AcODWfltB Wtd r»ot*i r»c*rv»6U:

DM Inm raUtiw and trfMds

Du« hDmadMn

Doubtful

Rtsl •mt« ••mid add tchsdut*

Kaal esUU mot*i t" ncatvaU*

AutM and oUt«r paneiuf pnsp^ny

Cafth vilu*—Ufa Iniunnc*

OUMr awt* IttfwUc

Teacher Retirement ^und

Commodity contracts

CONTIHCCNT LMSIUTICS

kikar or futnntor

Lacsl CUimi

ProvUJon tor r«d«nl Ineame Tax

Othar apvcial daM

:mo| nn| l*«aa paraMa la 6anl

Not** payaMa ta baitl

MolM payaWa la raUOvw

Ketaa aay^la to olhara

AocDunti and Wtta due

Unpaid incoo* tax

HOC 00

ino QQ

Raal aatat* Txwtiirn p*ybi*—add

•chadirta

ChatUl mortficn and othar Barn

OUiwdaMi—HanOxa:

CENCRAL IMFORMATION

An any aaaatt pladtatf (Add

«*« NO.

An ypu dafandanl In any awtti or

ta^ai acttoniy p]01

Hava you avw liUn banwvptcy? fJo

ooc TTC

SJTl^
62

MORRIS S. ARNOLD

SCHEDULE OF STOCKS ON HAND

OCTOBER 1, 1991

HO. OF DESCRIPTION VALUE

SHARES

3,000 Artagraph Reproductions $2,157.00

5,000 Atlanta GA 5.5% 12/1/99 4,957.35

50,000 Benton School District Bonds 47,227.50

800 Dillards Class A 105,000.00

300 Entergy 7,725.00

5,000 Florida St. Bd Ed 5.5% 1/1/93 5,034.15

123 IBM 12,576.75

5,000 Manatee Cty Fla 5.75% 9/1/06 4,745.85

200 Minn Mining & Mfg 19,025.00

2,000 NT City Hsng Auth 2.8% 9/1/94 1,841.22

700 Norfolk Southern 40,405.00

5,000 Oakland City MoxLey DR 5.5% 4,517.30

20,000 Osceola Electric Water Bonds 20,114.00

5,000 Fenn State G 0 6.4% 3/1/97 5,075.00

5,000 Penn State G 0 5.5% 10/15/99 4,687.10

252 Riggs National Corp 1,543.50

10,000 S E Pa Tran Auth 5.125% 9/1/02 7,975.00

1,400 Telemation 251.80

167 Texas Utilities 6,408.02

600 Tyson Foods 11,850.00

40,000 Univ. of Ark. Rev. 7% 8/01/10 40,277.80

1,600 Walmart 76,400.00

5,000 Wash Sub San Dis 5.25% 4/1/07 4,412.60
63

HO. OF

SHARES

pEgCRIPTION

100 Dillards Class A

100 J.B. Hunt Svsc Inc.

337 TCBY Enterprises Inc

150 Tyson

TOTAL

VALOE

13,125.00

2,325.00

2,232.62

5,925.00

$457,814.56
64

MORRIS S. ARNOLD

Schedule of Real Estate

One-sixth undivided interest in farm in Morris County, Texas. Coowned with brother and two aunts - $30,000.00.

Various royalty interests paid by Exxon, Keystone Garrett, Shell

Western, Southland Champion, and Dnion Exploration - $15,000.00
65

MORRIS S. ARNOLD

Schedule of U.S. Government Securities

United States Treasury Bills - $25,000.00
66

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 dlsadvantaged.* Describe what you have done to

fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

I was a member of Volunteers of Central Arkansas Legal

Services (VOCALS) from 1982 to 1984. I took two or three

cases a year for Indigent persons to help make up for the

budget cuts that Legal Services experienced.

When I was a law professor I sometimes helped community groups

free of charge. For Instance, in 1974 I gave legal advice to

a citizens group engaged in a petition drive relevant to an

airport expansion.

The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is inappropriate for a judge

to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do you.

currently belong, or have you belonged, to any organization

which discriminates — through either formal membership

requirements or the practical Implementation of membership

policies? If so, list, with dates of membership, what have

you done to try to change these policies?

I do not currently belong to any organization that

discriminates on the basis of race, sex, or religion. I

previously belonged to the Racquet Club of Philadelphia, the

Union League Club of Philadelphia, and the Athenaeum of

London. All of these were men's clubs. I voted to change the

rules of all of these clubs to allow for the admission of

women.

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. I have

been interviewed by Justice Department and White House

personnel for possible nomination to vacancies on both the

D.C. and Eighth Circuit Court of Appeals. Discussions focused

on general judicial philosophy. About a year ago, I was

Informed by the Justice Department that I was going to be

-11-
e?

nominated to the Eighth Circuit, and the F.B.I, and A.B.A.

background Investigations were done at that time. I did not

receive that nomination, but President Bush called ma on

5 November and informed me that he was nominating me for the

present vacancy.

Bas 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 recant 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

jurisdlctional requirements such as standing and ripeness;

and

a. A tendency by the judiciary to Impose itself upon other

institutions in the manner of an administrator with

continuing oversight responsibilities.

The proposition that courts do not make law is an ancient

one that predates our eighteenth-century constitution with

its carefully crafted separation of powers. For example.

Lord Coke, writing in the early seventeenth century,

remarked that the function of judges was 1us dicere et non

ius dare - to speak the law, not to give it. In our own

-12-
68

time this maxim is even easier to apply than lit Lord

Coke's, for most important areas of the law are regulated

by statute or by judicial precedent which must be given

effect by the courts. And modern ideas about the

separation of powers made it plain that a court's function

is limited to interpretation and execution of the law.

It is certainly true that in the past courts have been

encouraged in many law schools to be creative and to break

deliberately with the past in order to correct certain

kinds of injustice. Everyone concedes that a court has

the power to overrule its previous decisions, and almost

everyone thinks that there are occasions on which they

ought to exercise that power. The real difficulty for a

court comes in identifying when it has such an occasion

before it. About all that can be usefully said on this

subject is that a court needs to consult a number of

matters in deciding this kind of question, including the

egregiousness of the error sought to be corrected, the

possibility that other political institutions can correct

it, the amount of reliance on the previous state of the

law, the length of time that the error has persisted, as

well as other things. While this list of considerations

hardly presents a hard-and-fast rule, it ought to come as

no surprise that the exercise of judgment should be

expected of judges.

It may troll be that some judges tend overmuch to cure

social ills rather than decide cases. Part of this

tendency, however, is attributable to the fact that much

litigation these days involves large numbers of people and

large institutions like schools, prisons, and even the

national guard. Since these cases drag on, and since they

sometimes require a lot of hands-on supervision of the

remedy, it is no wonder that they cease to look less like

cases than like a mini-government with the judge as

autocrat. After five years on the bench, however, my

feeling Is that presently most judges are Intensely aware

of their duty to restrict their activities to traditional

judicial ones and are anxious to do no more than is

necessary to decide the case before them.

-13-
QUESTIOWNAIRE FOR JUDICIAL WOMIMEES

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name: (Include any former names used.)

Michael Boudln

Address: List current place of residence and office

address(es).

Hone Address; 81 Irving Street, Cambridge, MA 02138;

2814 Dumbarton Avenue, N.W., Washington, DC 20007

Office Address; Langdell Hall 158, Harvard Law School,

Cambridge, MA 02138

Date and Place of Birth;

November 29, 1939. New York City.

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 Martha Amanda Field, who Is a professor of law

at Harvard Law School, Langdell Hall, Cambridge, Massachusetts

02138.

Education: List each college and law school you have

attended. Including dates of attendance, degrees received, and

dates degrees were granted.

Harvard College; Sept. 1957-June 1961; B.A. degree, maqna cum

laude.

Harvard Law School; Sept. 1961-June 1964; LL.B degree, maana

S31B laude.

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.

1964-65 Clerk, Judge Henry J. Friendly,

U.S. Court of Appeals for the Second

Circuit, New York City.

1965-66 Clerk, Justice John M. Harlan

U.S. Supreme Court, Washington, D.C.
70

1966-87

1982-90

1984-85

1987-90

1990-92

1992-

Associate (1966-72) and then partner

(1972-87), Covlngton & Burling,

Washington, D.C.

Visiting Professor from Law Practice

(1982-83) and then Henry J. Friendly

Lecturer on Law (1984 to 1990), Harvard

Law School, Cambridge, Massachusetts.

Lecturer on Law, University of

Pennsylvania Law School, Philadelphia,

Pennsylvania.

Deputy Assistant Attorney General for

Regulatory Affairs (10/87-9/89), Acting

Assistant Attorney General (5-6/89), and

Deputy Assistant Attorney General for

Policy and Legislation (10/89-12/90),

Antitrust Division, Department of

Justice, Washington, D.C.

U.S. District Judge, U.S. District Court,

Washington, D.C.

Lecturer on Law,

Cambridge, Mass.

Harvard Law School,

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.

President, Volume 77, Harvard Law Review, Harvard Law School;

John Harvard scholarship award. Harvard College; Phi Beta

Kappa, Harvard College.

Bar Associations; List all bar associations, legal or

judicial-related committees or conferences of which you are or

have been a member and give the titles and dates of any

offices which you have held in such groups.

I am a member of the District of Columbia and New York Bars.

I am also a member of the American Bar Association and the

American Law Institute. In the ALI, I am a member of the

Council and currently chair its committee for awarding the

Henry J. Friendly Medal.
71

10. Other Memberghips: List all organizations to which you belong

that are active in lobbying before public bodies. Please list

all other organizations to which you belong.

I am a member of the Harvard Clubs of Boston and New York; the

Century Association in New York; and the Metropolitan and

University Clubs in Nashington, D.C. So far as I am aware,

none of these organizations is active in lobbying.

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.

New York Court of Appeals, before the

Appellate Division of the Supreme

Court held at New York City on . .

United States District Court for

the District of Columbia . .

United States District Court for

the Southern District of New York .

Supreme Court of the United States

Dec. 22, 1964

May 19, 1967

Dec. 24, 1974

Jan. 25, 1968

United States Court of Appeals for the

D.C. Circuit June 30, 1970

First Circuit Oct. 6, 1982

Second Circuit July 16, 1973

Third Circuit June 27, 1974

Fourth Circuit March 23, 1976

Old Fifth Circuit Jan. 24, 1975

New Fifth Circuit Oct. 1, 1981

Sixth Circuit Aug. 31, 1987

Seventh Circuit Jan. 15, 1982

Eighth Circuit Jan. 3, 1978

Ninth Circuit Sept. 8, 1987

Tenth Circuit Oct. 4, 1984

Eleventh Circuit Oct. 1, 1981

ICC Dec. 4, 1978
72

12. Published WrltinaB; 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.

Writings

(1) "Justice Brandels: The Confirmation Struggle and the

Zionist Movement," book review of Letters of Louis D. Brandels

- Volume IV (1916-19211 (edited by Melvln I. Urofsky and David

W. Levy), 85 Yale Law Journal 591 (1976).

(2) "Private Standing and Public Values," book review of

Joseph Vinlng, Legal Identity; The Coming of Aae of Public

tfiw, 77 Michigan Law Review 503 (1979).

(3) Book review of John Hart Ely, Democracy and Distrust A

Theory of Judicial Review, and Jesse H. Choper, Judicial

Review and the National political Process: A Functional

Reconsideration of the Role of the Supreme Court. 67 V^rqlni^

Law Review 1251 (1981).

(4) "Regulation and Competition," book review of Stephen

Breyer, Regulation and Its Reform. 49 University of Chicago

Law Review 1098 (1982).

(5) "The Best Defense," book review of Alan M. Dershowitz, -

The Best Defense. 35 Stanford Law Review 621 (1983).

(6) Common Sense in Law Practice. 34 Harvard Law School

Bulletin. Spring 1983.

(7) "Regulatory Versus Antitrust Rules, How Coherent a Nix?,"

the Conference Board Research Bulletin. 1984.

(8) "Forensic Economics," book review of Franklin M. Fisher,

John J. McGowan, and Joen E. Greenwood, Folded. Spindled, and

Mutilated: Economic Analysis and U.S. v. IBM. 77 H»rv«rd Law

Review 835 (1984).

(9) "Memoirs in a Classical Style," tribute to Henry J.

Friendly, 133 University of Pennsylvania Law Review 1 (1984).

(10) "Truth and Consequences," book review of Franklin S.

Haiman, Speech and Law in a Free Society. Rarltan. Winter

1985.
78

(11) "Federal/State Jurisdiction Over Telecommunications

After Louisiana," American Bar Association Sixth National

Institute on Ratemaklno Fundamentals. October 1986.

(12) "Antitrust Doctrine and the Sway of Metaphor," article,

75 Georgetown Law Journal 395 (1987).

(13) Book review of William Twining, Theories of Evidence;

^"'•yiflff and Wlomore. Rarltan. Summer 1987.

Speeches

None of my speeches concerns constitutional law. As for legal

policy, the only formal, published speeches I have given for

the Antitrust Division concern (1) Its amlcus program and

(2) foreign private restraints on U.S. exports; and copies are

attached. The other talks I have given at bar associations

and like groups over my past three years at the Antitrust

Division were done from notes, outlines, or drafts; all

related to relatively technical antitrust or regulatory

topics; and none of them was released by the Division as a

published speech. However, one set of these brief remarks was

subsequently reprinted by the organization Involved (The

Sherman Act; The First Century -- Observations, 59 Antitrust

L.J. 131 (1990)) and a copy Is attached.

13. Health: What Is the present state of your health? List the

date of your last physical examination.

The state of my health is excellent. On January 8, 1992, I

had a general physical examination by my regular doctor.

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.

12/14/90-1/31/92 U.S. District Judge, U.S.

District Court for the District

of Columbia; the position is

appointed subject to Senate

confirmation; the jurisdiction

of the court is as provided by

Federal statute.

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
74

on such opinions. If any of the opinions listed were not

officially reported, please provide copies of the opinions.

(1) Copies of ten such opinions are attached with citations

where reported. The opinions are as follows:

Washington Hospital Center Corporation v. Group

Hospitalization and Medical Services, Inc., 758 F. Supp.

750 (D.D.C. 1991)

Smith v. Ford Motor Co., C.A. No. 89-2289, D.D.C,

March 12, 1991

Hood v. Prudential Ins. Co., 758 F. Supp. 764 (D.D.C.

1991)

Food Chemical News v. Advisory Committee on the Food and

Drug Administration, 760 F. Supp. 220 (D.D.C. 1991)

Sea Watch International v. Mosbacher, 762 F. Supp. 370

(D.D.C. 1991)

Reuben v. FDIC, 760 F. Supp. 934 (D.D.C. 1991)

European American Corp. v. SEC, C.A. No. 89-2333, D.D.C,

July 12, 1991

West Branch Valley Flood Protection Ass'n v. Stone, C.A.

No. 91-0558, D.D.C. July 16, 1991

Fund for Animals v. Turner, C.A. No. 91-2201, D.D.C,

Sept. 27, 1991

Kaiser v. Ramada Hotel Operating Co., C.A. No. 90-462,

Dec. 19, 1991

(2) Not applicable.

(3) Not applicable.

16. Public Office; State (chronologically) any public offices you

have held, other than judicial offices. Including the terms of

service and whether such positions were elected or appointed.

State (chronologically) any unsuccessful candidacies for

elective public office.

None, other than as described in answer to question 6.

17. Legal Career;

a. Describe chronologically your law practice and experience

after graduation from law school including:
75

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 served as law clerk to Judge Henry J. Friendly, U.S.

Court of Appeals for the Second Circuit, from September

1964 to July 1965. I then served as law clerk to Justice

John M. Harlan, U.S. Supreme Court, from July 1965 to

July 1966.

2. whether you practiced alone, and if so, the

addresses and dates.

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of

your connection with each.

Following my second clerkship and a vacation, I joined

the law firm of Covington & Burling, now located at 1201

Pennsylvania Avenue, N.W., Washington, D.C., where I

worked as an associate from November 1966 to July 1972

when I became a partner. I continued as a partner until

October 1987 when I left the firm to join the Department

of Justice, as described immediately below.

I joined the Antitrust Division of the Department of

Justice on October 26, 1987 as Deputy Assistant Attorney

General for Regulatory Affairs and continued in that

position until September 1, 1989. From May 1, 1989 to

June 26, 1989, I also served as Acting Assistant Attorney

General in charge of the Antitrust Division. On October

1, 1989, after a one-month leave, I returned to the

Antitrust Division as Deputy Assistant Attorney General

for Policy and Legislation and continued in that post

until December 13, 1990. I was a career member of the

Senior Executive Service.

I served as U.S. District Judge for the U.S. District

Court for the District of Columbia from December 14, 1990

through January 31, 1992. From 1982 onward, 1 have in

most years taught antitrust law, evidence or regulated

Industries on a part-time basis, primarily at Harvard Law

School. I am planning to do research at Harvard this

spring and am scheduled to teach antitrust law there in

the fall semester 1992.
76

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?

Covinaton | Burling (November 1966 to October 1987): My

work at the firm was primarily litigation. It included:

(1) continuous appellate litigation in the courts of

appeals and in the Supreme Court throughout the 20 year

period; (2) preparation of several large multi-year

cases, including two antitrust cases and one securities

case, for trial in district court including extensive

discovery and motion practice (two of the three were

settled on the eve of trial); (3) three-judge district

court cases defending or assailing ICC orders during the

period before such orders became reviewable in the courts

of appeals; (4) miscellaneous other district court cases;

(5) intermittent participation in regulatory proceedings

at the ICC and FCC. As an adjunct to litigation, I also

provided extensive antitrust and regulatory advice to one

client (Norfolk Southern) and substantial regulatory

advice to another (AT&T). Although much of my litigation

involved railroad and telephone company regulation, over

the years I was involved in litigation or related advice

involving an array of other civil and administrative

matters.

Department of Justice (October 1987 to December 1990):

From October 1987 to September 1989, I was responsible

for supervising three of the five Washington trial

sections in the Antitrust Division. Each section

conducted investigations, grand juries, merger reviews,

and civil and criminal antitrust trials relating to the

numerous industries for which those sections were

responsible. As the supervising deputy, I reviewed

recommendations for new cases, indictments, proposed

merger cases, and major discovery efforts; worked with

the section heads and staff on issues of strategy and

policy; met with outside attorneys on major cases; and

advised the Assistant Attorney General. From May 1,

1989, to June 26, 1989, I was also Acting Assistant

Attorney General responsible for decisions on major

litigation and policy matters within the Division. From

October 1, 1989, to December 13, 1990, I supervised the

Appellate, Foreign Commerce and Legal Policy sections of

the Division, spending about equal amounts of time

supervising appeals, reviewing foreign antitrust and

trade matters, and handling antitrust legislation and

policy issues within the Division.
77

2. Describe your typical former clients, and mention the

areas. If any. In which you have specialized.

During my period of law practice, I worked on cases for

numerous clients but much of the work fell Into three

broad categories.

First, for AT&T my activities fell Into three categories:

(1) for over 15 years I represented AT&T and/or the Bell

System Operating Companies In a large number of appellate

cases usually Involving review of FCC orders determining

rate or competition Issues; (2) I participated In

extensive discovery and other pretrlal activities over

the course of several years In two AT&T antitrust cases

each of which was settled on the eve of trial; and (3) I

provided regulatory advice Incident to litigation or

potential litigation.

Second, for the railroad Industry, I represented the

railroads for over 15 years In extensive regulatory

litigation at the ICC, In district court cases, and In

the federal appellate courts on a range of matters. The

clients were usually the principal railroads in the

United States; on some occasions I represented groups of

railroads in individual geographic regions and/or the

Association of American Railroads.

Third, for Southern Railway — later Norfolk Southern —

I provided over many years a wide range of litigation and

advice services, including representation in

miscellaneous district court proceedings, appellate

litigation involving review of ICC orders, antitrust

advice on marketing and inter-railroad relationships, and

regulatory advice in ICC proceedings and occasional

participation in those proceedings.

The substantive areas in which I specialized in my

litigation and advice were regulated industries,

administrative law, and antitrust law.

During my period of government service In the Antitrust

Division, much of the work was supervising criminal and

civil antitrust enforcement matters in pending or

prospective district court cases. I also supervised

filings by the Antitrust Division with federal agencies

as part of the Division's "competitive advocacy" program.

From October 1989 to December 1990, I supervised the

appellate litigation within the Antitrust Division

including the Division's own cases, those In which the

Division represents certain regulatory agencies as

statutory co-respondents, and those in which it files

amicus briefs in the courts of appeals or Supreme Court.
78

During my government service, I have recused myself from

matters Involving ATtT or other former Bell System

companies, the railroads. Harvard University, and

Covlngton & Burling.

1. Did you appear in court frequently, occasionally,

or not at all? If the frequency of your appearance

In court varied, describe each such variance,

giving dates.

During my 20 years in private practice (1966-87), my

principal work was litigation and I appeared in court

regularly, especially after my first several years as a

young associate. Most of the appearances were in

district courts and the courts of appeals. While serving

in the Justice Department (1987-90), I supervised

litigation on a regular basis and signed briefs and

Indictments and complaints; the practice in the Antitrust

Division is that deputies ordinarily do not appear in

court, although I argued one case in March 1990.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

Virtually 100% of my litigation appearances have been in

federal courts (or federal agencies).

3. What percentage of your litigation was

1) civil.

2) criminal.

In my private law practice, practically all of my

litigation was civil; in the Antitrust Division, a

significant number of the trial and appellate matters I

supervised were criminal (perhaps 25%), as opposed to

civil matters (perhaps 75%).

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.

Most of the cases that I handled in private practice were

predominantly regulatory. Involving challenges to or

defense of administrative orders in three-judge district

courts or courts of appeals. Over the 20 year period, I

have been involved — as brief writer, oral advocate or

both — in dozens of such cases. I have been involved in

10
79

various conventional district court cases. Including

three large, multi-year cases (two antitrust and one

securities law); of these cases, a couple were tried and

a couple were settled after discovery and a couple were

resolved on the pleadings. In private practice, I would

normally have been junior counsel In the earlier years

and lead counsel In the later years. In the Justice

Department, I supervised numerous criminal and civil

cases but. In accordance with Antitrust Division

practice, I argued In court only once.

5. What percentage of these trials was

1) Jury;

2) non-Jury.

Almost all of the litigation was non-jury, although one

of the three multi-year cases which I helped to

prepare — extensively but In a very junior capacity —

was tried to a jury; and a second one, settled on the eve

of the trial, was prepared as a jury trial.

16. 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 data 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.

Set forth below Is the Information requested for ten of the

most significant litigated matters which I personally handled.

Although the question asks for the name, address and telephone

numbers of "co-counsel and of counsel for each of the other

parties," the typical case which I handled had a service list

at least several pages long and often I had numerous

co-counsel. Accordingly, I have listed three lawyers for

every case Including at least one co-counsel and one opposing

counsel. It may also be useful to note that four of the

Individual lawyers listed below appeared as my opponents (and

occasionally as allies) In a number of cases: John Ingle

representing the FCC; William Byrnes representing MCI; Roger

Wollenberg representing IBM; and Edward Merrlgan representing

National Association of Recycling Industries.

11
80

1. Chaataln v. ATfcT. 351 F.Supp 1320 (D.D.C. 1972),

401 F. Supp. 151 (D.D.C. 1975), and ATtT v. FCC. 551 r.2cl

1287 (D.C.Cir. 1977). Chastaln was an antitrust suit

brought against AT&T by distributors of portable mobile

telephones who claimed that certain of ATT'B practices

resulted in their inability to connect their telephones

with the network and resulted in failure of the

companies. The case included the development of

evidence, including depositions and preparation of expert

witnesses, and briefing on legal issues; but it also gave

rise to unusual litigation involving district court

reference of certain issues to the FCC (351 F. Supp

1320), litigation of the issues before the FCC (43 F.C.C.

2d 1079), summary Judgment litigation after an adverse

decision by the FCC (401 F. Supp. 151), and an appeal of

the FCC orders to the D.C. Circuit (551 F.2d 1287). The

significance of the case, in addition to being one of the

first of a string of major antitrust cases against ATT,

was the attempt to litigate and integrate into antitrust

litigation agency findings on pertinent questions and to

review those findings in a different court. In the

district court, I was the second lawyer on the case for

ATtT but was primarily responsible for managing

preparation of the district court litigation on a day to

day basis; in the court of appeals, I was the principal

author of ATT's briefs and I argued the appeal from the

FCC orders. AT&T defeated the motion for summary

judgment in the district court and, after discovery was

essentially completed, the district court case was

settled on eve of trial. In the case of the appeal from

the FCC orders, which had independent adverse

consequences for ATT, review in the court of appeals

continued after the district court settlement and

resulted in reversal of the FCC orders. The dates of the

two district court decisions were December 18, 1972, and

September 30, 1975. The decision in the court of appeals

was rendered on February 1, 1977. The trial judge was

District Judge Oliver Gasch. The opinion in the court of

appeals was written by Circuit Judge Robb.

Alfred Partoll, Senior Vice president, ATT, 295

North Maple Avenue, Basking Ridge, New Jersey 07920

(201) 221-5544 was one of the co-counsel for AT&T.

Jerry S. Cohen, Cohen, Milstein & Hausfeld, 1401

New York Avenue, N.W., Suite 600, Washington, D.C.

20005 (202) 628-3500 was the opposing counsel in

the district court.

12
81

John Ingle, Deputy Associate General Counsel,

Federal Communications Commission, 1919 N Street,

N.W. , Washington, D. C. 20554 (202) 632-7112 was

the opposing counsel in the court of appeals.

2. Western Coal Traffic League v. United States.

694 F.2d 378 (5th Cir. 1982), vacated. 719 F.2d 772 (5th

Cir. 1983) (en banc), cert, denied. 466 U.S. 953 (1984).

In this case shippers challenged new regulations of the

ICC defining the "market dominant" concept, the key

statutory element in the 1986 railroad deregulation

legislation. Importantly, the ICC concluded that, in

determining market dominance, evidence of product and the

geographical competition — in addition to "direct"

competition — could be considered. The case was

significant because the new regulations govern all future

ICC proceedings involving challenges to rail rates. The

parties whom I represented as lead counsel were the

railroad Industry. In the initial Fifth Circuit panel

opinion, the key regulations defended by the ICC and the

railroads were held invalid. On rehearing en banc, the

full Fifth Circuit sustained the ICC regulations and the

Supreme Court denied certiorari. My role was to act as

lead railroad counsel; to write the briefs for the

railroads with help from other lawyers both for the panel

hearing and rehearing en banc; to write the petition for

rehearing en banc; and to present oral argument before

the panel and before the en banc court in defense of the

ICC regulations. The panel opinion was issued in

December 8, 1982, and the en banc opinion was issued

November 14, 1983. Circuit Judge Alvin Rubin wrote the

panel opinion and Circuit Judge Johnson wrote the en banc

opinion.

James Howe, Norfolk Southern, 3 Commercial Place,

Norfolk, Virginia 23510 (804) 629-2752 was one of

my co-counsel among the railroad lawyers.

Timm M. Abendroth, Federal Energy Regulatory

Commission, 825 North Capitol Street, N.W.,

Washington, D. C. 20426 (202) 357-8174 was the

principal counsel for the ICC.

C. Michael Loftus, Slover Loftus, 1224 17th

Street, N.W., Washington, D. C. 20036 (202)

347-7170 was the principal counsel who argued for

the shippers.

13
82

3. Virginia State Corp. Commission v. FCC. 737 F.2d

388 {4th Cir. 1984), rev, sub nom. Louisiana Public

Service CommisBion v. FCC. 476 U.S. 355 (1986). This

case Involved a determination by the FCC that Its

authority to determine depreciation rates for telephone

plant, and the methodology used in setting such

depreciation rates, preempted Inconsistent state

regulation even with respect to the portion of telephone

plant included in the intrastate rate base. The Issue

turned on the interpretation of the Communications Act of

1934 and the application of pertinent Supreme Court

preemption decisions. In the Fourth Circuit, the FCC

determination was sustained; but the Supreme Court

reversed the court of appeals and held that the FCC

lacked the preemptive authority it claimed. The matter

was significant not only because of the economic

consequences of FCC depreciation decisions but because

the case then became an Important precedent in the

continuing struggle between the FCC and the state

commissions for ultimate authority over the numerous

aspects of telephone service that affect both interstate

and intrastate services. The parties whom I represented

as lead counsel were AT&T and most of the Bell Operating

Companies. I did most of the drafting of the briefs and

argued the cases in the Fourth Circuit and the Supreme

Court. The date of the court of appeals decision was

June 18, 1984, and the opinion was written by Circuit

Judge Murnaghan; the date of the Supreme Court decision

was May 27, 1986, and the opinion was written by Justice

Brennan.

Raymond Scully, Metzger, Gordon fc Scully, 1275 K

Street, N.H., Washington, D.C. 20005 (202)

842-1600 was one of the co-counsel for ATfcT.

John Ingle, Deputy Associate General Counsel,

Federal Communications Commission, 1919 M Street,

N.W., Washington, D. C. 20554 (202) 632-7112 was

lead counsel in the court of appeals for the

government.

Then Solicitor General Charles Fried, Harvard Law

School, Cambridge, Massachusetts 02138 (617)

495-4636 was the government counsel In the Supreme

Court.

Russell Cunningham, State Corporation Commission,

Room 1100, P.O. Box 1197, Richmond, Virginia 23209

(804) 766-0150 was the opposing counsel who

presented the oral argument in the court of

appeals.

14
Lawrence Malone. New York Public Service

Commission, Office of the General Counsel, 17th

Floor, 3 Empire State Plaza, Albany, New York 12223

(518) 474-8572 was the opposing counsel who

presented the oral argument In the Supreme Court.

4. LO Shippers Action Committee v. Aberdeen |

Rockfish R.R.. 4 I.C.C.2d 1 (1987), aff'd sub nom. LQ

Shippers Action Committee v. ICC. 857 F.2d 802 (D.C. Clr.

1988), cert, denied. 109 S.Ct. 2429 (1989). This case

involved claims by owners of covered hopper cars, who

"rent" those cars to the railroads, that the ICC should

establish new and higher rates for the use of the cars

and should award hundreds of millions of dollars In

reparations to shippers for past use. The railroad

industry argued that the ICC should not set such rates

nor award reparations but should allow the rates to be

set by market forces. The case involved construction of

provisions in the Interstate Commerce Act and Issues of

regulatory policy and economics. The case proceeded at

the ICC through the submission of written factual and

expert testimony and briefing of legal Issues, and It was

then argued before the full ICC. The significance of the

case was that it established that the governing statute

permitted, and regulatory policy supported, the use of

market based rates for rental of railroad cars owned by

private companies and shippers. My clients were the

railroad industry and my role was to act as their lead

counsel. With two of my partners and with help from

younger lawyers, I helped to formulate the railroads'

legal position, to prepare witnesses to provide written

testimony, and to brief the legal Issues at the ICC. I

then presented oral argument before the ICC. Ultimately

the ICC decided in favor of the railroads and, after I

left the firm, the ICC decision was affirmed by the D.C.

Circuit. The ICC decision was served on August 31, 1987,

and the court of appeals decision was issued on September

23, 1988. The opinion for the ICC was "by the Commission"

and Circuit Judge Sentelle wrote the court of appeals

decision (argued after I left the firm).

Paul Cunningham (202) 828-1406) and Richard'Herzog

(202) 828-1413) both of Pepper Hamilton, Scheetz,

1300 19th Street, N.W., Washington, D. C. 20036

were the principal co-counsel for the railroads.

Harold E. Spencer, Belnap, Spencer, McFarland,

Genrlch s Herman, 20 North Wacker Drive, Chicago,

Illinois 60606 (312) 236-0204 was the principal

opposing counsel representing the car owners.

15
84

5. National Association of Regulatory Utility

Commissioners v. FCC. 737 F.2cl 1095 (D.C. Cir. 1984),

cert, denied. 469 U.S. 1227 (1985). This proceeding

involved review of the FCC's orders broadly restructuring

Interstate telephone rates and charges for the telephone

industry. In substance, the FCC designed a new method of

allocating the cost of providing interstate telephone

service between the local telephone companies, long

distance companies, residential users and different

classes of business users. Review in the D. C. Circuit

was sought by numerous businesses and organizations. In

an opinion of almost 50 pages, the court of appeals

sustained practically all the FCC determinations,

remanding on two minor issues and deferring a decision on

one other. The case established the basic pattern of

allocating Interstate costs that continues today. I

originally represented AT&T and the Bell System Operating

Companies who largely supported the FCC decision; in

connection with the breakup of AT&T, which occurred

during the progress of the case, disagreement developed

on a single issue between AT&T and the newly independent

Bell Operating Companies and by agreement I continued to

represent AT&T and other counsel represented Bell

Operating Companies on the issue that divided those

parties. My role was to act as lead counsel for the

parties I represented, writing various briefs for

AT&T/BOCs and motion papers in the court of appeals. I

also presented oral argument opposing a stay request and

on the merits. The case was decided June 12, 1984, in a

per curlam opinion apparently co-authored by all three

judges: Circuit Judges Wilkey, Ruth Glnsburg, and

MacKinnon.

Judith Haynes, AT&T, 295 North Maple Avenue,

Basking Ridge, New Jersey 07920 (201) 221-8227 was

one of my co-counsel at AT&T.

John Ingle, Deputy Associate General Counsel,

Federal Communications Commission, 1919 M Street,

N.W., Washington, D.C. 20554 (202) 632-7112 was

lead counsel for the FCC.

William J. Byrnes, Haley, Bader & Potts, 2000 M

Street, N.W., Suite 600, Washington, D.C. 20036

(202) 331-0606 was AT&T's principal adversary in

the case.

6. Alameda Oil Co. v. Ideal Basic Industries. Inc.

313 F.Supp 164 (W.D. HO. 1970), 326 F.Supp 98 (D. Colo.

1971), 337 F.Supp 194 (D. Colo. 1972). This case, which

was the first large-scale District Court litigation on

which I worked, involved claims under the federal

16
85

securities laws and fiduciary duty claims under state law

growing out of a corporate merger between Ideal Cement

Company and Potash Company of America. In the course of

the merger, a supposed "better deal" was allegedly

rejected by one of the merging companies; and

stockholders of that company brought suit in the district

court in Missouri which transferred the case to the

district court in Colorado. The case involved class

action, substantive law and evidentiary issues and

extended over a period of almost four years. After

extensive discovery, the case was tried to a jury and

then, after all the evidence had been submitted but

before the jury was charged, the district court granted

defendants' motion for a directed verdict. My firm

represented the defendants, including Ideal Basic

Industries, the surviving company in the merger. Hy role

was to serve as the young associate on the case: I did

not present the case in court but drafted pleadings and

briefs in advance of the trial, participated in discovery

and class action matters, organized documents, prepared

evidentiary memoranda, and handled miscellaneous tasks in

the courtroom during the trial. The written decision of

the District Court granting defendants motion for

directed verdict was dated January 24, 1972. The judge

who presided was then-District Judge (later Circuit

Judge) William E. Doyle of the district court in

Colorado.

William C. McCleam, Holland Hart, P.O. Box 8749,

Denver, Colorado 80201 (303) 295-8238 was

co-counsel for the defendants.

Charles Renfrew, Vice President, Chevron, 225 Bush

Street, San Francisco, California 94104 (415)

894-7700 was co-counsel for Ideal Basic Industries.

William E. Ris, Wood, Ris Hames, 1775 Sherman

Street, Denver, Colorado 80203, (303) 863-7700 was

one of the opposing counsel.

7. Pernell v. Southall Realty. 416 U.S. 360 (1974).

This case involved review by the U.S. Supreme Court of a

decision of the D.C. Court of Appeals holding that a

tenant in an eviction proceeding had no right to a jury

trial because Congress had repealed the statutory

guarantee of a jury trial in eviction cases. The issue

presented to the Supreme Court was whether the Seventh

Amendment guaranteed a right of jury trial in an eviction

proceeding. The issue turned on prior Supreme Court

precedent, the history of comparable proceedings at

law, and federal policy relating to jury trial.

17
86

At the request of the Neighborhood Legal Services

("NLSP") attorney who represented the tenant In the

District of Columbia courts, I represented the tenant as

lead counsel In the Supreme Court on a pro bono basis.

My role was to plan strategy, draft the certlorarl

petition and reply and, after certlorarl was granted,

draft the merits brief and the reply; these steps were

taken with the assistance of a younger lawyer and In

consultation with the NLSP lawyer. With my

encouragement, the NLSP lawyer argued the case In the

Supreme Court. The Supreme Court sustained our position,

holding that the Seventh Amendment where It applies

secures a right to a jury trial In an eviction case. The

date of the Supreme Court decision was April 24, 1974.

The opinion was written by Justice Marshall.

Norman C. Barnett, who Is no longer listed In the

Washington, D. C. Martlndale was my NLSP

co-counsel.

Michael Schlanger, Piper Marbury, 1200 19th

Street, N.W., Washington, D.C. 20036 (202)

861-3900 was the lawyer who assisted me at my firm.

Herman Miller, who Is no longer listed In

Washington, D.C. Martlndale was the opposing

counsel.

8. Computer and Communications Industries Ass'n. v.

FCC. 693 F.2d 198 (D.C. Clr 1982), cert, denied. 461 U.S.

938 (1983). This case Involved FCC orders establishing

a new regulatory regime addressing the provision of

computer related telecommunications services. The case

resolved a number of major legal Issues Including the

status of computer-related services under the

Communications Act, the FCC's authority over such

activity, and the precise protective restrictions to be

Imposed on the Bell System In providing such services.

The case was significant, apart from the legal Issues

noted above, because It reflected a new approach by the

FCC In the face of the coalescence of two technologies;

In place of a rigid mechanical separation, the FCC sought

to obtain the benefits of Bell System participation while

safeguarding competitors against possible abuse. I

represented AT&T as lead counsel In the litigation and

was the principal draftsman of ATT's brief In defense of

the FCC's new regime, and I presented oral argument in

the D.C. Circuit. The final disposition In the case was

an affirmance of the FCC's orders. The decision was

rendered on November 12, 1982 by Circuit Judge Tamm.

18
87

Alfred A. Green, 25 Saratoga Way, Short Hills, Hew

Jersey 07078 (201) 376-0950 was one of my

co-counsel for AT&T.

John Ingle, Deputy Associate General Counsel,

Federal Communications Commission, 1919 N Street,

N. H. , Washington, D. C. 20554 (202) 632-7112

represented the FCC.

Roger Wollenberg, Wllmer, Cutler Pickering, 2445 M

Street, N.W., Washington, D. C. 20037 (202)

663-6220 was counsel for IBM, a major intervenor.

9. Norfolk Western Railway Co. v. United States.

768 F.2d 373 (D.C. Cir. 1985). For about 15 years the

railroad Industry, the Interstate Commerce Commission,

and various representatives of recycling Interests

including shippers of recyclable commodities litigated

before the District Court of the District of Columbia,

the D. C. Circuit, and the U.S. Supreme Court In a

succession of related "recyclables" cases. The cases

concerned rate level and discrimination claims,

reparation claims and numerous other substantive and

remedial issues pertaining to railroad rates on

recyclable commodities. The litigation in the earlier

years was before three-judge district courts with direct

review in the Supreme Court. The litigation in later

years was before the D.C. Circuit. Litigation produced

at least two full scale Supreme Court decisions (412 U.S.

669 and 422 U.S. 289) as well as numerous lower court

decisions. In the cited N&W case, the railroad industry

challenged an ICC order granting reparations on the

ground that the order Involved double recovery for

shippers and exceeded the ICC's statutory authority. The

case is significant primarily because it represents one

chapter in a saga of litigation in which the rules

governing railroad recyclable rates were resolved. The

parties whom I represented in this particular case were

the railroad industry; but I was directly involved in

most phases of this 15 year litigation, representing

either the railroad industry or territorial groups of

railroads. Together with younger lawyers I wrote the

railroads' briefs In this case in the court of appeals;

and I presented oral argument for the railroads in the

Court of Appeals obtaining reversal of the ICC

reparations order. (I also wrote many — probably

most — of the railroad industry briefs during the 15

years of litigation and I argued the cases on a number of

occasions.) In the new case, the date of the decision was

July 19, 1985, and the author of the opinion was then

Circuit Judge Bork.

19
James Howe, Norfolk Southern, 3 Commercial Place,

Norfolk, Virginia 23510 (804) 629-2752 was the

principal co-counsel in the case for the railroads.

Cralg Keats, who is no longer listed in the

Washington, D.C. Martindale was the opposing

counsel at the ICC.

Edward L. Kerrigan, 6000 Connecticut Avenue, N. W.,

Chevy Chase, Maryland 20815 (301) 656-0210 was the

principal opposing counsel for the shippers.

10. ATtT v. FCC. 836 r.2d 1386 (D.C. Cir. 1988).

This case involved a challenge by the telephone industry

to an FCC order adopting a new set of rules effectively

requiring refunds by the telephone companies whenever

they earned awards significantly in excess of their

designated rates of return. This was a major

public-utility law controversy involving claims by the

telephone companies that the new regime was

unconstitutional, was in excess of statutory authority,

and was arbitrary and capricious because it would result

in telephone companies earning less than their authorized

rate of return. The parties whom I represented as lead

counsel were the Nynex Bell Operating Companies. However,

I also acted as principal draftsman for a brief signed by

most of the Bell Operating Companies. I then presented

oral argument in the D. C. Circuit for the Bell Operating

Companies who signed the brief. The court of appeals set

aside the FCC's order although the decision may be more

significant for its guarded treatment of the telephone

companies' constitutional argument. The date of the

decision was January 22, 1988, and the per cur lam opinion

was apparently authored by either Circuit Judge Mikva or

then Circuit Judge Bork; a third member of the panel

wrote separately.

Saul Fisher, Nynex Service Co., 120 Bloomlngdale

Road, White Plains, New York 10605 (914) 683-2266

was the principal co-counsel for Nynex.

William Malone, Murphy s, Malone, 1901 L Street,

N.W., Washington, D. C. 20036 (202) 223-5062 was

co-counsel representing another petitioning

telephone system.

John Ingle, Deputy Associate General Counsel,

Federal Communications commission, 1919 M Street,

N.W., Washington, D. C. 20554 (202) 632-7112 was

principal opposing counsel.

20
89

19. Leoal 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.)

Practically all of my work in private practice related to

litigation. That has also been true during most of my tenure

In the Justice Department. The most significant

non-litigation aspect of my work in private practice was the

provision over many years to Southern Railway — later Norfolk

Southern -- of advice on antitrust and regulatory matters

concerning marketing, inter-railroad relationships, and like

subjects. In the Justice Department the most significant

non-litigation aspect of my work involved foreign antitrust

and trade matters involving the European Community nations and

Japan.

XI. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock options, uncompleted

contracts and other future benefits which you expect to derive

from previous business relationships, professional services,

firm memberships, former employers, clients, or customers.

Please describe the arrangements you have made to be

compensated in the future for any financial or business

Interest.

I am a participant in the retirement plan established by my

former law firm, Covlngton & Burling, where I have a fully

funded account to which no further contributions are made by

the firm. Documents reflecting the character of the plan's

investments and the components of my account are attached as

Attachment A.

I also expect to be reimbursed by the firm (Covlngton &

Burling) for my inter-city travel expenses incurred in

participating in a moot court exercise in February 1992

(around $500).

I am also a participant, based on my one-year term at Harvard

as Visiting Professor from Law Practice, in the TIAA-CREF

retirement plan used by many universities. Documents

reflecting my account are attached as Attachment B. I am also

a participant in the federal government's Thrift Savings Plan.

A document reflecting my account is attached as Attachment C.

21
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.

In government service, I have recused myself in matters

involving my former major clients -- AT6T or other former Bell

System companies and the nation's railroads — and in matters

involving Harvard University or Covington & Burling. If

confirmed, I would maintain these recusals as to my listed

former major clients in force for 10 additional years and

would then reexamine the issue in light of prevailing

standards of recusal. As to Harvard University and Covington

i Burling, I would expect to continue the recusals in force

indefinitely. In other matters, I will follow prevailing

statutory and guideline requirements governing conflicts.

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 may teach courses from time to time as a lecturer at Harvard

Law School to the extent consistent with judicial

responsibilities. At present, I intend to teach a course in

antitrust law at Harvard in the fall semester 1992.

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 financial disclosure report is attached as Attachment D.

5. Please complete the attached financial net worth statement in

detail (Add schedules as called for).

The financial net worth statement is attached as Attachment E.

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign, your

title and responsibilities.

No.

22
91

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 d i sadvan t aged. " Describe what you have done to

fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

I have been personally responsible for two pro bono test cases

in the Supreme Court. One, described in my answer to question

18, succeeded in establishing the constitutional right to jury

trial for tenants in the District of Columbia threatened with

eviction. Pernell v. Southall Realty. 416 U.S. 360 (1974).

The other. Doe v. Delaware. 450 U.S. 382 (1981), sought to

protect the right of indigent parents protesting attempts by

the state to terminate parental rights; although the cited

case was dismissed on procedural grounds after full briefing

and oral argument, one of the issues was relitigated and

resolved in another case with different parties not long

afterwards. Each of these cases probably involved several

hundred hours of my time and the time of one or more younger

lawyers at my firm.

In addition I have from time to time assisted other lawyers,

inside my firm and out of It, in Supreme Court test cases

Involving the dlsadvantaged; I do not have a complete record

of such efforts but recall two examples. One involved

protection of refugees from alleged unfair immigration

procedures and the other involved obtaining an emergency stay

in a case involving school aid. I have no recollection of the

number of hours in such cases and the number would vary widely

from case to case.

The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is inappropriate for a judge

to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do you

currently belong, or have you belonged, to any organization

which discriminates — through either formal membership

requirements or the practical implementation of membership

policies? If so, list, with dates of membership. What you

have done to try to change these policies?

I do not belong to any organization that so discriminates. I

am a member of three social clubs that did in the past limit

their membership to men: the University and Metropolitan

Clubs in Washington (joined, respectively, in 1978 and 1983)

and the Century Association in New York (joined 1984). Each

has ceased to discriminate and has admitted women. In each

case, by appropriate letters and/or questionnaire answers

23

60-251 0-93 — 4
and/or appearances at meetings, I supported the admission of

women. None of these clubs discriminates now, or did during

my period of membership, based on race or religion.

Is there a selection commission In your jurisdiction to

recommend candidates for nomination to the federal courts? If

so, did It recommend your nomination? Please describe your

experience In the entire judicial selection process, froa

beginning to end (Including the circumstances which led to

your nomination and Interviews In which you participated).

I do not know whether there Is a selection committee or. If

so, what It said about me. In February 1990 I was Interviewed

by the Justice Department as a potential candidate for a

federal judgeshlp In the District of Columbia Including the

U.S. Court of Appeals for the District of Columbia Circuit and

ultimately was offered and accepted appointment to the

District Court bench. In December 1991, I was advised by the

Attorney General's office that I was being considered for

possible nomination to the U.S. Court of Appeals for the First

Circuit and later I was asked to submit the various forms

incident to such possible nomination. Subsequently, I had the

customary interviews with the ABA and the FBI.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

Interpreted as asking how you would rule on such case, issue,

or question. If so, please explain fully.

No.

Please discuss your views on the following criticism Involving

"judicial activism."

The role of the Federal judiciary within the Federal

government, and within society generally, has become the

subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism that

alleges that the judicial branch has usurped many of the

prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have

been said to include:

a. A tendency by the judiciary toward problem-solution

rather than grievance-resolution;

b. A tendency by the judiciary to employ the individual

plaintiff as a vehicle for the imposition of far-reaching

orders extending to broad classes of individuals;

24
c. A tendency by the Judiciary to Impose broad

affirmative duties upon governments and society;

d. A tendency by the judiciary toward loosening

jurlsdlctlonal requirements such as standing and

ripeness; and

e. A tendency by the judiciary to Impose Itself upon

other Institutions In the manner of an administrator with

continuing oversight responsibilities.

As a descriptive matter, I think It Is probably true that

the last thirty years have seen an Increase (and perhaps

recently a diminution) In the attitudes or

characteristics described In paragraphs a-e. This Is at

best an Impressionistic judgment and, to put It In

perspective. It Is worth remembering that "judicial

activism" has waxed and waned -- and appeared In

different forms — over the course of American judicial

history.

Given the doctrine of judicial review on constitutional

questions. Interaction between the judicial branch and

the executive and legislative branches Is Inevitable.

Nevertheless, In Interpreting the Constitution the

judiciary does pronounce upon Its own authority vis-a-vis

the other branches of government. Accordingly, the

judiciary has a special responsibility to safeguard the

constitutional principle of separation of powers and to

exercise self-discipline In defining and exercising

judicial authority.

Ultimately, I believe that different attitudes toward

judicial Intervention are called for by different

circumstances. Merely as examples, I would expect a

judge to be highly deferential toward legislative

language and Intent In construing a statute and to be

deliberately protective of constitutional rights when

applying the First Amendment.

The lower federal-court judges who to me have represented

the Ideal — such as Judges L. Hand, Friendly, Helnfeld,

and Glgnoux -- have varied In their philosophies but all

of them possessed a devotion to craftsmanship, a desire

to derive order from complexity, and a great deal of

common sense. It Is these qualities, rather than any

general predisposition on standing questions or remedies

Involving continuing judicial oversight, that seem to me

to produce fine judges.

23
94

ATTACHMEMT A

March 1992

My Interest in the Covlngton & Burling retirement

plan is reflected in three sets of investments. One portion

is invested in contracts with Northwestern National Life Ins.

Co. and Transamerica Life & Annuity Co. that guarantee annual

fixed interest payments; a second portion is invested in

federal government securities managed by the Vanguard Group,

Inc., through its Vanguard Money Market Reserve-u.s. Treasury

portfolio; and the remaining portion is invested in four funds

managed by four managers: Dietche & Field Advisors, Eagle

Asset Management, Gulf Investment Management, and Hudson

Capital Advisors. I have no information regarding specific

investments made by the separately managed funds, but I am

advised that the plan is widely diversified within the meaning

of Mr. Nebeker's letter of June 23, 1988, to Ms. Sposato.

This advice is premised on the understanding that the holdings

of the four funds are aggregated for purposes of applying the

percentage limitations to the portfolio. The latest currently

available statement is dated February 1, 1992, and is

attached.
SAVINGS PL

2

3

MICHAEL SOJDIN

4

1

• EQUITY STOCK

7 INDEX

«

•

io FIRM FUND

ii

« PRE 1967

222/U3.36 .00

ii VOL FUND

14

is POST 19*«

304/3S0.30 .OJ

it VOL FUND

IT

i« DED FUND

.00

8,6*2.21

.00

_i00

ID TAX DEF FUND 28/SS6.6S

21

.00

22 TOTALS

a

M

$63,692.52 .00

27 1990A 1990S

a

2*

JO

08.61X

12-31-92

09.

06-

222

30-95

li FIRH FUNC

33 PRE 1987

147,744.60 .00

34 VOL FUND

J» POST 198«

29,971.47 .00

f VOL FUND

30

3a DED FUND

.00

2,062.86

.00

.00

40

4i TAX DEF FUND 3/588.36

42

.00

a TOTALS

44

45

183,367.29 .00

m

" ACCUH CONTRIBUTION

41

40

SO

FIRM FUND

P«E 1987 VOLUNTARY FUN9

•

u

J4

POST 1986 VOLUNTARY FUND

90

M

S7

DEDUCTIBLE FUND

TAX DEFERRED FUND

FEB

*ON = Y

MARKET

GOVERI

SECUR:

.00

.00

1',759.-

27,5797

.00

.00

.00

.1

2,758.<

• •

.00 50,096.'

1*??A 1JLS99

«.70X 8.9SX

li-31-93 12-31-93

17,24i.00 • •

10,347.63 • >

~.0J .'

1,724.62

4,623.02 •

37,941.27 .

146,2?3.12"~

Hi,53.'.00

.00

6,030.00 *

i1,4j«.32

TOTAL-COHTRIflUTION ;j6,307.44
96

. . •

•*

92

T S*0»T TEM StLANCEO 1991A 1»91B

i BOND FUNS FUND 8.401 a.17X

12-J1-9* 12-J1-9*

.00 .00 49,072.20 .00

•

.00 .00 58»27«.J0 .00 '

C

.oo .oo .oo .oo ;

.00 .00 5,720.91 .00 I

-

.00 .00 9,459.80 .00 I -

.00 .00 122,509.11 .00 *

-

198»B 19853 HOT HOT *

-

8.97X 11.S4I USED USED

12-31-93 12-31-93 I -

.oo .oo .oo .oo

.00 .00 .00 .00 •

-

.00 .00 .00 .00

.oo .oo .oo .oo !

' -

.oo .oo .oo .oo ;: -

.oo -oo .oo .oo

* v

0T«L VALUE ;

IKX-FUNO 455,965.32

PPE 1987 VOLUNTMT FUND 430,525.30

POST 1986 VSLUNT4IIT FUND .03 : -

DIOUCTIBLE FUND 20,908.69

T«« OEFEHKBB FUND 50,207.83

:

fOTAL VALUE 957,607.14
97

730 Third Avcoue

I No Yoit. NY 10017

l..l,lll.„ll„.ll...l„,l„ll,„ll,„ll„l.l.l,.,ll

niCHAEL BOUtIN

euH tutSAirroN AVC N M

MSHINCTON »C 20007-3335

Annuity

Benefits

Report

ATrncHn*i<r£>

Per ymar mndtng Dmemmbmr 31, 1991

H0tir9fn9tl1 Annuity

CHEF csrlUKMW numCwi 0296391-9 j

Soci«IS«ajtivwBib«» 102-30-5816

Total accitnulatlon

AM Of A>a/

DK. JI. fWf

IIAA M. 97&. 99 »9.799.n

CR6F

STOCK 10. 9B7 27 K. 293 07

CBEF TOTAL 110.987.27 914.293. 07

TOTAL XIAA+CflEF $19. 963. M K4, 092. 86

It you n.v« quMiora, ull 1 900 »42-277S,

arariMioia.

laustrmOon ofyourtintyoMf't annuity lncom*,anumtna 6% rate ofreturn urtf/ nOmnmnt I

> no iiMMiiwal yfc—gMM

TIAA Income

Sundard MMtxx)

OradxiMwhod

J2,274

1.485

Total CHEF tncsnw »2. 155

ToM TUA+OEF mooim

uttg TUA smnotm utmoo

<* Total T1AA+CREF wee•

uaaw 7UA OadMMatnoo

»4.42»

0.00

lit Ma—<• >*jli*tnrt

A if AaMrf M ^aar i99i jaar^

aaBMrf 4* Wr njrmuw, md m Urn

Your uouity ramot Ift: 65 Ycan

1.3004

Oae-Ufe illy i

10-ycm

DlYUcad nk far T1AA 1992 diwicod lok (or

nu

SMrfanrf I4atmd • your TIAA income Includes i contracmily guanmBed aaxmnt ud the ennre TIAA dividend u

declertd for the currcai year. Income will reaiatn the ume

it loci at the TIAA peyottt dividend icale doesa'i change

lecene will chaafC. however, if Ihe dividends increase or

decrease Pkasc nose, dividends are not (uaraniccd

Gradarf Martorf • your TIAA income includes the coDtracmally juaraaiced amount but oaly a ponion of the dividend

The rest of the dividend it mDveslcd -in effect, buviny

•thaiinaal fumix LOCOOK At • result payments under Ibis

oetbod rail OOI lower bul are designed 10 increase as the

yean go by.

laUal CREF aaouns income it bated on the assumption

that CREf win can 4% a year ttom the time you begin so

receive peymeatt. If CR£E carat more than 4%. your nest

year's IDCCNDC will be higher than the previous years if

CREF earns less than 4%. your Deal year's income will be

tower than the previous year's.
98

Premium AnumplKMi:

Our records iodicaie ibu periodic premiums to ibese uiBuUic* were fuapeaded or ducooiiaued in 1991 or

Accordingly, no yearly pmniums are tsiunjcd for future yean.

]tUu»trmtloo ofyourUntymf* mmultyJnooam mlnasMmmS* r*fe ofreturn

ID calculating your first war's annuity income on page 1. we have auuned a b% annual rate of mum on vour accumulaiioas and

fiiiurc premiums. This assumption covers the period from now until your annuity income begins The table below sbovs tbe results

if other rates of return were used tonead. All other assumptions remain the same. Tbcac illimrauom are not guaraoiccd.

TIAA annuities contractually guarantee to credit a 311 interest rate (on most contracts), so no estimates are shown in the 05 column

it no additional premiums an paid, your first year's estimated Income is;

ox 3% t% i;%

TIAA Income

Siandard Method

Oraaed Method

n/i

n/»

St. 635

1,014

S3. 170

2.098

$4,412

2.975

Total CREf Income St. 015 $1,487 »3. 090 $4,388

Tool TIAA+CREF income n.122 $6,260 $8,800

or Tot«l TIAA+CREF Income

using TIAA BnOttt ueinod

12,601 $6,1(8 87,383

• M—.l.. .

! ForyourWonmtton

• You will receive one Annuity Benefits Report for each set of TIAA-CREF ananiiies you own.

- Your accumulations may be paid as prerctiremeat death benefits. If you die before conwning your accutnulabons lo

lifetime retiremau income (or other benefits pennined by your employer's plan), tbe accumulations would be payable

to your beneficiary under the opoons available.

- We have the right to comet any clerical errors in this report,

- These annuities do not provide for loans and cannot be assigned.
99

fc THRIFT SAVINGS PLAN

4> PARTICIPANT STATEMENT For ths period

05/0 U9i throupr •,0/3-

^TTAtkl^wr C.

TSP-8-

• = -.- Thrifl &*nnos Ptan (TSPJ •ccoont tuiam«nt n itlutd •<r«rv »<> months by th* Naitcw Ftnvnca C«nL«' Uv in« f-momtti

Ratir«m«m Tnrilt irv.fosononi Bova For •Mitional information or to Mtrroet your •Mrattor any of Ih* lollowing it«m».

plow oonUct rour «gon«y omplortng office

Rnuromam Co««ra9« AST III . IJ

Swvtuon StMuK N-Mo: Mp«r«i*c

Mmc HICHAlL ftOUOIN

Soc* SMUlty N^nbor 102>30-S816

DM* of Bvttc 1V2B/39

Tout Sarvie* ROO^MI IO* Vastmff 0 Yon from 00/00/00 ITSP S«rvie« Conwuution Dun

Ponomi ldwrtH<e«ion N^ifcf IPW B4ie for ow T8P Inqyifr Lino (8041 25f-8777

CmptoyM

Source of Contrlbulioni

A«a«aT Automatic il-W! Agancr Uatahtng

Tot»l

O.0O 1,MC.t3 0.00 i.aoa.r.

G FUND

TmMCUOnt Thii Pariod

Enttng Baunca

0.00

0.00

0.00

0.00 0.00

77. tl 0.00

1.MS.M 0.00

00

77.1:

I.MS.t'.

F FUND

TranaKtiora Thia Pariod

Mmg Uanca

C FUND

Common Stook Intfox

Trvwocbons This Psriod

EvtMngs Thij P»rioO

TOTAL

ACCOUNT

BALANCE

Trvwactiona Ttwa Panod

Eammga TNa Parted

Ending

0.00

0.00

0.00

0.00

t.WA.ti

0.00

77. IS

1.M3.V8

0.00

0.00

0.00

0.00

00

77.1

1.M3.9

R>tM of

R«ti*n*

sn

.57%

< 30\

.ea«

101%)

14 49X1

.69«

1 401

463%

.tn

2.12%

137*

•99%

1! 63%;

62%

1 09%

1 39%

B34%

15.50*

3353%

in kavi tM f ana tna C r<a

. tn« •wvaflwai -ao . Ooaa*. »' fte TIM.* >• • '>i> or

aoaia Ta»-a.* ««..>•• nia

ran awerraet? Saa aiatructiona al too of atatamom

•497dM1«3 JL 01 14«3 10005«»7

lHl.lllM>lllMlll..ll..lllllll>lliilllnlillllull

NICHAtL WWDIN

atia ouaAirroN AVI

N If

KAIMIMTOai OC 30007-1315

Loft flovornaont aorvieo? If oo. aoh your

«ei*oop oooncy 10 auoott a laparat ion Cooo a

Fora T$A-1t. 41 OO a»- for ttio OACKOBO.

•Vltnorowino *our TSa Account Balanca -
100

Arr*t«ii«ivT ^

FINANCIAL DISCLOSURE REPORT Mpon Jtaqnlrad by tk* ttUam

Hafon Act of IMfl. fufc. L. •». loi-ie*, •• Mbir M, ifM

|> g.l.CA. *«.. t, »»101-I17i

•t MM. rmt, BIMI* uitiai)

Boudin, Michael [NHI]

3. Coutt or Otg«nl«*iloo

U.S. Court of Appeals for

First Circuit

1. Dato et Hoffort

March 23, 1i9

4. Tin* [Artlelo III ]«

U.S. Circuit Judge

(JirUelo III jvtfm ladlcota *ctl*a

MBIBC ouuoi Mofiowou ]o^g<o t

» (cBoek »ppropri«i« typ«]

JL ~i-.i-, M» 3/27/92

'- Initial Auul VlKAt

Jan. 1, 1991-

ter. 1, 1992

Langdell Hall 156

Harvard Law School

Cambridge, MA 02138

[NOTE: Please address correspondence to

me at: 81 Irving Street

Cambridge, HA 02138

I. POSITIONS. (Rcponiflj indMdiial only, tec pp. IS of Imiraaioiu.)

tSSaQH NAME OF ORGANlZA-nON/ENTm' a NONE (i

Lecturer on Law Harvard Law School

Member of the Council

Co-executor and co-trustee

American Law Institute

1 Cs'tate uf Leunaid B: BuuTliu and Liust

established under his will

It. AGREEMENTS. (ReponlBg Isdlvidiisl only, tee p. 8-9 of Instructioos.)

QAIE PARTIES AND TERMS

a NONB im. .

Lecturer on Law - Tentative agreement to teach antitrust course at Harvard

Uw School -- fsti im— Beneficiary - Vested pension plan account at former law firm - Covington

t Burling

III. NON-INVESTMENT INCOME. (Rspoidai iadMdnl ud tpooe: m pp. 9-12 of Insimaioiis,)

a

(Hoooram only)

SOURCE AND TYPE

NONE IK .^.iiin ^-u

Lectureship at Harvard Law School

GROSS INCOME

(yows, ool ipouie'B)

$ 19,450

Final severence payments from former law firm $ 97.500

Covington & Burling

H.rv.i-fl r.«w Sfhnnl and llnivgrnity "

f

>r<Tnnj $ s

law teaching salaries, (S)

Harvard Oniversity Press boolc royalties (SI $

Honoraria (S) - see attached list $ ~
101

FINANCIAL DISCLOSURE REPORT (coM'd)

Boudln, Michael

BMa or •MBit

3/23/92

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

OacMet ib<a< » mmmmt lll.n.lm cMMns mm U» MUMhlMnll '(S)' n4 -(DC)- to Inliou reporU

PtscMrnpri VALUE

VI. LIABILITIES.

tor ItoMlttj to tulaf Ik< iMwiltilirj '(S)' tor ina

BMBU llill. •f'fDC)' tor ri>Wj alTi

•

Plymouth Wortgag* Co., Hyannia, MA

pgaCRirnoN

Blanket mortgage on

hone ana separate

VALUE CODE*

N

«afcal propwrteyy Wel-lfAee^r

Mass. (S)

•• « -m $14,000 ooo m Imm MM

• fHA.Mi M WM.M*

I - 113,001 to 1M.0O0 L - |M,00l M 1100,000 0 - iioo.ooi M »i,ooc,ood v • mmm aw n.aoo.ooo

• • 1100,001 M |}M,000
102

MNANOAL DISCLOSURE REPORT (aWd)

Boudin, Michael

a«* of i^iHI i

3/23/92

VII. l^f^•E^rre^TOUSJS-i;^ja)value1tra^ (i—*-.rf^_

G

as^-ffl;ssasjsa.

•NONE i

117

$*;

civirt^Mft i uurun^—

Penalon Plan;see nota

'TIAA-CREE Retirement

Pi""

I

'

t Amt£AggBiB8ylt

<ist American Bank

(Savings)

Bay Banfc (Saving*)

Mut. Pund

'Fruaential Bache Tax

Free Bond Fund

•New isin Nau fun. nag.

-m—

Int.

TTT

Int.

Int,

Auth* Bonda

B Oakland, Calif

Publir • IIIIH^M HQllinffii flMbll

Ohio State Bonda

(radeamail)

Hew"

Auth Bfinfl!

Oregon State Bonda

" Philadelphia, PA New

Virginia State Bonds l» youngstown "

Public Hag.

unio New

Auth Bondi

" Merrill Lynch Ca«h

„

Mnt Arrf Tuv Pvcmp.- • ^i • | " n • n • n

i8R54Avfe3ressne^u.t

" Fairfax Cty, Virginia

Bonda

^Tlaconaln State Bonda

Int.

div.

Int.

Int.

-JTT ¥

Exempt

m

int,

N/A

Int.

int.

Int.

Int.

Ma

div.

int,

N/A

azt Jl^A.

TTTf35i

^ croa dlBcT?

R

BtfBhS^

•^1.<M« 1_

Exempt

l-fl.Mt to (J.MO 0«2,Mt to t.MH

-T-^*, VB—^V-W^-*"*—V*^ fitW

Ml.001 t» US,000
103

FINANCIAL DBOJOSURE REPORT (mill)

Boudin, Michael 3/23/92

VII. INVESTMENTS and TRUSTS - Income, value, transactions.

^ immtf. It-r cf IHIHIIIIM)

arssserth

TBST

TTT

m •ST: I

TST

TTT

m

in

ST

"ISP R

•

TIAA-CREF Retirement

P'«" 'Si i"t.

B8iil}eSJ* •tf^tll

l>6ri(btiai ^iia^nee

(part (par rental)

81BT^TIrving Street

r*mhri*qm MX L5X.

?iii^sgS'(g§cimssi

K rental); see note 4

IS) C rent

flKt0^ WinSFTi

I pruvlflBiit savings BE

Boston, MA (savings)( ) C

t Cooildge Bank, Cambridge MA (Savings i

3

Checking) (S i, DCS)

1 laiwi'Mli run i **U9m « »••• »41.M> •> u.ioc C-«I.»Ol xm I.M* »^>.M1 M IIS.000
104

FINANCIAL DISCLOSURE RETORT (GOM'd) Boudln, Michael

••u of a^trt

3/23/92

VIII. ADDmONAL INFORMATION or EXPLANATIONS ommm*,**

DC CERTIFICATION.

la compliMce wilk Ike provtsiou ot 2a VSC I 455 ud of AJvkoiy Opiaioa No 57 of ibe Advnory Commjlice on

Jadidal ActMtkt, and to the best of my kaowledfe al the time ifler reasoiuble inquiry. I dM aot perfonn any adjudicMacy

function in any litigation during Ike period covered by thB repon la whkh I. my tpoine, or my minor of depeodcal children

bad • floaadai iatereat, u defloed la Canon M:<3)(c). la Ibe outcome of rack Utipiion,

I certify that ali infonnaiioo givrn above (including infonnahoa pertaining to my ipouie and minor or dependent children.

if any) is aarurate, Ime. aad complete to Ike best of my knowtedge and belkC and thai any inlonnalion not reported waa

mjikkeU becaaM ll mei applicable Kauiocy provtaiom permitting aoa^UadoMue.

I rurther oenify thai earned iaoome from oataide emptoymeat aad koooraria aad Ike acoeptaaoe of gifu which have beea

reported ale la compliance wllk the pravWdH of 5 U S.CA. app 7, I 501 tL taf, 5 U-S C I 7153 and Judicial Contotooe

^..u-p a>d o.-cA ll, ir\i.

NOTE ANY INDIVIDUAL WHO KNOWINOLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S US.CA. APP. 6, I IM, AND It U.S.C I 1001.)

FILING INSTRUCTIONS:

Mai U^edOrtgu»l and 3 additiDoal copiea to: Judicial Ethica Comminec

United Statea Cotmi
105

AO-10

ATTACHMENT TO PART III

MICHAEL BOUOIN

REPORT DATED MARCH 23, 1992

Spouse's honoraria

1991

Washburn Law School

NYU Law School

Columbia Law School

1992

Creighton University
106

AO-10

ATTACHMENT TO PART VII

MICHAEL BOUDIN

REPORT DATED MARCH 23, 1992

Note 1: My Interest In the Covlngton & Burling

retirement plan Is reflected In three sets of Investments. One

portion Is Invested In contracts with Northwestern National

Life Ins. Co. and Transamerlca Life & Annuity Co. that

guarantee annual fixed Interest payments; a second portion Is

Invested In federal government securities managed by the

Vanguard Group, Inc., through Its Vanguard Money Market

Reserve — U.S. Treasury portfolio; and the remaining portion

Is Invested by four managers: Dletche & Field Advisors, Gagle

Asset Management, Gulf Investments Management, and Hudson

Capital Advisors. I have no Information regarding specific

Investments made by the separately arranged funds, but I am

advised that the plan Is widely diversified within the meaning

of Mr. Nebeker's letter of June 23, 1988, to Ms. Sposato.

This advise Is premised on the understanding that the holdings

of the four funds are aggregated for purposes of applying the

percentage limitations to the portfolio.
107

AO-10

ATTACHMENT TO PART VII

MICHAEL BOUDIN

REPORT DATED MARCH 23, 1992

Note 2: I am co-executor for the estate of my late

father, Leonard B. Boudin, and co-trustee of the trust

established under his will. My father died on November 24,

1989, the will was admitted to probate on March 1, 1990, and

the court issued letters of trusteeship on March 9, 1990. The

trust has not yet been funded but is to be funded out of the

estate pursuant to a formula set forth in the will. I am

advised that the trust is to be funded in an amount between

$550,000 and $600,000. The assets of the estate, other than

cash or cash receivables, are: 200 shares of common stock of

Biogin, Inc.; 50 shares of common stock of Automatic Data

Processing; 400 shares of stock of Codicorp; and one—half

tenant-in-common Interests in two pieces of residential

property, one located on Long Island and the other in New York

City. In addition to being a co-trustee of the trust, I have

a one-third remainder Interest in the trust, contingent upon

my surviving my mother, and the trustees have discretion to

pay income and principal to any of several beneficiaries,

including me.

2 -
108

AO-10

ATTACHMENT TO PART VII

MICHAEL BOUDIN

REPORT DATED MARCH 23, 1992

Note 3: The Wellfleet, Mass. rental house is 11 Ocean

View Drive; and it is located on Ocean View Drive at Cahoon

Hollow Road and is the only house whose driveway is at this

intersection.

Note 4: The Wellfleet, Mass. summer residence is 2 Cliff

Road; and it is reached by proceeding from Ocean View Drive

down Priscilla Road, turning right at the dead end onto Cliff

Road, and proceeding to the last house on that road.

3 -
109

FINANCIAL STATEMENT

ATTACHMENT E

Prwde a compleu, citrrMt fincocul n«l worth lUiement whkb nomizfii in deuil «Q MMU (including bank accouou. r»al

«uic, Mcwiuas. uuiu. mvejirnenu, ud oth«r financial holdings) all UabiLbM (including dabu, mortgagee, loans, and other financial

ottgibom) of younalf, your apouan, cod other immediate meenben ofjntu houtebold.

Mam

C-h oo hu.d uvJ ui btnU m IM

Hot- UpMl• bMki - p—l

9M »

U«in^-cuntm - Kid •chxlul.

Aooaali _4 •am minbto: Aanuou ad billi du.

Uop^d iaeaB. u

Oltac unpud ui ud isurau

•MM

D«« ftca ntaim« anl EnMda

Dmftaaalbm

DHMH

(Ml 0001

l««I MUU owned - .dd Kk^nla 2 sn an Ch.llel IDOftMM uid olhn li.iu

pqabl.

Olh.idebu-iucmi.:

AMM mud olhtr pwnonal propwly lt2 aoa

C-l, ^Ju. - lif. mrarioc

Ott-rm.u-il.inil.: 1 4J7 6M

Toul lUbditin (J4I 000)

N.t worA [Toul UMtf] 5 120 •61

ToUlUMIS 5 120 861 4 7)9 «61

——• UUUIB •MMLMMMinl

A»«dorj.r.com.kerorguirinior

(A<U KkMluleO

No

06 iMH. or COHUKU

LwdCUm

Hive you ever ukM buiknipMy?

No

Fntiaog fcr F«ter«l Incaa. To

MKVMUMI No
no

Cach pn Harrt «n<? tn Panics

Michael Boudln

First American Bank

Savings

Checking

Bay Bank

Cash on hand

$ 5,432

16,973

669

500

3/17/92 MB estim.

2/25/92 statement

3/9/92 statement

est. per MB 1/6/92

Martha Field

Cape Cod Bank

Coolidge Bank & Trust Co.

Provident Savings

500 est. per MF 3/10/92

500 est. per MF 3/10/92

302,000 est. per MF 3/10/92

Gabriel Field

Coolidge Bank t Trust Co. 150 est. per MF 3/10/92

Lucas Field

Coolidge Bank & Trust Co.

TOTAL

ASS.

$326,874

est. per MF 3/10/92
Ill

Listed and Unlisted Securities

Michael Boudin

The attached Merrill Lynch (as of 2/28/92) and

Prudential Bache (2/29/92) statements list my bonds, bond

funds, and money market accounts. For purposes of the main

fon I have treated bonds, bond funds, money market accounts,

and any cash balances as listed securities.
112

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123

3. Real Estate Owned

Michael Boudin

2814 Dumbarton Avenue, N.W. $ 400,000 MB est. 3/17/92

Martha Field

81 Irving Street, 800,000

Cambridge, MA

(residence; partly rented)

2 Cliff Road, Well fleet, MA 500,000

(summer residence;

rented sometimes)

11 Ocean View Drive, 500,000

Wellfleet, MA

(rental property)

TOTAL $2,200,000

MF est. 3/10/92

MF est. 3/10/92

MF est. 3/10/92

60-251 0-93—5
124

4. ftutgs ansl Qt^n^r Peraopa], Pyoperty

Michael Boudln

VW Cabriolet $ 8,000 MB est. 3/17/92

Household effects and

other personal property 50,000 MB est. 3/17/92

Martha Field

MF est. 3/10/92

MF est. 3/10/92

MF est. 3/10/92

Toyota Van

VW Golf

Household

other

effects and

personal property

TOTAL

26,

8,

LOO,

$182,

,000

,000

.QOQ

.000
Other A»g«t«

Michael Boudln

Covlngton & Burling $ 957,607

pension plan account

TIAA-CREF 24,093

pension plan account

Government TSP 1,984

pension plan account

Share of trust as described 200,000

on following page

2/1/92 statement

12/31/91 statement

10/31/91 statement

Martha Field

TIAA-CREF 254,000

pension plan account

TOTAL $1,437,684

MF eat. 1/6/92
126

March 1992

I am a co-executor for the estate of my late father,

Leonard B. Boudin, and co-trustee of the trust established under

his will. My father died on November 24, 1989, the will was

admitted to probate on March 1, 1990, and the court Issued

letters of trusteeship on March 9, 1990. The trust has not yet

been funded but la to be funded out of the estate pursuant to a

formula set forth In the will. I am advised that the trust Is

likely to be funded In an amount between $550,000 and $600,000.

The assets of the estate, other than cash or cash

receivables, are: 200 shares of common stock of Blogln, Inc.; 50

shares of common stock of Automatic Data Processing; 400 shares

of stock of Codlcorp; and one-half tenant-In-common Interests In

two pieces of residential property, one located on Long Island

and the other In New York City.
127

Real Estate Mortaaaes Payable

Martha Field

Mortgage on 81 Irving Street $ 97,000

payable to Harvard University

Mortgage covering both 244,000

Wellfleet houses payable

to Plymouth Mortgage Co.

MF est. 3/10/92

MF est. 3/10/92

TOTAL $341,000
128

81 Irving Street

Cambridge, Mass. 02138

April 10, 1992

Judicial Ethics Committee

Administrative Office of the U.S. Courts

Washington, D.C. 20544

Dear Sir:

In reviewing my financial records, I have just

discovered that some municipal bonds were inadvertently omitted

from my initial AO-iO filed March 24, 1992, when I was

nominated as Circuit Judge for the First Circuit.

The omitted bonds are of the same character as my

other, reported municipal bonds and were in fact disclosed in

other public filings including my final 1990 Executive Branch

public financial disclosure report which I filed with your

office on February 14, 1991, for information purposes.

In accordance with the amendments instruction, I am

enclosing an original and three copies of an additional part

VII page to be associated with my March 24, 1992, page as an

amendment; a copy of this letter accompanies each copy of the

new page.

There are four other minor corrections on the first

part VII page of the previously filed report: the B(l)

"income" codes for items 7, 13 and 20 are C, A and B

respectively (instead of B, B and C); and the Prudential Bache

Tax Free Bond Fund in item 7 is properly named Prudential Bache

Tax Free Money Fund. Finally, the nomination date of the first

page should be 3/20/92 instead of 3/27/92 -- a typographical

error.

Sincerely yours,

Michael Boudin
FINANCIAL DISCLOSURE REPORT (conld)

MAM* of >«t»cn ftapofClaq

Boudin, Michael

3/23/92

imended 4/10/ 12

VII. INVESTMENTS and TRUSTS - income, value, transactions, (ladudci UIUM ur xpuuse

•Dd ilcpeodent chUdreo; sec pp. lft-27 of Inslrudioiu.)

DMorlptiM of AMMU

:- i:r.T*. wbu* «ppllc«U«, OMMT of

•CJl" (or iMnt avn.i.hlp of roportPlo«* "(X|" aftM MCH.MMM

M—f txoa prloc ftl«rlnBir»

B.

aSruS

c.

TrMMOttou during tfaninq pmiioa

12)

'ST;

tit

m

111

don)

if not MMpt tto« timlemm

1>*T

ID

m

Cain.

EXEMPT EXEMPT NONE ino »port^i.

i

Connecticut State,Bgpds | Int. K, T

2

Virginia State Bonds (0 IB Int. K T

Wisconsin State Bonds(9 l)B Int. R T

Oregon State Bonds (99) B Int. K T

1

California State Boi^g^ B Int. K T

Rhode Island State 9gg^ 5 B Int. K T

Fairfax, Va. Bonds (06) B Int. K T

California State B^p^^ B Int. K T

Maryland State Bonds(03 B Int. K T

Maryland State Bonds(04 B Int. K T

New Jersey State Boij^j B Int. K T

Wisconsin State Bonds8> B Int. K T

Fairfax, Va. Bonds (09) B Int. K T

Illinois State Bondsdl B Int. K T

is

it

IT

11

It

10

1 InctM/CAiB CadMi »-(l,000 oc :••• »-fl.001 to |1,J00 C-91.901 u 9,000 D-39,001 to JIS.OOO

[SM Col, 11 ( 041 E-S1S,001 to S^O.OOO F-il0,0Ol to 1100.000 C-SID0.001 to 11.000.000 B-Moro th«« St.000,000

li*— Coi. Cl ft D31 1I-«350,M1 to SSOO.EKJO O-JSOO.OOl to Sl.OOO.ODO r-*c.in th«n SI.000.000

(SM Col. Q) U-leaft V.luo v-jiB«r W-l»tl*aC«d
130

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (Include any former names used.)

ANSWER: Jerome B. Simandle

Address: List current place of residence and office

address(es).

ANSWER: Home: 320 Westover Road

Moorestown, NJ 08057

Office: Room 320

u. S. Post Office t Courthouse

401 Market Street

Camden, NJ 08101-0888

Date and place of birth.

ANSWER: April 29, 1949 at Binghamton, New York

Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and business

address(es).

ANSWER: Married to Jane Darton, who is self-employed as a

Licensed Psychologist in private practice as sole

proprietor of Jane Darton, M.E-i., 1627 Waverly

St., Philadelphia, PA 19146

Education: List each college and law school you have attended,

including dates of attendance, degrees received, and dates

degrees were granted.

ANSWER: Princeton University

Princeton, NJ

Attended: Sept. 1967 to June 1971

Degree: B.S. in Engineering, magna cum

laude (1971)

International Graduate School

University of Stockholm, Sweden

Attended: August 1974 to June 1975

Diploma: Dip. Soc. Sci. (1975)

University of Pennsylvania Law School

Philadelphia, PA

Attended: Aug. 1972 to May 1976

(except one year leave of absence for

1974-75 fellowship at University of

Stockholm, Sweden)

Degree: J.D. (1976)
131

6. EnployaTit Record: List (by year) all business or professional

corporations, companies, firms or other enterprises,

partnerships, institutions and organizations, nonprofit or

otherwise, including finis, with which you were connected as an

officer, director, partner, proprietor, or employee since

graduation from college.

ANSWER: 1971-1972 - Management Trainee

U. S. General Services Administration

Regional Office

HcCormack Post Office t Courthouse

Boston, MA 02109

(Temporarily assigned to:

Economic Stabilization Progra

Internal Revenue Service

JFK Federal Building

Boston, MA 02203]

Summer 1973- Summer Legal Intern

University of Pennsylvania Law School

Government Policy Research Unit

3400 Chestnut Street

Philadelphia, PA 19104

Summer 1974- Summer Associate

Sullivan t Cromwell

125 Broad Street

New York, NY 10005

Summer 1975- Summer Legal Intern

Public Citizen Litigation Group

2000 P Street, N.W.

Washington, D.C. 20036

1976-1978 - Law Clerk to Honorable John F. Gerry

U. S. District Judge (now Chief Judge)

U. S. District Court for the District

of New Jersey

Camden, New Jersey 08101

1978-1983 - Assistant United States Attorney

for the District of New Jersey

U. S. Attorney's Office, Newark ('78-'79)

U. S. Attorney's Office, Trenton

('79-'83)

1983-Present - United States Magistrate Judge

0. S. District Court for the District

of New Jersey

Caaden, New Jersey 08101
132

Military Service: Have you had any military service? If so,

give particulars, including the dates, branch of service, rank

or rate, serial number and type of discharge received.

ANSWER: None.

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

ANSWER: (1) Graduated from Princeton University maona SUM

laude in 1971,

(2) Selected to University of Pennsylvania Law Review

in 1973; served as an associate editor in 1973-74

and as an editor in 1975-76.

(3) Selected by Rotary Foundation as a Rotary

International Fellow for one year graduate study

abroad. University of Stockholm, Sweden, 1974-7S.

(4) Received Edwin R. Keedy Award at graduation from

University of Pennsylvania Law School, 1976, for

"most scholarly contribution to the Law Review"

(5) Received Department of Justice Special Achievement

Award for "sustained superior performance," as an

Assistant U. S. Attorney in 1982-83.

(6) Selected as an original judicial member of Lawyers

Advisory committee for the District of New Jersey,

1983, by former Chief Judge Clarkson S. Fisher,

and continuing to the present.
138

9. pm *»«oelatloM: List all bar asBociations, legal or

judicial-related conittaaa or conferences of which you ara or

hava been a neaber and give the titles and dates of any offices

which you hava held in such groups.

ANSWER: Aaerican Bar Association

Federal Magistrate Judges Association

New Jersey State Bar Association

Caaden County Bar Association

Ca>den Aaerican Inn of Court

A founding aeaber, 1987

Master, 1987 to present

Prograa Chairman, 1990 to present

Judicial Conference of the United States,

Coaaittee on Court Administration and

Case Management

— Member, 1991 to present

Lawyers Advisory Coaaittee for the District of

New Jersey

— Judicial Member, 1983 to present

10. Other MMbtrBhiPB' List all organizations to which you belong

that are active in lobbying before public bodies. Pleaae list

all other organizations to which you belong.

ANSWER: ABA and Federal Magiatrate Judges Association have.

been active in lobbying, but I

have played no lobbying role.

Other organization aeaberships:

Philadelphia Orchestra Association

Mooreatown (N.J.) Historical Society

11. Court Adaission; List all courts in which you have been

admitted to practice, with dates of adaission and lapses if any

such aeaberships lapsed. Pleaae explain the reason for any

lapse of membership. Give the saae information for

adainistrative bodiea which require special adaission to

practice.

ANSWER: Supreme Court of New Jersey (December, 1978)

[continuous active status]

Supraae Court of Pennsylvania (May, 1977)

(active statue through 1983, then inactive status

due to full tiae judicial position]

12. Published Writings: List the titles, publishers, and dates of

books, articles, reports and other published material you have

written or edited. Please supply one copy of all published

material not readily available to the Coaaittee. Also, please

supply a copy of all speeches by you on issues involving

constitutional law or legal policy. If there were preaa
134

reports about the speech, and they are readily available to

you, please supply then.

ANSWER: Published Writings

(1) Ccnnent, "The EPA's Power to Establish National

Effluent Limitations for Existing Water Pollution

Sources,"

125 U.Pa.L.Rev. 120 (1976)

[attached at Tab 12(1)]

(2) Jerome B. Slnandle, "Judicial Management of Multiparty Hazardous Waste Cases," reprinted in ALIABA, Minimizing Liability for Hazardous Waste

Management at 135-150 (Washington, D.C., 1987)

[attached at Tab 12(2)]

(3) Stanley S. Brotaan k Jerome B. Slmandle,

"Superfund Case Management and Settlement

Processes," reprinted in ALI-ABA, Hazardous

Wastes. Superfund. and Toxic Substances. 175-192

(Washington, D.C., 1988) [attached at Tab 12(3)]

(4) Jerome B. Slmandle, "Common Discovery Problems and

How to Solve Them," reprinted in New Jersey

Institute for Continuing Legal Education, Seminar:

Federal Court Practice at 207-236 (New Brunswick,

N.J., 1989) [attached at Tab 12(4)]

(5) Jerome B. Slmandle, "Elements of Title 42, United

States code. Section 1983," in New Jersey

Institute for Continuing Legal Education, Seminar:

S6gti<?n 199}; Litigation Against Public Entitlw

(New Brunswick, NJ, June, 1991) [attached at Tab

12(5)]

(6) Jerome B. Slmandle, "Resolving Multi-Party

Hazardous Waste Litigation,"

2 Villanova Env. L.J. 111-141 (1991) (attached at

Tab 12(6) ]

(7) Jerome B. Slmandle, "Chapter 10: Pretrial

Management and Arbitration," in New Jersey

Institute for Continuing Legal Education, New

Jersey Federal Practice Handbook

(New Brunswick, N.J., January, 1992)

[attached at Tab 12(7)]
185

Texts of Si>««ch«a;

(8) "A View from the Bench: Roles of Counsel and

Court in Resolving Superfund Litigation," National

Conference of the Inforaation Network for

Superfund Settlements (Philadelphia, Pa., April

1991) [attached at Tab 12(8)]

(9) symposium Panelist: "Alternative Methods of

Resolving Environaental Disputes," reported in 2

Villanova Env. L.J. 1-55 (1991) [attached at Tab

12(9))

Note; I an aware of no press reports about these speeches.

13. Health: Whet Is the present state of your health? List the

date of your lost physical examination.

ANSWER: Excellent. January 7, 1992 and April 2, 1992.

14. Judicial office: State (chronologically) any judicial offices

you have held, whether such position was elected or appointed,

and a description of the jurisdiction of each such court.

ANSWER: United States Magistrate Judge

United States District Court for the District

of New Jersey

August 11, 1983 to present date.

Appointed by the Court, 1983 for eight-year term.

Unanimously reappointed by the Court, 1991,

for a second eight-year tern.

Limitations on Magistrate Judge's jurisdiction are

contained in 28 U.S.C. § 636. Magistrates in District

of New Jersey are used to the full extent permitted by

the Constitution and laws, see General Rule 40A

(D.N.J.), including conducting trials (jury and nonjury) in civil cases and criminal cases by consent of

the parties. Magistrates conduct virtually all

pretrlal case management and determination of nondispositive matters in this District Court.

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.
186

ANSWER: (1) Citations of ten ca«««:

(1) Robblns v. Camden City Board of Education.

105 F.R.D. 49 (D.N.J. 1983) (proportionality

of discovery in Title VII employment

discrimination case)

(2) ifUKttg v. Mafco Inttmational. Ind.

128 F.R.D. 619 (D.N.J. 1989) (imposing Rule

11 sanctions for frivolous notion)

(3) Johnston Development Group. Inc. v. Carpenters

Local Union No. 1578.

130 F.R.D. 348 (D.N.J. 1990) (availability of

deposition of opposing attorney)

(4) Public Service Enterprise Group. Inc. v.

Philadelphia Electric Co..

130 F.R.D. 543 (D.N.J. 1990) (discovery in

complex litigation concerning management of

nuclear generating station)

(5) Harrison Beverage Co. v. Dribeok Importers. Inc..

133 F.R.D. 465 (D.N.J. 1930), aff'd. 133

F.R.D. 463 (D.N.J. 1990) (amending pleadings;

delay)

(6) In re: Request from L. Kasper-Ansermet. Examining

Magistrate for the Republic and Canton of Geneva.

Btgt,

132 F.R.D. 622 (D.N.J. 1990) (international

judicial assistance)

(7) Curlev v. Cumberland Farms. Inc..

134 F.R.D. 83 (D.N.J. 1990), aff'd. 134

F.R.D. 77 (D.N.J. 1991) (attorney ethics

interpreting Rule 4.2 of the Rules of

Professional Conduct regarding contact

between attorney and corporate adversary's

former employees) [later adopted by the

American Bar Association's Formal Opinion 91-

359 (March 22, 1991), entitled, "Contact With

Former Employee of Adverse Corporate Party,"

resolving split of authorities]
137

(8; State of New Jersey Department of Environnental

Frgtggtipn v, gEMS. Infft.

138 F.R.D. 421 (D.N.J. 1991) (liaison counsel

fees in complex litigation; power of court to

manage multiple-party litigation through

designated liaison counsel)

(9) United States v. King. F. Supp. , 1991 WL

273884, 1991 U.S. Dist. Lexis 18601

(D.N.J. 1991) (federal criminal jurisdiction

under Assimilated Crimes Act); no appeal;

(10) Menatsaaan Melikian v. Anthony Corradetti. et

•!«.>

Civil No. 84-3480(SSB) (Rsport and

Recommendation filed June 1, 1989) ; adopted

as Opinion of the Court by Order of June 23,

1989) (J. Brotman); ailld. 893 F.2d 1330 (3d

Cir. 1990) (Judgment Order) [example of

imposing dispositive sanction for litigation

abuse] [attached at Tab 15(1)]

(2) Opinions reversed or criticized on appeal:

No opinion has been reversed or criticized on

appeal by a District Judge or by the U. S. Court

of Appeals for the Third Circuit.

(3) Citations for significant opinions on federal

or state constitutional issues

(1) In re Matter of Extradition of Bertrand.

1986 Hestlaw 8845 (D.N.J. 1986); no

appeal.

(2) G-69 v. Deanan. 130 F.R.D.

326 & 339 (D.N.J. 1990); case

settled.

(3) Brock v. Gerace. 110 F.R.D. 58

(D.N.J. 1986); case settled.

(4) Request from L. Kasoer-Ansermet.

Examining Magistrate for the Republic

and Canton of Geneva, etc..

132 F.R.D. 624 (D.N.J. 1990), aff'd.

132 F.R.D. 622 (D.V.J. 1990).
138

(5) United States v. Gloria Lee Day.

Mag. No. 89-1089J-01 (unpublished

opinion filed July 11, 1990)

[attached at Tab 15(2)]; no appeal

after conviction.

(6) Jola Bronstein v. Harbor Linen Services.

Civil No. 88-5074(G) (unpublished

opinion filed Oct. 1, 1991) [attached

at Tab 15(3)]; no appeal.

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.

ANSWER: 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 juige, the court, and

the dates of the period you were a clerk;

ANSWER: Law clerk to Honorable John F. Gerry

U. S. District Judge (now Chief

Judge)

U. S. District Court for the

District of New Jersey

Sept. 1976 to Sept. 1978

2. whether you practiced alone, and if so, the

addresses and dates;

ANSWER: 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;

ANSWER: Assistant u. S. Attorney

United States Attorney's Office for

the District of New

Jersey

September 1978 to August 1983:

Newark, NJ (1978-79);

Trenton, NJ (1979-83);
139

[was also Attorney in Charge,

April 1982 to August 1983]

United States Magistrate Judge

U. S. District Court for the

District of New Jersey

Camden, New Jersey

August 1983 to present

What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

ANSWER: As an Assistant U. S. Attorney, I

represented the United States, its

agencies, officers and employees in

affirmative and defensive civil

litigation in the feceral courts.

My experience covered a broad

spectrum of torts (with particular

emphasis on medical malpractice, swine

flu immunization, products liability,

radiation exposure), civil rights, labor

law, commercial (contracts, bankruptcy,

tax), constitutional torts (Bivens-type

actions), environmental, judicial review

of federal administrative action (Social

Security Act, Freedom of Information Act,

National Housing Act and many other major

federal programs) condemnations and

forfeitures. My work encompassed class

actions, multi-district litigation, and

representation of multiple plaintiffs and

defendants in non-jury and jury matters.

I also prepared ind argued all

appeals from my cases, in addition to

other appeals occasionally assigned to

me, before the U. S. Court of Appeals for

the Third Circuit.

I also prosecuted several criminal

cases and appeared regularly on criminal

pretrial and post-conviction matters.

I began in the Newark Office in

1978, and was transferred to the Trenton

Office in 1979 where I remained until

becoming a U. S. Magistrate in Camden in

August 1983. In April, 1982, I became

the Attorney-in-Charge supervising the

other attorneys and staff in Trenton.
140

Describe your typical former clients, and meritior

the areas, if any, in which you have specialized .

ANSWER: My clients were the United States, its

agencies, officers ard employees. Areas

of specialization and typical clients

included personal injury (U. S. Postal

Service), judicial review of

administrative action (Department of

Health and Human Services, Department of

the Interior, Department of

Transportation), medical malpractice

(Veterans Administration), employment

discrimination (Department of the Army) ,

constitutional torts (Federal Bureau of

Investigation), and

commercial/tax/bankruptcy matters

(Internal Revenue Service, Small Busines

Administration).

1. Did you appear in court frequently, occasionally,

or not at all? If the frequency of your

appearance in court varied, describe each such

variance, giving dates.

ANSWER: Frequently, I believe I appeared before

every active Judge of the Third Circuit,

and each District Judge, Magistrate and

Bankruptcy Judge in the District of New

Jersey.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

ANSWER:

1) Federal courts - Trial and Appellate - 95%

2) State Courts of record - 5%

3) Other Courts - None

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

ANSWER:

1) Civil - Trial and Appellate - 95%

2) Criminal - 5%
141

4. State the number of cases In courts of record you

tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

ANSWER: Approximately 12. Sole counsel or lead

counsel in all.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

ANSWER: a) Jury - 8%

b) Non-jury - 92*

IB. Litigation; Describe the ten most significant litigated

natters which you personally handled. Give the citations, if

the cases were reported, and the docket number and date if

unreported. Give a capsule summary of the substance of each

case. Identify the party or parties whom you represented;

describe in detail the nature of your participation in the

litigation and the final disposition of the case. Also state as

to each case:

(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 feach of the

other parties.

ANSWER:

(1) Stich v. United States. 565 F. Supp. 1096 (D.N.J.

1983), aff'd. 730 F.2d 115 (3d Cir. 1984), cert,

denied. 469 U. S. 917 (1984).

The national swine flu iraunization program

gave rise to 44 cases in New Jersey alone, and

more than 1,000 cases nationally, brought by

persons allegedly injured by receiving the

vaccination. Of these, the Stich case was one of

the most Important because it tested the

nationwide defensive policy and position of the

Public Health Service and Department of Justice in

such matters, namely, that only one disease or

condition, called Gulllaln-Barre Syndrome (GBS)

could have been caused by the vaccine in some

persons. The plaintiff, Miriam Stich, developed a

devastating neurological disease soon after being

immunized, losing almost all mental and physical

faculties. Her doctors and experts attempted to

identify it as GBS. We took the position that the
142

condition was caused instead by a viral

encephalitis. After 40-plus days of trial, aostly

consisting of expert testimony, in which I was th«

trial attorney, the court largely adopted sy

proposed findings of fact and conclusions of law

in a lengthy opinion, finding that plaintiff's

disease was not GBS and that the iasunization did

not cause her illness. My proposed findings of

fact and conclusions of law were about 200 pages

long. I did not handle the appeal because I had

been selected as U. S. Magistrate by that tine.

The significance of this trial is three-fold:

(1) it was probably the longest non-jury trial in

this court in recent aeaory; (2) the complex

issues and the sophisticated tactics of

plaintiff's trial teas required mastery of

experts' views at the outer limits of neurological

and epidesiological research; and (3) the result

had national significance to the United States'

defense of post-immunization cases.

a) Dates of Trial - Intermittent through

1981 - 1982.

b) United States District Court for the

District of New Jersey, before the

Honorable Harold A. Ackeman, U.S.D.J. at

Trenton.

c) Opposing Counsel:

Louis Drazin, Esquire (deceased)

Dennis Drazin, Esquire

Drazin ( Harshaw

25 Reckless Place '

Red Bank, NJ 07701

(908) 747-3730

Supervisory Counsel:

Jeffrey Axelrad, Esquire

Director, Torts Branch

Civil Division

U. S. Department of Justice

Washington, D.C. 20530

(202) 724-9875

(2) Hovsons. Inc. v. Secretary of the Interior. 519 F.

Supp. 434 (D.N.J. 1981), aff'd. 711 r.2d 1208 (3d Cir.

1983).

In 1980, Congress passed the Pinelands

Protection Act creating a Billion-acre national

preserve in southern New Jersey. This case

challenged the constitutionality of the Act and

the Secretary's decisions made under the Act. My

role as the sole trial counsel was to assemble the
143

extensive administrative recorl and to advocate

the defendant's position in complex motion

practice and at the hearing. The District Court

upheld the Secretary's decisions. I also briefed

and argued the successful appeal before the Third

Circuit.

The significance of the Hovsons case lies in

the upholding of a federal statute for

comprehensive land management through statedetermined regulation, controls and compensation

for landowners, in a unique and fragile

environment.

a) Dates of hearing - 1981

b) U.S. District Court for the District of

New Jersey, before the Honorable Anne E.

Thompson, U.S.D.J., at Trenton.

c) Opposing Counsel:

Robert V. Paschon, Esquire

Paschon & Feurey

1005 Hooper Avenue

Toms River, NJ 08753

(908) 341-3900

Counsel for Co-Defendant

State of New Jersey:

Richard Hluchan, Esquire

{formerly Deputy Attorney General for

State of New Jersey)

Levin k Hluchan

1200 Laurel Oak Road

Voorhees, NJ 08043

(609) 627-8555

(3) Gloucester County Concerned Citizens v. Goldschmidt.

533 F. Supp. 1222 (D.N.J. 1982)

This case under the National Environmental

Policy Act (NEPA) challenged federal approval for

design and construction of Route 55, a major new

superhighway in southern New Jersey.' As the sole

attorney representing the Secratary of

Transportation, my function was to assemble the

lengthy administrative record, including the

augmentation of the record of the agency's

environmental impact statement (EIS). I prepared

all briefs and arguments. This EIS was prepared

or. a voluntary remand to take new developments

into account. Upon review of the voluminous

record, the court affirmed the Secretary and the

highway's construction was completed.

a) Date of Hearing - 1982
144

b) U. S. Diatrlct Court for th« District of

New Jersey, before the Honorable John t.

Gerry, U.S.D.J., at Caaden.

c) Opposing Counsel:

Wayne Partenhaiaer, Esquire

498 North Kings Highway

Cherry Hill, NJ 08034

(609) 795-2485

(4) U. S. Postal Service v. DiCoreia. 605 F.2d 1199 (3d

Cir. 1979) [judgaent order]

In August of 1978, a national postal strike

began in northern New Jersey Bail facilities.

Several weeks before I joined the U. S. Attorney's

office, ay predecessors obtained a preliainary

injunction against dozens of striking postal

workers before the Honorable Frederick B. Lacey,

in Newark, and the postal strike was blocked.

Judge Lacey's oral opinion was unreported. I was

assigned to handle the briefing and arguaent upon

the appeal before the Third Circuit. The issues

included the constitutionality of the provisions

of federal law precluding strikes by postal

workers, as well as the sufficiency of procedures

leading to the injunction and the scope of the

injunction. After arguaent, the Third Circuit

upheld the anti-strike injunction by entry of a

judgment order, affirming that employees of the

federal government do not have a right to strike.

a) Date of Hearing - 1979

b) u. s. Court of Appeals for the Third

Circuit.

c) Adversary Counsel:

David Xairya, Esquire'

Kairys t Rudofsky

924 Chestnut Street

Philadelphia, PA 19107

(215) 925-4400

Supervising co-counael:

Susan P. Engelaan, Esquire

(former Deputy Chief, Civil Diviaion)

Vice President, Environmental Health and

Safety Affaire

Hoechat Celaneae Corp.

Bridgewater, NJ

(908) 231-4479
146

(5) Jeraev Anns Works v. Hiaalna. and Bureau of Alcohol.

Tobacco k Firearms. Civil No. 83-1130 (SSB)

[unpublished]

Manufacturers of weapons are precluded from

selling guns capable of automatic fire (machineguns) without a special license. In this case, I

was the trial counsel defending the decision of

the Bureau of Alcohol, Tobacco and Firearms to

preclude the plaintiff from the manufacture and

sale of a firearm capable of automatic fire with a

slight modification. After the trial, the court

agreed that a weapon readily convertible to

automatic fire is the equivalent of a machine-gun,

banned by the statute. The court upheld the

administrative injunction against further

manufacture and sale of the weapon.

a) Date of trial - 1983

b) U.S. District Court of the District of

New Jersey, before the Honorable Stanley

S. Brotman, U.S.D.J., in Camden.

c) Opposing Counsel:

Glenn P. Callahan, Esquire

Callahan, Delanay t O'Brien

Suite 210 Lake Drive East

Cherry Hill, NJ 06002

(609) 482-2900

(Note: Mr. Callahan is currently

President of the Camden County Bar

Ass'n]

(6) Possesskv v. National Flood Insurers Ass'n. 507 F.

Supp. 913 (D.N.J. 1981)

The claimant sought coverage and payment

under a policy of flood Insurance underwritten by

the defendant National Flood Insurers Association.

I removed the case from the state court, obtained

substitution of the proper federal defendant, and

moved to dismiss for lack of jurisdiction.

Although the program is federally funded, there

was a split of authority whether it is a function

of the sovereign and whether Congress waived

sovereign immunity to permit t.te courts to have

jurisdiction in such suits.

The court found that the federal court has

exclusive jurisdiction in such matters under 42

u.s.c. f4072, granting my motion for dismissal

since the original complaint had been filed in the

state court and the federal court derived no

jurisdiction upon removal.
146

The case's significance lies in establishing

the principle that the sovereign has waived its

immunity in flood insurance claims only where the

claimant complies with the claims requirements of

the regulations and statute and files suit in a

timely manner in the federal court having

exclusive jurisdiction.

a) Date of hearing - 1981

b) U. S. District Court for the District of

New Jersey, before the Honorable

Dickinson R. Debevoise, U.S.D.J., in

Trenton.

c) Opposing Counsel:

George B. Espositc, Esquire

147 West End Avenue

Box 697

Somerville, NJ 08876

(809) 725-5404

(7) Robert W. Sullivan v. United States. Civil No. 78-

0314(GSB) [unpublished]

Personal injury cases under the Federal Tort

Claims Act constituted a significant portion of

the caseload. I defended the U. S. Postal Service

against a slip-and-fall claim. Through the

client's investigative efforts, eyewitness

testimony demonstrated that the accident could not

have happened where the plaintiff claimed.

Plaintiff fell on the street, and not on postal

property. The credibility of the plaintiff was

undermined, and the non-jury trial resulted in

judgment in favor of my client.

Although the case is rather ordinary, its

significance lies in confirming the decision to

offer no settlement in a non-msritorious case. Of

such "no-pay" cases, each one chat I tried

resulted in a verdict of no cause for action.

a) Trial Date: July 10, 1979

b) U.S. District Court for the District of

New Jersey, before Honorable Robert E.

Cowen, u. S. Magistrate (by consent)

[Judge Cowen now sits on the Third

Circuit Court of Appeals], in Trenton.

c) Opposing Counsel:

Dennis Drazln, Esquire

Drazin i Harshaw

25 Reckless Place

Red Bank, NJ 0770/

(908-) 747-3730
147

(8) United States v. One 1980 Chevrolet Corvette. 564 F.

Supp. 347 (O.N.J. 1983)

On behalf of the U. S. Bureau of Alcohol,

Tobacco and Firearms, I sought and won forfeiture

of a vehicle used to transport illegal firearms to

an undercover deal, notwithstanding the innocent

owner defense claimed by the vehicle's lienholder.

Svumary judgment of forfeiture was granted despite

strenuous opposition. The court held that the

claimant had failed to perfect his lien upon the

automobile, which was ordered forfeited to the

United States. I was trial counsel who prepared

and argued the government's case, but there was no

trial.

The result may be significant because it

confirmed the availability of summary judgment in

forfeiture cases, even when opposition is

presented, when issues of title and ownership are

raised.

a) Date of hearing - 1983

b) U. S. District court for the District of

New Jersey, before tha Honorable John H.

Bissell, U.S.D.J., in Trenton.

c) Opponent: (for Claimant Szostek)

Milton Diamond, Esquire

1 Kettle Creek Rozd

Freehold, NJ 0772;:

(908) 432-3979 <.

(9) Gloria cordiano v. United States. Civil No. 81-

1369(AET) [unpublished]

The plaintiff in this personal injury case

claimed that my client, the Postal Service, was

negligent when a postal driver hit plaintiff and

her vehicle as she was emerging from her parked

car. The reconstruction of the accident was

inconclusive, and the case was tried by me before

the court sitting without a jury.

From the real evidence, including the

vehicle's door itself, the court found in my

client's favor, noting that the postal driver was

not traveling too close to the line of parked cars

and that the plaintiff's negligence barred

recovery.

The case demonstrates that a moving vehicle

can have an accident with a parked car (opening

its door) yet not have the preponderance of

negligence, and also that the real evidence (the
148

argle of impact of the crumpled door) can be a

powerful tool for impeachment.

a) Date of trial - 1983

b) U. S. District Court for the District of

New Jersey, before the Honorable Anne E.

Thompson, U.S.D.J., at Trenton.

c) Opponent:

Robert J. Foley, Esquire

1124 Route 202

Raritan, NJ 08869

(908) 722-5992

(10) Deloren Steinke v. United States. Civil No. 81-

2348(JFG) [unpublished]

This case arose from an accident at Fort Dix, New

Jersey, in which the plaintiff clained that the

defendant failed to properly maintain a floor, causing

plaintiff to fall and injure herself rather severely.

I was the trial attorney in this two-day non-jury

case, representing the defendant. The case turned on

testimony of plaintiff's expert witness, as well as

plaintiff's own credibility. The court found in favor

of defendant, no cause for action, in Findings of Fact

and Conclusions of Law filed May 16, 1983. No appeal

was taken.

a) Date of trial - March 8-9, 1983

b) United States District Court for the District

of New Jersey, before the Honorable John F.

Gerry, U.S.D.J., at Camden.

c) Opposing Counsel:

Frederick S. Schofield, 3rd, Esquire

4276 Harbor Beach Blvd.

Brigantine, NJ 08230

(609) 266-4700

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.)

ANSWER: The most significant challenge 1 have faced arises

from my experiences as the case management and

settlement judge of four complex multi-party cases

involving remediation of Superfund sites. The U.

S. District Court for the District of New Jersey

probably has as many Superfund sites in litigation

as any federal court in this nation. Four such
149

cases before me In Camden Involve sites that are

among the top twelve (12) on the EPA's National

Priorities List. These Superfund cases have been

ny responsibility to manage as the Magistrate

Judge in Camden, under the authority assigned by

the District Judges.

My task has been to manage these cases that

involve hundreds of potentially responsible

parties from which the Government demands a remedy

or the funding of a remedial plan to clean up the

landfills. These Superfund cases challenge the

objectives of speedy, just and efficient

resolution of disputes. I have attempted to apply

creativity and orderliness to streamline the

litigation and settlement processes, recognizing

that the standard procedures for federal

litigation would poorly serve the interests of the

litigants and the public.

This type of case was new during the past

decade, and little prior guidance exists. The

concept of a megatrial involving hundreds of

attorneys grew unthinkable, and new methods

emerged for managing the litigation toward a

negotiated resolution. I have developed a model

for managing multi-party complex cases, about

which I have written and lectured. These four

cases are described briefly:

(1) United States v. Price. Civil Mo. 80-4104

A settlement was achieved among all SO

parties creating a fund of $17,150,000 in

1987 to pay for the Government's remedial

plan for Price's Pit in Atlantic County,

New Jersey. This was the first major

settlement under the 1986 Superfund

amendments, and the case is closed.

(2) State of New Jersey Deot. of Environmental

Protection v. GEMS. Inc.. Civil No. 84-0152

This case has about 500 parties who are

alleged to be potentially responsible for

the disposal of hazardous substances at

the GEMS Landfill in Gloucester Township.

A significant number of the parties

engaged in a court- supervised settlement

process, resulting in (a) the design and

acceptance of the remedy for the

landfill, and (b) the funding of a $32

million trust in 1989 to design and

construct the major piase of the remedy,

which is nearing completion. The case

remains open as final phase negotiations
150

begin and litigation la continuing. Ttia

management of this cas* is described by

Judge Brotman in State v. CEMS. Inc.. 719

F. Supp. 325 (D.N.J. 1989).

(3) United States v. Roha | Kaaa Company. Civil

No. 85-4386

The Lipari Landfill, in Mantua Township,

is the top-ranked Superfund site on the

National Priorities List. Intensive

court-supervised efforts to resolve the

presently outstanding issues in this case

among the major participants are nearing

completion. In 1989, the achievement of

a settlement ending the case for the tan

(10) so-called ds minimis parties,

creating a $3 million fund, was the first

such settlement negotiated under the

current Superfund statute. The de

minimis settlement was approved by Chief

Judge Gerry in United States v. Rohm j

Haas Company. 721 F. Supp. 666 (D.N.J.

1989).

(4) United States v. Helen Knmer. Civil Nos. 89-

4340 b 89-4380

The most ambitious settlement effort,

among more than 200 parties, is governed

by a settlement protocol drafted by the

parties' representatives defining the

court-supervised alternate dispute

resolution process. These parties are

collecting and analyzing the data

necessary to achieve an allocation of

potential liability with the aid of

outside technical consultants. This

process that can speed a fair resolution

and markedly cut transaction costs when

compared with standard litigation of a

complex case. Litigation continues on a

parallel track among the relatively few

parties choosing not to participate in

the settlement procesn.
161

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options, uncompleted

contracts and other future benefits which you expect to derive

from previous business relationships, professional services,

firm memberships, former employers, clients, or customers.

Please describe the arrangements you have made to be

compensated In the future for any financial or business

Interest.

ANSWER: Refund of past contributions to Civil Service

Retirement System, totaling approximately

$18,769.27, upon resignation from position of U.

S. Magistrate Judge upon talcing oath as u. S.

District Judge.

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.

ANSWER: If any future circumstances should present a

potential conflict of interest, I would resolve it

as in the past during my tenure as United States

Magistrate Judge by rigorous application of the

Ethics in Government Act and the Canons of

Judicial Conduct, and by consulting the

interpretive guidance provided by the Judicial

Conference of the United States. There have been

no categories of cases presenting potential

conflicts during my eight years as a federal

officer, and I would anticipate no change. In

rare instances when immediate family members are

personally acquainted with parties to litigation,

I have recused myself and will continue to do so.

Do you have any plans, commitments, or agrenments to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

ANSWER: No.

List sources and amounts of all Income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more. (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)
ANSWER: Financial Disclosure Report for period January 1,

1991 to March 31, 1993 (dated April 3, 1992) is

attached.

5. Please complete the attached financial net worth stateaent in

detail. (Add schedules as called for).

ANSWER: Financial Net North Statement end

Schedules are attached.

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

campaign? Tt eo, please identify the particulars of the

campaign, including the candidate, dates of the campaign, your

title and responsibilities.

ANSWER: No. I have been precluded from political activity

as a federal employee since 1976 under applicable

law.
153

/

III. GENERAL (PUBLIC)

t

An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

ANSWER: I have participated extensively in continuing

legal education activities for the benefit of

bench, bar and law students.

For example, I have instructed other judges

in seminars by the Federal Judicial Center and the

New Jersey State Judicial Coll-sge.

I have been a frequent speaker at seminars

sponsored by the American Bar Association, New

Jersey State Bar Association and New Jersey

Institute for Continuing Legal Education. These

lectures and panels for lawyers have examined

topics such as environmental law, complex case

management, civil rights litigation, and pretrial

discovery.

I have taught as a guest speaker at various

colleges and law schools and have annually served

as a judge in moot court competitions of law

schools. Such teaching of young lawyers also

occurs at the monthly meetings of the Camden

American Inn of Court, for which I am program

chairman, teaching young lawyers about trial

techniques, ethics and professionalism.

Also, I served as the Equal Employment

Opportunity Coordinator, u. S. Bankruptcy Court

for the District of New Jersey, from 1983-1988. I

collected data and forwarded our District's annual

compliance review report to the Administrative

Office of the U. S. Courts in Washington. I would

have been the hearing officer in the event of

complaints, but no complaint was received during

my tenure.

Also, to assist pro se litigants and less

experienced attorneys in federal civil practice, I

authored a practical handbook in 1983, revised

biannually and distributed fre<i of charge,

entitled "Basic Elements of Civil Practice in

Camden Vicinage" (rev. ad. 1991, with Hon. Joel B.

Rosen) [attached at Tab 111(1)].
154

3. 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?

ANSWER: I have not belonged to such an organization.

3. Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts? If

so, did it recommend your nomination? Please describe your

experience in the entire judicial selection process, from

beginning to end (including the circumstances which led to your

nomination and interviews in which you participated).

ANSWER: There is no such selection commission in the

District of New Jersey. My experience in the

judicial selection process began in 1990 when

several attorneys, federal judges and persons

active in political life encouraged me to seek

appointment as the successor to the Honorable

Stanley S. Brotman, in Camden, when Judge Brotaan

assumed senior status effective in April, 1990. I

was interviewed at the u. S. Justice Department

for the first time in late April of 1990. I

learned that the interviews went well, but that I

had not been selected by August of 1990. Renewed

efforts on my behalf started wnen three new

judgeships were created for the District of New

Jersey under the 1990 legislation. I participated

in interviews with four Members of Congress froa

New Jersey in the Fall of 1991, and a second round

of interviews at the Department of Justice In

December of 1991. On December 20, 1991, the

Department of Justice informed me that I was the

candidate for nomination to the unfilled

judgeshlp.

Thereafter, I participated in the interview

incident to the routine FBI background

investigation with the Special Agent assigned to

coordinate the investigation on December 27, 1991,

and in the interview Incident to the American Bar

Association Investigation with the Circuit

Representative on February 14,.1992.

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 Banner that could reasonably be
155

interpreted as asking how you would rule on such case, issue,

or question? If so, please explain fully.

ANSWER: 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

becoae 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 farreaching orders extending to broad classes of

individuals;

c. A tendency by the judiciary to impose broad,

affirmative duties upon governments and society;

d. A tendency by the judiciary toward loosening

jurisdictional requirements such as standing and

ripeness; and

e. A tendency by the judiciary to impose itself upon other

institutions in the manner of an administrator with

continuing oversight responsibilities.

ANSWER: Federal courts have the constitutional

responsibility to decide cases and controversies,

that is, to adjudicate disputes that are properly

within the limited jurisdiction of the courts.

Judges must be restrained in their exercise of

this authority and resist any tendency toward

broadening jurisdiction beyond that fixed by

Congress. This restraint upon judicial power

springs from constitutional underpinnings and from

the self-restraint of judges, whose mission is to

interpret the law and to apply it to the facts

developed in the adversarial process. Courts

should, for example, avoid reaching issues of

constitutional dimension if not necessary to the

decision of the pending matter.

60-251 O - <M — «
156

Judicial restraint also serves to protect the

independence of the judicial branch. Judges do

net make the laws, nor do they execute the popular

will. Judicial independence, constitutionally

promoted by life tenure, is best served and

protected by judges who strive to address the

matters framed within the case before them rather

than the problems of society at large. Indeed,

the acceptance of judicial decisions rests upon

the litigants' assured knowledge that the court is

impartial and not motivated by causes beyond the

courtroom.

Judicial adherence to precedent and interpretation

of the plain meaning of statutory commands also

builds confidence in the integrity of judicial

decisiorunaking. Judicial interpretation of a body

of law should not change according to the

personalities or philosophies of the judicial

officers, nor of the parties before them.
157

I gg I FINANCIAL DISCLOSURE REPORT Slri5^^^rST-

^^^~~^-^mJ II U.I.C*. Af*. «, 11101-1131

SIMANDLE, JEROME B.

•- 11 ii« (Am«la (Am«l« III in ]JMM* UAlcaW actl** oc jarjsriSf,,~' •'*• ""-

• S. District Judge

r ottlM t

U. S. Post Office i Courthouse

P. 0. Box 888

Camden, NJ 08101-0888

U. S. District Court

District of New Jersey

-" 4/US?

ipril 3, 1992

1/1/91 to

3/31/92

ncrorrAjfT NOTISI TVT

I. POSITIONS. fReponinj indivKluil ooh-, sec pp. 74 of ImmaiOB.)

ESSmSaj NAME OF OROANlZATlON/ENnTV

j NONE i

II. AGREEMENTS, (Rtfonag tatMavti otr, iee p. 8-9 of Imimcuoni i

OUTS, PARTIES AND TERMS •

III NON-INVESTMENT INCOME. (Rerona, UUvMul ud .poaK ice pp. 9-12 of Imnakm.)

..Bag „ SWKCE rtW> Tm GROSS INCOME

(HnnnnBi oaly) (yoan. 001 iponc'i)

J NONE 1

Soouse, Licensed Psvcholooist fSelf-Enrnlnvpril $_

S_

. s_

. s_

s
158

FINANCIAL DISCLOSURE REPORT (onl'd)

Jerome B. Slmandle 4/3/92

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertaimnent.

SOURCt

J NONE ia.a

Exemci

PEynumof

V. OTHER GIFTS

ladkatc otbrr BlfU imiml by

(S)' md •(DC)'

rMHui. mptnhrjy. S« pp.15-1* tt'

D

SOUMCE

NONE in ••

DEsaumoN VALUI

VI. LIABILITIES, amdmim ibMt of •p»Ml ud dipiMdml cMUim i^k«c •*« •••llwMd, ptrwui iMpMMt

br UaMIity br lulnj lie purubctlal 'IS)' lor mmmam UaMUn of inouu. '(J)" lor Joial IMdlMT of f«yort«c

tadMdiul aod ipouw, aad'(DO* lor UaMUl; of • dtpmdm Ha K|fJEll oTlmlnKtlMU.)

OED1TOK DESCRimON VALUE CODE-

' I NONE !•• rMirt"i« lia*iliU«ai

Farmers | Mechanics S t L Mortoaae on fnrnor residencg _JS

Mnnroe^nwn \'1 now h»lri fnr r.nt-^l UJ

Wnrrnj^c ;«^rm.-'.. Mortgage nn iponao'c; hncin-».

Firemans Fund Kortaaq^ nrnp.r^y .^T..,-^ •„ .oat , T<

fiarwABaji P''r sniirn*-.—BJU
158

FINANCIAL DISCLOSURE REPORT (mal'd)

Jerome B. Slmandle

BM« of mini

4/3/92

VII. INVESTMENTS and TRUSTS - income, value, transactions.

••* ««peod«oi cklMnv MI pf. 11-27 of le Itwn )

'S£ sa asj

i3S

m

•ST:

TE.r

—rrrW1

* ?s; ^T

•

aiMg residence as Pent

"•ncai property i J J ;

Moorestown, NJ

Wor K ma Assets Mone*. F :nq

Indianapolis, Ind:

ta) Money Market Acct

m

fb1Keouqh Retirement

Accts (S)

Soouse's Professional

• Office (J)

i fi37 ?i uaamtiu **

Philadelphia, PA

Commerce Bank,

>J Moorestown. NJ

cnecmna Acct IS) 1 r. i •

Eaccow fccct

[Deposited escrow m

security deposit]

nT-oyfMC Tr"cr

' Iransfery Previously Work

tesgts IRA

Century Fund

i. HrWlflftftM, Hi

ia) IRA's (Self 4 Spousci

HWMH

»-Jl,601 to tl.SOO c-i:,soi to i.eeo &-IS.001 to tU.DOO

(••• cm. ai MMUUUUC-
160

FTNANCIAL DISCLOSURE REPORT (coei'll)

VIII ADDITIONAL INFORMATION or EXPLANATIONS a-oo. ^n <>r R^ot.)

IX. CERTIFICATION

ID compUucc with the provuioiu of 28 US C f 4SS ud o( Advnory Opinion No. 57 of (be Advisory Comnuttec oi

Judicul Acttviiies. «od to the best of my knowledge at the Umc mttcx reuoiublc inqwfy, I dkl DOI perform tatf ad}«

(unamn ID any liiigauoB dunni ibe penod covered by ihn repon to whicb I. my spouse, or my mioor or <

had a fioancial imereat. as defined is Caooo 3C(3)<c). in ibe outcome of such litigation.

I oemfy thai all uUonnaiioD pven above (including informmon penaining to my spouse and minor or dependent chiWrer

If anvj is accurate, true, and complete to the best of my knowledge and bellel. and that any infomuuon not reported m

withheld becauae it net appbenbte sututory provuiom permnuag oon-dttdoavre.

I further oerufy thai enroed inoooie from outside employnem and hoaorana and the accepunoe of gifts which have bee

reported are In oompUance with the provmons of S U S.C.A. app. 7, | SOI et seq.. 5 U S.C i 7333 ud JudJdaJ Coafereac

Signature i m t& /•

NOTE: ANV/INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPOR

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA APP. 6. « 104. AND 18 U.S.C | 1001.)

FILING INSTRUCTIONS:

Mail signed orlgiaal and 3 additional copies to: Judicial Ethics Comminee

Admuustraifve Office of the

Uniud Siaiea Couns

Wsitunpoo. DC 2QS44
161

NET WORTH

JEROME 3. SIMANDLE & JANE CARTON

I»I iwmm ——i which tmtmh <MJ »•—II c»iiyiiiin >—

•ccouMi. ml ntil«. stcunliej. tnnU. I——• and MlMr tmincial hoWintl) ill IMUHici (indudinf MbU.

mortfafts. loans, and other financial oMifationt) o( younaH. your ipouM. and other imfnadiata iiwmban of

your houiamid.
162

(Continual)

FINANCIAL STATEMENT

Schedules

Heal Estate Cwned

(1) P.esidencet 3

2

0 Westover r.oad

Moorestown, KJ 08057 5300,000.00

(2) ?.ental Propertyi 322 Jest i-'Ain Street

Moorestown, NJ 08057 125,000.00

(3) J« Darton Office (Rowhou8e)i

162? v/averly Street

Philadelphia, ?A 191'*6 128,000.00

Heal Zstate Mortgages Payable

Totax $533,000.00

(1) abovei Meritor Mortgage

3001 Market Street — 1 West

Philadelphia, PA 1910U-2818 $10U,811.Wf

(2) abovei Fanners & Mechanics Savings

Sunset & Salem Roads

Burlington, NJ 08016 2U,200.00

(3) abovei Source One Mtge. Serv. Corp.

(formerly Fireman's Fund Mtge. Corp.)

27555 Farmington Road

Farmir.gton Hills, U '*833U-3357 53,000.00

Total $182,011.44

Other Liabilities Owed

In addition to the Real Estate Mortgages, above,

the following automobile loan is outstanding, on

which payments are currenti

First Fidelity Bank, N.A., S«th Jersey

Installment Loan Dept.

P. 0. Box 1349

Burlington, NJ 08016 $4,600.00

Total $4,600.00
163

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Richard George Kopf

2. Address: List current place of residence and office

address(es).

Residence:

94 55 Pauline St.

Omaha, NE 68124

Office:

215 N. 17th St.

P. O. Box 457

Omaha, NE 68101

3. Date and place of birth.

Toledo, Ohio

December 1, 1946

4. Marital Status: (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and business

address(es).

Widower. My wife, whose maiden name was Verdella (NHI) Blank,

died December 26, 1986.

I am engaged to marry Ms. Joan K. Stofferson, nee Wagoner.

She is not presently employed full time. She works part-time

for Hillis t, Company, 230 N. 7th, Lincoln, NE 68508, and Coy

Marketing, 380 Bruce Dr., Lincoln, NE 68510.

5. Education: List each college and law school you have

attended, including dates of attendance, degrees received, and

dates degrees were granted.

University of Nebraska at Kearney, then known as Kearney State

College, 1965-1969, B.A. (Nay, 1969); University of Nebraska

College of Law, 1969-1972, J.D. (May, 1972) (with

distinction).

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.
164

The Honorable Donald P.. ROBS, Senior United states Circuit

Judge, Eighth Circuit Court of Appeals, May, 1972, through

January, 1974.

From February, 1974, until my appointment as a United States

magistrate judge in February, 1987, I practiced with the firm

of Cook, Kopf & Doyle, P. o. Box 100, Lexington, NE 68850, now

known as Cook, wightman & Doyle.

From February 1987, until the present, I have been a full-time

United States magistrate judge for the District of Nebraska.

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.

While at Kearney State College, now known as the University

of Nebraska at Kearney, I was elected president of the student

body, voted outstancftng senior man by the faculty, and voted

a member of Who's Who in American Colleges and Universities

by the faculty.

While at the University of Nebraska College of Law, I was

awarded a three-year, full-tuition scholarship by the Nebraska

Board of Regents. I was selected by the faculty as a member

of the Order of the coif and the Order of the Barristers. I

was a member and editor of the Nebraska Law Review. I

graduated in the top 5.5 percent of my class at the University

of Nebraska College of Law, and received my degree "with

distinction." I was a member of the winning team in the Allen

Moot Court Competition and coauthor of the best brief therein.

I was a member of the winning team in the Regional National

Moot Court competition of the Association of the Bar of the

City of New York. Our team won the best brief award, and I

won the best oral argument award from the American College of

Trial Lawyers. I competed in the National Moot Court

competition of the Association of the Bar of the City of New

York.

I received a commendation in the form of a resolution of

the SSth Legislature, Second session, of the State of

Nebraska, in appreciation for legal service to the Special

Commonwealth Committee and the Legislature of the state of

Nebraska.

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165

Every two years the Nebraska State Bar Association surveys

aenbers of the Bar Association who must be memters in order

to practice law in the State of Nebraska. The purpose of this

survey is to determine whether or not judges should be

retained in office. In 1988 my retention percentage was 95.7

percent, and in 1990 my retention percentage was 96.0 percent.

(See tab 11.)

9. Bar Associations: List all bar associations, legal or

judicial-related coamittees or conferences of which you are

or have been a member and give the titles and dates of any

offices which you have held in such groups.

Fellow, Nebraska state Bar Foundation in 1989. President,

Davson County Bar Association. Meaber, House of Delegates,

Nebraska State Bar Association, 1983-1987. President,

University of Nebraska College of Law Alumni Association.

Vice chairman, Nebraska Supreme Court Subcommittee on all

forms of appeal. Member. American Bar Association.

10. Other Memfctrghipg" List all organizations to which you belong

that are active in lobbying before public bodies. Please list

all other organizations to which you belong.

Groups which lobby:

National Council of United States Magistrate Judges

Nebraska State Bar Association

American Bar Association

Other groups:

University of Nebraska College of Law Alumni Association

Order of the Coif Legal Honorary Society

Order of the Barristers Legal Honorary Society

Nebraska State Bar Foundation

11. Court AdaigBlPrr List all courts in which you have been

admitted to practice, with dates of admission and lapses if

any such memberships lapsed. Please explain the reason for

any lapse of membership. Give the same information for

administrative bodies which require special admission to

practice.

United states District court for the District of

Nebraska (1972) ; United States Court of Appeals for the Eighth

Circuit (1973); United States Claims Court (1983): Supreme

Court of the State of Nebraska (1972).

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

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166

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.

The following is a list of my legal writings, other than

opinions, which have been published:

1. Author, Hebraske Supreae Court Review - criminal Lew, 50

Neb. L. Rev. 468 (1971).

2. Co-Editor, Nebraska Supreae Court Review, 51 Neb. L. Rev.

552 (1972).

3. Nebraska Continuing Legal Education, Inc. (hereinafter

NCLE) , INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking, Real end Personal Property, Retirement t Probate

(1975).

4. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking, Real and Personal Property, Retirement t Probate

(1976).

5. NCLE, THE SECOND ANNUAL INSTITUTE ON ESTATE PLANNING,

Trusts for Children (Living and Testamentary Trusts,

Including separate share and Sprinkling Trusts and

Custodianships) (1976).

6. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking, Reel and Personal Property, Retirement t Probate

(1977).

7. Creighton University School of Law, ESTATE PLANNING AFTER

THE 1976 TAX REFORM ACT, Income Tax Factors to be

Considered (1977).

8. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking, Real t Personal Property 4 Retirement (1978).

9. NCLE, FOURTH ANNUAL INSTITUTE ON ESTATE PLANNING,

Renunciation and Disclaimers (1978).

10. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking, Real C Personal Property t Probate (1979).
167

11. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking and Raal i Parsonal Property (1980).

12. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking and Raal t Paraonal Property (1981).

13. NCLE, INSTITUTE ON DEVELOPMENTS IN NEBRASKA LAW:

LEGISLATION, CASES, RULES AND PRACTICE, Corporations,

Banking and Raal S Parsonal Property (1982).

14. NCLE, NEBRASKA PROBATE SYSTEM III, Delayed Probate to

Bstabliab Titls (1982).

15. NCLE, TENTH ANNUAL INSTITUTE ON ESTATE PLANNING,

Effective Planning and Drafting of Agreements Concerning

Living Arrangements (1984).

16. Richard G. Kopf, as Special Counsel, authored for the

majority of the Special Commonwealth Committee of the

88th Legislature, Second Session, of the State of

Nebraska, Final Report of the Special commonwealth

Committee of the 88th Legislature, Second Session, of the

State of Nebraska, 1-490 (1984).

17. NCLE, BANKING LAW, Bankers Blanket Bonds (1985).

18. NCLE, ELEVENTH ANNUAL INSTITUTE ON ESTATE PLANNING,

Renunciation: "Pickup" Clausea and Renounced Interests

(1985).

19. NCLE, DEVELOPMENTS IN REAL ESTATE, Obtaining Poaaession

either through Receivership or Immediate Possession

(1986).

20. Creighton University School of Law, Practice in the

Federal Court, Pratrlal conferences and Sattlaaant

Conferences in the Dnitad States District Court for the

District of Nebraska —, Pad. R. Civ. P. 16 —A Tool to

be Used (1988).

21. NCLE, University of Nebraska College of Law, and the

Young Lawyers Section of the Nebraska State Bar

Association, 1990 How to Practice Seminar, Praotiea

Pointers About Criminal Practice Before United States

Magistrates in the District of Nebraska (1990).

22. Nebraska Criminal Defense Attorneys Association

(hereinafter NCDAA), Practice Pointers About criminal

Praotiea Before Dnitad States Magistrate Judgaa in the

District of Nebraska (1991).
168

13. Health: what is the present state of your health? List the

date of your last physical examination.

Good.

August 15, 1991.

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.

Since February 2, 1987, 1 have been a full-time United States

magistrate judge in Omaha, Nebraska, for the United States

District Court for the District of Nebraska. The duties of

a full-time United States magistrate judge in Omaha, Nebraska,

cover the entire range of activities contemplated by Congress

in 28 U.S.C. § 636. Among other things, a United States

magistrate judge in Omaha, Nebraska, is responsible for

handling dispositive and nondispositive motions in criminal

cases for one district judge. In the civil context, a United

States magistrate judge in Omaha, Nebraska, handles for one

district judge all pretrial conferences, most of the difficult

discovery motions, and most of the difficult motions requiring

presentation of evidence, such as class-action certification

questions. In addition, a United States magistrate judge in

Omaha, Nebraska, is encouraged to try civil cases. There are

three full-time magistrate judges in the District of Nebraska.

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.

Question 15(1):

It is difficult to select the ten most significant opinions

I have written. What I have endeavored to do is choose ten

opinions which address difficult legal issues and thus show

the approach I have taken in complex cases. Copies of the

opinions are attached. The docket sheets for each of these

cases, providing the names, addresses, and telephone numbers

of the lawyers involved, have been attached to the copies of

the opinions.
169

(1) nnitad Stataa v. Naehaan, CR 90-0-141 (Report and

Reconaendation of Magistrate Judge Kopf) (D. Neb. May 30,

1991). (Sea tab 1.)

(2) United states v. Majdl, 773 F. Supp. 1288 (D. Neb. 1991)

(consolidated with United states v, Koory, 773 F. Supp. 1308

(D. Neb. 1991)). (See tab 2.)

(3) French v. Oaaba Pub. Schools, 766 F. Supp. 765 (0. Neb.

1991). (See tab 3.)

(4) United states v. Koran, 757 F. Supp. 1046 (D. Neb. 1991) .

(See tab 4.)

(5) Nolte v. Pearson, 133 F.R.D. 585 (D. Neb. 1990). (See

tab 5.)

(6) united States v. raiste, CR 89-0-115 (Report and

Recommendation of Magistrate Judge Kopf) (D. Neb. Nov. 14,

1990). (See tab 6.)

(7) Rust v. State of Nebraska, CV 87-L-340 (Report and

Recommendation of Magistrate Judge Kopf) (D. Neb. Feb. 14,

1990). (See tab 7.)

(8) sorich v. Terry, 1989 WL 87386, 1989 U.S. Diet. LEXIS

9115 (0. Neb. June 29, 1989). (See tab 8.)

(9) K t B Partnership v. continental Bank, 127 F.R.0. 664

(D. Neb. 1989). (See tab 9.)

(10) People for Raaponaible omaha Urban Oav. « Nat1! Trust

for Historic Preservation in the United States v. Intaratate

Commerce Commission, CV 88-0-247 (Report and Recommendation

of Magistrate Judge Kopf) (D. Neb. July 28, 1988, and Jan. 20,

1989). (See tab 10.)

Question 15(2):

In X t S Partnership v. continental Bank, 952 F.2d 971 (8th

Cir. 1991) i the Court of Appeals reversed in part and affirmed

in part. The court reversed the judgment after jury verdict

imposing secondary liability on defendant, and affirmed the

judgment notwithstanding the verdict on plaintiffs' RICO

claim.

Question 15(3} :

United states v. Apker, CR 90-127 (Report and Recommendation

of Magistrate Judge Kopf) (D. Nab. Jan. 23, 1992). (See

tab 12.)

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170

Usltad atataa v. Koora. CR 89-0-156 (Report and Recomaendaticn

of Haqistrate Judge Kopf) (O.Neb. May 21, 1990) (See tab 13.}.

(After district judge's decision, case reversed 1992 WL 23161

(8th Cir. 1992).

Oaltad states v. raiata, CR 89-0-115 (Report and

Recoaaendation of Magistrate Judge Kopf) (D. Neb. Nov. 14,

1990). (See tab 6.)

Rust v. state of Nebraska, CV 87-L-340 (Report and

Recoaaendation of Magistrate Judge Kopf) (D. Neb. Feb. 14,

1990). (See tab 7.) (After district judge's decision, case

remanded for further proceedings, 1992 WL 57645 (8th Cir.

1992).)

16. Public Office: State (chronologically) any public offices you

have held, other than judicial offices, including the terms

of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

I was appointed by the district judges of the Thirteenth

Judicial District of the State of Nebraska to serve as a

member of the Dawson County Mental Health Board as Law

Chairperson. This meant that I served in a quasi-judicial

capacity as a hearing officer in proceedings regarding mental

health commitments. I served in this capacity for

approximately four years during the early 1980's. I do not

have specific information as to precise dates at this time.

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;

The Honorable Donald R. Ross, Senior

United States Circuit Judge, Eighth

Circuit court of Appeals, Hay, 1972,

through January, 1974.

2. whether you practiced alone, and if so,

the addresses and dates;

Did not practice alone.
171

3. the datss, 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 February, 1974, until my appointment

as a United States magistrate judge in

February, 1987, I practiced with the firm

of Cook, Kopf & Doyle, P. 0. Box 100,

Lexington, (IE 68850, now known as Cook,

Wightman & Doyle. I was an associate for

the first three years and a principal the

remainder of the time.

1. what has been the general character of your law

practice, dividing it into periods with dates

if its character has changed over the years?

The character of my practice was general

practice, with emphasis in civil litigation.

When 1 began private practice, 1 took a fair

number of criminal appointments, particularly

before Dawson county, Nebraska, had a public

defender.

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

My typical former clients would be financial

institutions and a political subdivision. For

example, I regularly represented the Farm

Credit Banks of Omaha, particularly the Federal

Land Bank of Omaha. Representation of

financial institutions involved a wide variety

of civil litigation matters from prosecuting

mortgage foreclosures to defending stockholder

suits. As another example, I represented the

Central Platte Natural Resources District, a

political subdivision, in complex water rights

and environmental litigation having to do with

development of the Platte River.

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 regularly.

2. What percentage of these appearances was in:
172

(a) federal courts;

20 percent (Including the United

States Bankruptcy Court for the

District of Nebraska) . •• -

(b) state courts of record;

80 percent (including hearings before

the Nebraska Department of Water

Resources where the rules of evidence

applied and which had original

jurisdiction over certain water

rights natters).

(c) other courts.

3. What percentage of your litigation was:

(a) civil;

95 percent.

(b) criminal.

5 percent.

4. State the number of cases in court of record

you tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

I estimate that I tried to verdict or judgment,

rather than settled, over 70 cases. In most

of those cases I served as either sole counsel

or chief counsel.

5. What percentage of these trials was:

(a) jury;

Approximately 10 percent of the cases

were jury cases.

(b) non-jury.

Approximately 90 percent of the cases

were non-jury cases.

18. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the citations, if

the cases ware 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;

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173

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 naae 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.

Case Name: Dugdale of Nebraska, Inc. v. First state Bank of

Ootheaburg, 227 Neb. 729, 420 N.W.Zd 273, 6 U.C.C. Rep. Sarv.

2d 111 (1988) (I believe this case is significant because it

clarified conflicting provisions of Nebraska auto title

certificate law and the Uniform Commercial Code regarding how

banks perfect security interests in "floor-planned" autos.

Reversed trial judge's decision in favor of my client, the

bank.)

Year Tried: 1986.

Jury/Non-Jury: Non-Jury.

Naae and telephone number of Judge: The Honorable John P.

Murphy, District Judge, District Court, 3 01 N. Jeffers, North

Platte, NE 69101 (Telephone No. 308-534-4350).

Role: Trial and appellate counsel.

Opposing Counsel: Scott H. Trusdale, P. O. Box 540, Cozad,

NE 69130 (Telephone No. 308-784-2212).

Case Name: In re: Hitchcock and Red Willow Irrigation

District, 226 Neb. 146, 410 N.W.2d 101 (1987) (I believe this

case is significant because, after more than 30 days of trial,

400 technical exhibits, and 5,600 pages of testimony, the

court affirmed the objectors' position that for

"unappropriated water" to exist for purposes of diversion it

is not enough that there be some unused water, but rather

there must be shown a "dependable water supply." Affirmed

hearing officer's decision in favor of client.)

Year Tried: Various dates between December, 1980, and

November 4, 1985.

Jury/Mon-Jury: Non-Jury.

Judge: The Honorable Michael Jess, Director of the Nebraska

Department of Hater Resources, Box 94676, Lincoln, NE 68509

(Telephone No. 402-471-2363). (This case involved a hearing

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174

before the director where the Nebraska Rules of Evidence

applied and the director had original jurisdiction.!

Role: Sole counsel for the Central Platte Natural Resources

District as opponent and informally designated coordinating

counsel for all opponents.

Opposing counsel:

Robert Crosby &

Steven Seglin

400 Lincoln Benefit Bldg.

Lincoln, NE 68508

(402) 475-5131

Lyle B. Gill

P. 0. Box 642

Fremont, NE 68025

(402) 721-7550

Thomas A. Wurtz

Metropolitan Utilities Dist.

172 3 Harney Street

Omaha, NE 68102

(402) 449-8207

Michael E. Kelley

City Attorney

18 East 22nd St.

P. 0. Box 1180

Kearney, NE 68848

(308) 237-5133

Patrick A. Parenteau

Route 1, P. O. Box 251

Banks, OR 97106

(503) 324-8481

Jess C. Nielsen

410 North Ash

North Platte, NE 69103

(308) 532-3150

George Svoboda

Sidner, Svoboda, Schilke,

Wiseman & Thomsen

Military Colonial Bldg.

340 E. Military Ave.

Fremont, NE 68025

(402) 721-7111

Christopher H. Meyer

National Wildlife Federation

c/o Givens, Pursley, Webb

k Huntley

Suite 200, Park Place

277 No. 6th Street

Box 2720

Boise, ID 83701

(208) 342-6571

LeRoy Sievers

Assistant Attorney General

State of Nebraska

2115 State Capitol

lI have listed certain lawyers as "opposing counsel" even

though a particular lawyer's position might have been consistent

with the position I advanced for my client. Due to the varied

interests in water rights litigation, designations such as

"applicant's counsel" or "opponent's counsel" can be quite

misleading. Furthermore, I have listed only those lawyers who

actively participated in the trial. There are numerous other

lawyers who made appearances but did not participate at trial.

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175

Lincoln, NE 68509-4906

(402) 471-4794

Case Name: In re: Application 1S14S, 1S14C, 1S147 and 15148

of Little Blue Natural Resources District, 219 Neb. 372, 363

N.H.2d 500 (1985) (I believe this case is significant because

it held that power cooperative's petition for intervention in

complex litigation regarding whooping crane habitat, which

had gone on for approximately two years, was untimely, thereby

imposing a requirement that interested parties to complex

environmental litigation must act promptly to intervene.

Affirmed hearing officer's decision in favor of client.)

Year Tried: Various dates.

Jury or Non-Jury: Non-Jury.

Judge: The Honorable Michael' Jess, Director of the Nebraska

Department of Water Resources, whose address and telephone

number are listed above. (This case involved a hearing before

the director where the Nebraska Rules of Evidence applied and

the director had original jurisdiction.)

Role: Sole counsel for Central Platte Natural Resources

District. My client's interests were similar to the interests

of Mr. Crosby and Mr. Seglin's client (Little Blue NRD) in

opposing the petition for intervention of Basin Electric Power

Cooperative. The undersigned played a significant role in

successfully opposing the intervention.

Opposing Counsel: The lawyers identified in regard to In ret

Hitchcock and Red Willow Irrigation District should also be

contacted in regard to this case. Additional counsel were:

Lyman L. Larsen Claire Olson

Thomas R. Litjen Assistant General Counsel

Kennedy, Holland, DeLacy Basin Electric Cooperative

t Svoboda 1717 East Interstate Avenue

10306 Regency Parkway Drive Bismarck, ND 58501

Omaha, NE 68114 (701) 223-0441

(402) 397-0203

Case Name: State v. Stave Schmidt, Case No. 18-226, in the

District Court of Dawson County, Nebraska (While this case may

not be significant in terms of the development of the lav, it

was very significant to the teacher-defendant, who was

acquitted of all charges in a multicount felony child abuse

case.)

Year Tried: 1985.

Jury/Non-Jury: Jury (5 days).

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176

Judge: The Honorable John P. Murphy, District Judge, District

Court, 301 N. Jeffers, North Platte, NE 69101 (Telephone No.

308-534-4350).

Role: Co-counsel for the defense with law partner Jaaes E.

Doyle, IV. The undersigned was responsible for all medical,

psychiatric, and psychological expert testimony on direct and

cross-examination, including complex issue of hypnotically

refreshed recollection of prosecution witness claiming to

suffer from a "split personality."

Opposing Counsel: The prosecutor has since died.

Case Name: Agristor Credit Corp. v. Radtke, 218 Neb. 386, 356

N.W.2d 856, 39 U.C.C. Rep. Serv. 1122 (1984) (I believe this

case is significant because it clarified Nebraska's thirdparty-practice statute. The court adopted client's position,

and reversed trial judge's decision.)

year Tried: 1983.

Jury or Non-J-ry: Jury (15 days).

Judge: The Honorable Jack H. Hendrix, District Judge, 502

Norris Ave., McCook, NE 69001 (Telephone No. 308-345-4539).

Role: Co-counsel with Jeffrey Jacobsen for defendant Platte

Valley Harvestore, Inc. Mr. Jacobsen had the insurance

defense on the negligence claim, and the undersigned had the

breach-of-warranty defense which was not covered by insurance.

Mr. Jacobsen was chief trial counsel, but the undersigned took

an active part in trial (convincing the trial court to dismiss

the warranty claim upon completion of the evidence), drafted

the motion to dismiss, and wrote the brief on appeal regarding

the third-party-practice issue which set forth the position

adopted by the Nebraska Supreme Court.

Opposing Counsel and Related Counsel:

William H. Sherwood Patricia E. Dodson

Sherwood t Cuypers Dodson i Dodson

P. 0. BOX 64 P. O. BOX 27

Oxford, NE 68967 Beaver City, NE 68926

(308) 824-3231 (308) 268-7415

William D. Sutter Thomas W. Tye

Barlow, Johnson, DeMars Tye, Horlock, Tye, Taylor

t Flodman t Hopkins

1227 Lincoln Mall 1419 Central Avenue

P. 0. BOX 81686 P. O. Box 636

Lincoln, NE 68501 Kearney, NE 68847

(402) 475-4240 (308) 237-3155

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177

Jeffrey H. Jacobsen

Jacobsen, orr t Nelson

322 W. 39th St.

P. 0. Box 1060

Kearney, NE 6B848

(308) 234-5579

Case Name: State v. Douglas, 217 Nab. 199, 349 N.W.2d 870

(1984) (I believe this case is significant because it was an

original action in the Nebraslca Supreme Court regarding the

impeachment of the Attorney General of the State of Nebraska.

By a split decision, the court acquitted defendant.)

Year Tried: March, 1984.

Jury/Non-Jury: Non-Jury.

Judges:

Hon. William C. Hastings

2214 State Capitol

P. 0. BOX 98910

Lincoln, NE 68509

(402) 471-3736

Hon. Thomas H. Shanahan

2207 state Capitol

Lincoln, NE 68509

(402) 471-3735

Hon. Robert R. Moran

P. O. BOX 638

Alliance, NE 69301

(308) 762-5354

Hon. Leslie Boslaugh

2210 State Capitol

Lincoln, NE 68509

(402) 471-3733

Hon. John T. Grant

2211 State Capitol

Lincoln, NE 68509

(402) 471-3737

Hon. Keith Howard

1701 Famam Street

Omaha, NE 68183

(402) 444-7007

Hon. William F. Colwell

P. 0. BOX 31

Pawnee City, NE 68420

(402) 852-31X4

Role: Chief counsel for the prosecution, employed by the

Nebraska Legislature and appointed as Special Assistant

Attorney General by the Supreme Court.

Opposing Counsel: William E. Morrow, Jr., One Merrill Lynch

Plaza, 10330 Regency Parkway Drive, Omaha, NE 68114 (Telephone

NO. 402-390-7137).

Case Name: The Federal Lead Bank of Oaaha v. Michael S. Kurt,

Case No. 2293, in the District Court of Custer County,

Nebraska, and The Federal Land Bank of omaha v. Reuben R.

-15-
178

Bqular, Case No. 2466, in the District Court of Custer County,

Nebraska (I believe these cases are significant, taken

together, because the decision in each case awarded client

immediate possession of the mortgaged premises during the

redemption period. These rulings led to presentation of a

speech and paper to trial counsel for the Federal Land Bank

of Omaha in Nebraska and Wyoming, and subsequent publication

of the paper by the Nebraska Continuing Legal Education

Corporation.)

Year Tried: 1985 and 1986.

Jury/Non-Jury: Non-Jury.

Judge: The Honorable Ronald D. Olberding, District Judge,

P. 0. Box 280, Burwell, NE 68823 (Telephone Ho. 308-346-5277).

Role: Sole counsel for the Federal Land Bank of Omaha,

securing the appointment of a receiver to take control of the

subject premises.

Opposing Counsel:

Mark L. Eurek

611 0 St.

P. 0. Box 202

Loup City, NE 68853

(308) 745-0720

Paul w. Madgett

Assistant U.S. Attorney

P. 0. BOX 1228, DTS

Omaha, NE 68101

(402) 221-4774

Steven O. Stumpff

544 South 10th Avenue

Broken Bow, NE 68822

(308) 872-6833

Allan J. Eurek

Pierson, Ackeman, Fitchett,

Akin t Hunzeker

530 S. 13th St., Suite B

P. O. Box 95109

Lincoln, NE 68509

(402) 476-7621

Carlos E. Schaper

P. 0. Box 586

Broken Bow, NE 68822

(308) 872-6481

Robert R. Gibson

P. O. Box 80826

Lincoln, NE 68501

(402) 474-1440

John Sennett

Black, Sennett t Roth

Box 326

1040 S. E Street

Broken Bow, NE 68822

(308) 872-6868

Wallace W. Angle

Angle, Murphy, Lang t

Valentino, P.O.

Suite 200, York State Bank Bldg.

York, NE 68467

(402) 363-7725

Case Name: State of Nebraska v. Prosaar, 209 Nab. 766, 311

N.W.2d 525 (1981) (I believe this case is significant because,

although the court held that the trial judge did not abuse his

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179

discretion in failing to award credit for time served by

client in a mental institution, Nebraska law permitted the

trial judge to grant credit for time served in a mental

institution prior to trial.)

Year Trijed: 1982.

Jury/Non-Jury: Non-Jury.

Judge: The Honorable Keith windrum, District Judge (now

retired), 1220 S. Emory St., North Platte, NE 69101 (Telephone

No. 308-534-9528).

Role: Chief defense counsel.

Opposing Counsel: Michael L. Bacon, 424 10th St., P. O.

Box 208, Gothenburg, NE 69138 (Telephone No. 308-537-7161).

Case Name: Roth Boneless Beef, Inc. v. Cornland Dressed Beef,

Inc., Case No. 77-0-121, in the United States District Court

for the District of Nebraska (While this case may not be

significant to the development of the law, it was important

to the client because it absolved client of significant

liability resulting from the chemical contamination of a

truckload of beef where the contaminated beef entered the

stream of commerce.)

Year Tried: 1979 (nine days).

Jury/Non-Jury: Jury.

Judge: The Honorable Robert Denney, United States District

Judge, deceased.

Role: Co-counsel with Harold Kay. This was a case in which

there were substantial excess liability insurance questions.

Mr. Kay was chief trial counsel for the insurance company, and

the undersigned represented the personal interests of the

insured, actively participating in trial and trial

preparation.

Opposing Counsel and Related Counsel:

R. Murray Ogbom Robert L. Anderson

500 The Atrium Suite 600, Gold's Galleria

1200 N Street 1033 0 Street

BOX 82028 Lincoln, NE 68508-3621

Lincoln, NE 68501 (402) 474-1507

(402) 475-6761

Harold H. Kay Roger M. Beverage

P. O. Box 1009 643 N.E. 41st St.

-17-
180

North Platte, NE 69103 Oklahoma city, OK 73105

(308) 534-7676 (405) 424-5252

Neil B. Danberg, Jr.

10306 Regency Parkway Or.

Omaha, NE 68114

(402) 397-0203

Case Name: State v. Suggett, 200 Neb. 693, 264 N.W.2d 876

(1978) (I believe this case is significant because it held

that a trial judge should take into consideration defendant's

rehabilitation, arising after first sentence, when the judge

resentences. This was a post-conviction case involving a

defendant convicted of murder where the court affirmed the

trial court's vacation of defendant's sentence for murder, but

favorably modified the decision of the district judge upon

resentencing such that defendant's sentence was reduced by

one-half.)

Year Tried: 1975.

Jury/Non-Jury: Non-Jury.

Judge: The Honorable Hugh Stuart, District Judge (retired,

but now administrative law judge for the Department of Health

and Hunan Services), 7400 Ct., Room 210, 808 S. 74th Plaza,

Omaha, NE 68114 (Telephone No. 402-221-3401).

Role: Sole appointed counsel on post-conviction matter.

Opposing Counsel: Willard Winehold, 705 N. Washington,

Box 190, Lexington, NE 68850 (Telephone No. 308-324-6626).

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 bean

waived).

In 1984 I was employed as special counsel to represent the

Special Commonwealth committee of the Nebraska Legislature.

As special counsel, I was responsible for directing the legal

activities of the Committee. The Special Commonwealth

Committee was created after the failure of Commonwealth

Savings Company of Lincoln, Nebraska, on November 1, 1983.

The failure of Commonwealth Savings Company had far-reaching,

significant implications for the citizens of the State of

Nebraska. The work of the Committee is described in the Final

Report of the Special Commonwaaltb Committae of the SSth

Legislature, Seooad Seasion, of the State of Nebraska, 1-490

-18-
181

(1984). I authored the final report on behalf of the

Committee. Moreover, I was charged by the Committee, and

later the Nebraska Legislature, to represent the State in the

impeachment trial of the attorney general of the State of

Nebraska before the Supreme Court of the State of Nebraska.

State v. Douglas, 217 Neb. 199, 349 N.H.2d 870 (1984).

A second area of special legal significance in which I was

involved was as counsel for the central Platte Natural

Resources District (CPNRD) , a political subdivision of the

State of Nebraska. CPNRD was extensively involved in

litigation and related matters regarding the development of

the Platte Valley of Nebraska.

The third significant area of my practice was representing the

Farm Credit Banks of Omaha. In this connection, I served as

trial counsel for the Federal Land Bank during the farm crisis

of the 1980's. This work- involved both litigated and

nonlitigated matters. Litigated matters included the

prosecution of actions to recover indebtedness owed the banks

and defending the banks in actions brought against them or

constituent organizations. Nonlitigated natters included

work-out arrangements with debtors and other creditors. My

work in this area led to the presentation of a paper to trial

counsel for the Federal Land Bank of Omaha in Nebraska and

Wyoming and subsequent publication of that paper by the

Nebraska Continuing Legal Education Corporation. See, NCLE,

DEVELOPMENTS IN REAL ESTATE, obtaining Possession either

through Reeeivershlp or mediate Possession (1986).

-19-
182

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangenents, 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.

When I terminated my association with the law firm of Cook,

Kopf, and Doyle, I executed a covenant not to compete with the

law firm which covered a period of six years. In exchange for

that covenant not to compete, I was to receive $2,4 00 per year

for six years which was to be credited against notes owed the

law firm. These payments ended in 1992. No cash was to

change hands. I have disclosed such income on all tax returns

and ethics reports. I performed no actual services for the

law firm, other than that I have not competed with the law

firm. I have received no other compensation for services.

I am presently enrolled under the Retirement and Survivors'

Annuities for Bankruptcy Judges and Magistrates Act of 1988

(the Act). I have elected a straight annuity. As I

understand the program, because I have not served eight years

as a United States magistrate judge, I am not yet eligible for

an annuity. If I am confirmed as an Article III judge, and

presumably no longer eligible to participate under the Act,

I might be due a small refund of the contributions I have made

(approximately 1 percent of my salary from the date I elected

to participate in the program).

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 28 U.S.C. § 144 and 28 U.5.C. § 455. My

courtroom deputy, my law clerk, and my secretary are

instructed to bring any potential conflict of interest to my

attention immediately. All materials submitted in regard to

my nomination have been, and will continue to be, available

to my courtroom deputy, my law clerk, and my secretary to aid

in identifying any possible conflict of interest. My

financial disclosure reports will also be available to these

staff members. Furthermore, I have an understanding with my

former law firm that the members of the firm will immediately

-20-
183

advise me and opposing counsel of any potential conflict of

interest.

3. Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

No.

i. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $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 copy of financial disclosure report attached.

5. Please complete the attached financial net worth statement in

detail (Add schedules as called for).

See attached financial statement with notes.

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 late 1970's and early 1980's, I was chairperson of

the Dawson County, Nebraska, Republican Party.

-21-
184

FINANCIAL DISCLOSURE REPORT

'••on »«««iiM* toy (M lUtlca

'•torm MV of IMt, »J» L. M.

::I-IM. miMii )c. !••« tl TTT • «•*. «. Ilioi-uli

• .(•i. mttim i

BBtti R^'**^ B,

United States District Court

:i«trn:r ^f .-febrasiu :

04/08/92

(•li- »l i«S«-tlSl

Article III Judge

e n</n •?/')? Calandsr yasr '9

i within 30 days

of

i at ofliM I

P.O. Box 457

Qnshs. Nebrsslm 68101

niroKTANT NorTr& afaiii^<in>vif that form

I. POSITIONS. (Rc^oniai isdMdMl ODIV. see pp. 7-8 of iBsmaioBs.)

EOSmSK NAME OF OROANlZATlON/ENTmf • NONE it* Wp—tta ^Miiteu)

AGREEMENTS.

EAEE n

Rcpcnmj tfldMduaJ Obi)'. l«c p. (i 9 of loiinjaions i

PARTIES AND TCRMS

NONE >• r

12/66 Cook | Jcvie. P.C.

I receive S2.400.00 aer ^•Mr for six 161 vasrm.

NON-INVESTMENT INCOME. (Reporasi MMdui un .poac; ** pp t-i: of

DATE WURg AW nfTE OROSS INCOME

Oven, soi ipoeu'i)

Han tltti rrr* L nryl. P r trrvmr

law firm, renardi^t; ii>Tr«»»^r nrinr IT. .rr^.nr-^^iU-7 in^m. IVHI-.H B— flniirr.

$ ?. ano rwi

$

Si 13.Qn7 rm

s. 497.00
185

RNA-SClAi. DISCLOSURE REPORT (MM]

JB MflBfll

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

nadatfn lbo« u tpouM ud dcpcadcst clUMm: HM Hie pmrmhttttMU VSr ami •fDO" to LodKau rrjunaMc

ralabuManti aod pm mnm br ipouK ino Ocpdaxiit childirn. mptcotir, S« pp li-lS of InitracUou-l

•

SOURCE

NONE IO MM wp—H i

DESCRIPTION

i ot final

V. OTHER GIFTS.

J

ibcr |tfta

SOUBCE

NONE "o Ma» fpuniBia fitui

t dcpcodcot childm: us* ibe pwvothcticab '(5)* and 'fDCV Io

od dcptadtm children, nspeontlr. Set pp.L5'16 of lonmeUoos.)

DESCRIPTION XALUE

VI. UABIUTIES. Oadatfa IhOM o( ipim oad 1—fl cfeUdran IsdleiM >tan oppllaUo .

Mr luMlitv bv oilac tbt •omUMetf 'IS>' Ibr iliiulo Uabdlr. of tpauu. '{Jl' (or joiol UabUilY oT

urtjrtdual aoa ipoMc, ood '(DC)' Air babUilr orTdafaadtM child. Sat M>.1*-18 oTUutraattat.)

CMMTOB DacMPnON VALUE CODEI NOKE !aa iManiBla liaMUUMI

, BM j »?Yl«c-2a£. 1MB J

J
186

-.NANCIAL DISCLOSURE REPORT (uioidi

r,.rr, ttUflMB

vii. INVESTMENTS and TRUSTS - income, value, transactions, lociude* uw** o/»po««

si chlMrui; MC pp 1S-27 of Inttrucueos.!

udlnf idlm triwl mm*m\»t

IMicatA. >••

1M li

K««R«{ .jfiS

•til* atMr WM* MM*. SK 'HT: JSEr

^ tro» t—iwwi*

-"T Til TTi . TvT

•oaU' vj,*,, Cal*. toffM/«*li

(J-H !»-•'

• NONE -o »pi

lac—. ••M*.

11—11—I

' Savings Aooount

lal^ •rirf

'Fxrar Nation&l Bank

'Sew Yozic Life Insurance Co.

'or poxicy lean not exceea-

•^incipai Life Insurance Co

ash valua life

jr policy loan not exceed-

•Lmcs^n National Lite

Ir^urar.oe Co.. ca^h value

-.surance or pone.*

1- MMMdtec^iibJ
187

HNANCIAL D1SCLOSLRL REPORT luimdi

"*** '*•'*

an KApott:-;

04/08/92

111. ADDITIONAL INFORMATION or EXPLANATIONS, .MM p^n <rf Rcpon..

V

1

/ children receive social securi-v tjenerits arising CMZ O: t-^.e death of their -Tother.

IX. CERTIFICATION.

In complunce witb the provuioiu of 28 U.S.C i 455 and of Advuory Opinion No. 57 of the Advisory Cocnnmiee on

Judtoal AkiiNtiics. and to the best of my knowledge at the tune after rca&onabtc inquiry. 1 did noi pcrfono any adjiidiainry

(UOCIIOR m am liii|aiton dunog itic penod uj%'ered b>- this report m which 1. my spouM:. or mv minor or dependent children

had a Gnaanal interest, as defined in Canon 303)'cj. m (be outcome of such lutgaiion

1 centfv that all information given asovc (including information pertaining to my •>pou'-L; iind minor or dependent children,

•r IOVI u accurate, (rue. and comoitMC IO the best of my kuiowiedge and belief, and ihn any mformaitoo not rcponcd feai

AiihUeld bc^iUM: n met applicable iuiutory prmtsioru permitting noo-duclosure,

'. fun&c: ccntfy that canted income from ouuidc cmploymem and honoraria and ihc tw^ipiancc of gifu wbjch have beer,

•eponoo are in com^iance with the provuiotu of 5 U,S.C.A. app. 7. { 501 CL. tcq., 5 U S.C i 7353 and Judicial Coaference

regvtaiioiik ^^T' ^ ^• ^-- -

-'~ LJ-^A'^' Pic ADTil 8. 1992

NOTE: AKY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, i I(M. AND 18 VS.C. 5 1001.)

RUNG INSTOUCnONS:

Mail signed ohgual and 3 additkmal copies to: JudKiai Ethks Commfnec

Uoiied Suiet Couns

- WtituBpoo. DC 20544

60-251 O - 93 — 7
188

Mn/Mn-»ML. - IM i emeu *

NET WORTH

RiCEAac^i. ;-:opr

04/01/92

Provioc • compieit. cumnt dnanciai net worth BUtanwnt whkh ilemiMt IndttaiJ aUau«u (tAdudinf ban*

• cccunu. r»«i t»tal«. »«cunt lei. ImiU. in*e»im*nn. sod other frnancial hoidmfi; all liabililwa (includmc dtMs.

montages, loana. ano einer l*nanciai ebiifauoni) ol rounctl. your spouaa. and other immootUo memoeri o

1

your housenotd.

ASSETS

Oth«' twemi ««M

See actachad l^tes tc Financx&l Scatsoent.
189

NOTES TO FINANCIAL STATEMENT FOR RICHARD G. KOPF

1. The cash on hand represents estimate of monthly net salary

chaclc and Social Security payments received for my children

as a result of the death of their mother.

2. I own the residential real property at 9455 Pauline, Oaataa,

Nebraska 68124. I have estimated the fair market value of

the real estate at $160,000. My tax basis (purchase price

plus new roof, painting, and other improvements) is

approximately $150,000. This structure, excluding the value

of the real estate, is valued for insurance purposes at

$128,400.

3. Automobiles and other personal property include three vehicles

and the contents of ry home. Personal property contents are

insured for $89,880.

4. Accounts and bills due represents estimate of obligations

which are paid monthly, including one daughter's parochial

school tuition, payments to housekeeper, one daughter's

college tuition and room and board amortized monthly, credit

card charges, household expenses, and other regularly

recurring expenses of the family.

5. Real estate mortgage payable consists of the following

principal amounts, to wit: $96,415 owed to Provident Federal

Savings Bank, Box 400, Waverly, Nebraska 68462-0400, with a

due date of 2017, bearing interest at the rate of 9t per annum

with a monthly payment of approximately $1,079.00 per month

(including escrow for taxes), and a principal sum of $52,632

owed to the First State Bank of Gothenburg, 914 Lake Avenue,

Box 79, Gothenburg, Nebraska 69138-0079, bearing interest at

the rate of 10 percent per annum, due 2001, with approximate

monthly payments of $486.00 (25-year amortization/balloon

payment/Interest only through 2/25/93).

6. The line for accounts and bills due includes monthly mortgage

payments due.

7. I have accorded no value to Covenant Not To Compete executed

in favor of my previous law firm. Cook, Kopf t Doyle, P.C.,

which will expire in 1992, and which provides me $2,400 per

year. Pursuant to the agreement with my law firm, the

payments on the covenant not to compete arm offset against any

existing indebtedness I owed the law firm at the time of my

termination. In essence, the covenant not to compete ham

extinguished the indebtedness to the law firm. It I warm to

show the indebtedness it would not exceed $2,400, and the

asset side of the balance sheet would be increased by $2,400.
190

I may have very small cash values in insurance policies issued

by the New Vork Life Insurance Coapany, the Principle Life

Insurance coapany, or the Lincoln National Life Insurance

company, buc virtually all the cash has been depleted by

policy loans which of course did not exceed the cash value.

Accordingly, I have accorded no value to insurance policies

held by me.
191

III. GENERAL (PUBLIC)

1. An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, reqardless 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 anount of tine devoted to each.

Prior to my appointment as a United States magistrate judge,

I toolc appointments in criminal and quasi-criminal cases which

resulted in no fees or low fees. See, e.g.. State v. Suggett,

200 Neb. 693, 264 N.W.2d 876 (1978) (appointment as counsel

in post-conviction case involving a challenge to a seconddegree murder conviction) ,- In re: Interest of Wood and Linden,

209 Neb. 18, 306 N.W.2d 151 (1981) (appointment as counsel for

mother in a juvenile proceeding regarding termination of

parental rights). I also accepted appointments by Western

Nebraska Legal Services, Inc., and the Nebraska Bar

Association's legal referral program which resulted in no-fee

or low-fee cases in civil matters. In addition, I agreed to

accept appointment as counsel for persons who were the subject

of mental health commitment proceedings, and these

appointments generated no fees or low fees. Our firm

recognized the value of pro bono work to indigents and

encouraged the firm's lawyers to take cases without regard to

the ability of the client to pay.

I also engaged in various civic activities that were not

specifically legal in nature. For example, I served as a

member of the Kearney State College (now known as the

University of Nebraska at Kearney) Foundation. Among other

things, the Foundation raised money for such things as

scholarships.

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 have

you done to try to change these policies?

I do not presently belong to any organization which

discriminates on an invidious basis. In college I belonged

to a social fraternity which admitted only men. During

the 1970's I was a member of the Lexington, Nebraska, chapter

-22-
192

of the Jaycees. At that time, the national organization

permitted only men to join. I recall stating on a number of

occasions that If a woman were to request membership In the

organization, I would feel compelled to vote In favor of her

application. In Nay, 1987, after I was appointed a United

States magistrate, my predecessor. Judge Richard C. Peck,

Invited me to join the Kiwanis Club of Omaha, Inc., 407

Professional Tower, 105 South 17th St., Omaha, NE 68102. At

the time I was invited to join the Kiwanis Club, the chief

judge of our court was also a member. I became a member of

the club but attended very few meetings. At the time I

joined, X knew the local club had voted to accept women

members but that the national organization had refused. Due

to the pressures of work and my becoming uncomfortable with

the idea that no women were admitted to the Kiwanis Club of

Omaha, Inc., notwithstanding the vote of the local chapter,

I decided to terminate my association with the club. I did

so on January 31, 1988.

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.

Congressman William E. Barrett of Nebraska indicated that he

wished to propose my name to the Administration as a possible

nominee for one of the two vacant judgeships in Nebraska. I

have known Congressman Barrett for about 17 years, having

practiced law in his hometown of Lexington, Nebraska, from

1974 through 1986. I consented to my name being submitted,

and Congressman Barrett proposed my name thereafter.

Subsequently, I was interviewed by officials of the United

States Department of Justice in Washington, D.C. These

interviews took place one morning and entailed a general

discussion of my training, experience, and background, both

as a practicing attorney and as a United States magistrate

judge for the District of Nebraska. I also had two brief

meetings with various Nebraskans prominent in the state

Republican Party. These meetings were short (totaling no more

than two hours) , and I simply expressed my interest in the

position. After being informed that I was the tentative

nominee for one of the vacant judgeships, I was interviewed

by an agent of the Federal Bureau of Investigation and a

representative of the American Bar Association.

4. Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

-23-
193

interpreted as asking how you would rule on such case, issue,

or question? If so, please explain fully.

No.

Please discuss your views on the following criticism involving

"judicial activism."

The role of the Federal judiciary within the Federal

government, and within society generally, has become the

subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism that

alleges that the judicial branch has usurped many of the

prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have

been said to include:

a. A tendency by the judiciary toward problem-solution

rather than grievance-resolution;

b. A tendency by the judiciary to employ the individual

plaintiff as a vehicle for the imposition of farreaching 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.

Questions regarding "judicial activism" raise difficult

and complex issues regarding the proper role of judges in a

democratic society, particularly one which is founded upon a

written constitution.

Realizing that questions regarding "judicial activism"

profoundly implicate the proper role of the judiciary, and

also realizing that an intellectually coherent theory may be

beyond my present ability, I am comforted by superior court

precedent. Precedent is the tool by which trial practitioners

and trial judges understand and apply the law. Precedent may

provide at least a partial way out. In this sense, the

question for the trial judge is not so much whether "judicial

activism" is or is not a proper role for the judiciary, but

-24-
194

rather whether the precedents of a superior court, fairly

applied, support a particular role in a given case.

The great difficulty for trial judges arises at the

margins, when superior court precedent is lacking or unclear.

I have no easy answer to this problem. Without superior court

precedent, my inclination would be, as it has been in the

past, to be skeptical of an activist role. By "activist role"

I mean a role which alters the status quo. For myself, I

think it proper when confronted with what could fairly be

called a "proactive" position advanced by a litigant, without

clear precedent as support, to respond in an intellectually

skeptical manner.

Stated differently, the need for judicial review is

clear, but the proper limits of judicial power are not clear.

Perhaps the skepticism of which I write means nothing more

than this: in the absence of a clear role definition set forth

in the precedents, a trial judge ought to be slow to act since

such action may be illegitimate in a democratic society.

In summary, the question of judicial activism admits no

easy answers. My view of "judicial activism" is essentially

this: (a) in the absence of a coherent idealogy about the

proper role of judges in a democratic society, a judge of an

inferior court can rely upon precedent to supply an

appropriate role definition, and (b) in the absence of

precedent, a judge of an inferior court should react in an

intellectually skeptical fashion when confronted with a

request to adopt a change from the status quo.

-25-
CONFIRMATION HEARING ON HON. SUSAN H.

BLACK, SONIA SOTOMAYOR, LORETTA A.

PRESKA, AND IRENE M. KEELEY

THURSDAY, JUNE 4, 1992

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:02 a.m., in room

SD-226, Dirksen Senate Office Building, Hon. Edward M. Kennedy

presiding.

Present: Senators Kennedy and Thurmond.

OPENING STATEMENT OF SENATOR KENNEDY

Senator KENNEDY. The committee will come to order.

The Constitution gives the President and the Senate a shared responsibility to ensure that qualified men and women serve on the

Federal bench. As Senators, we have few more important responsibilities than our role in the confirmation process. The judges and

Justices whom we approve will serve for life, and their decisions

will determine, in large measure, the quality of justice in America.

I am please to note that today, for the first time, the Judiciary

Committee has scheduled a nominations hearing in which all of the

nominees are women. This is a welcome development and underscores our commitment to increasing the representation of women

on the Federal bench.

In the past 12 years, the proportion of women in the legal profession has almost doubled, from 13 percent during the last year of

the Carter administration to 23 percent today. Yet, only 16 percent

of President Bush's judicial nominees are women, about the same

as the 15-percent rate President Carter achieved during a time

when there were far fewer women lawyers. Less than 9 percent of

the sitting Federal judges are women. There is ample room for improvement and improvement in the number of blacks and other

racial minorities, as well.

Today's nominees are fortunate to have distinguished Members

of the Senate here to introduce them, and I look forward to their

testimony and to the testimony of the nominees.

Senator Thurmond.

Senator THURMOND. Mr. Chairman, I welcome the nominees

today and their witnesses, and I hope we can get expeditious decisions on these nominees.

I want to thank you for your hasty consideration.

(195)
196

Senator KENNEDY. Fine. We will move to the first nominee, Justice Susan Black, Jacksonville, FL. Both Florida Senators are here.

Judge Black, we are glad to have you back. I remember you very

well. I was chairman of the Judiciary Committee the last time you

were approved, and your hearing was chaired by a very good friend

of mine. Senator Culver.

We are delighted to welcome our two friends and colleagues from

Florida. We are glad to hear from them at this time.

Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE

STATE OF FLORIDA

Senator GRAHAM. Thank you, Mr. Chairman.

Mr. Chairman, it is a special honor to be here today to introduce

Susan Black, of Jacksonville, FL, who has been nominated to be a

member of the eleventh circuit.

I congratulate the President on recommending such a fine individual for the Eleventh Circuit Court of Appeals, and this committee to move this nomination in such timely fashion.

Judge Black has a long list of impressive legal credentials, including study at some of Florida's finer institutions of higher education. She earned her bachelor's degree at Florida State University, in Tallahassee, and a law degree from the University of Florida.

After a short stint as a public school teacher, Ms. Black became

an assistant general counsel for the U.S. Government with the

Army Corps of Engineers. The Jacksonville State Attorneys Office

recognized her skills and recruited her to join its staff as an assistant State attorney.

In 1972, she went to work representing the city of Jacksonville,

as assistant general counsel. Soon thereafter, she was elected

county court judge in Duval County, where she served until 1975,

when the citizens of Duval, Clay, and Nassau Counties voted to elevate her to the bench of the Fourth Judicial Circuit of Florida.

In 1979, Judge Black was tapped by the Carter administration to

join the Federal judiciary as a judge in the Middle District of Florida. In 1990, she became chief judge of the district, a position that

she holds today.

The committee is aware of the numerous honors which have

been bestowed upon Judge Black for her academic and legal

achievements. I would just like to mention a few items the committee may find of interest.

Judge Black has been involved for some time in efforts to improve court management, an initiative which I know this committee has strongly endorsed. As chief judge of the middle district.

Judge Black has been an advocate for the judiciary and helped sensitize policymakers on issues important to the Federal courts.

She has a solid background on the corrections issue, having lectured and prepared articles on the subject. While I was Governor,

Judge Black oversaw a major case which led to the development of

significant corrections policies for the State. I was impressed with

her handling of this complex issue.

She has also been a leader in legal education, particularly in the

training of judges. In the 1970's, she served as dean of the Florida
197

school established for the purpose of training new State trial

judges.

Mr. Chairman, Senator Thurmond, I am confident that the committee will find Judge Black a qualified nominee for the eleventh

circuit, and I look forward to supporting her nomination in the full

Senate at the earliest possible date.

Thank you.

Senator KENNEDY. Thank you very much.

Senator Mack.

STATEMENT OF HON. CONNIE MACK. A U.S. SENATOR FROM THE

STATE OF FLORIDA

Senator MACK. Thank you, Mr. Chairman.

First of all, let me commend you for holding this hearing. It is

important for Florida and for the eleventh circuit that this hearing

go forward.

I wonder if it is appropriate at this time that Judge Black introduce her husband and daughter.

Senator KENNEDY. We are delighted to have them presented.

Judge BLACK. Thank you.

My husband, Lou Black, my daughter, Lee Elizabeth Black, and

also my mother, Elizabeth Harrell, are here with me, and I have

cousins and my Uncle Bill, my mother's brother, William Phillips

is also here.

Senator KENNEDY. We are delighted to welcome them. I know

how proud they must be, and we are privileged to have their presence here this morning.

Senator MACK. Thank you, Mr. Chairman.

I am pleased to be here today, as the Senate Judiciary Committee considers the nomination of the Honorable Susan H. Black to

the Eleventh Circuit Court of Appeals. Judge Susan Black, who

currently serves as Chief Judge of the Middle District of Florida, is

a person of exceptional capability and integrity, recognized for her

accomplishments, both as an attorney and as a judge.

Susan has earned many honors and awards, including the University of Florida's distinguished alumnus award and the Florida

Publishing Co. Eve Award. She is also a member of Florida Blue

Key and the University of Florida President's Council.

As well as being an excellent example for all lawyers. Judge

Black is a special role model for women in the legal profession. She

was Jacksonville's first female prosecutor, assistant city general

counsel and county judge. In 1979, she became Florida's first

female Federal judge.

Judge Black has given generously to the legal community. Literally dozens of committees have benefited from her experience and

insight, including both the Florida Civil and Criminal Procedures

Rules Committee, the committee on court administration and case

management, and the committee on judicial improvements. She

has been a strong presence in the area of continuing legal education and is a member of the judicial administration division of the

American Bar Association and of the eleventh circuit and the Florida State-Federal Judicial Councils.
198

In closing, I believe that Susan's 20 years of service to the State

and Federal judiciary, the respect and admiration she has earned

from her colleagues and community, and her commitment to judicial restraint indicate that she is well qualified to fill this vacancy

on the eleventh circuit.

I am confident that she will continue to be an asset to the Federal judiciary, and I urge the committee to vote favorably on her

nomination.

Thank you, Mr. Chairman.

Senator KENNEDY. Thank you very much.

I see our colleague Senator Moynihan here. Judge Black, with

your patience, we will hear from Senator Moynihan and other Senators that are here to make presentations, and then come back and

consider your nomination.

Judge BLACK. Thank you, Mr. Chairman.

Senator KENNEDY. We thank our colleagues for their presence

here.

Senator GRAHAM. Thank you, Mr. Chairman.

Senator MACK. Thank you, Mr. Chairman.

Senator KENNEDY. Senator Moynihan.

STATEMENT OF HON. DANIEL PATRICK MOYNIHAN, A U.S.

SENATOR FROM THE STATE OF NEW YORK

Senator MOYNIHAN. Mr. Chairman, Senator D'Amato cannot be

here at the moment, but both of his nominees are here, so we have

two, if I might ask to indulge your patience and bring them both

forward.

Senator KENNEDY. Please do.

Senator MOYNIHAN. MS. Sotomayor and Ms. Preska.

Now, this is a happy moment for a New York Senator to have

two judges before this committee. Senator D'Amato will be here

later, Mr. Chairman and Senator Thurmond, but if I can, I would

simply like to introduce these distinguished nominees.

1 think in terms of rank order of nomination, Ms. Sotomayor is

first. As you know from the papers you have, she is a graduate of

Princeton University, where she received the M. Taylor Pyne

Honor Prize for the graduating senior who best demonstrated the

qualities of scholarship and concern for the community. If you are

Princeton, it is the last thing that can happen to anyone that matters.

She went on to do other things. She went to Yale Law School

and was an editor of the Yale Law Journal. After graduating from

law school she worked as an assistant district attorney in Manhattan. Since then she has continued to practiced in the city of New

York and has been active in a whole range of activities. She is a

member of the board of directors of the New York State Mortgage

Agency, and also of the Puerto Rican Legal Defense and Education

Fund and the New York City Campaign Finance Board, and she

comes highly recommended by a bipartisan group that has for 15

years now been choosing nominees that I have brought to this committee.

Ms. Preska is a graduate of the College of St. Rose, in Albany.

She is an Albanyan. She went to Fordham Law School and then to
199

New York University Law School, where she studied international

trade and took an advanced degree. She practiced in the city of

New York and has been active in community affairs there.

I would like to say that she is accompanied here this morning,

just as a form of fellowship, by Lloyd Abrams, one of the most distinguished first amendment lawyers in our generation, and he is

happy to be associated with this very able nominee.

I commend them to you, sir, and to Senator Thurmond, and I

think I had best stop talking there, because I do not think I have

made any major mistakes yet.

Senator THURMOND. We thank you very much for your presence.

Is Senator D'Amato going to be here, do you know?

Senator MOYNIHAN. He will be here and it will be a bit later, sir.

Senator THURMOND. At least he endorses them highly, I understand. He spoke to me about it.

Senator MOYNIHAN. Most assuredly. He knows them personally

and, in the case of Ms. Preska, he

Senator THURMOND. Thank you for your presence.

Senator KENNEDY. Thank you very much. Senator Moynihan.

Senator MOYNIHAN. Thank you, Mr. Chairman.

Senator KENNEDY. We are delighted to welcome you to the committee and we certainly appreciate your good words of endorsement and support of the nominees.

We will move along with the nominees. If our colleagues come in,

with the patience of the nominees, after we conclude the questioning, we will recognize them for whatever brief comments that they

might have to make.

We will go back to Judge Black. Would you rise and raise your

hand, and we will swear you in: Do you swear that the testimony

you give is the truth, the whole truth, and nothing but the truth,

so help you, God?

Judge BLACK. I do.

TESTIMONY OF HON. SUSAN H. BLACK, OF FLORIDA, TO BE A U.S.

CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

Senator KENNEDY. I noted with interest. Judge Black, your opinion in the DeBailey v. Lynch-Davidson Motors case, involving section 1981. That law bans race discrimination in the making and enforcement of contracts.

In the Patterson case in 1989, the Supreme Court cut back on the

scope of section 1981, holding that it did not prohibit race discrimination in the terms and conditions of a contract, once it was made.

And you found in the DeBailey case that the plaintiff, who had

been denied a promotion because she claimed that she had been

the victim of racial and sexual harassment, could maintain her

suit, in spite of Patterson.

As you know, the Civil Rights Act of 1991 overruled the Patterson case. Would you share with us your views on the Patterson decision and on Congress' response to it, based on your experience in

the DeBailey case?

Judge BLACK. Mr. Chairman, the Patterson case, in my reading of

the case, cut out a very narrow exception, and that is
200

Senator THURMOND. Speak into the microphone, if you would,

please.

Judge BLACK. During the course of employment, if an employee

was offered a new position that was as completely different position than previously held, there would be a cause of action under

1981, even after the Patterson case. The facts in the DeBailey case

supported that narrow exception, and so in that case, the employee

was permitted to maintain the cause of action. The reasoning in

Patterson was that it created a new contractual relationship between the employee and the employer.

Senator KENNEDY. Many of us found the Patterson decision to be

an erroneous interpretation of the law. As a circuit court judge,

would you consider yourself bound by the Supreme Court decisions,

even though you might personally believe some of those decisions

were incorrect?

Judge BLACK. Yes, sir.

Senator KENNEDY. What were the most important lessons you

learned from your tenure as a district court judge, and how do you

think that experience would help you in the court of appeals?

Judge BLACK. I think I understand what happens when a record

is made. I can read a record and it comes alive to me, and I think

that probably will be the greatest assistance to me.

Senator KENNEDY. Senator Thurmond and I were very active in

fashioning and shaping the Sentencing Commission, in an attempt

to try to get some consistency and predictability in sentencing. It

was not the desire to require greatly additional sentences. We were

trying to at least get some consistency in their application.

In recent times, there have been a number of additions to the

sentencing laws, in terms of mandatory minimums. I have serious

reservations about those, in terms of what it does, in terms of

skewing the court docket, as well as what happens in terms of who

is actually sentenced. Nonetheless, that is an issue for another

time.

The Commission itself, in its report last year, found that many of

the mandatory minimum sentence statutes under the criminal sentencing guidelines have never been used by the prosecutors. Further, the report found that many people charged and convicted

under mandatory minimum sentencing provisions avoid the required prison terms through plea bargaining.

Have you formed any opinion, generally, about mandatory minimums and the impact that it does have?

Judge BLACK. I have a general sense. I do not know if I have an

opinion. I believe that the mandatory minimums, that sentence has

been given by me often in the court I preside in, and I have a sense

that the prison population, if what is happening before me is happening before the rest of the judges in the country, the prison population will be growing quite a bit, because with no parole, the

mandatory minimums are mandatory.

Senator KENNEDY. Well, we would be interested, if you had suggestions for us on that, as you serve. I think you were on the Administrative Conference, were you?

Judge BLACK. Yes.

Senator KENNEDY. I noticed in your background that you worked

with your parish's outreach assessment committee. I am interested
201

in what people are doing in the pro bono work or work within their

community. I think it helps one's understanding of what is happening in the real world.

This group, as I understand it, identifies the needs of children

and the elderly in the community and, in response to a report by

the committee of the local church, established summer programs.

Could you tell us a little bit about it?

Judge BLACK. The church is a very old church and it is in a

changing neighborhood. We have had a difficult time bringing the

neighborhood into the church, and so we decided that one way to

do that would be to establish outreach programs for the children in

the neighborhood. Many single parents live in the neighborhood,

and so we started programs on the weekend and fashioned them as

arts programs, not baby-sitting or day care, but substantive programs. It has been very successful and has brought children into

the church.

Senator KENNEDY. YOU also, as a State court judge, had concern

that there were no alternatives to sentencing available for women,

even though men could be placed in a probation residence program. You were involved in developing a program for women like

that?

Judge BLACK. Yes, sir.

Senator KENNEDY. Could you tell us a little bit about that?

Judge BLACK. This was many years ago. We had alternatives to

incarceration in the State of Florida, and available to us were halfway houses for men. We had a female defendant and we had no

place to put the individual, except institutionalize in prison or on

probation, and so I worked with the probation department in establishing that program.

Senator KENNEDY. Has it worked pretty well?

Judge BLACK. Yes, sir.

Senator KENNEDY. That is very commendable.

I also notice that you are an active member of the advisory board

of trustees at the Jacksonville Health Education Program, to provide interns and nurses for large northeast Florida hospitals serving the indigent.

Judge BLACK. Yes, sir.

Senator KENNEDY. YOU have a very solid recommendation, not

only from our friends and colleagues from Florida, but also from

all of the local organizations whom you have been working with

over a period of years, and I think your involvement in the community is certainly something that I find personally very impressive,

and I would be delighted to support your nomination for the circuit.

Thank you very much.

Judge BLACK. Thank you, Mr. Chairman.

Senator KENNEDY. We will go to Ms. Sotomayor.

While you are standing, do you swear that the testimony that

you will give is the truth, the whole truth, and nothing but the

truth?

Ms. SOTOMAYOR. I do. Senator.
202

TESTIMONY OF SONIA SOTOMAYOR. OF NEW YORK, TO BE A U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

Senator KENNEDY. We welcome you to the committee.

Your commitment to pro bono activities has really been very impressive. Could you tell us a little bit about those activities? Then

we are going to ask you how you can convince lawyers of the need

to make real commitments to public services. But tell us about

your activities.

Ms. SOTOMAYOR. Senator, I have been a member of the board of

directors of the Puerto Rican Legal Defense and Education Fund

for about 12 years now. I have served in various capacities on that

board, including its first chairperson and the head of its litigation

and education committees.

I am sure you know of PRLDEF and its important work in promoting the civil and human rights of Hispanics, particularly of

Puerto Rican background. PRLDEF was instrumental in establishing the Espira Board of Education case, which promoted bilingual

education in the public school system. I personally, in my work for

the fund, have been involved in not selecting cases, because, board

of directors or not, but in directing its policies.

In particular, in recent years, we have been turning our attention to housing issues, which segues into my other involvement

with the State of New York Mortgage Agency. That agency provides lower than market rate mortgages for first-time homeowners.

Those homeowners are governed by certain Federal income limitations, and the mortgages we attempt to target to blighted areas

throughout the State of New York.

The second component of that program involved providing mortgage insurance for development projects where private banking

will not step in. The board, during my 4- or 5-year tenure, has developed a low-income mortgage availability project. A key component recently has been to assist families with closing costs, which

is one of the greatest difficulties in purchasing homes today.

I have also been involved in the foundation and development of

the New York City campaign fund, which is modeled partially, but

somewhat significantly differently than the Federal campaign

fund.

I have been involved in the Stanley Heckman Scholarship Committee and the Maternity Center Association of the State of New

York.

In answer to your second question, I as an individual believe that

those of us who have opportunities in this life must give them back

to those who have less. It is never easy to encourage others to do

the same, but I do think it is important for public figures, for legal

educators, for the bar to constantly and repeatedly encourage

public service. As you know, the ABA has made it part of its professional code, and almost all of the State codes have done the

same.

Senator KENNEDY. I should have asked you, do you have any

family here?

Ms. SOTOMAYOR. I do. Senator.

Senator KENNEDY. We would be delighted, if you would introduce

them, and if they would stand, we would appreciate it.
203

Ms. SOTOMAYOR. There is my mother, Salina Sotomayor, our

friend, Domar Lopez, my Princetonian college roommate, Mary Cadette, two of my dearest friends, Don Cardi and Ken Kinser. And

just in back of them, my brother, Juan Juiso Sotomayor, my sisterin-law, Tracy Sotomayor, and my somewhat shy niece, Kia Sotomayor.

Senator KENNEDY. Very nice. Well, we are glad to have them

here.

Do you have intentions of continuing your activities?

Ms. SOTOMAYOR. Well, we are restricted by the Judicial Code

from doing that. We are permitted to serve in charitable institutions, and I would presume, given my inclination, that I would.

We are also permitted to serve in judicial professional organizations or legal organizations, and I will continue in that way.

Senator KENNEDY. A good deal of your recent practice has been

devoted to enforcing the trademarks of products against counterfeiters. These laws are in this committee's jurisdiction. Do you have

any comments about the adequacy of those laws, or any suggestions?

Ms. SOTOMAYOR. I answer that on two levels. There are some

strengthening of the laws that could be made. In fact, the International Anti-Counterfeiting Coalition has made many suggestions to

this committee that I endorse, as well.

I think, on a more practical basis, the greater problem is not the

law, although it does need some changes, but the fact that there

are not enough resources for prosecutors to bring very important

cases against violators of the law, and so it is one of those unfortunate situations, as many others, where more pressing problems of

our society are not permitting the effective use of existing laws.

Senator KENNEDY. IS that both, do you think, on the trademarks

and also with regard to prosecuting counterfeiters, as well?

Ms. SOTOMAYOR. Yes, sir. The numbers are just terribly small.

Senator KENNEDY. I note that you are on a selection committee

for a trust that awards scholarships to minorities and first-generation immigrants. We have been working in the Congress for the

past 2 years on a bill to overhaul the laws on Federal aid to college

students. I am chairman of the Human Resources Committee, and

we are in conference now on the higher ed bill. Do you have any

suggestions for us about changes in the law?

Ms. SOTOMAYOR. NO, Senator. It is not an area that I, unfortunately, have studied with any extensive attention. I served on this

committee, because I thought its work was important.

Senator KENNEDY. DO you find that there is great need out there

for that kind of scholarship program?

Ms. SOTOMAYOR. Increasingly, and particularly for minorities and

low-income families. With many higher education institutions suffering tremendous financial losses, one of the first areas, unfortunately, that they cut is scholarships and that does affect the already disaffected portions of our society.

Senator KENNEDY. Well, I see that you have written the statehood and the equal footing doctrine in the case for Puerto Rico

seabed rights. The issue of the Seabed Treaty was always something that was kind of interesting personally to me. Elliot Richardson was very much involved in working on that issue. It never
204

reached fruition, but it is interesting that you have been interested

in that program, as well.

I want to say that we are enormously impressed with your qualifications and the very positive reaction that all the members of the

bar have had in support for your candidacy, and I look forward to

supporting it in the committee and on the floor. Congratulations.

Ms. SOTOMAYOR. Thank you, Mr. Chairman.

Senator KENNEDY. Thank you very much.

Ms. Preska, we are delighted to have you here.

I want to tell Ms. Keeley that we have not forgotten about you.

Ms. PRESKA. Thank you, Mr. Chairman.

Senator KENNEDY. Would you stand, please: Do you swear that

the testimony that you give this committee will be the truth, the

whole truth, and nothing but the truth, so help you, God?

Ms. PRESKA. I do. Senator.

TESTIMONY OF LORETTA A. PRESKA. OF NEW YORK, TO BE A U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

Senator KENNEDY. Perhaps you would introduce any of your

guests or family.

Ms. PRESKA. Thank you, Senator.

I would like to introduce my husband, Thomas Kavaler, my children, Matthew and Kathryn.

Senator KENNEDY. Do they want to stand up? Are they missing

school today? [Laughter.]

Ms. PRESKA. It is a great treat for them to be here.

Senator KENNEDY. We are delighted.

Ms. PRESKA. My friend and mentor, Floyd Abrams, my father,

Victor Preska, my friends, Peggy Brown and her husband Jim

Brown. My friends, Lawrence Houseman and Joyce Ozenberg. My

friend David Rigney is in the back of the room, and my cousins

Mary Louise and Fred Barnes are here, as well.

Senator KENNEDY. Very fine. You are all very, very welcome.

Ms. PRESKA. Thank you. Senator.

Senator KENNEDY. MS. Preska, community service is a fundamentally important activity for all Americans, particularly for attorneys, and I notice that you recently received the Lefkowitz

Public Service Alumni Award of the Fordham University School of

Law Public Interest Resource Center. Would you tell us how you

came to receive the award and about your pro bono activities, generally?

Ms. PRESKA. I would be happy to, Mr. Chairman.

Fordham has just begun a public interest resource center and a

group of approximately a dozen alumni provided the initial funding

of over $1 million for that center. My husband and I were two of

those alumni, and the funding has gone for and will go for activities from legal services to soup kitchens, the whole range of activities.

It has also been supported very heavily by the students, who just

this past spring raised $37,000 themselves, through a goods and

services auction at the law school. But it is the feeling of the Fordham Law School, and particularly Prof. Constantine Cartores, who

is running the public service interest group, that, as Ms. Sotomayor
205

said, it is time for people in the legal profession to give something

back and are very committed to doing so.

Senator KENNEDY. I notice that you have served over the last 20

months, on a pro bono basis, you served as a special trial counsel

for the departmental disciplinary committee in the New York Appellate Division. Could you tell us a little bit about that?

Ms. PRESKA. I would be happy to, Mr. Chairman.

The departmental disciplinary committee is in New York in the

first judicial department, the body which disciplines lawyers. The

committee staff is essentially the prosecuting staff for a lawyer

about whom a complaint has been received.

What I did was I volunteered to essentially take one of the cases

on which the staff was working. As it turned out, it was a rather

complicated case, it required quite a bit of briefing. I did the briefing, I presented the evidence to the panel, the hearing panel of the

committee on behalf of the staff, so essentially I acted as the prosecutor on behalf of the disciplinary committee with respect to a

complaint received by a lawyer. It did take some time, but I must

say that it was very satisfying work.

Senator KENNEDY. DO you have ideas about how to increase

public service among the members of the bar?

Ms. PRESKA. I think, first of all, that the bar associations, and

particularly the association of the bar of the city of New York, of

which the new incoming president is Dean John Farek of the Fordham Law School, Dean Farek has made it part of his agenda to encourage more lawyers to bring public service into the front of lawyers' minds, to encourage them to do it, to provide the resources to

permit them to do it, and also to provide, if you will, matching

services, to provide a lawyer with particular qualifications with a

project to work on that is appropriate to those qualifications.

Senator KENNEDY. That is certainly encouraging to hear.

I see you have written about alternatives to trial available for

litigants. I also see that you have broad experience with one such

alternative, arbitration. How do you plan on using alternatives to

trial to help resolve lawsuits pending in your courtroom?

Ms. PRESKA. The Southern District of New York has adopted a

plan pursuant to the Judicial Improvements Act, which, among

other things, encourages and requires judges to make available and

to advise litigants of the availability of various alternative dispute

resolutions.

One of the planks of that plan is that, in cases designated as expedited in the southern district, there will be a mandatory alternative dispute resolution program provided for those cases, to see how

it works. But it certainly should be mentioned the southern district

has required its judges to mention it early and often.

Senator KENNEDY. Are you a supporter of that kind of resolution?

Ms. PRESKA. I certainly think it is very useful. Senator, particularly in these days where litigation has become so expensive for the

Parties.

Senator KENNEDY. Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman.
206

Ms. Preska, I congratulate you upon your selection by the President to fill this position and in having the endorsement of your

Senators from your State.

Ms. PRESKA. Thank you, Senator.

Senator THURMOND. YOU have been a practicing attorney, I believe, since 1974.

Ms. PRESKA. That is correct.

Senator THURMOND. I noted, in reviewing your file, that your experience has been primarily civil in nature, is that correct?

Ms. PRESKA. That is correct. Senator.

Senator THURMOND. Have you taken some steps to prepare yourself for the criminal caseload that awaits you at the Federal district level?

Ms. PRESKA. Indeed. If I am fortunate enough to be confirmed by

the Senate, I have already begun studying the materials made

available by the Federal Judicial Center relating to criminal matters. I have also registered for the next judges course offered by the

Federal Judicial Center, and a good deal of that is devoted to criminal matters.

In addition, I have been very happy to accept the offers of some

of the judges sitting on the southern district today who are experienced in criminal matters, of their experience, of learning some of

their tips as to how to begin. But I certainly have undertaken the

study.

Senator THURMOND. MS. Preska, the phrase "judicial activism" is

one of interest to me. It is often used to describe the tendency of

judges to make decisions on issues that are not properly within

their scope of authority. Some judges have taken over school district, have taken over prisons, and have taken over other institutions of the State. I just wonder what this phrase "judicial activism" means to you.

Ms. PRESKA. Senator, I think judicial activism occurs when a

member of the judicial branch appropriates to himself or herself

powers which are properly those of another branch, of the executive branch or the legislative branch, or when a member of the judiciary decides an issue which is not before that particular judge.

I do not think I could do better than recalling the Supreme

Court's warnings in Askwon v. Tennessee, where the courts were

warned that Federal courts are courts of limited jurisdiction and

should endeavor on all occasions to decide issues, decide cases on

the narrowest possible grounds.

As, of course, members of this body are particularly aware, one

of the reasons for that is that the Federal judiciary is the least

well-equipped branch to investigate facts and to make policy, and,

thus, I would hope to always have those exhortations in mind, if I

am fortunate enough to be confirmed.

Senator THURMOND. In our tripartite system of government, the

Congress, under the Constitution, makes the law. The President, as

the Chief Executive, enforces the law. The judiciary interprets the

law. The judiciary has no authority to make law, but some of the

judges seem to think so and have taken some steps along that line,

to which I am bitterly opposed. Do you agree with my interpretation?
207

Ms. PRESKA. I certainly do, Senator. Indeed, I do think the cornerstone of our system of government is that each of the three

branches has its powers, duties, and responsibilities and they need

to respect them.

Senator THURMOND. MS. Preska, there is frequently a conflict between the deeply felt views of a Federal judge and the constraints

of judicial precedent. Would you tell the committee how you would

resolve the tension between your personal views and precedent?

Ms. PRESKA. Senator, I think that it is the job of a Federal judge,

particularly a district court judge, to apply the law as set out by

the Supreme Court and, in this instance, the second circuit. I believe that the judge's personal views should not play a part in that.

The job of the judge is to apply the law as set out.

Senator THURMOND. Thank you very much. I will be very pleased

to support you, and I hope you enjoy your career on the bench.

Ms. PRESKA. Thank you. Senator.

Senator THURMOND. Thank you, Mr. Chairman.

Senator KENNEDY. Thank you very much. I look forward to supporting your nomination.

Mr. PRESKA. Thank you, Mr. Chairman.

Senator KENNEDY. We will have Ms. Keeley of Clarksburg, WV.

Would you rise: Do you swear that the testimony you will give is

the truth, the whole truth, and nothing but the truth, so help you,

God?

Ms. KEELEY. I do.

TESTIMONY OF IRENE M. KEELEY. OF WEST VIRGINIA, TO BE A

U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF WEST

VIRGINIA

Senator KENNEDY. Both Senator Rockefeller and Senator Byrd

had hoped to be here, but are unable to do so. I have a brief statement of Senator Byrd in support of your nominations, and I will

take a moment to—do you want to introduce the members of your

family?

Ms. KEELEY. I will. Senator Kennedy. But I must warn you, I am

from a large Irish family and many of them are here.

Senator KENNEDY. I am used to that. [Laughter.]

Ms. KEELEY. My husband Jack, my daughters Megan, Irene, and

Kathryn, my parents John and Irene Murphy, and my father

served under Attorney General Kennedy in the Justice Department.

Senator KENNEDY. I knew the President had good judgment

when he nominated you. [Laughter.]

Ms. KEELEY. My husband's father and mother, John and Evelyn

Keeley. I am just taking up room here. My brother Thomas

Murphy and his wife Mary. My brother is a lawyer in Maryland.

My sister Kathleen Callender and her daughter Holly. My nephew

Colin Harrington, my niece Joanne Altmeyer. My husband's brother, Tom Altmeyer. My sister-in-law, Dorothy Keeley and Martha

Beckler and her husband Richard Beckler. My sister-in-law and

brother-in-law, John Warren Harrington, and my very close friend

and neighbor, Althea Drosland.

Senator KENNEDY. Fine. We welcome all of you.
208

Ms. KEELEY. If I have forgot any of them, I know they will tell

me.

Senator KENNEDY. That is very nice. It is a special day, I know,

for all of them, as well as yourself.

This is the statement of Senator Byrd:

I am pleased today to offer my support of the nomination of Irene Patrick

Murphy Keeley of Clarksburg, West Virginia, for the new judgeship on the bench of

the Federal Court of the Northern District of West Virginia.

Ms. Keeley is a native of New York City—Brooklyn, to be more specific.

She earned her B.A. degree from the College of Notre Dame of Maryland in the

City of Baltimore. Subsequently, Ms. Keeley taught in the secondary public schools

of Prince George's County, Maryland, and Harrison County, West Virginia, and was

a substitute teacher in the Catholic School System of Harrison County.

In 1977, Ms. Keeley earned her Master of Arts degree from West Virginia University, and in 1980, her Juris Doctor degree from the West Virginia University College

of Law.

In May 1980, Ms. Keeley joined the distinguished law firm of Steptoe & Johnson

as an associate in its litigation group, and became a partner in that firm in January

1985.

In her nearly dozen years as an attorney, Irene Keeley has practiced throughout a

number of counties comprised by the Northern District of West Virginia and has

won both the admiration and respect of her colleagues and clients in that area, as

well as the recognition of members of the bar throughout West Virginia as a distinguished jurist.

To her added distinction, Ms. Keeley has served as an Adjunct Professor in the

College of Law at West Virginia University, and has published scholarly legal

papers in the West Virginia Law Review.

Further, Ms. Keeley has earned an enviable reputation in the field of medical

malpractice and health-care law, and is recognized as an authority in those areas of

the law.

Ms. Chairman, Ms. Keeley comes before this committee with recommendations for

confirmation from several respected legal colleagues and citizens in the area that

she would serve, and I am confident that she would bring to the bench judicial intellect, solid legal scholarship, a warm and mature personality, a deep sense of integrity, and a seasoned practical judgment.

I urge the committee to expedite Ms. Keeley's nomination, and I look forward to

witnessing the exemplary career that I know that she will carve out for herself in

the years ahead.

And we will include a statement from our friend and colleague,

Senator Rockefeller, as well.

[The prepared statement of Senator Rockefeller follows:]
209

The Honorable JOhn D. Rockefeller IV

Introduction of Irene Keelev

Judiciary Committee

United States Senate

June 4, 1992

— Mr. Chairman, Hembers of the Committee, I thank you for

the opportunity to introduce Irene Keeley for confirmation to

the United States District Court for the Northern District of

West Virginia, and I commend the President on this

appointment. I have known Irene for several years, and am

proud to call this bright, energetic, and unique individual a

friend.

But Irene is more than a friend. She's an outstanding

West Virginian, a caring wife and mother, and someone who

Isn't satisfied watching from the sidelines. She is involved

in her community and is a leader in our state. She's a

problem solver, a conciliator, and a fighter against

injustice.

I came to know Irene through a mutual concern over the

need for meaningful health care reform a topic about

which she feels passionately. She cares about people and she

understands the role of public policy in making their lives

betterI think the proof of the kind of judge Irene Keeley will

make lies in the kind of experiences she has had throughout

her life. She has taught elementary school children, as well

as law students. As an active member of the West Virginia

State Bar, she has chaired the Committee on Law and Medicine

and an ad hoc committee to reform state court procedures

involving child abuse cases. Currently she serves on her

community's United Way organization and Chamber of Commerce.

In short, her life represents a series of decisions that

reflect a sincere commitment to the public good and a

compassion for others.

-- She brings the perspective of a woman to a federal bench

that is in notably short supply of such. But more than that,

she will be a fair, capable jurist one who will make me

and other West Virginians proud.

— Again, Mr. Chairman, I thank you for the opportunity to

speak on behalf of a fine person whom I know will make an

excellent judge.
210

Senator KENNEDY. I note, Ms. Keeley you have been active in the

area of health care law. You have chaired a committee that drafted

legislation that was ultimately adopted in West Virginia regarding

health care powers of attorney and living wills. You have been involved in speaking to local organizations to educate members of the

general public about the use of these provisions.

Working with your own Senator Rockefeller and many others, I

have been very actively involved in trying to address the health

care crisis at the national level. Would you share your thoughts

with us on whether Congress ought to consider proposals addressing the issues of health care powers of attorney and living wills?

Ms. KEELEY. Well, Senator Kennedy, in 1991, as part of OBRA,

the Congress, as you are aware, did pass what we call the Patient

Self-Determination Act, which has, in my opinion, moved the use of

advanced directives dramatically to the forefront in all health care

facilities throughout this country, and that is all to the good, because, as the Supreme Court has said in Cruzan versus Missouri,

each of us has the right to determine the manner of health care

that we will receive, and only through advanced directives can we

be assured of that right being exercised appropriately.

Senator KENNEDY. We have the Danforth amendment, which requires hospitals to advise patients of their rights in this area that

you are referring to.

Ms. KEELEY. Yes, and hospitals that I advise have moved aggressively not only to advise patients of their right, but also to make

available to them the counseling that is necessary, should they

wish to execute those documents, and I believe that physicians are

now encouraging patients, as part of their office practices, to look

into these documents, because it assists physicians in knowing

what care the patients wish to receive.

Senator KENNEDY. Well, is there more that we ought to be doing

on this in Congress, do you think?

Ms. KEELEY. I believe that, as part of the Medicare Program,

Congress has in place the oversight necessary to assure that hospitals and other health care providers are in compliance with these

activities. I believe now it is up to the public to become educated

and, as part of the Danforth amendment, that education package is

in place. Funding is probably the critical issue.

Senator KENNEDY. For what; developing the programs?

Ms. KEELEY. Developing the educational programs at the local

level. Many States, such as my own, which are very well-intentioned in that area, can only do a limited amount.

Senator KENNEDY. Well, that is interesting to know.

Since 1987, you have served as a member of the West Virginia

Bar Special Committee on Professionalism. You wrote in your response to the committee's questionnaire that the committee was organized to address the bar's concern that lawyers have grown increasingly dissatisfied with their profession. While active, the committee did develop a voluntary code of professional courtesy which

was adopted by the bar and disseminated to the membership.

Would you tell us about the code of professional courtesy and give

us your impression of how well it has worked?

Ms. KEELEY. I believe it has made a difference. Senator Kennedy,

and I believe it was a very timely and important document. As a
211

litigator, I am aware of the pressures that each of us feels in the

course of long and sometimes protracted discovery, and, as trial

dates move around and do not always hold, sometimes our courtesy

to our fellow attorneys may slip.

The code of professional courtesy stands as a reminder both to

attorneys and judges, that we are professional and that we should

deal with each other in that fashion, even when the pressures of

our jobs may, in fact, threaten to overtake that courtesy.

Senator KENNEDY. YOU have had a limited background in dealing

with the criminal laws issues. How do you propose to sort of get up

to speed to deal with complex criminal matters that you might

face?

Ms. KEELEY. Senator Kennedy, that is correct. I dealt with criminal matters on an appointed basis on the State level, but I have

very little criminal experience in the Federal arena. However,

should I be fortunate enough to be confirmed, 1 have already initiated a process of education, including the application for videos

and tapes from the Federal Judicial Center.

My chiefjudge. Judge Robert Maxwell, has very graciously asked

me to meet with him and his staff, has forwarded the sentencing

guidelines to me. I have been fortunate enough to sit in on sentencings and pleas with him in recent weeks since my nomination, and

I am moving aggressively to become more completely educated

about the criminal law matters.

Senator KENNEDY. That is certainly very encouraging.

I noticed your very impressive work for the disadvantaged. The

committee staff report states that, since 1989, you have served as a

member of a Guardian Task Force of West Virginia, spending between 500 and 600 hours working on a legislative agenda and

public education programs of the task force, those working with

citizens groups and individuals are referred by the State bar on the

issue of advanced directives. What is the advanced directives?

Ms. KEELEY. Well, the advanced directives are the living will and

the medical power of attorney.

Senator KENNEDY. Fine. Then you have served on the United

Way of Harrison County, worked to increase funding for agencies

serving women in crisis, the homeless and addicted, and have volunteered and spent a good deal of time on United Way, as well, all

of which 1 think is enormously impressive and very positive.

I do not know whether you have ideas about how we can encourage that kind of voluntary service by members of the bar.

Ms. KEELEY. Mr. Chairman, 1 believe that with the ABA emphasis on pro bono activity, that more and more members of the bar

will return to the community the advantages that we in the legal

profession have. Certainly, the bar is aware of the Congress' strong

emphasis in this area, and I believe and I hope that my fellow attorneys will respond appropriately.

Senator KENNEDY. Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman.

From 1965 to 1976, 1 guess you were rearing your children at

that time, were you?

Ms. KEELEY. Senator Thurmond, 1 was rearing my oldest child

Irene. 1 had to await law school for other children to come. I had a

child in law school and one immediately following graduation.
212

Senator THURMOND. I notice that you graduated from the College

of Notre Dame of Maryland.

Ms. KEELEY. That is correct.

Senator THURMOND. That is another Notre Dame. I did not know

there was but one Notre Dame. [Laughter.]

Ms. KEELEY. Senator Thurmond, my husband Jack thinks there

is only one Notre Dame, because he is a graduate of that Notre

Dame, but we all know where the real one is.

Senator THURMOND. Those 11 years from 1965 to 1976, you were

in the home at that time, or did you do any teaching or anything?

Ms. KEELEY. I was at home and teaching, yes.

Senator THURMOND. And teaching schoolchildren?

Ms. KEELEY. And teaching school, also.

Senator THURMOND. You have not got that down. That is a very

fine thing, too.

Ms. KEELEY. Thank you. I agree.

Senator THURMOND. I taught school myself for 6 years and so I

appreciate the teacher.

Do you see any difficulty in transition from an advocate to an

impartial jurist?

Ms. KEELEY. NO, Senator Thurmond, I do not. I take very seriously the honor it would be to become a Federal judge and would

strive enormously to be impartial in all of my dealings with counsel and the parties that would come before me.

Senator THURMOND. Ms. Keeley, how would you handle an incident, say, in which counsel for one of the parties of your court was

obviously not a skilled litigator or was not prepared to adequately

represent the interests or his or her client?

Ms. KEELEY. Senator Thurmond, that question involves a balancing of the interests of both as a jurist not to interfere with the

rights of the parties and counsel to determine the course of their

litigation and develop their own theory of the case. But I believe

that, as I wrote in the article I published in law school, that ineffective assistance of counsel is an important issue for a court to address and to prevent, before it deprives a criminal defendant, particularly, of his or her right to due process.

Were the counsel's activities of such a level as to deprive the defendant of his or her right to counsel, I believe it would be incumbent upon me, in my position as the court, to intervene and to try

to prevent that from occurring.

Senator THURMOND. I do not think I have any other questions. I

want to congratulate you on your selection by the President and

having the endorsement of your Senators from your State, also. I

would be glad to support you and I wish you well on the bench.

Ms. KEELEY. Thank you very much. Senator Thurmond.

Senator KENNEDY. Let me just ask you, I notice that you have

done a great deal of work in the medical area. What is your own

impression about the malpractice situation in West Virginia? We

have seen increases in malpractice insurance over the last decade.

In the most recent time, I know in my State, most of the premiums have actually gone down somewhat, the ones with the highest

premium have been the physician-anesthesiologist and the obstetrician, the ones that are generally the more active members of the

medical profession. We have not seen great instances where the
213

medical profession has been willing to police itself in terms of malpractice. What is generally the condition in West Virginia, in

terms of the medical profession policing itself in cases?

Ms. KEELEY. Mr. Chairman, as part of my practice, I have been

very involved with physicians and hospitals that undertake peer

review. I believe that part of the development of peer review has

been a recognition on the part of physicians, particularly those

emerging from the medical schools today, of their responsibility to

police themselves, otherwise it results in the policing by the courts

through the medical malpractice litigation, in which I have been

involved.

I think it is very important, however, to recognize that, as you

request physicians and hospitals to police themselves, there has to

be some protection in terms of confidentiality for the process, because, otherwise, it could become a vehicle to an increasing amount

of medical malpractice litigation.

In West Virginia, as you are aware, Mr. Chairman, Senator

Rockefeller and others have addressed the crisis in rural health

care that we are experiencing there, and in order to encourage

physicians to both remain there and to relocate to West Virginia,

balancing is important.

Senator KENNEDY. Well, it is an enormously complicated issue,

because you have the rights of privacy and then whether doctors

have rights in various hospitals, whether excluded, whether there

is monopolistic kind of activity in excluding some of them, and

then you have the whole question of privacy in medical records. It

is very, very complicated and a matter of enormous importance, in

terms of maintaining quality health care, and so it is an interesting experience you have, and I am sure that, as well as your other

past experience, as a teacher and your many other activities in the

community, you certainly bring broad understanding to the law.

Well, we want to congratulate you. We certainly look forward to

supporting your nomination, and we are delighted to see your extended family.

Ms. KEELEY. Thank you, Mr. Chairman.

Senator KENNEDY. Thank you very much.

Senator D'Amato, we would be delighted to hear from you. We

have listened to two very outstanding nominees. They are on the

fast track, so we are glad to hear whatever additional information

that you might want to give us.

STATEMENT OF HON. ALFONSE M. D'AMATO, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator D'AMATO. Let me say this, if they are on the fast track, I

do not intend to say anything that might slow that down.

I am delighted to be here, Mr. Chairman, and I ask to incorporate in the record, as read in their entirety, the statements I have

on behalf of Loretta Preska and Sonia Sotomayor. Both are outstanding nominees.

I might mention that, in the 11 years that both Senator Moynihan and I have been making recommendations to the White House,

with the confirmation of Loretta and Sonia, this will bring seven

women who will have been appointed to the Federal bench from
214

our State. Five have already been and are presently serving, and

these two will bring that total up to seven, so I think we can be

quite proud of that accomplishment, and we have at least one other

who I believe is pending in the Justice Department at the present

time.

I might say that I think both candidates bring something that we

can be terribly proud of. They are children of immigrants, they

bring esprit de corps, striving for excellence which they have

achieved academically, professionally, and, in the very real sense, a

great deal of credit has to go to their families.

I am not going to go further, but I have had occasion to speak to

both Sonia last evening, a great, great story of what America can

and is about, and the same thing with Loretta and her magnificent

and wonderful family.

So in addition to their great backgrounds that they bring in

terms of scholarship and their achievements before the bar, as

practicing attorneys, I think they epitomize the best of America

and I am delighted to be able to recommend both for speedy consideration and approval.

And I might say that the court certainly needs their talent as

quickly as possible. The loads are increasing, and I thank the Chair

for your consideration.

[The prepared statements of Senator D'Amato follow:]
215

Sonia Sotomayor

Mr. Chairman,

I am pleased to join my good

friend and colleague Senator

Moynihan in introducing Sonia Marie

Sotomayor as a nominee by the

President to be a United States

District Judge in the Southern

District of New York.

Presently a partner at the firm of

Pavia and Harcourt, Ms. Sotomayor
216

is a Summa Cum Laude graduate of

Princeton University and a graduate

of Yale Law School, where she served

as editor of the law school journal.

Subsequent to law school, Sonia was

an Assistant District Attorney for

New York County for a period of five

years prior to joining her present law

firm in 1984.

I am pleased that Sonia has

received the nomination of the
217

President and the recommendation of

the Justice Department for this

nomination and I am confident that

your assessment will agree that she

will be a fine addition to the Federal

Bench.

Thank you, once again, Mr.

Chairman, for moving so quickly on

this nominee after the designation

was made.
218

Loretta A. Preska

Mr. Chairman,

I am pleased to present for

consideration by the committee

Loretta A. Preska, who was

nominated by the President for the

District Bench, Southern District of

New York. Loretta is a partner in

the firm of Hertzog, Calamari &

Gleason.

A native of Albany New York,

Loretta is a graduate of the
219

College of St. Rose in Albany and

of Fordham University School of

Law in New York City. She is a

noted litigator with a strong

practice in commercial law, as

well as securities and banking

law. In her almost twenty years of

practice she has refined that specialized

training to a recognized expertise which

will be a significant aspect to the court's

capacities.

I ask the panel also to welcome

cn_ORi n — at a
220

her father, Victor Preska, who joins

her husband, Thomas Kavaler, and thentwo children, Matthew and Katherin,

aged three and six respectively. They

are as proud as I am that Loretta has

been nominated by the President and

that she is here in the Senate today.

Proud because she is "family" and

proud, too, that she is the first person of

Lithuanian decent to be nominated to

the Federal Bench in New York.

As an example of the sensitivity
221

which Loretta will bring to her duties, I

want to quote from her letter to me on

the occasion of her being called by the

President.

"In contrast to the usual sterile

office surroundings in which such

calls are received, I took the

President's call advising that he

had followed through on your

recommendation to nominate me to

the Southern District in my

Lithuanian father's home standing
222

next to the flag presented to us

following the burial a year ago of my

sister, a major in the Air Force. As

you can well understand, it was

particularly moving."

That is a measure of this nominee,

Mr. Chairman: A proud American, an

accomplished daughter, a successful

wife and mother.

Mr. Chairman, I am confident that

your committee will find that Loretta

Preska has the professional stature and
223

personal qualities that will make her an

outstanding Federal Jurist.

Thank you, Mr. Chairman, for the

quick action taken by the committee on

behalf of this nominee. The chief judge

has impressed on me the desperate

emergency in the courts and I am

grateful for your speedy action.
224

Senator KENNEDY. Thank you very much, Senator D'Amato.

We know that you have gone out of your way to be here, as Senator Moynihan indicated that you would be coming later in the

morning, and we are delighted to have you here, as well as our

other colleagues, and we certainly agree with your assessment. We

appreciate very much your willingness to be here with us.

Senator THURMOND. Senator, I want to congratulate you on recommending such outstanding ladies.

Senator D'AMATO. Thank you very much.

Senator THURMOND. I have always known you were a ladies'

man, anyway. [Laughter.]

Senator KENNEDY. I am going to leave that alone. [Laughter.]

Senator D'AMATO. That is not in the record, I hope. [Laughter.]

Thank you very much, Mr. Chairman.

Senator KENNEDY. Thank you very much.

Senator Rockefeller, we are glad to have you here. We have had

a very impressive response by the nominee and we have read into

the record the excellent statement of endorsement of your colleague. Senator Byrd. We know that you want to make a comment

and we are delighted to have you here.

STATEMENT OF HON. JOHN D. ROCKEFELLER IV, A U.S. SENATOR

FROM THE STATE OF WEST VIRGINIA

Senator ROCKEFELLER. Mr. Chairman, I apologize. I was downstairs giving testimony in front of Senator Dodd's Subcommittee on

Children, and Irene Keeley understood that. I apologize very much

to the chairman.

I will make a two-sentence statement about Irene Keeley, to

show the depth of my feeling for her and respect for her. I think

she is one of the most impressive people I have ever met.

I have been in the Attorney Generals office twice in my life. The

second time was to go on behalf of Irene Keeley, to talk to Attorney General Dick Thornburgh, because—and I have never done

that before about anybody or anything, but I felt so strongly that

she is so good and it was so important for her to be a Federal

judge, that I wanted to do that.

The first and the only other time that I have ever been there,

Mr. Chairman, was when I went to see your brother, the late

Robert Kennedy, to discuss going to West Virginia as a VISTA volunteer, which he encouraged me to do.

So those are two pretty big visits, as far as I am concerned, and I

hope that expresses in some measure my feeling about Irene

Keeley.

Thank you.

Senator KENNEDY. Very fine. As I mentioned, we are very much

impressed with her legal background and her extraordinary background and the variety of her pro bono work. It is certainly something that we are very interested in trying to encourage among

those who are going to serve on the bench—being involved in pro

bono work. It is interesting that virtually all of the nominees today

have extraordinarily, impressive records in that area, and it is an

excellent example for all the members of the bar.

Senator Thurmond.
225

Senator THURMOND. We are glad to have you here, Senator, and

glad to get your high opinion of the nominee.

Senator ROCKEFELLER. Thank you.

Senator KENNEDY. Thank you very much.

Again, we appreciate all of our colleagues being here and we are

delighted with the nominees, impressed by their qualifications, and

I personally look forward to supporting all of them and urge our

committee to act swiftly and do everything we can to move them

along on the Senate floor.

Senator THURMOND. Mr. Chairman, I might just say that, in looking through the records of these fine ladies, I have been deeply impressed and I am glad to see the President choose some ladies for

these positions.

Senator KENNEDY. The committee stands in recess.

[Whereupon, at 11:10 a.m., the committee adjourned.]
I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Susan Harrell Black

Susan Sims Harrell

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

Home: 3530 St. Johns Avenue

Jacksonville, FL 32205

Work: United States Courthouse

311 West Monroe Street, Room 511

Jacksonville, FL 32202

P.O. Box 53135

Jacksonville, FL 32201

3. Date and place of birth.

October 20, 1943

Valdosta, Georgia

4. Marital Status (include maiden name of wife, or husband's name). List spouse's

occupation, employer's name and business address(es).

Married to Louis E. Black, III

On November 19, 1989, my spouse sold Avondale Travel Bureau to United States Travel

Service and signed a five-year contract to remain as President of Florida operations.

His office address is: 3651 St. Johns Avenue

Jacksonville, FL 32205

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

Ohio Wesleyan University, September 1961 - June 1962. Left to transfer to Florida State

University.

Spring Hill College, Summer of 1962.

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Florida State University, September 1962 - March 1965. Bachelor of Arts Degree, April

22, 1965.

University of Florida College of Law, April 1965 - August 1967. Degree of Juris

Doctor, August 12, 1967.

University of Virginia School of Law, Summer 1982 - May 1984. LL.M Degree,

May 20, 1984.

6. Emplovment Record: list (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and organizations,

nonprofit or otherwise, including firms, with which you were connected as an

oltlcer, director, partner, proprietor, or employee since graduation from college.

Assistant General Counsel, City of Jacksonville, 1300 City Hall, 200 East Bay Street,

Jacksonville, FL 32202. 1972 - 1973

Assistant State Attorney, Fourth Judicial Circuit of Florida, 600 Duval County

Courthouse, 300 East Bay Street, Jacksonville, FL 32202. 1969 - 1972

Assistant General Counsel, United States Government, Army Corps of Engineers,

Federal Building, 400 West Bay Street, Jacksonville, FL 32202. 1968 - 1969

Civics Teacher, Ribault Senior High School, Jacksonville, Florida. September 1967 until

December 1967

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.

University of Florida Distinguished Alumnus Award

October 15, 1982

Kappa Kappa Gamma, National Alumnae Achievement Award (1980)

Outstanding Alumna Award, University of Florida Alumni Club of Jacksonville, 1977 -

1978 (February 28, 1978)

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Florida Blue Key, University of Florida, Gainesville, Florida (1976)

Honorary Member, University of Florida Law Review Association (October 15, 1979)

Member, University of Florida President's Council (1982 - present)

Governor's Commission on the Status of Women (1973 - 1979)

Governor's Conference on Energy Supply and Use (appointed February 1973)

Florida Publishing Company "Eve Award" (1988)

Recipient of "Book* award (highest grade) in Constitutional Law, University of Florida

College of Law, Gainesville, Florida (1965)

Honor List (academics), Florida State University, Tallahassee, Florida (1962 - 1964)

Delta Sigma Rho - Tau Kappa Alpha, National Scholastic

Debate Honorary (1963 - 1965)

Vice President (1964)

Pi Sigma Alpha

National Scholastic Political Science Honorary

(1964 - 1965)

9. Bar Associations: List all bar associations, legal or judicial-related committees or

conference* of which you are or have been a member and give the titles and dates

of any offices which you have held in such groups.

American Bar Association

Member, Judicial Administration Division (1975 - present)

Member, National Conference of State Trial Judges (1975 - 1979)

Delegate to 1977 and 1978 ABA Convention (appointed by Chief Justice,

Florida Supreme Court)

National Conference of Special Court Judges (1973 - 1975)

Florida Membership Chairman of the National Conference of Special

Court Judges (1974)

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The Judiciai Conference of the United States

Committee on Court Administration and Case Management (1990 -

present)

Case Management Subcommittee Member (1990 - Present)

Chair, PC/CHASER Subcommittee (computer assisted case

management (1991 - Present)

Chair, Telephone Interpreting Project (1990 - Present)

Committee on Judicial Improvements (1987 - 1990)

The Eleventh Circuit Judicial Council

(1991 - present)

Florida State-Federal Judicial Council

(1990 - present)

The United States District Judges Association of the Eleventh Circuit

Member (1979 - present)

President (May 1987 - 1988)

President-Elect (May 1986 - 1987)

Vice President (May 198S - 1986)

Secretary-Treasurer (May 1984 - 1985)

The Florida Bar

Member, Civil Procedure Rules Committee (1979 - 1982)

Member, Criminal Law Section (1976 - 1979)

Chairman, Criminal Jury Instructions Committee

(1978 - 1979)

Member, Continuing Legal Education Committee - Manual on Evidence

(1976 - 1978)

Chairman, Continuing Legal Education Steering Committee -Manual on

Florida Criminal Rules and Practice (1976 - 1978)

Member, Criminal Procedure Rules Committee (1976 - 1979)

Chairman, Continuing Legal Education Steering Committee for Criminal

Law Course (1976)

Chairman, Legislation Subcommittee of the Criminal Law Committee

(1975)

Member, Criminal Law Committee (now the Criminal Law Section) (1972

-1976)

Member, Special Committee on Liaison with Judiciary and Trial Lawyers

(1977 - 1978)

American Inns of Court

Board of Trustees (1985 - 1991)

Chairman, A. Sherman Christensen Award Judging Panel (1991 - Present)

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Chester Bedell Inn of Court

President (1985 - 1988, 1991 - present)

Executive Committee (1988 - present)

University of Honda Law Center Association. Inc.

Vice Chairman, Board of Trustees (1981 - 1988)

Member, Board of Trustees (1978 - 1988)

Member, Award and Scholarship Committee (1981 - 1988)

Member, Nominating Committee (1980)

Chairman, Nominating Committee (1981 - 1985)

Trustee Emeritus (1988 - present)

Law Center Council (1972 - 1978)

University of Florida College of Law

Visiting Alumni Committee (for accreditation review) (1981 - 1982)

The Jacksonville Bar Association

Co-Editor of Bar Bulletin (1972)

The Maritime Law Association of the United Slates

(1980 - Present)

National District Attorneys Association

(1969 - 1972)

Florida Prosecuting Attomevs Association

(1969 - 1972)

Council of Slate Governments

(1969 - 1972)

National Institute of Municipal Law Officers

(1968 - 1969)

Workshop for Judges of the United Slates Fifth and Eleventh Circuits

Member, Program Committee (1983)

Workshop for Judges of the United States Eleventh Circuit

Chairman, Program Committee (1982)

Supreme Court Committee on Standard Civil Jury Instructions

Appointed by Chief Justice, Florida Supreme Court (1978 - 1979)

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Slate Parole & Probation Qualificalions Committee

Appointed Chairman by Governor, State of Florida, to select three

candidates for Governor's consideration to fill vacancies on Parole and

Probation Commission (1977 - 1979)

Jacksonville Probation and Restitution Center Citizens Advisory Committee

Board of Directors (1977 - 1979)

Depanment of Offender Rehabilitation Advisory Council

Appointed by Governor, State of Florida - created by law to assist the

Department of Rehabiltlation with parole and correction problems (1976 -

1979)

Florida Conference of Circuit Judges

Chairman, Education Committee (1976 - 1979)

Spring 1978 Educational Seminar - Conducted under my direction and

supervision (March 19-22, 1978)

Spring 1977 Evidence Seminar - Florida had adopted a new Evidence

Code based primarily on the Federal Evidence Code, and I was

completely responsible for this training seminar attended by

approximately 200 Circuit Judges (March 20-23, 1977)

Spring 1976 Educational Seminar - Conducted under my direction and

supervision (March 9-12, 1976)

Dean of College for New Judges - A one-week mandatory seminar

conducted for all new Circuit and County Court judges for the

purposes of orienting them as to their new positions and

responsibilities

Vice-Chairman, Education Committee (1975 - 1976)

Holland Law Center, University of Florida (January 1978 and March

1979)

Florida Court Education Council

Appointed by Chief Justice, Florida Supreme Court (1978 - 1979)

National Judicial College

Faculty Member (1977 - 1979)

Offender Assistance Through Community Colleges Project Advisory Committee

Board of Directors (1975 - 1978)

Governor's Metropolitan Criminal Justice Advisory Council

Member (1973 - 1979)

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Judiciary Education Advimry rnmmittee of Supreme Court of Florida

(1976)

Governor's Task Force on Florida's Correction Svaem

Appointed December 1975 (Task Force presented its findings and

disbanded July 1976)

Probationers Residence Propram. Inc.

Executive Board of Directors (1973 - 1975)

Conference of County Court Judges

Criminal Law Committee (1973 - 1975)

Criminal Justice Information System Steering Committee

Supervised the use and allocation of computer system for courts,

corrections, sheriff, state attorney, and public defender (1970 - 1979)

Assistant Project Director for Court Management Systems

(1969 - 1972)

Florida Institute for Judiciary

County Court Judges Seminar (December 4-8, 1972)

Chief Judges and Court Administrators Conference

Sponsored by National College of State Trial Judges at Williamsburg,

Virginia (Febnury 14-19, 1971)

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.

11. Court Admission: List all courts in which you have been admitted to practice, with

dates of admission and lapses if any such memberships lapsed. Please explain the

reason for any lapse of membership. Give the same information for administrative

bodies which require special admission to practice.

All and singular the Courts of Florida, November 10, 1967. United States District Court

for the Middle District of Florida, June 21, 1968. Supreme Court of the United States,

November 9, 1971.

12. Published Writings: List the titles, publishers, and dates of books, articles, reports,

or other published material you have written or edited. Please supply one copy of

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all published material not readily available to the Committee. Also, please supply

a copy of all speeches by you on issues involving constitutional law or legal policy.

If there were press reports about the speech, and they are readily available to you,

please supply them.

I have been very involved in continuing education, as reflected by the following:

Chapter: 'Judicial Notice; Presumptions; Burden ofProof

The Florida Bar - Continuing Legal Education Manual, Evidence in Florida,

Third Edition, Published 1989. See Addendum I-A.

Lecture and Materials: 'Bail and Detention Under 1984 Act'

Federal Judicial Center Seminar for:

United States Magistrates

Minneapolis, Minnesota - August 8, 198S

Albuquerque, New Mexico - February 27 - March 1, 1985

Article: "A New Look at Preliminary Injunctions: Can Principles from the Past

Offer Any Guidelines to Decisionmakers in the Future?'

Alabama Law Review, Vol. 36, No. 1, Fall 1984. See Addendum I-B.

Lecture and Materials: 'From the Judge's Perspective'

Civil Practice in Federal Courts, The Florida Bar Continuing Legal Education

Program

Tampa, Florida, September 23, 1983 & September 21, 1984

Miami, Florida, September 22, 1983 & September 20, 1984

Lecture and Materials: 'Judicial Techniques to Expedite Trials' - Federal Judicial

Center Seminar for:

Full-Time United States Magistrates

Phoenix, Arizona, February 23-25, 1983

United States Bankruptcy Judges

Albuquerque, New Mexico - March 16-18, 1983

Nashville, Tennessee - November 17-19, 1982

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234

Lecture and Diatogue: 'Sentencing'

College for New Judges

University of Florida, College of Law

Gainesville, Florida

March 18-23, 1979

Chapter: 'Judicial Notice; Presumptions: Burden ofProof

The Florida Bar - Continuing Legal Education Manual, Evidence in Florida.

Second Edition, Published 1978. See Addendum I-C.

Chapter: 'Extradition'

The Florida Bar - Continuing Legal Education Manual, Florida Criminal Rules

and Practice. Second Edition, Published 1978. Sec Addendum I-D.

Lecture: 'Redesign of an Existing Information System,' 'Installing a Better System'

National Judicial College, University of Nevada

Reno, Nevada

November 12-17, 1978

Lectures and Materials: 'Redesign of Existing Information System.' 'Installing a

Better System,' 'Critique of Workshop Problem'

National Judicial College, University of Nevada

Reno, Nevada

March 15-17, 1978

Lecture and Materials: 'Sentencing'

College for New Judges

University of Florida, College of I-aw

Gainesville, Florida

January 22-25, 1978

Lectures: 'Technology and Court Management Systems Development.' 'Organizing and

Conducting a Court Improvement Plan for Your Jurisdiction.' 'Your Role in

Initiating and Preparing Your Courtfor Change'

National College for the State Judiciary, University of Nevada

Reno, Nevada

April 20-22, 1977

1-9
Lecture: 'Commitment and Confidence in Corrections'

Basic Training Seminar on Planning and Implementation in Corrections,

Henry Chauncey Conference Center

Princeton, New Jersey

January 30, 1977

Lecture and Materials: 'Role ofthe Bar and the Judiciary in Corrections'

National Conference on Community Corrections and Positive Educational

Programming, Wingspread Conference Center

Racine, Wisconsin

April 13-1S, 1976

Lecture and Materials: 'Court Management Using Information Systems'

The Institute for Court Management, Court Information Systems

Workshop

Denver, Colorado

June 9, 1975

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

examination.

Excellent.

July 8, 1991.

14. Judicial Office: State (chronologically) any judicial offices you have held, whether

such position was elected or appointed, and a description of the jurisdiction of each

such court.

I was appointed United States District Judge for the Middle District of Florida, and have

been serving in such capacity since July 24, 1979. On January 26, 1990,1 became Chief

Judge for the Middle District of Florida, and at this time still hold that designation.

I was elected Circuit Judge, Fourth Judicial Circuit of Florida, in 1974, without

opposition. The Circuit Court is a court of general jurisdiction.

I was elected County Court Judge, Duval County, Florida, in 1972, with opposition, and

served continuously until January 1975. The County Court is a court of limited

jurisdiction with civil jurisdiction up to $2,500 and criminal misdemeanor jurisdiction.

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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) Port ofJacksonville Maritime, Etc. v. Hayes, 485 F. Supp. 741, qgrd 620 F.2d

567 (1980)

United States v. Hebnich, 521 F. Supp. 1246, affd 704 F.2d 547, cen. denied

464 U.S. 939 (1983)

Blue Cross and Blue Shield of Florida, Inc. v. Department of Banking and

Finance, 613 F. Supp. 188, afTd 791 F.2d 1501 (1986)

Florida Steel Corp. v. Whiting Corp., 677 F. Supp. 1140 (1988) — no appellate

history

Juror 157 v. Corporate Defendant, 710 F. Supp. 324 (1989) — no appellate

history

Kennan v. Dow Chemical Co., 717 F. Supp. 799 (1989) — no appellate history

DeBailey v. Lynch-Davidson Motors, Inc., 734 F. Supp. 974 (1990) — no

appellate history

King Provision Corp. v. Burger King Corp., 750 F. Supp. 501 (1990) — no

appellate history

Florida East Coast Ry. Co. v. Martinez, 761 F. Supp. 782 (1991) — no appellate

history

Sweatt v. Florida Bd. of Pilot Commissioners, 1991 U.S.Dist. LEXIS 16263

(1991) — no appellate history

(2) I have not kept records of my decisions which were either reversed or affirmed.

The following are cases that are listed by the LEXIS service as vacated or

reversed.

United Stales v. Harari. 940 F.2d 614 (11th Cir. 1991). The circuit

court vacated that portion of the criminal sentence dealing with a special

parole term. The question was whether the Sentencing Reform Act of

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1984, which became effective on November 1, 1987, applied to violations

of the Anti-Drug Abuse Act of 1986 (ADAA) committed prior to

November 1, 1987.

EJrod v. Stan, Roebuck & Co., 939 F.2d 1466 (11th Cir. 1991). The

circuit court reversed a jury verdict for the plaintiff and the denial of a

motion for judgment n.o.v. in an age discrimination suit, pursuant to the

Age Discrimination in Employment Act of 1967. The circuit court

reviewed the denial of the motion de novo, and held that the plaintiff had

failed to show that the employer's proffered reason for termination was

pretextual.

Blanchard v. State Farm Mutual Automobile Ins. Co., 931 F.2d 789

(11th Cir. 1991). The circuit court certified a question of state insurance

law to the Florida Supreme Court. Based on the state court's answer to

the certified question, the circuit court reversed this Court's interpretation

of the state law question.

Royal Ins. Co. ofAmerica, Inc. v. M/V Manaure V, 790 F.2d 77 (11th

Cir. 1986). The circuit court reversed the dismissal of a series of cases

brought as direct actions against maritime insurers. The circuit court had

held in another case, decided subsequent to the rulings in these cases, that,

under Florida law, a direct action was permitted against a maritime

insurer.

I know of no cases where my judgment was affirmed with significant criticism

of my substantive or procedural rulings. A search of the LEXIS research service

using the keywords "affirmed" and "critici!" found no such cases.

(3) No record has been kept of significant constitutional opinions. A search of the

LEXIS research service, using the keyword "constitution." identified 28 cases that

1 have published concerning constitutional issues.

Although in many respects 1 do not feel that any of those cases were significant,

of the 28 cases, the following are probably the most significant:

(A) Shabazz v. Bamauskas. 600 F. Supp. 712 (M.D. Ha.), aff^d 790

F.2d 1536 (Uth Cir.), cen. denied 479 U.S. 1011 (1986)

(B) Kennan v. Dow Chemical Co., 717 F. Supp. 799 (M.D. Fla.

1989)

(C) United States v. Beckman, 545 F. Supp. 1284 (M.D. Fla. 1982)

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(D) San Juan Liquors, Inc. v. Consolidated City ofJacksonville, Fla.,

480 F. Supp. 151 (M.D. Fla. 1979)

A search of Shepard's citations shows that only two of these opinions received

treatment in appellate opinions. First, the Shabazz case was affirmed as cited

above. Second, in the appeal of another of my decisions. Papas v. The Upjohn

Q».. Case No. 88-116-Civ-M4,<ard926 F.2d 1019, 1021 n. 1 (11th Cir. 1991),

the Eleventh Circuit endorsed the holding of the Kennan case.

16. Public Office: State (chronologically) any public offices you have held, other than

judicial offices, including the terms of service and whether such positions were

elected or appointed. State (chronologically) any unsuccessful candidacies for

elective public office.

None.

17. Legal Careen

a. Describe chronologically your law practice and experience after graduation

from law school including:

1. whether you served as a clerk to a Judge, and If so, the name of the

judge, the court, and the dates of the period you were a clerk;

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;

Assistant General Counsel, City of Jacksonville, 1972 - 1973

Assistant State Attorney, Fourth Judicial Circuit of Florida, 1969 - 1972

Attorney for United States Government, Army Corps of Engineers,

Jacksonville District, 1968 - 1969

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What has been the general character of your law practice, dividing it

into periods with dates if its character has changed over the years?

Assistant General Counsel, City of Jacksonville, 1972 - 1973

As the Chief Legal Advisor in all financial matters to the City of

Jacksonville, my clients were the Council Auditor of the City

Council, the Finance Committee of the City Council, and the

Finance Department of the City of Jacksonville. Their

representation related to areas of municipal taxation, bond

validation, pertinent ordinance drafting, legal opinions requested

at all City Council Finance Committee meetings and providing the

Council Auditor with opinions concerning the scope of his duties

with relationship to his Charter powers. I was consulted on a dayto-day basis regarding legal opinions which would permit the

Mayor, through the Finance Department, and Council, through its

Finance Committee, to implement policy decisions.

My other duties included providing legal representation to the Data

Processing Division of the General Services Department of the

City, primarily concerning computer procurement contracts for

hardware and software, as well as drafting and formulating

licensing agreements between the City and various governmental

entities.

I served as the attorney for the Water Quality Control Board, the

Air Pollution Control Board, and prosecuted before the Civil

Service Board and the Duval County School Board. Aside from

writing memoranda and giving opinions concerning the particular

and diverse substantive legal issues that arose, my service to the

various Boards was primarily of an advisory nature on procedural

and due process matters.

Assistant State Attorney, Fourth Judicial Circuit of Florida, 1969 - 1972

As an active courtroom attorney, I exercised individual discretion

in the filing of criminal cases at the intake level; prepared over

two hundred cases for trial; actually had the sole responsibility for

the prosecution of over twenty felony cases which were tried

before a jury, including several capital cases; tried numerous

misdemeanor cases; and provided assistance to the Attorney

General, State of Florida, in preparing appellate briefs and oral

arguments. In performing the above functions, 1 appeared before

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and advised the Grand Jury, requiring the drafting of indictments

and presentments.

My other duties involved representing the State in civil litigation,

including bond validation cases, Uniform Reciprocal Enforcement

of Support Act cases, extradition cases, and habeas corpus

proceedings in State and Federal courts.

Attorney for United States Government, Army Corps of Engineers,

Jacksonville District, 1968 - 1969

As a real estate specialist, I negotiated, purchased for the

Government, and prepared all legal instruments required to

purchase parcels of land for various government projects from

private owners (including the Cape Canaveral Project, the CrossFlorida Barge Canal Project, and structural facilities for national

emergencies, which required secret classification).

My other duties included preparing condemnation suits for trial

and serving as trial assistant and substantive legal advisor to the

United States Attorney in the actual trial of the condemnation suit.

I was responsible for the drafting of contracts concerning

governmental procurement and lease agreements.

Describe your typical former c'.ients, and mention the areas, if any, in

which you have specialized.

Description of typical former clients incorporated in answer to Question

17.b.l. above.

If the Florida Bar Designation Plan had been in effect from 1967 to 1972,

I would have qualified in the following areas of practice:

Trial Practice

Administrative and Governmental Law

Criminal Law

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 throughout my entire practice.

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2. What percentage of these appearances was in:

(a) federal courts;

Less than 10%

(b) state courts of record;

More than 85%

(c) other courts.

5%

3. What percentage of your litigation was:

(a) civil;

50%

(b) criminal.

50%

4. State the number of cases in courts of record you tried to verdict or

Judgment (rather than settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Over 300 cases, with most being as sole counsel (1968 - 1973)

5. What percentage of these trials was:

(a) Jury;

35%

(b) non-Jury.

65%

IS. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reported, and the docket number and

date if unreported. Give a capsule summary of the substance of each case. Identify

the party or parties whom you represented; describe in detail the nature of your

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242

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.

Edward Bail, J.C. Belin. T.S. CoUewey, Alfred duPont Dent, WiUiam B. Mills,

W. L. Thornton and The Florida National Bank of Jacksonville, as Trustees

under the Last Will and Testament and Codicils thereto of Alfred I. duPont,

Deceased, and The Nemours Foundation, a corporation notforprofit under the

laws of Florida vs. A. J. O'Donnell, District Director of Internal Revenue

Service, and T. Edward Austin, Jr., State Attorney in and for the Fourth

Judicial Circuit ofthe Slate ofFlorida, Civil Action No. 71-7001, In the Circuit

Court, Fourth Judicial Circuit, In and For Duval County, Florida. The case was

heard by the Honorable Marion W. Gooding, Circuit Judge (deceased).

The above was a hearing on a petition to construe the will and to instruct

the trustees of Alfred I. duPont, Deceased, and The Nemours Foundation, a

corporation not for profit under the laws of Florida. As an Assistant State

Attorney, I represented the State Attorney who was the defendant in the case and

was sued pursuant to the provisions of Section 737.251, Florida Statutes, since

the proceeding involved a charitable trust with unknown or unascertainable

beneficiaries, and pursuant to the provisions of the Florida Charitable Trust Act

of 1971. The purpose of this suit was to obtain a judicial determination of (a) the

intent and purpose of Alfred I. duPont in devising "for the purpose of maintaining

the said Estate of 'Nemours' as a charitable institution for the care and treatment

of crippled children, but not of incurables or the care of old men or old women,

and particularly old couples," and (b) to construe the intent of Alfred I. duPont

in using the term "for the care and treatment of crippled children." I prepared

the answer to the petition to construe the will and instruct trustees. The answer

was reviewed and signed, as prepared, by the State Attorney, T. Edward Austin.

I, solely, represented the State of Florida at the hearing on the petition held on

December 17, 1971. My participation in the litigation was from August 6, 1971,

to January 3, 1972.

The significance of the case is that the trust is the second largest

philanthropic trust in the United States. All subsequent litigation hinged on the

petition to construe the will. The Final Judgment established a very broad

definition of the phrase "crippled children" and "hospital." The phrase "crippled

children" was defined to mean "persons under twenty-one years of age who, by

reason of a physical defect or infirmity, whether congenital or acquired by

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accident, injury or disease, have been deprived of strength, activity or capability

for service or use, in any part of the human body.' The phrase "hospital" was

defined to include "any property or facility which is used predominantly or

primarily for a purpose which is incidental to and reasonably necessary for the

accomplishment of hospital purposes or which is reasonably necessary for the

fulfillment of a generally recognized function of a complete, modem hospital."

As a result of this litigation, a sixty million dollar ($60,000,000) hospital was

constructed in Delaware to provide medical services for children. The decree

entered during my participation was not appealed, but subsequent litigation, in

which I was not involved, resulted in several appeals.

Opposing counsel were William L. Durden, Esquire, Florida National

Bank Building, Jacksonville, Florida 32202, (904) 359-5053; Fred H. Kent,

Esquire, 900 First Union Tower, Jacksonville, Florida 32202, (904) 358-1000;

and Charles T. Akre, Esquire, 1700 Pennsylvania Avenue, N.W., Washington,

DC 20006 (last known address).

State Attorney T. Edward Austin (now Mayor of the City of Jacksonville),

14th Floor, City Hall, Jacksonville, FL 32202, (904) 630-1776.

State of Florida v. Waiter Green, Case No. 70-112-C, In the Circuit Court,

Fourth Judicial Circuit, In and For Duval County, Florida. The case was tried

before the Honorable Sam Goodfriend, Circuit Judge (retired).

The above was a criminal case in which the defendant, Walter Green, was

charged with the capital crime of Murder in the First Degree. As Assistant State

Attorney, I was totally responsible for the preparation and trial of the case from

December 23, 1970, until June 29, 1971. The jury, in returning its verdict,

found the defendant guilty of Attempt to Commit Murder in the First Degree.

The case was tried on March I and 2, 1971.

The significance of the case was that it was a capital case tried before a

twelve-man jury, and the death penalty was potentially involved. The primary

significance was the jury instruction given by the court. There was no factual

question that a death had occurred, yet the verdict was for an attempt to commit

the crime of murder. The defendant argued on appeal that the jury should not

have been instructed on the "attempt" since the death had been proven. The

District Court supported the trial judge's instruction on the "attempt," which

further defined the jury instructions which courts in Florida must give in a capital

case. See Green v. State, 252 So. 2d 375 (1st D.C.A. 1971).

Opposing counsel was originally Assistant Public Defender Barry S.

Sinoff, whose current address is 6960 Bonneval Road, Suite 202, Jacksonville,

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FL 32216, (904) 296-2299; and later Walter Green was represented by Emest

Jackson, Esquire (deceased).

In the matter of: The Extradition of Tommy Paschal, Civil Action No. 70-

9424, In the Circuit Court, Fourth Judicial Circuit, In and For Duval County,

Florida. The case was heard by the Honorable Marion W. Gooding, Circuit

Judge (deceased).

The above was originally an extradition proceeding, which was contested.

As an Assistant State Attorney, I represented the State of Florida in the

extradition proceeding, including the final hearing held on November 20, 1970.

The defendant contested the extradition on several grounds, including that he was

not in Georgia at the time of the alleged offense. At the final hearing, the victim

identified the defendant as having been in Georgia. The trial court granted the

extradition. The defendant appealed the trial court's order. Pending appeal, the

defendant was released on a supersedeas bond. The trial court was affirmed in

granting the extradition [See Paschal, 247 So. 2d 493 (1st DCA 1971)], and the

order of forfeiture of bond was entered. I also personally handled the hearing on

the forfeiture of the bond. An appeal was taken of the forfeiture by Resolute

Insurance Company by American Prudential Bonding Agency. The appeal was

dismissed for lack of prosecution.

The significance of this case is that the field of extradition is a highly

specialized and technical area of the law with limited case law reported. The case

represented one of over fifty such extradition cases that I personally handled

while an Assistant State Attorney. By affirming the lower court, the District

Court again supported the limited scope and purpose of extradition proceedings.

Opposing Counsel was Joseph A. St. Ana, Esquire, 817 North Main

Street, Jacksonville, Florida 32202, (904) 355-7831 (current address unknown).

State of Florida v. Dennis Leonard Albert, Case No. 70-2525, In the Criminal

Court of Record, Duval County, Florida. The case was tried before the

Honorable Charles Cook Howell, Jr., Circuit Judge (retired).

The above was a criminal case in which the defendant was charged with

the crime of Assault to Murder and Attempted Escape. As Assistant State

Attorney, I was totally responsible for the preparation and trial of the case. The

jury returned a verdict of Guilty of Assault With Intent to Commit Murder in the

Second Degree and Attempted Escape. The case was tried July 29, 1970.

I- 19
245

This case was representative of the cases I prosecuted in the Criminal

Court of Record, Duval County. The significance of the case was that the verdict

returned in the first count was for Assault with Intent to Commit Murder in the

Second Degree, and defense counsel urged that the defendant was convicted for

intending to commit a crime that did not require intent. The First District Court

of Appeal affirmed the court which, in effect, defined the crime of Assault With

Intent to Commit Second Degree Murder. See Albert v. State, 247 So. 2d 724

(1st DCA 1971).

Opposing Counsel was Assistant Public Defender Joseph S. Farley, Jr.,

whose current address is 3S0 East Adams Street, Jacksonville, FL 32202, (904)

354-4300.

State of Florida v. Betty Walker Stewart, Case No. 70-75-C, In the Circuit

Court, Fourth Judicial Circuit, In and For Duval County, Florida. The case was

tried before the Honorable Lamar Winegeart, Circuit Judge (retired).

The above was a criminal case in which the defendant, Betty Walker

Stewart, was charged with the capital crime of First Degree Murder. As

Assistant State Attorney, I was responsible for the prosecution of the case,

preparing all pleadings, drafting all proposed orders for the court, and

representing the State at all but one hearing from September 2, 1970, through

November 9, 1971. The case was never presented to a petit jury. The hearings

in which I represented the State before the court were held on September 23,

1970, October 13, 1970, January 25, 1971, and November 9, 1971.

The significance of this case was the defense of insanity raised by the

defendant and the subsequent hearings on the question of insanity. This was not

the usual insanity defense raised on behalf of defendants in similar proceedings.

State v. Stewart was a 'textbook' case in that it was proven that the only time the

defendant was legally insane was during the commission of the alleged crime.

There was no question from either lay or psychiatric testimony that the defendant

was an intelligent, articulate woman who had always been a reputable citizen and

that she was capable of assisting counsel in her defense. Yet, the testimony from

at least four psychiatrists and one psychologist was that on the day of the alleged

offense, she was legally incompetent. The physicians, who regularly examined

hundreds of criminals alleging insanity as a defense, stated that this was one of

the most unique and unusual cases they had ever seen. After the Defendant's

commitment to the state hospital and several hearings regarding the defendant's

insanity, I, representing the State, entered a nolle prosequi in the case.

1-20
246

Opposing counsel was Giles P. Lewis, Esquire, who is currently a Circuit

Judge for the Fourth Judicial Circuit, Duval County, Room 227, Duval County

Courthouse, Jacksonville, Florida 32202, (904) 630-2539.

Oscar Gene Felderand Frederick Ross v. Duval County School Board and Cecil

Hardesty, Superintendent of Schools, Administrative Hearing held before

Yardley Buckman, Esquire, Hearing Examiner for the Duval County School

Board.

The above was an administrative hearing. As an Assistant General

Counsel, City of Jacksonville, I represented the Duval County School Board and

the Superintendent of Schools before the Hearing Examiner for the Duval County

School Board. Oscar Gene Felder and Frederick Ross, high school seniors

attending Ribault Senior High School, had been expelled from school, principally

for fighting with a teacher and inciting other students to fight on the school

grounds. They and their parents both contested, to the Duval County School

Board, their expulsions. A hearing was held in late February or March 1972,

before Yardley Buckman, Esquire, Hearing Examiner for the Duval County

School Board. The students were jointly represented by Bill Gibbons, Esquire,

and Deitra Micks, Esquire.

I was totally responsible for the presentation and preparation of the case

to be heard before the Hearing Examiner. At the conclusion of this two-day

evidentiary hearing, Mr. Buckman, as Hearing Examiner, recommended that both

students be expelled for the reasons presented at the hearing. The School Board

supported the recommendation, after which both students brought suit against

William E. Carter, as Chairman of the School Board, all other School Board

members, and Cecil Hardesty, Superintendent of Schools. The action was

brought under 42 U.S.C. § 1983 (1976) in the Middle District of Florida (72-275-

Civ-J-S). The suit was subsequently dismissed by the plaintiffs.

The significance of this case was that a desegregation order of the Duval

County Schools had been entered by the Federal Court in 1971, and Ribault

Senior High School was one of the principle schools affected by the desegregation

order. During the period of 1971-1972, there was a great deal of student unrest

and even rioting in Jacksonville's local schools. After this proceeding and the

results thereof, substantial order returned to Ribault Senior High School, and a

compromise, which defused a very volatile situation, was reached in the case.

Opposing counsel were Bill Gibbons (formerly with the Jacksonville Area

Legal Aid, Inc.), whose present address is unknown; and Deitra Micks, Esquire,

5411 Soutel Drive, Jacksonville, FL 32202, (904) 764-5411 Oast known address).

1-21
247

Slate ofFlorida v. William T. Harvey, Case No. 70-1194, In the Criminal Court

of Record, Duval County, Florida. The case was tried before the Honorable

Victor O. Wehle, Circuit Judge (deceased).

The above was a public corruption case in which the defendant, William

T. Harvey, who had been a Criminal Court of Record Judge, Duval County, for

over fifteen years, was charged with malpractice. The charges were filed on

August IS, 1969, and a plea of guilty was entered on April 6, 1970. I was cocounsel with the State Attorney, T. Edward Austin, who is now the Mayor of the

City of Jacksonville, and the Assistant State Attorney, Everett R. Richardson,

who is now deceased. In this position, my responsibilities included trial

preparation and legal research. Some of the points I researched were the use of

collateral crimes, the use of voice-print identification, and the introduction into

evidence of taped conversations. I, solely, represented the State at depositions

in the case and was responsible for witness preparation for trial. Witness

preparation included working at length with the key witnesses and assisting in the

continued investigation, including Grand Jury appearances of other witnesses who

might testify as to collateral crimes.

The significance of the case was the prosecution of a sitting judge for

corruption and the legal questions surrounding the various taped conversations.

Opposing counsel were Albert Datz, Esquire, 2902 Independent Life

Building, 1 Independent Square, Jacksonville, Florida 32202, (904) 3SS-S467; and

Walter G. Arnold, Esquire, 2508 Gulf Life Tower, Jacksonville, Florida 32207,

(904) 396-5231.

Co-counsel were State Attorney T. Edward Austin (now Mayor of the City

of Jacksonville). 14th Floor, City Hall, Jacksonville, FL 32202, (904) 630-1776;

and the Honorable Everett R. Richardson (deceased).

Norma Faye Stone v. Billie Wayne Morris, Civil Action No. 69-5077, In the

Circuit Court, Fourth Judicial Circuit, In and For Duval County, Florida. The

case was tried before the Honorable A. W. Graessle, Jr., Circuit Judge

(deceased).

The above was a Complaint for Support, filed under the Uniform

Reciprocal Enforcement of Support Act, on behalf of three minor children

residing in the State of California. As an Assistant State Attorney, I represented

the mother who was seeking support for her children. I was totally responsible

for the preparation and presentation of the case. The father of the children had

permanently committed them to a licensed child-placing agency, which

1-22
248

subsequently placed the children with the mother. The case was tried on July 23,

1969.

The significance of the case was that it was a landmark case in the State

of Florida. The children had been permanently committed to the care of a

licensed child-placing agency. In the past, permanent commitment to a licensed

child-placing agency was viewed in the State in the same posture as adoption.

The father had been permanently deprived of his parental rights. The trial court

ruled that the father must support the children, even though deprived of his

parental rights. The case was appealed to the First District Court of Appeal, and

the trial court was affirmed. See Morris v. Stone, 236 So. 2d 455 (1st DC A

1970).

Opposing counsel was Lacy Mahon, Jr., Esquire, 1120 Blackstone

Building, Jacksonville, Florida 32202, (904) 354-3526.

State of Florida v. Bemice Lucas, Case No. 70-61, In the Criminal Court of

Record, Duval County, Florida. The case was tried before the Honorable

Charles Cook Howell, Jr., Circuit Judge (retired).

The above was a criminal case in which the defendant, Bemice Lucas, was

charged with the crime of Abortion. As Assistant State Attorney, I was totally

responsible for the preparation and trial of the case. The jury returned a verdict

finding the defendant guilty of Abortion as charged. The case was tried June 22

and 23, 1970.

The significance of this case was the crime charged and the point on

appeal. The crime charged was abortion. The trial is the only abortion case ever

tried in Duval County in recent memory. The point on appeal was the use of

collateral crimes. Evidence was presented at trial relating to similar facts tending

to prove that the defendant, in performing this abortion, committed separate

crimes in order to show common scheme or design, guilty knowledge, intent,

motive or pattern and to show a system of general pattern of criminality. The

First District Court of Appeal reversed the trial court, finding that the evidence

as to the collateral crimes was not relevant, in light of the defendant's written

confession admitting performance of the charged abortion. The case, in my

opinion, further limited the use of collateral crime evidence in the trial of

criminal cases throughout the First District, State of Florida. See Lucas v. State,

257 So. 2d 261 (1st DCA 1971). Cert, denied, Fla. 256 So. 2d 514.

Opposing counsel was Ernest Jackson, Esquire (now deceased.)

1-23
Amy Directive No. 19, Issued December 8, 1962, Tracts 6703-C. 6707-C,

6744-C, United States Army Corps of Engineers, Jacksonville Division, Florida.

The above was a condemnation action which involved cemeteries in

Brevard County, Florida. As an attorney representing the United States Army

Corps of Engineers, Jacksonville, Florida, it was my responsibility, after

attempting to negotiate a settlement on behalf of the government, to totally

prepare for trial by the United States Attorney the condemnation of any real

property deemed necessary for the use by the Corps of Engineers in its military

or civil projects.

The significance of the above condemnation was that the majority of the

land for the John F. Kennedy Space Center, Cape Canaveral, Florida, had already

been acquired and, in order to complete the space center, it was necessary to

acquire these three remaining tracts. The preparation of the Complaint was

unusual, in view of the fact that these cemeteries had no known ownership, little

traceable grave identification, and they were of historical significance because

they helped to document the early pioneer settlers of the region.

In 1968, upon my completion of the Complaint and supporting documents,

the file was transmitted for trial to the United States Attorney.

I am unable to furnish case citation due to the destruction and removal of

the government files.

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.)

Significant legal activities that I have pursued have been described in answers to previous

questions.

1-24
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits which

you expect to derive from previous business relationships, professional services, firm

memberships, former employers, clients, or customers. Please describe the

arrangements you have made to be compensated in the future for any financial or

business interest.

None.

2. Explain how you will resolve any potential conflict of interest, including the

procedure you will follow in determining those 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.

None.

3. Do you have any plans, commitments, or agreements to pursue outside employment,

with or without compensation, during your service with the court? If so, explain.

No.

4. List sources and amounts of all income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding $500 or more (If you prefer to do so, copies of the financial disclosure

report, required by the Ethics in government Act of 1978, may be substituted here.

See the Financial Disclosure Statement, which is attached as Addendum n-A.

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

as called for).

See the financial net worth statement, which is attached as Addendum IM3.

6. Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

No.

n-1
251

m. GENERAL (PUBLIC)

An ethical consideration under Canon 2 or 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.

This is my 20th year on the bench, so I have not had the opportunity to recently serve

in my professional capacity as an attorney. I have had the opportunity to serve the

disadvantaged in my personal life.

A recent example was my active involvement in a parish outreach assessment committee.

The committee spent approximately nine months, meeting up to four times a month,

identifying the needs of the underprivileged in the community and the neighborhood.

Our report, which I gave to the church leadership, identified children's needs and the

needs of the elderly. Programs were established to assist both. The first program was

a summer arts camp, which was held in the summer of 1990. The program served the

underprivileged children in the parish neighborhood. It was a success and, based on its

success, the Jessie Ball duPont Religious, Charitable, and Educational Fund made a

planning grant for the Children's Enrichment Workshops of Riverside. Planning was

completed in early 1991, and we have been able to establish a children's enrichment

program on Saturday mornings for the underprivileged children of the neighborhood.

During the one and a half to two years involved, I spent an average of eight hours per

month on these projects.

I have always worked to assist in the education of attorneys and other judges. As an

example, I have been actively involved in teaching at the National Institute for Trial

Advocacy, and the Advocacy Institute of the Justice Department. I taught at and was

Dean of the College of Circuit Judges, State of Florida, and, as a United States District

Judge, I have taught for the Federal Judicial Center.

As a County and then Circuit Judge in the State of Florida, I observed that in sentencing

men there were alternatives to incarceration not available to me in sentencing women.

As an alternative to the state prison system, there was a probationers' residence program

for men. It provided a very structured environment for young men who would be

returning to the community after incarceration. I did not have this option in sentencing

women. Therefore, I developed the concept and eventually, with the use of federal grant

funds, created a probationers' residence program for women, which was housed at the

YWCA. The state and local community eventually took over the responsibilities for the

program. I also worked with the community college in developing a program entitled

'Offender Assistance Through Community Colleges Project,' for the education of

offenders who were primarily youthful offenders planning to remain in the community.

in- 1

cn_oci n _ Q'a
252

In addition, I served on the Department of Offender Rehabilitation Advisory Council,

which was created by the Governor of the State of Florida to assist the Department of

Rehabilitation with parole and correction problems.

I have been actively involved in the Jacksonville Council on Citizen Involvement (JCC1).

JCCI is a group that studies community problems, takes testimony, and, with the

assistance of community leadership, attempts to address and correct problems through

the study. From 1978 through 1979, I was chairman the Citizen Participation in the

Schools Committee. From 1977 through 1978, I was a member of the Youth and the

Family Study Committee. During the study, the time requirements were significant, in

that a group met approximately once a week and could spend several hours taking

testimony, discussing the issues and developing the report.

For seven years, I participated as an active member of the Advisory Board and Board

of Trustees of the Jacksonville Health Education Programs, Inc. The programs' main

purpose was to have an effective working relationship with the University of Florida

College of Medicine in the area of providing interns and nurses for University Hospital,

which is a large regional hospital in Northeast Florida serving the indigent. The

Advisory Board and the Board of Trustees met at least monthly.

The American Bar Association's Commentary to its Code of Judicial Conduct states

that it is inappropriate for a Judge to bold membership in any organization that

invidiously discriminates on the basis of race, sex, or religion. Do you currently

belong, or have you belonged, to any organization which discriminates — through

either formal membership requirements or the practical implementation of

membership policies? If so, list, with dates of membership. What have you done

to try to change these policies?

No.

Is there a selection commission in your Jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire Judicial selection process, from beginning to

end (including the circumstances which led to your nomination and interviews in

which you participated).

There is a selection commission, however, I did not take part in that process. I was

interviewed by officials in the Department of Justice. In addition, I have completed

questionnaires for and was interviewed by representatives of the American Bar

Association and the Federal Bureau of Investigation.

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

in- 2
be interpreted as asking bow 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."

Th« role of the Federal Judiciary within the Federal government, and within society

generally, has become the subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism that alleges that the

Judicial branch has usurped many of the prerogatives of other branches and levels

of government.

Some of the characteristics of this 'Judicial activism' have been said to include:

a. A tendency by the Judiciary toward problem-solution rather than

grievance-resolution;

b. A tendency by the Judiciary to employ the individual plaintiff as a

vehicle for the imposition of far-reaching orders extending to broad

classes of individuals;

c A tendency by the Judiciary to impose broad, affirmative duties upon

governments and society;

d. A tendency by the Judiciary toward loosening Jurisdictional

requirements such as standing and ripeness; and

c. A tendency by the Judiciary to impose itself upon other institutions in

the manner of an administrator with continuing oversight

responsibilities.

If those who criticize the judiciary and 'judicial activism* are referring to judges

who step outside the role given to the judiciary under the constitution, then I

believe the criticism would be valid. A cornerstone of our form of constitutional

democracy is the balance of power established by the constitution. Each branch

of government must fulfill the role given to it by the constitution, but should not

usurp the function of another branch of government.

The goal of a United States District Judge should be to fully perform the function

of the judiciary, which, in turn, means refraining from performing the function

of the legislative or executive branches of government. In addition, a United

States District Judge, should be bound by the decisions of the United Stales

Supreme Court and the United States Courts of Appeals. A judge of the United

111- 3
254

States Court of Appeals should also fully perform the function of the judiciary,

which, in turn, means refraining from performing the function of the legislative

or executive branches of government It is important that a judge of the United

States Court of Appeals be bound by the decisions of the United States Supreme

Court.

in- 4
255

FINANCIAL STATEMENT

NET WORTH

ProvitJi s complete, cumnt finmciil nel worth smemtnt which Hmim in dtiiil all au*ts Onchidinf bank

•etaunti. rial ejlaie. aaeurttia*. tnntv bmatmants. and other financial hotdings) an liabilities (indudbig debts,

naortgaics. bans, and other financial oblifi'wns) et yoursell. your spouse, and other immediate members of

jrour household.

AS OP 01/23/92
256

NET WORTH STATEMENT

SCHEDULE A

Lbted Securities

Both of the following are in the Prudential Securities Command Account:

MFS Municipal Income Trust S 26,625.00

Putnam Managed Municipal Income Trust 70.875.00

Total $ 97,500.00
257

NET WORIH STATEMENT

SCHEDULES

Unlbted Securities

Orange Park Travel Agency, Inc.

Avondale Limousine

Total

S 50.000.00

» 6000.00

$ 56,000.00
258

NET WORTH STATEMENT

SCHEDULEC

Reil Estate Q—l

Address

3530 St. Johns Ave., Jacksonville, FL (J)

S128 Indian Lakes Ct., Jacksonville, FL (J)

3669-71 St. Johns Ave., Jacksonville, FL (J)

3673-77 St. Johns Ave., Jacksonville, FL (J)

Amelia Island Planadon, Pool Villa 3115.

Amelia Island, FL (J)

Ship Watch Villa 1331, Amelia Island, FL (J)

4626 River Point Road, Jacksonville, FL (J)

Unit 201, Eagles Nest Villas, Man Hill, NC (J)

10039 Atlantic Blvd., Jacksonville, FL (L)

4561 San Juan Ave., Jacksonville, FL (L)

2736 University Blvd. W., Jacksonville, FL (L)

9471 Baymeadows Way, Units 401 & 402,

Jacksonville, FL (L)

4427-37 Emerson, Jacksonville, FL (L)

7365 103rd Street, Jacksonville, FL (S)

5701 Merrill Road, Jacksonville, FL (S)

3651 St. Johns Ave., Jacksonville, FL (S)

2107-08 Sawgrass Village, Pome Vedra

Beach, FL (S)

3854 Valencia, Jacksonville, FL (S)

2309 Costa Verde Blvd., Ponte Vedra

Beach, FL (S)

9471 Baymeadows Way, Jacksonville, FL (S)

3654 Riverside Ave., Jacksonville, FL (S)

1810 Dancy Street, Jacksonville, FL (S)

5315 Jammes Road, Jacksonville, FL (S)

Amelia Island Plantation, Pool Villa 3111,

Amelia Island, FL (S)

3648 Riverside Ave., Jacksonville, FL (S)

TOTAL

Mortgage

Value Balance

S 190,600 S 28,500

153,000 117,836

89,000 52,872

85,000 68.257

80,000 91,865

5,000 0

750,000 344,557

98,000 77,000

559,200 48,990

114,000 81,275

144,500 84,281

99,500 70,719

1,050,000 923.166

204,400 104,800

89,000 50,196

310,000 55,607

155,000 81,275

35,000 0

130,000 0

85,000 54,178

98,300 44,964

88,000 0

75,100 0

80,000 0

75.000 31.902

$4,842,600 $2,412,240

(I) • Joint

(L) = Louis E. Black

(S) - Susan H. Black
259

NET WORTH STATEMENT

SCHEDULE D

Windsor on the River Assoc.

Great American Films

San Diego Century Assoc.

Synthetic Industries

Public Storage Prop. VI

Rittenbouse Square Assoc.

Southern Inns Associates

Research Triangle Assoc.

MAJCO Bldg. Specialties

Mid-Atlantic Residential Investors

Levenshon Gazebo Partners

Cnnsoliriatfd Capitol Properties

Century Properties Fund IS

American Cable TV

MAJCO Building Specialties

Fillmore Pacific Assoc.

Lenox Towers, Assoc.

Total

Owed on

Value Notes

$ 10,000 0

0 0

20,000 0

50,000 0

5,000 0

40,000 0

30,000 20,500

15,000 0

200,000 26,200

50,000 47,400

50,000 0

12,000 0

0 0

15,000 0

100,000 13,300

0 0

50.000 45,250

$647,000 $152,650

These limited partnerships ate assets solely of Louis E. Black.

My husband is plaintiff in a class action suit concerning the Fillmore Pacific Partnership. He

is also the defendant in their action for payment of the loan in the amount of 5144,000.
260

NET WORTH STATEMENT

SCHEDULES

Assets Pledged

See Schedules C&.D.

1988 Americruiser

(listed in 'Autos and other

personal property*)

Value

$ 15.524

Uabilitx

$ 15,524
261

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262

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Trustee Emeritus University of Florida College of Law

Board of Trustees American Inns of Court Foundation

President Chester Bedell Inn of Court
263

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264

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265

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267

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rupartirm individual and tpouac, and -(0Q)mfor liabil ity of • OtptrOant child, too paoaa 15 18 of [rvtructtono.l

CTgOITQ^ fliigRIPTIOM VALUE CODE

• NONE do raportaMa itabititiat)

Flr«t Union llart|a«a Co. (J)

t Llfo ft tee. Ina. Ce.(J} Noritata

Umnt Urk (J)

Aahcvttl* Fodorsl Savinti t Loan(J) Nortso9a

laart HertsBfo Co. (J)

Soars Norifaao Co. (J)

taara nortfOto Co. (J)

taan MortSOflo Co. (J)

Atttnca nortfato Co. (t)

ithooat Mortfota Co.)

•amatt amnk c$)

)• itajco Crodit Corp. (I)

II Southern inrM Credit Corp. (S) ^roataaory Hota

NId-Atlanlic RM. Invaat. L.P. (t) froalBaory aota

II Majco Crodit Corp. (S) Provitaory Hota

ProaUaory Mta

II lanos Crodit Corp. (I) PronUaory Oeta

VALUE COOES: J-*15,0O0 or lou K*»15,M1 to 150,000 L-«SO,001 to SIOO.000 tUIlOO.001 to USO.OOO

>i«l?50,M1 to SSOO.OOO 0^900,001 to 11,000,000 P*Mara than 11,000,000
Oat* of Mpwt

01/21/92

LIABILITIES. (IncludM thoM of *t**jm« m* tttpmrOmx chlldr«n; Indicate tdwr* awllcabla, paraan raapanalbla

far tlabllltr by wafn« tfta parantMtlcat •(»•• far aapwabla ll*llitv of apauaa, •(J)* far jalm liability af

rapartlnf Individual and apauaa, and •(DC)* far llatoltlty of a dapandMt cbild. So* potn U-lt of inatruettana.)

CREDITOR gBSCRIPTIQM VXLCT CODE

NONE (do raportabi* tlablUtiaa)

>. >. ernn (t) mrrim L

Isutt of JaM«* TIltfH (I) ••"Ml 0

rint onim IWtlwt U. (I) ••nm L

(Isrwlr s~ri wrtiw ce-l

Ttant l.-l.i- (S) IHrtlMt L

: COMIi J-tlS.000 ar lau K*t1S.00t ta 150,000 L-»S0,00l te »100.000 H-SIOO.OOI to «»0.000

••1250,001 to tSOO.OOO 0-8500,001 to tl,000,000 P-**of» than tl,000,000
269

MM of NrMn Mpartlnt

nut lUS

MM of •mirt

01/M/V2

and TRUSTS — income, value, transactions.diKiudM i

•nd S^sMfcM dilldrwi; %m mtm 19-Z7 of InstrwllMW.)

ft. 1. C 0.

MKripcIgn of MMU IrcoM GroOi VOIUO

clnclyrtlnft tnmt OOMIH •rtnp .! •« Of

roponlnp

TroraMtlonp Mrlnt rppprtlnp parlod

lTDicolO, Iftilfl ^p4laM«, MW of pvlod porioa

IM Maat by tali* th« pwtftMteal

tJf far ialrn wnnftip •» rooortins Mtvitfyal an) WWM. •(!)- for (t) (2) (1) (2) (1) If not t»o^t frv dioctoouro

for ovanftlp kr i>»iiHiiil dilM.

typ.

(0.|. voluo (MI M». (2) (1) (») (S)

AM. «l». votuo ••rt. Ml I.Mr- Ooto: valuo Uln IMmltv Of tUMT/

"loco •<»• afMr Mdl -.ot MM r«M, CMol CodoS tor.rotf' ftnth/ Cod.! Codol Mllor (If prl««to

ooa<K trm prior Mocloom. «-•) Int.) <J-») (B-U) OMtlon) Doy (J-»> («-«) trMMCtlon)

• HONE (M nparaMo IKCOM.

1 MrtpwTM MM (J) | 1 [III | j | I 1 1 1 1 1 I

1 mnpwo IOMII —mt ui I • |in | i | T | 1 1 1 1 1

B30 It. Htmrn AM.. | * |mT | J | If | 1 1 1 1 1

I JotHorwillo, IL Upt.) (J) | | | | | 1 1 1 1 1

PMl Villa Sill. Mollo | I IKUT ' L • u 1 1 1 1 1 1

I lolorri. n U) 1 1 1 1 1 1 1 1 1 1

1 1J31 nip yatcft. Malla | A |lfVT | i | U | 1 1 t 1 1

1 lalaa*. n (il~* 1 1 1 1 1 1 1 1 1 1

I U7I tt. Mn AM.. 1 e Inn | i | w | 1 1 1 1 1

1 JadkaomrUla. KM 1 1 1 1 1 1 1 1 1 1

IraM/Caln Codoo: AII.OOO or laM I.ll.OOl to K.SOO C>t2,S01 to n.OOO OXS.OOI 10 IIS.000

(IM cat 11 iOt) i-tlS.OOl to IM.OOO r4M.001 to 1100.000 14100.001 to 11.000,000 HMoro than 11.000.000

v*tu« CadH: J-tlS.OOO or IM*

(IM c«l C1 ft 15) MSO.OOI to tSO0.(

ctis.oo' to «o.two L-no.an to tl00.000

04500,001 10 (1,000,000 PMort thwi tl,000,000

IMt1W,001 to uso.ooo

Woluo HotfMd C«t»i: O-Apprvlwl

(ftM celw> C2) iMtook Voluo

l«Co«t (rwl Mttt* only) M

VOthtr IMttlMtod

I •€••*!/Harktt
270

•Mm of PCTMn mpocMnfl

MUM iUAd

D«t« of ••pvt

WHfn

UIVBSmwTfl and TRDSTS — incone, value, transactions.dwiudM ttMM «f i

•nd tf^mdvit diUAwi; »•• MM 11-27 of Imtnctlm.)

A.

(includin, tnat Miait)

Ing Individual tnd a^euM. -<5)- for

floe. •(•)• nt.r .Mh •>•«

aaa^c fro- prior dlaclaava.

1.

tmm

ttrlfa

r^pofllna

partad

C.

•raaa valua

at xd a<

raportlna

pariad

Tranaactltna dur{n« raportlnt pariad

<1>

«at.

BMtl

(«•»)

(2)

Ir»a

U.t.

dlv,

rant.

Int.)

<1)

VaLua

Coda2

IJ-H

(21

Valua

Hath.

Cada]

(0-U)

(1)

»»pa

(.»: lair,

aall.dar-

•ar.rada^tion)

If net aaaapt trad diacloaura

(2)

oatat

Nnth/

•ay

III

Valua

CooaZ

<JP)

mCain

Cadai

m

aallar (If privdta

n NONE <M npM-ubl* IncoH.

Mitti, or trmMtt«n*>

| S12t Indian imkn Court, | i |««t | H | M | 1 1 1 1 1

| JockMnvlllo, a (J) 1 1 t 1 1 1 1 1 1 I

| SM9-71 ft. John* AM.. | 0 tKVT | L | M | till 1

| JockHrwfllt, n. (J) 1 i I I 1 1 1 1 1 1

MCksonrilto rodorol CrMlt | 1 |llfT | J | T | till 1

| unfen, Jockaarwllto, n. tJ) | | | | | I t i 1 1

| UU llw Point «oad, |A||0|w| III) 1

| iacktonrlllo. n. <J) 1 1 t 1 1 1 1 1 1 1

1 Unit 2S1 latlM Mot VUIM, I I I I I 1 1 1 1 1

IncoM/Cotn Codn: *-»l,0OO or IOM i-*l,001 to U,M0 042,SOI to IS,000 0>IS,NI to 115,000

(Soo COl II 1 HI (-tli.001 to 150.000 F4S0.ni to tlOO.000 6.1100.001 to n.000,000 l^taro thon SI.000.000

Voluo CadMt J-S1S,0a0 or loot K>S1S,001 to 150,000 L-lM.OOl to 1100,000 IM100,001 to 1250.000

lUt col C1 i Dl> •-«250,001 to 1500,000 04500,001 to 11,000,000 Mloro thon 11,000.000

voluo Mthod CodM: o>«pprolul

(Soo coUan C2> l>4oak Voluo

I-CMI (root oototo onlr) lMu«o«Hnt

V^thor Mitlnotid

T-Cooh/Mrkot
271

D«tt of taport

01/2^/92

IWVMTXEKTS and TUDSTB — income, value, transaction*.<inciudw OMM oi

•nd d^ndviC cftUdroo; ••• pmtm M-27 of InstnKtlom.)

Otwrlptfor of

(fneludfni tnat il

Inrteot*. rfMn «pMejo(*, OHW of

ttw wilt by u><n| UM poronchottcal

"(J)afor Joint oMionklp of roportfni Indlviaal ond apouoo, "CS)-

for

Mporoto OMwrtfilp by opotao, -(DC>-

for owm^hlp bf doponflont chUd.

i "txi- oftor oodi aooot

n fr«a prior Mocloom.

porlod

Trorsacttflno during roportlni porlod

C2>

(t.|.

Voluo

Co*I

(2)

Voluo

Not*.

CodtS

(OU)

Typo

(oot bur,

•ot t raorIf not txmtpt Irxm dlKleouro

Dotoi

NntH/ Cam*

EMQ

Coin

Cedtl

tn-n

Idontltv a' buyor/

Mllor (If prlvoto

tronooctlen)

D NONE OM roperuMo IncMO.

oooot*. or tronooctlona)

| Nan Hilt, BC (j) t 1 1 1 1 1 1 1 1 1

1 Accewt (J> 1 1 1 1 1 1 1 1 1 1

| 1«39 Ulantlc lltd., | i |Hin | o | u | 1 1 1 1 1

MOMnrtlU, n (11 1 1 1 1 1 1 1 1 1 1

| WntfHr m Om tlyr MMC. 1 » 1 1 ' 1 ' 1 llll 1

| n..t«> Pvtwnkl* It) 1 1 1 1 1 llll 1

I Mm imiruM* n-o cm) j « |HT | j | i | ta.ia llll 1

[ Ltd. Pwrt.-ltnmMtm Traat Bk I ] I I I llll 1

{ tormtt •«* (IU> CuitadlM- | A |1>T 1 J j T | MUB llll 1

lne«M/Coin CodM: A-t1,000 or tooo l-tl.Ml to f2,M0 C-M.S01 to H.OOO 0-«,001 to HS.OOO

tloo Ml 11 ft H) (415,001 to tM.OOO f-lSO.OOl to 1100,000 S-SIOO.OOl to 11.000.000 0<Nora thon 11.000,000

viluo Codooi .1*15,000 or looo l-»U,001 to 150,000 1-150.001 to 1100.000 <t.ll0C,0Gl to 1250.000

(too cot C1 ft BS> •^250.001 to 1500,000 O-1S00.001 to 11.000,000 PMoro thon 11,000,000

voluo Nottwd Codoo: OMpproloal

(Soo coluvt C2J

Koot (rool oototo only) i

v>othor »K»tioot»d

T-CMh/Mork.t
272

mm of Nraan l^ftlm

ei/H/n

and TRDSTS — incoB«, value, transactions.cinctu

; <*U*«i: SM pmgm IB-27 of Imtrtctlwi.)

A.

DOTcrlptton of Aawt*

' (tneluoin* tnml MMts)

Inrilcata, i*«r« •pplteibu, MW of

th* MWt by Mini th* panmhattcal

"(Jl* for jotnt flwarahlp of r«porili« Indlvlduol ari opoiao, •(»• for

for onnlilp br 'tmmBi dllld.

olooo a(X)aoftor ooch Moot

•j<Mpt froa prior 4locto«jr«.

1.

durino

rovorlint

porlod

e.

Srooo voluo

ot ond of

rMortlrn

porlod

Trnoctlom durino roportlnt porlod

(1)

codol

(!)

TITO

(0.9.

dlv,

ront.

Int.)

(1)

Voluo

Cod.!

H-F)

(2)

voluo

Hoth.

Codol

(•-10

(1)

typo

(on: PW,

ooll.porpor.rod-

•Vtlon)

If not nmmt Irm dlteloouro

(3)

Dot*:

Huh/

Dor

(I)

voluo

Codol

UP)

(*)

Uln

Codol (»•")

(5)

Idntltv of buinr/

ooltor (If prlvato

tronooctlon)

n HONE <»• MpwtAI* Imam,

•Mttt, or tramMtlww)

| tanatt ladi (1) 1 1 1 1 1 1 1 1 1 1

| (Ml Ion Jian /ha., | E |Kin ( • | u | 1 1 1 1 1

| Joctoonrlllo, Fl (i> 1 1 1 1 1 1 1 1 1 1

| cooptr Imaot. Port. Itv, | A |0[V | J | T ) iffalD 1 I I I 1

| t Uooc. cuotodlai (I) 1 1 1 1 1 1 1 1 1 1

| eroot Marleon Htm, IM. | C |BIV | J | u | 1 1 1 1 1

| Pirwpnklf «> | 1 1 1 1 1 1 1 1 1

| MnPlofo Contury •uoc., Ltd. | « | | K | • | llll 1

| PortnoroMp (t> 1 1 1 1 1 1 1 1 1 1

lnt—0/C.lr. CodOO:

(SOO ool 11 I H)

USI.OOO or looo

(-tl5,»l to 150,000

•41,001 to U,M0

f-»0,001 to SIOO.OOO

CU.JOl to U,C00 0-»,00l to »1»,000

C-tlOO.OOl to 11.000,000 NaMrt ttwn 11,000.000

V»lut CedM: J«S15,0M or t«M K-S1S,001 to SSO.OOO L-UO.OOI to SIOO.OOO »4100t001 to M50,OOO

(too cot C1 1 93) V-SaO.MI to SSOO.OW (Nt900,001 to SI,000.000 Mlor* than «1,000,000

Voluo nothod Codoo: 0-Appr»iML H-tmt (root oototo only) I

(Soo celtan C2) O«ook Voluo v-oihtr vcotlMtod

T>caoh/Norkot
273

' >«MWI Mpartlnj 0»t« Of

01/24/92

aad TRUSTS — income, value, traneactions.dMiudM the** ef

I difl«r«n; Mt pa«M 18-27 of Imtnctiora.)

tMcrlptlon of AiMtt

<(nc(ud1ns truat

Indlcat*, t*tr« lopMcabl*, ourw of

tho mit by vafng the parwtthotfcat

-(J)' for Joint aownhlp of roportIng individual mti opouoo, •($)- for

tcparal* owonhlp by ipouM, "(K)"

)tp br d^mdwit Gklld.

•<X)> aftor mOt Moot

: froo prior dlocloowo.

during

roporttng

C

firooo Voluo

ot wd of

ki

trlod

(2)

VllUO

Moth.

CedtS

tO-U)

(1)

TVP»

If not oxwpt trot dltcloturt

(2)

Ooto:

Hnth/

fioy

Codo2

U-Pi

Codcl

(5)

Idtntity of buyOr/

•otter (if privato

tranooetton)

NONE (M raparublt .n<o~,

1

' Mtatt, or trMMCtlom)

IvmlMtte IndwtrlM, Ltd. |A||K|W| till {

1 m —O en 1 1 1 1 1 1 1 1 1 1

I KMIe Rorat* croc. VI, Ltd. | » i ; j ; w | 1 1 1 1 1

1 MraOTM* (tl 1 1 1 1 1 1 1 1 1 1

tltMriMW Iqum Aaaac.. )A|tK|w] illl 1

I ud. hrnMilr (I) 1 1 1 1 1 Illl '1

| Huckant lm UaocUtM. LM. | > | j ( | U | Illl 1

I Hi wciiiip (I) 1 1 1 1 1 1 1 1 1 1

| ttatmnh trlmtlt MMfca LM. |«||i|U| Illl 1

1 fmnmrtktp tW 1 1 1 1 1 1 1 1 1 1

iKW^fialfl CartMt A-H.OOO or |M« l-tl.OOl ta U.SOO C«t2,S01 To »,000 0-«S,001 to SIS.OOO

IS— cat 11 > H) ErflS.OOl to ttO.OOO >.H0.001 to tlOO.OOO CrtlOO.001 to •1,000.000 Mora tkan 11.000,000

vatua Cadx JatlJ.OOO ar laaa KrtlS.OOl ta n0,000 LrtSO.OOl to 1100,000 ».»100,001 to «50,000

(Saa col C1 1 D3) a««50,0Ol to 1500,000 O>SS00,001 to SI,000.000 Mlaf-a dun $1,000,000

Valw NaUMd Cadast fr^pralaal Kaat (raat aatata onty) Mlaaaaaaant 1*Caah/ilarkot

(laa csluan d) IMaak Valua WOthar IMattaatad
274

Mat ef PtrMn •«part<n| Dau of **

01/24/92

•Ad TRUSTS — incoae, value, transactions . (I-CIUOM th«i» ot

and tltfmnitnt ditldrwt; »•« p»ffM 11-27 ol Instruetlora.)

A. •. c. ».

DMcrlptlon ef Au«cs [n |— Cro*. Valu*

(iKtidfni tnjgt MWIB) durlm •I ma of Tronopcttono during roportlnt poriod

tmnm roBOftlnd

lndlc«t«, MMn vpllMMa. «««r pf pn-IM pvlod

"t J J- for ,oifi[ OMMTthlp Of ropoftIng lrdtvf««t and VOUM, "(i)' for (1) (2) (1) (2) (1> If not e«topi froa dioctoour*

lyp. iw» <•.!. voluo <•«: tw. <2) (» (4) »)

w. dlv, VOIUO Moth. aotl.aw- opto: VOIUO Cain idomttv of bwror/

rUM •tl)* Xtar •«• m.t MM r*m. Codo2 COM3 tor.rM- ttnth/ Calml Codol aollor (if privato

uMPt fra" Prior d(acl«Mn. («-•) Int.) (J-»> (O-W) onption) Pay CJ-') <«-«) tranaactian)

NONE (HO r^ortabl* lnc«M,

' • MMta, M- tm«ct(«w>

| WUOO •!<*». l»MlsltlM. LM. | * | ] N | U | 1 1 1 1 1

1 tartnanlilp (S) I 1 1 1 t 1 1 t 1 1

| Ritf-Atlantlc KMltfwKUl |A||K|U| llll 1

| Inmion, Ltd. nrtiwrshlptS} | I I 1 I llll 1

| Ltd. ^artmrtMp (l) 1 1 1 1 1 llll 1

| Cwiwllditad cipitci Propw- \ A \ \ j \ u \ Ittt 1

| ItM, Ltd. Pirtrwrthip (t) | | | 1 | 1 1 1 I 1

| Ctmurr frtptrtitm FiM IS, | A ) | J | U | llll 1

1 Ltd. fdrwwnhtp (11 1 1 1 | 1 llll 1

Inew/Ufn Cfld*s: A-I1.0O0 or l«u MB1.001 to t2.S0Q CW.SOl to »,D0O 0-SS.001 to tlS.000

(100 cot •! I H) E«»l!,0Cn to UO.OOO M«0.001 to tlOO.000 C^IOO.001 to tl.000.000 MMwrt than 11.000.000

voluo CodM: J«t15.0M or ItM K415.001 to MD.OOO L>tS0.001 to tlOO.000 N^IOO.OOI to t250.000

ISM col C1 & 05) 14250,001 to SSOO.OOO 0-1500,001 to «1,000.000 P-«or. ttun 11,000,000

volut nttbod Cedoo

(loo cotifln C2)

o-AfprolMl

u.loo* MltN

••Coot

V-Othor

(rtol oototo only) T-Cooh/Norkot

Motfntotf
275

NM» at P«r«an Icportlnf

UUM BUCK

D«tt of Report

01/it/92

~I. IHVEfiTMEMTS and TROSTB — income, value, transactions.dnciudM thew of

and dtpmdmt cklldran; SM pa|M 18-27 of Instructfora.)

A. 1. C. D.

B«scr{pif«n of Aucts IrtMaa Crow Valua

(tncludtna tnat MMts) durina • t and of Tranucttons during raporting period

ropwting rmfonim

Indicat*. rfwr* •ppticablt, OMW of PM-Iod prlod

the MMt bf ualng tht psrtnxhtt.ol

ln| IndlvlAal urd tpemm, -{$)- for (1) (2) (1) (2) (II If not c«ewpt fron di»cloBure

<t.g.

ryp«

Vatut (M: bur. (2) (3) C) (S)

Aat. dlv. valuv Moth. Mll.wr- Data: value Cain

l>t«e« a(X}- tftw Mdi M><t Coctol rtnt, Coa.2 CottaS ••f.rad- Mnth/ Code2 Codel teller (if private

r«Mot fraa prter dlocloaur*. <«-., int.) (J-Pl (Q-U) a^tl«t) 0^ (J-f) <*-K) tran**otion)

• NONE (Mo (^portable incoai,

eaMti. ar tranaMT<on«]

| Jmrfcan Cable TV, LM. 1 « 1 1 J 1 W | 1 1 t 1 1

| Pwtnsrahlp (SI 1 1 1 1 1 1 1 1 1 1

1 MJCO fciUdlr* SpoctaltlM. |A||L|U| llll 1

I ltd. Partnership (%) 1 1 1 1 1 llll 1

Hllaore Pacific A.«oc., Ltd. | A | ] J | U | llll 1

j Pwtiwrshlp CS) 1 1 1 1 1 1 1 1 1 1

! Lenu ToMrt, AMOC., Ltd. |A|tKl

fll llll 1

1 Partnanhfp (S) 1 1 1 1 1 1 1 1 1 1

| 273A Univaratty llvd. U., | C \UM1 | N | U | llll 1

| jack.om-lUe, fL CS) 1 1 I 1 1 llll 1

IncoM/Cain CodM: A-t1,000 or (eat |.«l.00l to U.SOQ C*S2.S01 to 15,000 D-S5.001 to US,000

(tee col II 1 M) E-«15,001 to S50,0O0 f-150,001 to 1100,000 C-t100,001 to (1,000,000 H*More than t1.OO0.0O0

Value CodM: JltS.OOO or lota K-t1S,001 to «S0,000 LOSO.OOI to 1100,000 H-i100,001 to (250,000

(See eel C1 ft 03) K-S2S0.001 to $500,000 O-$S00,O01 to SI,000,000 Mere then tl,000,000

Vetua Method Code*: O-Appraiaal

(tM cctuvi C2}

R«CD4t [reel Mtato only) S-Asaoanont

V-Othw- IMatfnted

T-Ceeh/Marktt
276

Mmm of MrMn rxovtlrv O.t. of Mpvl

»i/M/n

'I. nrvESTMniTB and »»DSTa — income, value, transactions.iincigdn UMW •<

mt di(l*wi; M« ptew lfl-27 of liatrvctlva.)

MKrlptian of Auat*

(fncludfnt tnat —

Indlcstt, i*tr« apptlcablt, —i of

tha M^t br Mini th« par«nch«tlcal

-(J)- for joint —MlMp el rtporttnf IndlvlAal me wpmm; •(»)• for

Mparat* •MWflilp by •—fc "tDC)-

tar aaarmlp br J^MM dllld.

Plata -(X)- attar Mch aaaat

•••^n traa prfar elacleaira.

Tranaactlana aurina raparTlnt parlad

CoiMI

(A-«)

(I)

T»»a

<a.f.

Wlua

Cadat

(J-Pl

12)

Valua

ttl

(an: buy,

taU,aar9ar,rarfMptlon)

(2) (3) <«) (5)

Data: Valua cafn Idamlty at buyar/

Moth/ Cada2 Codal aallar (ft prlwata

bay (J-P) («-<> tranaaclfan)

NONE (M r«pori«bli InMM,

*• ' MMtt, or tranMctlm)

| 1 Ul). Jacbaaarilla. n. (t) | | | | | 1 1 1 1 1

| 4427-17 faaraan, Jacbsamrttla, | • |mt | p | v | 1 t 1 1 1

1 'l <» 1 1 1 1 1 1 1 1 1 1

Pama Mdra iaMInf Carp. (•) | > | | J | t | 1 1 1 1 1

| Prv*nt1al Bacta-ltlaa (1R41 | A \imt I J I T | QPtatD I I I 1 I

1 <»>— 1 1 1 1 1 1 1 1 1 1

| M9I-J7 tt. Maa Mr*., | P lltal | b | W | 1 1 1 1 i

| Mcbaanailla, 71 1 1 1 1 1 1 1 1 1 1

| M41 llyaral* Ma., | b |Hbt | L | w | 1 1 1 1 1

Ittmrn/SMin C«*M: JM1.000 or IM* Ml,001 to 12,900 042.501 to IS.000 D>n,001 te 111.000

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Vilu* CadMl Jtl5,000 w (AM K419.001 to 090,000 L490.001 to 0100,000 MIOO.OOI to «S0,(

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value MtlMd Coon: M^ralul

(0M eelun Q) Kool v»tuo

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T-CMh/HMitat
277

u. ^ p-r.^ l^nin. Oat* ot t«port

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• KONE (M rapart*t« Incm,

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1 uetaowfllp, n. 1 1 1 1 1 1 t

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1 MM HaaraMaM., D ion I » 1 1 1 1 1 1

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VaOthar yBfatlaatad

T>Caaf>/Markat
278

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imw IUUX

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t chu<v»n; t*> patm ie Z7 of Inatrwctlom.}

A. •• C. B.

OMtription «f AMMt li*mm

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tho Mitt by ia(n« th* pwithotlcal

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n NONE (M r«port*blt IfWOM.

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| 1810 16 Ooncy Stroot, | D |REHT ] l | U | 1 1 1 1 1

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| MM Volonelo Stroot. | C •CT | X | u | lilt I

1 McUonolllo, n. 1 1 1 1 1 1 1 1 1 i

| 5701 Horrlll Id., JooAaonylllo | 1 •E-r ) L | U | 1 1 1 I 1

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trc^/UIn Codn: MSI.OOO or IMS ••S1.001 to 12,500 C-W.501 to Si,000 0-M,001 to tIS.OOO

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Voluo Mtrted CoMs: O-ApprofHl

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VNWMT IHotfMtod

T*Caoh/llork*t
279

MM iLMX

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n-ZT o« Imtrvctimm.)

Daacrlptlon of Aaaati

(tncludlra tnat aaMU)

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•avarata awarabl* by apauaa, '{K}"

far anraraklr tv llll 11 <l 1 Oilla.

aiai •(«)• aflar aac* aaaat

fraa prlar Maalaan.

raparttfis

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Cadil

(2)

<lv.

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(1)

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(I) CD (t) (S)

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Wtth/ CMd Cadal wllar (If prlvala

»W (J-»» (*-H) traraaclion)

D NONE (•• i^mrtla \ram,

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C |IIT

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i | in

o I in

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(•aaaaltltW) e-aiS.Ml to «0,0M fMM,001 ta 1100,000 C-tlOO.OOl to tl.000.000 MMra Oan tl.000.000

vali> u<aai J«n,000 ar laM C-OIS.OOI ta 150.000 1*<M,001 ta 1100,000 MIOO.OOI ta I

(laac^CllU) a^IM.OOl to 1500.000 o-(S00,001 ta 11,000,000 Mlara Wan (1,000,000

Itaa caliai Q) IMaat Wlua

•-Coot (raal aatata only) KM——

Matfaatad

I»C«*h/I»arhot
280

•a» of Ptntn t^nlr* o.i. •< mt

XZ. aSDZTKaOLL BBMHMBM or nvUMklZOai. (|I««CK« fvt •> Hpvt.)

•Thi» liability was inadvartantly OKittad frcn previous reports.

••This aasat waa inadvertantly oaitted froa previous reports.

•••This aaaat waa incorrectly liatad aa 1311 Ship Hatch on previous

raporta.

••••IHA'a previously listed wars rolled into thia IRA.

xx. cntrxricatncw.

In coapllanca with the provisions of 28 U.S.C. S 455 and of Advisory

Opinion Ho. 57 of the Advisory Coaaittae on Judicial Activities, and to

the best of ay knowladga at the tias attar raaaonabla inquiry, I did not

parfora any adjudicatory function in any litigation during the period

—warad by thia report in which I, ay spouse, or ay alnor or dependent

•ildran had a financial interest, aa defined in Canon 3C(3)(c), in the

outcome of such litigation.

I certify that all information given above (including information partalnirx

to ay spouse and alnor or dependent children, if any) is accurate, true, and

coaplata to the best of ay knowledge and belief, and that any information

not reported waa withheld because it aat applicable statutory provisions

paraitting non-disclosure.

I further certify that earned incoae froa 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, S 501 at. seq., 5 U.S.C S 7353 and Judici.

Conference regulations.

Signature Date

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.,

S 104, AMD 18 U.S.C. S 1001.)

FILING INSTRUCTIONS:

Nail signed original and 3 additional copies to: Judicial Ethics Coaaittee

Administrative Office of

the United States Courts

Washington, DC 20544
281

UNITED STATES SENXTE

COMMITTEE OM THE JUDICIARY

I. BIOGRAPHICAL lOTOKMATIOB (PUBLIC)

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

sonia Sotomayer - 1983 to tba Present

sonia Maria Botomayor - Birth to Marriage

Sonia sotomayor de Noonan, Sonia Maria Sotoaayor de Mooaan

or Sonia Mooaan, Married Name, 8/7 6 to 10/83.

2. Address: List current place of residence and office

address(es).

KESIDEMCEt OmCE:

Si 3rd street. Apt. IIL PAVIA t HARCOURT

Brooklyn, H«w York 11231 COO Madisoa Avenue

Mew York, Mew York

10032

3. Date and place of birth.

June 2S, 1954

Mew York, Mew York

4. Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Divorced since October 19S3

5. Education: List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

frlncaun «.!., *•• 1977 - W7» Jm 19»

tMwslty cxm laudi

Tale tm fckool tJt. 1974 - Wl* Jm 197V
282

Employment Record! List (by year) all business or

professional corporation, 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.

*»»«ti«''»' faiiia?

iOO Mdlaon Ma. 1/18 to fmnn tarow

•w Tort, n »/« to n/W teaocUt

10022

am tort butty 1 lagan Hue* t/Tt ta VU (aalaurl

•latrlct Mnnwft Urn Tart, IT Xatrlct

Offlea 10013 Mtarnay In Trial

t 10 Srd (t. 1983-1986 Cawaalln* and

iataa Iraaklyn, Oaa Tart canaultino Mart

11Z31 far faallr and

•an Tart City 40 lector Straat 1988 to tha fraaant Mater,

Cmemim* Financa Wm Tart, •.?, 10006 Oaard a* 11

ttata ef am Tart 260 NadlHn Avana 1987 to th. Praaant ffcTi

laa Tart, I.T. 10016 loard of Oiractor*

Puarta tlcan lasat 99 Nudkan ttraat 1980 to tka Praaant IM*r,

Dofanaa t Educatian am Tort. I.T. 10013 toard of Oiractan

tmd

•atamity Cantar 68 Eaat 92nl ttraat 1985 • 1986 Sldlii,

Aaaaclatlon am Tort, N.T. 10128 laard of Otractsra

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.

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Z received financial assiatance in the form of scholarships

during my four years at Vrineeton Dniverslty and my three

years at Yale Law School. X graduated summa CUB lauds. Phi

Beta Kappa, from Princeton and received, as a co-winner, tha

N. Taylor Senior Pyne Prite. Z also served as an editor ef

the Yale Law School Journal.
9. Bar Association: List all bar associations, legal or

judicial-related connittees 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.

Umber, ABerioan Bar Association, 1980 to the present.

10. Other Memberships; List all organizations to which you

belong that are active in lobbying before public bodies.

Hone ezoapt X do represent, as their attorney, rendi s.a.s.

Paola Fendi e Borelle in a Task Force of trademark owners

which seeks increased penalties for counterfeiting under Hew

York State's criminal laws.

Please list all other organizations to which you belong.

For the organisations with which I am affiliated as a member

of their Board of Directors, see response 1(6) hereof.

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 membership. Give the same information for

administrative bodies which require special admission to

practice.

Mew York - First Department - April 7, is BO.

United States District Court, Southern District of Mew

York - March 27, 1984.

United States District Court, Eastern District of Mew York

- March 30, 198 4.

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.

Motet Statehood and the Equal Footing Doctrinei The Case

for Puerto Rican Seabed Rights, as Yale Law Journal S2S

(1979) (Copy attached).

c/\_nci <-*
13. Health: What is the present state of your health?

date of your last physical examination.

List the

Good. Please note, I as a diabetic.

axaalnatioB was septomber 3, ltd.

My last physical

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.

Hone

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.

Mot Applicable

16. Public Office: state (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

19B8 to the present - appointed by the Mayor, Board of

Directors, Mew York City Campaign Finance Board.

1987 to the present - appointed by the Governor, Board of

Directors, State of Mew York Mortgage Agency.

8/79 to 3/84 - Appointed by the District Attorney,

Assistant District Attorney, Mew York County.

-4-
17. Legal Career:

Describe chronologically your law practice and

experience after graduation from law school

including:

1. whether you served as clerk to a judge, and if so,

the name of the judge, the court, and the dates of

the period you were a clerk;

whether you practiced alone, and if so, the addresses

and dates;

//

Yes with eotomayor t Xssoolatas, 10 3rd Street,

Brooklyn, New York, from 1983 to 1986, but this

work was more in the nature of a consultant to

family and friends in their real estate,

business and estate planning decisions. If

their work required formal legal representation,

I referred the matter to my firm, Pavia 8

Bareourt, or to others with appropriate

expertise.

the dates, names and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of your

connection with each;

Dates of

A.»oci.tioo Orsanlution »<*lrm rv\\\*>

*/K to Prmnt tavU t aarcourt 600 Misan *v*.

(MTerk, IT

10022

(sine* 1/88)

Assaciats

(/TV tol/W •toil Tort Canty

District Mtamsy-s

Offics

1 KOB-I PISC*

MH Tort, IT

10013

Aaalstsnt

District

Attaray

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?

See 1(b)(2) below

-5-
286

2. Describe your typical former clients, and mention the

areas, if any, in which you have specialized.

From April 1984 as an associate and sines January

1988 as a partner, Z have been a general eivil

litigator In all facets of commarcial work including,

but net limited to, real estate, employment, banking,

eentraot, distribution and agency disputes.

Moreover, my practice has had significant

concentration in intellectual property law including

trademark, copyright and unfair competition,

automobile franchise law, and export commodity

trading under the North American Export Grain

Association Contract.

My firm's and my own typical olianta are significant

European companies doing business in the United

States.

From 8/79 to 3/84, as a prosecutor en behalf of Hew

York County, my oases typically involved "street

crimes", i.e., murders, robberies, etc. X did,

however, also engage in investigative matters

involving child pornography, police misconduct and

fraud.

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 almost daily in court as a prosecutor and

I appear regularly in court for a eivil commercial

litigator with a largely federal practice.

2. What percentage of these appearances was in:

Sinee 1984:

1. Federal courts; - apprex. 70%

2. State courts of record; - apprex. 20%

3. Other courts. - apprex. 10%

As a Prosecutor:

1. Federal courts: - 0 -

2. State Courts of Record - 100%

3. Other courts - 0 -

-6-
287

3. What percentage of your litigation was:

My practice as a prosecutor was a 100% criminal and

in private practice has been 09% civil and 1%

criminal.

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than settled),

indicating whether you were sole counsel, chief

counsel, or associate counsel.

I have tried over 22 cases to verdict, in one of the

eases, X was chief counsel and in another, eooounsel. In all other cases, I was sole counsel.

5. What percentage of these trials was:

1. Jury - 90%

2. Hon-Jury - 10%

18. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the citations,

if the cases were reported, and the docket number and date

if unreported. Give a capsule summary of the substance of

each case. Identify the party or parties whom you

represented; describe in detail the nature of your

participation in the litigation and the final disposition of

the case. Also state as to each case:

(a) the date of representation;

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

judges before whom the case was litigated; and

(c) the individual name, addresses, and telephone numbers

of co-counsel and of principal counsel for each of

the other parties.

See attached Addendum

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

-7-
288

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

X great part of my litigation work involves pre-trial and

disoovery proceedings for eases which are typically settled

before trial. In ay litigation experience, and as part of

•y advising clients, my practice has involved a wide variety

of legal issues including, but not limited to, product

liability, warranty, antitrust, securities, environmental,

banking, real estate, patents, employment, partnership,

joint venture and shareholder laws; customs, automobile and

tire regulations; and franchising and licensing matters. X

have, moreover, conducted over fifteen arbitration hearings

involving, predominantly, export grain commodity trading on

behalf of foreign buyers but also hearings involving

banking, partnership and fashion industry disputes.

Finally, in addition to my involvement in establishing a

national anti-counterfelting program for Fendi s.a.e. Paola

Fendi e Sorelle, I have participated, on behalf of Fendi, in

establishing a Task Force of prominent trademark owners to

change Mew York State•s anti-counterfeiting criminal

statutes, z have also supervised and participated in the

national dealers and customer warranty relations programs

for Ferrari North America, a division of Fiat Auto OM, inc.

ZZ. FINANCIAL DXTA 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 partner in Pavia t Harcourt, I have a 1.5% of 10C%

interest in the firm which interest is valued at $25,(1C.

The partners are currently discussing a redistribution ef

the peroertage interest in the firm of deceased and retired

partners. This redistribution may increase my interest and

its value. The liquidation of a partner's interest is

generally negotiated at the time of a resignation but the

partnership has two years to pay the interest. My partners

have advised me that they will attempt to liquidate my

interest prior to my assumption of any public position.

-8-
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.

Z have been a practicing attorney, a partner in ay fin, a

•ember of the Board of Directors of various organizations,

have Bade one loan to the business of a friend, and am a

trustee for family trusts established by a client. I would

disqualify myself from hearing matters in which Z or my firm

have been involved in aooordance with 28 o.s.c. §455 and the

Code of Judicial Conduct.

3. Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during

your service with the court? If so, explain.

Ho and if appointed, I would resign from the Board of

Directors of the organizations with which Z am currently

affiliated and as a trustee for the family trusts of my

client.

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 S500 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.)

Bee the Attached Financial Disclosure Report

5. Please complete the attached financial net worth statement

in detail (Add schedules as called for).

See the Attached Net North 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.

No
290

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 tine 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.

All of the non-profit organizations with which I have beea

affiliated serve the disadvantaged either directly or

through projects I have participated in formulating. The

Puerto Rioaa Legal Defense sad Education Fund, for example,

promotes, through legal and educational activities, the

civil and human rights of disadvantaged Hispanios. I have

served, at various times, as the First Viee President ef the

Board of Directors of the Fund and as Chairperson of it*

Litigatioa and Education Committees.

The State of New York Mortgage Agency ("SONYMA") structures

affordable housing programs for residents of the State of

New York. During ay service on its Board of Directors,

SONYMA, among many other projects, has implemented special

mortgage programs for low-income families to purchase hones.

I was also a member, in 1988, of the Selection committee for

the Stanley D. Becknan Educational Trust which grants

college scholarships to minorities and first generation

immigrants. I have, moreover, served, in 1990-1991, as a

member of New York State's Panel on Inter-Group Relations.

Finally, I have been a member of the New York City Campaign

Finance Board since its inception in 1988. This Board

distributes public funds to candidates for certain elective

positions in New York City when such candidates agree to

limit the amount of the contributions they will accept and

expenditures they will nake during campaigns.

The tine I have devoted to ny service to these various

organisations has varied through the years but It has never

been less than two hours a week and has been over eight

hours a week during certain periods. Currently, I devote an

average of approxinately six hours a week cumulatively to

the various non-profit organisations of which I am a member.

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

-10-
291

discriminates on the basis of race, sex, or religion. Do

you currently belong, or have you belonged, to any

organization which discriminates — through either formal

membership requirements or the practical implementation of

membership policies? If so, list, with dates of membership.

What you have done to try to change these policies?

No

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which led

to your nomination and interviews in which you

participated).

At the suggestion of various friends, I submitted an

application to and was interviewed by the Committee on the

Judiciary which advises Senator Daniel Patrick Neynihan on

bis judicial recommendations. I subsequently met with

Senator Koynihan who then recommended me to Senator Alfonso

D'Amato. Senator D'Amato forwarded my name to the

Department of Justice. I was first contacted and

Interviewed by the Committee on the Judiciary of the

Association of the Bar of the City of Maw York which

approved my qualifications for the appointment. Thereafter,

on two occasions, I was contacted by and met with various

officials at the Department of Justice. I was then sent

requisite forms which X completed. X was interviewed by an

agent of the Federal Bureau of Investigation and by a

representative of the Standing Committee en the Federal

Judiciary of the American Bar Association before my

nomination by the President.

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.

Mo

-11-
25. 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 farreaching 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 of 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.

Our Constitution vests the right to make and

administer laws in the legislative and executive

branches of our government. Judges impanaissibly

encroach upon that right by rendering decisions that

loosen jurisdictional requirements outside of the

scope of established precedents and by fashioning

remedies aimed at including parties not before the

court to resolve broad societal problems.

Judges must provide fair and meaningful remedies for

violations of constitutional and statutory rights to

the parties before a court. Doing so can, at times,

affect broad classes of individuals, may place

affirmative burdens on governments and society and

may require some administrative oversight functions

by a court.

A judge's decision should not, however, start from or

looX to these effects as an and result, instead,

-12-

/
becausa judicial power is limited by Article ZZZ of

the Constitution, judges should seek only to resolve

the specific grievance, ripe for resolution, of the

parties before the court and within the law as

written and interpreted in precedents. Intrusion by

a judge upon the functions of the other branches of

government should only be dene as a last resort and

liaitedly.

-13-
294

APFIDAVIT

I, ^om* So-romAyn't j „ ^ . do swear that the

information provided in this statement ia, to the best of My

knowledge, true and accurate.

I (HATE)

AJTWOHV «. CANNATELLA

Public. SUI» 0* N«w Yort

Ho •1-*»6»768

In QiiMnt County

~ all. 1W1

-14-
295

ADDENDUM TO UNITED STATES SENATE

QnESTIONNAIRE

QUESTION HlBl.

gao D*»erlDtlon! Represented Ferrari North America in an

administrative hearing, ordered pursuant to a

writ of mandate, of dealer's petition

challenging the termination of his Ferrari

franchise under California's Automobile

Franchise Law. I predominantly conducted the

hearing before the California New Motor

Vehicle Board which confirmed the

termination.

Ferrari North America appealed the judgment

rendered on the writ, which judgment was

reversed on appeal. The appeal addressed the

issue whether a Stipulation of Settlement

entered into before the California New Motor

Vehicle Board could be enforced, without a

good cause hearing, to terminate a dealer.

Although not listed as co-counsel for

appellant's briefs, I had significant

drafting input into the briefs. The

appellate case was entitled Ferrari of

Sacramento. Inc.. Respondent v. New Motor

Vehicle Board and Sam Jennings as Secretarv.

Appellants, and Ferrari North America. Real

Partv in Interest and Appellant; No. C008840

in the Court of Appeal of the State of

California in and for the 3rd Appellate

District; Sacramento Superior Court, Case No.

360734. See below for the names, addresses

and telephone numbers of co-counsel and

adversaries).

ADMINISTRATIVE

Case Name!

AgencyProtest Wo.i

Ferrari of Sacramento. Inc. vs. Ferrari North

America.

State of California New Motor Vehicle Board

(Appeared EEfl hac vice)

PR-973-88
m assT.-zAdmlnl«tr«t.l«

Law Jujqea:

D«t«» ef Hearing:

Co-Couna«l:

Advrsarles:

Robert S. Kendell

Marilyn Hong

10/16/90, 10/17/90, 10/31/90, 11/1/90, and

11/2/90

Nicholas Browning, III, Esq.

Herzfeld & Rubin

1925 Century Park East, Suite 600

Los Angeles, California 90067-2783

(213) 553-0451

Jay-Allen Eisen

Jay-Allen Eisen Law Corporation

1000 G Street, Suite 300

Sacramento, California 95814

(916) 444-6171

Donald M. Licker, Esq.

701 University Avenue, Suite 100

Sacramento, California 95825

(916) 924-9600

A2.

Case Description:

Case Mame:

Court:

Represented Ferrari North America, pro hac

vice, a franchisor of bankrupt dealer in

hearings relating to Ferrari's opposition to

the rejection of customer contracts,

assumption of the dealer's franchise

agreement and confirmation of the proposed

sale of dealer's franchise. The Court ruled

that the dealer could not reject customer

contracts, although financially burdensome,

and then assume franchise agreement.

Case subsequently settled with sale of

dealership and resolution of claims among

dealer, new buyer, Ferrari and customers.

Van Ness Auto Plaza. Inc. a California

Corporation, d/b/a Auto Plaza Lincoln

Mercurv. Auto Plaza Porsche and Auto Plaza

Ferrari. Debtors.

United States Bankruptcy Court, Northern

District of California.
297

SOTOMTOI wo.

StHME OEtT.-IB— Mo:

Judgjo:

Pat«s of H>«rlna:

CO-COUB««1:

»dvrnri»f:

3-89-03450-TC

Thomas E. Carlson

U.S. Bankruptcy Court Judge

1/22/90 and 3/19/90

Nicholas Browning, III, Esq.

Herzfeld t Rubin

1925 Century Park East, Suite 600

Los Angeles, California 90067-2783

(213) 553-0451

Henry Cohen, Esq.

Cohen and Jacobson

Attorneys for Debtor

577 Airport Blvd., Suite 230

Burlington, California 94010

(415) 342-6601

William Kelly, Esq.

Graham & James

Attorneys for Buyer, Barry Singh

One Maritime Plaza, Suite 300

San Francisco, California 94111

(415) 954-0200

A3 - AS

Description: Since 1985, my firm has represented Fendi

S.a.s. di Paola Fendi e Sorelle ("Fendi") in

its national anti-counterfeiting work.

Frances B. Bernstein, a deceased partner of

my firm, and I created Fendi's program.

Since 1988, I have been the partner in charge

of that program. I have handled almost all

discovery work and substantive court

appearances in cases involving Fendi. The

following are cases representative of various

facets of this work.

A3.

Case pescriptlop;

Case Naae:

Multiple provisional relief appearances

relating to Lanham Act claims against street

vendors.

Jane Doe v. John Doe and Various ABC

Companies.
298

awn outsi.-*

C«s« Mo.:

Court;

Judq«:

Advrsarlaa:

Cas« Description:

Case Kane:

Court:

Case Mo:

Judge:

Dates of Hearings

Aaversarvtsl:

89 Civ. 3122 (TPG)

United States District Court

Southern District of New York

Thomas P. Griesa

U.S. District Judge

None have appeared.

or

Appearances relating to temporary restraining

order, preliminary injunction and seizure

order under the Lanham Act and granting of

default judgment.

Fendi S.a.s. Pi Paola Fendi e Sorelle v.

Dapper Dan's Boutique et.al.

United States District Court

Southern District of New York

89 Civ. 0477

Miriam G. Cedarbaum

U.S. District Judge

1/23/89 and 2/17/89

Defendant appeared pro se and then defaulted.

A4.

Case Description:

Case Mane:

Lanham Act claim which was settled during

trial.

Fendi S.a.s. di Paola Fendi e Sorelle vs.

Burlington Coat Factory Warehouse Corp.. et

Court:

Case Mo.:

Judge:

United States District Court

Southern District of New York

86 Civ. 0671 (LBS)

Leonard B. Sand

U.S. District Judge
299

D«f• of Trial;

Advr»>rl«a!

sou- a MO.

SJMTt OXST.-SMay 18 and 19, 1987

Stacy J. Haigney, Esq.

Herbert S. Kasner, Esq.

Attorneys for Burlington Coat Factory

Warehouse and Monroe G. Milsteln

Burlington Cost Factory Warehouse, Corp.

263 West 38th Street

New York, New York 10018

(212)221-0010

Dennis C. Kreiger, Esq.

Cuddy s Fedder

Attorneys for Firestone Mills,

Freund

90 Maples Avenue

White Plains, New York 10601

(914) 761-1300

Inc. and Leo

A5.

Case Deacriptlon:

Case Wane:

Court:

case Me.;

Judges:

Date of Hearing;

Aaversary:

Motion for summary judgment granted and

damages and attorneys fees referred to

magistrate. Judgment after hearing entered.

(Decision on motion reported at 642 F. Supp.

1143 (S.D.N.Y. 1986)).

Fendi S.a.s. di Paola Fendi e Sorelle vs.

Cosmetic World. Ltd.. Loradan Imports. Inc..

Linea Prima. Inc. a/k/a Lina Garbo Shoes.

Daniel Bensoul. Michael Bensoul a/k/a Nathan

Benedel. Paolo Vincelli and Mario Vincelli.

United States District Court

Southern District of New York

85 Civ. 9666

Leonard B. Sand

U.S. District Judge

Joel J. Tyler

Magistrate, U.S.

1/6/88

District Court

Stanley Yaker, Esq.

Attorney for Paolo Vincelli and

Mario Vincelli

114 East 32nd Street
300

SOIOWTOH an.

SMAIE MST.-6-

Suite 1104

New York, New York 10016

(212) 983-7241

No attorneys appeared for other defendants

who settled pro se.

AC.

C«»e Description:

Case Name:

Court:

Case Hos:

Panel:

Date of Argument:

Represented Bulgarl Corporation of America on

Its appeal of the District Court's Denial of

a Motion to Modify a Preliminary Injunction

(I had extensive participation in the

drafting of appellant's brief and reply and 1

predominantly drafted all motion papers and

argued below). The order below was affirmed

on appeal.

Republic of the Philippines vs. New York Land

Co.. et al. (the "Philippines Case") and

Security Pacific Mortgage and Real Estate

Service Inc. v. Canadian Land Company, et al •

(the "Security Pacific Case").

United States Court of Appeals for the Second

Circuit.

90-7322 and 90-7398

Thomas J. Meskill

Lawrence W. Pierce

George C. Pratt

U.S. Circuit Judges

June 15, 1990 (Argued by Roy L. Reardon, Esq.

of Simpson, Thacher & Bartlett)
co-eouii««i!

Advrs«rvC)»

KWTt guEtT.-rRoy L. Reardon, Esq. (455-2840)

David E. Massengill, Esq. (455-3555)

Simpson Thacher & Bartlett

425 Lexington Avenue

New York, New York 10017

(212) 455-2000

Jeffrey J. Greenbaum, Esq.

Janes M. Hirschhom, Esq.

Sills, Cummis, Zuckenaan, Radin,

Tischman, Epstein t Gross

Attorneys for the Republic of the

Philippines

Legal Center

1 Riverfront Plaza

Newark, New Jersey 07102

(201) 643-7000

Cmmm nmmm:

Order to Show Cause for Approval of Sublease

by Bulgarl Corporation of America.

Republic of the Philippines vs. New York Land

Co.. et al. (the "Philippines Case") and

Security Pacific Mortoacre and Real Estate

Service Inc. v. Canadian Land Company, et al.

(the "Security Pacific Case")

Court;

Case Mos.:

Judges;

Date of ArouBent:

Co-Counsel;

United States District Court

Southern District of New York

The Philippines Case - 86 Civ. 2294

The Security Pacific Case - 87 Civ. 3629

Pierre N. Leval

U.S. District Judge

2/12/90

David A. Botwinik

Pavia s Harcourt

600 Madison Avenue

New York, New York 10022

(212) 980-3500
302

•MTI auEST.-*-

Partlelpatln?

Adver«arl«»

Opposlno Motion: Jeffrey J. Greenbaum, Esq.

Janes M. Hirschhom, Esq.

Sills, Cummis, Zuckerman, Radin,

Tischman, Epstein & Gross

Attorneys for the Republic of the

Philippines

Legal Center

1 Riverfront Plaza

Newark, New Jersey 07102

(201) 643-7000

Michael Stanton, Esq.

Weil, Gotshal & Manges

Attorneys for Security Pacific

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

A7.

Case Description:

Case Maae:

Tribunal:

Arbitration Mo:

Arbitrators:

Represented claimant Nidera Handelscoapagnie,

B.V. in a novel claim in NAEGA arbitration

which sought indemnification from a seller

for the attorneys fees and costs expended in

defending against an action in London by

Nidera's buyer. A partial award was rendered

in favor of Nidera.

Nidera Handelscompaqnie. B.V. vs. Continental

Grain Company.

American Arbitration Association

New York County

13-161-1038086

Fred C. Ashner

Bunge Corporation

11720 Bo man Drive

St. Louis, Missouri 63146

(314) 872-3030

Theo Joseph

147-36 Charter Road

Jamaica, New York 11435

(718) 969-3721

Henri C.A. Van Stolk

Van Stolk Company, Inc.
Dmtmm of Haarlnoi

30 Bay Street, Room 600

staten Island, New York 10301

(718) 448-8113

9/27/88 and 3/2/89 - More hearings were held,

but dates have been difficult to locate

because case spanned over three years.

Gerald P. Lepp, Esq.

General Counsel

Continental Grain Company

277 Park Avenue

New York, New York 10172

(212) 207-5686

C*U_ifcUfiCifiJtifiB:

Case W—e!

Court:

CAU_Bfi.

Represented claimant Alfred C. Toepher

International, G.m.b.H. in arbitration and in

opposing motion to stay arbitration. Notion

was denied and cross motion to compel

arbitration granted. Case involved issue of

whether an alter ego of an entity who signed

an arbitration agreement could be compelled

to arbitrate. The motion was argued by David

A. Botwinik of my office, but I prepared the

motion papers.

A Notice of Appeal of the Order of the

District Court and a Motion for Stay of

Arbitration Pending Appeal was brought before

the Second Circuit. I argued the motion to

stay, which motion was denied and the appeal

dismissed at the conclusion of the argument

on the motion.

Arbitration resulted in award in favor of

claimant against party who signed agreement

and alter ego.

Miserocchi | C.. S.p.A. vs. Alfred C.Toepfer

International. G.m.b.H.

United States Court of Appeals for the Second

Circuit

85 7734

J. Edward Lumbard
304

James L. Oakes

George C. Pratt

U.S. Circuit Judges

•MTf OLE ST.-10

Date of Aroment;

Kdveraary:

September 17, 1984

Stephen P. Sheehan

Wistow t Barylick

56 Pine Street

Providence, Rhode Island 02903

(401)831-2700

District Court Case:

CM! MM:

Court:

Case Mo:

Judge:

Date of Argument:

Mlserocchl & C. S.p.A. vs. Alfred C. Toeofer

International. G.m.b.H.

United States District Court

Southern District of New York

84 Civ. 6112 (KTD)

Kevin Thomas Duffy

U.S. District Judge

September 5, 1984

(argued by David A. Botwinik of Pavia t

Harcourt)

Stephen P. Sheehan

winstow i Barylick

56 Pine Street

Providence, Rhode Island 02903

(401)831-2700

A9.

Case Description:

Case Mane:

Represented the State of New York in its

prosecution of the first child pornography

case in New York State after the U.S. Supreme

Court upheld the constitutionality of New

York's laws. Defendants convicted after

trial and sentenced, respectively to 3-1/2 to

7 and 2 to 6 years.

The People of the State of New York vs.

Clemente D'Alessio and Scott Hvman.
305

Court:

Inflletaant Mo.:

Judge:

tatm 9t Trial'

A»»ocl»t« Counsel:

AdVTBarlea:

En.-iiSupreme Court of the State of New York,

County of New York.

4581/82

Thomas B. Galligan

Acting Justice Supreme Court, 1st Jud.

2/2/83 to 3/2/83

Karen Greve Milton

General Counsel

N.Y.S. Commission of Investigation

270 Broadway

26th Floor

New York, New York 10007

(212) 577-0737

Steven Kimelman, P.C.

Attorney for Scott Hyman

110 East 59th Street, 33rd Floor

New York, New York 100022

(212) 682-4200

James Bernard, Esq.

Attorney for Clemente D'Alessio

ISO Broadway

New York, New York 10038

(212) 233-0260

Dist.

A10.

Case Description:

Case Mane:

Represented the State of New York, with cocounsel, in a consolidated trial of multiple

murders, attempted murders, burglaries,

robberies and related crimes by the same

defendants. Defendant was convicted after

trial and sentenced, consecutively, to 67-1/2

years to life. I prepared and argued, before

Justice Harold Rothwax, the applicability of

New York State's consolidation criteria to

crimes of violence which were spread over a

year's period of time and which had different

modes of entry for each burglary.

The People of the State of New York v.

Richard Maddicks.
306

Court:

lndlctii«nt Ko.;

SQUTE OEfl.-USupreme Court of the State of New York,

County of New York.

886/82

Judge;

Dates of Trlel:

Lead Counsel:

Adversary:

James J. Leff

Justice, Supreme Court

Almost all of January 1983

Hugh H. Mo, Esq.

Whitman & Ransom

200 Park Avenue, 27th Floor

New York, New York 10166

(212) 351-3448

Peter A. Furst, Esq.

2136 Funston Place

Oakland, California 94602

(415) 531-3904
307

Partner'* Shirt of Income, Credits. Deduction*. Etc

*m •092-44*0639

1990

Pmtm^mmmjk •13*5604022

SOtJIA SOTOKAYOR

51 THIRD ST

nv TORS, VT

PAVIX t HARCOURT

600 KADISON AVZ

NEW YORK, KY 10022

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SOHIA SOTOKAYOR

093-44-OC3*

UHr » - SECTION 179 EXPENSE DEDUCTION

OFFICE EQUIP 446

TOTAL 446

LINE 11 - OTHER DEDOCTIONS

POLITICAL CONTRIBUTIONS (2

TOTAL 52
310

Wmr. U»i

as: 4 h* tk* ttkiM1M», M. I. »0. FINANCIAL DISCLOSURE REPORT !Ss.^^S.ri« |l O.l.C.A- Aff. ft, 1110".-113)

(LMt MM, Cirat, aMdla lAltlAl]

Soda Mtrttmmyor

a. Ooan ar niflMtlM •

D.S. District court for tb»

Soothero Oistriet of Umm York

2. 199)

«. tiu« (Anici* n: )•

UJtIM

JodlcUl I

p»ri« • B*icourt

COO ludlMO aTaaas

•«• Torlt, a.T. 10022

IMPORTANT NOTES: Tit,

aidant Iht NONE bm fox cadi

ouompan)vig Ouj farm muii 6, foOtmed. CowylHt I

whcrr ywj hmrt DO npcrtabte laJtarasdoa. i^gn on tasl pOi

I. POSITIONS. (Reponlai Individual only-, lee pp. 74 of Uumjctiom.)

EQSIDfiH NAME OF ORGANIZATION/Emrry

n

Eartux

nmbmz. Board of Directors

II. AGREEMENTS. (Jtepontai ta.dMd.ui oair.« p. M or lasl/imif)'-" P

1— •" »««»«" »>

EA1E rrtRTIH AWP TCRMS

n NONE (•• •port*bl» agi*

Aa a partner In Pevia t Bercourt, z have a 1.51 of 1061 iataroat In the firm which Intarvat

I. —Mg »..~«J -> «^t,«1« «.- r.,»-.,. .,. ^••,,-i.t.» ^..^••...nn . r«dl.trlhnMn«i nf

the percenuge lotere.t la the (In of deceased and retired partnara. Ihla rednttibutioo

..y i-^^.... -y I..-,...- .^ le. e...... Th. Uoaldatloo of a oartnar'a Intara.t la qanarally

negotiated at tha tl»a of a realgmatlon bat tha partnerahip haa t»o jeara to pay th* Jhtereat

.. ^.rtn.ra have advlaed M that thev vill attaapt to llouldata «Y Intar.at prior to m.

wrmmte&tim iHCBis^. (ReponlBl bdMdul ud tpomc; KC pp. 9-12 of Imlnxruou)

n

DATC

(HoDormrift only)

gQURCE AND TY?E OMMMMH

(yours, oot ipouse'i)

NOVE iao i^wm wm4amamm !••••)

p«vi» « •arooort BM— 1990

ID 1991 to d«t«, I h«r« rocolTod distribntia

firs in tiM awMBt of 9133*544 (grosa) r bat until

Br-h^dulg W-l. »Qf IMS !• nreparad for wv t« fillpq ia S_

April, 1992, I will not know vy exact gron incaaa baaod

^1 $_

•state of Ma Tork mortgage Agency

an.- vnr-t fI >» r.-n. I mi Fln.nra »oard

»151,761.

•

300.

| 1.000.

• Payment of $100 par diaa for service on Boards of Directors.
311

FINANCIAL DISCLOSURE REPORT (oonl'd)

fiooi* sotosayor

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

(Imdudta tboM to tpouic and depndciil cfalldmi sic the parvothdkalt *(S)* >Dd '(DC)' to IndJcau raMrtabic

nl«>.illMiull Bapfa TOtlvfi b) .pou« u? dtprodtil dUUnu, fMf«al»«t>. &R pp. 13-15 at ImiSiSSi)

[3

V. OTHER GIFTS. Oadmtm MnM to •—I ud depadau cbddm; IM Uit panolhclkals '(S)' ud '(DC)' M

bdkatt Mbv ^IU natod bj ipnae ud drpiiidial chUdm. rnp«rt»cl;. Set pp.15-14 of Ijutrorttoiu-;

SOURCE DtsaupnoN VALUE

I m | NONE IB* Mtt n«aruUa fllftal

VI. UABtUTlES. (ladodts those of ipouw Bad itptodcsl dbildj-en; iDdkMc wbar aMdcaUa, per

far UtHUfy bv DUM the pareotbttlcal '(S)' for ftparatc UabUtty of ippotc, '(J)' fbr Jolaf UnUlty ot

MlvMMd aafl ipoiiM, aad'(DC)* far Uabilitj of • depcodest chUd. ^« pplfc-lS oTlnstractfOM.)

fWfSHMt

Q

prammw VALUE CODE*

NONE CMnvwwU

l BMBber of Psria ft H«rcourt, Z «» conting«ntly U«blo for the debti and obligatio

at tha flra Incurred during ay partnarahlp. The flr«, ho—Tar, he* paid ite debte in

**• 1—y a— 6t ROIlBdW Mad Bfl BiMll •^IIMC IMlTiaMl >—— 1

•fall fir *•-* eetig«»*-e«^ l

-i • 111,000 m U

t - ItM.Ml U |

I • |1).Ml to ItO.tM & > IM.MI te 1100,000

> - 11*5,001 U. 11,000.000 V . Man U*» «l,600,600

• - 1100,001 «e tXM.l
312

FINANCIAL DBCXOSURE RETORT (ow'd)

•oaia aobemmyor

VII. INVESTMENTS and TRUSTS - income, value, transactions. 0.11 in ik«« 1 M«li|nlliil ifirin, M«|»im<lillnillni)

(UclalUt tnal •••M«J

Mas* *tll* "rV" MA MIPI

TIT

6e m ^

S

; C«^w <1—1—w~

ST

»1 T33>

TOn

NONE •>•

Cltlbmlt. •». II.T.

S«».

i2L

CltltimH. »>. ••I.. ••1.

cmtti M. . » • »

Cteek'f

r^KKl. .Ill l..n^r. Btl vr

•• Iota to bu .

Taniwlry, Ifclyn

;c«p : wit

SUEE. filLal^-

r«Tl« > y^coort •• a fir » ti«i

X do not Mnage « id dc

**** t,

not h« -• » i jn«tory

Arrnuntm. m mlJjetM.* MTIA h LK*_E r««r pa, ifciai r^*--^ *

powar o mi m ty of

19-Hl

raspcct to those accouota

OBtil thm elomm of the ca

"If

•oda: year

165 ia atta* bod

tprah .p i—

tarato

tranai

or my

T win mat law ay •!! aw.

interaat la ay firm, 1.51

inn

of

la ptap. rad

xolor

iata haa

1 )6», an 1 do

1* ita aaaata, information r ilatl 19 to E 5 fi 5

7^

I anaq^ the Ig

ifcrsdter

1 iMM/ttoia CUIMI *-ti.«oo M laM »-li,o«i ta U.MO c-t:.soi ta i,ooc &-n,»ei «a sn.OM
313

FINANCIAL DISCLOSURE RETORT (com'd)

BM* at 9m§an

3, 199:

VU1. ADDITIONAL INFORMATION or EXPLANATIONS. (i>dtai« pwi «rB^on.)

DC CERTinCATION.

ID rooiptomr wtth the pravtokns of 2S VS.C | 455 ud of Atfvfsory Opinion No. 57 of the Advfiory Commluee on

Judidal Aniviiics, ud 10 the best of my knowledge >i the tune after reasonable Inquiry, I did not perform any adjudicatory

fuction in any UUgation during tbe period covered by this report la which I, my spouse, or my minor or dependent children

had a flniDrtal interest, as defined in Cknon 3C(3)tcj. la the outcome of such iitigaikm

I certify that aD infonnation given above (including information pertainiag to my spouse and minor or dependent children.

If any) ta aocunte, trae, and complete to the best of my knowledge and belief, aod that any Infonnation not reported was

withheld because h met applicable itatntory provisions permitting oon-dtscloiurc

I further certify that canted Income from outside employment and honoraria and the acceptance of gifts which have been

reponed are fa coapliaacr with the provbions of 5 U-S.CA. ipp. 7, i 501 CL seq , 5 US.C | 7353 and Judicial Conference

'*/V

NOTE: ANY INDIVIDUAL WHO KNOWDJOLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S U.S CA. ATP. 6. f 104, AND It U.S.C I 1001.)

FILING INSTRUCTIONS:

Mill lipol origlM] ud 3 •tfcUUoul copla U: JirficUl Eihia ODmmlnec

Administmhv Oflke of UK

United Sum Covms

Wdunfloo. DC 2QS44
314

hM ml rmm tojorUH

•ooii Motamtjot DWMBbu 2, 1991

MMLb«r, Board cf Directors

cm. of thro* Trwtooa tor

Ooo of thro* Ynxtooa for

OB* of thro* Traat**a for

Oaa of thr** Tr«at**a for

Ono of throa Sruataaa for

OB* of thro* Trnat*** for

Ooa of thro* Tmataas for

raorte Ucao lo«al Dofoaao aad Mueatla

nmd

Ortla 1989 Ttmilj Trust

Caodlte Ortlt Tmat for th* bos*fit of

Auada Narla Valdot

Casdldo Ortlt Craat for tho bonafit of

Choo Lopat

Candldo Ortla Tmat for tho beoofit of

Chriatlsa Cltrea

Caodldo Ortla Traat for tho boaafit of

David ThoapaM

Candldo Ortla Tn)»t for th* b*B*fit of

Chrlatophar Thoapsoo

Candida Ortlt Tnat for th* b*B*fit of

Chrlatepher Valdai

X ha** BO b*n*ficial lBt*r*at la tha trnata.

...
/

315

FINANCIAL STATEMENT

HET WORTH

Prsvidt a tomplttt, eurrtni financial ml worth it»t«mtni which Htniim in ditail an atsttt Oncludinf bank

•cceunU, ml aitatc. tacurKict. Iruitj. invutmants. and clhtr financial hotdinp) all liabiNlias (includinf dtbu.

mortfitts. ham. and other financial eblifatient) of jieunaH, your ipouu. and ethar immadiata mambati of

youri

ASSETS iMiiuna

Cat* •> luiid W4 hi a***

UI •• imrint Mowltki ttt

Wad a—Mai •« ittn*!^

pmml nu—in •« la**

ai •••inn — — mmlmttm

Du» *«• mtt»im mnt Manai

Ncrtu paytV l» asnU—MCKXi

Not« iuribit to wnia adaaaihi

NMM Myakh u mxim

NMtt tny>b:« to adHW

Actaunto ana MBl aw

Unpala Incomt tsi

Oiiwr tntfaM toi t»a Mtraal

Rial aanu monft— aayaa'l •«

»€•' OUtt |

Kaai aauta tawiiatH ncaivaaia

Caan —Hi *•——a

Duntf m^f^aftt and atMr iam

»a»t»la

Olhar aa*t»—Haniir

tcaat ga Mr

5E

-0_

82,500

P«rtn«r«hiD Intereat in

PaTla 1 Tcoart Tatall

TmjttjKlitjwauJ^l^giiSiiSlt ^rtn|

i.-iin, hiE

86,038.

CONTINSINT UMILimS UNDML MrOnUTIOM

sa

Aa aaaaiir. amkar ar fuaianlar

Taa

An an, aaaaa jlaagid? t*a< aovM

An jnv aafanaaia In aty awfti ar

fe(ii i~

r»a - O -of Sharaa

lo (9)

NaMi^u i r tola* kaakraatoyt laVot notes (1) thm (9) see attached Schedule A.

60-251 O - 01 n
316

SCHEWLE A

1. A Citibank N.A. joint checking and savings account.

2. This represents an interact free loan Z Bade on

August 23, 1991 to Cobble Hill Laundry Dry Cleaning

Plant, Ltd., a company owned by a friend. The money

is being paid to me over a three year period.

3. I own the cooperative shares for ay residence, 51

3rd Street, Apt. 1L, Brooklyn, New York 11231, which

I have valued at my purchase price.

4. I own a 1984 Honda Civic and the remainder of this

evaluation includes furnishing, clothing, jewelry,

etc., at cost.

5. Citibank Visa and Barrie Pace Ltd. credit card debt.

6. This is a mortgage at Apple Bank for Savings for my

personal residence. The shares for my cooperative

apartment are pledged to the Bank for that mortgage.

7. I have and pay a lease for my mother's Honda Civic

with GE Capital Auto Lease, Inc. at the rate of

$219.69 per month. The lease terminates in June

1992.

8. As a member of Pavia t Harcourt, I am contingently

liable for the debts and obligations incurred by the

firm prior to my withdrawal as a partner. The firm

has paid its debts in the ordinary course of

business. There is no reason to believe it would

not do so upon my withdrawal as a partner. No claim

against me individually has ever been made and none

is anticipated.

9. My firm has been sued by former clients since I have

been a partner but not for any matter in which Z

participated. The firm has insurance which it

believes is adequate to cover any potential

liability.
317

UNITED STATES SENATE

QUESTIOHWAIRE FOR JUDICIAL WOMIHEES

I. BIOGRAPHICAL INFORMATIOH (PUBLIC)

1. Pull name (include any former naawa used.)

Loretta A. Preska

Address: List current place of residence and office

address(es).

Office: Hertzog, Calamari 6 Gleason

100 Park Avenue - 23rd Floor

New York, NY 10017

Home: 140 East 37th Street

New York, NY 10016

3. Date and place of birth.

January 7, 1949, Albany, New York

Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

I am married to Thomas J. Kavaler, a lawyer who is a member of Cahill Gordon & Reindel, 80 Pine Street, New York,

NY 10005

5. Education: List each college and law school yon have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

College of St. Rose

Albany, New York

September 1966 through May 1970

B.A. Chemistry May 1970
318

-2-

Fordham University School of Law

September 1970 through May 1973

J.D. May 1973

New York University School of Law

Part time, 1975 through 1978

Ll.M. in Trade Regulation 1978

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 1971. Law Clerk, Arnold A. Proskin, District

Attorney, Albany County, Albany, New York.

Summer 1972. Law Clerk, Cahill Gordon & Reindel, 80 Pine

Street, New York, New York 10005

June 1973 - April 1982. Litigation Associate, Cahill

Gordon & Reindel, 80 Pine Street, New York, New York

10005

April 198. - December 1982. Litigation Associate,

Hertzog, Calamari & Gleason, 100 Park Avenue, 23rd Floor,

New York, New York, 10017

January 1983 - present. Litigation Partner, Hertzog,

Calamari & Gleason, 100 Park Avenue, 23rd Floor, New York,

New York, 10017

Military Service; Have you had any military service? If

so, give particulars, including the dates, branch of service, rank or rate, serial number and type of discharge

received.

I have had 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.
319

-3-

The Louis J. Lefkowitz Public Service Alumni Award of the

Fordham University School of Law Public Interest Resource

Center, 1992.

9. Bar Associations; List all bar associations, legal or

judicial-related committees or conferences of which you

are or have been a member and give the titles and dates of

any offices which you have held in such groups.

Member of the New York County Lawyers Association (Committee on Federal Courts 1989 to present); American Bar Association (Litigation Section and Corporate Counsel Committee); New York State Bar Association (Committee on the

Federal Judiciary 1989 to present); Association of the Bar

of the City of New York; Federal Bar Council.

10. Other Mewbershipss List all organisations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

Fordham Law Alumni Association (Vice President)

The Parents League

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.

New York State - First Department 1974

United States District Court for the

Southern District of New York 1974

United States District Court for the

Eastern District of New York 1974

United States Court of Appeals for the

Second Circuit 1974

United States Supreme Court 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 available to
320

-4-

the Cononittee. 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 then.

Contributing Author, "Alternatives To Trial" in Federal

Civil Practice, New York State Bar Association, 1989

13. Healthi What is the present state of your health? List

the date of your last physical examination.

My health is excellent. My most recent annual physical

was on December 10, 1991.

14. Judicial Office; State (chronologically) any judicial

offices you have held, whether such position was elected

or appointed, and a description of the jurisdiction of

each such court.

None

15. Citationat 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 opinion on federal or state constitutional issues, together with the citation or appellate court rulings on such opinions. If any of the opinions listed were not officially reported, please provide

copies of the opinions.

N/A

16. Public Office; State (chronologically) any public offices

you have held, other than judicial offices, including the

terns of service and whether such positions were elected

or appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

None
321

17. Legal Career;

Describe chronologically your law practice and experience after graduation fro* 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;

N/A

2. whether you practiced alone, and if so, the

addresses and dates;

N/A

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 1983 - present

Litigation partner, Hertzog, Calamari & Gleason,

100 Park Avenue, New York, New York 10017

April 1982 through December 1982

Litigation associate, Hertzog, Calamari &

Gleason, 100 Park Avenue, New York, New York

10017

June 197 3 through April 1982

Litigation associate, Cahill Gordon & Reindel

80 Pine Street, New York, New York 10005

Summer 1972

Summer associate, Cahill Gordon & Reindel, 80

Pine Street, New York, New York 10005

What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

My practice has always been primarily a commercial civil litigation practice. In addition, I

have represented numerous corporate officers

under investigation for alleged "white collar"
322

-6-

crimes by federal grand juries and in related

proceedings, most notably the E.F. Hutton & Company investigation which resulted in the company's plea to 2000 felony counts.

Describe your typical former clients, and

tion the areas, if any, in which you have

soecialized.

en-

__'as. if anv. in which vou have

specialized.

During the last eight or nine years, my practice

has emphasized securities matters, contract matters and federal regulatory work. I represent

various people on the industry side of securities matters (for example, broker/dealers, registered representatives, traders and other securities industry professionals) in private

actions seeking money damages (including under

RICO), regulatory and enforcement inquiries

seeking to impose penalties, and industry disputes between employees and their firms. In the

general contract area, 1 have represented parties to various contractual relationships in

litigation arising out of claims of breach. For

example, I represented S Acquisition Corporation

in an action before Judge Leval in which an

investment banking firm (represented by Simpson

Thacher & Bartlett) sued that company for

claimed fees in connection with investment banking services in a major corporate acquisition.

In another matter, I represented Baltimore Gas &

Electric Company in an action before Judge

Haight in which preference stockholders (represented by Davis, Polk 6 Wardwell) sued to

enforce rights they claimed under a preference

stock purchase agreement.

In the criminal area, I represented several

officers of E.F. Hutton & Company before the

Grand Jury in connection with the company's

eventual plea to 2,000 felony counts and in

related proceedings, including appearances

before the Subcommittee on Crime of the House

Judiciary Committee chaired by the Honorable

William Hughes of New Jersey, the Securities and

Exchange Commission and the New York Stock

Exchange. I have also represented numerous
323

-7-

witnesses before grand juries Inquiring into

aliegations of criminal price fixing.

1. Did you appear in court frequently, occasionally, , or not at all? If the frequency of your

appearances In court varied, describe each such

variance, giving dates.

I have appeared in court occasionally, that is,

consistent with a commercial litigation

practice.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

Approximately 90 percent of my court

appearances have been in federal courts.

3. What percentage of your litigation wass

(a) civil;

(b) criminal.

Virtually all of my court appearances have

been in civil matters although I have represented several individuals in connection

with grand jury appearances.

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 three cases to verdict as sole

counsel and one case just short of verdict as

counsel for one of several co-defendants. In

addition, I have tried approximately twenty

cases to verdict in various arbitration proceedings conducted by, inter alia, the New York
324

-8-

Stock Exchange, the American Arbitration Association and the National Association of Securities

Dealers.

5. What percentage of these trials was:

(a) Jury;

(b) non-jury.

The three cases I tried to verdict were

non-jury; the other was tried to a jury.

The arbitrations were all tried to panels

of arbitrators.

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) In American Home Assurance Co. et al. v. Baltimore

Gas & Electric Co., 87 Civ. 0398 (CSH), aff'd,

87-7812 (2d Cir.), I represented the defendant in an

action by holders of certain shares of BG&E's preference stock wherein those holders disputed BG&E's

right (under the applicable Preference Stock Purchase

Agreement) to repurchase their preference stock.

Judge Charles S. Haiqht of the Southern District of

New York denied defendant's motion for summary judgment, and later granted plaintiffs' motion for summary judgment. Judge Height's order was affirmed by

the Second Circuit with one dissent.
This action was litigated In 1987. Opposing counsel

was James W.B. Benkard, Davis Polk & Wardwell, One

Chase Manhattan Plaza, New York, New York 10005,

(212) 530-4000.

I argued before Judge Halght and before the Second

Circuit.

(2) In Castellano v. Prudentlal-Bache Securities Inc. and

the New York Stock Exchange, 90 Civ. 1287 (WCC), In

the Southern. District of New York, plaintiff had

filed an arbitration claim against Prudential with

the New York Stock Exchange (*NYSE*) alleging breach

of contract. Pursuant to its own six year limitations period contained in NYSE Rule 603, the NYSE

dismissed without appointing a panel of arbitrators

to hear the matter. Plaintiff then filed a complaint

in the Southern District of New York seeking, inter

alia, a declaration that the NYSE had violated its

rules by dismissing without appointing a hearing

panel and an order requiring a hearing or a declaration that he may reflle his claim with the American

Arbitration Association ("AAA") (which has no similar

limitations period).

Upon defendants' motions for summary judgment, the

NYSE argued, inter alia, that plaintiff could reflle

with the AAA, while I argued on behalf of Prudential

that Prudential's written agreement with plaintiff

precluded such refiling. In an opinion reported at

CCH Fed. Sec. Law Report 195,321 and noted in the

securities industry because the disputed language

appears in many brokerage firms' agreements. Judge

William C. Conner held that plaintiff could not

reflle in another arbitral forum.

Plaintiff's counsel was Louis I. Parley of the Marcus

Law Firm, 111 Whitney Avenue, New Haven, Connecticut

06510, and counsel to the NYSE was Russell E. Brooks

of Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York, New York 10005, (212) 530-5000.

Judge Conner's opinion was dated June 18, 1990.

(3) I recently completed a New York Stock Exchange arbitration entitled Anglo American v. Prudential-Bache

Securities Inc., Robert Knutsen and Michael R. Of fit

wherein claimant alleged that it purchased certain
-10-

FHA insured puttable project notes from Prudential

and hedged them with treasury futures upon certain

representations by Prudential which claimant contends

were not true. I tried the matter as sole counsel

for Prudential over eight trial days, and it concluded in January 1992.

The panel of arbitrators consisted of Robin Henry,

chair, Joseph Mascia and Irwin Wolf, III, all of whom

can be contacted through Harry Albirt, Esq., Manager,

Arbitration, The New York Stock Exchange, Inc., 20

Broad Street, New York, New York 10005 (212)

656-3000. Opposing counsel was Christopher Lovell,

52 Duane Street, New York, New York 10007 (212)

608-1900.

(4) Cohen v. Stanley, et al., 82 Civ. 210 (DNE) and

Romacho v. Stanley, et al. 82 Civ. 211 (EW) presented

the question of whether the defendant trustees of the

Bowne Profit-sharing Trust and Bowne Health Benefit

Plan and Trust, inter alia, acted arbitrarily and

capriciously in denying plaintiffs accelerated distribution of their vested benefits, breached their

duty to administer the trusts solely in the interest

of their participants or failed to disclose the terms

of the plans, all in violation of the Employee

Retirement Income Security Act of 1974 ("ERISA"). I

tried these cases as sole counsel to former Chief

Judge David A. Edelstein and to the late Judge Edward

Weinfeld, respectively. Judge Edelstein found that

the defendants had indeed violated their duties under

ERISA, 566 F. Supp. 246, and Judge Weinfeld found

that they had not. 567 F. Supp. 1417.

These cases were consolidated on appeal to the Second

Circuit with Morse v. Stanley, et al. another related

case. I argued the appeal on behalf of Messrs. Cohen

and Romacho to Circuit Judges Kaufman, Oakes and

Cardamone. The majority upheld the trustees" action,

with Judge Oakes dissenting. 732 F.2d 1139 (1984).

Counsel for the trustees and the plans was John W.

Ohlweiler of Simpson, Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017, (212) 455-2000.

Counsel to Mr. Morse was Thomas F. Curnin, Cahill

Gordon & Reindel, 80 Pine Street, New York, New York

10005, (212) 701-3609.
327

-n-

(5) Since April of 1990, I have served on a pro bono

basis as Special Trial Counsel, prosecuting a disciplinary matter before the Departmental Disciplinary

Committee of the Appellate Division, First Department. The Respondent was charged with violations of

three Disciplinary Rules based on a trial conducted

some ten years previously in which he was found to

have unduly influenced an elderly widow with respect

to estate matters. I was asked to become involved

when Respondent moved for reconsideration of the

Appellate Division's application of collateral estoppel to one charge. I prepared the brief on the

motion for reconsideration and assumed sole responsibility for the prosecution from that point on.

I tried the case over three days to a panel of the

Disciplinary Committee comprised of Irwin Kahn, Esq.,

chair, Kahn & Horowitz, P.C. 299 Broadway, Suite

1105, New York, New York 10007, (212) 277-8075; Professor Beatrice Frank, New York University School of

Law, 40 Washington Square, Room 424, New York, New

York 10012, (212) 998-6100; and Frank Rosiny, Esq.,

Rosiny & Rosiny, 277 Broadway, Suite 601, New York,

New York 10007, (212) 349-8700. Counsel for Respondent were Gary J. Lanqer, 40 East 10th Street, New

York, New York 10003, (212) 614-0345; and Arthur

Karqer, Karger & Tucker, 415 Madison Avenue, New

York, New York 10017, (212) 751-5200.

(6) In Holy Spirit Association for the Unification of

World Christianity v. The New York Times Company, the

Unification Church sued The Times for defamation

based on its report of documents released by the

House Subcommittee on International Relations concerning links between the Rev. Sun Myung Moon's Unification Church and the Korean CIA. The Times, which

I represented, moved for summary judgment, arguing

that the article was privileged as a fair and true

report of a legislative proceeding, and that motion

was granted. 415 N.Y.S.2d 554 (Sup. Ct. N.Y. Co.

1978). The Appellate Division, First Department,

affirmed with one dissent, 68 A.D.2d 833 (1st Dep't

1979), and the New York Court of Appeals affirmed the

grant of summary judgment. 49 N.Y.2d 63 (1979).

Opposing counsel was Thomas Fitzpatrick, formerly

Chief of the Criminal Division of the United States
-12-

Attorney's Office for the Southern District of New

York, now a solo practitioner at 100 Park Avenue, New

York, New York 10017, (212) 481-9500. I prepared all

of the papers and conducted all of the arguments in

this action.

(7) In Newman v. L.F. Rothschild, Unterberq, Towbin and

Arthur Levine, 86 Civ. 3328 (RWS) and Lowenbraun v.

L.F. Rothschild, Unterberq Towbin and Arthur Levine,

86 Civ. 2778 (SWK), plaintiffs asserted claims in the

Southern District of New York before Judge Robert W.

Sweet and Judge Shirley Wohl Kram, alleging, inter

alia, violations of RICO, unsuitability under the

rules of the New York Stock Exchange and violations

of Rule 10b-5.

Rothschild moved to dismiss these claims, and both

judges granted the motions with leave to replead.

Newman, 651 F. Supp. 160 (1986); Lowenbraun, CCH Fed.

Sec. Law Report 193,066 (1987). After plaintiffs

repleaded in both actions, Rothschild renewed its

motions, and both were again granted. Newman, 662 F.

Supp. 957 (1987); Lowenbraun, CCH Fed. Sec. Law

Report 193,687 (1988). I acted as sole counsel for

Rothschild, and Richard Realmuto, 59 John Street, New

York, New York 10038, (212) 619-5805 was counsel for

plaintiffs.

(8) In Goldberg v. Prudential-Bache Securities Inc.,

Index No. 8126/87, in the Supreme Court of the State

of New York, County of New York, before Justice Martin Evans, Prudential's Michigan counsel had listed

plaintiff, a professional expert witness, on his witness list for a trial in Michigan pursuant to a Michigan rule precluding testimony from witnesses not so

listed. Michigan counsel did not solicit plaintiffs

permission or otherwise contact him before including

him on the witness list. The plaintiffs in the Michigan action later retained as new counsel an attorney

who had been a student of plaintiff Goldberg, and

that counsel submitted an affidavit stating that but

for Prudential's counsel's listing of plaintiff

Goldberg on its witness list, he would have retained

Goldberg as an expert witness.

Plaintiff Goldberg sought to recover the fees he

would have earned had he been retained and asserted
329

-13-

clalms for, inter alia, interference with prospective

business relations and fraud. In response to Prudential's motions to dismiss or, in the alternative, for

summary judgment. Justice Evans permitted plaintiff

to replead twice but thereafter granted summary judgment to Prudential.

Counsel for Goldberg is now United States District

Judge Lawrence M. McKenna of the Southern District of

New York, (212) 791-8067.

(9) In Mulhern v. Autranet, Inc., one of the first New

York Stock Exchange arbitrations I tried as sole

counsel, I represented claimant in his contractual

compensation claim against his former employer, a

Donaldson, Lufkin & Jenerette subsidiary. The panel

awarded Mr. Mulhern a substantial portion of the

amount claimed.

Counsel for Autranet was Robert B. Fiske, Jr., Davis

Polk & Wardwell, One Chase Manhattan Plaza, New York,

New York 10005, (212) 530-4000.

(10) In The First Boston Corp. v. S. Acquisition Corp., 88

Civ. 0555 (PNL), I represented the defendant sued by

First Boston to recover investment banking fees in

connection with investment banking services in a

major corporate acquisition. The parties engaged in

vigorous documentary and deposition discovery and

then in serious and intense settlement negotiations

in which Judge Pierre N. Leval of the Southern District of New York participated extensively. S.

Acquisition eventually retained additional counsel

because of differences about the advisability of

settlement. I understand the matter was resolved

some months later (after very active litigation) for

an amount not significantly different from that which

I discussed with Judge Leval.

Counsel for First Boston was Robert Cusumano of

Simpson, Thacher 6 Bartlett, 425 Lexington Avenue,

New York, New York 10017, (212) 455-2000. Additional

counsel for S. Acquisition was Charles Oransky of

Hellring Llndeman Goldstein & Siegal, 1180 Raymond

Blvd., Newark, New Jersey 07102, (201) 621-9020.
330

-14-

19. Legal Activities; Describe the most significant legal

activities you have pursued, including significant litigation which did not progress to trail or legal natters

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 1984-86, I represented several officers of E.F. Hutton

& Company in connection with a federal grand Jury inquiry

into Mutton's money management practices. My clients

ranged from a low level vice president to an executive

vice president and included witnesses who testified before

the grand Jury, witnesses who asserted their privilege and

a witness who received a target letter.

I personally interviewed and gathered facts about all of

them and advised them as to their courses of action. I

prepared those who testified and engaged in lengthy negotiations with the Assistant United States Attorney on

behalf of the recipient of the target letter. I prepared

a Wells submission and made an oral presentation to the

United States Attorney and made a Wells submission to both

the Chief of the Fraud Section (Robert Ogren) and the

Assistant Attorney General in Charge of the Criminal Division (now District Judge) Steven Trott.

Following the Company's plea, I prepared one of my clients

for his testimony before the Subcommittee on Crime of the

House Judiciary Committee chaired by Representative

William Hughes of New Jersey. I also represented various

of these clients in related proceedings before the Securities and Exchange Commission and the New York Stock

Exchange and in several related civil actions and

proceedings.

In Welsman v. Darneille, et al., 77 Civ. 2110 (RJW), I

began participating in the representation of one of several co-defendants in an insider trading case only shortly

before trial was to begin. The case was tried for several

weeks in 1982 to a Jury before Judge Robert Ward of the

Southern District of New York. I did a good deal of the

work required at trial on behalf of my firm's client, and

the case settled after plaintiffs rested and during defendants' case.
331

-15-

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated

receipts from deferred income arrangements, stock,

options, uncompleted contracts and other future benefits

which you expect to derive from previous business relationships, professional services, firm memberships, former

employers, clients, or customers. Please describe the

arrangements you have made to be compensated in the future

for any financial or business interest.

My law firm has traditionally paid out the capital

accounts of its departing partners over a period of

approximately one year. 1 will try to accelerate the process in this instance, but I would expect to recuse myself

from cases involving my firm in any event, at least for a

period of time. The present amount of my capital account

is estimated to be about $60,000. I also am the trustee

and beneficiary of a Keogh retirement account with Hertzog

Calamari & Gleason which will be rolled over into an IRA

Rollover account when I leave that firm.

In addition, through my husband, I might be thought to

have an indirect financial interest in the profits of the

law firm of Cahill Gordon & Reindel.

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 arrangement that are

likely to present potential conflicts-of-interest during

your initial service in the position to which you have

been nominated.

I expect to recuse myself in all cases in which either of

the two law firms with which I have been associated represents a party. That recusal with respect to Cahill Gordon

& Reindel would continue for so long as my husband continues as a member of that firm. I might reconsider the

recusal with respect to Hertzog, Calamari & Gleason after

the passage of some appropriate amount of time. I also

expect to recuse myself with respect to clients I have

regularly represented and clients for whom my husband does

a significant amount of work. In sum, I expect to follow

the Code of Judicial Conduct with respect to recusal.
-16-

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

NO.

List sources and amounts of all income received during the

calendar year preceding your nomination and for the current calendar year, including all salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items exceeding $500 or more (If you prefer to do so, copies of the financial disclosure report,

required by the Ethics in Government Act of 1978, may be

substituted here.)

See attached financial disclosure report.

Please complete the attached financial net worth statement

in detail (Add schedules as called for).

See Attached

Have you ever held a position or played a role in a political campaign? If so, please identify the particulars of

the campaign, including the candidate, dates of the campaign, your title and responsibilities.

NO.
-17-

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls

for 'every lawyer, regardless of professional prominence

or professional workload, to find some time to participate

in serving the disadvantaged.* Describe what you have

done to fulfill these responsibilities, listing specific

instances and the amount of time devoted to each.

I have spent several hundred hours in the last twenty

months acting on a pro bono basis as Special Trial Counsel

to the Departmental Disciplinary Committee of the New York

Appellate Division, First Department, prosecuting a disciplinary complaint against an attorney for violation of

various ethical rules. That prosecution included evidentiary hearings before a panel of the Committee.

In addition, I have recently received the Louis J.

Lefkowitr Public Service Alumni Award from the Fordham

University School of Law Public Interest Resource Center

as one of the twelve alumni who provided the initial funding for the Center in its work with the disadvantaged.

From time to time I have worked on various benefit committees including HFY Legal Services, the New York

Hospital-Cornell Medical Center Department of Obstetrics

and Gynecology/Lying-In Hospital and the Christ Church Day

School.

From time to time I have also addressed various legal

groups including the International Bar Association in 1987

and the Securities Industry Association Legal and Compliance Seminar in 1989. I have also addressed groups of

women law students.

Over the last three years I have read to classes in the

library of my children's school, and this year have served

as a class parent.

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
834

-18-

invidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you belonged,

to any organisation 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 now belong nor have I ever belonged to any such

organization other than the Girl Scouts of America, of

which I was a member from age 7 to age 17.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

if so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which

led to your nomination and interviews in which you

participated).

Senator D'Amato's judicial selection committee reconunended

my nomination. I had made known to a member of the committee my interest in being a District Judge. I was

interviewed by Senator O'Amato, and the committee sent me

its questionnaire which I filled out and returned.

Shortly thereafter, I was interviewed by the committee.

Senator D'Amato thereafter forwarded my name to the

Department of Justice, by whom I was then interviewed.

In addition, I provided information to and was interviewed

by the FBI and the American Bar Association.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case,

legal issue or question in a manner that could reasonably

be interpreted as asking how you would rule on such case,

issue, or question? If so, please explain fully.

No.

Please discuss your views on the following criticism

involving 'judicial activism.'
335

•19-

The role of the Federal judiciary within the Federal

government, and within aociety generally, has become the

subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism

that alleged 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 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.

Article III courts are courts of limited jurisdiction. For the same reason a district court

would decline to render an advisory opinion, it

should decline to decide cases not ripe for

decision or where a party does not have proper

standing. Thus, it is part of an Article III

court's mandate to hear only cases which are

properly before it.

In addition, the judiciary is only one of three

branches of government and it should endeavor

not to Intrude into areas of responsibility of

the other co-ordinate branches. For example, in

seeking what might appear to be the easiest and

quickest solution to a problem, a (misguided)
-20-

judge might be tempted to take over the legislature's function of prescribing broad affirmative

duties on society, stating, for example, that if

the legislature had considered the question presented, it would have adopted the view expressed

by the judge. The point Is that If the legislature did not consider the question. It should be

given an opportunity to do so.

Similarly, a judge might think that rather than

bothering to send a matter back to the relevant

executive department or legislature for another

attempt at some constitutionally deficient

effort, the court should simply assume the function in question. While that course would

almost certainly result in clearing up the situation in a manner satisfactory to some, and perhaps relatively promptly, it is not the manner

in which our constitutional system Is supposed

to work. The branch whose job it is and who, by

virtue of election, is in a better position to

fashion acceptable solutions, must be given the

chance to do so, even at the cost of delay and a

perceived lack of neatness. Thus, I believe the

judiciary should be mindful of Its place as one

of three co-equal branches and reserve to the

other two branches their proper perquisites and

duties.
LCRETTA A. PRZSKA AK> TMMAS J. UVALBR JOIKT

FINANCIAL STATEMENT

NET WORTH

Aa of »».rtb So, 'ti».

P'ovide a nmplttt. eurrifll financiil n*t weth itaKmanl which ilwnint indttiil *llautts (includini bank

accsunts. raal tstata. steunlMi, Imiti, invcstmtnti. and ether financial holdin(s) all Uabililiti (includini debts,

monfatat. leans, and ethar financial eblicatiens) ef yeuruH, yeur SPOUM. and ottwr immadiata mambtrj of

rt>u' heuuheld.

ASSETS

Co* wi MM tmt In kaota

us o—arwmam a

•CMauM

latM MaifWm—aM aduduta

UMtua aacumm aaa a0>ad<4« 2

Aitounti and aalM nealvaaM:

*-ST

-35. ZSt

ase.i

UAiiunes

NMaa aayaau la aawa—Hcand

Wataa aayaMi la Mnaa —w<

Naua aaraato la ratabvo

Nalaa *a»ai* la atkan

aMbakaua

camam

Ontar anaaM aa ana taanat

1

tzcladaa truata for •Imor eblldraa of ahleh Mttbar ayoaaa la tha emataa or

a bMaflciarr, ••' axelodaa a ra»ocabU gramter tmat of «kiek Nr. bvalar'a

•other (obo la attll allra) la the (raater awl ojxUr ohlch Ma. Preake la

eolther a troataa oor e hOMflclary.

toe Schodalo A

lee Schodale •

•00 Schodalo C

See Schodala S •

•a. Pxaaka la a partoar la tha In fits ef Bertaoj Cale»aTl A Cloaaoa. Aa

each, aha (Ilka all other partaara) la peraooally lUhle aa Che laaae of the

flra'a office, ap to a limit of appreslMtaly $77,000 par capita.
SCHEDULE A - Unlisted Securities

Security

Houston Biotech LP

Century Hillcreste LP

Allied Capital Corp.

Jetstream LP

UTS Uncommon Values Fund

ML Lee Acquisition Fund

New Carlton House Partners

LP

CG 84 Partnership

Corporate Property

Associates III LP

Fidelity Magellan Fund

Forrest City Investment

Partners LP

Glacier Ridge Associates LP

Krupp Cash Plus II LP

Orange County Investors LP

Participating Income

Properties 86 LP

Real Estate Associates

Ltd. IV. LP

Agricultural Minerals LP

Present Value Market Cost

S 9,000

5,000

0

8,000

8,700

0

60

8,700

S 10,000

7,000

15,000

10,000

0

0

117,850

4,672

1,000

8,150 8,150

5,000

0

0

19,000

0

133,000

37,500

20,000

53,563

17,000 20,000

0

2,125

20,000

2,150

5 77,975
339

SCHEDULE B - Real Estate Owned

Property Value

X. 140 East 37th Street $2,000,000

New York, New York

2. 5 Dick's Castle Road $2,000,000

Garrison, New York

3. 27 Shore Drive S 140,000

Pine Plains, New York
SCHEDULE C - Real Estate Mortgages Payable

Property No. Mortgagee Balance Due

1. Citibank, N.A. $1,434,200

1. Mina Kavaler Trust 247,500

2. Citibank, N.A. 1,966,504

2. River Company Partners 5,350

3. Hudson City Savings

Institution 128,000
341

SCHEDULE D - Keoqh and IRA Accounts

(a) Loretta A. Preska is presently both the Trustee and

the ultimate beneficiary of a Keoqh Plan Account maintained by her law firm, Hertzog, Calamari & Gleason, with

Shearson Lehman Brothers. At present the account contains

the following securities!

1. International Bank for Reconstruction and

Development Bonds

2. Chatanooga Valley Corp. Bonds

3. Foote Cone & Belding Common Stock

4. FNMA Certificates

5. GNMA Certificates

6. CMO Certificates

7. Colonial US Government Trust - Mutual Fund

8. Aetna Real Estate Associates LP

9. Capital Source II LP

10. Malrite Guaranteed Broadcast Partners LP

11. Certificates of Accrual on Treasury Securities

12. United Kingdom Fund

13. Pennsylvania Enterprises Inc. Common Stock

In addition, there are currently in existence the following IRA or IRA Rollover Accounts, of which Loretta A.

Preska or Thomas J. Kavaler (as indicated) is the ultimate

beneficiary:

(b) IRA Account f/b/o Loretta A. Preska at Shearson

Lehman Brothers

Securities presently in that account

1. Kemper Total Return Mutual Fund

2. Colonial Fund Inc. Mutual Fund

3. Mendik Real Estate LP

4. Government Securities Inc. Fund - GNMA

5. TIGR Series - Zeroes

(c) IRA Accounts f/b/o Loretta A. Preska with The Vanguard Group

Mutual Funds presently held

1. Star Fund
342

2. Windsor Fund

3. Wellington Fund

1. ML Lee Acquisition Fund LP

(d) IRA Rollover Account f/b/o Thomas J. Kavaler at

Shearson Lehman Brothers

Securities presently in that account

1. Borden Inc. Common Stock

2. GATX Corp. Preferred Convertible Stock

3. Kemper Total Return Mutual Fund

4. Putnam Voyager Mutual Fund

5. Mendik Real Estate LP

6. Kingdom of Sweden Bonds

7. Union Electric of Missouri Bonds

8. Potomac Edison Bonds

9. Loews Corp. Bonds

10. Krupp Insured Plus LP

11. Lepercq Corp. Income Fund LP

12. Principal Growth Mortgage LP

(e) IRA Account f/b/o Thomas J. Kavaler at Fidelity

Investments

Securities presently in that account

1. Fidelity Magellan Fund

(f) Thomas J. Kavaler's law firm maintains a defined contribution pension plan and a 401(k) plan in which he participates. The custodian of these accounts is Marine Midland Bank and the investment advisor is Sanford Bernstein

& Company. However, although he receives quarterly

reports on the investment progress of these accounts, Thomas J. Kavaler is unaware on a day-to-day basis of what

investment decisions are being made by Sanford Bernstein

and what securities are held in the account, although this

information would probably be available to him if he made

inquiry of Sanford Bernstein or of Marine Midland Bank

(which he never does).
343

FINANCIAL DISCLOSURE REPORT Bu••qulrM *r "• «tfttc« fctl ot 19B1, pu». [,. BO.

••• —1. MiMi• r JO, ]«••

(S 0.1.C.A. App- •. MIOI-llII

.lofi (LMC (HM, firft. Uddla taiUsl]

PRSSAA, t-oaerr* A.

Ufwr** sr»r*x P/^j^^ty jw*r-^y/^

I ort

1. Court or orguiutloe

Initial AMMI riul

'II1CB ^|—

/oe P*.fiK. si******

1. 0«t« af topart

3/if/ft.

i. »*pttriina P«iiaa

ORktef UK NONE bra for oth HcUa. ^^n, ,« b«. «, .^MUM, !.>,«,>,„. Sfr, «, 4m ^je

L POSITIONS. (Reponlag UuUviilul only, sec pp. 7-8 of Umniaiom.)

MMM NAME OF ORfiANlZATmN/FNTTTV D NONE no raporubla petit

TAP- 7"A^/t

II. AGREEMENTS. (Reponlnj ImlivHlull only, MC p. 8-9 of Iminiaioni.)

EAIE PARTIES AND TFBM«i

e.rr*7« of JO^.T* />n. ?*.£.!*.* Ccsr**.)

a NONE IU

I NON-INVESTMENT INCOME, duponm, wMduni ud .pow;« pp. 9.12 of hwnMion. |

a

(youn, noi spuuM's

NONE no 1 MII nil* Bo«-iB«

lt*y,/>"./f*/./UL ctfm*. t~**,j K*.l-I.**t. - t-»KJ *** -for f*'"!!
344

FINANCIAL DISCLOSURE REPORT (aWd) flg<xg*> c**.t,m A 3/71//t

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

(lacMa ikow M uoot mk tiiiiHul rtnimj UK DM paimknlab '(S)' aal '(DC)' «o laMcaM rnonaMc

• NONE fM MMk i»pon«Bl« i i •• firui

V. OTHER GIFTS.

«otmcE

1 NONE IBs Mck rafena*!* fflfwl

•« Ikt rwotWtkab '(S)* u

l. MHIIMI. SM »IS-U of •a>c)-»

VALUt

D

VI. UABIUTIES

hr lUMUlj to uiinc Ibc pumkeflol '(S)' tor 1111 nil UabUtn •( III III, •Of %

iMUridiuI uiJ spouse, usd'(DCr tor UabUH; «H ll|nll»l AB. S|»lVl«

a— DESCMTnON

NONE (So npwtaM* lla*llltlMI

LiTii*** rrt* CO fej*3to*»3| Stfi^H c««

mpoaslU*

BIM BMK

:#W>**. <^o^*ii^ ^*HM»r*. KJ**i*n** 0^ fJU\l%—*K. *-•*** A*.*~UL4*mfmm*' Jc

CH*. /**&**, ffH** T»*n ClS

fi^mr tir-r /~~*s-rt~j t.r Is> f**mtit**T fsttf*.

J - 111,000 m kMM • • ID.Ml !• tM.OM L - IM.OOl t* ItM.OM • • »l«C,9»l to UM.OOl

• • «>M,M1 M itOO.OM • a UM,«n to ll,«M,«M V - Ban tM tl.OM.AM
345

FINANCiAL DISCLOSURE REPORT (ami'C)

* Ot ?ai>cc lApOfUBC

ffi-LSKA , t-oli.tT-?* f,\ ihUl

VII. INVESTMENTS and TRUSTS - Income, value, transactions o^imie. M*** *•

mt 4tfimitia tbiiirtu, M> pp. lt-27 of Unractlaav)

mmm UAlvtAMl «M Mow

•mSm

•e

-m—

•ST:

3ra«» v«lBa

ml Md of

H

Klaw - ^'.r, rmpartlmj pmttod

«! I' E, T.[*3fc4.-- L--i . n

NONE (M n«an«»l«

;f«c«,-(. *. r^^i-i. ami ^

^ Y-£A>t"7

<>.»,-< /.r^^^/j^-..^ _ai wi

> f>-T-'«j y»c»b •^

Cffi 0* */* . ^y\

r

/S tvT

JEA /^7

«e /W7 T

-

?/*•

ess *•-•• Qg•«»••.^»"»i ^<0 /^7

CO ',A**-~* *"**4**** Mt f" *•' X-l

**.rr.~ m/.-r.tM t^ JZ t-l

/^t.**^» t**t1JH.~ C»**.tTA,. Ct) O/f T

t-"-r~~* <•—-*•'> <n.»»«. !».<•> e- A:-/

Ot ?i r*t*~ M *-/ u

H**** cf» ^**a a t^ Qj *i

G^ . Cfa.-*/* f/*- , efi A ia T

A:-/ U

C*<C.<<^.-' l^»»,-«i t/l-? fjj T)/-- 7"

SI*.-I /<« <".>i-.ft^^m

u/

*'" V*w

ta.'faj} * "• Sli'Si'sliL''

»-|l,Ml ta IJ.MO

CHM'ir'iihnit'" WM^WM

. ^^^i s-sii, og;;^;^ •"'•°

,

° aigrtij'Ji;nci.Tyl CK^r:t"'"°^—^^^-r
346

FWANC1AL DISCLOSURE REPORT (aMU'd) 'Pd.ii^A, /~tfL*t7* ^ 3/11/9

VII INVESTMENTS and TRUSTS - income, value, transactions, (laciu** OXM <* «*>..•

>nd UrmtM cbildniM IM pp. 11-2T o* butnKttaas.)

Plae* *tsi' att*c MCD MMt

• t MM of

13)

•ST:

ii'i

m

in Ui. If Afll WifT [res ;^»-. -• ,r<

(It

NOSE (M r»patu»i«

IHCBI. MMU. Of

UMMCXlOM) SY-i^rl

ti) * K-i T ^

cc ^v /v^^ (^ « M 7" ^

/> Mi T a

£C*U4A ai^i srtwnt ff vV A K1 xr u

DA*-** t.^»7',_-^rr.-j «.<• C/'' A *--\ T W

ffj to t-l qr u

/ o-* /_,„-—" . o*" »•>•-< - i** «*

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ft M T ~f

Jo

l"»xu*i *•••• ••*• W n"^1

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14

11

Ti

IT

It

7t

a

1

is^^iTK! »«•»*«- 6»rtL»«R- samags^i aas^ga ? ^n, gUJ! * "' fSftrw gHSj~- HglS!,^

(IM Md. a) g-tMft V«1M •***»—

MM w>lauMU«
347

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w e

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V •H y •o

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C-H « -H c i

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3^ a •H -H Z 4-1 -H

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C 9 3 •H X u o CM O 0 1 C •W +J 0 •-1

O^i c 0 (0 3 X c "•v.

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a

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FINANCIAL DISCLOSURE REPORT (omid)

353

•««• at Vwrso* B*por'.inq

?/3^/^Z.

VIII. ADDITIONAL INFORMATION or EXPLANATIONS, o^iott put or Rq^n.)

IX CERTIFICATION.

la oompliuoe wjib tbe provisions of 2S US C. I 455 and of Advisory Opinion No. 57 of the Advisory Comfflinee o

Judicial Activiiie*. and 10 the ben of my knowledge at tbe time after reasonable inquiry, I did not perform any adjudicator

fuocuon in any liiifation during tbe period covered by this repon in whicb !. my spouse, or my minor or depentem cbildre

had a financial inieresi, as defined in Canoo 3C(3)(c), in tbe outcome of sucb Uuptton.

I certify that all information given above (including inibrnuiion pertaining to my spouse and minor or depeodent cbildrct

if any) is accurate, tme, and complete to tbe beat of mv knowledge and belief, and that any infonnation not reported wa

witbbekl because it met applicable sututory provisions pemuiting non-disclosure.

I further certify tbat earned income from outside employment and boooraria and tbe aooeptance of gifts whicb bave bee

reported are in compliance with tbe provuiom of 5 U S CA app. 7, | 501 et seq., 5 U.S.C f 7353 and Judicial Conferenc

regulations.

Signature

^uma/if^4. 'Shu. 9 7.

NOTE ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPOR

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (3 U.S.CA. ATP. 6. I IM, AND IS L'.S C. t 1001.)

FIUNO INSTRUCTIONS:

Mail tigaed orifLul ud 3 uMitiotuJ copki to: JaUdal Eibia OmnMee

AdmmalriUvc OlDce of llK

Uniud SuwCoom

Wntuifloo. DC 20344
354

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Irene Patricia Murphy Keeley

Address: List current place of residence and office

address(es).

Home: 316 Buckhannon Avenue

Clarksburg, WV 26301

Office: Steptoe t Johnson

Union National Center East

P.O. Box 2190

Clarksburg, WV 26302-2190

Date and place of birth.

January 17, 1944

Brooklyn, NY

Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married

John Paul Keeley, III

President

Ground Breakers, Inc.

Armory Road,

P.O. Box 1227

Clarksburg, wv 26302
355

5. Education: List each college and lav school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

Undergraduate:

a. College of Notre Dame of Maryland

North Charles Street

Baltiaore, Maryland

Dates of Attendance: September 1961 - June, 1965

Degree Awarded: B.A., June, 1965

Graduate:

b. West Virginia University

Morgantown, wv

Dates of Attendance: August, 1976 - August, 1977

Degree Awarded: M.A., August, 1977

Law School: *

c. West Virginia University College of Law

Morgantown, HV

Dates of Attendance: August, 1977 - May, 1980

Degree Awarded: J.D., May, 1980

* In the Fall of 1966, I was admitted to the Georgetown

University Law Center. Although I initially enrolled in the

school's night program, I withdrew almost immediately due to

the fact that I could not coordinate my work schedule with my

schedule of classes. Because I had received a partial

scholarship for my undergraduate education from the State of

Maryland, I was obligated to teach for two years and found I

could not work in the suburban Maryland public schools during

the day and attend law school in downtown Washington, D.C. at

night.

6. EBBIPYB*"^ Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and organizations,

nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or

employee since graduation from college.

a) I was employed by the Civil Rights Division of the

United States Department of Justice as a legal

researcher from October to December, 1965. I left

my job at the Justice Department to fulfill an

obligation to teach school in Maryland pursuant to

a scholarship I had received in undergraduate

school.
356

b) I was a secondary school teacher In both Maryland

and Hast Virginia.

My teaching experience included the following:

1) Junior high school teacher, Prince George's

County, Maryland, public school systsa

January 1966 - August 1967

2) High school and junior high school teacher,

Harrison County, Wast Virginia public school

systsa

Full-time: August, 1968 - June, 1970

(Leave of absence for maternity -

3/24/69-8/69)

Substitute: 1968; 1970 - 1973

3) Harrison County Catholic School System - grade

school

Substitute only: 1973-1974 and perhaps 1974 -

1975. (Records are unavailable to confirm

that these dates are accurate, but I believe

them to be so).

c) I have been vice-president and Secretary of my

husband's construction coapany. Ground Breakers,

Inc., since 1979. Ground Breakers, Inc. is located

at Armory Road, P.O. Box 1227, Clarksburg, HV

26302. My participation in this coapany has been

nominal; I aa not, and never have been, eaployad by

or actively involved in that business enterprise.

d) Summer Clerk, Steptoe t Johnson, May-August, 1979.

I also worked part-time for the firm during ay last

semester in law school, January-April, 1980.

Following ay graduation froa law school in May,

1980, I joined the law firm of Steptoe I Johnson as

an associate in the litigation group. I have

practiced continuously with the firm of Steptoe t

Johnson in its Clarksburg, Hast Virginia, office

since that tiae. I becaae a partner in January,

1985.

a) Adjunct Professor of Law, Nest Virginia University

College of Law, August, 1990 - December, 1991. My

teaching areas included appellate advocacy and

health care law.

Military Service: Have you had any ailitary service? If so,

give particulars, including the dates, branch of service,

rank or rate, serial number and type of discharge received.

No
357

Honora and Aw«rd«; List any scholarahips, fallowahlps,

honorary degraas, and honorary society Memberships that you

believe would be of interest to the Comaittee.

a. Outstanding Citizen Award, 1991 - Regional Health

Advisory Councils of Mast Virginia - awarded for my work

In educating the public about advance directives.

BailOnU Law School

Mesber, Wast Virginia Law Review. 1978-80;

Associate Editor, Voluae 83; Author: 'Substantive

and Procedural Aspects of the Right to Effective

Assistance of Counsel,' West Virginia Law Review.

Vol. 81, No. 3; Member, Moot Court Board, 1978-

80; Member, Student Ethics Coaaittee, 1977-78.

Offices and Honors: Underoraduste

President, Kyaery Board 1964-65; Member of same,

1961-65; Who's Who in American Colleges and

Universities. 1965; State of Maryland Teaching

Scholarship, 1961-65.

Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are

or have been a member and give the titles and dates of any

offices which you have held in such groups.

Member, Visiting Committee, Nest Virginia University

College of Law, 1987 - 1991. The Visiting

Committee is composed of selected members of the

bar and bench who provide information and advice

regarding academic and operational issues involving

the Collage to the Dean and also the President of

Nest Virginia University.

American Bar Association

Member, Section on Antitrust; Section on Tort and

Insurance Practice; Forum Committee on Health Care;

Litigation Section

Nest Virginia State Bar

Member, Committee on Law and Medicine; Chair -

1984-87. During my tenure as Chair, the Committee

conducted a five-year look back survey of

malpractice verdicts in Nest Virginia and provided

this data to the Bar for use by the State

Legislature which was considering tort reform

legislation at that time.
358

Chair - Ad Roc Coaaittee to Study Proposed Child

Abuae Aaendaanta to West Virginia Rules of

Evidence, 1986-87. Because of the aany juvenile

cases in which I was involved in ay practice, I

becaae interested in the rafora of the evidentiary

rules applicable to the testiaony of ainora In

child abuaa cases. In 1987 I was appointed to

chair this ad hoc comaittee which drafted proposed

aaandaanta to West Virginia'a Rules of Evidence

liberalizing the adalaaibillty of haaraay evidence

in child abuaa cases. The Coaaittaa'a proposal was

debated at length within the Bar and the iaaua

ultiaately waa briafad and submitted to the Naat

Virginia Supreme Court of Appeals. The Court,

however, never acted on the proposed aaandaanta.

Aa Chair, I waa raaponaibla for preparing and

filing the initial and raply briefs in support of

the proposed aaandaanta. The Criminal Law

committee of the Stata Bar filad briafa opposing

tha proposed aaandaanta.

Member, Special Committee on Professionalism, 1987

- Present. This Committee, whose membership

includaa attornaya and judgea from acroaa West

Virginia, has not been activa ainca 1988 - 89. It

waa organlzad to address tha Bar'a concern that

lawyers hava grown increasingly dissatisfied with

thalr profession. While activa, tha Coaalttaa did

develop a voluntary Coda of Professional Courtesy

which waa adoptad by tha Bar and disseminated to

tha membership.

Appointaa, West Virginia Law Institute, 1990 to

preaant

Member, Harrison County Bar Association - 1980 -

praaant - Treasurer, 1983

Member, Defense Trial Counsel of West Virginia

Naabar, Defense Research Institute

Member, Aaarican Association of Hoapital Attornaya

Member, National Health Lawyers Association

Naabar, Heat Virginia Society of Hoapital Attornaya

Naabar, Aaarican Society of Law and Medicine
359

10. oth«r McabTmhlpm: List all organizations to which you belong

that arc active in lobbying before public bodies. Please

list all other organizations to which you belong.

a. Organizations That Are Active In Lobbyin9 Before

Public Bodies

Guardianship Task Force of the West Virginia

Department of Health and Human Resources, 1989 -

present.

b. Other Organizations;

Member, Board of Directors, The United Hay of Harrison

County, Nest Virginia - 1985 to present; Vice

President, 1988-89; President, 1989-90; Member of

Executive Committee, 1990-present.

Member, Chamber of Commerce of Harrison County, West

Virginia

Faaily membership, Clarksburg Country Club, Clarksburg,

West Virginia

Family membership. Oral Lake Fishing Club, Bridgeport,

West Virginia

Member, Immaculate Conception Roman Catholic Church,

Clarksburg, West Virginia

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.

Unifd statw Plitrict Court fgr Oa Morthtrn Diitrlct

fi Wtit Virginia

Admitted: July, 1980

United States District Court for the Southern District

of West Virginia

Admitted: Hay, 1980

Wast Virginia Supreme Court of Appeals

Admitted: May, 1980
360

H««t Virginia Stata Circuit Courf

Admittance to the West Virginia Supreme Court

entitles the attorney the to practice in each

county in the State of Heat Virginia. These are

the circuits in which I have generally practiced.

I do not recall the dates when I first appeared.

Barbour County - 19th Judicial Circuit

Harrison County - I5th Judicial Circuit

Kanawha County - 13th Judicial Circuit

Lewis County - 26th Judicial Circuit

Marion County - 16th Judicial Circuit

Mineral County - 21st Judicial Circuit

Monongalla County - 17th Judicial Circuit

Ohio County - 1st Judicial Circuit

Randolph County - 20th Judicial Circuit

Taylor County - 19th Judicial Circuit

Upshur County - 26th Judicial Circuit

Adminiatratlve Agencies

West Virginia Health Care Cost Review Authority

There is no special admission requirement to

practice before this agency.

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 aaterlal not readily available to

the Committee. Also, please supply a copy of all

speeches by you on Issues Involving constitutional law

or legal policy. If there were press reports about the

speech, and they are readily available to you, please

supply them.

1. 'Advance Directives in West Virginia: Recent

Legislative Enactments,' a lead article to be

published in June, 1992 by the Heat Virginia Law

Review. A copy of the article is attached.
361

2. 'Substantive and Procedural Aspects of the Right to

Effective Assistance of Counsel,* Wat Virginia Law

Review. Vol. 81, No. 3 (1979).

13. Health: What is the present state of your health? List

the data of your last physical examination.

Excallant.

February 20, 1992

14. Judicial Office: State (chronologically) any judicial

officea you have held, whether such position was elected

or appointed, and a description of the jurisdiction of

each auch court.

None

15. Citationa: 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 war*

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 ware not

officially reported, please provide copies of the

opinions.

None

16. Public Office: State (chronologically) any public

offices you have held, other than judicial offices, including

the terns of service and whether such positions were elected

or appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

None
362

17. Laaal Career:

Describe chronologically your law practice and

experience after graduation from law school

including:

1. whether you served as clerk to a judge,

and if-so, the name of the judge, the

court, and the dates of the period you

were a clerk;

2. whether you practiced alone, and if so,

the addresses and dates;

3. the dates, names and addresses of law

firms or offices, companies or

governmental agencies with which you have

been connected, and the nature of your

connection with each;

a. Responses:

1. I never served as a clerk to a judge.

2. I never practiced alone.

3. Following my graduation from law school

in May, 1980, I joined the law firm of

Steptoe & Johnson as an associate in the

litigation group. I have practiced

continuously with the firm of Steptoe t

Johnson in its Clarksburg, West Virginia,

office since that time. I became a

partner in January, 1985. I helped

develop and currently head the firm's

healthcare practice group.

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?

(1) 1980 - 1983; General litigation and appellate

practice in civil and criminal courts of Hast

Virginia and federal court.

In May, 1982, I attended a ten day trial

school sponsored by the National Institute for

Trial Advocacy (NITA) at the University of North

Carolina.
363

(2) 1984 - Present: since 1984, I have defended

physicians and hospitals in malpractice cases. I

also started the firm's administrative law practice

in the area of health care law. This practice

specifically includes the representation of

hospitals and other providers, such as nursing

hones and hone health agencies, in contested case

hearings involving certificate of need or rate

applications. I have also represented hospitals

and their nedical staffs in due process hearings

resulting fron credentialing disputes, and have

drafted and reviewed nedical staff bylaws and rules

and regulations.

2. Describe your typical former clients, and

nention the areas, if any, in which you have

specialized.

My typical former clients include all types of

health care providers. The najority of these

clients have been acute care hospitals. I also

represented three physician group practices, as

well as several nursing homes and one community

nental health center.

As noted above, since 1984 ny practice has been

concentrated in the area of health care law,

including the defense of malpractice clains and

representation of clients before state

administrative agencies.

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 frequently fron 1980-

1988. Fron the Fall of 1988 until the Winter of

1991, I litigated occasionally in state and federal

court, although I did try a six (6) week

malpractice case in February-March, 1989. During

thin period I frequently litigated contested cases

before state administrative agencies and

represented nedical staffs in due process hearings

involving credentials disputes. I started

litigating frequently in circuit and federal court

again in 1991.
364

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

1) Federal courts - 10%

3) State Courts of Record - 45%

3) Other Courts (adalnlstratlve

agencies)-45%

3. What percentage of your litigation was:

(a) civil;

(b) criainal.

1) Civil - 90%

2) Criminal - 10%

State the number of cases in courts of record

you tried to verdict or judgaent (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Approximately 20. Sole counsel: 8

Chief counsel: 2

Associate Counsel: 10

This does not include approximately 30

administrative cases tried before the West

Virginia Health Care Cost Review Authority In

which I was sole counsel.

What percentage of these trials was:

(a) Jury;

(b) non-Jury.

If the administrative law practice is

included:

1) Jury - 50%

2) Non-Jury - 50%
365

18. Litigation: Describe the ten most significant litigated

•attars 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 whoa 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.

10 Most Significant Litigated Matters:

1) Boraa v. United Hospital Center, et al. - Jury

Dates of Trial: February 8, 1989 - March 24, 1989

Naee of court; Circuit Court of Harrison County, WV

Name of Judge: Honorable Frank J. Maxwell, Jr.

Co-Counsel for Defendants United Hospital Center.

Inc.. Donald Frev. M.D. and David Parks. M.D.:

Name: Herbert G. Underwood, Esquire

and

Irene M. Keeley, Esquire

Steptoe & Johnson

Address: Union National Center East,

Clarksburg, wv 26301

Telephone No.: 304-624-8000

I was active trial counsel,involved in direct and

cross-examination, and closing argument.

Plaintiff's Counsel:

Name: James Pool, Esquire and Delby Pool,

Attorney at Law

Address: 230 Court Street, Clarksburg, wv

Telephone No.: 304-623-9711
366

Counsel for Co-D<f«ndanta:

1. Name: Matthew P. Moriarity, Esqulra

Address: 1001 Lakeside Avenue, Suite 1600,

Cleveland, OH 44114-1192

Telephone No.: 216-736-8600

II

and

Dino S. Colombo, Esquire

Address: 7 Players Club Drive, Suite 200,

P.O. Box 2833, Charleston, wv

25330-2833

Telephone No.: 304-346-0901

2. Name: Joseph Wallace, Esquire

Address: P.O. Box 7, Elkins, wv 26241

Telephone No.: 304-636-1111

3. Name: Edgar A. Poe, Esquire

Address: 405 Capital Street, Suite 1007,

Charleston, wv 25330

Telephone No.: 304-345-1400

RllBrifirY of Case: This malpractice action involved a

plaintiff who, at age twenty-seven, underwent a radical

hysterectomy and pelvic lymphadenectomy for invasive

cervical cancer. She alleged that all or some of the

defendants had failed to obtain a pap smear during her

pregnancy and also failed to perform adequate surgery

after her cervical cancer was diagnosed.

The defendants contended that she had been

adequately treated, had been timely notified of the need

for follow-up pap smears and, in the face of that

information, had knowingly failed to return for further

tests and treatment despite the risk that a possible

cancer would not be treated. The jury returned a

verdict in favor of all defendants.
367

2) MahMoodian v. Unitad Hoapital Cantar - Non-jury

Injunction trial. Saa Mahaoodlan v. UHC. 404

S.E.2d 750 (H. Va. 1991).

Dataa of Trial; January 23-24, 1989

Nana of Court; Circuit Court of Harriaon County,

west Virginia

Wana of Judga; Honorabla Oanial L. McCarthy, Chief

Judga

Co-Counaal for Dafandant Unitad Hoaoital Cantar;

Kama: Herbert G. Underwood, Esquire

and

Irana M. Keeley, Attornay at Law

Staptoa t Johnson

Address: P.O. Box 2190, Clarksburg, HV

26302-2190

Telaphona No.: 304-624-8144

I was sole counaal at the dua procaaa hearing and

handled Boat of the injunction hearing. Mr. Underwood

argued the case before the Heat Virginia Supreme Court

of Appeals. Katthew J. Kullanay drafted much of the

appellate brief.

Counaal for Plaintiff;

Name: Jarald E. Jonea, Esquire

and

Kathryn X. Allen, Attorney at Law

Address: 360 Washington Ave., Clarksburg, HV

Telephone No.: 304-624-5501

^"^BnrY of Caaa; Following extenaive due process

proceedings pursuant to the Medical Staff Bylaws of

United Hospital Center between February 8, 1988 and

December 28, 1988, plaintiff'a staff privileges were

terminated by the hospital's governing board. On January

13, 1989, plaintiff filed auit in the Circuit Court of

Harrison County, Hast Virginia, seeking, among other

setters, a preliminary Injunction to retain his staff

privileges during the pendency of his antitrust action

against the Hoapital and two other defendants.

On February 1, 1989, the Circuit Court denied

plaintiff's request for injunctive relief. On April 18,

1989, however, the West Virginia Supreme Court of
368

Appeals issued a prslialnary injunction. Thereafter,

following various notions, on Novsabcr 29, 1989, the

Circuit Court entered an Order Baking the Supreme

Court's prelininary injunction pennanent. The Hospital

then appealed that decision and the West Virginia

Supreee Court of Appeals reversed the award of

injunctive relief and upheld the hospital's decision to

tersinate the physician's staff privileges. Mahaoodlan

v. UHC. 404 S.E.2d 750 (W. Va. 1991).

3) Bane v. Board of Education - Non-jury trial to the

court. Sfit Board of Education v. Starcher. 364

S.E.2d 540 (W. Va. 1987); and Bane v. Board of

Education. 343 S.E.2d 673 (H. Va. 1986).

Dates of Trial; November 8, 1985; November 16,

1985; August 28, 1986

Naee of court; Circuit Court of Nonongalia County,

West Virginia

Na»e of Judge: Honorable Larry V. Starcher

Co-Counsel for Respondent Board of Education;

Name: Herbert C. Underwood, Esquire

Irene N. Keeley, Attorney at Law

Gordon H. Copland, Esquire

Steptoe t Johnson

Address: P.O. Box 2190, Clarksburg, HV

26302-2190

Telephone No.: 304-624-8000

I tried all the evidentiary proceedings and was cocounsel in all pre-trial negotiations. All three

attorneys developed and briefed the issues for appeal,

although Mr. Copland did the majority of the writing.

Counsel for Petitioners;

1. Name: David Solomon, Esquire

and

Michael L. Solomon, Esquire

Address; P.O. Box 655, Morgantown, HV 26505

Telephone No.; 304-296-6696

and
2. Name: Regina Charon, Attorney at Law

Address: 174 Chancery Row, Morgantown, WV

2650S

Telephone No.: 304-296-8266

sniwrnn-y of case; This case Involved a dispute between

school service personnel and a board of education over

the manner in which the money raised by a special levy

should be spent to support the salaries of the service

personnel. After extensive and prolonged proceedings,

the circuit court ruled against the Board of Education.

The West Virginia Supreme Court of Appeals reversed and

upheld the Board's position in two separate opinions.

Bd. of Education v. Starcher. 343 S.E.2d 673 (H. Va.

1986); and Bane v. Bd. of Education. 364 S.E.2d 540 (W.

Va. 1987).

4) In Re: Raleiah General Hospital - (Certificate of

Need) contested case proceeding - non-jury

Adminiatrative Actencv: West Virginia Health Care

Cost Review Authority

Hearing Examiner: John Kozak, Esquire

Board of Hearings and Appeals: Priscilla Gay,

Esquire, Hearing

Officer

Dates of Trial: There were two administrative

hearings and one appeal. 1988-89.

Counsel for Raleigh General Hospital;

Name: Irene M. Keeley, Attorney at Law

Steptoe & Johnson

Address: P.O. Box 2190, Clarksburg, WV

26302-2190

Telephone No.: 304-624-8131

I was sole counsel at the administrative hearing.

Associates helped to prepare the briefings in this case.
370

Counael for Affected Partlas!

Name: G. Nicholas Casey, Jr., Esquire

Lewis, Clccarello t Freldberg

Address: P.O. Box 1746, Charleston, WV 25326

Telephone No.: 304-345-2000

And

Name: David T. Enlow, Esquire

Murphy, Xing, Enlow t Dunn

Address: 300 First Federal Plaza, Lexington,

KY 40507

Telephone No.: 606-255-3371

And

Name: Michael T. SplKer, Esquire

Goodwin t Goodwin

Address: 1500 One Valley Square, Charleston,

WV 25301

Telephone No.: 304-346-7000

SUBaarY Bt Case: This natter Involved an application by

a hospital for a certificate of need to establish a 17

bed Inpatient psychiatric unit. A competitor opposed

both that application and a second application for the

development of a 2 0-bed Inpatient psychiatric unit at

another hospital.

Although ay client's application was initially

denied, following reconsideration the adainistrative

agency granted approval. The approval was upheld on

appeal.

5) Taylor v. King

Dates of Trial: May 29-31, 1984

Na»e of Court: Circuit Court of Harrison County, WV

Na»e of Judge: Honorable Daniel L. McCarthy
371

Co-Counsel: Name: Herbert G. Underwood, Esquire

and

Irene M. Keeley,

Attorney at Law

Steptoe 6 Johnson

Address: P.O. Box 2190, Clarksburg,

WV 26302-2190

Telephone No.: 304-624-8000

I was co-counsel at trial, prepared and examined

witnesses, and handled all notions and instructions.

Counsel for Plaintiff;

Name: Clark Frame, Esquire

and

Wesley Matheney, Esquire

Address: 318 Chestnut Street, Morqantown,

WV 2650S

Telephone No.: 304-292-9429

frMBBflrY of Case: Plaintiffs' alleged that an oral

surgeon had negligently failed to biopsy a mouth

lesion two months before oral cancer was diagnosed.

Plaintiffs contended that the wife lost her lower

left jaw and floor of her mouth as a result of that

delay. The jury returned a verdict for the

defendant.

6) State v. Helmick. 386 S.E.2d 245 (W. Va. 1982)

Dates of Trial; July 19-22, 1982

BMI Pt Court: Circuit Court of Lewis County, WV

HflBt Qt Judge: Honorable Edward T. Luff (retired)

Co-Counsel: Name: Herbert G. Underwood, Esquire

and

Irene M. Keeley, Esquire

Steptoe It Johnson

Address: P.O. Box 2190, Clarksburg,

WV 26302-2190

Telephone No.: 304-624-8144
372

I assisted in this case but did not actively

examine many witnesses. I outlined testimony and

prepared instructions and examined minor witnesses. I

briefed and argued the case to the West Virginia Supreme

Court of Appeals.

State's Counsel; Name: Joseph Wagoner, Pros.

Attorney

Address: P.O. Box 838, Weston, WV 26452

Telephone No.: 304-269-1287

siiwiimrY of pnay; on June 22, 1979, a jury in Lewis

County, Nest Virginia, had convicted defendant of murder

in the first degree with a recommendation of mercy. The

conviction was set aside in State v. Helniclc. 286 S.E.2d

245 (W. va. 1982). The first trial judge then recused

himself at the request of the defendant and the case was

retried between July 19-22, 1982. Defendant was again

convicted of first degree murder and was sentenced to

life imprisonment on July 22, 1982. Defendant's

petition for appeal from his second conviction was

rejected by the West Virginia Supreme Court of Appeals

on August 8, 1991.

7) Garlow. et al. v. Mononoalia County Development

Authority. Gulf Oil Corporation and Gulf Mineral

Resources Company

Dates of Trial; September 26-29, 1983

Name of Court: Circuit Court of Monongalia County,

WV

Name of Judge: Honorable Larry V. Starcher

Co-Counsel for Defendant Gulf Oil Company:

Name; Robert G. Steele, Esquire

Irene M. Keeley, Attorney at Law

Steptoe 6 Johnson

Address: P.O. Box 2190, Clarksburg, WV

26302-2190

Telephone No.: 304-624-8141

I prepared witnesses, outlined direct testimony and

cross-examination, prepared the trial notebook and

argued instructions.
373

Counsel for Co-Dafendant:

Name: George R. Farmer, Jr., Esquire

Address: P.O. Box 619, Morgantown, wv 26507

Telephone No.: 304-292-7311

Counsel for Plaintiff;

Name: Clark B. Frame, Esquire

Address: 318 Chestnut Street, Morgantown, WV

26505

Telephone No.; 304-292-9429

and

Name: Edgar 'Hike* Helskell, Esquire

Address: P.O. Box 865, Morgantown, WV 26507

Telephone No.: 304-296-1771

Simrami-Y of Case: In 1977, a project involving a coal to

gas process developed by Gulf Oil Corporation was

proposed for Monongalia County, West Virginia. Gulf was

to participate in the project with the Governments of

the United States, West Germany and Japan. In order to

acquire a proposed site for the project. Gulf had

extended written authority to the Monongalia County

Development Authority to take options and acquire

property as a site for the project. The Authority

acquired two written options from plaintiffs.

Thereafter, the project failed to materialize and

the project was terminated. Gulf had no need or use for

the property and deeded its interest to the Development

Authority so that the Authority could pursue the

development of an industrial park. Gulf also terminated

the Development Authority's agency relationship with

Gulf. Thereafter, the Authority exercised the options

on the plaintiffs' property.

The key issue in the case was whether this action

was done as the act of the Authority and not as an agent

of Gulf. After the Garlow options had been exercised by

the Authority, numerous events occurred, and the

Authority failed to complete the transaction. The

Garlows then sued Gulf and the Authority for over $ 2

•illion.

The jury found that the Development Authority, not

Gulf, was obligated to purchase the property.
374

8) Stltaa v. Kirdnual

332 S.E.2d 872 (W. Va. 1985)

Dates of Trial: February 6 and 7, 1984

Naaa of Court: circuit Court of Harrison County,

WV

Na»c of Judaa: Honorable Robert Ziegler (deceased)

Co-Counsel: Name: Herbert G. Underwood,

Esquire

and

Irene N. Keeley,

Attorney at Law

Steptoe i Johnson

Address: P.O. Box 2190, Clarksburg,

WV 26302-2190

Telephone No.: 304-624-8144

I assisted at trial with cross-examination of

plaintiffs' witnesses and was responsible for all

discovery in the case.

Co-Counsel for Plaintiff;

name: Charles S. Morrow, Esquire

Address: 1320 Grant Building, Pittsburgh, PA

15219

Telephone No.: 412-391-2515

Name: Kenneth E. Kincaid, Esquire

Address: 519 Monongahela Building,

Norgantown, WV 26505

Telephone No.: 304-296-4545

giiM«i-Y of Case: This was the first of two trials in

which plaintiffs alleged that the treating obstetrician

negligently failed to advise of the increased

possibility that, because of plaintiff's age, she could

give birth to a child suffering froa Down's Syndrome.

The complaint alleged claims for wrongful birth and

wrongful life. The court dismissed the case on motion

for a directed verdict, and the West Virginia Supreme

Court of Appeals, after finding a cause of action for

wrongful birith, remanded for further proceedings

consistent with its decision.
375

9) OHC v. Rockefeller - Non-jury; Preliminary

injunction and declaratory judgment proceedings

Dates of Trial: April 26, 1983; May 4-6, 1983;

October 31, 1983 - November 1,

1983

Na»e of Court: U.S. District Court for the Northern

District of West Virginia

Name of Judge: Honorable Robert E. Maxwell

Co-Counsel for Plaintiff Hospitals;

1. Name: George G. Guthrie, Esquire

King, Betts and Allen

Address: P.O. Box 3394, Charleston, NV 25333

Telephone No.: 304-344-7250

and

2. Name: Robert J. O'Nell, Esquire

Spilman, Thomas, Battle t Klostermeyer

Address: Suite 1200, United Center, 500

Virginia Street, East, Charleston,

wv 25301

Telephone No.: 304-344-4081

and

3. Name: John w. Crews, Esquire

and

Martin A. DonIan, Jr., Esquire

Crews, Hancock t Dunn

Address: 700 Building, Suite 1015, 700 East

Main Street, Richmond, VA 23219-

2693

Telephone No.:

and

4. Name: Herbert G. Underwood, Esquire

and

Irene M. Keeley, Attorney at Law

Steptoe k Johnson

Address: P.O. Box 2190, Clarksburg, wv

26302-2190
376

Telephone No.: 304-624-8000

and

Name: Thomas W. Bayley, Esquire

Address: P.O. Box 2135, Parkersburg, wv 26101

Telephone No.: 304-442-6559

6, Name: John T. Madden, II, Esquire

Address: P.O. Box 511, Moundsville, WV

26041

Telephone No.: 304-845-1171

and

7. Name: Joseph A. Wallace, Esquire

Wallace 4 Ross

Address: P.O. Box 7, Elklns, wv 26241

Telephone No.: 304-636-1111

I attended the trial of this aatter and prepared

and examined UHC's witnesses. Messrs. O'Neil and Donlan

were lead counsel. I participated in developing the

theory of the case, trial strategy and reviewed the 4th

Circuit briefing.

Counsel for State Defendants:

Name: William F. Carroll, Esquire

Office of the Attorney General

Address: 26-E, State Capitol Building,

Charleston, wv 25305

Telephone No.: 304-348-7021

Counsel for Intervenors Wise | Chace;

Naae: Deborah Lewis Rodecker

General Counsel

West Virginia Board of Medicine

Address: 101 Dee Drive, Charleston, WV 25311

Telephone No.: 304-348-2921
377

CIIMB^I-Y of caae: Plaintiffs sought and obtained a

preliminary injunction against the defendants to prevent

then from enforcing H. Va. Code S 16-29-4, which was

enacted on March 12, 198 3, and froze hospital rates,

including rates charged to Medicare and Medicald

patients, retroactive to February 1, 1983.

Thereafter, on December 30, 1983, the District

Court entered an order declaring S 4 to be

unconstitutional on the grounds that it violated various

federal Medicare and Medicald statutes and thereby the

Supremacy Clause of the United States Constitution. The

defendants appealed the decision to the United States

Court of Appeals for the Fourth Circuit which reversed

the District Court in United Hospital Center v.

Richardson. 757 F.2d 1445 (4th Cir. 1985). The basis

for the reversal was that a revised version of the

legislative rules implementing S 4's freeze specifically

excluded the Medicare and Medicald programs from state

regulation and cured any statutory overbreadth.

10) Rubv J. Siron and John P. Siron. Jr. v. Jeffrev H.

Poling v. Sisters of the Pallotine Missionary

Society, dba St. Joseph Hospital

Dates of Trial; April 4 -7, 1984

Name of court: Circuit Court of Lewis County, WV

Name of Judge; Honorable William L. Fury (retired)

120 West Second Street, Weston, WV

26452; 304-269-2133

Counsel for Defendant Sisters of the Pallotine

Missionary Society dba St. Joseph's Hospital:

Name: Irene M. Keeley, Attorney at Law

Steptoe i Johnson

Address: P.O. Box 2190, Clarksburg, wv

26302-2190

Telephone No.; 304-624-8131

Sole trial counsel.

Counsel for Plaintiffs:

Name: Richard w. Cardot, Esquire

Address: P.O. Drawer 1729, EUcins, wv 26241

Telephone No.: 304-636-1424
378

Counsel for Co-Defendant: ;

Name: J. Michael McDonald, Esquire

McNeer, Highland i McMunn

Address: Empire Bank Building, Clarksburg, v:

26301

Telephone No.: 304-623-6636

and

Name: John Lewis Marks, Jr., Esquire

Address: 360 Lee Avenue, Clarksburg, HV 26301

Telephone No.: 304-624-4004

fiimnnarY of Case: As a result of an automobile accident,

plaintiff received three blood transfusions from which

she contracted Non A, Non B hepatitis. She and her

husband filed suit seeking damages from defendant driver

for the accident and from the defendant hospital for the

alleged negligent operation of its blood bank.

After a four day trial the jury returned a verdict

for the plaintiffs. Ten percent of the fault was

allocated to the hospital which paid $500.00.

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.)

Lcoal activities that did not involve litigation: I have

drafted numerous medical staff bylaws for hospital client*

and regularly advise health care clients on an array of

issues including risk management, reimbursement and physician

recruitment.

Since 1989, I have served as a member of the

Guardianship Task Force of the West Virginia Department of

Health and Human Resources. The Guardianship Task Force is a

volunteer group that is concerned about guardianship

issues/abuses in West Virginia. Its members include senior

citizens, health department employees, attorneys, physicians

and advocates for the mentally and physically disabled.

Currently, the Task Force is working on legislation to reform
379

West Virginia's guardianship laws along the lines of the

Uniform Probate Code model.

In 1989-90, I was chair of the subcommittee of the Task

Force that drafted legislation regarding health care powers

of attorney and living wills. In that capacity, I testified

before several committees of our state legislature in support

of this legislation. I was not a paid lobbyist. The

proposed legislation was enacted at H. Va. Code S 16-30A-1 et

££3- ('The Medical Power of Attorney Act'); N. Va. Code S 16-

30-1 fi£ sea- (the 1991 amendments to "The Natural Death

Act').

Since the passage of the West Virginia Medical Power of

Attorney Act in 1990, I have addressed and counselled

numerous professional and community groups throughout West

Virginia, including local bar groups and medical societies,

senior citizens, church and civic organizations, as well as

families of patients in nursing hones and hospitals,

regarding the use of advance directives. I also appear in a

videotape produced by the Department of Health and Human

Resources in which I discuss the Medical Power of Attorney.

The tape has been disseminated to many hospitals and nursing

homes throughout the state. All of this activity has been

pro bono.

I have also lectured on the subject of advance

directives at two CLE courses sponsored by the West Virginia

State Bar and have written a lead article on the subject for

the West Virginia Law Review.

In 1991, I worked with the ABA Commissions on Legal

Problems of the Elderly and the Mentally Disabled which cosponsored a training seminar entitled 'Training on

Alternatives to Guardianship*. I was one of the presenters

at that seminar which was held on May 13, 1991 in Charleston,

West Virginia.

In 1984, I was appointed Chair of the State Bar's

Committee on Law and Medicine, a position I held until 1987.

This Coamittee's membership includes plaintiff and defense

attorneys who concentrate their practices in the area of

•edical malpractice and health care. As Chair in 1985, I

directed a statewide survey of malpractice verdicts. The Bar

then provided the information compiled by the Committee to

the Legislature which was considering various tort reform

proposals.

In 1986-87, I chaired an Ad Hoc Committee of the State

Bar which proposed certain amendments to the West Virginia

Rules of Evidence applicable to child abuse cases.
380

Significant litigation which did not proareaa to trial: I

have been involved in numerous medical and hospital

malpractice cases which have settled prior to trial. In

particular, I was involved in several so-called 'bad baby'

cases in which either physicians or obstetrical nurses were

alleged to have deviated from the standard of care in the

birth of an asphyxiated/anoxic infant.

For a period of approximately 10 years, I was appointed to

represent criminal defendants in the West Virginia state

court system. A majority of these cases ended in plea

agreements.

Administrative Litigation; I have tried numerous certificate

of need and hospital rate cases before the West Virginia

Health Care Cost Review Authority, the administrative agency

in West Virginia charged with regulating hospitals. These

cases have all involved extensive expert testimony in the

areas of health planning and health care finance.

I have also represented medical staff peer review

committees in due process hearings.
381

IZ. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List «ources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncoapleted 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.

waum J wmaM

1. Pension Plan:

Steptoe i Johnson's pension plan is a 401(X)

self-directed plan which is independently

administered by the Union National Bank of

Clarksburg, West Virginia, Trustee and can be

converted to an IRA.

2. Capital Account; My Steptoe k Johnson Capital

Account can be returned to me in a lump SUM

payment immediately upon my withdrawal from

the partnership of Steptoe t Johnson.

3. RDtD: My retirement, death and disability

(RDfcD) benefit also can be distributed to me

in a lump sum upon my withdrawal from the

partnership of Steptoe ( Johnson.

4. Severance Pay; Any income due to me from the

partnership will be distributed in a lump sum

upon my withdrawal from the partnership of

Steptoe t Johnson.

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.

a. Steptoe | Johnson;

(1) When I resign from the partnership of Steptoe t

Johnson, any financial or other relationship with

the firm will be terminated. I will decline to

hear any matter in which Steptoe t Johnson was
382

involved as of the date of my withdrawal from the

fin. These cases can be identified by a computer

printout of matters being handled by the firm as of

the date of my withdrawal.

(2) My pension plan at Steptoe k Johnson is a selfdirected plan. Union National Bank of Clarksburg

is the trustee. The Bank is a client of Steptoe 6

Johnson. The plan can be converted to an IRA if

leaving it with the Union National Bank would

create an appearance of impropriety.

(3) All financial arrangements with Steptoe i Johnson

will be severed through a lump sum payout of any

accrued compensation or benefits.

b. Ground Breakers. Inc.:

(1) I will not sit on any case involving either my

husband's construction company or any company or

individual with whom his firm does business.

(3) I will withdraw from and terminate my association

with my husband's company, Ground Breakers, Inc. I

have never been actively involved in the company,

and the titles of Vice-President and Secretary have

been nominal only.

I will resign from the Board of Directors of the United

Way of Harrison County, Inc. and also from the

Guardianship Task Force of the West Virginia Department

of Health and Human Resources.

Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during your

service with the court? if so, explain.

No

List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

Sec copy of 'Financial Disclosure Report,* attached.
383

Please conplete the attached financial net worth statement In

detail (Add schedules as called for).

See attached Net Worth Statement.

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign,

your title and responsibilities.

1. 1984 - Campaign manager and financial agent for the

successful campaign of Justice Richard Neely

for re-election to the Nest Virginia Supreme

Court of Appeals. I organized all

fundraising, filed all financial inforaation

on behalf of the campaign and personally

contributed to the campaign.

1990 - Member of a comnittee supporting the reelection of Senator John D. Rockefeller, IV to

the United States Senate. I helped organize a

fundraiser and personally contributed to the

caapaign.

1992 - Organized a fundraiser for Cleve Benedict,

candidate for Governor and contributed to his

canpaign.

III. GENERAL (PUBLIC)

1. An ethical consideration under Canon 2 of the Aaerican 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 aaount of time devoted to each.

1. Since 1989, I have volunteered between 500 - 600 hours

annually in support of the Guardianship Task Force's

legislative agenda and public education efforts. I

regularly advise groups of senior citizens and

individuals who are given my name by the Bar or the

Department of Health and Hunan Resources about the use

of advance directives. I will speak at nursing hoses,

public aeetings or advise soaeone who coaes to ay

office.
I have served on the Board of Directors, the Allocations

Committee, and the Executive Conittee of the United way

of Harrison County. In this position I have worked to

increase local funding for agencies serving women in

crisis, the homeless, the addicted as well as the

agencies traditionally funded by United Nays, such as

the VMCA, the YWCA and the Red Cross. My United Way

activities currently involve approxisately 50-75 hours a

year; when I served as Vice President and President in

1988-90, I volunteered between 200-250 hours.

The American Bar Association's Comoentary to its Code of

Judicial Conduct states that it is Inappropriate for a judge

to hold aembership 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?

Not applicable. I do not belong to any such

organization.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts? If

so, did it recommend your nomination? Please describe your

experience In the entire judicial selection process, from

beginning to end (including the circumstances which led to

your nomination and interviews in which you participated).

There is no judicial selection commission in West

Virginia.

I submitted my name for consideration for appointment to the

newly created federal judgeship in the Northern District of

West Virginia in December, 1990. I was Interviewed by the

Department of Justice in January, 1991. In late September,

1991, I was notified by the Office of the Attorney General

that I would move forward in the selection process. An FBI

investigation of my background was undertaken. I completed a

personal questionnaire for both the Department of Justice and

the American Bar Association. In mid-December, 1991, I was

interviewed by a member of the ABA's Standing Committee on

the Federal Judiciary.

The Department of Justice received the ABA'S evaluation in

late February or early March, 1992. I understand that my

name was then forwarded by the Department of Justice to the

White House Counsel's office shortly thereafter. On March

31, 1992, President Bush called to advise me that he intended

to nominate me for appointment as the new district court
385

judge In the Northern District of Heat Virginia. I

understand that the official date of ay nomination is April

1, 1992.

Haa anyone Involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a Banner 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 criticlsa

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

bean 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 cornerstone of constitutional law is that ours is a

government of separate but co-equal branches which exercise

the limited powers granted to them by the Constitution.

Although it is left to the judlciairy to answer questions
386

respecting the extent of the powers actually granted to the

three branches of government, the judiciary's power to do so

is United by what was intended by the Constitution.

As Chief Justice Marshall admonished, the Constitution was

'intended to endure for ages to come.' However, sound

construction of the Constitution does not empower the federal

courts to micro-manage the social problems our country faces.

The fundamental principles and goals of the Constitution, as

well as the relevant statutes and judicial opinions, ought to

guide judicial resolution of specific cases or controversies

that come before the federal courts.

Judges are bound to be impartial and disinterested arbiters,

focusing on the commands of the Constitution and adhering to

precedent, without regard to a desire to block or achieve

social change, when a court settles a constitutional dispute

regarding the rights of individuals or the relationship among

different branches of government, resolution of that

grievance cannot fail to affect a broad class. Its decision,

however, should be made in the context of the specific rights

of the litigants.
387

3FS; I FINANCIAL DISCLOSURE REPORT ploIB^Cj** I (• O.S.C.A. tfy. •. 11101-1111

E flnt, BMMl* islUAl)

CEEUT. mm M. OMITED STATES DIST»1CT COOTT

KXTHCMi DISTUCT Or HIST

TUGIMIA

4/2/92

0*110) STATES DISTUCT COBK JOTM

tOfll Juuary 1. 1991 cc

lurch 31, 1992

STEPTOE 4 JOHRSOU

r.o. BOX 2190, omoa um SUILDIMG

CIJJJCSBOXC, wy 26M2-2190

ofrowXAKT mmsi TW

J* mlm ri*

I. POSTDONS. (lUpaniai

tasnioa

ottf. xx fp.l-tol JattncOom.)

NAME OF OROAWZA-nON/ENTnrV

• NONE Ml

P«rin«r Sfpco* 4 Johpion. AtCQro«T« it Law

Co-£x«cucor

Co-Tru«tit

t«c«t« of Otorf Jtckioa (d«c«wd 12/30/91)

Tmic in !«h«l£ of Miry Jacluon (Eictbliihad by will

of G«ort< J«ck<oa)

II. AGREEMENTS. cR«(»f^i i"4***1"

1 o^ « P >•'<" lM'nKD0»)

DATC PARTIES AND TCRMS

I

I

I NONI |M IMIMU •• ii.iimi

I1U NO»WNVESTME^fnNCOME (itapoi*» tadMri-i ud IJO«« «. ». ».u o< i»m*».)

•

DATE

(Hmni* o*n

aotntcg AND TYre naoas INCOME

(jO«B. •M ipOIIM'l)

^..rn. 4 j^n.m->.,t..r.ht. IMMI - l/l/92-3/31/92(Edt» 37.1H10.M

a—| 4 Joh..<«-y«rtB»r.htD HMM - 1991 » W.»4,W

St«Bto« 4 JohMOB-FirtMnhlp IBCOM* - 1990

WVU Coll«l« of LMr-T»«chln« S«l«rT - 1991

••S«« Act«ch«d Schddul***

t 13t.926.00

s

7.200.00
388

FINANCIAL DISCLOSURE REPORT BRSE-KB^

II •.I.C.I. If. •. uui-iui

KEELEY, IRENE M.

>- 0«r« « nummi— 1- aau at •ijiit

4/2/9J

t. ftua |AcU«l« Itl imtmm UAl««t« aeU** ar ». >v~x m. [Ma .Kmn.u IT^I 4. 111111111 MCM

IUU*1 1 _ riasi

7. ma in m oiri« MUM*

MTORTANT NOTES. 7kr' taanawu ocumyiMynf Ito form nut kc fotlowtd. CMftau all pm,

POSITIONS. (RepotUnf

PosmoN

•

osly; s« pp. 74 of louracUoat.)

NAME OF QROANlZATlOWBmry

II. AGREEMENTS. (Repanli| iidMdul attf. lae p. S-9 o( lauracUou.)

EAIE PARTIES ftW? TERM? D NONE (B« n^MXaM*

III. NON-INVESTMENT INCOME (Repontef MMdul ud ipow w ^ 9.U of bmaiOM.)

CAIE aOVRCEAWBTTTE qRCSg INCOME

(Hoaonril oaly) Oaall, KM ipoioci)

a T*»l« II II —I UMB»|

«V0 CoU««t a( Uv - S.liry - UW t 3.MO.00

i

Ground Srxkan. Inc. - SnUrT - 1*11 1 (S)

1

Ground Irukort, Inc. - S«l«ry - 1*90 t (S)

<

1
FINANCIAL DBCLOSUM RETORT (oo«-4)

KZELR. IUII H. */2/»2

(V. REIMBURSEMENTS and GIFTS aportation, lodging, food, entertainment

V. OTHER GIFTS.

NON1 {•• MM I^MIMll flfU)

nrnn

•

VALPt

VI UABILTHES. SBIUIIbb llirlltll a««.rfl>««M »< I | I I XllniB«a»^». ||l III . f»«« rM»

•

VALPI TOPT

C1*T et IfComtT (81

Faraooal Guarmncor of

Cor»or«t« Lin* of Cfdlt

trnttf jMtgMl Bok (»

osrtc ioa4tM EaMB m

ForoooAl Cuartacor of

>n.,;n^nt r;;?.n^nt

P«rtoaal Guaraocor of Corporaca Cooarruetlotl OflrfllMr'* *• »'—«»' «"-<•

jraca

**cba abora ara all coaclofont

OCMBI f • 111,800 m mm ' *K-ns.aat t» na^oo * * wa^aw la aiaa.aaa »-i ^ o • fl.m «» UW.M* • . Bao,an «• n.aa«,aa t - MM «M n,aao,aao i.;.'^.
FINANCIAL DISCLOSURE REPORT (conlM)

KIELCT, IXm H.

VII. INVESTMENTS and TRUSTS - income, value, transactions r • - - r

TIT

%

-m—

T:s.r

TTT

«

"W

»

-orrass

•

NONE («•

"Jniou NaclonAl Bank

CUrk»bur». WV .lau ^^rHElEi; 'Union N«clon«i 8«nk

Clarksburg. WV (J)

1CBiT at Harrison County

CUrksfaur^ WV (J)

*Unlon National Bank

Clarkaburg. W (Jl

>Noca racalvabla

Ground Sraaktrs Inc. (S)

'3 sh. Ground Braakars, Inc

Co—on Stock t£I Dlv. ^^Q".

T265 sh CB4T Financial Corp.

Co^wn Stock EXEMT

'10 sb US Air Group Inc.

Comon Stock (S)

*10 sh Southvtstam Public

Srvc. COBBB. Comnon Stock (S

10 LOO sh AlUghtny Pow«r Sys

Co^aon Stock (S)

11 LOO sh Carolina Pcwar 4

Lithe Co—on Stock (S)

LOO ah Chavron Co

^p S^ock r^

orpo

30 ih Conaolldactd Nacura

flil Co—on Stock (S)

Dl*

Exmr

141000 ah Duqussoa Light

Co—OB Stock. iSL. Dlv aast. 1 200 ih Exxon

CflMgo Scock (S) LXZMPu

100 Ih Illlnoll Povor

7?Mlll Jtock fS)

" 300 ih Hrlan Ub>

on Scock (S)

8 ah Taxaco Inc.

Varlbla Stock (S)

14400 ah Taxaco Inc.

on Stock (S)

"ISTT Harrlll I/mch IRA —TD-Wa«u w m. wo

air^'j'.iitrai'" rag.arJ'uiSiia

£gt'aj-''j?is;l

• . . •
391

FINANCIAL DISCLOSURE REPORT (ajoid) KZELR. lUNI H. 4/2/92

VII. INVESTMENTS and TRUSTS - Income, value, transactions, ^w ikM o< —I M> w t*-t> 1 liimmlm)

£ jn3Ei tiw*

iiS^JP

'ffii^snsj

TTT

m

•m—

•err

nr

B5I

»Bta^

TIT

r^C - ;• . -1»-

tlar

=T—ITSK

WI• i55)

TSTHSSS*-

•

NONE iW«rTlll t-Tttch I»A (S) EXTMr

TKT:

Pann Mutual IRA Dlv.

Paso Mutual IRA (S)

Inc.

PH.

'Scaptoa & Jobnaon

40lfc »acira»anc PI

lac.

Dlv.

'Scapcoa & Jobnaon Pcrahp

Caatt.l Acco Exrar

'laaiax 19)3-4 OU/Gaa

LtmlcaJ Pcrahp Intaraac (S)

Workln

Inc. Exmr

IMZS 1986-4 011/Saa

Limlcad Pcrahp Incaraac (J)

Workln

Inc tratr

•laaiax 1986-B Oil/Saa

UlalS' M-t"!d Pcrahpt Incaraac (J)

•taalaz 1987-4 Oll/Gaa

r l.fr.H ftr.hn Incaraac (J)

Workln

iai EIDfP-

^fi

Workln

Int.

Cash Surrandar Valua

Morthiaaaacaro Ufa loa. (S)

» Eu Ea

Exmr

" iaal Eacaca-Shop 4 Taca

Cl«rk»buc«, HV (Jl Exmr

u

1/12 Incaraac In Houaa

Haahtoaton D:c. in

u

Taa placaa of aarth

•oyloM aqulp—nc ratical (S) txBfr

a-ti,oai «a ».»«•

ja« aa. ai,, ^ : S«-a »«i~ ;X.v • •••'"••,•*^",—J?^

e^i.Hi <• f.aaa- ;- a-u.aai t» lujaa
392

FTNAIXCIAL DISCLOSURE RETORT (conl'd)

KIELEY. UBR M.

VIII. ADOmONAL INFORMATION or EXPLANATIONS, MMIM*

f.rt III - !lon-InTl«CMne j—l - Lin« 1 lento. | Inhn..• p.-^.r.hlf .^ l/l/«7--|/

Th« rtporttm p«r«on'i dtiirlbuttn ihjr« of ojrcinrihlD tncoaj far rh« n«ri<vil

i/l/92-3/31/»2 tro« Se.pco. 4 John.on H .n MCIMC Hn.1 d.r.r»i».rt^ <.

•*dt| bT th« pmrcoTihlp ac yr »nd.

Part VI - Ll*blllEt«i - Rtporclng DTion'i apoun 1« Priiid«nc and iQla-mckholdar of

Ground Braakan, Inc. ( a UV Corporaclon). Spouia hai pTiooally marancatd ch«

daacrlbad bank obllgatlona and conatrMCtlon parformanca and pay»aQC bondi of

Ground iraakara. Inc.

DC CERTIFICATION.

la ooapUtaoe with the provuiooi of 28 VS.C. | 4S5 aatf of Advttory Opuuoa So. 57 of the Advoory Cnmmirw 01

Jadkul AaMbs, tDd to tte bat of my tncmlodj« at the time after reaaooaMe taquxy, I dM aot pertonn ujr adjadicaioo

FoacOoa ia any Uapoon during the period covered by thif report m which I. mj qwe. or mf BUDOT or depeadeat chfldrer

had a flaapoal iBiercat. « defined in Caaoo 3C<3)(c). ia the owcomt of such UtigaihM.

I ceru/y that all iafomuboo pvca ibove (ladudiag m/ormjuoo penainm| to my tpouM aad minor or dependeat chddrea.

if urf) it aocarate, troc, aad compkie to the bai of my kaowled|e aad beUet tad thai *ny taJorBaOoa aot reported «w

withheld beauK it mei applicable uatuiory provitioBS permiiung aoaHliKloaare.

t fhrthcr certify that aaraed income from outside employmem aad hoaorarla aad the •coepiaaoe of gtfb which have beea

rcponad are ia compliance with the provutou of 5 U.S.CA. app. 7, I 501 aL ie^. 5 U.S.C | 7353 aad JudidaJ Coofaence

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS RETORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S U.S.CA. Alt. «, I UK AND 1« U-S.C I 1001.)

FIUNO INSTIXUCnONS:

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.
FINANCIAL STATEMENT

NET WORTH

March 31, 1992

John P., Ill and Irene M. Kaalcy

Provide a compltlt, cumnt financial ntt worth ttaicmtnl which iltmizts In dttail all autls (includinf bank

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your household.

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394

JOHN P., Ill •nd Irint M. Keelev

Supplcmcncal Schadulit - N«c Worth

M«rch 31, 1992

Lllt«d StcurlCltl Hjrttt Value

26S ih CBiT Financial Corporation t 3,975

10 ah US Air Croup 160

10 ah Southvaacarn Public Sarvica 130

100 ah Allaghany Povar Syatagi 4,175

100 ah Carolina Povar 4 Ll|ht 5,275

100 ah Chavron Corporation 6,400

200 ah Conaolldacad Matural Caa 7,400

1000 ah Duquaaoa Light 28.500

200 ah Exxon Corporation 10,950

100 ah Illlnola Povar Coapany 2,087

300 ah Mylan Laba 11,362

8 ah Taxaco locorporatad Varlabla 421

400 ah Taxaco Incorporatad 22,850

t 103.705

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Nota racalvabla dua trom Ground Braakara, Inc.

(A WV Corporation aolaly owned by John P. Kaalay, III) s 371,000.00

Raal Eataca Ovnad

Raaldanca, Clarksburg WV t 250,000

Raaldanca, Daap Craak MD 700,000

Coaoaarclal Proparty. Clarkaburg WV 250.000

j 1,200,000

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Ground Braakara, Inc., vlth a Daad of Truat on our paraooal raaldanca.

Tbara la no oucacandloi balanca on tha Una of cradlt ac thia CIM.

John P. taalay. III, huaband, la tha paraonal guarantor of Ground

Braakara, lac.'a cooatructlon parforaanca and payvant bonda.

John P. Caalay, III, huaband, la tha paraonal quarancor of Ground

Braakara, Inc.'a aqulpaanc Inatallaanc obligation ac Eaplra National
PAGE 3

395

John P., Ill And Ircn* M. Kceley

Supplenencal Schedules - Net Uorch

March 31, 1992

R«»l Estate Mortg«g«» P«y«bli Balance at 3/31/92

Mortgage Note Payable: CB4T of Harrison County;

original aaount of 5400,000; payable In quarterly

installaents of 120,000 plus interest at New York

priac; secured by real estate at Deep Creek, MD. f 280,000

Mortgage Note Payable: John L. Murphy; original

aaount of $100,000; payable in quarterly installments of $5,000 plus Interest at 8Z; secured by

real estate at Deep Creek, MD. 70,000

CONFIRMATION HEARING ON HON. NORMAN H.

STAHL, EDUARDO C. ROBRENO, GORDON J.

QUIST, AND THOMAS K. MOORE

THURSDAY. JUNE 18. 1992

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 2:08 p.m., in room SD628, Dirksen Senate Office Building, Hon. Howard M. Metzenbaum,

presiding.

Present: Senators Metzenbaum, Thurmond, and Specter.

OPENING STATEMENT OF SENATOR METZENBAUM

Senator METZENBAUM. The hearing will come to order.

This afternoon the Judiciary Committee will conduct hearings on

four judicial nominees: Judge Norman H. Stahl of New Hampshire,

a judge for the Court of Appeals for the First Circuit; Mr. Thomas

Moore for the Virgin Islands; Mr. Eduardo Robreno for the eastern

district of Pennsylvania; and Mr. Gordon Quist for the western district of Michigan.

As is customary, we will hear first from Senators who wish to

introduce nominees to the committee, but before we turn to them,

let me state for the record that each nominee has completed a detailed questionnaire on his or her qualifications, experience, finances, and philosophy.

The portions of the questionnaire available to the public will be

printed in the record of this hearing. We will also keep the record

open for a limited time just in case members of the committee

would like to submit written questions. And of course we will place

in the record the full introductory statements of home State Senators and Congresspersons.

We have a number of very distinguished Senators with us today

and let us begin with them. I believe I have a list here and I am

not sure how the order was made up, but it was handed to me by

the staff. I think what we will do is have the Senators present their

nominees in order that the Senators may then leave for other

areas of their responsibilities and then from there, the chair will

have some inquiry of each of the nominees.

I know that Senator Riegle had hoped to be here, but he is presenting a bill on the floor of the Senate. Senator Carl Levin, I did

see him here.

Senator Levin, would you care to present your nominee?

(397)
398

STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE

STATE OF MICHIGAN

Senator LEVIN. Mr. Chairman. Thank you.

Congressman Henry and Congressman Upton are also here and

perhaps they could join me briefly—Paul Henry and Fred Upton. I

am pleased to be here this afternoon, Mr. Chairman, to introduce

Gordon Quist to the Judiciary Committee to recommend his confirmation to you. Don Riegle is on the floor managing a bill this afternoon or else he would have been here as well and he would like

some remarks to be made part of the record.

Senator METZENBAUM. Whatever his remarks are will be included in the record.

[The prepared statement of Senator Riegle follows:]
1

MR. RIEGLE. Mr. Chairman, I am pleaaSd to be here before ttecom|bittee to

introduce Gordon Quist who has been nominated to be a Judge for the U.S.

District Court for the Western District of Michigan.

The seat that Gordon Quist has been nominated to fill was recently added to

the western district and is an important step toward improving the quality of

our court system in my state. I appreciate the work the you and the

Committee have done to increase the number ofjudgeships so that our courts

are able to handle the growing number and complexity of the cases before

them.

The nominee before you this afternoon has spent most of his life in western

Michigan, in and around the Grand Rapids area. He has made a mark in his

community, and I have heard from a number of people from Michigan who

strongly support his nomination. Those who I talked to and heard from

thought highly of his ability and integrity and 1 believe that speaks well for

the nominee.

As I mentioned, Mr. Quist has lived in Michigan for most of his life and

received his undergraduate education at two of Michigan's fine colleges:

beginning in Grand Rapids at Calvin College, then transferring to Michigan
400

2

State, where he received his undergraduate degree. His law degree came

from George Washington University here in Washington, where he graduated

with honors.

After a short period in which he practiced law in Washington and Chicago,

Gordon Quist returned to his hometown of Grand Rapids where he has

worked for the well-known firm of Miller, Johnson, Snell & Cummiskey for

twenty-five years. For the past five years, he has been the managing partner

of the firm.

The bulk of his legal practice has been in business and in the commercial

litigation field. In his practice, he has represented many of Michigan's moet

respected companies in a range of matters.

Although most of his legal experience has been in civil cases, he has had some

experience with criminal matters. That experience will be to his benefit

should his nomination be approved by this Committee and the Senate.

Again, thank you for giving me the opportunity to introduce Gordon Quist to

the Committee. His nomination has engendered support from a wide range of

the Michigan legal community and I urge the Committee to give him every

possible consideration.
401

Senator LEVIN. Also, Mr. Quist's wife, Jane, is here this afternoon and I would like to introduce her as well to the committee.

Senator METZENBAUM. Please do. Are there any other members

of your family with you?

Mr. QUIST. I have five children that are not here.

Senator METZENBAUM. They are not here.

Mr. QUIST. They all have careers of their own. They are busy

working.

Senator LEVIN. They are busy supporting the old man is what it

amounts to. We are delighted with this appointment, and to be

very brief, I did not know Mr. Quist until he was nominated. After

he was nominated, we spent some time in my office and I concur

with the many recommendations which we received supporting

him from a broad cross-section of the west Michigan community.

Just to very briefly read from two of these, Rhett Pinsky who I

know very well, a lawyer in Grand Rapids, said it this way. Mr.

Quist has "the experience and intellectual ability to handle the job.

More importantly, he has a judicial temperament and an innate

sense of fairness. He treats people with dignity and respect." He is

a well-known, democratic lawyer in Grand Rapids.

And also, there is an interesting letter from Herbert Rubin

which I would like to make part of the record because it is so long.

He is a New York lawyer who is involved in the screening of judicial candidates for the Governor of New York and the mayor of

New York. I am not sure exactly, I guess he had litigation against

Mr. Quist and they met that way. He did not screen Mr. Quist.

This is based on litigation where he was on the other side and it is

a very, very glowing letter about the characteristics, the patience,

the judicial temperament that Mr. Quist has.

I would like his letter, as well as Mr. Pinsky's and a letter from

Prof. William Hutchinson at Duke University to be made part of

the record, and just simply say that I fully support this nomination

and hope he is promptly confirmed.

[The aforementioned letters follow:]
402

PINSKY, SMITH. FAYETTE & HULSWIT

ATTORNEYS AT LAW

IM5«tKAV TOWER ^^21 tM 9, If,

GRAND RAPIDS. UICHICAN 49)0) "" f* Wj

(616)4)1-8496

H RMITTMNSKY A llOMRT KUlNtM

tOWARU (NtD( M SMITH

MICHACL I. MVl n t

UAVIPE HULSWIT. JR

PAUbIA K aRATT

1914 IW7

April 23, 1992

Senator Carl Levin

459 Russell Senate Office Bldg.

Washington, D.C. 20510-2202

Dear Senator Levini

I was delighted to learn that Gordon Quiat has been

nominated by President Bush to be a United States District Judge

for the Western District of Michigan. I understand, however,

that this being a political year his confirmation may encounter

obstacles which otherwise would not exist. I hope this will not

be the case.

I have known Mr. Quiat for approximately 25 years, both as

an advocate and friend. It would be unfortunate if he were not

confirmed. He has the experience and intellectual ability to

handle the job. More importantly, he has a judicial temperament

and an innate sense of fairneas. He treats people with dignity

and reapect. He will make a fine federal judge.

HRP/mm
403

Duke University

School of Law

mm

F. milwm Hutchmson Tdephau (919) 684-5358

Saiar Udtm in IMW Facsimile (919) 684-3417

Tda 80282

KpriX 27, 1992 "?>

The Honorable Donald W. Rlegle, Jr. "^

SD 105 Dirksen Bldg. rf>

Washington, D.C. 20510 ' ,^

Dear Don:

I understand that Gordon Qulst of Grand Rapids has been

noalnated by the President to fill the Federal District court

vacancy resulting from Doug Hlllnan's change of status to Senior

Judge. I write to support Gordon's nomination and to tell you why

I do so.

I have known Gordon for many years in many capacities. I am

sure you are already familiar with his background, education, and

professional experience. In my view, he is a very talented, able

and articulate lawyer of wide experience, particularly as a

litigator. These qualifications alone would make him a wellqualified nominee; but, in addition, he has qualities of

independence of judgment, community interests, compassion, and

dedication to the rights of others that would, I believe, make him

an outstanding federal judge. I mention two personal experiences

as illustrative.

In 1971, I organized and chaired a committee of lawyers and

laymen who sought to establish a law school in Grand Rapids. This

was a bi-partlsan group, motivated by the belief that a Grand

Rapids law school would be a useful addition to the city's

educational resources, and, in particular, a positive Influence in

attracting minority professionals to the community. Although the

project ultlmatedly aborted in the political turmoil of the

Michigan Legislature, I still recall Gordon's energetic and

enthusiastic participation in the committee's work. He was

perceptive and supportive, agreeing that a law school would be an

Important addition to the educational opportunities in Grand

Rapids, particularly for minorities.

Nearly 20 years later, I learned that Gordon had agreed to

serve as counsel, pro bono, for Robert Lee Shell, an indigent

defendant awaiting execution in Mississippi in Shell's appeal to

the United States Supreme Court from his death sentence. Gordon

asked me to review some of the files in the case, and I did so.

Gordon acted, I know, not out of sympathy for the defendant in this
404

The Honorable Donald w. Riegle, Jr.

April 27, 1992

Page 2

difficult and unpopular case, but simply because he believed so

strongly in the rule of law and the importance of a fair trial in

our society. Shell v. Mississippi was thereafter remanded by the

United States Supreme Court to the Supreme Court of Mississippi for

reconsideration of Shell's death sentence. The Mississippi Supreme

Court, in turn, has remanded the case to the trial court for resentencing.

I believe Gordon Quist would make a fine federal judge. I

hope that the Senate agrees.

I still remember the very pleasant afternoon I spent with you

in your office in Washington in the spring of 1979 when you were

interviewing candidates for possible appointment to the federal

bench. You were kind to allow me so much time in the midst of your

busy schedule, and I did appreciate it.

Warm regards.

slfuM

F. William Hutchinson

FWH/ssh

The Honorable Carl Levin

459 Russell Senate Office Bldg.

Washington, D.C. 20510-2202
405

HERZFELD & RUBIN.MC.

ATTORNEYS AT LAW •

-O WALL »TR«T g^il

NEW YORK. N. V. IOOOS ^tHRt r?

tCLCMtOMC' it'!' J4* • HOO

C**tX VIKIVOWAt. HKW TON>

Kay 15, 1992

Senator Carl Levin

Ruasell Senate Office Building

Washington, D.C. 20510

Dear Senator Levini

I am Informed that Gordon Quiet, Eaq. of Grand Rapids,

Michigan, has been nominated to be a U.S. District Court Judge.

In my opinion, Mr. Quiet's availability for appointment to

this post presents an outstanding opportunity to enlist In the

public and community Interest the talents of a special and

uniquely qualified practitioner and human being. I strongly

coounend him to you for this sensitive and demanding position and

warmly endorse him for such appointment.

In a sense, I bring a somewhat different approach to the

process of judicial screening and evaluation. For more than

fifteen years, I have been a member of permanent judicial

screening panels for screening candidates to be appointed by the

Governor, and by the Mayor for state and city judgeshlps. I have

also served for some 15 years on Senator Moynlhan's Committee to

screen for the U.S. District Courts. I hope my comments will be

weighed In the light of that background.

Mr. Quiat and I have known each other for about fifteen

years In a professional and, arising therefrom, In a social

capacity over the major part of that period.

In meeting with his wife, children, colleagues and also his

clients, I have had many occasions and many contexts In which to

come to know him. He, on the one hand, and I, on the other hand,

have represented clients with a long and continuing relationship.

HtnzriLO A RU«M* HANCOM. HCMZFSLO A Ruam
406

HERZFELD & RUBIN,p.c.

Senator Carl Levin

May 15, 1992

Page 2

sometimes adversary, sometimes conflicting and sometimes consistent with each other. The changing relationships have imposed

stringent demands on Mr. Qulst's legal scholarship. Industry and

temperament. They have also permitted me to observe and evaluate

his integrity, personal values and sense of professionalism.

In each of these areas, Mr. Qulst scores an Impressive high

which eminently qualifies him for the Important position under

consideration.

Without pomp or affectation, Mr. Qulst is a solid scholar.

Whether substantive or procedural, exotic antitrust or bread and

butter product liability questions, Mr. Quist is at home with the

Issues and, more important, open minded to research and weigh all

aspects of the questions at hand. His direct, forthright and

cordial manner win confidence. The knowledge that his commitment, once given, is unshakable marks him as a person of

remarkable stability and responsibility. His patience and

courtesy, while pressing forward on the business at hand, are

additional attributes which mark him as a person of outstanding

qualifications for this position.

In my opinion, the bench, bar and the community at large

will be fortunate at the appointment of Mr. Qulst to the U.S.

District Court. He will surely be an outstanding addition of

whom we will all be proud.

Sincerely,

HRimh Herbert Riibin
407

Senator METZENBAUM. Thank you very much, Senator Levin,

your testimony and your support of Mr. Quist goes a long way in

our consideration. We appreciate your testimony and we will

accept Senator Riegle's statement to be included in the record.

Congressman Upton and Congressman Henry, we will be happy

to hear from both of you.

STATEMENT OF HON. PAUL B. HENRY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MICHIGAN

Mr. HENRY. Thank you, Mr. Chairman.

I am Congressman Henry. I have known Mr. Quist personally for

about 20 years. We first knew each other as neighbors. We used in

our western district the process that has been reaching back 50-60

years on judicial appointments of having a very broadly based community panel review each judicial candidate. There are very clearly bipartisan, very clearly multiethnic and very diverse in terms of

the types of legal practices represented on the committee. We work

closely with members of the Federal bar in putting together the

committee.

The committee was unanimous and enthusiastic in submitting

Mr. Quist's name to the members of the Michigan Republican delegation. We were strong in our support when we recommended his

name to the White House and to the two distinguished Senators. I

also understand you have a very strong, common friend, John

Cummiskey, who served on the Antioch School Board with you.

John is one of Gordon's law partners. I consider it an honor to be

here today, Mr. Chairman, to speak on Gordon's behalf and to

share with you my own strong personal support of his nomination

to the Federal judiciary.

Senator METZENBAUM. Thank you.

Congressman Upton.

STATEMENT OF HON. FREDERICK S. UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. UPTON. Thank you, Mr. Chairman.

As Congressman Henry indicated, we do have a very good group.

I am not a lawyer. I rely on our little task force quite heavily. I

have known Mr. Quist 6 or 7 years in a very close capacity. In fact

his daughter at one time worked for me some years ago, but I know

that Gordon and the community people in the Grand Haven and

Holland area in Ottawa County couldn't speak higher of Gordon's

capabilities. He has been very involved with a terrific law practice

in Grand Rapids, widely respected through the State, and I commend Senator Levin, as well as Senator Riegle for urging this consideration as well.

Senator METZENBAUM. Thank you very much.

I am going to hear from the other Senators and Congresspersons

who are present before getting into the questions with the various

nominees. So if you will all excuse yourself from the table.

Senator LEVIN. Thank you, Mr. Chairman, Senator Specter,

thank you, too. I appreciate it.

Senator METZENBAUM. I think our list shows that Senator

Warren Rudman and Senator Robert Smith are here for Judge
408

Stahl. Senator Rudman, we are happy to have you with us. We

have not had you since the days of Souter. I see that you are now

supporting, not a Supreme Court nominee, but a circuit court of

appeal nominee and we will be glad to hear from you in connection

with this nomination.

STATEMENT OF HON. WARREN RUDMAN, A U.S. SENATOR FROM

THE STATE OF NEW HAMPSHIRE

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

First, allow me to insert in the record a statement from the Republican leader. Senator Bob Dole, who is in Kansas today with

Russian President Yeltsin or would have been here. Senator Dole

has been a family friend of the Stahls for sometime and has here a

statement to be inserted in the record which I would appreciate be

entered.

Senator METZENBAUM. Without objection, it will be included in

the record.

[The prepared statement of Senator Dole follows:]
409

j?U/ PcJe^

SKHKTOR BOB DOLE

STATKMENT FOR THE RECORD

CONFIRMATION HEARING OF JUDGE NORMAN STAHL

THURSDAY, JUNE 18, 1992

MR. CHAIRMAN:

THANK YOU FOR THE OPPORTUNITY OF ALLOWING ME TO ENTER THIS

STATEMENT IN THE RECORD. I HAD HOPED TO BE THERE IN PERSON TO

OFFER MY STRONG SUPPORT OF JUDGE STAHL—AS I MAS FOR NORM'S

CONFIRMATION HEARING TO THE UNITED STATES DISTRICT COURT—BUT I

WILL BE IN KANSAS WITH RUSSIAN PRESIDENT BORIS YELTSIN.

THERE CAN BE NO DOUBT THAT PRESIDENT BUSH MADE AN

OUTSTANDING CHOICE IN NOMINATING JUDGE NORM STAHL TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

JUDGE STAHL'S RESUME SPEAKS FOR ITSELF I NEARLY TWENTY FIVE

YEARS WITH ONE OF NEW HAMPSHIRE'S LARGEST AND MOST INFLUENTIAL

LAW FIRMS...SERVICE AS PRESIDENT AND MANAGING DIRECTOR OF THAT

FIRM. . .LEADERSHIP POSITIONS IN A WIDE VARIETY OF LEGAL

ORGANIZATION AND GOVERNMENT ADVISORY COMMITTEES.. .TWO YEARS OF

EXPERIENCE AS A UNITED STATES DISTRICT JUDGE.

IT HAS BEEN MY PRIVILEGE TO KNOW NORM AND HIS WIFE, SUE, FOR

A NUMBER OF TEARS. OUR COLLEAGUE, SENATOR RUDMAN, HAD SPOKEN

VERY HIGHLY ABOUT NORM, AND IT DIDN'T TAKE ME LONG TO FIGURE OUT

TOY.
410

THROUGHOUT HIS CAREER, NORM HAS TRULY COMMITTED HIMSELF TO

MAKING A DIFFERENCE—A DIFFERENCE FOR HIS PROFESSION, HIS

COMMUNITY, HIS STATE, AND HIS COUNTRY.

I AM CONFIDENT THAT THROUGH HIS INTELLECT AND HIS INTEGRITY,

HE HILL CONTINUE TO MAKE THAT DIFFERENCE AS A JUDGE OF THE UNITED

STATES CIRCUIT COURT OF APPEALS.
411

Senator RUDMAN. Mr. Chairman, I will be very brief.

It is not terribly often you can sit before a committee and introduce someone for an important Federal post. In this case the First

Circuit Court of Appeals in Boston, a man that you have known for

50 years. Norman Stahl and I knew each other as young children.

We have known each other through our entire adult lives. He is

someone who has a reputation for integrity and intellectual incisiveness in our State that is second to no one.

Two years ago in searching for the kind of excellence that I

know that this committee shares with me as to what we look for

for the Federal judiciary, I, after long discussions convinced

Norman Stahl to leave an extraordinary law practice in which he

was for many years the managing partner in one of New Hampshire's most prestigious law firms and end his legal career serving

his country in the Federal bench. In the 2 years he has served in

that bench amongst lawyers and judges, he has built in that short

time an extraordinary reputation and no surprise to those of us

who know him.

Thus, I am delighted to introduce him here today to succeed Justice David Souter on the First Circuit Court of Appeals. And I

thank the chairman for the time.

Senator METZENBAUM. Thank you very much. Senator Rudman.

Senator Smith.

STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM THE

STATE OF NEW HAMPSHIRE

Senator SMITH. Mr. Chairman, it is an honor and a pleasure to

appear before this committee today to introduce Judge Norman

Harold Stahl, a district judge from my State of New Hampshire

who has been nominated by President Bush to the First Circuit

Court of Appeals.

Mr. Chairman, I have known Judge Stahl for 12 years, and I believe Judge Stahl epitomizes Granite State qualities of intelligence,

common sense, and judicial restraint—qualities which our country

sorely needs.

Judge Stahl was born in Manchester, NH, in 1931. He graduated

magna cum laude from Tufts University and received his law

degree from Harvard Law School in 1955. Judge Stahl practices

law with the same firm from 1956 to 1990, handling such complex

and important issues as the ramifications of a bankruptcy filing by

the Public Service Co. of New Hampshire.

Since 1990, Judge Stahl has served as a district judge on the U.S.

District Court for the District of New Hampshire, rendering admirable service to both the residents of the State of New Hampshire

and the country as a whole.

Mr. Chairman, in view of Judge Stahl's long and distinguished

career, it gives me great pleasure to join with my colleague. Senator Rudman, in introducing him to you and recommending him to

your consideration.

Thank you, Mr. Chairman.

Senator METZENBAUM. Thank you very much. Senator Rudman

and Senator Smith.
412

Judge Stahl, if you would care to introduce your family at the

present time, we would be very happy.

Judge STAHL. I would, thank you, Senator.

The second row, my daughter, Ellen; my mother-in-law, Jane

Heimerdinger; my wife of 34 years. Sue; my son, Peter, who is the

fellow with the camera; and a couple of members of my extended

family that every judge has: A former law clerk. Jack Hoffman; sitting next to him, my brother. Bob; and in the next to the back row,

Londia McCafferty, a current law clerk of mine who came down

here to see what I was going to do today.

Thank you.

Senator SPECTER. Mr. Chairman, just a comment or two. When

Senator Rudman was last here, as you have noted, it was with

Judge Souter. We did not realize the importance of that circuit

court confirmation, but we certainly will not make that mistake

today. We will have an appropriate line of questioning for Judge

Stahl to see how the contours of the clear and present danger test

work through. We still have our notes from some of the prior Supreme Court hearings, but we would not want to pass that up.

When Senator Smith made some comments about the Granite

State, I know he is a man of extraordinary judgment because he

originated in the Delaware Valley just a little north of Philadelphia.

Thank you very much.

Senator METZENBAUM. And now Senator Arlen Specter and Senator Harris Wofford.

Senator Specter is well known as a member of this committee

and we are happy to have you with us, both as a member of the

committee, as well as for the purpose of introducing Mr. Robreno.

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

THE STATE OF PENNSYLVANIA

Senator SPECTER. Thank you, Mr. Chairman.

I am delighted to join with my colleague, Senator Wofford, in

presenting to this committee Eduardo C. Robreno for a position on

the U.S. District Court for the Eastern District of Pennsylvania.

Mr. Robreno has an outstanding academic background from Westfield State College in Westfield, MA, the University of Massachusetts with a master's degree, and from Rutgers Law School.

Mr. Robreno has had a distinguished career with the Antitrust

Division of the Department of Justice and with prestigious Philadelphia law firms such as Meltzer & Schiffrin. The distinguished

partner of Meltzer & Schiffrin, Mr. Herb Linsinberg, is here today.

Mr. Robreno was also with Stradley, Ronon, Stevens & Young, and

most recently with Fox, Rothschild, O'Brien, & Frankel.

Mr. Robreno was on the Law Review in law school. He has an

outstanding reputation within the Philadelphia Bar and his nomination is part of an effort to bring all diverse segments of the community onto the Federal bench. When I was elected district attorney in Philadelphia in 1965, I sought to hire assistant district attorneys from all segments of the community. At that time I could not

find a Hispanic lawyer in town to hire as an assistant district attorney.
413

Mr. Robreno is a native of Cuba and a naturalized citizen. In our

efforts to broaden and diversify the Federal bench, we have found a

man of outstanding capability in any league. The Philadelphia District Court is the big league and he will fit in there very well.

Thank you, Mr. Chairman.

Senator METZENBAUM. Thank you very much, Senator Specter.

Senator Wofford, we are very pleased that you are with us this

afternoon.

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

THE STATE OF PENNSYLVANIA

Senator WOFFORD. It is a pleasure. Senator Metzenbaum, chairman, to join my senior colleague in introducing and warmly recommending Eduardo Robreno to the committee. He will make an excellent U.S. district judge for the Eastern District of Pennsylvania.

I will just add facts, not repeat facts.

Beginning with the fact that, at age 15, Eduardo Robreno came

to this country by himself in a program called Peter Pan. I salute

that program for giving us this outstanding citizen. He directs his

firm's involvement in the VIP program which provides civil representation to the poor in creditor and debtor cases. He has accepted

appointments as counsel for indigent criminal defendants. He is a

founding member of the Hispanic Bar Association of Pennsylvania.

He served as Chair of my colleague, Senator Specter's Council on

Hispanic Community and as a member of former Governor Thornburg's Council on the Hispanic Community. He has acted as legal

counsel to many nonprofit Hispanic-American organizations in

Pennsylvania. In short, Mr. Robreno has a distinguished career of

service.

I just want to end by reporting that in the last days before we

lost my great predecessor, John Heinz had the pleasure of meeting

Eduardo Robreno and formally endorsing him for this appointment. I enthusiastically join this endorsement.

Thank you.

Senator METZENBAUM. Thank you very much. Senator Wofford.

Mr. Robreno, would you care to introduce your family?

Mr. ROBRENO. Thank you, Mr. Chairman.

My wife, Nana Robreno and my youngest son, Andrew Robreno;

my brother-in-law and sister-in-law. Dr. Leon and Mrs. Leon; and

my nephew, John Viev; and my former law partner and good

friend. Herb Linsinberg came down from Philadelphia for this occasion.

Senator METZENBAUM. I would like to ask your son a question.

What is his name?

Mr. ROBRENO. Andrew Robreno.

Senator METZENBAUM. Andrew, I want to ask you a question. Do

you think your dad would make a good judge? Do you think he is

fair?

Senator SPECTER. Andrew, you have a right to remain silent.

[Laughter.]

Andrew ROBRENO. Yes.

Senator METZENBAUM. Thank you.

[Applause.]
414

Senator METZENBAUM. Last but not least is a good friend, Senator John Warner, and Representative Ron de Lugo and Lieutenant

Governor Derek M. Hodge from the Virgin Islands, who are here to

introduce Mr. Moore.

STATEMENT OF HON. JOHN W. WARNER. A U.S. SENATOR FROM

THE STATE OF VIRGINIA

Senator WARNER. Mr. Chairman, Senator Specter, it is always a

pleasure for those of us here in the Senate to know that we have

the opportunity to come before this committee in its very important capacity of providing this Nation with competent, qualified

people of judicial temperament for the judicial branch and to witness a scene like I have just witnessed with you, Mr. Chairman. I

think it is terribly important and I commend you and others for

doing that, because this is a total family commitment when someone steps on the Federal bench in many, many ways.

I just want to say how much I appreciate as a Member of the

Senate the manner in which you and other members of this committee, both the majority and minority, handle with great care

these important nominations, and I am privileged to be here today,

joined by a distinguished Member of Congress, Mr. Ron de Lugo, on

behalf of Thomas K. Moore of St. Thomas, VI, who has been nominated to be the U.S. districtjudge for St. Thomas, VI.

Since 1987, Mr. Thomas Moore has been with the St. Thomas law

firm of Grunert, Stout, Moore & Bruch. Mr. Moore is a partner in

a broad-based practice in that firm.

During the years 1981-87, he was a partner in the firm of Hoffman & Moore, where he handled litigation practice. He also took

over an ongoing real estate and business-related practice during

the years 1978-81. There is a good deal of detail in my statement

which I will submit for the record about his extensive active practice as a trial lawyer.

Senator METZENBAUM. Your entire statement will be included in

the record.

[The prepared statement of Senator Warner follows:]
415

Unfttd States ^cnatt

STATEMENT BT SENATOR JOHN WARNER

NOMINATION OF THOMAS K. MOORE

TO BE U.S. DISTRICT COURT JUDGE FOR ST. THOMAS, VIRGIN ISLANDS

JUNE 18, 1992

Mr. Chairman and •••ban of the Senate Judiciary Committee,

I am pleased today to Introduce to the Committee Mr. Thomas K.

Moore of St. Thomas, Virgin Islands, who has been nominated to be

United States District Court Judge for St. Thomas, Virgin

Islands.

Since 1967, Mr. Thomas Moore has been with the St. Thomas

law fin of Grunert, Stout, Moore i Bruch. Mr. Moore is a

partner in a broad based practice in real estate, personal injury

and general business litigation.

During the years 1981 to 1987 Mr. Moore was a partner in the

fin of Hoffman t Moore where he handled the litigation practice.

Mr. Moore also took over an on-going real estate and business

related practice during the years 1978 to 1981. As a sole

practitioner, he expanded the business and included more

litigation.

In 1976 Mr. Thomas relocated to St. Thomas where he served

as an Assistant U.S. Attorney for the District of the Virgin

Islands. At-Che time, he ttm* keen a resident of the Commonwealth

of Virginia for ten years.
416

During the years 1971 to 1976, Mr. Thomas served as

Assistant U.S. Attorney for the Eastern District of Virginia. He

was primarily in charge of grand jury investigations and

prosecutions of white-collar crime.

Mr. Thomas also served for a year as Assistant U.S. Attorney

for the District of Columbia in 1971.

Mr. Thomas is currently affiliated with a number of

professional aasociations, including the Bars of the Territory of

the United States Virgin Islands; Virginia and the District of

Columbia; and a member of the American Bar Association.

Mr. Thomas graduated from Harvard College with a Bachelor of

Arts degree 1960. He was awarded his law degree from Georgetown

University Law Center in 1967.

Mr. Thomas is married to Judith Thomas and they have two

sons, David and Jonathan.

Mr. Chairman, Mr. Thomas' experiences in the legal

profession have allowed him to gain the knowledge and legal tools

necessary to perform in an exemplary manner as U.S. District

Court Judge for St. Thomas, Virgin Islands.

I hope the Committee will give his nomination the utmost

consideration for this position and that the floor of the Senate

will eventually receive his nomination and report favorably to

the President.
417

Senator WARNER. He also served as an assistant U.S. attorney

and that was in the Commonwealth of Virginia where I and others

had the occasion to make his acquaintance. Mr. Thomas graduated

from Harvard College with a bachelor of arts degree in 1960 and he

was awarded his law degree from Georgetown University Law

Center in 1967. He is married to Judith Thomas and they have two

sons, David and Jonathan. And, with the permission of the chair, I

would like to have the nominee introduce his family.

Senator METZENBAUM. Please do.

Mr. MOORE. Mr. Chairman, I would like to introduce my wife,

Judith, and if I could, I have some other friends who are here.

Senator METZENBAUM. Please proceed.

Mr. MOORE. My former law partner, Paul Hoffman; a colleague

whom I worked with in Virginia for many years, Joe Fisher; and a

young lady who happens to be Congressman de Lugo's niece. Ana

Perlinsky, who is going to be the law clerk on the district court;

and two young gentlemen I just met, Mr. Modest and Mr. Walker

who are on Congressman de Lugo's staff.

Thank you.

Senator METZENBAUM. Thank you.

Mr. de Lugo.

STATEMENT OF HON. RON de LUGO, A REPRESENTATIVE IN

CONGRESS FROM THE VIRGIN ISLANDS

Mr. DE LUGO. Mr. Chairman, Senator Thurmond, this is a joyful

day hearing the Senators present their various nominees and certainly that wonderful exchange between the Chair and the son of

one of the nominees. It is inspiring.

This is a particularly joyful day for the Virgin Islands. This U.S.

territory, the District Court of the Virgin Islands, has been without

a judge since 1987. I mean more than 5 years there has been no

judge for the District Court of the Virgin Islands. There are two

seats there. They have been without the other judgeship being

filled since 1989. So you can imagine how pleased we are to have

the nomination of Attorney Moore before this committee at this

time.

And it is particularly joyful for us because this morning the

President picked up the phone and called Judge Raymond Finch

down in St. Croix and told him that he had also nominated him. So

we are hopeful that we will have both of these vacancies filled and

that we will have the court operating first class after all these

years.

Thomas Moore, his background, we have heard Senator Warner

refer to it. He was an undergraduate at Harvard. He is a Georgetown Law School graduate and 5 years assistant U.S. attorney in

Virginia. But he has had extensive practice and experience in the

Virgin Islands and he has lived in the Virgin Islands since 1976.

For 2 years, he was assistant U.S. attorney and then he went into

private practice. He has been in private practice for 11 years, 5 of

those years were with Paul Hoffman's firm and the rest of the time

he has been serving with Grunert & Stout.

So I want to thank you for this hearing today and I want to take

just a moment to thank Chairman Biden also. And I want to thank
418

a very fine professional that this committee has and has been very

helpful to me and to the Virgin Islands and that is the chief nomination's counsel of the committee, Harriet Grant. I want to thank

her for the assistance that she rendered us in resolving this problem.

Also, let me say that we got a lot of help in the last several days

from the Deputy Assistant Attorney General Barbara Drake over

at Justice and I want to commend those people and I want to recommend Tom Moore to this committee.

Senator METZENBAUM. Very good. Representative de Lugo. Let

me ask you in passing, what has happened to our former colleague

Senator Ed Brook on the Virgin Islands?

Mr. DE LUGO. Ed Brook, he does not spend enough time with us

any more. I think he spends

Senator WARNER. He is a resident of Virginia, Mr. Chairman,

and he enjoys it. [Laughter.]

Senator METZENBAUM. I know of no reason why he should not.

Senator WARNER. But he constantly reminds me that there is a

life after the Senate, a happy one.

Thank you, Mr. Chairman.

Senator METZENBAUM. We will hear from the Lieutenant Governor, Derek Hodge.

STATEMENT OF HON. DEREK HODGE, LIEUTENANT GOVERNOR,

U.S. VIRGIN ISLANDS

Mr. HODGE. Thank you, Mr. Chairman. Good afternoon. Senator

Thurmond and Senator Specter.

I am Derek Hodge and I am presently serving as the elected

Lieutenant Governor of the U.S. Virgin Islands. I am honored to

have this opportunity to introduce Tom Moore whom the President

has nominated to be judge of the U.S. District Court for the Virgin

Islands.

Mr. Chairman, we are deeply pleased to see this action to fill one

of the two vacancies in the district court. This bench has been

vacant too long. We believe we have the dubious honor of having

the only district court in the country with a 5-year vacancy.

The committee is to be commended for scheduling Mr. Moore's

confirmation hearing with enough time remaining in the session to

ensure that a confirmation vote can occur before a German sine

die. The administration of justice in the territory requires a fully

functioning Federal district court. We strongly urge prompt and

final action in this confirmation process and equally timely and

prompt action in filling the other vacancy in our court as well.

Mr. Chairman, Tom Moore is a 1961 graduate of Harvard University. He obtained his juris doctor from Georgetown University

Law Center here in Washington. Tom graduated from Georgetown

Law a few years before my own class from that outstanding institution. After this legal education, Tom had the good sense to move to

the Virgin Islands. Tom Moore and his lovely wife and two children have now lived among us in the Virgin Islands for nearly two

decades.

In the Virgin Islands, he has gained valuable experience as an

assistant U.S. attorney from 1976 through 1978. He then entered
419

private practice. I am certain that he will bring to the bench the

same excellent qualities that have been the hallmark of his performance in the practice of law. Tom's knowledge together with his

sense for equity and fairness will no doubt assure well reasoned,

respected judicial opinions.

Speaking for all Virgin Islanders, I can say that it will be a great

relief to have once again a U.S. district court judge who resides in

the territory.

Mr. Chairman, thank you for this opportunity to appear on

behalf of Tom Moore's nomination and for the honor to introduce

him to this distinguished panel.

I also wish to say that I look forward to appearing again before

your committee shortly to introduce the Honorable Raymond Finch

whom President Bush called this morning informing him that he

would be nominated for our other district court position. I urge the

committee to approve favorably in Tom Moore's nomination to the

full Senate for prompt action.

Thank you, Mr. Chairman.

Senator METZENBAUM. Thank you very much.

Following our usual practice, we will hear from Judge Stahl, if

he would be good enough to come back. Judge Stahl, do you solemnly swear to tell the truth, the whole truth and nothing but the

truth, so help you God?

Mr. STAHL. I do.

[The biographical statement of Judge Stahl follows:]
420

NORMAN H. STAHL

11 Cl»n Road P. o. Box ia2«

Bedford, Now Hampshire 03102 Concord, New Itompshiro 03302-1224

Hom» (603) 622-0123 Office (603) 225-1525

Prof>»«ieMl Baokaround and K«p«rl«i>Bti

Effective May 7, 1990, United States Dietrict Judge, Dietrlct of

New Hampshire, located at Concord, New Hanpshire

Former President and Managing Director of a 50-lawyer firm (26

partners, 24 associates) in Manchester, New Hampshire. Devine,

Millimet, Stahl and Branch, Professional Association, now Devine,

Millimet and Branch, Professional Association, is generally known

as one of the largest and most influential firms in the State of

New Hampshire. Began with firm in 1956; became partner in 1959.

Left firm on April 30, 1990 to become United States District

Judge, Concord, New Hampshire.

Major epocialization was in the field of Corporate, Banking, Real

Estate Development and Public Law. General representation of

corporate and public clients. Directed outside legal efforts of

State of New Hampshire in connsction with bankruptcy proceedings

of Public Service company of New Hampshire.

Admitted to Massachusetts Bar in 1955, Massachusetts Federal

District Court in 1955, New Hampshire State Bar in 1956, and New

Hampshire District Court in 1956.

Member of Manchester Bar Association; New Hampshire Bar

Association; American Bar Association.

Member, New Hampshire Board of Bar Examiners (1967-1974),

Chairman (1972-1974). Appointed by State Supreme Court. Member

of State Judicial Council (1983-1990), Chairman (1989-1990).

Appointed by Governor and Council, Chairmanship by vote of

members of Judicial Council. Resigned upon appointment as United

States District Judge. Forrasr member. Professional Conduct

Committee of state Bar Association. Appointed by state Supreme

Court. Membership in other Committees of the Bar. Appointed

Chairman of Special Committee on Corrections for State of New

Hampshire by former Governor Walter Peterson. In that role was

responsible for preparation of summary report of committee

findings.

Former Fellow, American College of Real Estate Attorneys.

f*B»Wt' brand lax tr«nimlii»l m»mo 7B71 |«o'»«|ai > 3

35 "355 - ygoi ''•••*./•.^-air .T7<?c-
421

NORMAN H.STAHL

Rasuaa

P«g« 2

City Solicitor, Manchester, Haw Haapahlre (aix month period

1975), aa public aarvica to reorganize tha offica and eatabllah

•tandarda for ataffing tha office.

Former Truatoe, Kanchaater Institute of Arta and Sciancaa; former

Truatae, Manchaater Hlatoric Aaaociation; founding Director and

former Board Member, Federated Arta of Manchaater, Inc.; former

Member and President, Manchaater Jewish Federation; former Board

Member, Congregation Adath Yashurun.

Former Member, Commiaaion for Preaervation of Aroerioa'a Heritage

Abroad; former Chairman of Nancheater Chamber of Commerce Airport

study Committee, Nancheater, New Hampahira.

Formerly active in Republican party affaire. Delegate,

Republican National convention 19S8. Member, Credentials

Committee, Republican National Convention 1988. Member of

Republican Party 1988 state Platform Committee.

«duoation and Pareomli

Born January 30, 1931, Manchester, New Hampahira. Primary and

aecondary education Manchaater Public Schools. Tufts College,

B.A. magna cum laude, 1952. LL. B., Harvard Law School 1955.

Law Clark to Maaaachuaatta Supreme Judioial Court Juatice John V.

Spalding, 1955-1956.

Married to Sue H. Stahl residing at 11 Glen Road, Bedford, New

Hampahira. The Stahls have two children - Peter, age 31,

formerly a self-employed businessman and currently a degree

candidate at the Amoa Tuclc School, Dartmouth College and Ellen,

ago 23, a recent graduate of Bradford College, Haverhill,

Masaachusetta.
422

TESTIMONY OF HON. NORMAN H. STAHL. OF NEW HAMPSHIRE,

TO BE A U.S. CIRCUIT JUDGE FOR THE FIRST CIRCUIT

Senator METZENBAUM. Judge Stahl, do you have any opening

statement that you care to share with the committee?

Judge STAHL. The only thing I want to say is that I am pleased

to be here this afternoon and I am prepared to answer any questions that the committee might have.

Senator THURMOND. Mr. Chairman, I am in an antitrust chairing

and I have got to get back there. Mr. Chairman, I just want to say

that I have reviewed the records of all of these people before this

hearing. I have very few questions, about three questions for each

one of them, if they would answer them for the record. I am convinced that you are all well qualified. I will be glad to support you

and we will try to get you through.

I guess you did not want to be on the Supreme Court or Mr.

Rudman could have gotten you on there. You have a fine record, as

these other nominees do, and we are very proud to do all we can to

help and expedite it. Senator Metzenbaum, I am sure, as to where

he chairs, is going to expedite them through the Senate, are you

not?

Senator METZENBAUM. In spite of that strong recommendation of

support from Senator Thurmond, I think you have still got a great

chance of getting through.

Judge STAHL. Thank you, Senator.

Senator THURMOND. We will give you these questions, if you will

just answer them for the record.

Senator METZENBAUM. Judge Stahl, criminal sentencing guidelines have been in effect since 1987. The guidelines attempt to

specify appropriate sentences for criminals based upon the nature

of the offense, the conduct of the offender during the crime, and his

or her prior criminal record. As a district judge, you had occasion

to apply the guidelines in the case of United States v. Bell. That

case involved the defendant who had failed to appear in court to

stand trial on firearms charges. The defendant was subsequently

acquitted on the firearms charges, but he pled guilty to the charge

of failing to appear.

In calculating the defendant's sentence under the guidelines, you

enhanced his sentence based upon a finding that Mr. Bell had obstructed justice. The First Circuit Court of Appeals reversed your

decision to grant an upward adjustment to the defendant's sentence. In the first circuit's view, the relevant sentencing guideline

did not allow the sentence to be increased. The court concluded

that Mr. Bell's decision to rent a mailbox under an alias did not

constitute avoidance of arrest nor did it obstruct pursuit of a criminal investigation as required by the guideline.

The court of appeals also found that Mr. Bell's possession of a

gun and his delay in complying with an officer's request during

arrest did not justify enhancing his sentence under the guidelines.

Do you agree with the court of appeals ruling in that Bell case?

Judge STAHL. Well, obviously I have to, Mr. Chairman. The court

of appeals said that I was incorrect in the enhancement. The guideline on that particular area is not particularly clear and this was a

matter of basically first impression in the first circuit. I felt at the
423

time when I was faced with making the decision that the fact that

he had reached for a gun and he was a felon already in possession

of a gun, that was the basic underlying charge, that that under the

circumstances was enough for the enhancement. The circuit felt

otherwise and obviously that circuit precedent. I had no problem

following that precedent.

Senator METZENBAUM. Actually was not the gun issue sort of put

aside and the fact that he was acquitted on the firearms charges,

and rather, it was the fact that he had failed to appear was that

you gave him the additional punishment over and above that

which the guidelines provided for? Was it that you were somewhat

piqued at his failure to appear?

Judge STAHL. Not at all. It was not that he failed to appear

before me. He failed to appear on the first, following the possession

of a firearm charge before my colleague. And subsequently was

captured, apprehended, brought back, stood trial, found not guilty

on that charge. He appeared before me on the failure to appeal

charge; pled guilty; and the issue came up because at the time that

he was apprehended in May, he was again a felon in possession of

a firearm.

And they had been looking for him since he had failed to show

up for sentencing and at the time of the testimony, it was at the

time of this apprehension. He was there with a gun. There were

several armed marshals and the chief marshal, as I recall, testified

as to his reaching for the gun. He had used the alias in connection

with the mailbox and there was some indication that that had

made it harder to find him.

I thought reading the guidelines and reading the commentary,

that under those circumstances, the enhancement was justified.

Subsequently, he was convicted in Maine on the subsequent firearms charge sentenced there as a career criminal and that was just

reversed. That was before another judge. And the guidelines in this

area are just being developed.

Senator METZENBAUM. DO you think that the guidelines unduly

limit a judge's ability to fashion an appropriate sentence?

Judge STAHL. Generally speaking, I had no experience to speak

of with preguidelines sentencing. I came to the court in 1990, so I

think I have only sentenced two or three people who are not guidelines involved. I would venture to guess that most of my sentences

would probably be the same with or without the guidelines. That

is, that is if the guidelines work. At the margins, however, first

time offenders, you have some problem, I think, with the guidelines. And I believe there is before the Senate and the Congress

now some proposed changes to the guidelines which will give district judges more flexibility in dealing with that initial offender.

Senator METZENBAUM. Recent debate has been growing about

judges increased willingness to impose sanctions against lawyers or

parties who file frivolous lawsuits. Some attorneys have suggested

that the fear of what is known as rule 11 sanctions has had a chilling effect, particularly when they try to make creative arguments

in new or developing areas of the law such as civil rights.

As the chief judge of the New York Court of Appeals has put it,

today's frivolity maybe tomorrow's precedent. What do you think of
426

when I attended his swearing in for the third circuit in Erie he

made a point to repeat the admonition which I thought was very

important.

And I say it not only for you Judge Stahl, but it is something

that I repeat on the occasions when I attend the swearing in ceremonies of our own Federal judges. It is something that has to be in

the forefront of everyone's mind.

Judge STAHL. I absolutely agree.

Senator SPECTER. Thank you. In the absence of the chairman, I

call Mr. Robreno for his testimony.

Thank you very much.

Judge STAHL. Thank you very much.

Senator SPECTER. Judge Stahl, I think you are in good shape here

for confirmation.

Mr. Robreno, do you solemnly swear that the testimony you are

about to give will be the truth, the whole truth, and nothing but

the truth, so help you God?

Mr. ROBRENO. I do.

TESTIMONY OF EDUARDO C. ROBRENO. OF PENNSYLVANIA. TO

BE A U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

Senator SPECTER. You may be seated. I am going to proceed to

Senator Metzenbaum's questions, if I may? Let us just wait a

moment or two for the chairman to return.

Mr. Robreno, in the interim, I might ask you just a question or

two. What are your own views as to your qualifications for the Federal judgeship? In terms of the extent that you care to comment on

that, I would think it appropriate for the record.

Mr. ROBRENO. Thank you. Senator Specter, I would like to thank

the committee for having granted me the privilege to appear here

today, and of course I would like to thank you for the very large

role that you have played in my nomination throughout the process.

Senator, I believe that a Federal district judge ought to have the

professional qualifications, of course, and that is a threshold judgment that needs to be made. But in addition to that, particularly in

a multicultural society in which we live, he ought to bring to the

Federal bench a good bit of life experience. And I believe the circumstances of my life, both in the upbringing and my working

career and the types of clients that I have represented would indicate that I have the empathy and sensitivity to deal with what is

ultimately a court of justice.

Senator SPECTER. Mr. Robreno, that is fine.

The chairman has returned, so I will yield to him for the questions which he has prepared.

Senator METZENBAUM [presiding]. Thank you very much and I

appreciate your having started. Senator Specter.

Mr. Robreno, your questionnaire indicates that from 1978 to

1981, you worked as an attorney in the Justice Department Antitrust Division specializing in price fixing and merger litigation. In

my view, there have been substantial changes in both the substance of antitrust law and the quality of antitrust enforcement in
427

the years that have passed since 1981. Frankly, I do not think

these changes have benefited either consumers or competition.

I wonder if you have any thoughts on the changes in antitrust

doctrine and antitrust enforcement which have taken place in the

years since you left the Antitrust Division?

Mr. ROBRENO. Mr. Chairman, I would not have any informed

thoughts on the subject and perhaps because the last decade has

not reflected a great deal of antitrust activity in the private bar. It

happens to coincide with my experience there and my practice in

private sector has almost excluded completely antitrust work.

There might have been some conjectural areas, but frankly I would

have nothing of an informed nature to offer to the committee on

that subject.

Senator METZENBAUM. After you left the Antitrust Division and

you entered private practice in Philadelphia, in one case you represented a prison inmate charged with inciting a riot. In your questionnaire you wrote that this case "required the use of a special

litigation strategy for representing unpopular defendants in sensitive cases. This defense consisted of an acknowledgement of participation, but development of the justification of self-defense."

The defendant you represented was convicted of simple assault

and rioting, but acquitted of an aggravated assault, conspiracy, and

making terroristic threats. What prompted you to employ this defense strategy and how successful was the strategy?

Mr. ROBRENO. I believe it was successful to the extent that the

charges of which the inmate was ultimately convicted carried a

much lesser penalty than he would have received if he had been

convicted of aggravated assault at all. The experience that I had in

that case was that a high profile case of that sort in the representation of a defendant in a case where you have law enforcement

officers on the other side is inherently difficult. And in this particular situation, the witnesses who were to testify for the inmate

were themselves inmates and were not particularly sympathetic

witnesses from the point of view of their background and history.

The strategy that we attempted to do was trying to in a sense

acknowledge that the offense had occurred, but focus upon what

had brought it about. And that, in a sense, the actions that the

inmate had undertaken were, in fact, as described, but that they

had been the result of provocation and that he had been engaged

in self-defense.

Senator METZENBAUM. What kind of practice have you had for

the last 11 years?

Mr. ROBRENO. Commercial litigation practice and over the last 5

or 6 years it is concentrated principally in the debtor-creditor area

and the bankruptcy area.

Senator METZENBAUM. YOU have not been accepting any of those

munificent fees of $500 an hour about which I was complaining

yesterday on the floor of the Senate, have you, in those bankruptcy

cases?

Mr. ROBRENO. NO, I have not had any of those cases, but I am

aware of the chairman's sensitivity about that problem.

Senator METZENBAUM. If confirmed, what lessons would you

apply from your years as a litigator to help expedite a crowded

court docket?
428

Mr. ROBRENO. An early trial date. As soon as a case is filed, the

judge has to get on top of that case and as early as it is practicable,

they ought to have an early date and that date ought not to be adjourned except for compelling circumstances. My experience has

been that lawyers and often the clients when they get to the courthouse doors tend to settle the case. If that period of time between

the filing of the lawsuit and the courthouse doors can be shortened,

I think that we could dispose of a larger number of cases.

Senator METZENBAUM. One of the proposals that has recently

been made in connection with the litigative process is that losers

would be required to pay costs and attorneys fees in any case involving a discovery dispute and in any case where a Federal court

is exercising diversity jurisdiction. You have been an active litigator for a number of years now. What impact do you think that proposal would have on the civil justice system?

Mr. ROBRENO. Mr. Chairman, in terms of discovery, I believe

under the provisions of rule 37 today, that tool is available to the

judges; that is, one sanctions may be imposed for abuses of the discovery process. As far as implementing, I guess what we could call

a modified version of the English system which would require a

losing litigant to pay, my reaction would be that I would be rather

cautious because of the impact that that may have on civil rights

litigants and other litigants who are both without the ability to

make those payments, as well as the chilling effect that it may

have on the creative skills of counsel pursuing those cases. So I

would be rather cautious about it.

Senator METZENBAUM. Some lawyers have commented that that

proposal, which as you probably know is the administration's proposal, would reward wealthy litigants who are making it too costly

for the average citizen to bring suit. Would you agree with that?

Mr. ROBRENO. I am not entirely familiar with the administration's proposal, other than what I have read in the press, so I do

not know if I can characterize it with finality in terms that the

chairman has suggested.

Senator METZENBAUM. I have no further questions. Thank you

very much, Mr. Robreno. Good luck to you.

Senator SPECTER. Thank you, Mr. Robreno. I join the chairman

in wishing you good luck. I look forward to be at your swearing in

ceremony.

Mr. ROBRENO. Thank you so much.

Senator METZENBAUM. Mr. Quist. Do you solemnly swear to tell

the truth, the whole truth, nothing but the truth, so help you God?

Mr. QUIST. Yes.

TESTIMONY OF GORDON J. QUIST, OF MICHIGAN, TO BE A U.S.

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN

Senator METZENBAUM. Mr. Quist, do you have an opening statement?

Mr. QUIST. NO; I do not, Mr. Chairman.

Senator METZENBAUM. YOU have been nominated to be a judge in

the western district of Michigan. It is my understanding that there

is a local rule which allows the court either upon request or on its

initiative to dispose of motions without oral argument. Several law-
429

yers have criticized the rule which allows oral argument only on

discretionary basis. Concerns have been raised that, particularly in

dispositive motions, a losing party will feel as if he or she may not

have gotten their day in court, if he or she has not been allowed an

oral argument.

In addition, it has been noted that oral argument allows clarification of the issues through a dialog between the lawyers and the

judge. If you af-e confirmed as a Federal judge, do you intend to

allow oral arguments in every matter before you or are there circumstances in which you would forgo oral argument?

Mr. Quisr. I cannot imagine the circumstances under which I

would forgo oral argument. I have talked with the judges of the

western district about that. Some of them feel that oral argument

does not add much to the written briefs. On the other hand, I

myself feel, being one of the arguers usually or always, not a decider, that all argument does clarify the issues for the judge, gives the

attorneys an opportunity to make their key points more emphatically; and also I think the parties, the real people involved, feel

much better and much more satisfied and feel they have had a

much fairer shake from our system if they have had an opportunity to have oral argument before the court.

And in addition to that, I talked to a judge on the sixth circuit.

Judge Engle, who told me that some lawyers cannot write well, but

they are very very good in making their points in oral presentations, so I think that is a factor. And there may be situations in

which I would not want oral argument, but I cannot imagine what

those are right now.

Senator METZENBAUM. What kind of practice have you had, Mr.

Quist?

Mr. QUIST. I have had pretty much a 50-percent litigation practice and a 50-percent business practice. For the last 5 years, I have

had about 50 percent of my time being used as managing partner

of a law firm which is about 75 lawyers. So that has been a busy

part of my practice in the last 5 years.

Senator METZENBAUM. Have you always, in litigative matters,

been a defense lawyer?

Mr. QUIST. Pretty much, yes.

Senator METZENBAUM. DO you feel that you would have any difficulty in being fair to plaintiffs, having come from a background, a

successful background, being a corporate lawyer or insurance company lawyer, whatever the case may be and then being able to see

the position and the problem of the plaintiff and the plaintiffs

lawyer before you in a courtroom?

Mr. QUIST. I have never been an insurance company lawyer. It

has been mostly commercial litigation. But everybody brings, as an

earlier witness said, their own background to it. I think I would

have no problem at all. My law firm does represent plaintiffs. Our

law firm represents plaintiffs often. I just happen to be that one in

the law firm that is doing mostly defense work.

But we represent plaintiffs and product's liability cases in commercial transactions. We represent defendants in criminal matters.

My specialty has been, in the litigation area, more of defense and

antitrust matters, civil securities' cases and things like that.
430

Senator METZENBAUM. Has the firm provided any availability of

their lawyers for pro bono work?

Mr. QUIST. Oh yes. As a matter of fact, an acquaintance of yours,

John W. Cummiskey, who was on the Antioch Law School Board

with you, is a partner of mine. He has been honored by the State of

Michigan in that they give the John W. Cummiskey Pro Bono

Award each year to the person in the State that has contributed

the most to pro bono activities. Our firm actively supports that.

Several of our lawyers have been cited by the Bar Association.

We encourage that not only in the legal sense, but in the personal

sense too, involvement with community activities and that type of

thing.

Senator METZENBAUM. That is very encouraging and say hello to

him for me, please.

Mr. QUIST. I will. He said to say hello to you, too.

Senator METZENBAUM. Thank you. In one of the cases mentioned

in your questionnaire, you defended the 3M Corp. in an antitrust

suit brought by a 3M products dealer. In the questionnaire you

state that,

This was a fairly typical dealer termination case, except for the fact that the

plaintiff produced an expert who testified in his deposition that the sales practices

of 3M and the termination by 3M constituted an unreasonable restraint of trades.

You go on to say that the expert was propounding the populist

theory of antitrust law. I have a little trouble with that and I just

was wondering how you would describe the populist theory of antitrust law. Do not forget my State sent to the U.S. Senate the Republican Senator John Sherman who is the daddy of the antitrust

laws in this country and I have served, as you probably know.

Mr. QUIST. I know, Senator.

Senator METZENBAUM. I have served as the chairman of the Antitrust Subcommittee for a good many years and I am a little interested in the word populist theory. It has sort of a—it is negatively

pregnant with sort of a dig.

Mr. QUIST. It is a term of art, however, that I think I found in a

Rita & Turner or some book like that for the theory that antitrust

laws, among other things, are designed to protect the small businessman, as distinguished from the consumer. That was, as I understand it, the populist theory of antitrust law. And the witness

that was a professor from Michigan State University was testifying

basically on a pre-GTE-Sylvania standard for the antitrust laws.

He is talking about the Schwinn case. He was arguing that the

Schwinn case was still the law in effect. That was his standard of

reference in giving his expert testimony.

But the populist theory is a word I picked up, I think it was Rita

& Turner or similar type treatise.

Senator METZENBAUM. I think the first antitrust case you get you

ought to say, it better be balanced on this one or Metzenbaum will

be all over my back. He will call me on the telephone.

Mr. QUIST. I will. The only thing I can say, well they told me not

to volunteer information, but the only thing about antitrust

law

Senator METZENBAUM. I think that is great. That is the best

remark.
431

Mr. QUIST. I cannot help it. I told them that I tell witnesses that

all the time and no witness ever did it and I have told them to do

it, so there is no reason I should either. But antitrust law is—when

I started practicing, I started practicing antitrust law. That was

way back in 1962 and then I worked for the Hollabaugh & Jacobs

firm; then Sonnenschein, Levinson, Carlin, Nath & Rosenthau in

Chicago. And back then everything was illegal and nowadays just

about everything is legal. That has switched that you have focused

on that has occurred in that period of time.

Senator METZENBAUM. I am going to call Teddy Roosevelt back

from the grave to help a little bit in that area. In August 1990, the

Judiciary Committee passed the resolution where it expressed the

sense of the committee that it was inappropriate for nominees to

be members of private clubs, if those clubs invidiously discriminated on the basis of race, sex, or religion in their membership policies.

In your committee questionnaire, you stated you belonged to the

Athletic Club of Grand Rapids which has since merged with the

University Club of Grand Rapids. The Athletic Club formerly excluded women from its membership. Until a few years ago, the

University Club did not allow women full access to its athletic facility.

It is my understanding that you personally made some efforts to

open up the Athletic Club to women and to get the University Club

to build athletic facilities for women. Would you be willing to describe the efforts you made in both changes at those clubs?

Mr. QUIST. Sure. I do not want to drag this out, but it is a little

bit complicated unless I start out. The building in which my office

was at that time, the Old Kent Building, which was really owned

by the Old Kent Bank, had two clubs in it. On the top floor was the

University Club. That was a typical luncheon club. It was nice.

They had tablecloths and things like that. In the basement was the

Athletic Club. The Athletic Club as its name implied, it did not

have a kitchen you could cook in, but they would have a cold

spread for those of us that would play racquetball and wanted to

eat lunch afterward. They did not have facilities for women in the

Athletic Club which was primarily, like I say, a squash court-racquetball court.

There was pressure placed on the club to allow women in for

lunch, because there was no way they could use the athletic facilities for a while without expansion, and I participated in that. Eventually, I think about 1989, the University Club and the Athletic

Club merged. So now you had a nice luncheon club and then athletic facilities. And then the issue then became, what about the

women members of the University Club, because it had women

members, how are they going to use the athletic facilities? And I

think that I was probably the key leader to get the now joint clubs

to expand the athletic club facilities so that women could use the

Athletic Club facilities.

Senator METZENBAUM. Have you ever belonged to any clubs that

oiscriminated on the basis of race, color, creed, national origin, or

gender?

Mr. QUIST. No.
432

Senator METZENBAUM. DO you have any view on the committee's

resolution on this subject?

Mr. QUIST. I support the committee's resolution. I am one of

those that when I went to college, the leading colleges in the

United States did not allow women, and I think I have had two

very good teachers named Martha and Susan, my daughters. I

think that my attitudes and my sensitivity—not my attitude so

much, but my sensitivity has certainly been heightened throughout

my life.

Senator METZENBAUM. I thank you very much and good luck to

you in your new career.

Mr. QUIST. Thank you very much.

Senator METZENBAUM. Our last witness is Mr. Moore, Thomas

Moore. Mr. Moore, I do not want you to think that you are slighted

in any way because you are last. Senator Specter was here when he

took his nominee, but who goes first and who goes last does not

really matter much. As a matter of fact, probably the last has the

best advantage because the Chair is sort of anxious to get away

and you will probably get less questions.

Do you have any opening statement, Mr. Moore?

Mr. MOORE. The only think I would like to say, Mr. Chairman, is

I certainly understand

Senator METZENBAUM. I did not swear you in. Do you solemnly

swear to tell the truth, the whole truth and nothing but the truth,

so help you God?

Mr. MOORE. I do.

TESTIMONY OF THOMAS K. MOORE, OF THE VIRGIN ISLANDS, TO

BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF THE VIRGIN

ISLANDS

Mr. MOORE. I did not mention my two sons. One just graduated

from college, from Williams College up in Massachusetts, and he

was fortunate enough to get a job. So he could not make it. My

youngest son went back to the Virgin Islands. He was with us for a

while. We were on vacation when this hearing was set. And he was

able to get a job too, so in this environment, I did not think it was

really worth—it would be difficult for them to come up. But they

really wanted to be here and I wish that they could have been here

with me.

Senator METZENBAUM. I am sorry they cannot. Did you know

Henry Kimmelman down in the Virgin Islands?

Mr. MOORE. I have met Mr. Kimmelman, yes, sir.

Senator METZENBAUM. IS he still a part-time resident?

Mr. MOORE. He spends a good deal of time. I do not think he is

down there quite as much as he used to be, but he still is a very

good friend of the Virgin Islands and has interest down there and

does spend a good bit of time.

Senator METZENBAUM. I think he was Ambassador to Haiti?

Mr. MOORE. Yes, sir, he was.

Senator METZENBAUM. DO you have anything you care to say

first?

Mr. MOORE. NO, Mr. Chairman.
433

Senator METZENBAUM. They told you not to volunteer any information and you cannot say anything. You have nearly 10 years experience as a prosecutor, both for the State of Virginia and the

Virgin Islands. I am concerned that the criminal justice system

treats white collar criminals much more leniently than it does

criminals who are from poor disadvantaged backgrounds. As a

matter of fact, as recently as this morning while I was waiting for

my daughter in the hospital, I was reading about the special kind

of treatment that Mr. Boesky got when he was supposedly incarcerated, apparently not totally incarcerated at all.

The criminal justice system will not be perceived as fair and impartial if defendants are given differential treatment based upon

their income or professional background. Do you believe that a defendant's income or social and professional circumstances should

be taken into account for sentencing or punishment purposes?

Mr. MOORE. I think those would be factors that could be considered, but I think that they would not have very great weight in the

sentencing process. My criminal practice as a private attorney is

not that extensive and I am not as familiar with the sentencing

guidelines as I hope to become. But I think that those kinds of factors are probably factored in those sentencing guidelines.

Senator METZENBAUM. Your questionnaire indicates in recent

years your practice has focused chiefly on real estate law. It is my

understanding that you are currently representing a number of defendants in a real estate case that involves over 400 defendants and

has tied up a substantial amount of property in the east end of St.

Thomas. If confirmed it will be your duty as a judge to manage a

large case load and move complicated cases through the judicial

system as quickly as possible.

Will your involvement or has your involvement in this case

given you any insight into how a judge can effectively manage his

or her docket, and are you concerned that you may find yourself in

a situation where you have either been on one side or the other of

some particular defendant in that particular case, and will that

create some problem for you as far as handling your docket?

Mr. MOORE. That is a fairly unique case. In my years in the

Virgin Islands I do not believe there has been one that has brought

quite as many different property owners in. In that particular instance under the canons and just a conflict of interest, I assume

you would not be able to have any participation in that case. In my

experience, I cut my teeth in the rocket docket in the Eastern District of Virginia and I think we are in a pilot program implementation plan for the Civil Justice Reform Act.

In moving cases along, we have a tremendous backlog which is

going to take a while to whittle down. But I expect to use the magistrates to move the cases and one of the important factors, probably the most important from my experience at any rate, is that

whenever something happens in a docket in a case, that there be a

definite date for the parties to come back and that there be followup on that.

I am not familiar to a great extent with how much computerization we have in the Virgin Islands, but I certainly would expect to

explore that and implement that. And I think we can really help

move our docket once we get current and keep current.
434

Senator METZENBAUM. In a small area such as the Virgin Islands, does one get to know a very substantial number of the residents or the inhabitants of the island more so than in a place such

as New York or Cleveland or Detroit?

Mr. MOORE. Well, I think, yes, you are bound to get to know

more people. You certainly know more of the lawyers who litigate

and I am not sure that you would know any more individuals, but

the number of businesses, and you know, larger enterprises are

fewer, so you do get to know them.

Senator METZENBAUM. HOW big was your law firm?

Mr. MOORE. We have five partners and one associate right now.

Senator METZENBAUM. I understand that you currently serve as

chairman of the St. Thomas Bar Ethics and Grievance Committee.

You stated in your questionnaire that you consider your work on

the committee as one of your most significant activities. Give us a

sense of your duties and activities as chairman of the Ethics and

Grievance Committee.

Mr. MOORE. Well in the Virgin Islands up until now and I have

been promoting a change, but up until now the committees—there

is one in St. Croix and another committee—there are nine people

each—nine lawyers on St. Croix and nine lawyers on St. Thomas.

And they are all active practicing lawyers and they are all volunteers. We have no paid investigators. I have been advocating and

appointed people to look into professionalizing the staff investigative aspect of it to take the burden off of the lawyers and to enable

the complaints and grievances to move it through more quickly.

There are some other areas. We need to pay attention to and develop procedures for making disciplinary actions available to the

public so that the public will realize that there is an avenue for

relief if they have a problem with a lawyer. And I would expect in

the not terribly far future that we will begin to bring lay people in

and participate in the actual grievance procedure.

Senator METZENBAUM. DO you belong to some of the clubs or

have you belonged to some of the clubs in the Virgin Islands?

Mr. MOORE. Yes, Mr. Chairman, I belong to the St. Thomas

Yacht Club which is a combined social yacht club, tennis club. I

owned a boat for a number of years, so I primarily play tennis. My

wife and I use it as a tennis facility.

Senator METZENBAUM. IS that a fully integrated club?

Mr. MOORE. Absolutely fully integrated. That is right.

Senator METZENBAUM. Both with respect to race as well as religion?

Mr. MOORE. Race, religion, creed, place of origin, gender.

Senator METZENBAUM. Are there members of all faiths and all

creeds and all colors in that club?

Mr. MOORE. AS far as I know. There are certainly all creeds and

colors and male and female and people from everywhere. I do not

really know that much about the faiths of people. I would assume

so. It is not really something that is discussed very much unless

you know someone personally.

Senator METZENBAUM. The American Bar Association and House

of Delegates rejected a recommendation from one of its commissioners that it would have made complaints of unethical conduct

and findings of disciplinary boards a matter of public record from
435

the time a complaint was filed. The head of the ABA commission

proposing that recommendation said that, "it would free lawyers

from charges of cronyism, coverup and self-protection and charges

that we are looking out for our interests and not the interests of

the public." That is all a quote.

Those opposed the recommendation have said the rule would

damage lawyer's reputations. What is the practice before the

Grievance Committee in the Virgin Islands?

Mr. MOORE. The practice in the Grievance Committee which I

am trying to get reevaluated to provide more publicity. But basically the first time that the public would know that there has been a

grievance filed in the Virgin Islands would be when there actually

is an action which either dismisses the complaint, finds no violation or finds a grievance. And then that would be made public at

that point. But not from the beginning when the complaint was

filed.

Senator METZENBAUM. YOU are already aware the committee has

received an affidavit from retired Virgin Islands police officer Mr.

Raymond Fredericks. In his affidavit, Mr. Fredericks alleges that

in 1978 while you were a private practitioner, you attempted to

bribe him in order to drop drug possession charges against one of

your clients.

Mr. Fredericks acknowledged to the Judiciary Committee staff

that he never reported this allegation to the appropriate officials,

nor did he discuss with anyone the possibility of pressing charges

against you, or reporting this allegation to the local bar association.

In his interview with committee staff, Mr. Frederick stated that

he mentioned the allegation to two officers with whom he worked.

The committee staff interviewed both those officers and neither of

them could recall Mr. Fredericks ever discussing any bribery attempt on your part. The officers also stated that because of the serious nature of the allegation, it was highly unlikely that they

would ever forget such a conversation, if it had taken place.

Mr. Fredericks also told committee staff that at the time of this

alleged bribery attempt, he discussed the matter with then Attorney General Ive Swan. However, Mr. Swan has also indicated that

he does not recall ever discussing with Mr. Fredericks any bribery

attempt on your part. You have already discussed this matter with

committee staff.

Because this allegation was mentioned in the Virgin Islands

press a few months back, I wanted to give you the opportunity to

respond to these charges under oath and on the public record. By

my raising the question, I do not mean inferentially or impliedly or

in any other way to give any substance to the charge. But I

thought you might care to respond?

Mr. MOORE. Yes, thank you, Mr. Chairman, I certainly do welcome the opportunity to refute these baseless and scurrilous

charges that Mr. Fredericks has made since they have received a

good bit of press publicity in the Virgin Islands. I did not really

deem it was appropriate to get involved in that at that time. I welcome this opportunity.

Mr. Fredericks, whom I had worked with when I was an assistant U.S. attorney—and I think at the time that he is talking about
436

I had only been in private practice for maybe a year, year and a

half, something like that, maybe even less than that—and he is a

trained officer. If someone had attempted to bribe him or offered

him a bribe in his presence, he knew how to pursue that, either to

make an immediate arrest or to followup and arrange to an investigation and to make an arrest, if it was appropriate.

He did not do that and did not do that for the same reason that

none of the people that he suggested could corroborate, help corroborate that nor can they corroborate it. It is because it did not

happen. And I just—that absolutely and categorically, it did not

happen.

Senator METZENBAUM. All right. I appreciate your responses, Mr.

Moore, and I wish you well in your new undertaking.

This hearing stands adjourned.

Mr. MOORE. Thank you, Mr. Chairman.

[Whereupon, at 3:28 p.m., the committee adjourned.]
437

JUDGE STAHL'S BBSPOKSE TO CHAITOtAN BIDEH'S QPESTIONS

1. Aa a circuit court judge, would you consider yourself bound

by Suprome Court decisions even though you night personally

believe some of those decisions were incorrect or failed to

interpret the Constitution as you suggest it should be?

As a circuit court judge I an bound by

Supreae Court decisions even though it night

be my personal opinion that a particular

decision was constitutionally incorrect or

failed to adequately and properly interpret

the Constitution. I have no doubt that

pronounced constitutional law decisions must

be followed by inferior courts.

2. Suppose you heard a case where there was no clear Supreae

Court precedent on point, but which was clearly governed by a

First Circuit precedent with which you did not agree. What do

you believe your obligation is in that cituation? Under what

circunstances would you vote to reverse such a First Circuit

precedent? what are the factors you would consider?

While your question does not directly raise

the issue, a reconsideration is appropriate

where a prior panel decision has been

affected by controlling authority

subsequently announced or by a statutory

overruling.

In the circumstances where a prior circuit

decision controls and a judge disagrees, he

is nonetheless bound by the existing ruling

of the earlier circuit panel. In the rare

case where a circuit judge believes that a

prior panel decision is incorrect and the

issue is of importance, that circuit judge

could suggest in a concurrence that it would

be appropriate for the issue to be considered

by the entire court.

In determining whether an tn bane court

should reverse a prior decision, one could

appropriately consider recent well-reasoned

and convincing decisions of sister circuits.

It would be necessary that the authority be

Bost persuasive before a change in existing

precedent occurs. Unquestionably, the

orderly development of the law, the

requirement for stability in its development,

the value of predictable results, and the

need to ensure even-handed justice militates

against an easy change in existing precedent.
438

In the final analysis, before on* considers

overturning existing precedent, the issue

raised should be of sajor importance and its

likelihood of recurrence would have to be a

matter of very real concern.
439

ANSWERS TO SENATOR THURMOKD'S QUESTIONS

1. Judge St»hl, you have served as a United States District

Court Judge for Hew Buspshire since 1990. Now the President has

nominated you to serve as a United States Circuit Judge for the

First Circuit. What do you feel will be the aost rewarding

aspect of serving in this capacity?

The intellectual challenge of reviewing the

myriad of decisions which cone before a

district judge is perhaps the aost rewarding

aspect that I see to being a circuit judge.

The collegiality aspect of service with a

group of able judges where the give and take

of the law occurs is again something which I

look forward to with great anticipation. The

ability to have a significant role in

reviewing and deciding issues of first

impression will give Be great personal

satisfaction.

2. Judge Stahl, as an appellate judge you will be reviewing

decisions of district court judges, what criteria do you intend

to use in reviewing these decisions and trial records?

Having served two years as a United States

District Judge I aa very cognizant of the

vast nuraber of issues which one faces in that

position. Z will review factual decisions

aade by district judges with great deference

and will follow circuit court precedent in

reviewing other non factual matters.

3. Judge Stahl, what is the proper application of stare decisis

in Constitutional law; specifically, what is the duty of a

federal judge when confronted with a case in which one of the

precedents of his or her court clearly conflicts with the

Constitution as that judge interprets it?

Unless, and until, an SQ banc decision of the

court changes a prior Constitutional

precedent, there is no doubt that any

personal opinion of nine which might conflict

with that existing precedent must not be

given weight in arriving at any given

decision. Stare deeisis is the bedrock of

our system and any movement away froa decided

precedent aust be taken with great care.
440

RESPONSES FROM MS. THOMAS K. MOORE

TO WRITTEN QUESTIONS FROM SENATOR THURMOND

Mr. Moore, the phrase 'judicial activism" is often used to

describe the tendency of judges to make decisions on issues

that are not properly within the scope of their authority.

What does the phrase 'judicial activism' mean to you?

ANSWER

The role of the judicial branch is circumscribed by

provisions of the constitution and the laws enacted there

under by Congress. The District Court is further limited by

decisions of appellate courts. A trial judge's function is

to apply the Constitution and laws, as interpreted by courts

of appeals and the Supreme Court, to particular issues

presented by specific cases and controversies. In my view,

judicial activism occurs when these bounds are exceeded.

Mr. Moore, how would you handle an incident in which counsel

for one of the parties in your court was obviously not a

skilled litigator or was not prepared to adequately

represent the interests of his or her client?

ANSWER

I would distinguish between civil and criminal cases. Since

the consequences in a criminal case involve the defendant's

liberty, I would be more inclined to intervene to insure

that the defendant receives a fair trial. Criminal cases
441

are also sore likely to involve disadvantaged persons who

often cannot afford to choose their own counsel. In civil

cases, on the other hand, litigants are more often able to

retain attorneys of their own choosing. For this reason I

would be less likely to intervene in a civil case. In any

event, I would do everything possible to make any

suggestions or corrections to the attorney outside of the

hearing of the jury or the public to minimize embarrassment

to the attorney and prevent prejudice to the client.

Mr. Moore, would you tell the Committee what procedures you

will follow in determining any potential conflicts of

interest and how you intend to resolve them?

XMSWER

I will be guided by the Canons of the Judicial Code of

Conduct in determining any potential conflicts of interest.

For example, I will not be able to hear any matters

involving cases in which any of my clients, former clients,

family, close personal friends or business associates are

involved. Only after all financial relationships with my

law firm have been terminated will I be able to hear cases

in which my former partners and associates participate.
442

RESPONSES OF THOMAS MOORE TO WRITTEN QUESTIONS FROM SENATOR SIMON

During his questioning, Senator Metzenbaum expressed his

concern to you regarding the lenient treatment of some white

collar defendants. In your testimony before the Committee, you

stated that the income of the defendant should be taken into

account during sentencing. You emphasized that although it

should be a factor in the judge's decision, it should not be a

major factor.

Could you elaborate on when income should be a factor?

Should it be a factor when the defendant is impoverished, or when

the defendant is not impoverished? If confirmed by the Senate,

how would such a factor influence your sentencing decision?

ANSWER

As I indicated, I have not worked with the sentencing

guidelines enough to know if they provide for, or even allow, the

income level of a defendant to be considered. To the extent it

can be taken into account, I would not hold the income level or

economic circumstances of a disadvantaged defendant against him.

If anything, a disadvantaged background could be a mitigating

factor in my mind, at least for a first offender. White collar

crime is usually committed by one with more advantages and higher

income and persons convicted of such crimes should not expect to

receive more lenient treatment. Again, I want to emphasize that

I will be guided strictly by the sentencing guidelines set by

Congress and the Sentencing Commission.
443

ANSWERS TO QUESTIONS OF SENATOR THURMOND

GORDON J. QUIST,

NOMINEE TO D.S. DISTRICT COURT FOR

WESTERN DISTRICT OF MICHIGAN

1. Mr. Quist, you have b«en in the private practice of law

since 1962. Now the President has nosinated you to be a

United States District Judge for the Nestem District of

Michigan. Do you foresee any difficulty in the transition

fro« advocate to impartial jurist?

Mo. I know the difference between an advocate and a

judge. A judge aust set aside personal preferences and apply the

lew to honestly determined facts. In saking the change, I will

have the support of ay colleagues on the bench and the opportunities for education provided by the Judicial Center and others.

2. Mr. Quist, do you feel that a judge should assuae direct

control over coaplex issuea and cases in order to avoid

delays and to effectively aanage such cases?

Yes. My experience leads ae to conclude that if the

responsible district court judge becoaes personally Involved in

these cases at an early stage, the cases aove aore swiftly with

fewer probleas aaong counsel for the parties.

3. Mr. Quist, are there ever any eireuastences under which you

would consider it appropriate to decide a case on SOBS basis

other than one where the intent of the fraaers of legislation or constitutional provisions can be detected, either

through the text of a provision or its surrounding legislative history?

'Gordon J. QAst

June 23, 1992
444

1. Mr. Robreno, you have been a practicing attorney sine* 1978.

I noted in raviewing your file that your noat racent experienc*

has been civil in nature. Would you tall the COBBittaa what

steps you hava taken to prepare yourself for the criminal

caseload that awaits you at the federal district court level?

I have taken steps to ensure that I as current on the

developments in the criminal law which have occurred since I left

the Department of Justice in 1981. To that effect, I have been

in touch with the Federal Judicial Center to obtain a list of

publications and tapea which I will be studying with great care

in the near future. Additionally, I will be seeking the guidance

of By more experienced colleagues on the bench. I intend, of

course, to act with due deliberateness in the early stages of my

judicial career particularly in criminal caaes.

2. Mr. Robreno, I consider judicial temperament to be a

prerequisite for a federal judge. Would you give me your

thoughts on this subject?

Z recognice the need for a federal judge to be patient in

listening to the testimony and arguments of the bar and parties

and to act, at all times. In a polite and respectful manner

towards them. Rudeness or Intemperate remarks by a federal judge

towards a member of the bar, litigants, or the public are wholly

inappropriate.

3. Mr. Robreno, there is frequently a conflict between the

deeply-felt Constitutional views of a federal judge and the

constraints of judicial precedent. How would you resolve the

tension between your personal views and precedent?

Zt will be my duty to enforce the law as I find it based

upon the will of the congress and the interpretations of the

United States Supreme Court and the Circuit Courts of Appeal. My

personal views on a particular issue will not be relevant in the

discharge of my judicial duties.
445

HORMAH H. STAHL

Birth: January 30, 1931

Legal Residence: New Hampshire

Marital Statue i Harried

Education: 1948 - 1952

1952 - 1955

Bar: 1955

1956

Experience:

Office:

1955 - 1956

1956

1990

1990

present

Hancheater, New Benpshire

Sue Hciaerdinger Stahl

2 children

Tufts College

B.A. degree, manna CUM laude

Harvard Law School

LL.B. degree

Massachusetts

New Hampshire

Law Clerk to Hon. John Spalding

Supreae Judicial Court

Comnonwealth of Massachusetts

Devine, Mllliaet, Stahl I Branch

Associate and Partner

United States District Judge '

District of New Haapshire

55 Pleasant Street

P. O. Box 122*

Concord, New Haasphire 03302-122*

603 225-1525

To be United States Circuit Judge for the Pirst Circuit
446

United States Senate

Questionnaire for Judicial Nominees

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (Include any fonner names used.)

Moraui Harold Btabl

Address: List current place of residence and office

address(es).

Residence: 11 Glen Road, Bedford, Mew Hampaliire 03110

Office: naited Btataa District Court

55 Flaasaat street

P. O. Box 1334

Concord, saw Raapahira 03302-1224

Date and place of birth.

Manchester, Haw Haapahira - January 30, 1931

Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married - sue Helaerdinger (aaidaa naaa)

Spouse's Occupation - Senatorial Staff Assistant to United

Btataa Banator Warren B. Rudaaa, Coaoord, New Haapahira

03301

Education: List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

Tufts university 1948 through 1952, B.X., Magaa Cua Lauda,

1952

Harvard Lav school 1952 through 1955, LL.B, 1955

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.

Caap Baaoaat, Gilford, Hew Haapahira

counselor Boys Caap - 1953-1954

George C. Benjamin, Inc., Manchester, New Hampshire

Rod Man - June to August 1955
447

Clark, John v. tpml&lng, supraa* Judicial Court,

COBBonvoaltb of Maaaaebuaatta - Saptoabar 1*55 to August

1>5C

Davina, MilllBOt, 1B38 lla Straat, Manchaatar, Haw

Haapahira - H5« - Aaaociata

Davina, Milliaat, MeDonough, Stahl t Branch, 1838 Bla

Straat, Kanchaatar, Haw Haapahira 03104 - Partnar

Davina, Milliaat, stahl t Branch, last Bla Straat,

Kanchaatar, Haw Haapahira 03104 - 1973 - Partnar

Barvaa as intaria City Solicitor, City of Kanchaatar,

Kanchaatar, Haw Haapahira - 107S - continuad to aaintain ay

ragular practica

Davina, Hilliaat, Stahl I Branch, 1S50 Bla Straat,

Kanchaatar, Haw Haapahira 03104 - 1*7C - Partnar

Davina, Hilliaat, Stahl t Branch, Profaaaional Aaaociation,

1S50 Bla Straat, Kanchaatar, Haw Haapahira 03104 - 107S -

Officar

Davina, Hilliaat, Stahl C Branch, Profaaaional Aaaociation,

111 Haharat straat, Kanchaatar, Haw Haapahira 03101 - 1987 -

Offloar

I practiead with tba aaaa law fira froa 19SS through April

19*0. Xlthough tha law fira ohangad froa a partnarahip to

a profaaaional aaaociation and thara wara addraaa and naaa

ohangaa, it raaaiaad aaaantially tha aaaa fira. I had only

this aaaociation throughout ay professional oaraar, othar

than ay pariod clerking for Judge Spalding.

Dnitad Stataa District Court, 55 Pleasant Street, P. 0. Box

1224, Concord, Hew Haapahira 03302-1224

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.

Ho military service

8. Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Aaerlean College of Real Estate Attorneys

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are
448

or have bean a nember and give the titles and dates of any

offices which you have held in such groups.

Mew Hampshire Bar Association, 195t to present

Xanchester Bar Association, 1956 to present

Merriaack County Bar Association, Iff! to present

American Bar Association, 1959 to present

Mew Hampshire Board of Bar Kuuainers, Member, 19(7 to 1974

New Hampshire Board of Bar Examiners, Chairman, 1972 to 1974

Professional Conduct committee of the state of Bev

Hampshire, Member 1974 to 1979

New Hampshire Judicial Council, Member, 19S4 to 1990

Hew Hampshire Judicial Council, Chairman, 19B9 to 1990

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 That Occasionally Lobby

American Bar Association

New Hampshire Bar Association

Federal Judges Association

fill other PrganieaUpng

Manchester Historic Association

Mew Hampshire Historical Society

Friends of the Currier Gallery of Art

Manchester Institute of Arts and Sciences

Jewish Federation of Greater Manchester

New Hampshire Council on World Affairs

Manchester Bar Association

Merriaack County Bar Association

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 Judicial Court, Commonwealth of Massachusetts,

admitted 9/5/S5

Federal District court. District of Massachusetts,

admitted 2/29/56

State of Mew Hampshire, admitted 9/4/SC

Federal District Court, State of Haw Hampshire,

admitted 1/8/57

United States Court of Appeals for the First Circuit,

admitted 4/4/Cl

Tax Court of the United States, admitted 8/9/67
449

12. Published Writings: List the titles, publishars, 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 then.

Z do net have may published Mteriala as such. While I have

given speeobea before the legislature la oonneotion with my

work as a aeaber of the Judicial Council on matters of legal

policy, Z do not have any printed copies of any reaarke. Z

have also appeared on various bar education panels through

the years but at this tiae I do net have available copies of

ay aateriala used in connection with theee sessions. X copy

of ay speech aade to a high school audience in 1»1 Is

attached as is a copy of the report Z co-authored in

connection with the Public Service bankruptcy and a copy of

•n Airport Coaaittee Report Z authored a few years ago.

13. Health: What is the present state of your health? List the

date of your last physical examination.

The state of ay health is very good. My last physical

exaaination was held on January 8, 1991.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected

or appointed, and a description of the jurisdiction of each

such court.

Judge, United States District Court - District of New

Hampshire - Appointed

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.

See attached schedule
450

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

I have not held aa aleoted public office, other than

running for Bedford Town Library Trustee unauoeesafully many

years ago, I have not been a candidate for public office. Z

was a delegate to the 19M Republican Convention and was an

unsuccessful delegate candidate In 1972 and 19S0. In 1975,

I served as City solicitor for the City of Manchester. This

vas an appointed position. I was appointed by Governor and

Counsel to the State Judicial Council, and raappolnted to

that position by Governor and Counsel, and aleoted Cbaizaan

by act of the UBbera of the Judicial council.

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;

I vas a law clerk to Kassaohusatts Supreme Judicial Court

Justice, John V. Spalding, September 1955 to August 195C.

2. whether you practiced alone, and if so, the

addresses and dates;

I have never practiced alona.

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;

Devina, Milliaet, 1838 Elm street, Manchester, Mew Hampshire

195C - Associate

Devina, Milliaet, McDonough, Stahl ( Branch, 1838 Elm

Street, Manchester, Mew Baapshire 03104 - Partner

Devine, Milliaet, Stahl t Branch, 1838 Elm street,

Manchester, Mew Baapshire 03104 - 1973 - Partner

Devine, Milliaet, Stahl 8 Branch, 1850 EXa Street,

Manchester, Mew Baapshire 03104 - 1976 - Partner
451

Daviaa, Milllaat, 8t»hl S Branch, Professional Association,

1SS0 Bla Straat, Manchsstar, Haw Hanpshira 03104 - 1978 -

Officer

Davina, Milliaat, Btahl t Branch, Profassional Association,

111 Aabarst Btraat, Mancbastar, Haw Haapshira 03101 - 1907 -

Offlcar

Z practicad with tha aaaa lav firm froa 195( through April

1990. Although tha law fira ohangad froa a partnarahip to a

profassional aaaociation and thara wara addrass and naaa

ohangaa, it ramainad aaaantially tha aaaa fira and I had

only thla aaaociation throughout ay profassional carear,

othar than ay pariod clerking for Judge Spalding until Z

baeaaa a united states District Judge.

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?

whan I coaaancad praetica with Davina t Milliaat, it was

aaaantially a dafanaa trial law fira, aainly dealing in

workman's coapanaation and autoaobila accident case*. Tha

fira had a vary aaall business practice which was handled by

a junior partner. Z began work on tha trial side of the

fira and spent approximately tha firat tan plus years of ay

practice in tha trial area. At that tiaa discovery praetica

In Haw Baapshira was significantly different than it is

today in that written intarrogatoriaa ware not a large part

of trial preparation, rather aoat of trial preparation

involved the actual taking of oral depositions, tha usual

fact investigation, and pratrial actions, z worked as tha

aacond peraon on aany jury casaa, handled aany depositions,

and argued actions both in the state and federal court. On

ay own, Z triad numerous court cases, largely in the state

systea. Z did try a few jury cases in tha state system as

tha principal attorney and, to the best of ay recollection,

tried one or two through to conclusion.

As the nature of the law practice in Hew Hampshire changed,

and with the departure froa our fira of the partner who had

been handling business work, Z began to do acre of the firm's

eaerging business practice. During the next five years, Z

began to spend significantly more time in the developaent of

a business praetica and less time on the trial side, in the

initial tan-year pariod of ay practice Z had developed a

apaoialty in construction cases, and continued to perform a

significant amount of work for construction bonding

companies, and handled a fairly large number of cases

involving defaulting contractors where Z was responsible for

tha ooaplation of projects and the recovery of the amounts

that tha bonding company had spent in the coapletion work.
452

Aa a result, during this pariod I vaa involvad in aavaral

oaaaa which were largely court caaaa involving tha recovery

of sums froa defaulting oontractora and tha dafanaa of

claims brought by unpaid naterialmen and subcontractors.

Initially tha business practica of our law fIra waa

primarily with aaall to aadiua aiaa Maw Hampshire

corporations, and I did all of tha lagal work that a aaall

or aadiua aisa business would ganarata. I did tax work,

labor work, aoaa litigation, ganaral counseling, and

appaarad bafora numerous public bodies for businesses with

problaas Involving atata and fadaral aganoiaa.

During tha pariod of tha tanth to twanty-fifth yaar of ay

practica, I apant a significant amount of time bafora our

Stata Public utilities Coaaiaaion raprasanting a aajor wasta

hauler in numerous haaringa bafora tha Coaaiaaion ovar tha

obtaining of rights to serve various communities within tha

Stata, and at tha aaaa time on bahalf of tha aaaa cliant,

objactad to tha obtaining of righta by others in ay eliant's

territory. All of this work required haaringa before tha

Coaaission and included tha presentation of witnesses and

tha cross examination of opposing witnesses.

At no time did I have a significant practica in tha criminal

area, although as waa tha caaa with aoat New Hampshire

attornaya in tha lata fifties and aarly siztiaa, I triad

traffic and other ainor offanaa caaaa in what waa than our

Municipal Court Syataa.

Starting with approximately 1970 I began to develop a

apacialty in banking law and banking related aattars.

Sometime in that period I became counsel to tha Maw

Hampshire Banker's Association. In that capacity I wrote

legislation, appeared before legislative bodies in

connection with legislation, and generally advised banks on

all aapact of banking law.

At tha aaaa time I was general counsel to a aajor Mew

Hampshire bank and a member of its Board of Diractora and

Executive Coaalttaa. Thia rapraaantatlon spanned a ten-year

period ending in tha aarly 19808. In ay rapraaantatlon of

individual banks I was involvad in regulatory matters,

landing aattars, and tha handling of loan recoveries.

With tha advent of the explosive growth in southern Maw

Hampshire, I bacaae vary active in real satata davalopaant

law, and for tha laat tan years of ay practica I apant a

significant amount of time bafora planning boards, toning

boards of appeals, town selectmen, and city officials all in

connection with tha approval process for large davalopaant

projacta. I was tha lead aan in our firm in connection with
458

mcmm -vrj wjer Saw Baapshlr* r»«l ••tat* davalopaanta, aad

waa gaaarally raapoaaibla for ovaraaaicg and doing auch of

tha vork la thia araa.

Daring tha laat daeada, ay fotmar (in bagan to act aa bond

oounaal in both local and oounty bond iaauaa, and Z

paraoaally aarrad aa oo-eooaaal to Ondarvritara in

oonaaotion with aavaral Stata of Ma* Baapahira public

offaring*.

Za l»»o tha fira baeaaa outaida eooaaal to tha Btata of Maw

Baapahira in oonaaotion with tha Public sarvica coapaay of

Maw Baapahira bankruptcy, and I aarrad aa tha fin'a laad

aagotiator during thia pariod. Our vork for tha atata

actually coaaancad in 1994, whan oao of ay partaara and I

authorad a raport to tha atata on tha lapllcations of •

public utility bankruptcy, with tha advant of tha

bankruptcy of tha Public Sarvica Ccapaay of Bow Baapahira, Z

baeaaa involvad en a daily baaia rapraaaatiag tha atata of

Maw Baapahira in ita attaapt to protaet tha righta of tha

atata and tha ratapayara in tha raorgaaiaatioa of tha

coapany. Zn that connaction, although Z did net appaar in

tha bankruptcy court, Z did taka part in alaoat all of tha

aagotiationa with tha varioua craditer bodiaa, potaatial

buyara, and did all of tha intarfaoa work with tha eliaat at

tha atata laval including ragular appaaraneaa bafora tha

Joint coaaittaa of tha Lagialatura which waa monitoring tha

prograaa of tha bankruptcy.

Ba a part of tha fin'a rapraaantation of tha atata, Z

appaarad with othar aaabara of tha taaa bafora both tha

•anata and Bouaa Judiciary Coaaittaaa at public haaringa en

ralavant lagialation ponding in tha Dnitad atataa Cengraaa.

2. Describe your typical former clients, and mention

tha areas, if any, in which you have specialized.

My typical eliant waa a aajor davalopar, industrial concarn

or bank both locally baaad and with national eonaactioBa.

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

not at all? If the frequency of your appaaraneaa in

court varied, describe each auch variance, giving

dates.

Alaoat not at all after tha firat tan yaara of ay praotiea

2. What percentage of these appearancea was In:

(a) federal courts;

(b) state courts of record

(c) other courts
454

At this tima raoorda froa which mn aoourata pareantaga could

ba obtainad ara DO loagar availabla.

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

Practically all 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.

It is practically iaposaibla for me at this tiaa to find

racerda which would enable aa to give an accurate picture of

the amount of litigation I handled ia the first ton year* of

ay practice. My former firm's record daatmct policy does

not aake it feasible for as to do anything other than

estimate what I did during that period. I know that I did

servo aa lead counsel on several jury cases, and ay

recollection is that I did try at least one and possibly two

jury cases through to conclusion where I was the aole

counsel. I tried aany court cases during that period and

served as either co-counsel or second counsel on a number of

jury oases during the saae period of time.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

Jury - 20%

Non-jury - 80%

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 dates 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.

Because of the difficulty I have had in getting actual case

records, I can only speak in a general sense about
455

significant litigated eaaaa ia which I waa paraoaally

involvad. Moat of tha oaaaa I oaa raoall wara caaaa which

ultimataly wara appaalad to tha Maw Ranpahira Sapraaa court.

Tho oaaa of atata v. Hoy, which waa triad ia 19(2, involved

a laad daaaga aattar la which tha Stata of Maw Rampahira had

takaa a significant part of our olioat'a preparty ia ordar

to build a portion of tha lataratata highway ayataa. I

aarvod aa aaeoad oouaaal to tha laadowaar la thia oaaa, aad

took a vary actlva part la tha trial of tha oaaa aad

ultiaataly haadlad tha briaf oa appaal. Thia oaaa waa

aigaifloaat la that for tha firat tiaa la Maw Baapahira our

trial atratagy waa to uaa tha laadowaar, Mr. Soy, aa tha

priaoipal witaaaa aa to tha valua of hia owa proparty. Mr.

Soy waa qualiflad aa aa axpart aad tha quaatloa for tha

supraaia Court waa whathar hia taatiaoay waa proparly

adaittad. Tha daeialoa la Stata v. Kov la raportad la

voluaa 104, paga 513 of tha Haw Baapahira xaporta.

I rapraaaatad Fraacia Vhalaad, then of Maahua, Maw

Baapahira, latar to become tha Insurance Commissioner for

tha Stata of Maw Baapahira, aow ratlrad, ia a diaputa

involving a Covaaaat Hot To Compete. Mr. Whaland desired to

aat up a aaw insurance agaacy aad hia former aaployar, tha

Slawaby Agaacy, inc., of Maahua, Maw Baapahira, rapraaaatad

by William S. Green, of Shaahaa, Phiaaay, Basa t Green,

P.A., 1000 Elm Street, P. O. Box 3701, Manchester, Maw

Baapahira 03105-3701, (603) 668-0300, aought to enjoin hia

froa dolag ao based oa tha terns of aa existing employment

coatract. Tha oaaa involved aoaa rathar complicated

questions about tha aaforcaablllty of tha employment

coatract which basically pravaatad tha aaployaa froa working

oa hia owa for aavaral years la a wida gaographlo araa after

ha terminated hia employment with tha insurance agaaoy. Tha

oaaa waat to trial, aad waa aattlad during tha firat day of

trial. At that tlaa, tha oaaa waa of aoaa importance

because tha laaua of employment covenants waa juat bagiaalag

to be litigatad ia thia atata.

Another litigatad aattar which waa interesting and somewhat

unique, waa tha oaaa of Malna Bondlaa and Casualty Company

v. Toundatlon Conatructors. Inc.. which waa ultimately

dacidad by tha Supreme Court of Haw Baapahira on July 17,

1964, with a raportad daeialoa at 105 M.B. 470. Tho oaaa,

ia which I rapraaaatad tha bonding company, involved a

quaatloa of whathar a construction bond waa a performance

aad payment boad or aolaly aa ladaaaity boad, aad ravolvad

around aoaa rathar unique parol avidaaea laauaa. Tha oaaa

waa triad by aa la tha court balow, aad argued la tha

Supreme Court by a partner of alaa. Tha priaoipal attorney

for tho third party claimant waa Francis 6. Moultoa, who ia

aow dacaaaad. Tha judga at tha trial waa Judga William A.

Grimes, who at that tiaa waa a Superior Court Justice aad

io :
456

who is currently the ratlr«d Chiaf Justic* of tha N«w

Haapshira Supraaa Court.

In anothar litigatad aattar, this oaa litlgatad bafora tha

Maw Hjunpshira laauranca Dapartaant, I rapraaaatad tha

Mationwida laauraaoa Coapany bafora tha dapartaant aaaking

to ovarturn a dapartaantal daoiaion to dany eartala fllad

rata inoraaaaa. Tha caaa was triad in lata 1*78 and aarly

1979, bafora tha than Coniaaionar of laauranoa, Francis l.

Whaland. Tha oaaa involvad aignifioant quaationa about tha

povar of tha insurance coaaiaaionar to oonaidar tha profita

mad* by tha company froa writing of insurance in

jurisdictions othar than Haw Baapahira, tha obligation of

tha ooaaiaaionar to oonaidar undarwriting loaaaa within tha

atata, and othar aattara involving atata insurance law. in

particular, ona of tha aattara ultiaataly appaalad froa waa

tha ooaaiaaionar'a daoiaion to baaa a portion of hia ruling

in danying rata inoraaaaa on avidanea whioh waa not a part

of tha racord and which ha took notica of aftar tha closing

of tha hearing without giving ay cliant tha opportunity to

ba heard on tha avidanea. Tha Supraaa Court of New

Hampshire uphald tha ooaaiaaionar, but ordarad hia not to

oonaidar avidanoa not part of tha racord in making future

rata daciaiona. Tha atata waa rapraaantad by tha Offioa of

tha Attornay Ganaral.

I served aa second man on aavaral jury trials in tha fadaral

court, including ona in which tha lata Kenneth Graf of

McLana, Graf, Raularaoa t Middlaton, P.A. of Manchester, Haw

Hampshire, served aa counsel to tha dafandant, tha Cott

Bottling Coapany. Our cliant waa Liquid Carbonic

Corporation. This caaa, which waa basically a contract

dispute, waa aattlad aftar a faw daya of trial. I baliava

tha trial occurred aoaatiaa during 1957.

I racall serving aa aaoond counsel in anothar fadaral court

caaa involving a cliant of ours, Manchester Band, Gravel C

Cement Co., Inc., in whioh tha dafandant waa Unity Grist

Kill, Inc. Thia caaa waa triad through to vardict for tha

plaintiffa in December of 1957. Our cliant waa a contractor

aaaking to racovar on a diaputad construction contract.

Dafandant'a counsel in that aattar waa Attorney William F.

Phinnay of Bhaahan, Phinnay, Baaa t Green, p.A., who ia now

dacaasad.

I waa local counsel and took an aotiva part in a fadaral

court caaa Involving tha question of tha right of tha

plaintiff to obtain royaltiaa for a machinery design, whioh

caaa ultiaataly waa aattlad juat prior to trial. I waa

fully involvad in tha trial praparation, appeared aavaral

tlaaa in tha fadaral court with Boaton counsel, Jaaaa D. St.

Clair and Jerome P. Fachar of tha firm of Hale t Dorr, Sixty

11
457

state Streat, Boston, Masaaehusatts 02109, ((17) 742-9100.

On a taw occasions, 1 bandlad hearings bafora ttaa presiding

judge when Boaton counsel was not praaant, and I took part

in the negotiations loading to the ultimata aattlaaant of

the case.

I alao raoall trying two state court non-jury oaaaa in which

tha currant Senior Judge of tha Federal District Court of

Mow Haapshire waa opposing counsel. I do not raaaBbar tha

facts of aithar of thaaa cases.

I waa principal trial counsel in tha matter of Dennis Bishop

and CCS Disposal, Inc., Patition for authority of tha

first patitionar to transfar Proparty carrier Certificate of

Public Convanlanea and Necessity Mo. 2 36 to tha aacond

patitionar in which I raprasantad an objacting party.

Browning Ferris Industries, Inc. Other counsel in tha case

wara Oaorga J. Basbanos, Bsq., 385 Gorman Straat, Lowell,

Massachusetts 01852, ((17) 459-3333, and Robart Allgaiar,

who rapraaantad Sanitas Waste Diapoaal of M.H., Ino. This

aattar raised some relatively naw questions involving

whathar tha aacond patitionar was fit, willing, and abla to

perform properly tha proposed service, and to conform to tha

atatutaa, rulaa, and regulations issued by tha Commission.

Tha dafandanta alao raised tha issue of whathar tha

operating rights tha second patitionar waa seeking to

anforca wara different and more extensive than those hold or

utilized by tha first patitionar. Ultimately, tha

Commission dacidad that tha only issue it had to reach waa

tha fitnaas of tha second patitionar to perform properly

under tha statutes, and rules and regulations of tha state,

and the commission found that tha aacond petitioner waa

unfit. This waa a fairly significant decision baoausa it

squarely raised that issue in a way that it had not baan

fully raised in previous casaa.

19. Legal Activities: Describe the most significant legal

activities you have pursued. Including significant

litigation which did not progress to trial or legal natters

that did not involve 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 legal career I was involved in aattara of

public policy. Some years ago, I was Chairman of a

committee appointed to review the criminal justice system in

tha State of Maw Hampshire and authored tha final report. I

served as a member (19(7-1974) and later Chairman (1972-

1974) of tha Board of Bar Examiners. I was tha Chairman of

tha State Judicial Council, having first become a member in

1984. Bach of thasa funotiona brought ma into matters of

12
458

public conoarn about tha judiciary and tha legal proeaaa. I

also aarvad for a pariod on tha coulttaa for Profaaaional

Conduct.

Parhapa tha Boat significant case with which I waa involvad

waa tha bankruptcy and raorganlsatlon of tha Public sarvica

Company of Maw Baapahira. In 1984, tha Govarnor and tha

Ezacutiva council of tha stata of Haw Haapahira angagad aa

and ay fira to raviaw tha quaation of tha affact of a

bankruptcy of tha atata'a largest utility (Public Sarvica

Coapany of Maw Haapahira) on tha Stata of Haw Haapahira. X

report waa praparad for tha state, and subsequently whan it

bacaaa avidant that tha company waa going bankrupt, wa wara

angagad again by tha Stata of Haw Haapahira to represent tha

intaraata of tha stata and tha ratapayara in that

bankruptcy. I waa intimately involvad throughout tha

bankruptcy proceedings in tha nagotiationa which took placa

in connection with attaapta to aattla tha bankruptcy on a

consensual basis. while I did not appear in tha bankruptcy

court itself, that work baing handled by other members of ay

fira, I waa diractly involvad in practically all of tha

nagotiationa and appeared bafora legislative committees, tha

legislature itself, and in public on all aapacta of tha

bankruptcy. Tha bankruptcy of tha Public sarvica Coapany of

Maw Haapahira waa parhapa tha aoat important iaaua which had

facad tha state during ay antira lagal career.

Juat prior to becoming a judga, I rapraaentad tha coapaniaa

which praparad tha rauaa atudy for tha Paaaa Air Porca Base

commission which waa on tha phaaa-out liat. How thia

facility ia radavalopad may wall have a significant longterm affact on tha economic haalth of tha Stata of Maw

Haapahira.

I aarvad as lagal counaal to a aajor davalopar whoaa

condominium projact waa biaactad by a propoaad state

highway. Thia waa tha flrat condominium projact to ba takan

by tha Stata of Maw Haapahira in an eminent domain

procaading, and waa probably tha largaat aingla aainant

domain procaading to hava takan placa in thia atata. Tha

caaa involvad some significant lagal issues, many of firat

impression, and whila tha caaa never want to trial, Z waa

intimately involvad in all tha nagotiationa with tha atata

in connection with tha initial taking and in daviaing tha

strategy to ba used in connection with tha land daaaga

proeaaa itaalf.

Prior to ay becoming a judga, I routinaly handlad aajor raal

aatata developments which occurred in tha Stata of Haw

Haapahira during tha daoada of tha aightlaa. Ona in

particular, tha Cantar of Maw Haapahira projact, waa tha

firat projact in thia stata to involva tha uaa of air

13
459

rights. Ttxm r«al •atata and taohnioal problaaa la

connection with that development vara unusual, and while the

case did not involve litigation it was significant in that

it had much to do with tha redevelopment of an iaportant

part of downtown Manchester, Haw Hampshire.

In 1975 I was asked by tha than mayor of tha city of

Manchester to act as interim City Solicitor. Tha oity had,

up to that time, ussd part-tiae solicitors and tha city had

had significant difficulty in obtaining adequate lagal

•ervices from a part-time department. Tha mayor asked ae as

a public service to serve essentially for a one-nonth pariod

to prspara for a full-time solicitor's dopartaant, with tha

understanding that I, of course, had no intaraat in tha job.

Shortly aftar I took tha post tha aayor resigned to accapt a

position as tha director of a local hospital. I remained as

acting City Solicitor for many months more than I expected

primarily bacausa tha city want through an acting mayor who

subsequently became ill, and than an interim mayor,

rasulting in significant problems which had to ba handled on

an ongoing basis until such time as tha full-time department

became operational. While I did receive some compensation

for this work, I accepted the task essentially as a public

service.

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncompleted contracts and other future benefits which you

expect to derive from previous business relationships,

professional services, firm memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

or business interest.

Under the terms of an employment agreement with Davine,

Millimat, stahl s Branch, P.X., I had tha right to

termination payments. Under the terms of the contract, the

termination payment was to be determined by taking tha

average of my last three years total earnings from tha firm,

and paying that average amount ovar a six-year period (in

equal monthly installments), Although the agreement did not

provide for a lump sum payment, I was able to negotiate a

shorter repayment period of five years. Other than that

payment, I have no other financial connection with my former

law firm. Z recently rolled over the last of my former

firm's pension funds, to which I was entitled, into an IRA.

I continue to hold a one-half interest in a tract of

undeveloped land in Bedford, New Hampshire. The other one14
460

half intaraat la owmad by a trust of which John B. Paaraoa,

a fontar ollaat, la a principal. Efforts to aall thla tract

of land hava baan uaaueeaaaful. eivan the currant aconealc

situation In tha atata. It la practically lapeaslbla to aall

at thla time, nitiaataly, I aaauma that givan tha fact that

thla land has public watar and aavaraga, it will be sold. I

will continue to pursue a disposition of thla preparty until

I raach a auccessful aala.

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.

Since I became a federal district judge I hava scrupulously

tried to avoid conflict. I hava always conducted myself in

accordance with the Code of Judicial Conduct and, on

occasion, whan I hava had a doubt I have contacted the

committee for advice. All of the stock that I or my wife

own and the stocks and bonds in tha trusts for tha benefit

of my mother-in-law appear on my racusal Hat. I take no

casea involving my former law firm and, on occasion, when a

matter has arlaan where I have at acme time repreaented a

party, this haa alwaya been diacloaed in open court on the

record and counsel haa been given the opportunity of

requesting my racusal from further action on the matter. In

addition, in any caaa where I think there is any potential

for conflict because of a past repreaentation, however

remote, I have advised counsel of that fact and have given

each side the option of requesting my recusal.

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.

None

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 (AO 10)

15
461

5. Please complete the attached financial net worth statement in

detail (Add schedules as called for).

see attached Financial Stataaant

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign, your

title and responsibilities.

I have bean involved in numerous political campaigns over

the years. In 1972 I was involved in the campaign of

Representative Paul H. Mccioskey, Jr. who was seeking the

Republican nomination for President. I worked for

Congressman NcCloskey up to the Hew Hampshire primary which

occurred sometime in the spring of 1(72.

In 1979 I was involved in the presidential campaign of

Senator Robert Dole, and served largely in an advisory

capacity through the Hew Hampshire primary.

In 1988 I was involved in Senator Dole's primary campaign in

Hew Hampshire and served as co-chairman of the Hew Hampshire

campaign.

I was involved in the 1980 campaign of Senator Barren B.

Rudnan in a fund raising and general advisory position. I

was involved in Senator Rudman's 1986 Senate campaign in a

similar capacity.

I was involved in Governor John Sununu's 1982, 1984, and

1986 campaigns for governor of the State of New Hampshire,

again, largely in a finance and advisory position.

I was Involved in Governor Judd Gregg's 1988 gubernatorial

campaign in a finance and advisory position. Prior to my

nomination as Dnited States District Judge, I was Involved

in Senator Robert Smith's 199 0 campaign for the United

states Senate in a finance and advisory capacity.

III. GENERAL (PUBLIC)

1. An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances

and the amount of time devoted to each.

As a long-term member of my former firm's Executive

Committee and during the period that I was President of that

16
462

l«w firm, X anlargad tha firm'* handling of pro-bono aattara

through tha Bar Association program. Tha work I porformad

for tha Judicial Council, vhloh obviously was dona on a probono basis, inurad to tha banafit of thoaa paopla who vara

indlgant. Tha council bora a grant daal of ovarsight

raaponalblllty for tha public dafandsr program and managad

tha atata'n contract counaal program. X apant significant

blocks of tima almost on a vaakly basis In connaotion with

my post aa chairman of that body. Throughout my oaraar aa a

practicing attomay, X servad en numaroua charitabla boards

including tha Manchaatar Hiatoric Association, Padaratad

Arts of Manchaatar, Jawiah radaration of Groatar Manchaatar,

Manchaatar Xnatituta of Arts and Soiancaa, Elliot Hospital

and othara.

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?

To the beat of my knovledga, X am not a member of any club

or organisation that discriminates on the basis of raea,

aax, or religion. X have not and do not belong to any clubs

of any kind.

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 your

participated).

There is no selection commission in our jurisdiction

racoamendlng candidates for nomination to the federal

courts.

X was first approached about the vacancy for tha United

States Court of Appeals for tha Pirst Circuit by Banater

Warren B. Rudman, who auggaatad that X consider aaeking tha

nomination. subsequently, I was interviewed by the

Department of Justice on two separata occasions, and apoke

about the appointment with our junior United states Senator,

Robert Smith and with former Governor John Sununu. Xn

addition, X was interviewed by the Federal Bureau of

Xnvaatigation and the American Bar Association's Committee

on the Judiciary.

17
463

4. Has anyone involved In the process of selecting you as a

judicial nominee discussed with your 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.

•o

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.

IB a general sort of way it is my philosophy that ours is a

society of law, and that it is a judge's proper role to

interpret the law as sat forth by the Congress or by the

state legislature as the oasa may be, and not to impose his

or her personal opinion in the determination of

controversies which may come before him or her. If the

legislature enacts a statute which leaves areas open for

interpretation, then I believe that a judge has to axereise

his judgment in dealing with those areas where the law does

provide for interpretation. This still remains a government

of limitation, and recognising that there are three co-equal

18
464

brucbas of goraraaaBt, tb« judiciary tea u obligation te

properI7 conaidar tha rigbta of tha otbar co-aqual brancbai

of govamaant aniJ tba judiciary'a on liaitationa. Z

baliava that it ia aaaastial that tha judiciary follow

aatabllabad praoadaat. My aarrica aa a Dnitad Ctataa

Oiatrlet Judga baa rainfercad ay faalinga la thla ragard.

19
465

Attachment to

United States Senate

Questionnaire for Judicial Nominees

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) «. U.S. v. Arache. 94( F.2d 129 (1st clr. l»9l);

b. Bellino v. echluaberqer. 944 r.2A 2* (1st Cir.

1991);

c. Forsberg v. Volfcswaaen. 749 T. Supp 33 (D.M.K.

1990);

d. Bow v. Quentln W.. 750 P. Supp 54C (D.N.H.

1990);

•• Beo v. Anheuser-Busch. 749 7. Supp. 1173 (D.N.H.

1990);

f. Polvelad Laminates v. VIT8 Maschlnentiau. 749

r. Supp. 342 (D.N.H. 1990)

(The following four opinions were not published. I have attached

thea to this schedule.]

g. Kaufmann v. Sullivan. Ho. 91-241-S (February 10,

1992);

h. Conductron v. Williams. Ho. 90-148-S (August 23,

1991) ;

i. Gem Industries v. Design Coptenpo. Ho. 87-208-S

(February 21, 1991);

j. G.D. v. Westmoreland. Ho. 89-086-s (September 24,

1990)

(2) I have bean reversed twice. In Davidson v. Sullivan.

942 F.2d 90 (1st Cir. 1991), the First Circuit reversed my

decision to follow Lemire v. Secretary of Health and Human

Services. 682 F. Supp. 102 (D.H.H. 1988) and to overturn the

social Security Administration's reduction of plaintiff's

social security disability benefits pursuant to 42 U.S.C. s

424a, the "offset" provision. In United States v. Bell. 953

r.2d * (1st Cir. 1992), the First Circuit disagreed with my

finding at sentencing that defendant's use of an alias to

obtain a post office box and possession of a loaded handgun

and momentary hesitation upon arrest oonatituted obstruction

of justice under United States Sentencing Guidelines SS

sci.i and 3C1.2.
466

Z h»v« not had uy •ub»t«ntiv« or procedural rulings

•ffiraod with nignifieut oritioin.

(3) Tho following tour onsoa raisod aignifieant fadaral

constitution*! iaaaaa. >ono of tho following oaaaa haa baan

appaalad. Sinoa thay wara not publiahad, Z hava attaohad

than to this aohadula.

a. Traak w. ConntY of Btrafford. Mo. M-oas-B

(Dooaabar 20, ittl);

b. Coatallo v. Dovar. Mo. 89-425-8 (Movaabar 22,

1»»1);

o. Baaglia v. Crochar. Mo. M-SOf-B (Baptaabar 13,

x»»i);

d. Oanai v. iMnillmMnr »o- *0-323-B (Xuguat C,

tftl).

/
467

FINANCIAL DISCLOSURE REPORT ww.t.si&'i:^

1. Mrson Hvportlns (Lut naa*, first, •t'ddlt Inftfall

STAKL, RORMAH H.

2. Court fir CtrB»ntt«t)on

US COOKT OF APPEALS-1ST CIR.

5. tuts oi ••port

04/10/92

i. Tft(« (Article 111 judaM <ndlcat« actlv* or Mnior it«(ui; HMtstr«c« JUOCM indicate

fuU- «r ptrftiwil ^^^

ACTIVE STXTOS

S. report Typt {ch«ck appropriate type!

X iwalwtion. Oat* Ot/mm

Initial APTMI Final

6. Reporting Period

1/91-4/92

SS PLEASANT STR££7

COWCORD, HEW HWtPSHIRE 03301

IMPORTANT NOTES: The uutructions accompanying this form must be foDowcd Complete all pans.,

checking the NONE box for each section where you have DO ccportable infonnadoo- Sign on last page.

I. POSITIONS. (Reporting individual only-, see pp. 7-8 of Instmctioos.)

POSITION NAME OF ORGAMT2ATION/ENTITY

NONE (No raportabla pesltlofw)

dinner

BadBaitM

1933 Aaaociatcs Itio active partlcioationl

Interest terwlpated January. 1992

D/W/O Leo Heinerdinoer (Wo financial tntere»tl

II. AGREEMENTS. (Reporting individual only; see pp. 8-9 of InstniOioos.)

DATE PARTIES AND TERMS

•

mas

NONE (Mo rcporiibte igrtf«.nti)

Da^ine. Hillimet. Stahl t Branch. P^ - Teni-.in«tl.on Rgreoment

<now DevLne. Milllmgt t Branch. PM

III. NON-INVESTMENT INCOME. (Repoitin* individual and spousr.SM pp. 9-U of Ustniawni.)

NONE (Ka reportAl. nwi'lnwstwnt Incase)

1991

129J_

]

mi.

1"!

Devln*. MillLmet. St.M t Branch. PA - T.rmlnatlon Pay

De«ioe. HilUiwit. Stahl t Branch. P> - T«rminatlon P>Y

United States Senat«. Staff Kmlatant - Salary U

Devlne. MLlllmet. Stahl t Branch. PA - Salary Tturpugtl </?°

l»ov DeyLne. MLllli.et | Branch, PA1

59676.00

14919.00

0.00

t 68225.00

S 0.00
468

riMANCZU. DISCLOSURE REPORT (cont'd)

MM of Ptrton Baportint

STMCL, NORMAN H.

Data at toport

04/10/92

IV. REIMBURSEMENTS and GIFTS -transportaUon, lodging, food, enterlainmenL

(lacludu those to spouse ud depcodeol chiJii/cn, use the pirestbeticals *(S}* and '{DC)' to indicate repofUblc

reimbunemeots aad gills received by spouse and dependent children, respectively. See pp. 12-14 ofInstroctiocs.)

S9VRCE DESCRIPTION n HOME (Ho tuch rapertabta ral^MW

V. OTHER GIFTS. (Includes those to spouse and dependent children; use the pa/eotheticals *(SJ* and '(DC)' to

indicate other gifts received by spouse and dependent children, respectively. See pp. 15-16 of lostructioas.)

SOURCE DESCRIPTION y&m£ a NONE (No tuch r«pori.blc flfta)

« o-oc

5

s

s_

VI. LIABILITIES. (lacludu those of spouse and dependent children; indicate where ipplicable. person responsible

for Uabiljty by using the parenthetical '(S)' for separate liability of the spouse, *(J}' for joint liability of reporting

individual ud spouse, and '(DC)* for liability of a dependent child- See pp. 16- r of lostructioas.)

CREDITOR DESCRIPTION VftLVE COPS'

Q NOME (MO rtpertabU KabMttia*)

•wiBami i: UM,-inj.wo o

r:«3«!ffl,-.n!:888,t>t» k: S?*0

?^ ll?Woo «• »'».oo. >, «o.i»o
469

rlXANCIU. DISCLOSURE RETOKT (ccnt'd)

MMW Of fftatt UfWtirt

STAHL, NORKAJI H.

On* of lapert

04/10/92

VII. Page 1 INVESTMENTS and TRUSTS - income, value, transactions (lucludci those of spouse

and depcadenl dujdren; See pp. 18- 26 of Luuuctioiu.)

0»»crfDtion'«f Au«ts

(including truat MSttt}

M»e» •«)• •ft«r each aii«i

• »«npt fr«B prior ditclMur*.

D.

TranMctiona durfng raportlnc parlod

to (1) If net axwpt fron dfacloaur*

€

(3) (*>

NONE (Ho r«ort.bl«

inenw. •tiari, •«•

traf»*itton«}

C«r(yt« «Ml Cttatf LP KV DIST

C»flyt« RMI Citata t» IV DIST

DIST

1935 A>»i>ciat«i DIST

Cannon stock VtftC*p, Inc. o;v

Cowson Stock lloan Corp. OIV

Indian Trail Crevn Ltd. (S) DIST

OIV

OIV

Cm Stk. TlM-Warnar. Inc. DIV

Dm Stk, AT Crota, Inc. OIV

tan ftk. »url. IwrtMII Inc. DIV

Can Stk. Potowc Elactrlc OIV

OIV

15

1ft

C*n Stk, Ncrck t Co., Inc. i%) DIV

17

On Stk, Harck ft Co., Inc. DIV

•

Mutual tuna. Km Inwait. <S) OIV

' iZrtiWFii] f:Hs?88,''!.'83.0«. Ml^.•{.i^ooo s««i?ioi»,;5»?o?oo.ooo sais0

!^ fi!i

2

\&rcim\ i«. im???,0;.^^.^ 53}M.'f.'N-ffll! • ^JMUMU^o "•

,

"

,0•00,

"

,^50•l,00
470

riNANCIAI. DIS(XOSUK£ REPORT (cont'd)

•MM of P»»r»on taporitnt

STAHL, HOftMAR H.

C«tt cf Itpart

04/10/92

VII. Page 2 IWESTMENTS and TRUSTS--income, value, transactions (Indudes those ofspoote

ud dcpcndcBt childreo; Sec pp. 18-26 of InsLrucuoos.)

Bwcrfptlon'of Auvts

(including trwi M««tt)

PlKt a(X)a•fttr Mch aa>«t

t««*pc trm prior ducloiur*.

0..

Transaction* during raporting period

(1)

mi

(2> <2)

r

tSr

It not ««*pr 1r<m dfsclos^a

«#

(3) (*>

Cain' S3K>li.tfr

NONE (HO ropertobU

1

ILL Houtlnf 0*v«top. Bonds [«) INT

20

HH Mun< Bend Bank l-T

C«n Stk, ADP. Inc. (S) DIV

Can Stk, WP, Inc. DIV

23

HHHEtH Bond* INT

HHHCtH Bonds IKT

HH Tumplka Bonds (1) INT

Om Stk. IBM BIV

27 Rntl Btdg 904 Main Lynch VA(S) RENT

CD. NH $«v. Bank Concord. HH INT

CO. Dart*. Sav., dart*. NH (S) IMT

JO

IHT

CO, HH sav. Bank INT

52

Invastnwnt tact., Prud-Bach* INT

INT

54

lent. Prop., 11.1 Aera.Bad.NM RENT w

35 IRA. riral HK lank (Ajutk.) INT u

IRA, Pint HH Bank (Anoik.XS) INT y

' ISTJ^"!,^! WlsUVfiUo I^J^.'fo'iWooo JSi^W-.S'iraoo.oooKJI^ihKliWooc.

' «js-cif*?j.& mmKMh.ooo Mmwm.•&iwi&,'% "•,,M•

,>o,

""

5

'-°°0

5 UlrzWW"' 8:J5§fi:fi. "vSSii"" "'«•''""" 5:K!fSK3 j-c-^-rt..
471

FINANCIAL DISCLOSURE REPORT (cont'd)

MM of Vr»on ••parting

STAHL, NORMAN H.

Oitt of Icport

04/10/92

VII. Page 3 INVESTMENTS and TRUSTS - income, value, transactions (Indudu those of spouse

ao J depcndeot chUdrcD; See pp. 1S- 26 of Idstruaioos.)

5«»eription'af At*et«

Oncludlna tnmt MS«I»)

Pt*c* -(X)- %fttr e»ch iMCt

•aa«pt fro* prior duclonir*.

Crocs'vo l y*

at and of

D.

Trarwactiona durfng roportint p^lod

(1) (J) O)

11^

If not Maopt from diacloour*

ad-' (4)

NONE (Me rcportabt*

incoaa astcti, or

tronMltlon*}

Ptn*-0«v, MiUlgranch, Nan. HH m

n

C»r» Stk, ATJI DtV

Can Stk, BcLl Atlantic OtV

(1

Cm* Stk. Ktl South Corp. DIV

41

Om Stk, Carolina Po^r DIV

(2

Can Stk, Cantral SU Corp. DIV

43

Can Slk, E«on DIV

Can Stk, C«naral Kotort 01V

4S

Csn Stk, General Hoion Cla. M DIV

Can Stk, HTHEX DIV

47

Can Stk, facific Tolnil DIV

U

Oan Stk, UnltU DIV

Can Stk, Irlktol-Nrytrs,Squibb OIV

SO

Spec. Ck A«t. - rWUMMk] INT

51 SPK. Ck Aect. - FIIM{A«)ik)(S) in

52

Ck JUet. • FMCAansk) (J) in •>

Sav Acct • Center-point lankCS) INT

n

Sav Acct • Centarpolnt lank(j) in

' ISS^f-'S^rW Ml^J.-E.'RJ.ooo CU^.^.'il^ooo E.1foJ?Joi0

t5

!

.??8oo.o«o S^J^hiSllloSSooo

MlircSf*!i.H, imW^.'Bio.ooo KlMJ.'^^.oook:WSUM:88* «-•.»" "^.«"

5

jtMrs,1'*" ss^'isfi. fiW"1•"•"• "

,lr, ttwixa i-c.«./«.r.«
472

rimrcxAL DISCLOSUM REPOST (ceat'd)

i •f P«rMn •flpsr-tlng Oil. *t I

04/10/93

VII. Page 4 INVESTMENTS and TRUSTS -income, value, traBsaclions

and dcpeadeal duidjeu; See pp. 18-26 ofInalracboaL)

(ladodes tboee ofspouse

Ml«pt fHM prior 4l»clMur«.

Tranaaetlana Aa-tat rapwtln* parlad

•

<1) (2) (2)

tisr

If not ai«apt froa diacto^jr*

dill

1»V

"GsSHF9*

,S CO • Canttrpolnt lank IMT

Siv M«t - •«* of IK I«t

7 Uv Acct • IW* tf IN (S) mi

54 S«v Acct - tank of NN (DC) IIT

" CD - lank of M CDC) in

40 Can tik, Uolaort eiv

61 On Stk, Ualport (S) «1V

DIV

63 OIV

64 C*> Stk, Johnaon t Johnaon (S) ftlv

Cm Stk, NcOonald* Corp. DIV

** Canttmfal Ta» (.«( Tr (S) DIV l

47 totannlat Tw EJunpt Tr DIV

44 Can Stk. Sanaral Mfllt DIV

W aamioo. Civil Swvlea (S) •IIT

Can Stk, Rim. Mining t Mfa •I»

•IV

On Stk, Harth i HcClaman •IV

' IK,-!^'!,•! SSli^.-U'ta.-x. W^.'f.H^Mo S:MW°.;5tn»«» BSB*?"^ IIW<«

J «ircs«i..,. iaMt^o-Bb^ KimVM.*. Kg?10?^.i'88.0& "-""•"' •• -•^

J aircTW-"1 ssgst'isti. {saus—••••••-"" WKTSM T.C.^«..
473

flKANCIAL D1SCLOSTOE REPORT (cont'd)

Njra ttf Ptnon laporttng

STAHL. NORMMI H.

Date of laport

04/10/92

VII. Page 5 INVESTMENTS and TRUSTS -income, value, transactions (loduda those ofspouu

sad dependent children; See pp. 18-26 of loitnjciions.)

(includlns trust •&••»}

P(ac« "(K)- •fttr e»ch acact

Mwpt fro* prior disclosure.

0.

TransACtfons during reporting period

£1) (2)

r*nt m6r

(2)

fS?W)

If not eiMot from disclosure

On

(3) Ideotlty. of

buyer;tiller

HONE (Ha rmrtabl*

trSSSitTSSr* or

Cwi ML M OofvwUy t Sons DIV

tor Stk, 0r»cl« Systcnts (SI 01V

Can Stk, Oriel* SvstMS 01V

76

ton Slk, Ucsinsrk DIV

77

Can Stk. Coca-Col., Inc. DIV

78

ton $tk. K»Ho9 Co. DIV

79

ton Stk, Northern Trusl Co. DIV

42

Cj=n Stk, Pfltff DIV

Cw ttfc. HuOberMid DIV

Cwi Stk, Sl*t« St. loston Corp DIV

13

Dw^ Stk, Sysco Corp. DIV

ton Stk, Toys R Us DIV

ton Stk, Phldip Korris Co. DIV

M LoK«h»chM, InvMtors, Ltd (S) DIST

ton Stk, Abbot Lab* DIV

ton Stk, Abbot Labs (S) DIV

M

ton Stk, P*psfco (S) DIV

90

DIV

1

ir.JW.YrW tiJkfSS.-to'RS.ooo !:««?M,,?01i!8°ooo. S^^JolM^n^.oco SiS^I^S Jl^^rooo

' ^trcSrti. „, il:l}54?88^,lf?8o.o«. KimVW.o» ^W^MlSSo^o "

,,00•M,

"

,ao

-

MO

5

yiirr^s^"•• fl:SEsc'i!f,'. !s?ii:sr"

,

"

,

""

,

""

,,5:«jrsra !<*>•,***.<.
474

rZKUfCZAZ. DZSCLOSURE RZPORT (cont'd) STAKL, MOftMAM H. 04/10/93

MI. Page 6 INVESTMENTS and TRUSTS - income, value, transaclkms (Ind«da tbose of jpo«se

utd depeadest childreo; See pp. 1A-26 o( lastructioot)

Plae* •pt)- after c«cti ••!•[ •iMpi fro* prior disc(a*ur«.

durir« TrMactfona dWiof reporting parfad

(1) <2)

#1-

r2)

';•-.•

If nac Bunpt tram dfactaava

(3) til

NOKE (He rMortabl* inceiH, fttrti, or

91

CM Stk, lufcterwld (S) A DI» j T

92 IIA. a«ubrra«f t Ir^wn E otv 0 T

0>r STk. Row Brpol. Inc. A DIV K I

M

91

96

97

99

99

100

101

102

103

104

105

10*

107

ioa

1

l^^fr'^^r t:ll$?88,VtM,o«. Jrl^i^^ooo v-^^WMU^.ooo WI^KS ll^ooc

* mrcOTUD3>- ^il^^to^.ooo S:l^0Mil?on?:888.oooV^0?UM:8gfl?88o ^«."v-^«»

3 KiircSr^)^^ srtgg^irL 53?&^"t

'

u

^

)W!iTs?a "T

-

e

^

,to^t
475

rimMCIAL DZSCLOSUM REPORT (cont'd) STAHL, NORMAB H.

Mta of lapoi-t

04/10/92

VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (kdicue put of Report)

Statement /I - Agreements

11 Devlne. Milllaat. Stahl | Branch - Termination Agreement

Pureuant to an employment contract dated 1/1/B6 av salary

for the years 1987 through 1989 was averaged and the re-

«ultlng amount Is being paid to me over a 60 month period

ending in April 1995 in eoual monthly installments.

fnow Devlne. Milllmet j Branch. PA1

f/\ if i /-.
476

riNAMCIAX. DISCLOSURE REPORT (cont'd)

•«• at P«rMr> Importir*

STAHL, HORMAN H. 04/10/92

IX. CERTinCATlON.

In cottpliAnca with th« provisions of 28 u.s.c. 455 and of Advisory Opinion Ho. 57 ot thm

Advisory CooBittsa on Judicial Activities, and to ths bast of ay knowlad^a at the tiaa after

raasonabl* inquiry, I did not parforn any adjudicatory function In any litigation during the

pariod covarad by this report in which Z, ay spousa, or ay minor or dapandant ehlldran bad a

financial Interest, aa defined in Canon 3C(3)(c), in the outcome of such litigation.

I certify that all the inforaation given above (including inforaation partalning to ay

spousa and minor or dapandant ehlldran, if any) is accurate, trua, and coaplata to the bast of

ay knowledge and belief, and that any inforaation not reported was withheld because It sMt

applicable statutory provisions peraitting aon-disclosure.

I further certify that earned income froa outaide eaployaent and honoraria and the

acceptance of gifts which have been reported are In coepliance with the provisions of S

U.S.C.A. app. 7, 501 at. seg., 5 U.S.C. 7353 and Judicial Conference regulations.

Signature I^Tpll^fC/ I>*te *fiQ ? H IHOTE: ANY ITOIVIDOAL WHO JWOWINCLY AND WILFULLY FALSIFIES OR PAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AHO CRIMINAL SANCTIONS (5 U.S.C.A. APP. 6, 104, AND 18 D.S.C. IO01.)

TILING INSTRUCTIONS:

Mail signed original and 3 additional copies to; Judicial Ethics Coaalttee

Administrative Office of tha

United States Courts

Washington, D.C. 20544
477

FINANCIAL STATEMENT

NCT WORTH

Provide • complete, cumnt financial rwt worth statement which itemizes In detail all assets (inducfinf bank

•ccounts. real estate, sacurftics. trusts, investments, and ether financial holdings] all liabilities (including debts.

cnortgiics, loans, and other financtal obU|stions) of yourself, your spouse, and other Immediate mambars el

your household.

ASS 03

C«»A en hand and In tanki

Uslsd Mcuritln-~«dd KhMluto E

aaa Tilth wr** MBDwno •»<! notn rvcatvBWK

Out (POTI rvUtiwa and fri*ndi

Out frt>r-l OChvn

DMtbrful

«••! •ri»it e«n*4—<«d4 scMdutt -;•••<

ll««t nutt merta*!** rveanrcbt*

Autat and ethtr parsenal prepmrty

Catri vUut—lilt Inturanca Exh V

Ot^cr suati—ItamUa:

IRA - Exh V

1231 OOi Mmm pmyH* to I

NotM P*y«bta to a

Notti p«r«bta to raUtfeto

Ketoa ptysMa to wUmn

Aeeeufitk and bDta gwe

Unpaid Incema toa

OU>ar unpaid tai and Intofvtt

flaar aatata mortsarrt pajratla—add

achadula

QCti Chanal mortfagn and athar Sana

payiMa

OlAar daM>—Itamlia:

Pensions - Exh V

Toul #11^-1

Tour Oabllibaa

Total Cabtiniat and a

39

3,146

CONTINCCNT LiABtLITIU

3,146

CCNEJUL mromuTioN

96' 00

Aa andorMr, comakar or ru«•"io'

On laaaat or contractB

Lac*1 Claimt

Prmiaion for Tadaf*! Incema Tax

Octiaf apacial dabl

A/i any aaaam pladiad? CAdd achad

An |«u darandant In any autti ar

l^al aettonaf

Ka«« you aw tohan baniuvpKT?

_ii2

Personal property is an estimate only and without an appraisal.

SEE ATTACHED EXHIBITS
478

NORMAN H. AND SUB H. STAHL

BMft on Hand M>d In •«|||t>

Ownership

First NH Bank/Amoskeag Division

(Spec. Checking - bal. as of 3/19/92)

First NH Bank/Amoskeag Division

(Spec. Checking - bal. as of 2/28/92)

First NH Bank/Amoskeag Division

(Reg. Checking - bal. as of 3/12/92)

Centerpoint Bank CD

Centerpoint Bank

(Savings - bal. as of 2/28/92)

Bank of New Hampshire

(Passbook - bal. as of 12/2/91)

Centerpoint Bank

(Savings - bal. as of 1/23/92)

Bank of New Hampshire

(Passbook - bal. as of 10/24/91)

Total

J

H

J

H

W

EXHIBIT I

Amount

$73,402

6,159

4,500

73,842

6,128

20,162

44,932

78.198

$307,323
479

EXHIBIT II

NORMAN H. AND SUE H. STAHL

Ll.fd ••eiirltlaa M o* 3/12/»2

Number of Estimated

Shares Ownership Market Value

300 Abbott Lab B $ 17,925

400 Automatic Data Processing Inc. H 17,550

300 Bristol Myers Squibb H 23,700

500 Coca Cola H 40,563

400 General Mills Inc. H 26,400

600 Johnson t Johnson (as of 3/16/92) H 57,600

400 Kellogg Co. H 22,850

800 McDonalds Corp. (as of 3/16/92) H 34,100

150 Merck £ Co., Inc. H 22,125

500 Northern Trust Corp. H 25,125

900 Pepsico H 28,463

200 Pfizer H 14,525

800 Rubbermaid H 25,300

500 State Street Boston Corp. H 30,625

500 Sysco Corp. H 21,938

500 Toys R 0s H 16,813

700 WalMart H 37,013

200 Philip Morris Company

(as of 3/16/92)

H 15,575

300 Home Depot R 18,600

56 Bell Atlantic H 2,380

66 Carolina Power H 3,448

134 Central t South West H 3,484

140 Exxon H 7,735

215 Unitil H 8,224

1079. 316 Mass. Investors Growth Stock W 12,952

200 Abbott Labs W 11,950

100 General Electric w 7,800

200 Johnson t Johnson K 19,200

100 Merck t Company Inc. W 14,775

300 Pepsico Inc. W 9,562

100 Picturetel w 4,700

300 Rubbermaid Inc. ' w 9,375

200 WalMart w 10,475

208 ADP w 8.996

Sub-Total $631,846

Cash held by broker (as of 3/16/92)

Centenn ial Tax Exempt Tr (Hopper Soliday) w 54,395

Centennial Tax Exempt Tr (Hopper Soliday) H 50,385

Total $736,626
480

EXHIBIT III

NORMAN H. AND SUE H. STAHL

»t«twnt of LimtmA and Onllafa •«enrlti««

Investment in Carlyle Limited

Partnership

Investment In Carlyle Limited

Partnership

Investment in Ashland House

Partnership

Investment in VenCap, Inc.

Investment in Roan Ventures

Investment in Indian Trail

Investment in Loxahaxle

Total

Estimated

Market Value

H $ 1,000

W 1,000

H 112,000

H 0

H 0

H -

W .

$114,000

Bonds

New Hampshire Higher Education

t Health - due 2000 Student

Loan New Bank (as of 3/18/92) H 16,307

New Hampshire Higher Education

& Health - due 2013 H 15,000

New Hampshire Municipal Bond Bank -

due 7/92 (as of 3/18/92) H 5,035

New Hampshire State GO - due 5/95

(as of 3/18/92)

H 5,124

111. Housing Development Authority -

due 8/98 N 4,975

New Hampshire Turnpike Sys. - due 4/95 • 30.774

Total $ 77,215
481

EXHIBIT IV

NORMAN H. AND SUE H. STAHL

R«»l E»t«f Oim«d

Estlaated

PYmerahiB Market Value

Personal Real Estate, Bedford, NH w $24 5,000

Land and Building, Chilmark, MA J 400,000

Land In Bedford, NH - 50% Interest H 95,000

Building in Lynchburg, VA - 12.5% interest W 14.000

Total 5754,000'

Real Estate Mertaaoes Payable

There is a mortgage on residence on 11 Glen Road, Bedford,

New Hampshire, due in monthly Installments of principal and

interest of $823.00 through February 1997. Balance as of 3/5/92

is $39,966.85.

'Mo separate real estate appraisals have been obtained for

11 Glen Road, Bedford, NH, land and building in Chilmark, MA, and

land in Bedford, NH. These are the owner's best estimates of

current value. There is no current appraisal for the building in

Lynchburg, Virginia. This is the best estimate of value based

largely on the income received from the partnership.
482

NORMAN H. AND SUE H. STAHL

Individual Ratlrwnt Xecounta

Ownership

First NH Bank/Amoskeag Division

(as of 3/12/92)

First NH Bank/Amoskeag Division

(as of 3/12/92)

Neuberger & Bernan

(as of 3/12/92 - see attachment 1)

Total

EXHIBIT V

Amount

$33,821

19,443

7$1.2?2

$814,526

Pensions

Civil Service Retirement

Deferred Compensation from Devine,

Millimet, Stahl & Branch,

Professional Association per contract

(as of 3/92)

Total

9,055

188.974

$198,029

Cash Value Life insurance

New England Life - Policy /83010352

(as of 3/11/92)

New England Life

Total

Policy #8300482

20,096

65.083

$85,179

'owned by irrevocable insurance trust
483

Attachment 1

to EXHIBIT V

Individual H

Neuberger ( Bei

itir»»*nt Accounts

-man (as Of 3/12/92)

Number of Estimated

Shares Qvnership Market Value

500 Abbott Laboratories H $ 29,875

200 Bristol Myers Squibb Co. H 15,800

700 Coca-Cola Co. H 56,788

600 General Mills Inc. H 39,600

400 Home Depot Inc. H 24,800

400 Johnson I Johnson H 38,400

850 Kellogg Co. H 48,556

1,000 McDonalds Corp. H 42,750

200 Merck & Co. Inc. H 29,500

700 Northern Trust Corp. H 35,175

1,500 Pepsico Inc. H 47,438

350 Pfizer Inc. H 25,419

600 Rubbermaid Inc. H 18,975

350 State Street Boston ilorp. H 21,438

1,000 Sysco Corp. H 43,875

900 Wal-Mart Stores Inc.

Total

H 47,588

Sub- $565,977

Cash Equivalents 202,501

Dividends Receivable 1,080

Minus Cash f8.2961

Total $761,262
484

EDUARDO C. ROBRENO

Birth. July 28, 1945

Naturalized: February 23. X970

!• Legal Residence: Pennsylvania

Marital Status: Married

Education: 1963 - 1967

1967 - 1969

1975 - 1978

Bar: 1978

1979

Experience: 1978 - 1981

1981 - 1986

1986 - present

Havana, Cuba

Newark, New Jersey

Gladys M. Gonzalez

2 children

Uestfleld State College

B.A. degree

University of Massachusetts

M.S. degree

Rutgers University

School of Law

J.D. degree

Pennsylvania

New Jersey

Department of Justice

Antitrust Division .'

Trial Attorney

Meltzer 6 Schiffrin

Associate, 1981-1985

Partner, 1985-1986

Fox, Rothschild, O'Brien & Frankel

Partner

Office: 2000 Market Street, 10th Floor

Philadelphia, Pennsylvania 19103

215 299-2000

To be United States District Judge for the Eastern District of Pennsylvania
485

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Eduardo C. Robreno

2. Address: List current place of residence and office

address(es).

109"B" Lombard Street

Philadelphia, PA 19147

Office:

2000 Market Street, Tenth Floor

Philadelphia, PA 19147

3. Date and place of birth.

Havana, Cuba 7/28/45-becane naturalized citizen February 2, 1971

4. Marital Status (include maiden name of wife or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married. Gladys M. Gonzalez - not employed outside the home

5. Education: List each college and law school you have

attended including dates of attendance, degrees received and

dates degrees were granted.

Rutgers Law School - Camden, NJ

9/75 to 6/78

J.D. 1978

University of Massachusetts - Amherst, MA

9/67 to 6/69

M.S. 1969

Hestfield State College, westfield, MA

9/63 to 6/67

B.A. 1967

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.
486

Fox, Rothschild, O'Brien t Frankel (1987-Present)

2000 Market Street, Tenth Floor

Philadelphia, PA 19103

Meltzer & Schiffrin (1981-1986)

c/o Fox, Rothschild, O'Brien & Frankel

2000 Market Street, Tenth Floor

Philadelphia, PA 19103

Antitrust Division (1978-1981)

U.S. Department of Justice

Curtis Building, Suite 650

7th & Walnut Streets

Philadelphia, PA 19105

Stradley, Ronon, Stevens t Young (Summer 1976)

2600 One Commerce Square

Philadelphia, PA 19103

Massachusetts Teachers Association (1971-1975)

20 Ashburton Place

Boston, MA 02108

Rutgers University (1969-1971)

Labor Education Center

Ryders Lane

New Brunswick, NJ 08846

University of Massachusetts (1967-1969)

Labor Relations & Research Center

Draper Hall

Anherst, MA 01003

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.

N.A.

8. Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Articles Editor of Law Review - June 1977 - June 1978

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.

-a-
487

American Bar Association

Pennsylvania Bar Association

Philadelphia Bar Association

National Hispanic Bar Association

Hispanic Bar Association of Pennsylvania

(Board of Directors 1983-1986)

10. gther Htfrherships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

Cuban American Community Club (not involved in lobbying)

Puerto Rican Festival committee (not involved in lobbying)

Riverview condominium Association (not involved in lobbying)

American Red Cross Southeastern

Pennsylvania Chapter (not involved in lobbying)

Episcopal Hospital (not involved in lobbying)

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.

Pennsylvania 1978

New Jersey 1979

D.S. District Court for the Eastern District of Pennsylvania 1978

U.S. District Court for the District of New Jersey 1983

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily

available to you, please supply them.

"Cooperative Collective Bargaining Conduct Among Trade

Competition and the Non Statutory Labor Exemption to

Antitrust Liability." 9 Ruta L.J. 477 (Spring 1978)

"The Venue of Real Estate Limited Partnership Bankruptcy

Cases", Legal Intelligencer, Dec. 21, 1991 at 3. (Philadelphia, Pa.)

-3-
488

13. Health: What is the present state of your health? List the

date of your last physical examination.

Excellent. May 31, 1991

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

None.

15. Citations: If you are or have been a judge, provide: (1)

citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional

issues, together with the citation to appellate court

rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the

opinions.

N.A.

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

None.

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school

including:

1. whether you served as clerk to a judge,

and if so, the name of the judge, the

court, and the dates of the period you

were a cleric;

see below

2. whether you practiced alone, and if so,

the addresses and dates;

see below
489

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;

see below

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?

see below

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

see below

1986-1991 Fox. Rothschild O'Brien j FranXelPartner. 125 lawyers; Philadelphia, Pa. and

Princeton, N.J. Administrator of Creditors'

Rights Department. Supervision of seven

associates and two paralegals. Practice

involves representation of creditors in

banking related and commercial litigation

Batters in state, federal district and

bankruptcy courts throughout the United

States including actions in mortgage

foreclosures, guarantees, assignments of

rent, subordination agreements, agreements

affecting real estate as well as lender and

environmental liability. Currently, lead

litigation counsel for national commercial

lender involved in litigation in six states.

1981-1986 Meltzer | Schiffrin-Partner (since

1985) 15 lawyers; Philadelphia, Pa.

commercial transactlonal and litigation

boutique firm. Practice involved general

commercial litigation, including real estate,

construction, unfair trade practices, libel,

labor and administrative law. Also Involved

in counseling and representation of witnesses

in grand jury investigations and

representation of defendants pro-bono at

trial or on appeal in the state courts;

-5-
490

representation of Hispanic merchants in

business and personal natters; and legal

counsel to a number of non-profit

organizations including the Spanish Merchants

Association, the Puerto Rican Week Festival

Committee, Inc., the Cuban-American

Association of Philadelphia and the

Republican Hispanic Assembly of Pennsylvania.

1978-1981 United States Justice Department

Antitrust Division; Recruited into the

Department's Honor Program from law school

graduates ranked in top 15% of national

class. Represented the United States in

major price fixing and merger litigation.

Served as Special Assistant United States

Attorney for the District of New Jersey for

four months prosecuting currency and tax

violations. The representation included

grand jury investigations, jury trials,

sentencing and pre-trial motion practice.

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.

Regularly. During the earlier years of my

practice (1978-1985), I tried a larger number

of cases to verdict. This is partially

because my current caseload representing

commercial lenders often involves summary

proceedings (e.g., sequestration of rents.

Injunctions of foreclosures) the outcome of

which, as a practical natter, is dispositive

of the case.

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.

30%

Other courts.

10%

-6-
491

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

Civil.

95t

Crininal.

M

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.

Four, as sole counsel.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

1. Jury.

25%

2. Non-jury.

75%

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.

A. Jury Trials

1. United States v. Deerfield Specialty Pacers

et al.; 501 F. Supp. 798 (E.D. Pa. 1980)

Co-counsel for government

-7-
492

November 1980 three week jury trial before

the Honorable John B. Hanmm

Defense trial counsel, Ralph N. Brenner, Esquire

Three Parkway, 30th Floor,

Philadelphia, PA 19102

(215) 665-7231

Defense trial counsel, Seymour I. Toll, Esquire

1760 Market Street, 6th Floor,

Philadelphia, PA 19103

(215) 567-5770

Defense trial counsel, A. Grant Sprecher, Esquire

Fidelity Building, 23rd Floor

Philadelphia, PA 19102

(215) 875-5100

Defense Counsel, Arthur H. Kahn, Esquire

1600 Market Street

Philadelphia, PA 19103

(215) 751-2480

Defense Counsel, Samuel E. Dennis, Esquire

2000 Market Street

Philadelphia, PA 19103

(215) 299-2881

Government Supervisory Counsel,

John Hughes, Esquire

Chief, Antitrust Division

Curtis Building

Philadelphia, PA 19106

(215) 597-7405

The case involved the prosecution of five

companies and nine individuals for violations of

Section 1 of the Sherman Act. The agreement

alleged by the government Involved fixing the

price of glassine and greaseproof paper. Ten

individuals and companies pled guilty or were

convicted at trial.

Judge Hannum imposed the largest fines theretofore

imposed in the district on companies ($1,000,000

on the lead corporate conspirator) and jail time

for individual defendants.

The trial was the result of a lengthy nationwide

grand jury investigation and followed extensive

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493

pre-trial motion practice in which I acted as cocounsel writing the memoranda and arguing key

motions to the Court. See 501 F. Supp. 798 (E.D.

Pa. 1980). At trial, I had the role of giving the

closing statement and questioning critical

witnesses.

The case involved one of the first prosecutions

after the penalties under the Sherman Act were

increased from misdemeanor to felony level.

Successful Investigation and prosecution of the

offenses and the Judge's willingness to impose the

maximum allowable sentence after convictions gave

credibility to the Sherman Act as a tool to ensure

freedom In the market place.

2. United States v. James Suleski:

United States District Court for the District

of New Jersey, Criminal No. 81-31

Sole counsel for government

May, 1981 one week jury trial

before the Honorable Stanley Brotman

Defense counsel, Bruce L. Thall, Esquire

2128 Locust Street

Philadelphia, PA 19103

(215) 545-2400

The case involved prosecution of the defendant for

violations of 28 U.S.C. »7206(i) relating to the

filing of false information in a federal income

tax return in two consecutive years.

The government presented evidence that the

defendant had set up a complex scheme to siphon

funds from one operating company into another.

The defendant argued that his company was merely a

"conduit" or a "wallet" to pass through certain

funds to the second company operated by his father

and that he received no benefit from the

transactions. The principal issue was the degree

of control the defendant had exercised over the

funds. The government's proofs relied on tracing

of funds and expert testimony of IRS Special

Agents. The jury returned guilty verdicts against

the defendant on both counts of the indictment.

The Court's jury instruction and the verdict

validated the government's theory that the
494

taxpayer had effective control over the income he

had tailed to report.

3. Oreland Housing. Inc. v. O'Heill mt al

No 1387 Civil-84 Court of Common Pleas,

Cumberland County, Pennsylvania

Sole counsel for plaintiff.

April 1987 four-day jury trial before the

Honorable Edgar Bailey

Counsel for corporate defendant,

Richard C. SnelbaXer, Esquire

West Main Street

Mechanicsburg, PA 17055

(717) 697-8528

Counsel for individual defendants,

Halter K. Swartzkopf, Jr., Esquire

410 Walnut Street

Hollidaysburg, PA 16648

(814) 696-1000

Local Counsel for plaintiff,

Janes Flower Sr., Esquire

7 Urbine Road

Carlisle, PA

(717) 249-3022 17013

I acted as lead counsel for the plaintiff

undergoing reorganization under Chapter 11 of the

U.S. Bankruptcy Code, in an action against a local

bank and two Individuals who were suppliers of

construction materials to the plaintiff. The main

issue Involved the validity of an assignment to

the plaintiff of a certain certificate of deposit,

given as security for work performed, and whether

the bank had improperly and without authorization

released the certificate of deposit to the

individual defendants.

The individual defendants contended that the

signature on the assignment was a forgery and

that, in any event, certain triggers under the

construction agreements, which permitted the

release of the certificate by the bank to the

plaintiffs, had not occurred. The bank contended

that under the law of negotiable instruments, it

had no liability for the release of the

-10-
495

certificate of deposit and that it had never

agreed to act as escrow agent.

The jury returned a verdict for the plaintiff and

against both the bank and the individual

defendants for $65,000, including interest,

representing the amount of the certificate of

deposit.

4. Mouratidis et al v. Design and Funding, meet al; U.S. District Court for the Eastern

District of Pennsylvania, Civil Action No.

82-1738

Sole counsel for plaintiffs, eight members of

the same family

April 1984 one week jury trial before the

Honorable William Ditter

Defense counsel,

Louis Sinatra, Esquire

640 Sentry Parkway

Blue Bell, PA 19422

(215) 941-2498

The matter Involved allegations of fraud and

negligent misrepresentation concerning the

development and marketing of a "Greek Cookie".

The plaintiffs claimed the defendants had

collected in excess of $35,000 from plaintiffs to

evaluate the prospects of success of the product

and to assist then in marketing it. The

plaintiffs' efforts at manufacturing and marketing

the product did not succeed. In the process, the

plaintiffs claimed to have spent over $100,000.

The defendants denied liability and contended that

the plaintiffs failed to follow the advice given.

The defendants introduced expert testimony concerning the rate of failure for start-up businesses. On the eve of trial, the corporate

defendant filed for bankruptcy under Chapter 11 of

the U.S. Bankruptcy Code.

The case proceeded to trial against the president

of the corporate defendant. The fraud count was

dismissed by the Court at the end of the

plaintiffs' case. The jury returned a verdict for

the individual defendant on the negligent

misrepresentation count.

-11-
496

The Court accepted the proposition that Section

552 of the Restatement of Torts 2d concerning

liability for furnishing Information on a

negligent manner, had been adopted In Pennsylvania

and Instructed the jury to consider this theory of

liability.

Won-Jurv Trials

5. Commonwealth v. David Gill. Court of Common

Pleas of Philadelphia County, /8202-228

Counsel for defendant

April 1982 four day trial before Honorable

Leon Katz

Counsel for co-defendant,

Kenneth Dlxon, Esquire

1315 Walnut Street

Philadelphia, PA 19107

(215) 545-0325

Then Assistant District Attorney,

Nathaniel Hetz, Esquire

Mesirov, Gelman, Jaffa, Cramer & Jamieson

1735 Market Street

Philadelphia, PA 19103

(215) 994-1269

The defendant was an inmate at Holmesburg State

Prison, Philadelphia, Pennsylvania. This case

involved prosecution of the defendant for rioting,

conspiracy, aggravated assault, simple assault and

terroristic threats in connection with a riot at

the prison. After being appointed counsel, I

conducted a lengthy factual investigation

involving the interview of two dozen Inmates in

search of potential witnesses.

The Government claimed the defendant led the

disturbance by inciting other inmates and striking

several correctional officers. The defendant did

not deny participation, but claimed he did not

incite others and did not strike officers except

in self-defense.

The case required the use of a special litigation

strategy for representing unpopular defendants in

sensitive cases. This approach consisted of

-12-
497

acknowledgment of participation but developnent of

the justification of self-defense. The Court

acquitted the defendant of aggravated assault,

conspiracy and making terroristic threats, but

convicted the defendant of simple assault and

rioting. The Superior court affirmed the verdict.

6. Barbara Stanaer. et al v. Athos Steel

Aluainua. Inc. et al; In the United States

Bankruptcy Court for the Eastern District of

Pennsylvania, 71 B.R. 525 (Bankr. E.D. Pa.

1987) affirmed. Judicate, 1989.

Counsel for plaintiffs

Two day trial in February 1988 before

Honorable Bruce Fox

Counsel for defendants.

Franklin Poul, Esquire

Wolf, Block, Schorr i Solis-Cohen

The Packard Building, 9th Floor

15th t Chestnut Street

Philadelphia, PA 19102

(215) 972-2200

The plaintiffs, ainorlty shareholders of a

closely-held corporation, brought this action,

derivatively, on behalf of shareholders and,

individually against two closely-held

corporations, an officer and director of the

corporations, and the legal counsel to the

corporations. The complaint charged that the

defendants' principal officer planned and executed

certain financial transactions, with the advice of

corporate legal counsel which were designed to

acquire control and ownership of one of the two

corporations (which was solvent) through the use

of the funds of the other corporation (which was

insolvent).

The case involved numerous complex legal issues

including the jurisdiction of the bankruptcy court

to hear "core" and "related" proceedings, 28

U.S.C. S157; whether the complaint stated a

derivative cause of action; the scope of the duty

of loyalty and/or care owed by officers of

closely-held corporations to minority shareholders

and whether those duties are breached by an

-13-
498

officer who seeks "control" of the corporation and

whether corporate counsel owed minority

shareholders a duty of loyalty and, if so, did his

actions breach that duty; and whether the sellers

of the stock were Indispensable parties under

F.R.Civ.P.19.

The Bankruptcy Court found that the plaintiffs

were entitled to bring the action derivatively;

that one count of the complaint was "core" as to

which the court would enter judgment while, as to

the other count, it would issue only proposed

findings of fact and conclusions of law; that the

defendants were subject to the heightened teat of

"intrinsic fairness" but that under that test, the

defendants had not breached their fiduciary duty

to the plaintiffs; and that the use of the money

of one corporation to get control of another did

not adversely affect the rights of plaintiffs.

By agreement of the parties, the appeal of the

case was submitted to Judicate, a private conflict

resolution organization, in lieu of the U.S.

District Court. Judge Graenberg, former judge of

the Court of common Pleas of Philadelphia County,

sitting as an appellate court and applying

principles of appellate review, affirmed the

decision of the Bankruptcy Court.

7. Northern Liberties Neighbors Association v.

The Citv of Philadelphia, et al.: Court of

Common Pleas of Philadelphia County, July

Term, No. 4210

Counsel for plaintiffs

Four day non-jury trial in May 1985 before

the Honorable Charles A. Mirarcbi, Jr.

Defense counsel,

John S. DlGiorglo, Esquire

Redevelopment Authority of City of

Philadelphia

1234 Market Street

Philadelphia, PA 19107

(215) 854-6800

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499

- Defense Counsel,

Jesse Milan, Esquire

Temple university, Sullivan House

2nd Floor

Broad 4 Berks Mall

Philadelphia, PA 19122

(215) 787-7405

- Defense Counsel,

Charles A. Peruto, Sr., Esquire

Washington West Buildinq

N.E. Corner 8th & Locust Streets

Philadelphia, PA 19106

(215) 925-5800

I represented the Northern Liberties Neighbors

Association ("Association), a local citizens

organization, seeking to enjoin the Redevelopment

Authority of the City of Philadelphia from

entering into and/or executing the terms of a

contract with a private developer to build two

buildings to be leased to the Commonwealth of

Pennsylvania for use as stats offices. The

plaintiff contended that the actions of the

defendants were arbitrary, capricious and

discriminatory; violated the provisions of the

Urban Redevelopment Law in that the construction

was not in conformity with the comprehensive

general laws of the City of Philadelphia; and

violated the constitutional rights of the members

of the Association to due process of law and equal

protection of the law.

After trial, the Court denied the plaintiff's

motion for injunctive relief and entered judgment

for defendants.

8. Marx Stationary j Printing Company et al v.

Citv of Philadelphia: Court of Common Pleas

of Philadelphia County, Pennsylvania,

November Term 1982, No. 1313, affirmed. 114

Cmwlth. 265, 538 A.2d 648 (1988); petition

for allocatur denied. 520 Pa. 610, 553 A.2d

972 (1988). Before the Honorable Lois G.

Forer

November 1982 - December 1988

Co-counsel for plaintiffs

-15-
Co-Counsel for Defendant Redevelopment

Authority of City of Philadelphia,

Donna S. Kahn, Esquire

1600 Market Street

Suite 1416

Philadelphia, PA 19103

(215) 568-4202

co-Counsel for Defendant Redevelopment

Authority of City of Philadelphia

Carol E. Tracy, Esquire

women's Law Project

125 S. 9th Street

Philadelphia, PA 19107

(215) 928-9801

This case involved a commercial building known as

the Harrison Building (the "Building"), which was

located at 1001-23 Filbert Street, Philadelphia,

Pennsylvania. Plaintiffs ("tenants") were former

tenants of the Building.

In a prior case brought by the Owners of the

Building (the "Owners Case") the Court of Common

Pleas had found that there had been a de facto

taking of the Building, by the Redevelopment

Authority of the City of Philadelphia ("RDA").

Thereafter, the Tenants filed a Petition for

Appointment of a Board of View based on the dfi

facto taking which the trial court had found in

the Owners' Case. The RDA and the City of

Philadelphia ("City") filed Preliminary Objections

to the Petition. The Tenants, the RDA and the

City then agreed to hold in abeyance the Petition

and the Preliminary Objections pending the

determination of the appeals to the Commonwealth

Court in the owners' Case.

While the appeal in the Owners' Case was still

pending, the Owners, the RDA, the City and a

proposed purchaser of the Building settled the

Owners' Case. The trial court, however, was not

advised of the pendency of the Tenants' action at

the time it was asked to approve the Stipulation

of Settlement dismissing the owners' action and

vacating its prior finding that a Order taking had

occurred.

-16-
501

When the Tenants later discovered that the Owners'

Case had been settled and that the finding of a

taking had been vacated, they filed an Aaended

Petition setting forth the additional facts that

they had discovered. The RDA and the City, again,

filed preliminary objections.

The trial court sustained the Preliminary

Objections of the City but overruled those on the

RDA. The case vas then submitted to the Court on

the basis of depositions and a stipulated record.

After argument, the trial court granted the

Tenants' Amended Petition for Appointment of a

Board of View finding that the doctrine of

collateral estoppel was available to the Tenants

to bar relitigation of the issue of the de facto

taking and that the Tenants were displaced persons

under the Eminent Domain Code.

The RDA requested the trial court to stay the

decision pending appeal. After hearing, the trial

court denied the request. The RDA appealed to the

Conunonwealth court which, after a telephone

hearing before a single judge, granted the stay,

pending appeal on the merits.

After argument, the Commonwealth Court affirmed

the decision of the trial court dismissing the

RDA's preliminary objections and directing the

case to proceed to a Board of View. The RDA's

petition for allocatur was denied.

The case involved a veritable precis of

Pennsylvania taking law including a consideration

of whether under the Eminent Domain Code the

plaintiffs were "condemnees and/or displaced

persons" and if so, the types of damages as to

which they were entitled. Additionally, the case

raised a plethora of procedural Issues including

the applicability of "offensive" collateral

estoppel, the jurisdiction of the trial court to

vacate orders once the periods for reconsideration

has expired and the effect of "fraud on the court"

on the court's ability to modify an earlier order.

I acted as co-counsel through the lower court

litigation, preparing pleadings and assisting in

the conduct of discovery.

-17-
502

Beginning in the sumner of 1987, I acted as

counsel on the appeal before the Conaonwealth

Court on both the stay of the lower court's

decision and on the decision on the merits. Since

the decision by the commonwealth Court directing

the case to proceed to hearing before the Board of

View, I have not been involved in the case.

C. Multi-Partv and Multi-Forua Litigation

9. Mortgage and Realty Trust v. Philip Pilevskv;

United States District Court for the District

of Massachusetts, Civil Action 90-113315,

before Honorable Walter J. Skinner;

Mortgage and Realty Trust v. Philip PilevsKv.

et al. t/a Berdon Plaza: Bristol County,

Massachusetts Superior Court 90-1064, before

the Honorable John M. Xifaras;

Mortgage and Realty Trust v. Philip Pilevskv.

et al. t/a Berdon Plaza Massachusetts Appeals

Court 91-J-5. before the Honorable Edith

Fein;

Mortgage and Realty Trust v. Philip Pilevskv.

et al. t/a Berdon Plaza Massachusetts Appeals

Court 90-J-636, before the Honorable

Frederick Brown;

Mortgage and Realty Trust v. Philip Pilevakv.

et al. t/a Berdon Plaza. Massachusetts

Appeals Court, No. 90-P-1322; Panel not assigned

Mortgage and Realty Trust v. Philip Pilevskv et

ait. United States Bankruptcy Court for the

Central District of California, LA-90-08976-SB,

before the Honorable Samuel L. Bufford.

Counsel for plaintiff

April 1990 - March 1991

Counsel for defendants

Paul Wilson, Esquire

Mintz Levin Cohn Ferris

Glovsky & Popeo, P.C.

1 Financial Center

Boston, MA 02111

(617) 542-6000

Substitute counsel for defendants

Barry S. Fischer, Esquire

Bernkoff, Goodman t Baseman

125 Summer Street

Boston, MA 02110-1621

(617) 345-0770

-18-
503

Substitute Counsel for defendants

David C. Segal, Esquire

Sukenlk, Segal t Graff, P.C.

350 Broadway, Ninth Floor

New York, NY 10013-3984

(212)-966-6100

Plaintiff's Massachusetts counsel

Leslie H. Rudnick, Esquire

Ring Rudnick t Grefe, P.C.

The Heritage on the Garden

75 Park Plaza

Boston, HA 02116

(617) 482-6300

Plaintiff's California counsel

Nicholas Franks, Esquire

Morgan, Lewis & Bockius

Twenty Second Floor

801 South Grand Avenue

Los Angeles, CA 90017

(213) 612-2500

I represented the plaintiff. Mortgage and Realty

Trust, a national commercial real estate lender,

in efforts to collect on a $5,400,000 loan,

secured by a mortgage upon a shopping center, an

assignment of the income stream generated by rents

from tenants of the shopping center, and a

personal guarantee. The action spanned three

jurisdictions (district and state court in

Massachusetts and bankruptcy court in California)

and was before the Massachusetts Appeals Court on

three occasions. The Plaintiff pursued four

parallel actions as follows.

One, the plaintiff began an action in Bristol

County (Massachusetts) Superior Court seeking to

enjoin the defendants from interfering with the

plaintiff's rights to collect rents directly from

the tenants of the shopping center upon

defendants' default. After hearing, the Superior

Court denied the plaintiff's motion and, instead,

enjoined the plaintiff from interfering with the

defendants' right to the rents. The plaintiff

appealed to a Single Justice of the Massachusetts

Appeals Court who, after hearing, reversed the

Superior Court, and ordered the rents to be paid

into escrow.

Two, the plaintiff commenced a foreclosure action

on the mortgage. On the eve of the foreclosure.

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504

the defendants filed a "counterclaim'1 In the

Bristol County (Massachusetts) Superior Court

action, alleging lender liability as an offset to

the plaintiff's claim. Upon request of defendants

and after hearing the Superior Court enjoined the

foreclosure. The plaintiff appealed to a Single

Justice of the Massachusetts Appeals Court which,

again, after hearing, reversed the Superior Court

and allowed the foreclosure to proceed.

Three, because the defendants had "counterclaimed" against the plaintiff, an entity which

was in bankruptcy, the plaintiff filed a motion

for contempt in the U.S. Bankruptcy Court in the

Central District of California seeking

compensation and punitive damages for violations

of the automatic stay.

Four, the plaintiff commenced an action on the

guaranty in the U.S. District Court. The

individual defendant filed a motion to dismiss

which was denied by the Court.

The case was resolved on favorable terms to the

plaintiff by permitting the foreclosure to occur,

providing for the turn-over of all rents to the

plaintiff and payment of $850,000 of the

$1,600,000 guaranty.

A significant and unsettled issue under

Massachusetts law was raised by the litigation.

In a previous case, on similar facts, the U.S.

Bankruptcy Court applying Massachusetts law, had

ruled that a mortgagee not in possession of the

property was not entitled to collect rents

directly from the tenants, upon the default of the

mortgagor, notwithstanding the existence of an

independent assignment of rents. This ruling

formed the basis for the Superior Court's decision

enjoining the plaintiff's alleged interference.

The Single Justice of the Massachusetts Court, by

vacating the injunction and restraining the

defendants from interfering with the plaintiff,

chose not to follow the Bankruptcy Court's

holding. The ruling is significant in that it may

allow mortgagees to collect rents without taking

possession of the property.

I directed all phases of the litigation and

personally prepared pleadings and tried and/or

argued all motions and appeals except those in the

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505

Bankruptcy Court action on the West Coast.

10. Colonial Mortaaaa Sarvlca Comanv of

California v. Pionaar Fadcral Savings and

Loan, at al United States District Court for

the Central District of California. Case No.

84-2175 before the Honorable William Matthew

Byrne, Jr.

Co-counsel for plaintiff

April 84 - June 87

- Counsel for corporate defendants. Pioneer

Federal Savings and Loan and Pacific Pioneer,

Manuel S. Klausner, P.O.

Kindel k Anderson

Twenty Six Floor

555 South Flower Street

LOS Angeles, CA 90071 (313) 680-2323

Counsel for individual defendant,

Robert Ash

Paul F. Cohen, Esquire

Fogel, Rothschild, Feldaan t Ostrov

5900 Hilshire Boulevard

Twenty Six Floor

Los Angeles, CA 90036

(313) 937-6350

- Co-Counsel for plaintiff,

Jon Moss, Esquire

Berger, Kahn, Shafton t Moss

4315 Glencoe Avenue

Marina del Rey, CA 90393

(313) 831-9000

The plaintiff was engaged in the business of

originating, placing and servicing commercial real

estate loans in the western United States. The

individual defendant was the head of its western

operation. The corporate defendants were a

Florida savings and loan and its commercial loan

subsidiary.

The action involved allegations that the

individual defendant breached his fiduciary duty

to the plaintiff and that the corporate defendants

knowingly participated in and received the

benefits of the individual defendant's disloyalty,

by acquiring, in one fell swoop, the plaintiff's

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506

six field offices and all of Its personnel located

at offices In the western United States.

The case was logistically complicated in that the

plaintiff was located in Philadelphia, PA, the

corporate defendants in Clearwater, FL, the

individual defendant in Seattle, HA and the

material witnesses in California, Colorado and

Washington state. Additionally, the plaintiff's

parent whose actions were material to the case

(GMAC Assurance Corporation) was located in

Michigan and the expert witnesses were in New York

and California, respectively.

Legally, the case raised issues of conflicts of

law and tested the notion of whether an employee,

not subject to a non-compete covenant, could be

held liable for breach of fiduciary duty, if ha

led the defection of employees under his

supervision to a competitor, notwithstanding the

subordinates' dissatisfaction and Intent to leave

their present employment. Conversely, the Court

was asked to consider whether a competitor who

received the benefit of the breach, could be held

liable for unfair competition.

The defendants claimed that the employees were

"dissatisfied" as a result of plaintiff's

corporate policies and "would have left" the

plaintiff's employment regardless of defendants'

conduct. The Court ruled on the eve of trial In

response to a motion in limlne that

"dissatisfaction", even if true, was not a

justification for a breach of fiduciary duty.

Therefore, the Individual dissatisfaction of the

defendant was cognizable but not that of his

subordinates.

The defendants also sought to Introduce evidence

that their conduct was justified based on notions

of freedom of contract. The Court also excluded

this evidence as Irrelevant and intended to Invade

the province of the jury.

I served as co-counsel, taking all discovery,

drafting all pleadings and arguing the key motions

for summary judgment and in limine.

After the jury was selected the case was settled.

A confidentiality order bars disclosure of the

terms of the settlement.

-22-
507

19. Legal Activities: Describe the nost significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal natters

that did not involve litigation. Describe the nature of

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

From 1978 to 1981, I was co-counsel to significant grand

jury investigations conducted by the Antitrust Division

through its Philadelphia office. In addition to the matter

described above. In re Glaasine and Greaseproof Paper

(United States v. Deerfield Specialty Paper), I was cocounsel in two investigations where no indictments were

ultimately returned. In re Fine Paper and In re Packaging

These investigations, nation-wide in scope, examined

allegations of price fixing in major product markets. They

involved the review of thousands of documents, the

Interviewing and grand jury appearance of dozens of

witnesses, the negotiation of use immunity with counsel for

cooperating witnesses, subjects and targets of the

investigation, the analysis of economic data Involving

conditions In the industry and price movements, and the

organizing and presentation of the evidence gathered to

senior Department of Justice officials. I participated

extensively In all of these activities and assisted In

providing a strategic direction to the cases.

On the civil side, I was co-counsel to an Antitrust Division

merger investigation of a possible violation of Section 7 of

the Clayton Act in the brick industry in the Northeast

United States. The Marion Brick Company, one of the top ten

manufacturers of bricks servicing the Northeast United

States was acquired by a British conglomerate, which already

controlled Glen Gerry, also one of the top ten manufacturers

of brick in the relevant market. The combined entity was to

become the leading brick manufacturer in the northeast

United States. In re Glen Gerry. The investigation took

the form of collection and review of economic data filed by

the merging parties under Scott-Hart-Rodino, Interviewing of

competitors, customers and putative competitors, analysis of

the data in light of the then in effect Department of

Justice's merger guidelines and development of a legal

definition of the relevant product and geographic markets.

The investigation took place on a continuous basis over a

two month period in the Spring 1981. Subsequent to my

departure from government service, the Antitrust Division

determined it would not challenge the merger.

-23-
508

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncompleted contracts and other future benefits which you

expect to derive from previous business relationships,

professional services, firm memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

or business interest.

I will receive approximately $10,000 to $20,000 on or about

March 31, 1992, as the balance of my share of the profits

for the fiscal year 91-92. The exact amount will be

determined based on a formula contained in the Firm's

partnership agreement and will involve no exercise of

discretion in amount or timing. A capital account

maintained at the Firm of approximately $17,500 and my

interest in the Firm's 401(k) plan amounting to

approximately $40,000 will be rolled over to an IRA or

government pension plan upon effective date of judicial

appointment.

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-lnterest during your initial

service in the position to which you have been nominated.

I will follow the code of judicial conduct and also will

apply the provisions of 28 U.S.C. $453.

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.

None

4. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

See attached Ethics in Government Act of 1978 form.

-24-
509

FINANCIAL DISCLOSURE REPORT iSfCS3&K&'!r

i ——• tjgm i^ii- ft.i.ii I | ^—. ~. *~r.ilt.t„

Robreno, Eduardo C.

Judicial nominee

United States District Court

For the Eastern District

of Pennsylvania

i. 0*1* or ••farNovember 2 6

1991

January 1, 199C

to

hove«b«r 1. 199'

2000 Market Street

10th Floor

Philadelphia, PA 19103

•MKNOANT HORS. TV kmmakm Mi Jtom mm bt friiimtl -injlin il jim.

t. POSITIONS. (Reponlai iuuvidual only, m pp. 7-S of IsHnolon.)

NAME OF OROANlTATION/ENnTY • NONE iao

Partner Fox, Rothschild, O'Brien I Frankel, Phila, Pa

aautt Epismpal Hospifil "hi'- . °

Director Southeastern Pennsylvania Red Cross, Phila. . P11. AGREEMENTS. (Rcponlai iadhddul oniy. ice p. 8-9 of Immjcuoos.)

EATE PARTIES AND TERMS •

Jlinp 11. 1991 Fox, Pothschild. O'Brien i Fr»nlt.l is.. it*,r*^* v~ M

III. NON-INVESTMENT INCOME. (RcponiBi iwuvkiuai ud .pous*. >ee pp. ?.;: jf a—awt)

auE wuRce AW? -nrre GROSS INCOME

(Hooonm oaly) (joen, aol spouse .

• NONE l*» I^HIMli M»-;

Fox. RotharhilH O'Hricn 1 P,-.nl,.1

-daw narl-nor^hipl r.l^nrf.- y.., mon Ji ftrihution 5 110'

000

- Calendar year 1991 to 11/1/91 S 84.000

- S

s
510

FINANCIAL DISCLOSURE REPORT (anfd)

Eduardo C. Robreno

November 26.

1991

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment

ntetawMi

•

SOURCE

NONE CM N* «

to ipou» ai

i mad fUti i

t iMMiiii, mm dy tmmgttkaM "(S)' mi 'QCi'

MMM Boa dcucudrnt childim, nsoocti^Tiy. SM BLl>15rfI M

M.A. t-n initial reporting

V. OTHER GIFTS.

SOCRCR

I NONE (Me Mek r^Mtmii fflfui

1 N.A. to Initial reporting

mt tkt mmimkHb^t '(S)' aod •(DC)' B

VI. UABIUTIES. VolUTIES. Omttatm rfcirtr irf mmm wi* *T*»^^* ***«—I I-JI*^— •*—» MIMC^M^ WW

for ItaUllR tar Mini Itt« i uiltakal "(S)' foe nfrali lability of nme, '[!)' tar Jpini 11«6411IT of

ImUYldnal uia ipoose, and'(DC)' •(^>c)• for UaMlltj of • tepcadm cUU. %c PKli-tS onnsmmioiii. i

CRKPITOB

NONE Clo i^miililo llakUlUM)

:j -ited Valley Bank (J)

•

DBCMPTION

Unsecured line of credit

VALDE CODEPhila., PA
511

FINANOAl. DISCLOSURE REPORT (ooafd)

Eduardo C. Robreno

November 2 6,

1991

VII. INVESTMENTS and TRUSTS - income, value, transactions.

TIT

sS

-m—

-ST: •&,

'-Bar

S

TTST,

is;

TO-

[• 1 NONE i*> I«»MI^II

CD. Provident Bank

Phila., Pa

Retirement Plan

O'Brien 4 Frankel Div

C-IS.OOl to 111,000

i tffi.'Si,'} *"' jqa.iagBit'"—mm \i iffiff—aH?>a'jiifa?at'w PM.apj'ia^

i ava.^ jja, Rjg^L" "^°00 a^rrLi'^ugTia;, ngLai:,"-°

o,

'

w

«

(•«• Col. C3I
512

FINANCIAL DISCLOSURE REPORT (coai'd)

taM of fw ta*ontB«

Eduardo C. Robreno November 26

1221

VIII. AODITIONAL INFORMATION or EXPLANATIONS. (im»mm*n*

DC CERTIFICATION.

la COMB— «itli Ibe ptonUom of 21 U.SC I 45S md of Advnory Opimoo No. 57 o( lie AJvnont nioiMlnf c

Judicial ACTmues, tad lo Ike ban of my kaowlodjc n the lime after reaoubk mqiury. I dkl DOI pcrtorai «iy edj^feuofuncuoQ m any tiupuon dunng the period cowered by ibis fepon m wtuch I, my spouse, or my eiloor or <lr|icedrbi cbfldir

bad a flmnrlil tnierest. as defined In Canon 3C(3)(C), in the ouicome of sacb litiKaiion.

I cenliy Uttl all informaiion pven above (including iafonnauoa penaimng 10 lay spouse and minor or dependent cbifcjir

If asy) b aocsialc, me, and complete to tbe beat of my knowledfe and belief, and tbai any injormauoa not reponad a

witbbeJd brcanie it met applicable siaiuiory provuioni permittlnf aon-diackMnie.

I Amber ceni/y tbal earned income from ouiildc empioytnent and bonormria and tbe aoceptanoe of pfti wtucb have be-,

reponed are in compliance witb ibe provWons of 3 U S.cA. ipp. 7. j 501 CL icq, 5 U^.C I 7353 aad Judiaal OMteer

regulatloca. «

NOTE: ANY tNDrvTDUAL WHO KNOWINGLY AND WTLFULLY FALSIFIES OR FAILS TO FILE THIS RE?OF

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S US CA. APT. a. 5 104. AND IS U^.C I 1001 j

RUNG INSTRUCTIONS:

Mail Uped onpnal aad 3 addttloaal copies lo Judicial Elbfel Q—fi

Admumirauvc Office of Ibe

Uaiud Slates Coura

Washinpoo, DC 3)344
513
514

5. Pleas* complete the attached financial net worth stateaent In

detail (Add schedules as called for).

See attached.

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

campaign? If so, please identify the particulars of the caspaign,

including the candidate, dates of the campaign, your title and

responsibilities.

Campaign Chairman of Karen Chizek for State Representative

Committee (Philadelphia, Pa.) (Nov. 1988)

Campaign Chairman of Jack Ortiz for State Representative Committee

(Philadelphia, Pa.) (Nov. 1984)

In both campaigns my responsibility involved signing the financial

disclosure forms filed with the Secretary of the Commonwealth of

Pennsylvania.

Chairman, Latinos for John Egan (1983)

Chairman, Bispanics for Arlen Specter (1986)

Organized committees seeking to persuade Latino community to

support candidates for Mayor of Philadelphia, Pa. and U.S. Senate

-25-
515

FINANCIAL STATEMENT

NET WORTH

P'cvitit a C3mp(«*«. cjrrtrt 'mancai n«* worm i:are—.«-if wnic*: itcfnim in dtuii »" asMts (inciutiinf :.

ttfits. rui Mtate. securities, tnms. inv«stni«fTU. arc ctfi«r ;injnc;ai hoKings} all liaciiitits (Inc^uCing ct:

morjat"- loans, and ot.ie- financai ofiiifitioni) oi yevrztst. your soousa. and dtftar imfnaciata m«TX«i

your houstftold.

Partnership Capital Account (5) i 17.500

1

ifiXJOfl

ccN-nrtcorr uAMitsnts GCtVIAL tHPOMMATIOn

or fuaramer j^_

_No_

No I

No | I —, HTM )
516

(1) PSFS

Accountant No. 605701656

(2) 109"B" Lombard Street

Philadelphia, PA 19147

(3) Cash surrender value: $1,800.55

Principal Mutual Life, Des Moines, Iowa.

(4) Fox, Rothschild, O'Brien & Frankel

Contact: Don Knerr, Chief Financial Officer

Fox, Rothschild, O'Brien ( Frankel

2000 Market Street

Philadelphia, PA 19103

(5) Fox, Rothschild, O'Brien ( Frankel

Contact: Don Knerr, Chief Financial Officer

Fox, Rothschild, O'Brien t Frankel

2000 Market Street

Philadelphia, PA 19103

(6) United Valley Bank, Philadelphia, Pa.

(7) GMAC Mortgage Corp., Phildelphia, Pa.

Account NO. 01723 1991460

Mellon-PSFS Philadelphia, Pa.

Account No. 0611-293-0000445-17
517

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar

Association's Coda of Professional Responsibility calls for

every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the dlsadvantagad." Describe what you have dona to

fulfill these responsibilities. Hating specific instances

and the amount of time davotad to each.

In the paat tan yaara I have been actively involved in the

Hiapanic community of Greater Philadelphia. In that regard,

I hava been involvad with and served as a member of the

board of directors of the Puerto Rican Faatival Committee,

the Cuban Community Club and the Spanish Merchants

Association; I hava also provided advica and counsel to the

elected political laadarahip of the Commonwealth on issues

relating to the Hiapanic community through service aa

Chairman of Senator Arlen Specter's Council on Hiapanic

Community and aa a member of Governor Dick Thornburgh's

Council on Hiapanic Community.

I hava alao bean involvad in a variety of non-profit

organizations in the community at large including serving on

the Board of Directors of the American Red Cross

Southeastern Pennsylvania Chapter and as member of the

American Red Cross national nominating committee. Episcopal

Hospital and the Fellowship Commission. In the Red Cross, I

chaired the Hispanic initiative program which was intended

to make Red Cross service available to the dlsadvantagad

Hispanic population. Episcopal Hospital is located in the

heart of the City of Philadelphia's poorest area and it

services largely dlsadvantagad population.

Finally, I have been Involved in attempting to improve

minority representation in all aspects of our legal system.

In that regard, I am a founding member of the Hispanic Bar

Association of Pennsylvania, have served as a Member of the

Committee to Select Interpreters for Court of Common Pleas

of Philadelphia County. I have accepted appointments to

serve as counsel to indigent criminal defendants, and

supervise my law firm's involvement in the VIP Program

(civil representation to poor) in creditor-debtor cases.

Overall, I estimate that the community activities described

above occupy 10% of my professional time.

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

-26-
518

religion. Do you currently belong, or have you belonged, to

any organization which discriminates — through either

formal membership requirements or the practical

implementation of membership policies? If so, list, with

dates of membership, what you have done to try to change

these policies?

No

3. Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which led

to your nomination and interviews in which you

participated).

In the Eastern District of Pennsylvania, there is a

nominating commission (the "Commission"). The members of

the Commission were appointed by the late senator John Heinz

and Senator Arlen Specter. In December 1990, I asked to be

considered by the Commission for appointment to the federal

bench. I was interviewed by the Commission in February

1991. The Commission submitted the names of 16 candidates

to Senators Heinz and Specter. I set with both Senators,

separately, in Washington, D.C. on March 6, 1991. I was

advised by Senator Specter on April 26, 1991, that he was

forwarding my name to the White House as the nominee for one

of the four newly created positions in the Eastern District

of Pennsylvania. Since Senator Specter's recommendation, I

have been interviewed by officials of the Justice

Department, an agent of the FBI and the investigator for the

American Bar Association's Standing Committee on the Federal

Judiciary.

4. Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case,

issue, or question? If so, please explain fully.

No.

5. Please discuss your views on the following criticism

involving "judicial activism".

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

-27-
519

'the prerogatives of other branches and levels of governaent.

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 lay 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 genius of American democracy may well be rooted

in the framers' allocation of power and

responsibilities between the central government and

the states and among the three branches of the

central government. Adherence to predictable rules

of decision making promotes trust and confidence in

the judicial process and ensures the requisite

popular support for its results.

The role of the district judge under Article III of

the Constitution is not to "make law" but rather it

is to apply it, as he/she finds it, from the

pronouncements of the Supreme Court and the Courts

of Appeals. Put in a slightly different manner,

the district court judge is first and foremost the

presiding officer of a dispute resolution forum

hearing cases between discrete parties. The

court's principal role is to ensure that the fact

finding process is carried out fairly and to apply

the law to the facts of the case as to achieve a

legally correct result.

-28-
520

CORDON J. QUIST

Birth: November 12, 1937

Legal Residence: Michigan

Marital Status: Married

Education: 1955 - 1957

1957 - 1959

1959 - 1962

Bar: 1962

1964

1967

Experience: 1961 - 1964

1964 - 1966

1967 - present

Grand Rapids, Michigan

Martha Jane Caplto Qulst

5 children

Calvin College

Michigan State College

B.A. degree

George Washington University

Law School

J.D. degree

District of Columbia

Illinois

Michigan

Hollabaugh, Jacobs k Ward

Associate

Sonnenscheln Levlnson Carlin

Nath i Rosenthal

Associate

Miller, Johnson, Snell I

Cunmlskey

Associate, 1967-1971

Partner, 1971-1987

Managing Partner, 1987-present

Office: 800 Calder Plaza Bulldlni

Grand Rapids, Michigan 4S

616 459-8311

502

To be United States District Judge for Che Western District of Michigan
521

UnitedStates Senate

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Gordon Jay Quist

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

Residence

120SS Bluewater Road

Grand Haven. MI 49417

Office

800 Calder Plaza Building

Grand Rapids. MI 49S03

3. Date and place of birth.

November 12, 1937; Grand Rapids. Michigan

4. Marilal Status: (include maiden name of wife, or husband's name). List spouse's

occupation, employer's name and business address(es).

Married: Martha Jane Capito

Not employed outside of home

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

George Washington University Law School

9/59 to 5/62

J.D., with honors

Michigan State University

9/57 to 3/59

B.A.

Calvin College

9/55 to 6/57

Transferred to Michigan State University

6. Employment Record: List (by year) all business or professional corporations, companies,

rums, or other enterprises, partnerships, institutions and organizations, nonprofit or
522

otherwise, including firms, with which you were connected as an officer, director, partner,

proprietor, or employee since graduation from college.

1/67 - Present - Managing Partner - Lawyer

Miller, Johnson, Snell & Cummiskey

800 Calder Plaza Building

Grand Rapids, MI 49503

6/64 - 12/66 - Associate Lawyer

Sonnenschein, Levinson, Carlin, Nath

8000 Sears Tower

Chicago, IL 60606

5/62 - 6/64 - Associate Lawyer

Hollabaugh & Jacobs, Washington, D.C.

(No Longer Exists)

10/61 - 5/62 - Research Clerk (part time)

C. Aubrey Casque

Supreme Court Bldg.

Washington, D.C

7/61 - 10/61 - Research Clerk (Part time)

Richard Arens (Deceased)

Washington, D.C.

5/61 - 7/61 - Summer Clerk

U.S. Bureau of Public Roads

Miss Markham

Washington, D.C.

5/60 - 9/60 - Mason's Tender

Cornelius Quist (Uncle - Deceased)

Grand Rapids, MI

5/59 - 9/59 - Mason's Tender

Joe Vlietstra

1464 Grenadier Q. S.W.

Wyoming. MI 49509

Current Directorships:

Kent Funds, Director, Investment Company Act of 1940. (1991-CuiTenL) This company

manages mutual funds for Old Kent Financial Corporation. The funds are known as Kent

Funds. Elected for one year terms. The board meets four times a year.
523

Transnational Motors, Inc. d/b/a Mazda Distributors Great Lakes, Director and Secretary.

(1977-Cuircnt.) This company is the wholesale distributor of Mazda brand motor vehicles

in five states. I am also an officer and director of some affiliated companies. Elected for

one year terms. The board meets a few times a year.

Travel Consultants, Inc., Director and Secretary. (198S-CuiTent.) This company is a

travel agency. Elected for one year terms. The board meets about twice a year.

Spartan Distributors, Inc., Director and Secretary. (1976-Cutrent.) This company is a

wholesale distributor of lawn, garden and snow equipment - primarily Toro brand.

Elected for three year terms. The board meets once a year.

Eastpointe Car Co., Director and Secretary. (1982-Cun-ent.) This company owns and

operates several retail auto dealerships. Elected for one year terms. The board transacts

business on a unanimous written resolution basis.

All of these director positions require a minimum amount of time. I am not involved in

the day to day operations of any of these businesses.

Formerly a director of the following for-profit corporations:

Muller Shoes. Inc. (1982-1989)

1001 28th SLSW, Wyoming, MI 49509

Import Motors Limited, Inc. (1967-1981) (Dissolved)

The non-profit directorships are listed in response to Question No. Ill, 1.

Miliiary Service: Have you had any military service? If so, give particulars, including

the dates, branch of service, rank or rale, serial number and type of discharge received.

None.

Honors and Awards: List any scholarships, fellowships, honorary degrees, and honorary

society memberships that you believe would be of imerest to the Committee.

Order of the Coif

J.D., with honors, 1962

Research Editor, George Washington University Law Review, 1961-62

Trustee Scholarship (Tuition waiver), George Washington University Law School,

1961-62

Listed in The Best Lawvers in America (1989-1990, 1991-1992) (For what it is worth.)
524

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 tides and dates of any

offices which you have held in such groups.

Council Member and Vice President, Michigan Slate Bar Business Law Section - Council

member since 1987, Co-Chairperson and Moderator of 1989 Mid-year meeting and

program, Chairperson and Moderator of 1990 and 1991 Mid-year meetings and programs

1988 - Current, Fellow, Michigan State Bar Foundation

1963 - Current, American Bar Association (Litigation, Antitrust and Business Law

Sections)

1987 - Current, Michigan Slate Bar Association (Business and Antitrust Law Sections)

1967 - Current, Grand Rapids Bar Association

1987 - Current, Ottawa County Bar Association

Past member of Chicago Bar Association (1966-67)

Past member of District of Columbia Bar Association (1963-64)

10. Other Memberships: List all organizations to which you belong that arc active in

lobbying before public bodies. Please list all other organizations to which you belong.

Grand Rapids Economic Club; Federalist Society.

To the best of my knowledge I do not belong to an organization engaged in lobbying.

Social Clubs: I am a member of The University Club, Grand Rapids (1989-CurTCnL); The

Peninsular Club, Grand Rapids (1972-CurrenL). By-laws of these clubs are attached to

the original of this document.

11. Court Admission: List all courts in which you have been admitted to practice, with dates

of admission and lapses if any such memberships lapsed. Please explain the reason for

any lapse of membership. Give the same information for administrative bodies which

require special admission to practice.

U.S. District Court for the District of Columbia: December 14, 1962

U.S. Court of Appeals for the D.C. Circuit: January 2. 1963

Illinois: November 19, 1964

U.S. District Court for the Northern District of Illinois: Febraary 11, 1965

4
525

U.S. Supreme Court; March 18. 1968

Michigan: March 8, 1967

U.S. District Court for the Western District of Michigan: 1967

U.S. Court of Appeals for the Sixth Circuit: March 6, 1969

U.S. District Court for the Eastern District of Michigan: May S. 1972

12. Published Writings: List the titles, publishers, and dates of books, articles, reports, or

other published material you have written or edited. Please supply one copy of all

published material not readily available to the Committee. Also, please supply a copy of

all speeches by you on issues involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily available to you, please supply them.

None /

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

examination.

Excellent November 1991

14. Judicial Office: State (chronologically) any judicial offices you have held, whether such

position was elected or appointed, and a description of the jurisdiction of each such court.

None

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

significant opinions you have written; (2) a short summary of and citations for all appellate opinions where your decisions were reversed or where your judgment was affirmed

with significant criticism of your substantive or procedural rulings; and (3) citations for

significant opinions on federal or state constitutional issues, together with the citation to

appellate court rulings on such opinions. If any of the opinions listed were not officially

reported, please provide copies of the opinions.

None

16. Public Office: State (chronologically) any public offices you have held, other than

judicial offices, including the terms of service and whether such positions were elected

or appointed. State (chronologically) any unsuccessful candidacies for elective public

office.

None
526

17. Legal Career:

a. Describe chronologically your law practice and experience after graduation bom

law school including:

1. whether you served as clerk to a judge, and if so, the name of the judge,

the court, and the dates of the period you were a clerk;

No

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

No

3. the dates, names and addresses of law rums or offices, companies or

governmental agencies with which you have been connected, and the

nature of your connection with each;

(a) Hollabaugh, Jacobs & Ward: 3/61-64

Barr Building

Washington, D.C.

I was an associate with this firm. This firm no longer exists. It was

merged into the firm of Foley & Lardner, headquartered in Milwaukee,

WI. A person who has direct personal knowledge of my work at this firm

is:

Alan S. Ward

Baker & Hostetler

Washington Square. Suite 1100

1050 Connecticut Ave. N.W.

Washington. D.C. 20036

Telephone. 202/861-1515

(b) Sonnenschein Levinson Carlin Nath & Rosenthal: 6/64-12/66

8000 Sears Tower

233 South Wacker Drive

Chicago. Illinois 60606

Telephone: 312/876-8000

I was an associate at this firm. A person who has direct personal

knowledge of my work at this firm is:
527

Harold D. Shapiro

Sonnenschein Nath & Rosenthal

8000 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

Telephone: 312/876-8000

(c) Miller, Johnson, Snell & Cummiskey: I/67-Prcsem

Partner 1971

Managing Partner 1987-Presenl

800 Calder Plaza Building

250 Monroe Ave. NW

Grand Rapids, Michigan 49503

A person who has direct personal knowledge of my work with this firm is:

Robert D. Brower

Miller, Johnson, Snell & Cummiskey

800 Calder Plaza Building

Grand Rapids. MI 49503

Telephone: 616/459-8311

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?

Describe your typical former clients, and mention the areas, if any, in

which you have specialized.

In Washington, D.C. I worked with a firm that specialized in antitrust law

before various courts, the U.S. Congress and the FTC. I basically wrote

briefs and memos and helped try an FTC Act Section 5 case. In Chicago,

IL., I worked on frauds, antitrust, construction and other matters. I

appeared in court on motions. I also did some tnm-.actional (acquisition)

work.

I started with Miller, Johnson, Snell & Cummiskey on January 2, 1967.

Until I became Managing Partner on March 1, 1987,1 divided my time

about equally between business and litigation matters.

In the business area I have negotiated and drafted contracts regarding sales

and acquisitions of privately held companies, negotiated a major distribution contract with a Japanese auto importer and manufacturer, drafted

various other types of agreements, advised clients on questions relating to

contracts, distribution of goods and other matters. With small exception,

I have not represented people in real estate, estate planning, probate,

divorce, etc. I rely on tax experts for tax advice.
528

When I first came to Grand Rapids, I received federal court appointments

in criminal and habeas corpus matters, and I was appointed to represent a

witness who refused to testify in a bank robbery-murder trial.

From the 1970's into the early 1980's in the employment litigation tat*,

I handled and assisted in civil rights (Title VII), "Boys Market", LMRA

§301, type of cases, etc. Long ago, I developed our firm's original check

lists and forms for strike violence injunctions and "Boys Market" cases.

In the 1970's, I tried many arbitration cases for clients such as Ferris State

College and Michigan Carton Company.

Also, in the early 1970's, Dow Chemical Company decided to start using

non-union building trades in its huge Midland, Michigan facility. This led

to labor disturbances. I was the primary lawyer for the non-union

contractor, Collinson Construction Company, and a lead counsel for Dow

Chemical Company. We filed a federal civil law suit and an NLRB

charge which led, after some legal skirmishing, to injunctions against the

building trades which effectively stopped the problems. Also, during this

period I assisted the house counsel for Lear-Siegler, Inc. in the defense of

two Title VII actions which were tried in the U.S. District Court for the

Western District of Michigan. Mabin v Lear-Siegler. Inc.. 4 FEP Cases

679 (W.D. Mich. 1971), affd 437 F.2d 806 (6th Or. 1972).

Since about the mid-1970's, I have been the lawyer responsible for

General Motors Corporation's employment litigation in Western Michigan.

Many of the GM cases were in federal court, and some were in State

court. Most of the cases were dismissed on motion or abandoned by the

plaintiffs. Only a few cases were settled, and only two settlements were

of substance. To the extent possible, I have delegated my responsibilities

in the employment law area.

In the commercial litigation area, I have handled Sherman Act cases (for

Minnesota Mining and Manufacturing Co. and Cessna Aircraft Company,

among others), Dealers Day in Court Act (for Import Motors Limited, Inc.

and Mazda Distributors Great Lakes), breach of contract, tonious

interference with contract (for Holland Hitch Forwarding Co.), stockholders

rights and directors duties (for ACEMCO, Inc., a small manufacturer in

Grand Haven, MI.), Securities Exchange Act §10(b) (for outside directors

of Zondervan Corporation and a Grand Rapids broker-dealer), breach of

contract for sales representatives of a major furniture manufacturer, sales

rep commission; broker-dealer matters filed in federal and state courts (for

different people including Robert W. Baud & Co.). In the late 1980's and

early 1990's, I represented bank officers of a failed bank in suits brought

by the FDIC and others (National Bank & Trust of Traverse City). While

I have been responsible for these cases, I have usually had the necessary

assistance of other partners and associates of my firm.
529

Since March 1, 1987,1 have been the Managing Partner of my law firm

of about 75 lawyers. I am responsible for the management of the firm

much as a CEO is responsible in a corporation. In other words. I have a

fair amount of authority. My role as Managing Partner has limited my

practice of law to about 1000 billable hours per year. Therefore, I have

chosen to work on a few relatively complicated matters such as a major

CERCLA case on behalf of CPC International, Inc., a major case on behalf

of BDO Seidman, and an antitrust case on behalf of Cessna Aircraft

Company and the FDIC matters described above. In addition, I, together

with a law school professor, have recently represented a Special Committee of directors of a publicly held corporation which was trying to sell all

or part of its assets or stock - director's Revlon dudes, etc.

c. I. 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.

Occasionally.

2. What percentage of these appearances was in:

(a) federal courts; 70%

(b) state courts of record; 15%

(c) other courts. 10%

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 cannot answer this for sure. There are about 12 of which I was sole

counsel for about 50%; co-counsel for about 25% and associate counsel for

about 25%. If summary judgments are included, the number of cases

would be much greater.

5. What percentage of these trials was:

(a) jury; 40%

(b) non-jury. 60%

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reported, and the docket number and date

if unreponed. Give a capsule summary of the substance of each case. Identify the party
530

or parties whom you represented; describe in detail the nature of your participation in the

litigation and the final disposition of the case. Also stale as to each case:

(a) the date of representation;

(b) the name of the court and the name of the judge or judges before whom the case

was litigated; and

(c) The individual name, addresses, and telephone numbers of co-counsel and of

principal counsel for each of the other parties.

It is very difficult for me to determine what cases are the most important The following

list gives you a good idea of the types of matters I have handled over the last several

years.

I. Case: Bono v. Van Eerden. Inc.; Diet No. 90-69626-CK

Court: Kent County Circuit Court

Judge: Michael R. Smolenski

Kent Circuit Court Judge

Hall of Justice

333 Monroe Ave. NW

Grand Rapids. MI 49503

Telephone: 616/774-3677

Opposing Counsel: Gary P. Schenk

Frederick J. Boncher

Schenk, Boncher & Prasher

180 N. Division

200 College Park Plaza

Grand Rapids, MI 49503

Telephone: 616/454-8277

Co-Counsel for David J. Gass

Defendants: Miller, Johnson, Snell & Cummiskey

800 Calder Plaza Building

Grand Rapids, MI 49503

Telephone: 616/454-8311

This case involves the alleged breach of a stock purchase agreement and

employment agreement Plaintiff claims that our client, the purchaser, did not use his best efforts

to sell the product of the seller. I have been involved in "strategizlng" the case, made the

opening statement cross-examined plaintiffs major witness, and examined defendant's major

witness. I attended about one-third of the trial. My partner David J. Gass attended the whole

trial and made closing argument. Thecase was tried from January 21,1992 through February 13,

1992. The plaintiffs sought damages in excess of $1,000,000. Judge Smolenski intends to enter

judgment for about $22,000-an amount which we believe is a "victory" for our client

10
531

Case: Kolb v. Transnational Motors Inc.: DKT No. 90-65641-CK

Court: Kent County Circuit Court

Judge: George S. Buth

Kent Circuit Court Judge

Hall of Justice

333 Monroe Ave. NW

Grand Rapids. MI 49S03

Telephone: 616/774-3784

Opposing Counsel: Richard J. Stolcenberg

1777 28th St SW

Grand Rapids. MI 49509

Telephone: 616/532-1666

This was a wrongful termination case which potentially involved the interpretation

of recent Michigan Supreme Court decisions in the area. I was sole trial counsel for the

defendant employer. Because the case is fairly recent, I thought that you would be interested.

This was a bench trial that started on November 18. 1991 and was settled after one week of

intermittent trial.

3A. Case: Kaufman, el al v. EDO Seidman. et al: No. 89-24813-CK

Court: Muskegon County Circuit Court

Judge: R. Max Daniels

Muskegon County Courthouse

990 Terrace St.

Muskegon. MI 49442

Telephone: 616/724-6337

Opposing Counsel: Grant J. Gruel

Gruel. Mills, Nims & Pylman

Suite 700 West

50 Monroe Place

Grand Rapids. MI 49503

Telephone: 616/235-5500

Co-counsel: Hon. Edward R. Post

58th District Court Judge

57 W. 8th St.

Holland. MI 49423

Telephone: 616/392-6991

Our firm represented the defendants, BDO Seidman and David J. Fles. The claim

was that our clients made negligent misrepresentations and committed accountants' malpractice

in advising their former client, the plaintiff, to invest about $4.0 million in limited partnerships.

My partner. Edward R. Post, and I shared the trial responsibilities; we both argued, examined

witnesses, etc. I did most of the stratcgizing on the case. The importance of the case was the

11
532

amount of money involved (about $4.0 million invested) and the fact that our clients felt that

their reputation was at stake. There are also interesting legal issues such as the statute of

limitations and whether there really could have been negligent misrepresentation under the

circumstances. The case ended in a jury verdict for the defendants. The case is currently on

appeal. (Case tried 9/11/90)

3B. Case: Kaufman, et al v. BDO Seidman. et al: F.Supp. (W.D. Mich1992)

Court: U.S. District Coun

Judge: Douglas W. Hillman

U.S. District Court

Federal Building

Grand Rapids, Ml 49503

Telephone: 616/456-2523

Opposing Counsel: Grant J. Gniel

Gruel, Mills, Nims & Pylman

Suite 700 West

50 Monroe Place

Grand Rapids, Ml 49503

Telephone: 616/235-5500

In addition to filing the case described as #3 A, plaintiffs filed a complaint alleging

10b(5) and RICO claims. Judge Hillman granted defendants' motion for summary judgment

because of claim and issue preclusion on January 31, 1992.

4. Case: General Aviation, Inc. v. The Garreit Corporation, et al. 743 F. Supp. 515

(W.D. Mich. 1990)

Court: U.S. District Court for the Western District of Michigan

Judge: Wendell A. Miles

U.S. District Court

Federal Building

110 Michigan St. NW

Grand Rapids, MI 49503

Telephone: 616/456-2314

Opposing Counsel: William A. Sankbiel

Kerr, Russell & Weber

2100 Comerica BUig.

Detroit, MI 481226

Telephone: 313/961-0200

12
538

Co-Defendant's Counsel: Barbara L. Goldman

Dykema Gossett

35ih Floor

400 Renaissance Center

Detroit. MI 48243-1504

Telephone: 313/568-6604

OUT fiim represented The Cessna Aircraft Company, a defendant The claim was

that The Ganett Corporation's agreement with Cessna that Garrctt would not sell aircraft engine

repair parts to Cessna dealers or certain others violated Section 1 of the Sherman Act I came

up with the initial idea for the defense, handled the depositions on behalf of Cessna, etc. My

former partner. Edward R. Post, handled most of the "statute of limitations'' issue on the stale law

claim. The case was important because it went to the heart of how Cessna intended to distribute

its aircraft repair parts and maintain the aircraft after they were sold by Cessna dealers. The

case was also important because it was the first reported case in Michigan dealing with "dual

distribution." The case ended in summary judgment for the defendants.

Case: Kantor. et al v. The Zondervan Corporation, et al:

Docket #G85-253 CA1

Court: U.S. District Court for the Western Distrct of Michigan

Judge: Wendell A. Miles

U.S. District Court

Federal Building

110 Michigan SLNW

Grand Rapids. Ml 49303

Telephone: 616/456-2314

Opposing Counsel: Roger W. Kirby

Kaufman. Malchman, Kaufmann & Kirby

919 Third Avenue

New York. New York 10022

Telephone: 212/371-6600

Co-Defendant's Counsel: Jay A. Cragwall. Jr.

Warner, Norcross & Judd

900 Old Kent Building

Grand Rapids. MI 49503

Telephone: 616/459-6121

Stephen D. Turner

Dykema Gossett

248 Louis Campau Promenade NW

200 Oldtown Riverfront Building

Grand Rapids. MI 49503

Telephone: 616/776-7500

13
534

William S. Fair

Fair & Oosterhouse

400 Ledyard Building

125 Ottawa Ave. NW

Grand Rapids. MI 49503

Telephone: 616/459-3355

Grant J. Gruel

Gruel, Mills, Nims & Pylman

Suite 700 West

50 Monroe Place

Grand Rapids. MI 49503

Telephone: 616/235-5500

This was a class action Securities Exchange Act §10(b) case. The plaintiff alleged

that an over-evaluation of inventory and other errors caused The Zondervan Corporation's

earnings and assets to be overstated. I represented most of the "outside directors" and played a

very active part in the case. We made motions to dismiss and for more definite statement,

conducted discovery, etc. Most important, I think that I played a valuable roll in getting the

panics and insurers talking with each other. The case was settled in October 1988.

6. Case: Manufacturers Supply Co. v. Minnesota Mining and Manufacturing Co.. 688

F. Supp. 303 (W.D. Mich. 1988); Dkt #G85-960-CAl

Court: U.S. District Court for the Western District of Michigan

Judge: Douglas W. Hillman

U.S. District Court

Federal Building

110 Michigan St. NW

Grand Rapids, Ml 49503

Telephone: 616/456-2523

Opposing Counsel: Dale W. Rhoades

Rhoades, McKee, Boer, Goodrich & Titta

600 Waters Building

Grand Rapids, MI 49503

Telephone: 616/235-3500

Co-Counsel: Jon G. March

Miller, Johnson, Snell & Cummiskey

800 Calder Plaza Building

Grand Rapids, MI 49503

Telephone: 616/459-8311

Our firm represented Minnesota Mining and Manufacturing Company, the

defendant. This was a fairly typical dealer termination case except for the fact that the plaintiff

produced an expert who testified in his deposition that the sales practices of 3M and the

14
535

termination by 3M constituted an unreasonable restraint of trade. The expert was propounding

the "populist theory' of antitrust law. I handled the antitrust aspects of the case, and my partner,

Jon March, handled the contract portion of the case. I deposed the expert, wrote and argued the

andtmst portion of the case. The case ended in summary judgment for the defendant The

District Court accepted our argument of the "market power" threshold test for reasonableness.

7. Case: Wood, et al v. General Teamsters Union. Local 406. et al. 565 F. Supp. 1011

(W.D. Mich. 1983) (Right to jury trial in LMRA 5 301 case.); Wood v. Teamsters. 583 F. Supp. 1471,101 F.R.D. 784 (W.D. Mich. 1984) (Denial of moUon

to disqualify counsel on grounds that arbitrator had joined plaintiffs' firm.);

Wood v. Teamsters. 593 F. Supp. 355 (WX>. Mich. 1984) (Motion in limine.);

Wood v. Teamsten. 603 F.Supp. 992 (W.D. Mich. 1985) (Denial ofjudgment

n.o.v.), rev'd 807 F. 2d 493 (6* Cir. 1986).

Court- U.S. District Court for the Western District of Michigan

Judge: Hon. Benjamin F. Gibson

United Sates District Court

110 Michigan St. NW

Grand Rapids, MI 49503

Telephone: 616/456-2528

Opposing Counsel: Hon. Dennis C. Kolenda

Kent Circuit Judge

Hall of Justice

333 Monroe Ave. NW

Grand Rapids. MI 49503

Telephone: 616/774-3788

Co-Defendant's Counsel: H. Rhett Pinsky

Pinsky, Smith, Fayette & Hulswit

1515 McKay Tower

146 Monroe Center

Grand Rapids, MI 49503

Telephone: 616/451-8496

Our firm represented The Kroger Co. in an LMRA §301 case, which involves a

union's duty of fair representation and an alleged breach of a collective bargaining agreement

There were several legal issues that were not decided at the time the case was pending, e.g. the

right to a jury trial in a Section 301 case. The issue at trial was whether the defendant union

violated its duty of fair representation after Kroger closed a warehouse. Former Teamsters

claimed that the union violated its duties, among other ways, by permitting the successor of

Kroger to hire former Kroger employees without regard to seniority and by not trying an

arbitration as it should. The issue as to Kroger was whether Kroger broke the collective

bargaining agreement. I handled discovery and tried the case for Kroger. I was assisted by an

associate, Wm. H. Fallon. The case was very high profile in the community - the plaintiffs were

referred to in the media as "the Kroger orphans." The trial was bifurcated between liability and

damages. After a six week trial on liability in September and October 1985, a jury verdict was

15
536

entered for the plaintiffs on liability. On interlocutory appeal, judgment was entered for the

defendants for reasons that were argued to the trial court Another law firm handled the appeal

8. Case: EEOC v. Bronson Methodist Hospital. 489 F. Supp. 1066 (WJX Mich. 1979)

Court: U.S. District Court for the Western District of Michigan

Judge: Benjamin F. Gibson

United State* District Court

110 Michigan St NW

Grand Rapids. MI 49503

Telephone: 616/456-2528

Opposing Counsel: Charlie C. Taylor

1316 Penobscot Bldg.

Detroit. MI 48226

Telephone: 313/963-5303

Our firm represented the defendant Bronson Methodist Hospital, in a prelimiiury

injunction trial. The basic claim was that the defendant retaliated against a nurse because the

had filed a claim of discrimination against the hospital. I tried the case for the defendant for

three days. The case was very important to Bronson Hospital because the hospital felt that its

ability to enforce reasonable disciplinary standards was at stake. (The nurse had pulled a weapon

on a hospital patient.) The case also involved the issue of whether the EEOC had to prove all

of the elements that are typically required in order to obtain a preliminary injunction. The

request for an injunction was denied. The EEOC then dismissed the case.

Case: B &-E Sales v. Advance Steel Co. and Holland Hitch Forwarding Co.:

No. 78-171211-CK

Court: Oakland County Circuit Court

Judge: Fred M. Mester

Oakland County Courthouse

1200 N. Telegraph Road

Ponuac. MI 48053

Telephone: 313/858-0355

Opposing Counsel: Barry A. Steinway

Thav, Gross & Steinway, PC

30150 Telegraph Rd.. Ste 444

Birmingham, MI 48010-2948

Telephone: 313/645-1700

16
537

Co-Defendani's Counsel: David M. Fried

Fried &. Levitt

Ste 36S5

30700 Telegraph Rd

Biimingham, MI 48010-3734

Telephone: 313/645-1003

Our firm represented a co-defendant, Holland Hitch Forwarding Company, that was

charged with tortiously interfering with a sales contract for a substantial amount of steel I was

the only trial lawyer for Holland Hitch. The importance of the case from a legal standpoint was

the plaintiff's ability to convince the trial court (in overcoming a motion for summary judgment)

that it was possible for a buyer under an ordinary sales contract to negotiate a release from that

contract with its seller and then be held liable to the seller's supplier if the seller breached its

own contract After several days of trial in 1983, Holland Hitch was dismissed with a directed

verdict because the plaintiff did not show that Holland Hitch had knowledge of its supplier's

contract with the plaintiff. Judgment was entered against a co-defendant for breach of the sales

contract, and that judgment was affirmed on appeal.

10. Case: Overseas Motors. Inc. v. Import Motors Limited. Inc.. 375 F.Supp. 499 (E.D.

Mich. 1974), affd 519 F.2d 199 (6th Cir. 1975), cert, denied 423 U.S. 987

(1975)

Court: U.S. District Court for the Eastern District of Michigan

Judge: John Fiekens

U.S. District Court

722 U.S. Courthouse

Detroit, MI 48226

Telephone: 313/226-6857

Counsel for

Co-defendants: Herbert J. Rubin

Hetzfeld & Rubin

40 Wall Street

New York, New York 10005

Telephone: 212/344-5500

George E. Bushnell, Jr.

Miller, Canfield, Paddock &. Stone

150 W Jefferson. Ste. 2500

Detroit, MI 48226-4415

Telephone: 313/963-6420

17
Ben Burgoyne

Buuel, Long, Gust. Klein A Van ZUe

32270 Telegraph Rd.. Ste 200

Birmingham. MI 48010-6244

Telephone: 313/258-1616

Opposing Counsel: Wilfred Burke (Deceased)

I was the sole trial counsel for Import Motors Limited, Inc., a regional distributor

of Volkswagen, Porsche and Audi automobiles. The target defendants were Volkswagen of

America and Audi NSU Auto Union. The plaintiffs alleged violations of the Dealers Day in

Court Act and the Sherman Act Early in the trial I moved to exclude evidence regarding my

client until the plaintiff could introduce some evidence that an illegal conspiracy existed before

the plaintiff threatened the defendants with a lawsuit The court granted this modon, so I speni

quite a bit of the six weeks of thai as an alert "trial watcher." At the conclusion of the plaintiffs'

proofs, the trial court directed a verdict for the defendants, and the verdict was affirmed on

appeal. The case was important to VWOA and Import Motors because it involved the impon

rights to the Audi automobile. The case did establish 6th Circuit law on the definition of

"coercion" under the Dealers Day in Court Act

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 (his question. Please omit

any information protected by the attorney-client privilege (unless the privilege has been

waived).

I have organized and moderated the Mid Year Meetings of the State Bar Business

Law Section in 1990 and 1991. (I was co-chairperson and moderator in 1989. From 1989 to

1991 attendance at these meetings grew from about 40 to 135.) I have always stayed up to date

on certain aspects of distribution law - especially as it affects the automobile industry and

especially, also, the antitrust aspects of exclusive dealing, dealer terminations, etc.

Some of the other reported cases include: Davis v. Bronson Methodist Hospital.

159 Mich. App. 251 (1986): Lear Siegler. Inc. v. UAW. 419 F.2d 534 (6ih Or. 1969) (This case

was one of my most interesting cases in that I had difficulty having anyone in my firm of labor

lawyers accept my theory. Finally, John Cummiskey argued the case to the District Court and

the Sixth Circuit where we eventually prevailed. I understand that the UAW had to change its

constitution because of the ruling: making an employer bargain with a sub-unit of a certified

bargaining unit in order to obtain ratification of a contract can be a "secondary boycott"); McGce

v. The Grand Rapids Press. 486 F.Supp. 584, affd 663 F.2d 1072 (6th Cir. 1981); EEOCv Ferris

State College. 493 F. Supp 707 (W.D. Mich. 1980).

18
539

My most recent trial was on March 4, 1992:

Case: People v. John V. Boiling

Court: Ottawa County Circuit Court

Judge: Calvin L. Bosnian

303 Ottawa County Building

Grand Haven. MI 49417

Telephone: 616/846-8320

Opposing Counsel: Gregory J. Babbitt

414 Washington St.

Grand Haven. Ml 49417

Telephone: 616/846-8215

I was sole trial counsel for the defendant, who was charged with possession of

e. He was found guilty by the jury. He is to be sentenced on March 30, 1992.

19

AA-O^I n - o-) — ifi
540

IL 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

Pursuant to the Partnership Agreement of Miller, Johnson, Snell & Cummiskey, I have

an interest in the increase of accounts receivable of that firm since I became a partner in

1971. As of January 1, 1991, the book value of those receivables was $212,836.

However, if I leave the firm at my current age, 54, those receivables are to be paid to me

at the rate of $1000.00 per month, without interest, until paid in full. At a capitalization

rate of 8%, those receivables have a present value of $113,572. I hope to negotiate

payment in full at the present value.

My capital interest in the firm is $16,614. Pursuant to the Partnership Agreement, this

capital must be repaid to me within one year of my leaving the firm. No interest will be

paid to me on my capital.

In addition, I am a general partner in ARS Investors. This is a partnership composed of

several of the partners of Miller, Johnson, Snell & Cummiskey. ARS is, in nun, a partner

in another partnership that has an ownership interest in the office space occupied by

Miller, Johnson, Snell & Cummiskey pursuant to a 10 year lease with about 9 years

remaining on the lease term. Miller, Johnson, Snell & Cummiskey pays rent, and I

receive a benefit from that rent. For the past several years, I have been paid between

$16,000 and $20,000 per year because of my interest in ARS. If I become a judge, I

intend to sell my interest in ARS. I estimate the current value of ARS to be between

$150,000 and $200,000. There is some movement toward refinancing ARS so that I may

be paid in full in October 1992.

I have self directed 401 -K and money purchase pension plans. These are typical plans

that I will transfer to an IRA account if I become a Judge.

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 intend to resign from all Boards, including charitable boards. If a conflict arises with

my current firm or clients, I would not participate as a judge. In all instances, I will be

guided by the Canons of Judicial Ethics and the law.

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,

20
541

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

5. Please complete the attached financial net worth statement in detail (Add schedules as

called for).

Attached.

6. Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the campaign,

your title and responsibilities.

1970 - Arranged campaign luncheon and other meetings for U.S. Senator Phillip A.

Hart

1972 - Headed Kent County campaign of Horace A. Gilmore for Michigan Supreme

Court

1976 - Hosted fundraiser at my home for U.S. Congressman Harold Sawyer (Sth

District of Michigan) in his first campaign for this position.

1989-90 - Raised funds for U.S. Congressman Fred Upton and hosted two breakfasts

in my home for Congressman Upton (4th District of Michigan).

21

v
542

ID. 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.

ABA Post Conviction Death Penalty Representation Project - Current (Robert Lee Shell.

Mississippi) (The d*y I

went to Mississippi to start working on this case, Mr. Shell's

sentence was reversed by the U.S. Supreme Court and remanded to the Mississippi

Supreme Court. I spent the week with Jim Craig of (he Mississippi Project meeting Mr.

Shell, Mr. Shell's trial lawyers, research, etc. I have studied the transcript, researched

legal issues and outlined fact questions. Mr. Shell's direct appeal was handled by Mr.

Clive Stafford Smith of Atlanta. GA. Mr. Shell's sentence has been reversed by the

Mississippi Supreme Court I intend to work with Mr. Stafford Smith on the resentencing)

Past or current* member offollowing Boards: Wedgewood Acres Christian Youth Homes.

Inc. (1968-74); Mary Free Bed Rehabilitation Hospital (1979-88) (I was chairperson of

the personnel committee; reviewed and revised personnel policies, etc.); Indian Trails

Camp for Handicapped (1973-79, 1982-88) (I was president of the organization on two

occasions. I met regularly with the directors; met with families of campers, etc.); Better

Business Bureau (1972-80); Christian Reformed Publications (1968-74,1977-87) (I was

treasurer and member of the Executive Committee of the Board for several years. The

Board is responsible for the publications of the Christian Reformed Church in North

America.); West Michigan Health Systems Agency Special Committee (to study

Emergency Medical Services) (I became a member of the subcommittee which developed

the report and recommendations as to the delivery of emergency health care in Kent

County. Michigan.); Opera Grand Rapids*; Mary Free Bed Brace Shop*; Seymour

Christian School (1970-75). 1 spend approximately 50 hours per year on these matters.

In 1990,1 handled a court appointed "prisoner's rights' case on a pro bono basis. Earlier

in my career 1 handled criminal matters on a cro bono basis.

The American Bar Association's Commentary to its Code of Judicial Conduct states that

it is inappropriate for a judge to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do you currently belong, or have you

belonged, to any organization which discriminates - through either formal membership

requirements or the practical implementation of membership policies? If so, list, with

dales of membership. What you have done to try to change these policies?

From about 1976 to November 1989 I was a member of the Grand Rapids Athletic Club

This was a small athletic club of about 150 members in the basement of the Old Kent

Building which did not have facilities for women. In 1989 the club merged with The

University Club of Grand Rapids. I encouraged the club to expand to accommodate

women. The University Club did add women's athletic facilities and is totally non22
543

discriminatory. In addition, as a member of management of our law firm, I supported our

firm's policy of not paying iniuation fees or monthly dues for clubs that discriminated in

any manner. See enclosed petition and letter.

3. Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? Yes. If so, did it recommend your nomination? It

found four of the candidates to be qualified. I was one of the four. 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).

Along with several other candidates, I submitted a written application to a Judicial

Selection Committee of approximately 30 lawyers. I and the other candidates were

interviewed by this committee. This committee recommended four of the applicants as

qualified to the Michigan Republican Congressional delegation.

The Michigan Republican delegation recommended three candidates to the United States

Depanment of Justice. I, along with the other two candidates, was interviewed by the

United Slates Department of Justice in Washington, D.C. In November 1991, I was

informed by the United States Department of Justice that I was the "tentative nominee."

After being informed that I was the "tentative nominee" I filled out forms for the FBI, the

American Bar Association, the Department of Justice and the United States Senate. I was

interviewed by an agent of the FBI in November 1991. I was interviewed by Sixth

Circuit representative of the American Bar Association Standing Committee on Federal

Judiciary in January 1992.

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 activisn."

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 -grievanceresolution;

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;

23
544

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

and society;

d. A tendency by the judiciary toward loosening jurisdiclional 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.

Our Constitution establishes three co-equal branches of government, and the

separate powers of these branches should be respected. For example, I believe dial

policies and laws are to be made by the elected officials in the give and take of the political arena. This is not the arena in which judges should operate. Judges are not an elite

group of "wiscpersons" who can solve the country's problems through judicial decrees.

As is contemplated by the Constitution's separation of powers, judges should limit

themselves to applying the laws passed by the legislature and executive. I believe that

when construing the Constitution or a statute, a judge should attempt to determine the

principles of those that drafted the document Of course, as a District Judge. I would be

bound by the precedents set by the Supreme Court and the Court of Appeals in the Sixth

Circuit

Judges should not find "facts" in order to reach social policy results that fit

into their own ideas of what is "good for the country." Rather, judges should be "neutral'

in their application of law to the facts honestly determined even though they might not

agree with the law to be applied to the case at hand.

24
545

AFFIDAVIT

I. Gordon J. Quist do swear that the information

provided in this statement is, to the best of my knowledge, true and accurate.

March 26, 1992

(DATE) (NAME) Gordon J. Quist

Subscribed and sworn to before me this 26th day of March, 1992.

DTARY) Janis Swenson

tent County, Michigan

My commission expires 1/6/93

27
546

3HE . I FINANCIAL DISCLOSURE REPORT SS.rSHS'iA-

(Int. n*ai» ioiUAl)

Quiit. Cordon J.

U.S. DlatrlcC Court for the

Western District of Michigan March 24. 1992

t. Tttim (Artlel* III JadOM I

3/21/92

Hlller, Johngon, Snell fc Cuaaiikey

800 Gaidar PU« Building

Grand IUpld«, MI 49503

IMPORTANT NOTESi Tht inmaiaa acamfaiqmf (his form

ckecUiq die NONE bai tor odi • Sign Olior pq

I. POSITIONS. (Rcportiaf Indivtduil ooly, »cc pp. 7-8 o( Ummaiom.)

EQSmfiH NAME PF QPOAWZATTOWBtfllg n NONE IK

Partner Miller. Johnaon. Soell & Ctnalakey

Partner ARS Investora

See Attachment Ho. 1

II. AGREEMENTS. (Reponisi iadivUiia] oalr. He p. S-9 o( IntraoiOH.)

PATC .. PARTIES AND TERMS D NONE ..o

See AtHtlmcnt Ho, 2

III. NON-INVESTMENT INCOME. (Reponlni IndhMul and ipoaM; xe pp. 9-12 of IDJUMCUOM.)

EATg SOURCE AND TYPE OROSS INCOME

(Honomta only) (yonn. not ipnaifll) D NONE (So mfmntmrn •M-IAVMCMM ;

Miller, Johneon. Soell fc Cniiekey $ 210,120.

ARS Inve^tort, m partnerehlp $ 20,000.

Trenm.tlon.l Motore. Inc. (P.ld to Milter Johneon by »e) $ 1.67?.

$

$
547

FINANCIAL DISCIJOSURE RETORT (coBfi))

IMS at tmtmo* tmpoiXlaq

Quilt, Gordon J.

Data of taport

3/24/92

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

(iDdodei tbow to spouse and JcpeudrBt chiWrto; mc UM pwnthctlcab '(S)' and '(DC)' to lodlcstr

HM—••tad (tfls —•• by ipouse and dgtrndnal diUdrcn, f«p»cth*ty. SM pp.13-15 of I

SOURCE DESCRIPTION

• NONS pmmmki

tot Appllc«bl«

V. OTHER GIFTS.

SOURCE

NONE ix. .«> i

Hot *Pl)Ilc«bl«

n

« lb* miltlHnll VS)* ua '(DC)' to

•^J^L Saa pp-lMt of iMimrtM)

DESCRUTLON VALOE

VI. LIABILITIES, (ma** a** **om. L

lor UibUlt} br oalnj Ike pvoMlMllal '(S)' for na

todMAul nl ifoSc ud'CDC)- tor lubuitj of .

CREDITOR

til chUd. ^n pp.li.ia orlmtroctlom-)

•

DESCRimON VALUE CODE*

NONE (M MpHMifc UMUIUM)

ITBD - Grand Implda

PrtM AM rica Bank

MlchUan National tank

•Mow !<•> than 910 000.

Loan frog own rctira»enc account
548

FINANCIAL DISCLOSURE REPORT (cont'd)

•»•• or P*r»OB Aaportlog

Quist, Cordon J.

Data ot twytrr.

3/24/92

VII. INVESTMENTS and TRUSTS - income, value, transactions.

aod dcpcodcat chlJdrrc; MC pp. 1S-27 of Instructlofu.t See Attachaent No. 3

indict-^ wten •ppUc^tl*. MMT of Exeapt

&

•ST;

(it

^

11 oat. mumft Itam AlMloaara

&

in HI ^ii

NONE Ho nroruU.

1

gi^f^M* CodMl »-(l,000 OX 1«M l-JLOOl to 11,MO C^I.SOl to 5,000 D-i5 001 to IIS 0OO

_J9— COK tl . IMI l-jll.oOl to pO.000 WJ0.001 to 1100,000 O-SIOO. 001 to 11.000 OOO 13;~ JJT ., jST—

-rii'!":°'-Si""' .-Ilsi.OOl u. .J00.OO0 O-J!0i.001 to Illooo 0O0 f-lU; uJrsltiSOSo »-»l».l«>" " "50.KS!—

turn Col. a) u-laak volo* v-ottor w-lotlMM ^-WHMMI.
RNANOAL DISCLOSURE REPORT (COU'd)

549

Quist, Gordon J.

DM* of MfOTt

3/24/92

VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Mk^.^.

DC CERTIFICATION.

In compliance wiih the provisions of 28 U.S.C | 4SS and of Advisory Opinion No. 57 of tbc Advisory Comminee on

Judicial Activfiia. and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudkatory

function In any litigation during the period covered by this report in which I, my spouse. Of my minor or dependent children

had a flnancial iatereu, as defined in Canon 3C<3)(c). in the outcome of soch bugauon.

I certify that all infonnaiion given above (including information pertaining to my spouse and minor or dependent children.

If any) is accurate, true, and complete to tbc 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 thai earned income from outside employment and honoraria and the acceptance of gifts which have been

reported are in compliance with the provisions of 5 US.CA. app. 7, | SOI et *cq-. 5 USC | 7353 and Judicial Conference

regulations.

Sifunue /.^Xfl»\/*-i~^ LXJ^-Cl^h |X- V.^~-" Due 3/2*/92

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFTES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. A». 6, I 104, AND 18 U.S.C I 1001.)

FILING LNSTRUCTIONS;

Mail ilgncd oripnal ind 3 iddlUonal aipics la: Judkiil ElUa Comminee

AdmiiiBiraUve Offloe of the

United Sutet Coum

Wulunpoi), DC 20544
550

Quist, Cordon J.

Part I

March 24, 1992

Attachaant No. 1

Position

Director

Name of Organization

Kent Funds, Investment Company

Act of 1940

One Vandenberg Center

Grand Rapids, MI 49503

Director and Secretary Transnational Motors, Inc.

618 Keruaoor Ave. SE

Grand Rapids, MI 49506

Director and Secretary Travel Consultants, Inc.

989 Spaulding Ave. SE

Grand Rapids, MI 49546

Director and Secretary Spartan Distributors, Inc.

487 West Division

Sparta, MI 49345

Director and Secretary Eastpointe Car Co.

4070 28th St. SE

Grand Rapids, MI 49512

Director Opera Grand Rapids

203-D Haters Bldg.

Grand Rapids, HI 40503

Director Mary Free Bed Brace Shop

350 Lafayette SE

Grand Rapids, MI 49503
551

Quist, Gordon J.

Part II

March 24, 1992

Attachmant No. 2

Pursuant the Partnership Agreement of Miller, Johnson, Snell &

Cummiskey, I have an Interest in the increase of accounts

receivable of that firm since I became a partner in 1971. As of

January 1, 1991, the booked value of those receivables was

$212,836. However, if I leave the firm at my current age, 54,

those receivables are to be paid to Be at the rate of $1000.00 per

month, without interest, until paid in full. At a capitalization

rate of 8%, those receivables have a present value of $113,572. At

a capitalization rate of 9%, those receivables have a present value

of $109,096. I hope to negotiate payment in full at the present

value.

My capital Interest in the firm is $16,614. Pursuant to the

Partnership Agreement, this capital must be repaid to me within one

year of my leaving the firm. No Interest will be paid to me on my

capital.

In addition, I am a general partner in ARS Investors. This is a

partnership composed of several of the partners of Miller, Johnson,

Snell t Cummiskey. ARS is, in turn, a partner in another

partnership that has an ownership interest in the office space

occupied by Miller, Johnson, Snell & Cummiskey pursuant to a 10

year lease with about 9 years remaining on the lease term. Miller,

Johnson, Snell ( Cummiskey pays rent, and I receive a benefit from

that rent. For the past several years, I have been paid between

$16,000 and $20,000 per year because of my interest in ARS. If I

become a judge, I intend to sell my interest in ARS. I estimate

the current value of ARS to be between $150,000 and $200,000.

There is some movement toward refinancing ARS so that I may be paid

in full in October 1992.

I have self directed 401-K and money purchase pension plans. These

are typical plans that I will transfer to an IRA account if I

become a judge.
Quist, Gordon J.

Part VII

March 24, 1992

Attaeluant iJ

Groas Value

Aa of a/20/92

Valna Coda Value HettBd

ASS Investors M W

800 Gaidar Plaxa Bldg

Grand Rapida, MI 49S03

Millar Johnson Snail t Cuaalakay M V

800 Caldar Plaza Bldg

Grand Rapida MI 49S03

NBD - Grand Rapids (J) J T

HBO - Grand Haven (J) J T

Conerica Bank - IRA J T

Fidelity Investaants—IRA(S) J T

Puritan Fund

Fidelity Investments—IRA K T

The following assets are bald in my ratiraaant

account administered by Michigan National Bank,

77 Monroa N.H., Grand Rapids, MI 49503:

Fidelity Cash Reserves J T

Indep. Prise Money Markat L T

50,160 Treasury Bond Rcpt X T

sar 1 Int Pot

0.000* Due 08-15-94

McDonnell Douglas Corp. K T

8.500% Due 02-01-93

Hells Fargo i Co. J T

8.000% Due 7/15/93

Philip Morris Inc. J T

7.625% DUB 2/15/94

Eastman Kodak Co. J T

9.200% Due 2/15/95
553

Textron, Inc.

11.000% Due 7/1/95

Citicorp Inc.

12.500% Due 1/15/96

Michigan National Bank

qutly ajad IS-comnon cvt.

8.000% Due 12/15/98

Safeway Senior Sub.

9.650% Due 1/15/04

Kroger Zeroes

10/15/06

15.500% Due 10/15/93

Conerica Inc 4.32

CUB Pfd sar B

RJK Nabisco PERSC

Reliance Elec Pfd.

15% fBan-28

Ceco Bonds

15.500% Due 11/30/00

Crand Bank Fin'I Corp. comnon

991 Old Kent Fin'l Corp. coBBon

Fidelity Blue Chip Growth

Fidelity Puritan Balanced Fund

Selected Anerican Shares

Fidelity Contra Fund

Fidelity Growth and Income

Personal Notes

ValUB CQdB

J

vaiMBHrttei

T

J

K

r.

J

K

K

K

L

J

X

J

K

T

T

T

T

W

T

T

I

T

T

T

u
554

FINANCIAL STATEHEMT

HIT WORTH

Provide a conplete, currant financial net worth atataaent

which itemizes in detail all aaaata (including bank accounts, real

estate, securities, trusts, investments, and other financial

holdings) all liabilities (including debts, aortgages, loans, and

other financial obligations) of yourself, your spouse, and other

immediate members of your household.

Cult oa hudud im bails

163 30

Lktcd Moim>e*-add icftMMc Sckcdvk #1

• HtfbSidM (Em.) )00 50

Due from Rktivu aad frieada 00)

Real eiiate awtigafea ncciovbla ftmlmMU aw«tpya pfabk add

Auu» and Mbcr ptnoati T^i?

(Nei)

Fidelity F

PinAcntup Capital (MJSAQ

1,218

(TormNci-jn IJABII jms O&CXAL CCPDftMATION

Prevxijon Tor Fedenl Income Tu

Other tpccul iktM
565

Quantity Security

STOKES & COMPAMY

PORTFOLIO APPRAISAL

Mr. Gordon J. Quiat

March 21r 1992

(Laaa Rainvaatad Diva.)

Unit Total

Coat Coat

Market

Valua

Pet.

Aaaata Tiald

Caah and Monay Punda

Pidality Caah Raaarvaa

Indap. Prime Money Market

0.8. Covarnaant Obligation*

50,160 Treasury Bond Pcpt

Sar 1 Xnt Pat

0.000% Due 08-15-94

Corporate Bonds • Znvaatnant Grade

20,000 McDonnall Douglaa

Corp.

6.500% Due 02-01-93

10,000 Halla Pargo & Co.

8.000% Due 07-15-93

10,000 Philip Morria Inc.

7.625% Due 03-15-94

10,000 Eastman Kodak Co.

9.200% Due 01-15-95

10,000 Taxtron, Inc.

11.000% Due 07-01-95

20,000 Citicorp Inc.

12.500% Duo 01-15-96

Corporate Bonds - Hear Investment Grade

13,000 Mich. Mat'l Bnk; 75

qrtly n]ad 15-

coamon evt.

8.000% Dua 12-15-98

10,000 Safeway Senior Sub. 101

9.650% Oua 01-15-04

6,514

69.233

75,747

9B 04 19,609 101.05

96 9.612 102.03

99 9,996 101.84

99 9,975 105.25

106 10,678 101.26

101 20,276 103.00

80.145

10,100 101.00

6,614 1.1

69,233 12.2

4.9

4.6

76,747 13.3 4.6

43,378 7.6 6.1

19,882

43,378 7.6 6.1

20,210 3.6 7.2

10,203 1.8 6.4

10,184 1.8 6.6

10,525 1.9 7.1

10,126 1.8 10.5

20,600 3.6 11.5

81,848 14.4 1.6

11,570 2.0 10.4

10,100 1.8 9.5

21,670 3.8 10.0

SCHEDULE I
556

STOXXS L COMPANY

poRiroLio kPPmaiAL

Mr. Gordon J. Qui«t

Hueh 21, 1993

tVumm p«inv««t«d Dlvs.)

Dnit Total llarkat Pet.

QuUltlty S.curity CO«t COM PtiC« V*llia »...t. T1«M

corporst* l»ro Bonds - Quality

28,000 Kroqcr Imrotm S5.}1 15,460 88.62 24,115 4.4 7.9

10/15/06

15.500* Dti* 10-15-93

15,460 14,815 4.4 I.t

Pref»rr»d Stock - Jnvoatattnt Quality

200 Conarlca Inc 4.32 44.00 8,800 50.00 10,000 1.8 (.6

Cux Ptd 8ar 8

8,800 10,000 1.8 8.6

Prafarrad stock - PERC - Invaatnant Qual.

1,900 KJR Hablaco Pipes 11.50 31,851 10.50 19,950 1.8 1.9

21,851 19,950 1.5 7.1

Prafarrad stock - High Ylald

1,000 Rallanea Clac Pfd. 10.00 10,000 11.50 11,500 2.0 11.0

159 faun-28

10,000 11,500 2.0 13.0

Corporata Bond. - High Ylald (1)

50,100 Caco Bond. 59.13 29,622 79.00 19,579 7.0 20.8

15.500* Dua 11-30-O0

39,579 7.0 30.8

Common Stock

916 Grand Bank Pln-l 41.18 39,550 50.00 45,800 8.1 0.0

Corp.

991 Old Kant rinl Corp 14.91 14,798 40.17 40,012 7.0 2.6

54,148 85,812 15.1 1.2
557

STOKES I COHPMtT

PORTrOLIO ATPMISAL

Hr. Cordon J. Oui«t

March 21, 1992

Quantity Security

(LMa Ratr.va.tad Dlv..)

Onlt Total Markat Pet.

Coat coat Prlca Valua Jkaaata

Mutual Punda - conaarvatlva

1,122.06-7 Pldality Blua Chip

Orowth

4,1J5.««S Pldality Puritan

Balanoad Fund

280.t«* Salactad JMarican

Mutual Punda - Growth

1,142.270 Pldality Contra Pund

(72.029 Pldality Orouth and

In

•otaa and Mortgagaa

15,205 Paraonal Motaa

17.02 22,100 21.42 21,21*

10.12 44,7SS 14.71 (0,(23

17. ao 5,000 17.M 5,022

11.70

11.57

72,255

22,500 26.44

12,500 21.21

15,205 100.00

15,205

1.0 1.1

10.7 (.7

0.1 2.6

14,174 !(.( 4.1

20,202 1.2 0.9

14,275 2.5 3.5

44,477 7.1 1.1

15,205 2.7 1.1

15,205 2.7 1.5

TOTM. PORTFOLIO 568,155 100.0
558

STOKZS & OOMPAHY

PORTFOLIO WPRAISM.

Mr. cordon J. Quist - IRA

March 31, 1991

(Lmum ReinvBBt«d Diva.)

Unit Total Harkat Pet.

Suantlty Socurlty Coat coat price valuo IkaMta

Caah and Money runda

Fldality Caah Re.erve. 3,608 3,60B 24.0 4.«

3,608 3,608 24.0 4.«

Mutual Funds - Growth

164.126 Fidelity Magellan 57.88 9,500 69.81 11,458 16.0 2.1

9,500 11,458 76.0 1.1

TOTAL PORTFOLIO 13,108 15,066 100.0 2.1
559

REAL ESTATE SCHEDULE

The only real estate I own is my house at 12055 Bluewater

Road, Grand Haven, Michigan. This house is owned jointly with ny

wife. The value shown for the house ($275,400) is based upon the

tax assessor's valuation. I have been informed by others that the

house is worth in excess of $400,000.

The first mortgage on the house is held by NBD Grand

Rapids in the amount of $103,200.78. I have a "home equity" loan

from Grand Bank, Grand Rapids, Michigan, in the current amount of

$75,719.45.

SCHEDULE 2
560

,-,-• - o<- ' - OO

ypLvu^o {— JJ&^--4O A'

r\T-ttSi, ftuM) L^/>—v •
561

MILLER. JOHNSON, SNELL & CUMMISKEY

ATTORNEYS

SOO CALDtn n>ZA BUILDING • OMANO RAPIDS. MICHIGAN 40603

ANN AReOft • GRAND MAVCN • KALAMAZOO > LANSING

COROON J. OU1ST TfLCPHONC: 616;4BO.B311

FAX: Bia/4R0OO*fl

A»A NtT: OLtirr G J

October 15, 1990

Mr. Lynn Francis, President

University Club

Board of Directors

One Vandenberg Center

Grand Rapids, MI 49503

Dear Mr. Francis:

As Managing Partner of Miller, Johnson, Snell & Cummiskey

I encourage the board of directors of the University Club to expand

the athletic facilities to permit use by our Club's women members.

Recent changes to the Michigan State Bar rules of ethics and the

increasing number of women lawyers hired by law firms makes support

of a club that practices discrimination on any basis unethical and

unwise. More important, providing equal access and use of the

Club's facilities for current and future women members is the only

fair and responsible course for the Club.

I became a member of the University Club because of my

membership in the Athletic Club. I gained many friends at the

Athletic Club - some of whom probably want to keep things as they

were. However, the merger with the University Club has been of

great benefit to me and others. We should build upon the good will

and financial strength created by the merger by being fair to all

of our members.

Tines have changed. We must recognize and encourage the

meaningful roles that more and acre women play in society and

business. The Club can do this by treating our women members the

same as its male members.

Thank you for your consideration.

Very truly yours.

MILLER, JOHNSOA, SN£LL fc. CUMMISKEY

By T^V^

Gordon J. Quiet

GJQ:js Managing Partner
562

THOMAS K MOORE

Birth:

Legal Residence:

Marital Status:

Education:

January 15, 1939

Virgin Islands

Married

1956 - 1958

1959 - 1961

1964 - 1967

Bar: 1967

1969

1977

Military Service: 1961 - 1964

Experience: 1967 - 1968

1968 - 1969

1969 - 1970

1970 - 1971

1971 - 1976

1976 - 1978

1978 - 1981

1981 - 1987

1987 - present

Idaho Falls. Idaho

Judith G. Moore

2 children

Harvard College

A.B. degree

Georgetown University

Law School

J.D. degree

Virginia

District of Columbia

U.S. District Court, VI

United States Ari Force

Law Clerk to Hon. John Danaher

.S. Court of App

District of Col

U.S. Court of Appeals for the

'olumbia

Department of Transportation

Office of General Counsel

Staff Attorney

Stanford, Reed & Gelenian

Associate

Assistant U. S. Attorney

District of Columbia

Assistant U. S. Attorney

Eastern District of Virginia

Assistant U. S. Attorney

District of the Virgin Islands

Sole practitioner

St. Thomas, VI

Hoffman & Moore, F.C.

Shareholder

Grunert, Stout, Moore i Bruch

Fartner

Office: 24-25 Kongensgade

St. Thomas, USVI 00802

809 774-7270

To be a Judge of the District Court of the Virgin Islands
563

QUESTIONNAIRE FOR JOOICIM. NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Thomas Kail Moore.

2. Address: List current place of residence and office

address(es).

Office: Grunert, Stout, Moore & Bruch, 24-25 Kongensgade,

St. Thomas, USVI 00802 (P.O. Box 1030, St. Thomas

USVI 00804).

Home: 18 Tracy Hay, Cowpet Bay East, St. Thomas, USVI

00802.

3. Date and place of birth:

January 15, 1938; Idaho Falls, Idaho.

4. Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married: Judith G. Moore; maiden name: Judith Diane Oilman;

teacher (part-time) Antilles School, Frenchman's Bay,

St. Thomas.

5. Education: List each college and law school you have

attended, including dates of attendance, degrees

received, and dates degrees were granted.

Harvard College, September 1956 to June 1958; September 1959

to graduation in June 1961 with A.B. Degree.

Georgetown University Law School, September 1964 to

graduation in June 1967 with J. D. Degree.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

6. Employment Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and

organizations, nonprofit or otherwise, including firms,

with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from

college.

Summer 1961: Research Assistant at Harvard, Center for

Research in Personality.

September 1961 to September 1964: Extended active duty in

the United States Air Force, permanently stationed at

Altus AFB, Altus Oklahoma.

September 1967 to December 1968: Law clerk to the Honorable

John A. Danaher, Circuit Judge, US Court of Appeals for

the District of Columbia Circuit.

December 1968 to August 1969: Staff Attorney in the Honors

Program of the Office of General Counsel, Office of the

Secretary, Department of Transportation, Washington.

D.C.

August 1969 to December 1970: Associate, Stanford, Reed (

Gelenian, Washington, D.C.

December 1970 to August 1971: Assistant United States

Attorney for the District of Columbia.

August 1971 to February 1976: Assistant United States

Attorney for the Eastern District of Virginia at the

Alexandria Office.

February 1976 to August 1978: Assistant United States

Attorney for the District of the Virgin Islands at the

St. Thomas Office.

August 1978 to February 1981: Sole practitioner with as

office in the Grand Hotel, Post Office Square, St.

Thomas.

February 1981 to August 1987: Fifty percent (50%)

shareholder in a professional corporation with Paul

Hoffman in Hoffman & Moore, P.C., at 41-42 Kongens

Gade, St. Thomas.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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November 1982 to 1985: Shareholder, director and officer in

Marina Management, Inc.;

Early 1984 to May 1991: Partner in Cranmore Leasing;

Summer 1984 to early 1991: Partner in T & R Leasing;

August 1987 to Present: Partner in the law firm of Grunert,

Stout, Moore 6 Bruch.

7. Military Service: Have you had any military service? If

so, give particulars, including the dates, branch of

service, rank or rate, serial number and type of

discharge received.

Yes. Extended active duty September 19, 1961 to September 1,

1964; United States Air Force; AO3108406; I was a 1st

Lt. at the end of extended active duty, stayed in the

Reserve and was honorably discharged as a Captain.

8. Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that

you believe would be of interest to the Committee.

Bruce Baird Scholarship in law school from the Hattie

M. Strong Foundation, Inc., Washington, D.C. .

American Jurisprudence Price for excellence in Crimes

from Bancroft Whitney.

Editor-in-Chief of the Georgetown Law Journal.

I was on scholarship during my four years at Harvard.

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you

are or have been a member and give the titles and dates

of any offices which you have held in such groups.

Bar associations:

Virgin Islands Bar Association — active

American Bar Association -- active

District of Columbia — inactive

Virginia State Bar -- inactive

Page 3 of 29
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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARIf

October 28, 1991

Committee Memberships and Chairmanships:

Member of Grievance Committee of VI Bar in late

igTO's and early 1980,s

Presently Chairman of St. Thomas Subconmittee of

the Grievance Committee of VI Bar

Designee of US Attorney to the Virgin Islands

Criminal Code Revision Task Force sponsored by the

Law Enforcement Planning Commission in 1977-78.

10. Other Memberships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

American Association of Retired Persons.

I am a member of the following organizations: St. Thomas

Yacht Club; M.O.S.T. (Macrobiotic Organization of St.

Thomas); American Association of Retired Persons; St.

Thomas Council of the Arts, and the St. Thomas Humane

Society; Cowpet Bay East Condominium Association;

Magens Point Condominium Association; and National

Republican Committee.

11. Court Admissions: List all courts in which you have been

admitted to practice, with dates of admission and lapses

if any such memberships lapsed. Please explain the

reason for any lapse of membership. Give the sane

information for administrative bodies which require

special admission to practice.

Virginia Court of Appeals -- 1967

D. C. Court of Appeals -- 1969

US Courts of Appeal:

Fourth Circuit -- 1967

District of Columbia Circuit -- 1969

Third Circuit -- 1977

US District Courts:

Eastern District of Virginia -- 1967

District of Columbia -- 1969

District of the Virgin Islands -- 1977

Page 4 of 29
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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

12. Published Writings: List the titles, publishers, and

dates of books, articles, reports, or other published

material you have written or edited. Please supply one

copy of all published material not readily available to

the Committee. Also, please supply a copy of all

speeches by you on issues involving constitutional law or

legal policy. If there were press reports about the

speech, and they are readily available to you, please

supply them.

a. Case Mote on Martin v. Virginia written in second year

of law school and published in Volume 54 of the GEORGETOHN

LAD JOORKU. (galley proof is enclosed since my copy of

Volume 54 has disappeared over the years).

b. I was Editor-in-Chief of Volume 55 of the GEORGETOHK LMI

J001WM. and did the final edit of all materials in that

issue (I do not have a copy of this volume).

13. Heal th: What is the present state of your health? List

the date of your last physical examination.

Excellent; my last physical was July 1991.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected

or appointed, and a description of the jurisdiction of

each such court.

None.

15. Citations: If you are or have been a judge, provide: (1)

citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant

criticism of your substantive or procedural rulings; and

(3) citations for significant opinions on federal or

state constitutional issues, together with the citation

to appellate court rulings on such opinions. If any of

the opinions listed were not officially reported, please

provide copies of the opinions.

Not applicable.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

16. Public Office: State (chronologically) any public

offices you have held, other judicial offices, including

the terms of service and whether such positions were

elected or appointed. State (chronologically) any

unsuccessful candidacies for elective public office.

None.

17. Legal Career!

a. Describe chronologically your law practice and

experience after graduation from law school including:

1. whether you served as clerk to a judge, and if so,

the name of the judge, the court, and the dates of

the period you were a clerk;

2. whether you practiced alone, and if so, the

addresses and dates:

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of

your connection with each;

September 1967 to December 1968: Law clerk to

the Honorable John A. Danaher, Circuit Judge,

US Court of Appeals for the District of

Columbia Circuit. I prepared bench memoranda

analyzing cases coming up for hearing to give

the Judge my version of the controlling issue

of law and my recommendation for disposition.

After argument, I did whatever additional

research either Judge Danaher or I thought

necessary on particular points; reviewed and

commented on opinions the Judge or other

members of the hearing panel proposed. On

occasion I helped the Judge draft opinions.

December 1968 to August 1969: Staff Attorney in

the Honors Program of the Office of General

Counsel, Office of the Secretary, Department of

Transportation, Washington, D.C. The Honors

Program for Attorneys was designed to rotate

each of the initial six of us for four-month

stints through each of the legal offices of the

myriad administrations brought together under

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QOESTIOKNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

the umbrella of DOT, e.g., Federal Aviation

Administration, Federal Highway Administration,

Urban Mass Transit Administration, Coast Guard,

including the Office of General Counsel for the

Department. I worked mainly at Highway Safety

and also in the General Counsel's Office.

August 1969 to December 1970: Associate,

Stanford, Reed & Gelenian, Washington, D.C.,

with general practice in the District and

Northern Virginia. I did some plaintiff's

personal injury cases, wills, estates, general

business and some domestic relations matters.

December 1970 to August 1971: Assistant United

States Attorney for the District of Columbia,

first at the Court of General Sessions

(Superior Court) papering cases and trying

misdemeanors, then in Special Proceedings at

District Court handling petitions for habeas

corpus and relief under Section 2255.

August 1971 to 1976: Assistant United States

Attorney for the Eastern District of Virginia,

acting as Principal Assistant of the Alexandria

Office from Fall 1974 to January 1976. I was

primarily in charge of grand jury

investigations and prosecutions of white-collar

crime. For example, our grand jury

investigation of the Pomponio brothers, who

built many of the office buildings in Crystal

City and Roslyn, Virginia, culminated in

convictions for tax fraud, securities fraud,

perjury, and interstate transportation in aid

of racketeering. I also participated in the

grand jury investigation of two ship repair

firms in the Tidewater, Virginia area and the

civil suits against two of the shipyards for

false claims against the government which

resulted in settlements of about $750,000 each

in favor of the United States.

January 1976 to August 1978: Assistant United

States Attorney for the District of the Virgin

Islands. I handled not only the regular case

load of criminal prosecutions, but also

virtually all civil matters in the Office.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

During this time, we handled and tried in

federal court all state-type common law crimes

punishable by more than five years. I tried

everything from first degree murder, rape,

robbery, burglary, assault and conspiracy cases

to drug possession and distribution,

immigration and customs matters.

August 1978 to February 1981: I took over ongoing real estate and business-related practice

as a sole practitioner, which I expanded

generally and specifically included more

litigation. My office was in the Grand Hotel,

Post Office Square, St. Thomas.

February 1981 to August 1987: As a fifty

percent (50%) shareholder in a professional

corporation I practiced with Paul Hoffman as

Hoffman & Moore, P.C., a general and businessrelated practice in which I handled the trial

work. I also began to concentrate in real

estate and became a title insurance agent and

approved attorney for two national title

insurance companies.

August 1987 to Present: Partner in the law

firm of Grunert, Stout, Moore & Bruch. We have

a broad practice, with areas of concentration

in personal injury, real estate, and corporate

and general business practice. My areas have

become real estate and title insurance, and I

supervise litigation in these areas.

b. 1. What has been the general character of your law

practice, dividing it into periods with dates if

this character has changed over the years?

1967 to 1971: Nonlitigative government service

in federal agencies, general practice in a

small law firm, and litigative government

service as Assistant U.S. Attorney.

1971 to 1978: I handled all functions of the

United States Attorney's Office from presenting

cases through case agents to federal grand

juries in routine matters, investigating white

collar crimes with the assistance of special

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

investigative grand juries, prosecuting civil

and criminal cases on behalf of the United

States and common-law felonies on behalf of the

Government of the Virgin Islands, preparing

appellate briefs and arguing cases before the

Courts of Appeals for the Third and Fourth

Circuits, and administering an office of ten to

fifteen attorneys and support staff (in

Alexandria).

1978 to 1987: General practice with an

emphasis on business and real estate law and

related litigation; I handled landlord and

tenant cases, some uncontested divorces,

several bankruptcies, a lawsuit growing out of

the failure of an insurance company on behalf

of a my client with a "cut-through

endorsement," and the usual kinds of business

and commercial disputes which tend to end up in

court. I began representing several larger

real estate developers of subdivisions and

condominiums and became title Insurance agent

and approved title attorney.

1987 to Present: The character of my practice

is office-oriented for the most part, involving

real estate, business and commercial matters

and providing title insurance. I supervise some

of the significant lawsuits involving my larger

clients, working with a litigation associate in

preparing and editing pleadings and memoranda

for court and devising strategies and tactics

for the litigation. I handle my share of

court-appointed criminal cases in Territorial

and District Court, and court-appointed civil

cases, e.g., custody, guardianship, and

juvenile cases in Territorial Court.

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialized.

My typical clients are real estate developers,

such as Bayside Resort, Inc., which is building

Sapphire Beach Resort and Marina Condominium;

St. John I^and Investment Partnership, which

developed Peter Bay on St. John; and purchasers

and sellers of residential and commercial real

Page 9 of 29

cr\ ^ei ^x
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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

estate. I am agent and approved attorney for

two title companies: First American Title

Insurance Company and Chicago Title Insurance

Company. I represent First American Title

Insurance Company, American Title Insurance

Company, Lawyers Title Insurance Company, and

other landowners on the East End of St. Thomas

in the Wenner Lawsuit described more fully in

Answer No. 18. My specialty, if any, is real

estate law.

1. Did you appear in court frequently, occasionally,

or not at all? If the frequency of your appearances in

court varied, describe each variance, giving dates.

Occasionally from 1967 to 1971 and from 1986 to

present;

somewhat more frequently from 1978 to 1986.

Very frequently from 1971 to 1978.

2. What percentage of these appearances was in:

a) Federal courts

35% from 1978 to present

99% from 1971 to 1978;

b) State courts of record:

65% from 1978 to present

1% from 1971 to 1978;

c) Other courts:

None.

3. What percentage of your litigation was:

a) Civil:

80% from 1978 to present

10% from 1971 to 1978;

b) Criminal:

20% from 1978 to present

10% from 1971 to 1978.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

4. Stnte 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 .

From 1978 to present:

25 to 30, two as associate counsel and the

rest as sole counsel;

Prom 1971 to 1978:

While an Assistant US Attorney in the Virgin Islands, I

tried an average of one case per month to verdict, all as either

chief or sole counsel; while an AUSA in Virginia, I tried 5 to 7

cases per year to verdict, 75% of which were complicated cases in

which I was co-counsel with the US Attorney or other AUSA's.

5. What percentage of these trials was:

a) jury:

10* from 1978 to present

90% from 1971 to 1978;

b) non-jury:

90% from 1978 to present

10% from 1971 to 1978.

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.

Page 11 of 29
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QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

1} Altagracia Lindo Wenner, as the Administratix of the

Estate of Elias Lindo v. Government of the Virgin

Islands et al.: Lawsuit filed in 1988 to recover

possession and quiet title to virtually the entire East

End of St. Thomas, naming some 440 plus defendants, and

based primarily on a 1780 deed and Danish surveys done

in 1789 and 1795. A lis pendens is filed in the land

records at the Office of Recorder of Deeds. Plaintiff

claims the land called "Estate Frydenhoj" inherited by

her father is actually much larger than the area shown

on the land records.

This litigation is tying up millions of dollars

worth of property and creating tremendous hardship for

everyone from small property owners to large developers

and the title insurers of those properties. My

litigation associate and I got the second amended

complaint dismissed without prejudice and with

guidelines from the Court for how the complaint could

be recast and amended. Plaintiff filed an even broader

third amended complaint which ignored most of the

Court's directions. I have prepared and filed a

lengthy and comprehensive supplement to our earlier

motion for summary judgement to show that the 18th

Century surveys plaintiff relies on, when accurately

translated and plotted by a competent surveyor, map out

almost exactly the same boundaries of Estate Frydenhoj

as shown at the Recorder of Deeds for the last thirty

or forty years.

Although the case has been pending since 1988, it

is still in the Rule 12(b) Motions stage and is

assigned to Stanley S. Brotman, Senior District Judge

(DCNJ) and Acting Chief Judge (DCVI) (DCVI, STT Civil

No. 88-129). We represent First American Title

Insurance Company, American Title Insurance Company,

Lawyers Title Insurance Company, and other landowners

on the East End of St. Thomas. In addition to

preparing the summary judgment motion, I supervise the

litigation and review and edit pleadings of our

litigation associate; I have also done extensive

searches of titles on the East End and consulted with

our Danish/American translator, law expert and legal

historian in the Washington, D.C. area. There are many

other counsel representing other defendants, the

designated lead counsel being Frederick G. Watts, 14A

Norre Gade, St. Thomas, USVI , 809 774-0673.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

Plaintiff's counsel is 0. Luz A. James, P.O. Box 4998

Christiansted, St. Croix, Virgin Islands 00822, 809

778-8802; Judith L. Bourne, P.O. Box 6458, St. Thomas,

Virgin Islands 00804, 809 776-8487, preceded James as

plaintiff's attorney.

2) Celestina L. Thomas v. Alfred Lockhart: Action for

fraud and deceit, damages and specific performance

brought by my client regarding a piece of land sold to

her in 1970 by defendant, who showed plaintiff one lot

which she selected and paid for but gave her a deed to

another lot. Defendant later deeded the lot Mrs.

Thomas had selected to someone else. My client was an

unsophisticated lady who put her life savings of $4,895

in the lot and planned to build her retirement home

there. When she was finally ready to begin

construction of her house, she found that the lot she

had been deeded was the wrong lot and unbuildable.

The course of this litigation shows how easily

unsophisticated persons can be taken advantage of and

how difficult it is for them to get relief from the

system. Since the amount involved was small, plaintiff

first tried the conciliation process offered by the

Territorial Court. When she was unsuccessful, I filed

suit, got a default, the default was vacated, and we

started the trial on August 25, 1982. Defendant agreed

in open court to pay $8,000 in settlement, which was

reduced to writing, signed by both parties and approved

by the Court. Defendant reneged on the agreement and

the Court voided the settlement on our motion. I went

back to court and finally received a judgment

rescinding the sale and awarding plaintiff the purchase

price plus interest and reimbursement for property

taxes and a portion of her attorneys' fees. I then had

to depose defendant in aid of execution, and only after

I had his home and other property attached and

advertised for sale did defendant pay the judgment.

The net result of all this effort was that plaintiff

received about $16,000 in 1984, which was inadequate to

buy a comparable lot to the one for which she paid

$4,985 in 1970.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

Trial was August 24 S> 25, 1982 and completed

February 15, 1983 before Henry L. Feuerzeig, Judge of

the Territorial Court (Terr Ct Civil Ho. 713/1981),

sitting without a jury. I was sole counsel. Opposing

counsel was Ronald T. Mitchell, P.O. Box 4137, St.

Thomas, Virgin Islands 00804, 809 776-1985.

3) Williamson v. Hess: Action to declare valid a covenantnot -to-compete contained in an employment contract. My

client. Dr. Hess, signed an employment agreement with

Williamson, who had a well established veterinarian

practice on St. Thomas. Included in the agreement was a

covenant-not-to-compete on St. Thomas and St. John for

three years if the employment relationship did not work

out. The Territorial Court enforced the covenant.

The significance is that the case upheld the

validity and enforceability of noncompetition clauses

in employment contracts for the first time in the

insular environment of the Virgin Islands.

Trial was December, 1978 to Verne A. Hodge,

Presiding Judge of the Territorial Court (Terr Ct STT

Civil No. 66-1978), sitting without a jury, and

reported in 16 V.I. Reports 284 (1979). I was sole

counsel. Opposing counsel was John E. Stout, presently

my one of my partners.

4) Government of the Virgin Islands v. Paul Testamark:

Appeal of dismissal of Information charging defendant

as habitual criminal and, alternatively, petition for

writ of mandamus ordering Chief Judge Christian to

resentence Testamark as a habitual criminal (at this

time we had no grand jury in the Virgin Islands and all

criminal prosecutions were by information filed by the

US Attorney and supported by affidavit of the

investigative agent or police officer). Late in the

evening of March 29, 1977, Testamark was found guilty

of first degree assault with intent to rape. The Court

immediately set sentencing for 8:30 the next morning,

and, since the Clerk's Office was closed, I filed the

Habitual Criminal Information against him with the

courtroom clerk in accordance with accepted practice

and the same time served defense counsel. Judge

Christian treated the Information as properly filed and

before the Court at sentencing the next morning but

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

refused to consider it, dismissed it, and held the

Habitual Criminal Information Act unconstitutional.

Although the Court of Appeals held that the

Habitual Criminal Information had not been properly

filed, with the Clerk as required by a letter the Chief

Judge had sent to attorneys some years earlier (but

nowhere contained in the published Local Rules of the

District Court). The Court however noted in a footnote

that the Supreme Court had upheld the constitutionality

of a very similar habitual criminal statute.

Sentencing was March 30, 1977 before Almeric L.

Christian, Chief Judge (DCVI, STT Cr. No. 77-64). I

wrote the Brief and Petition. Opposing counsel was

Michael L. Rankin, now a Superior Court Judge, 3d &

Constitution, Washington, D.C.

5) Government of the Virgin Islands v. Julian Frett:

Charged by Information with first degree murder and

possession of an unlicensed firearm in shooting death

of a hotelier while burglarizing condominiums at

Pineapple Beach Club on St. Thomas. Two accomplices

initially charged with Frett pled guilty and testified

at trial.

This case was one of the first times the US

Attorney's Office here used a polygraph to test the

veracity of cooperating codefendants, in this case to

determine who had the gun and actually pulled the

trigger. Frett also took the polygraph examination,

which we hoped would induce a plea. The codefendants

were shown to be truthful and Frett was shown to be

lying about the facts of the killing, but he still did

not plead guilty until the middle of the government's

case.

Trial period was October 26 through October 27,

1976 to a jury before Almeric L. Christian, Chief Judge

(DCVI, STT Cr. No. 76-147). Frett was allowed to plead

guilty in the middle of trial to second degree murder

and was sentenced October 28, 1976 to 35 years. I was

sole prosecuting counsel and defense counsel was Acting

Federal Public Defender, Michael L. Rankin, now a

Superior Court Judge, Washington, D.C.

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

6) United States v. Alphonso Wiltshire and Jerry Reed:

Charged by Information (we had no grand jury then) with

sale and distribution of cocaine; informant made

several buys from the defendants, one of whom was a

police detective.

Successful prosecution of a corrupt police

detective about whom there had long been rumors but no

prosecution or conviction. It is also one of the first

times evidence of tape recorded conversations was

successfully presented to a jury on St. Thomas.

Trial period was June 7 through June 10, 1976 to a

jury before Almeric L. Christian, Chief Judge (DCVI,

STT Cr. No. 76-86), aff'd by Judgment Order dated May

10, 1977. I was sole prosecuting counsel. Opposing

counsel were Frederick Rosenberg, presently retired in

Florida, for Wiltshire, 813 475-6455, and James

Coleman, deceased, for Reed.

7) United States v. Earl Franklin Cole and Catherine Jean

Baker, aka Gault: Convicted for making false statements

and claims while General Cole was serving in Vietnam

with Gault as his secretary. The indictment charged

that Cole authorized inflated overtime pay for Gault

while she was on trips outside of Vietnam and that

Gault was paid a living allowance while actually

residing in government quarters.

As far as I know, this is one of the few cases

actually prosecuted which grew out of an extensive

investigation by the Army and Congress into such

alleged abuses in Vietnam. It also shows the

difficulty in proving such crimes in a war theater. The

convictions were reversed by the Fourth Circuit because

of the trial court's excessive intrusion into the

presentation of the case and prejudicial interference

with defense counsel's efforts to defend their clients.

United States v. Cole, 491 F.2d 1277 (4th Cir. 1974).

Trial was to a jury before Oren R. Lewis, District

Judge EDVa, Alexandria, in early 1972. Trial cocounsel with me was David Hopkins, AOSA EDVa, now

retired and residing at 8703 Nero Street, Annandale, VA

22003, 703 591-4044. Opposing trial counsel were

Albert J. Ahern, Jr., P.O. Box 16270, Alexandria, VA

22302, 703 931-8400, and Warren E. Magee, then of

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QUESTIONNAIRE FOR JUDICIAL NOMINEES

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October 28, 1991

Washington, D.C., whose present whereabouts I do not

know.

8) United States v. Rocco Paolicelli: Indicted for making

false statement to a grand jury under 18 U.S.C. §1623.

Defendant was an employee and the uncle of the

Pomponios, who was questioned before the grand jury

about possibly bribery of one Paul Fry by giving him a

Continental Mark III, the purchase of which Paoliceli

negotiated and ordered from the dealer. Defendant

denied any knowledge and was charged and convicted of

lying to the grand jury. The Court of Appeals upheld

the conviction. United States v. Paolicelli, 505 F.2d

971 (4th Cir. 1974).

It was important to the success of the Potnponio

grand jury investigation to make the point that

witnesses subpoenaed before it had to cooperate and

tell the truth, even if they might be close to the

targets of the investigation.

Trial was on December 18, 1973 to Oren R. Lewis,

District Judge, EDVa, Alexandria (Cr. No. 268-73-A),

sitting without a jury. The defendant was sentenced on

January 11, 1974 to two years' imprisonment. I was

sole prosecution counsel. Opposing trial counsel was

Plato Cacheris, 1914 Sunderland Place, Washington,

D.C., 202 482-9886.

9) Two cases: United States v. Peter and Paul Pomponio and

Charles J. Piluso; and United States v. Louis J.

Pomponio, Jr.: Indicted for interstate travel in aid

of racketeering ("ITAR"), Peter and Paul Pomponio and

their attorney, Charles J. Piluso, were tried before

Judge Lewis; Peter and Paul were acquitted and Piluso

was convicted. Louis J. Pomponio, Jr. was later tried

and convicted before Judge Bryan. The unlawful

activity underlying the ITAR charge was the bribery of

a bank official at the Royal National Bank in New York.

The defendants' pretrial motion to dismiss on the

ground that commercial bribery, a misdemeanor under New

York and federal law, was not the kind of unlawful

activity contemplated by the ITAR statute and was

denied by Judge Lewis. Judge Bryan, however, granted

Lou Pomponio's post-trial motion to arrest his judgment

of conviction based on this same ground.

Page 17 of 29
580

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

The Court of Appeals upheld the convictions,

ruling that commercial bribery is fully within the

ambit of the ITAR Act. United States v. Pomponio, 511

F.2d 955 (4th Cir. 1975).

Piluso's trial to a jury began March 25, 1974

before Oren R. Lewis, District Judge, EDVa (Cr. No.

269-73-A); Lou Pomponio's trial was in April or so to a

jury before Albert V. Bryan, Jr., District Judge, EDVa.

I was lead counsel in both trials and on the Appellate

Brief for Piluso's appeal, I believe I was sole trial

co-counsel for Piluso's case and tried Lou Pomponio

with another AUSA, probably David Hopkins, now retired

and residing at 6703 Nero Street, Annandale, VA 22003,

703 591-4044. Opposing counsel were Albert J. Ahern,

Jr., P.O. Box 16270, Alexandria, VA 22302, 703 931-

8400, and Alan Y. Cole with Lee A. Schutiman, Cole is

dead; I don't know the whereabouts of Schutzman.

10) United States v. Peter and Paul Pomponio and Charles

Piluso: Conviction for filing false income tax returns

in violation of 26 U.s.C. $7206(1) by indictment

returned by the special investigative grand jury. The

defendants listed advances from their corporations as

loans which were really income and took corporate

losses as personal deductions.

The Supreme Court decision reversed the Court of

appeals and upheld the trial court's instruction on the

standard of willfulness in such tax cases: "A willful

act [is] ... one done 'voluntarily and intentionally

and with the specific intent to do something the law

forbids, that is to say with [the] bad purpose either

to disobey or to disregard the law.'" United States v.

Pomponio, 429 U.S. 10, 11 (1976), reversing 528 P.2d

247 (4th Cir. 1975), affd on remand, 563 F.2d 659

Trial was to a jury beginning March 19, 1974

before Oren R. Lewis, District Judge, EDVa, Alexandria

(Cr. No. 304-73-A). Trial co-counsel with me was Bernie

Bailor then of the Tax Division, Department of Justice,

but whose present address I do not know. Opposing trial

counsel were Albert J. Ahern, Jr., P.O. Box 16270,

Alexandria, VA 22302, 703 931-8400, and Alan Y. Cole

with Lee A. Schutzman; Cole is dead and I don't know

the whereabouts of Schutzman.

Page 18 of 29
581

QDESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE OH THE JDDICIARY

October 28, 1991

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.)

The cases described above barely begin to

describe the extent of my trial experience. I

consider my work on the Ethics and Grievance

Committee to be the most significant other

legal activities I have pursued. I was a

member of the Grievance Committee some years

ago and am presently the chairman of the St.

Thomas Subcommittee. We are attempting to

clarify, streamline and modernize the grievance

rules and procedures, particularly the methods

of disseminating the results of disciplinary

actions to the public. For example, I recently

gave a talk to the "Legal Secretaries

Association of the Virgin Islands" on the Model

Code in general and as it applies to nonattorney staff. While lawyers tend generally

to be held in higher esteem in the Virgin

Islands than on the Mainland, respect for the

profession has also declined here over the

years since Watergate.

In a general practice such as mine, it is

difficult to separate out any specific cases

which I have settled without trial, which have

been many; all such matters are significant to

the clients. One of many examples might be my

successful negotiation of a settlement for a

client who ran into difficulties with fellow

shareholders who accused him of trying to deal

for himself rather than the corporation. I was

able to obtain a substantial cash settlement

for the promoter-client, who had not invested

any cash.

Page 19 of 29
582

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated

receipts from deferred income arrangements, stock

options, uncompleted contracts and other future benefits

which you expect to derive from previous business

relationships, professional services, firm memberships,

former employers, clients, or customers. Please describe

the arrangements you have made to be compensated in the

future for any financial or business interest.

I expect to receive payments from three or four

former clients totalling about $20,000.

I own one and two-thirds percent (1 2/3%) of

the stock of VMEASE, Inc., a St. Thomas

corporation, and have acted as director,

secretary, assistant treasurer, and counsel.

The stock, for which I paid $25,000, presently

has no value so I do not expect to receive any

benefit from it.

The arrangement I make with my law firm when I

am confirmed will be for a definite lump sum

"severance settlement" payable over a

relatively short period of time, e.g., three to

four years. Negotiation of this arrangement

will be finalited in the very near future.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas of concern. Identify the

categories of litigation and financial arrangements that

are likely to present potential conf licts-of-interest

during your initial service in the position to which you

have been nominated.

I would be precluded from hearing any matter involving

virtually any of the clients I have represented over

the years, any businesses with which I have been

involved (when confirmed, I will resign all positions

as officer and director in such entities). I will also

recuse myself from hearing any matters involving

members and associates of my present firm for the

period of our lump-sum payout arrangement and

thereafter until cases that were in the office while I

Page 20 of 29
QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

was there are completed. In sum, I will follow the

guidelines of the Judicial Code of 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.

Ho.

List sources and amount of all income received during the

calendar year preceding your nomination and for the

current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents,

honoraria, and other items exceeding $500 or more (If you

prefer to do so, copies of the financial disclosure

report, required by the Ethics in Government Act of 1978,

may be substituted here.)

See attached Financial Disclosure Report (AO-10) filed

with the Judicial Ethics Committee, Administrative

Office of the United States Courts.

Please complete the attached financial net worth statement

in detail (Add schedules as called for).

Have you ever held a position or played a role in a

political campaign? If so, please identify the

particulars of the campaign, including the candidate,

dates of the campaign, your title and responsibilities.

No.

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.

Page 21 of 29
584

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

I have represented poor and disadvantaged persons, such

as Celestina Thomas, who was taken advantage of as

explained in Item 2) of Answer to Question 18. It took

countless hours, a default, a breached settlement, a

trial, post-judgment court proceedings, and levy and

execution to finally resolve the dispute. While I

collected some fees from the defendant and a little

more from Mrs. Thomas, the total fees recovered were no

where near full compensation.

Somewhat similar was my representation of an lady who

won the lottery and got involved with tax problems. She

was not a citizen and tried to divide up the winning

ticket among family and friends who were citizens.

Lottery winnings received by citizens received more

favorable tax treatment by the Government of the Virgin

Islands. The matter went to trial and I also

negotiated with the tax people. Again, the

compensation charged and recovered was far less than

justified by the time and effort expended.

In the Virgin Islands, all attorneys are routinely

appointed to represent indigent defendants in criminal

cases in the District and Territorial Courts and

juveniles in the Territorial Court. He are also

appointed to Represent the poor and disadvantaged in

civil matters, such as child custody, mental

incompetence, guardian ad litem, and child support

cases. Between the two courts, the appointments seem

to average between three and five per year. While we

receive some compensation for these appointed cases,

it is minimal and amounts to pro bono work. I can give

two instances which are not atypical:

I was appointed in February 1986 to represent a

juvenile charged with the equivalent of

assault. I spent 12 hours in 1986 handling his

matter through disposition. There were further

proceedings in 1987 on which I spent another

8.5 hours. In 1990 and 1991 I spent another

3.7 hours on other proceedings, most recently

in August of this year. Thus far I have

received $1300 compensation for approximately

25 hours of work.

In May of 1989 I was appointed guardian ad

litem for a minor on a petition of the

Page 22 of 29
585

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

government for temporary protective custody.

From May 1989 through March 1991 I spent 19.5

hours on this matter, for which I have received

compensation of $1000.

The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is inappropriate for a

judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you belonged,

to any organization which discriminates -- through either

formal membership requirements or the practical

implementation of membership policies? If so, list, with

dates of membership. What you have done to try to change

these policies?

No.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal

courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection

process, from beginning to end (including the

circumstances which led to your nomination and interview

in which you participated).

No. Through former associates and friends I let my

interest in an appointment to the District Court here on

St. Thomas be known to Senators John Warner and Bob Dole.

Senators Dole and Warner kindly agreed to meet with me

and wrote letters of recommendation to the White House

and Department of Justice. Other Senators and

Representatives also made inquiries on my behalf. Many

letters were also sent by Virgin Islanders who have known

me over the years. I was subsequently interviewed for

the position by officials at the Department of Justice.

Sometime later, I was notified that I had been selected

as a potential nominee, completed questionnaires for the

American Bar Association, Department of Justice, and

Federal Bureau of Investigation, and was interviewed by

Special Agents of the FBI and a representative of the ABA

Standing Committee on Federal Judiciary.

Page 23 of 29
586

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

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 view 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 problemsolution 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 federal judiciary is but one branch of

the three separate "Powers" set up in the

Constitution. Each of these three branches of

the federal government has its particular role

within the overall system. Over the years the

Page 24 of 29
587

QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 28, 1991

exercise of these powers by each separate

branch has operated to check, balance, and fine

tune the functioning of our government. The

three branches do not always mesh smoothly and

efficiently and the system does not always work

or as effectively as it might, but, in my view,

it is the best system anyone has come up with

so far.

Within this tripartite system of governance

the role of the courts is a circumscribed one,

being limited by the restrictions of the

Constitution and the provisions of the laws

passed by Congress. The scope of action of a

district court judge is further constrained by

the precedents of courts superior to the trial

level. My conception of the function of a

trial judge is to apply the Constitution and

laws, as interpreted by higher federal courts,

to particular Issues presented by specific

cases and controversies.

Page 25 of 29
588

FINANCIAL DISCLOSURE REPORT JlSSiSE

| (tMt MM, Clot, B1M1* lalU«l)

Moore, Thomas K.

t, 1lx.it {ArUel* 111 JudflM ln4iut« actl** az

• •nlii Bt^taai Haalauat* ludgaa laaicata tali- or paxi-ti3l

District Judge - Active

1. coart ar Otfanlaatiaa

District Court of the VI

St. Thooas - St. John Division

9. laport Typa (ctiac* -ppiopclata tyya)

_ n^aaUo.. Mta 10/22/91

lattlal Aanaal final

10/26/91

1/1/90 to 10/1/91

; Oftlca Maraaa

United States Courthouse, Charlotte Amalle, St. Thomis, USVI

IMPORTANT NOTESi Tht uumictiom oaompanying tfiu fom muir be fotlowtd. Compku aU pam,

checking the NOfiE boi for t«£h icdloa whe« you lia« no reporlable Infbrwtloo. Sign on tost page

I. POSITIONS. (Reponlnl IndMdu^ ooly; ice pp. 1-t of Imlroclioiii.)

POSITION NAME OF OBnANITATiON/ENTrTY

I NONE (la rapartattla raalUoM)

Local Counsel ' American Title Insurance Company

Local Counsel 4 Asst. Secretary Bayslde Resorts, Inc.

As Counsel S Asst. Secretary Brass Island Club. Ltd.

II. AGREEMENTS. (Reporting individual only, «ee p. «-» of liBtruclions.)

DATE PARTIES AND TERMS

I NONE {So captftaMa aQraaaaaia)

Not yet final Severance agreement with my law partners Crunert. Stout « Bruch

for settlement, probably a lump sum, payable over three or four years

(I will supply details when final)

il NON-INVESTMENT INCOME. (Reponlng individual and .poiae; ice pp. 9-12 ol Imlractloos.)

(Hononm. only) *"•* ** 'f00'^

NONE (Ro nperuAl* Daa-lavMtMBt IMOM)

1989 Gruncrt. Stout. Hoore & Bruch - Legal Services $ 1^6.985

•

1989-91 Antilles School-part-time teaching (S) $_

1990-91 Interest on Phllsdelphls Life Ins. Co. Policy (S) $_

1990-91 Grunert. Stout. Moore S Bruch - Leg«l ^»r»tr»» ^ lAT.SQQ

1990-91 Legal fees from former client jj 1 -AOO
589

FINANCIAL DISCLOSURE REPORT, Attachment 1

Thomas K. Moore, 10/26/91

Counsel, Cabrite Point Condominium Association;

Approved Title Examiner and Local Agent , Chicago Title

Insurance Company;

Partner, Cranmore Leasing;

Counsel, Devcon International Corporation;

Approved Title Examiner and Local Agent, First American Title

Insurance Company;

Counsel and Assistant Secretary, Joe Vogel Diving, Inc.;

Counsel and President of the Bd of Directors, Magens Point

Condominium Association;

Counsel, St. John Land Investment Partnership;

Partner, T & R Leasing; and

Counsel, Director, Secretary, and Assistant Treasurer,

VMEASE, Inc.
590

FINANCIAL DISCLOSURE REPORT (cont'd)

Ku* et Ft*— IMparttat

Thomas t. Moore

Data at B^a

10/26/91

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment

(Incladfs tbote la ipousc and dcpcndenl children: tue Ibe puvnthctkaU *(S)' u>d '(DC)* lo ladliill "fj"*"*'!.

rrlmbunemeou aod |iru ncdnd by ipousc and depcndcal children. re*pecll»elj. See pp.l.VU of lAttrvcUoa* i

a

SOURCE

NONE On asch r«pori«t,I. i

mmFT

DESCRIPTION

MU or gift*)

V. OTHER GIFTS. Ilncludtt UMM lo ipouie •od

Indicate other tUli recdved by cpousc Mid

SOURCE

•

he parentt

DESCRimON v/iULE

NONE (•. .

VI. LIABILITIES. (Includes (hMe of ipousc and dependent children; indkntc where applicable, person

for liability by using the nnrcnlhrllcal *(S)' for separale llabtllly of spouse, *(JJ* forjolnl UaUUty of

individual andI spouse, spouse^ and i '(DC}' for UabUlhr of a dependent child. Sec piUfr-lS orlnitraclkmi.)

J NONE [•« t*pon*bla llakllltlM]

Chase Manhattan Bank (J)

Marble Bank. Rutland. VT (J)

Fairfield Mountains, NC (J)

Williaots College assigned to Mass.

Educataanal fin* Autbfcy (J^

University of San Diego (j)

Ranrn Pnpi.lur H.. P.n.rtn Bti-n

dependrnt rhild Sec pp.n

DESCRIPTION

Mortgage on Hagens Ft. Condo

Mortgage on Marina Slip

Timeshare Installaent Contract

Financing David's Senior Yr.

2d Semester Jon's lat Yr,

GuaranLep huHJnpgi Injin fnr

failed business-Cronmore Leasing

rinstructioos.)

VALUE CODE'

' VKUJ* ocoim

i thu ii.ooo.boo

M - 1140,001 to IIIC.OOC
591

FINANCIAL DISCLOSURE REPORT (oonrd)

•••• Ol rtTMN PUpo, tlr.0

Thomas K. Moore 10/26/91

V1L ,N2RS3S^2^S!SSSS&***' *«—*»» *—*.-^.

'Km0.

!»: Mi

(1! IS fe

(J) (41

ficil!!:

NONE (Bo t.portal,

i**—. •••..., sr

i X E M F T

Acct. . .S>hrin.. Fl. c Tnr. i T

frudential Command Account

-4 Int. T

Retirement. Portliinrt, MF. A Dlv. J T

Value Ball., -ft (•<;) c Tnf i T

Iimeshare. Falrfleld

i

Oak Est.. Kent Countv. MD A None J W

. 5^<

Thn!;?? P 3 ,,-U|), - n II narlna Mjp Condo Unit(J)

Sannhire Be.rh <;r Thnmnn D Rent n s

griSSSSJ T—s ^J^— ..A M"n<> i

lejrstone Tax Free Fund

Dlv. J T

" lunr? F"?'1 K i

Ui

-

.H niv. T aunrise Technologiea ,,,

A None K T

mfma h^?^^ B Div I T

Is

A Dlv. J T

Blackstone 1998 Term Trust A Div. J T

Chrysler (Conraonl * Div. .1 T

-•.pqMres'

t

/

TRfl1 R Plv y

"Kollins Environmental

A Dlv. 1

r i "'P1"

1

income i Growth Fund .<;,..-< p. TV ^v A Dlv. J T

Blackstone 1991 Term Trust

W A Div, J T

•.^^rii-rsifj^-f.^ HMj'-j,^• Hliv-r-5'^ -» Ml to |19,MM

^r^;-^ rfei"'1"- l-'i-m^fe, tttki v-oth.t viatlMM
592

ATTACHMENT 2

FINANCIAL DISCLOSURE REPORT (aml'd)

Mamm ct Varaon Kapaitlag

Thomas K. Moore

fata o( W^art

10/26/91

VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those or«

and dependent children; see pp. 18-27 of Lutmctloiu.)

Paaaclptlo-1, o( Aaaata

{includlnti cniat aaaata]

Indleaut.'' wbara arplleabla, ownar of

tha aaaat bv vtiak uta MianthatlcaL !

J

! (9C,Joint oinaEahlp 0/ raport- In, Iwllvliu.l and ipoaaa, *(sinor

Incoaa during aioa. v.lo* «t and oC

0.

TiuBMtlon. during r.portlBf rmtia4

ID Hi i.i)

V.lu.

ll i.ot xwt i•. di«l»..r.

suw

ID

^7,

NONE (Wo (apoilabla

E X ; M P T

Equivest (IRA) (S) B Div. T

J Global tJov't Plus Fund

fPrudentiaH (S) A Div. T

UTS C IF DISC B (S) A D, v . T

Dominion Resources (Common)

Cnri B Div. T

A Div. T

'Financing Corp. CPN

•'Prudential Money Market'

Assets (DC) A Tnf . T

•Prudential Special Money

* Prudential Inconvertible B Div. T

igCertificate of Deposit D Int. T

"Merrill Lynch Cash A Int. T

VMEASE. Tnr. CCoimnnl Ml llrmM

11 i Interest in Motor Vessel A ient T

.. NSEi - Hare Crandall

A None T

IS

li

17

1*

19

30

i iMOM/tein Coaaai . k>«l.O0O or iMa B-Jl.OOl to 11,too OJJ.SOl u> S.OOO 0*1),001 to lit,MO

(Baa Co). Cl « Pj) P*11)0.OOl to 1500.000 OSSOO.OOl to 11.600.000 r-nor* than 11.000.000 ''

(••a Col. C3) VBook Valua ¥-Othar w-l.tl.atad
593

FINANCIAL DISCLOSURE REPORT (cont'd)

Thonas K. Moore

Mta at t^iil

10/26/91

VIII. ADDITIONAL INFORMATION or EXPLANATIONS, o-uoie i-i-rlupoi.)

P*RT II: I will receive payiients of about S20,000 from former clienta pursuant to a

Chapter 11 Bankruptcy Plan, Informal agreement and court action.

PKST VI; The loan guarantee is left over from a partnerahlp. Cranmore Leaalng; the loan

"as to finance » dock and marina project which waa never coapleted; all mj Interest has

has been assigned to my partner.

PART VII: The M.V. "Mila" sank in January 1990. was salvaged, and was sold In 1990 on a

contract completed In 1991.

IX. CERTIFICATION.

In compliance with ibe provisions or 28 U.S.C 5 455 ind of Advisory Opinion No. 57 ul the Advisory Commiitcc on

Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, J did not perform any adjudicatory

function in any litigation during the period covered by this report in which 1, my spouse, or my minor or dcpcDdent children

had a financial interest, as dcQned in Canon 3C(3)(c). in the outcome of such litigation.

1 ccrtily thai all information given above (including information pertaining to my spouse and minor or dependent children,

if any) is accurate, tnte, and complete lo 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 (urthcr certify that earned Income from outside employment and honoraria and (he acceptance of gifts which have been

reported are In compliance with the provtsions of 5 U S.C.A. app. 7, ft SOI eL set]., S US.C | 7353 and Judicial Cbnfercnce

regulalions.

Signature V^^CTz^ D~ "/?•£/?/

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.CA. APP. 6. I 104, AND 18 US.C I 1001.)

FILINO INSTRUCTIONS:

Mail signed original and 3 addlllonal copies lo: Judicial Ethics COmnittee

Administrittvc Odlce Of Ibe

Unlled Sulet Count

WMhinpon. DC 20544
594

Attached to the Questionnaire

for Judicial Noalnees

• • FINANCIAL STATEMENT

NET WORTH

•moms K. MOORE

October 1. 1991

Provide i compltle, current financial net worth ttatctnenl which Itetnizca In detail all aurls (including bank

accounli. rral estate. »ecurHles. trusti. fnveslments. and other financial hotdlngt) all Uabllltiti Oncludini debts.

mortgaies. loans, and other (inancial obli|ationt) of youncK, your spouac, and other Immedlata mambcri o'

your household.

A« mtion+t, conuhar at fuaranlor

On JuMi or contneta

LK•) Claims

rtowtilon lor Fodanl IncomaTaa

Othar ap^ciil dabl
595

QUESTIONNAIRE FOR JUDICIAL NOMIHEES

SENATE COMMITTEE ON THE JODICIARY

October 26, 1991

SCHEDDLE OF LISTED SECDRITIES:

Home Intensive Care

Sunrise Technologies

ATST

Rollins Environmental Services

Dominion Resources

Exxon

Sonora Gold

Global Government Plus Fund

Prudential Inconvertible Plus Fund

Blackstone 1998 Term Trust

First Capital Income & Growth

Plus Fund Series IV and 12

Financing Corporation CPN

FICO Strips Ser. 12

Keystone Tax Free Fund

Municipal Investment Trust Fund

OTS C IF Disc B

Total Value as of 10/1/91

Common

Common

Common

Common

Common

Common

Common

Mutual

Mutual

Mutual

Stock

Stock

Stock

Stock

Stock

Stock

Stock

Fund

Fund

Fund

Partnership

Tax Free

Tax Free

Unit Trust

8CHEDOLE OF OHLISTKD SECORITIES:

VMEASE, Inc. (St. Thomas Corp.)

Total Value as of 10/1/91

Common Stock

$141,800

-0-

3CHEDDLE OF REAL ESTATE OWHED:

Condominium at Cowpet Bay, St. Thomas (Home) $300,000

Condominium at Magens Point, St. Thomas 45,000

Marina Slip Condominium at Sapphire Beach, St. Thomas 105,000

1/2 Interest in lot at Great Oak Estates,

Kent County, Maryland 5,000

TimeShare at Fairfield Mountains, North Carolina 11,000

Total Value as of 10/1/91 $466,000
QUESTIONNAIRE FOR JUDICIAL NOMINEES

SENATE COMMITTEE ON THE JUDICIARY

October 26, 1991

Page 2

SCHEDDLE OF REAL ESTATE MORTGAGES PAYABLE:

Cowpet Condominium, Chase Manhattan Bank $ 29,500

Magens Point Condominium, Chase Manhattan Bank 16,000

Marina Slip Condominium, Marble Bank 14,000

Fairfield TimeShare 7,000

Total owed as of 10/1/91 S 66,500
CONFIRMATION HEARING ON TIMOTHY D.

LEONARD, LOURDES G. BAIRD, IRMA E. GONZALEZ, AND RUDOLPH T. RANDA

WEDNESDAY. JULY 1, 1992

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:45 a.m., in room

SD-226, Dirksen Senate Office Building, Hon. Herb Kohl presiding.

Present: Senators Kohl and Thurmond.

OPENING STATEMENT OF SENATOR KOHL

Senator KOHL. This hearing will come to order. I am sorry for

the delay, but, as you know, there was a vote on the Senate floor.

This morning, the committee will conduct a hearing on four judicial nominees—Timothy D. Leonard for the Western District of

Oklahoma, Ms. Lourdes Baird for the Central District of California,

Judge Irma Gonzalez for the Southern District of California, and

Judge Rudolph Randa for the Eastern District of Wisconsin.

As is customary, we will hear first from Senators who wish to

introduce nominees to the committee, but before we turn to them,

let me state for the record that each nominee has completed a detailed questionnaire on his or her qualifications, experience, finances, and philosophy. The portions of the questionnaire available

to the public will be printed in the record of this hearing. We will

also keep the record open for a limited time in case members of the

committee would like to submit written questions. And, of course,

we will place in the record the full introductory statements of

home State Senators and Congressmen.

We have a number of distinguished Senators with us today and

we will begin with them as they introduce their nominees. We

have with us Senator Boren and Senator Nickles, who would like

to introduce Timothy Leonard.

Senator Boren, would you like to start?

Senator BOREN. Mr. Chairman, I would be happy—I will defer to

my colleague. Senator Nickles, since he had the privilege of

making the recommendation of Mr. Leonard. Then I would be

happy to add my remarks immediately after his.

Senator KOHL. Senator Nickles.

(597)
STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM THE

STATE OF OKLAHOMA

Senator NICKLES. Mr. Chairman, thank you, and I thank Senator

Boren. It is indeed a pleasure for me to present to the committee a

very good friend, and I think a very well qualified person to be the

next Federal judge in the Western District of the State of Oklahoma.

I have had the pleasure of knowing Tim Leonard for many years.

He presently is serving as U.S. attorney for the western district,

and he has since October of 1989. I might mention that as U.S. attorney he has done an outstanding job, and I heard compliments

and accolades from Federal judges; I have heard that from people

on the bench, I have heard it from people who are in the bar and

before the U.S. attorney either in opposition or in working in conjunction with him. He comes highly recommended from people who

have had the pleasure of knowing him and working with him.

Prior to his confirmation as U.S. attorney, he practiced law in

Oklahoma City. He has a wealth of experience in the judicial process and the law. He also served in the Oklahoma State Senate from

November 1979 to 1988, and he was also elected minority leader in

the State senate in 1985. I had the pleasure of serving with Tim in

the Oklahoma State Senate during my brief tenure in that body.

From 1968 to 1970, Tim served as an assistant Oklahoma attorney general. He is a graduate of the University of Oklahoma and

received his law degree in the university's law school. As a member

of the U.S. Navy from 1965 to 1968, he served in the Judge Advocate General's office in the Pentagon for 2

1

/2 years, as well as serving as a White House military aide to President Johnson from 1966

to 1967.

In Oklahoma, he has had the distinction of being involved in numerous community organizations, such as serving on the board of

trustees of the Donna Nye Foundation and serving on the advisory

board of the Oklahoma State Fair. Tim and his wife, Nancy, are

natives of Beaver, OK. They have three children—Kirsten, Ryan,

and Tyler.

Mr. Chairman, again, I have stated this before, but I have had

the pleasure of knowing Tim and his family for several years. I

know of his integrity, I know of his character. I think he will be an

outstanding addition to the Western District of the State of Oklahoma. I would urge this committee to move as expeditiously as possible and have the entire Senate confirm him. I think he will be an

outstanding addition to the judicial branch.

Senator KOHL. Thank you, Senator Nickles.

Senator Boren.

STATEMENT OF HON. DAVID L. BOREN. A U.S. SENATOR FROM

THE STATE OF OKLAHOMA

Senator BOREN. Thank you, Mr. Chairman. It is a privilege to

join with Senator Nickles in recommending to you and the members of this committee the prompt confirmation of Tim Leonard to

the bench in Oklahoma.

I have known Tim—I was thinking back—almost 30 years. I have

known him when he was a civic leader in his home community of
599

Beaver, OK, a small community in northwestern Oklahoma, in the

Oklahoma panhandle region. I have known him as he has been in

the private practice of law there for many years. I have known him

since he entered public life, as Senator Nickles has said, spending

10 years with a very distinguished record in the Oklahoma State

Senate, serving as minority leader during part of that time. And

then I have known him, also, as he has been a part of our judicial

process as assistant attorney general for the State of Oklahoma,

and then most recently as U.S. attorney for the Western District in

Oklahoma.

I have thought over and over again if there is anything I could

say bad about Tim Leonard. There is one thing. His party affiliation leaves something to be desired, but other than that, I have to

tell you that he is a person for whom I have enormous respect.

When I think back about the people who have been nominated to

serve from Oklahoma on the Federal bench over many years since

statehood, I would certainly place Tim Leonard among that small

number that have been most highly qualified to serve.

He has strong bipartisan support in our State. People have confidence in him without regard to their party affiliation. Those that

have dealt with him in the legislature in the State government—

and I have been in on some of those conversations and I have

talked with many of his colleagues on both sides of the aisle. The

word that they use most often to describe him is "fair." He is a

person that shows respect for various points of view, who listens intently, who does his homework and then tries to reach a fair decision, and he has the courage of his convictions. He is a person of

absolute integrity. I would never question for 1 minute the attitude

that he would bring to the bench in terms of his personal character

and in terms of his fairness and ability to listen to all sides of an

issue.

So it really is a privilege—and I use that term not in the sense

that we use it every day as a matter of form of speech, but I use it

in its real and genuine sense—it is a privilege for me to be here

and to recommend to you the confirmation of Tim Leonard to the

Federal bench for Oklahoma. He is a person of enormous ability

and he has virtually the unanimous support of the people of Oklahoma as he has been nominated for this position.

Senator KOHL. Thank you, Senator Boren.

We also have with us Senator Kit Bond from Missouri, who

would like to say a few words about Mr. Leonard.

STATEMENT OF HON. CHRISTOPHER BOND, A U.S. SENATOR

FROM THE STATE OF MISSOURI

Senator BOND. Thank you, Mr. Chairman. After the very fine

words of the two extremely distinguished Senators from Oklahoma,

it is with some trepidation that I come in and say anything about

my good friend, Tim Leonard.

As the distinguished senior Senator from Oklahoma has said,

outside of his party affiliation, he can find nothing wrong with

Tim, and I would hope that all our colleagues on both sides of the

aisle would join in a very swift and quick confirmation of Tim

Leonard.
600

I have had the pleasure of knowing Tim and his lovely wife,

Nancy, quite well for over 25 years, going back to the time when he

was in Washington with the Judge Advocate General Corps. I know

his work in Oklahoma primarily through reputation, but I do know

Tim and I know his family. I know the kinds of high standards, the

great ability, and intellect that he has, and I appreciate the opportunity to join with my colleagues in Oklahoma in saying that this

is one of the outstanding candidates who has been nominated, and

I certainly can think of no finer action that the Senate can take

than to move expeditiously on this confirmation.

I appreciate very much the time, and I certainly add my wholehearted personal endorsement to this nomination.

Senator KOHL. Thank you, Senator Bond.

Thank you, gentlemen.

Judge Randa, would you like to step forward now with Senator

Kasten?

Senator Kasten.

STATEMENT OF HON. ROBERT W. KASTEN, JR., A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator KASTEN. Mr. Chairman, thank you very much, and let

me first of all say how pleased I am to see you chairing this hearing, but also how pleased I am to be here this morning to introduce

and, more importantly, to highly recommend to your committee

Judge Rudolph T. Randa.

As you, Mr. Chairman, are well aware, Judge Randa has been

nominated by the President to fill the open judgeship of the Federal District Court for the Eastern District of Wisconsin. I wasn't surprised when Judge Randa was one of the five candidates that was

considered most qualified by the Federal merit selection commission which, included members chosen by you, Mr. Chairman, the

State Bar of Wisconsin, and also me.

The commission had the difficult job of reviewing the credentials

of 22 highly qualified individuals. Though the qualifications of the

five individuals recommended by the commission reflected the high

caliber of jurists and practitioners that we have in Wisconsin, I was

pleased to recommend to the President the fine jurist that we have

here with me today and that we will hear from later.

Judge Randa has distinguished himself as both a practicing attorney and as a jurist in Wisconsin's fine judicial system. He has

practiced on his own, served for 5 years in the Milwaukee city attorney's office, and then served since 1975 as a judge on various

courts.

Prior to his current position as Milwaukee county circuit court

judge, which he has held for 10 years. Judge Randa served as both

a Milwaukee municipal court judge and as a Milwaukee County

circuit judge, as well as on two different panels of our State's court

of appeals.

Mr. Chairman, though we all wish it were not so, Wisconsin, and

particularly the southeastern part of Wisconsin, the Milwaukee

area, has been hard hit by crime and drug problems that plague

this Nation. Beyond the sadness that such problems mean to the

individuals involved as victims, a severe strain is put on the whole
601

judicial system as criminal cases must take precedence over civil

matters.

The eastern district bench needs the current vacancy to be filled

as soon as possible, and I know that you, Mr. Chairman, are personally aware of this. Working on the premise that justice delayed

is justice denied, the 19-month time period that civil matters take

to get through the eastern district must be reduced. Mr. Chairman,

both of us recognize that a great step in that direction would be the

expedited confirmation of Judge Rudolph Randa.

I am pleased that Randy has his two sons, Rudolph and Daniel,

and his wife, Melinda, behind me; also, Melinda's mother and other

relatives. They are here today to share this important occasion

with Randy, and I also, Mr. Chairman, want to say that last night

the family ventured to Baltimore. The idea was to watch the Brewers defeat the local team up there, the Orioles, which didn't

happen; but they are all watching here today, and today makes

their trip worthwhile. We couldn't bring a Brewers win, but today

makes their trip worthwhile, and I know that all the people behind

me are proud of their father, their husband, and their son-in-law.

I wish to thank you, Mr. Chairman, for holding this hearing, for

your efforts to see that the federal judgeship vacancy in the Eastem District of Wisconsin is filled as quickly as possible. I give

Judge Randa my very highest recommendation. I look forward to

working with you, Mr. Chairman, in expediting this nomination.

Thank you very much.

Senator KOHL. Thank you very much. Senator Kasten.

Judge Rudolph Randa is a very good example of Wisconsin's fine

education system. Judge Randa was born and raised in Milwaukee.

He attended Riverside University High School and he received his

undergraduate degree from the University of Wisconsin-Milwaukee

in 1963 and his law degree from the University of Wisconsin in

1966.

Judge Randa has an extensive public service career, including

time spent at the Civil Rights Division of the Department of Justice and with the city of Milwaukee, as well as serving as a judge of

the Milwaukee Municipal Court, the Milwaukee Circuit Court, the

Wisconsin Court of Appeals, and finally as judge of the Milwaukee

County Circuit Court.

Obviously, Judge Randa has had vast experience, and the American Bar Association agrees. Judge Randa was unanimously rated

qualified by the Standing Committee on the Federal Judiciary of

the ABA.

As with most Federal circuits, the Eastern District of Wisconsin

has a lengthy backlog of cases. The sooner the opening created by

Judge Warren's senior status can be filled, the better off the people

of Wisconsin will be.

I congratulate Judge Randa on his nomination and we welcome

him on behalf of the Judiciary Committee.

Judge RANDA. Thank you, Mr. Chairman.

Senator THURMOND. We are glad to have you. Thank you for

coming.

Senator KASTEN. Thank you, Strom.

Senator KOHL. Senator Seymour, would you like to bring up your

two nominees?
602

Senator SEYMOUR. Yes, I would, Mr. Chairman. I appreciate that.

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

THE STATE OF CALIFORNIA

Senator SEYMOUR. Chairman Kohl, distinguished Senator Thurmond, thank you for allowing me the distinct pleasure to introduce

Ms. Lourdes Baird, an exceptional nominee to the U.S. District

Court for California's Central District.

We often speak of America as the land of opportunity, but it

takes a remarkable story of an extraordinary person like Lourdes

Baird to show us that the promise of this Nation is still alive. Her

story is one of courage, of perseverance, and of creating one's own

opportunity on the strength of character.

Ms. Baird came to the United States as a child from Ecuador,

and after raising her five children in the rough-and-tumble streets

of Los Angeles, she returned to school and set out on a new path of

self-improvement. Graduating at the top of her class from UCLA

Law School was just the beginning of her late-starting but exceptionally devoted academic career, and since then Ms. Baird has

served California's legal and judicial professions, as well as America's law enforcement community, with distinction.

Ms. Baird's credentials for this post are impeccable. She has experience as a Federal prosecutor from her service as an assistant

U.S. attorney for the Central District of California from 1977 to

1983, and as our current U.S. attorney for the same district since

1990.

She has 3 years of experience in private practice as a partner in

the firms of Baird & Quadros, and Baird, Munger & Myers, and she

has prior judicial experience in the East Los Angeles Municipal

Court, the Los Angeles Municipal Court, and the Los Angeles Superior Court.

But to fully appreciate Lourdes Baird, one needs to look beyond

her professional achievements to the leadership she has provided to

her community. Lourdes Baird has been and continues to be a

strong, articulate advocate of women's and Hispanic issues. Ms.

Baird also taught trial advocacy as an adjunct professor at Loyola

Law School in Los Angeles.

I would like to congratulate Ms. Baird for the award she won last

year from the UCLA Law School as Alumnus of the Year, and

from the Hispanic Women's Council as Woman of Promise. But

these accolades, while wholly appropriate, only recognize part of

her personal strength. Lourdes Baird is more than a role model for

women, more than a role model for Hispanics. Ms. Baird is an exceptionally capable and competent role model for people of all

races and genders, because she has the strength, the determination, and the courage to believe in her dreams.

It is a pleasure and an honor, Mr. Chairman, to introduce to the

members of the Senate Judiciary Committee Ms. Lourdes Baird.

Ms. BAIRD. Thank you.

Senator SEYMOUR. Mr. Chairman and Senator Thurmond, it is

my distinct pleasure and honor to introduce Judge Irma Gonzalez

to the Judiciary Committee, an outstanding nominee to the Federal
603

court in California's Southern District. With her today are her husband and daughter, and both are equally proud of her.

She is a Californian by birth and a graduate of Stanford University. Judge Gonzalez began her distinguished legal career in the

Grand Canyon State of Arizona, where she attended the University

of Arizona School of Law. Following graduation, she served for 2

years as a law clerk for U.S. District Judge William C. Frey in

Tucson, and then served for 4 years as an assistant U.S. attorney.

In 1979, she returned to the Golden State and specifically, to Los

Angeles, where she worked as a trial attorney for the Department

of Justice and then as assistant U.S. attorney. In 1981, she moved

to San Diego where she practiced as an associate attorney for the

firm of Seltzer, Caplan, Wilkins & McMahon.

Beginning in 1984, Judge Gonzalez served as a U.S. magistrate

for the U.S. District Court in San Diego. In January, 1991, after 7

years of distinguished service as a magistrate, she was appointed to

serve as a judge of the California Superior Court in Vista, where

she continues to serve with distinction.

Of equal importance in knowing Irma Gonzalez, the State judge,

is appreciating Irma Gonzalez, the private citizen. Indeed, she has

devoted countless hours of service to her community. She has

served as chairperson of the Girl Scout Women's Advisory Cabinet,

as a member of the board of trustees of the San Diego Museum of

Man, and is still a member of the San Diego mayor's Citizen Advisory Board on Police-Community Relations.

Mr. Chairman, it fills me with immeasurable pride when I speak

of Californians who have distinguished themselves in their profession and in their community. It is an even greater pleasure to recommend such extraordinary individuals to positions on the Federal

bench. I am seated next to such a distinguished person.

Irma Gonzalez, whether as lawyer, judge, community leader, wife

and mother, has pursued life with energy, dedication, and distinction. I have great confidence that she will bring those same qualities, that same boundless spirit, to the Federal bench as a U.S. district court judge.

Again, Mr. Chairman, members of the committee, it is my pleasure to introduce an extraordinary Californian, Judge Irma Gonzalez.

Judge GONZALEZ. Thank you.

Senator KOHL. Thank you very much.

Judge Gonzalez, I understand from Senator DeConcini that you

grew up in Tucson, AZ. Senator DeConcini had expected to be here,

had wanted to be here, but he is unable to be here this morning.

But he is going to insert a strong recommendation in the record on

behalf of your nomination.

Judge GONZALEZ. Thank you, Mr. Chairman.

[The prepared statement of Senator DeConcini, along with correspondence, follow:]
604

STATEHKMT OF SKMATOR DeCOHCIHI

CONFIRMATION RKARIN6 OF JUDGE IRMA GONZALEZ

TO BB UNITED STATES DISTRICT COURT JUDGE

SOUTHERN DISTRICT OF CALIFORNIA

JULY 1, 1992

MR. CHAIRMAN, I WOULD LIKE TO EXPRESS MY STRONG SUPPORT FOR

THE CONFIRMATION OF THE HONORABLE IRMA E. GONZALEZ TO BE A UNITED

STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA.

IT IS MY UNDERSTANDING THAT JUDGE GONZALEZ IS THE FIRST HISPANIC

TO BE NOMINATED FOR THE FEDERAL BENCH IN SAN DIEGO. I BELIEVE

SHE HAS THE EXPERIENCE AND BACKGROUND TO BE AN EXCELLENT ADDITION

TO THE FEDERAL BENCH.

AS A SENATOR WHO REPRESENTS ARIZONA, I CONSIDER JUDGE

GONZALEZ TO BE ONE OF OUR OWN. SHE AND HER FAMILY ARE LONGTIME

RESIDENTS OF TUCSON. AFTER GRADUATING FROM STANFORD UNIVERSITY,

JUDGE GONZALEZ RETURNED TO HER HOME TOWN TO ATTEND THE UNIVERSITY

OF ARIZONA SCHOOL OF LAW. AFTER LAW SCHOOL, SHE CLERKED FOR

UNITED STATES DISTRICT JUDGE WILLIAM FREY.

JUDGE GONZALEZ HAS DEMONSTRATED OUTSTANDING ABILITIES

THROUGH A WIDE ARRAY OF POSITIONS. AFTER HER FEDERAL JUDICIAL

CLERKSHIP, SHE WAS AN ASSISTANT U.S. ATTORNEY IN TUCSON FOR FOUR

YEARS. SHE WAS A TRIAL ATTORNEY FOR THE ANTITRUST DIVISION OF

THE UNITED STATES DEPARTMENT OF JUSTICE. FROM THERE SHE SERVED

AS AN ASSISTANT UNITED STATES ATTORNEY FOR THE CENTRAL DISTRICT

OF CALIFORNIA.

AFTER A FEW YEARS IN PRIVATE PRACTICE, JUDGE GONZALEZ SERVED

AS A UNITED STATES MAGISTRATE FOR THE SOUTHERN DISTRICT OF

CALIFORNIA. SINCE JANUARY 1991, SHE HAS SERVED AS A SUPERIOR

COURT JUDGE IN SAN DIEGO, CALIFORNIA.

NOT ONLY DOES JUDGE GONZALEZ HAVE A DISTINGUISHED LEGAL

RECORD, BUT SHE HAS BEEN VERY ACTIVE IN HER COMMUNITY. IN

ADDITION, WHEN COMMITTEE STAFF CONTACTED A NUMBER OF ATTORNEYS

WHO HAVE APPEARED BEFORE JUDGE GONZALEZ IN THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA AND THE

SUPERIOR COURT FOR SAN DIEGO COUNTY, JUDGE GONZALEZ WAS DESCRIBED

AS HIGHLY QUALIFIED, EVEN-TEMPERED, AND OF UNQUESTIONED

INTEGRITY.

I COMMEND PRESIDENT BUSH FOR NOMINATING JUDGE GONZALEZ. OUR

FEDERAL JUDICIARY IS WELL SERVED BY THE ADDITION OF INDIVIDUALS

FROM DIVERSE BACKGROUNDS.

WE IN ARIZONA ARE VERY PROUD OF JUDGE GONZALEZ. I STRONGLY

SUPPORT THIS NOMINEE AND URGE MY COLLEAGUES ON THE COMMITTEE AND

THE SENATE TO CONFIRM JUDGE GONZALEZ EXPEDITIOUSLY.

I WOULD LIKE TO SUBMIT FOR THE RECORD SEVERAL LETTERS FROM

ARIZONA IN SUPPORT OF THIS NOMINEE.
605

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uz CITY OF TUCSON

OffICf Of THE MAYOR

P O BOX 27J10

OEOnQE MILLER TUCSON. ARIZONA 86726-7210

June IO, iwz Fw( ,„„ 7^^,^

The Honorable Dennis DeConcini

U.S. Senate

Washington, D.C. 20510

Dear Senator DeConcini:

I was happy to hear that Superior Court Judge Irtna E. Gonzales was recommended

for San Diego's federal bench. I truly support having a Latino woman in this very

important position. Her qualifications certainly speak tor themselves.

The southwest is abundant with Latin heritage, as you well know, and the increasing

needs of our growing Latin constituency is an important issue that must be addressed

I feel that Judge Gonzales has the understanding and sensitivity that is necessary

when dealing with criminal drug and immigration concerns.

1 am sure that our Hispanic community, as well as our University of Arizona law

school, will be forever proud and grateful if her appointment becomes a reality.

Sincerely,

George Miller

Mayor

AAL

Hispanic Professional Action Committee

League of United Latin American Citizens

El Concilio

92060382
606

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110 WEST CONGRESS

TUCSON. ARIZONA 85701

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June 10, 1992

Senator Dennis OeConcini

United States Senate

328 Hart Senate Office Building

Washington, O.C. 20510

Re: Judge Irma E. Gonzales

Judge of Superior Court

of the State of California

San Diego

Dear Senator DeConcini:

I am writing this letter to urge the appointment of Judge Irma E. Gonzales to fill

the vacancy on the District Court of the Southern

District of California. She is the only Hispanic

who has ever been nominated for the Federal Bench

in San Diego. More importantly, Judge Gonzales

is eminently qualified and would be a superb

Federal District Judge.

As in Arizona, I believe the Federal District

Court of California could use a broader base in

its Judges who would bring a new and worthwhile

perspective to the Bench. Inasmuch as I am an

Hispanic Woman Judge, I feel that I can state

that Judge Gonzales would bring such an appropriate

perspective to the Federal District Bench in

California which is much needed. With her superb

credentials, I would urge that you support and

expedite a hearing for Judge Gonzales in her application for the District Court vacancy in the

Southern District of California.

Best Regards.

cd.

y

Lina S. Rodriguez

ZirOfyXxi*'-1,

J J
607

June 8. 1992

Honorable Dennis DeConcinl

Senate Committee on the Judiciary

SD-224 Dirksen Senate Office Building

Washington, D.C. 20510-6275

Dear Senator DeConcinl:

Irma B. Gonzale?., a Judge of the Superior Court in Gan

Diego County, has been nominated to the Federal District

Court for the Southern District of California.

Judge Gonzalez' family are longtime residents of

Arizona. Her father was born and raised in Nogales and has

practiced medicine in Tucson for the last 33 years.

Judge Gonzalez graduated from Catalina High School in

Tucson. After graduating from Stanford University, Judge

Gonzalez returned to her home town to attend the University

of Arizona School of Law. After law school, Judge Gonzalez

clerked for U.S. District Court Judge William C. Frey and

was an Assistant U.S. Attorney in Tucson.

Judge Gonzalez is the only Hispanic ever to be

nominated to the federal bench in San Diego. She has

demonstrated her outstanding abilities by virtue of her

service as an attorney, U.S. Magistrate, and Superior Court

Judge.

We urge that you take vhatever action you can to see

that Judge Gonzalez obtains a hearing before the Senate

Judiciary Committee as exneditiously as possible.

fRT N.

ssident

N. 4th Avenue

Phoenix, Arizona 85003

AMF/pg
608

HISPANIC PROFESSIONAL ACTION COMMITTEE

June 15, 1992

Senator Dennis DeConcini

2424 East Broadway LTucson, AZ 85719

Dear Senator DeConcini:

I am writing on behalf of the Hispanic Professional Action

Committee, a Tucson organization of more than 100 Hispanic business

and professional leaders.

He urge you to do whatever possible to schedule a confiriBatlon

hearing for Judge Irma E. Gonzalez, who has been nominated for the

federal bench in San Diego.

Judge Gonzalez, a former Tucsonan, is well known in our community,

and we take special Interest in her nomination as the first

Hispanic federal judge in San Diego. He fear the nomination may be

lost if it is not confirmed by the U.S. Senate this year.

He trust you will assist with this effort. Thank you from HPAC.

Sincerely,

Edith Auslander

HPAC President

HPAC

P O BOX 27481

TUCSON AHIZON* B572«-7481 DEDICATED TO THE CONCERNS Of HISPANIC AME"C*V
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BARAV N, AHiN

June 16, 1992

Senator Dennis DeConcinl

2424 E. Broadway

Tucson, Arizona 85719

Dear Senator DeConcinl:

Z am writing in support of the nomination of the Honorable

Irma E. Gonzalea to the Federal District Court in San Diego.

I met Irma in 1967 at a coffee for undergraduates entering

Stanford given at the home of Jo Ann Diamoa here in Tucson. I

followed Irma to the University of Arizona Law School, and we

have remained in touch even after she moved to San Diego in 1979.

As you can see from her attached resume, she is an experienced

and highly qualified judicial candidate.

Z was very excited to learn of Irma's appointment to the

Federal bench, since I believe very strongly that our judiciary

is Improved when it is made up of qualified individuals from

diverse backgrounds. It is my understanding that there is a

substantial backlog in the Judiciary Committee for scheduling

confirmation bearings for judicial appointees. I would truly

appreciate any assistance you could give in expediting the

hearing on this appointment.

Very truly yours,

MILLER, PITT t McANALLY, P.C.

JAW/lv

Enc.

,z G n ci i:rf ZESi
610

Senator KOHL. Thank you very much.

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

Senator SEYMOUR. Thank you.

Senator KOHL. SO let's begin now with Timothy Leonard. Timothy Leonard has been nominated to be a judge for the U.S. District

Court for the Western District of Oklahoma.

Would you please raise your right hand, Mr. Leonard? Do you

swear that the testimony you shall give in this proceeding shall be

the truth, the whole truth, and nothing but the truth, so help you

God?

Mr. LEONARD. 1 do.

Senator THURMOND. Mr. Chairman, could I make a statement?

Senator KOHL. Of course.

Senator THURMOND. Mr. Chairman, I am in two other committees that are taking action right now and I am going to have to

leave. I just want to say that I have studied the records of all these

people—Mr. Leonard, Judge Baird, Judge Gonzalez, and Judge

Randa—and I commend the President for selecting these people.

They appear to me to be highly qualified, and I commend the Senators—Senators Nickles and Boren, Senator Seymour, and Senator

Kasten—for going along with these nominees.

I will ask them just to answer some written questions, and at

this time I will ask you to excuse me. I will be glad to support all

of them. I think they are well qualified.

Senator KOHL. Thank you very much. Senator Thurmond.

Mr. Leonard, would you like to introiduce to us members of your

family who are with you here today?

TESTIMONY OF TIMOTHY D. LEONARD, OKLAHOMA CITY, OK, TO

BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF

OKLAHOMA

Mr. LEONARD. Thank you, Mr. Chairman. My wife, Nancy, is

here, and Nancy and I met in this city and so this is a fond return.

As a matter of fact, when we met she was working for the late Senator Everett Dirksen, whom this building is named after, so this is

a special day for us.

My son, Ryan. Ryan is a sophomore in college. He just finished

his sophomore year and has been an intern up here with Senator

Nickles this last 6 weeks. 1 have two other children—my daughter,

Kirsten, who graduated from college this past year, who is not able

to be here and is out of the country. And I have a younger son,

Tyler, who has a job washing dishes and is playing summer league

basketball, and he could not find it in his busy schedule to get up

here. [Laughter.]

I have my brother. Bill Leonard. Bill is an attorney in Philadelphia and has lived in Philadelphia for the last about 8 or 10 years,

and several other friends and former associates. Thank you.

Senator KOHL. Very good. Mr. Leonard, prior to your tenure as

U.S. attorney for 9 years, you served as a Senator in the Oklahoma

State Senate. How, if at all, do you think your approach to judicial

decisionmaking will be affected by the time that you spent as a

State legislator?
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Mr. LEONARD. Mr. Chairman, I think that one of the unique advantages that I've had is having served in the past in both the executive and the legislative branches of government. I have a real

appreciation for the role that the legislative branch plays, as well

as the executive branch, and I think that having been a State senator, in a position of leadership in the State senate, I was well aware

sometimes of the frustration legislators have in sometimes the judiciary overstepping its bounds or, on some occasions, maybe the executive, or whatever.

But I have a real appreciation for the role, and the distinct role,

that each branch of government plays, and I think that gives me a

unique opportunity in the judicial branch to have an appreciation

for that role.

Senator KOHL. Mr. Leonard, there has been recent debate about

what changes should be made to our Nation's tort laws. Several

proposals have urged that punitive damage awards be limited,

while others have suggested no change at all is necessary. You

have written on the subject of tort reform in Oklahoma, and while

you served in the Oklahoma State Senate you authored a law to

correct some abuses in the tort liability area.

What suggestions and observations can you share with the committee on the issue of tort reform?

Mr. LEONARD. When I was in the State senate, Mr. Chairman,

the issue of tort reform swept the country and was one of the most,

not only emotional issues, but one of the issues that dominated

almost one complete session of our legislative year.

I worked on that and tried to play a role in not taking the position of either extreme, either completely overhauling a system

which I thought basically worked—on the other hand, I felt like

that we had reached a point where litigation—and as we became a

more litigious society, we had reached a point where the courts

were overburdened. Those with true claims could not be heard, and

I really felt like that there was some corrections that we need to

make.

So I took more of a middle ground, and some of the issues that

we addressed was putting some provisions in State law where there

was some more authority for the judges to control the litigation a

little more as far as frivolous lawsuits, in particular.

And also in the area of punitive damages, I think punitive damages certainly have a place, certainly have a role, but I think in

some instances they had reached a point where they were not only

punitive, but they basically were destroying some of the fabric of

the people involved.

So I really felt like that there was a middle ground; there were

some adjustments, corrections, that needed to be made in our

system so that people did have an opportunity. On the other hand,

I really did not feel that we should completely overhaul our entire

tort system, where average citizens did not have their day in court.

Senator KOHL. Mr. Leonard, recently we have seen an increase

in the use of secrecy orders in product liability and environmental

tort cases. Critics of this trend claim that it may prevent the public

from learning about threats to public health and safety, and some

now cite the recent stories about Dow Corning and Halcion as examples. In fact, we understand that a few States, including Texas
612

and Virginia, have just changed their rules to make sealing cases

more difficult.

When a judge hears a request to make documents confidential,

how should she or he balance the public's right to know against the

litigant's right to privacy?

Mr. LEONARD. Mr. Chairman, of course, I think that would be

one of the more delicate issues that any judge would face. I certainly think there is—I have a strong belief in the public's right to

know. On the other hand, there are certainly some overriding concerns at times with particular parties and maintaining some secrecy.

I think the first thing you would have to do if you were faced

with that situation is to have some type of in camera hearing

where you could determine and make a determination, but it

would be a very delicate balance that you'd have to strike. I think

there are two competing concerns on some occasions and you would

have to look at it on a case-by-case method.

Senator KOHL. The committee has been contacted by several

people who have raised questions concerning your role as U.S. attorney in the decision to reprosecute an Oklahoman named Dale

Crabtree. Mr. Crabtree was tried in early 1992 on charges of conspiracy, mail fraud, wire fraud, bankruptcy fraud, and money laundering. The jury acquitted Mr. Crabtree on a number of charges,

but was deadlocked on others.

Let me state that these individuals have offered no evidence of

wrongdoing on your part. However, they do question the wisdom of

reprosecuting Mr. Crabtree. They also question whether your decision to reprosecute might be based on your friendship with an individual who has been involved in civil litigation against Mr. Crabtree.

You have talked about this issue with the committee, but since

these charges have been raised and mentioned publicly in Oklahoma, it is best that you be given an opportunity to respond to them

in an open and public forum. Let me also note that we received

many favorable comments concerning your tenure as U.S. attorney.

Would you like to tell the committee what role you have had in

the decision to reprosecute Mr. Crabtree?

Mr. LEONARD. Mr. Chairman, I'd be glad to. First of all, since

there is a trial scheduled in July, I would not comment on the particular facts of the case. I think that would be improper. As far as

my role in the decision to retry, I would very briefly tell the committee that when I became U.S. attorney, Mr. Crabtree had been

under investigation by the office and by the Federal Bureau of Investigation for some 3 years. The investigation was pretty well

complete and it basically involved bankruptcy fraud matters.

So when I became the U.S. attorney in October of 1989, that case

had been in the office for some 2 to 3 years. I treated it as I did any

other case in the office. It was assigned to an assistant. Unfortunately, in this case when the case was about ready to be presented

to the grand jury for indictment, that assistant moved with her

husband to another district and two other assistants were assigned

the case and they had to pretty well start over. So it was almost

another year before the indictment was brought down by the grand

jury.
613

The case has been handled by an assistant named Susan Dickerson. Susan has been an employee in our office for approximately 2

years. She was the former criminal chief of the State attorney general's office, a former State prosecutor. She comes with very high

credentials. She has had experience in major cases both in the attorney general's office and in our office. The other assistant handling it was an expert in bankruptcy matters.

Those two assistants made the call and did all of the trial preparation. I did not intervene in any of that. They made the trial preparation, they presented the case at trial. At the conclusion of that

case when there was a hung jury on some of the counts, they asked

the judge; the judge properly allowed both parties, both of the attorneys for the parties, to interview the jurors. They did those

interviews.

At the conclusion of those interviews and at the conclusion of the

counts that were remaining that the jury had been—that the mistrial was declared on, they came to me with the decision that they

felt very strongly that the case should be retried.

I have supported in almost every instance the decisions of the assistants in their judgment on a case, and in this case I did that.

There is no, in my understanding of the case—and as I say, I did

not have a direct, hands-on involvement with the case—there is no

issue that I'm aware of that the actions of the U.S. attorney's office

in any way affected any civil litigation between Mr. Crabtree and

any other parties as that civil litigation had gone on for some 7 or

8 years and had gone through the State courts, the appellate

courts, and the bankruptcy courts, and I think are all concluded.

So I know of no effect that any action that this office took, that

the U.S. attorney's office took, that would have any bearing on any

relationship or litigation between other parties. So far as I'm concerned, it was a proper decision by the assistants and I merely supported that, as I do most of the decisions by the assistants in the

office, or they wouldn't be assistants if I didn't trust their judgment.

Senator KOHL. Very good. Mr. Leonard, you have had a very successful legal career, and also a career in public office. We imagine

that a lucrative legal practice is available to you, so the last question is a simple one. Yet, we hope that it provides the committee

with insight into you as a person, not necessarily on your judicial

philosophy.

What attracted you to the law and what do you hope to accomplish as a judge?

Mr. LEONARD. Mr. Chairman, I guess what attracted me to the

law was a sense of—I guess in the purest sense was a sense of

wanting to be of some assistance and help to my fellow man. I

practiced law in the Navy for 3 years and then, after the Navy,

came back to the Oklahoma attorney general's office, practiced

with a large firm in Oklahoma City 1 year and found that my real

interest as being a lawyer was in a small-town general practice in

my hometown of about 2,000 people.

I spent 17 years in that practice, including those years I traveled

back and forth to the State senate, and I found that the practice of

law in a small community, the general practice of law, is the practice in the purest sense. You know the people that you're repre-
614

senting. You know their causes. Many times, many hours are spent

in talking common sense and maybe counseling people out of litigating certain issues that will have an effect not in anybody's best

interest.

I enjoyed that kind of public service and, in many ways, helping

people whether they could afford to pay a fee or not pay a fee; but,

generally, I guess in the purest sense being involved in a community, feeling like I had made some contribution through my profession in that community.

I think in public service I have thoroughly enjoyed being a

member of the State senate serving the public. I have enjoyed the

job in the U.S. attorney's office, and I look forward to what I think

is the highest calling that a lawyer can have, and that is to serve

on the Federal bench.

I feel like public service has many more rewards than making

great sums of money. I have always made an adequate living in

practicing law, and a comfortable living, but I have never been

driven by how many billable hours I had each month and how

much wealth I could accumulate and what kind of car I drove.

That has not been my interest in life.

Senator KOHL. IS your wife satisfied with your decision to forego

increasing possibility of money for the Federal bench?

Mr. LEONARD. I think she is very satisfied in this decision and,

like in all of our decisions, has certainly been a very equal partner

in that decision.

Senator KOHL. Thank you very much. You have done a good job.

Mr. LEONARD. Thank you, Mr. Chairman, and I want to just take

a minute to thank the committee and thank you for allowing me to

be here for this hearing, and also, for the record, to thank Senator

Nickles, Senator Boren, and Senator Bond for their very kind introductory remarks.

Thank you.

Senator KOHL. Thank you.

Our next nominee is Lourdes Baird, who has been nominated to

the bench for the Central District of California.

Ms. Baird, please step forward to the witness table and raise

your right hand. Do you swear that the testimony you shall give in

this proceeding shall be the truth, the whole truth, and nothing

but the truth, so help you God?

Ms. BAIRD. I do.

Senator KOHL. MS. Baird, if there are any members of your

family here, we would like to be knowledgeable of them at this

time.

TESTIMONY OF LOURDES G. BAIRD, LOS ANGELES, CA, TO BE

U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

Ms. BAIRD. Unfortunately, they are all in California, except for

youngest son who is doing some commercial fishing in Alaska. He

may not be washing dishes and playing baseball, but he's out there

working pretty hard.

Senator KOHL. All right.

Ms. BAIRD. They were unable to make the trip, unfortunately.
615

Senator KOHL. Very good. Ms. Baird, we understand that you

served as a State court judge from 1986 through 1990. What experiences will you bring with you that will assist you as a Federal

judge?

Ms. BAIRD. Well, I think the experience of being on the bench is

going to be very similar. There certainly are differences, but it will

be similar to what I anticipate I will be having if indeed I am appointed.

What I learned—perhaps that would be a way of approaching

it—what I learned was how to control a courtroom, how to deal

with heavy caseloads, and always making sure that the litigants in

the court did have their day in court, and that the treatment was

fair and appropriate. I always hoped that people who left my courtroom left with a good sense about the judicial system.

Senator KOHL. AS U.S. attorney for the Central District of California, you serve as the Government's chief prosecutor in Los Angeles. After the events following the Rodney King verdict, the last

few months must have made your job quite a bit more difficult

than usual. No doubt, you have been involved in the Justice Department's response to the State court's verdicts and the rioting

that followed. What has been your role in these matters?

Ms. BAIRD. The Rodney King investigation is being conducted in

my office, together with the Civil Rights Division of the Department of Justice. Of course, since it is a grand jury investigation, I

am quite sure you're not asking me any questions with regard to

the facts.

However, the case is presently being investigated. It is a question

of reviewing. There is quite a bit out there. There is a transcript, a

trial transcript, of several weeks' trial. We also have transcripts of

witnesses that were brought before the State grand jury that must

be reviewed and analyzed.

It is something that is certainly a very important decision. The

responsibility is very heavy, and one of the things that I believe,

together with the Attorney General, is that we must take the time

that is necessary to do the very best job we can to unearth the

facts, to analyze the case, to make the decision whether to present

this before the grand jury—I should say present an indictment

before the grand jury—and if indeed an indictment is returned, to

be sure that we have the very best trial team and best preparation

we can.

Senator KOHL. Could you tell us the status of the Federal investigation concerning civil rights charges against the Los Angeles

police officers or charges against those individuals implicated in

the beating of truck driver Reginald Denney?

Ms. BAIRD. Those charges are those that I described—the status

is as I described before. The investigation was renewed right after

the return of the verdicts, and the status of the investigation right

now is that it is going very strong. We have approximately four

lawyers from the Civil Rights Division here from the Department

of Justice in my office, as well as approximately anywhere from 2

to 10 lawyers from my office that are working on the case intermittently. But it is going forward at a very fast pace, and I wish I

could tell you when it was going to be concluded, but I'm afraid

that would be a little bit too speculative.
616

Senator KOHL. All right. In your opinion, what are the lessons to

be learned from the Rodney King incident and the Los Angeles rioting? If confirmed, how might these lessons help you to discharge

your duties more effectively as a Federal judge?

Ms. BAIRD. Well, the lessons to be learned with regard to the—

the question was with regard to the Rodney King verdicts or the

rioting itself? Perhaps I need a clarification, Mr. Chairman.

Senator KOHL. On the rioting conditions, the things that you will

bring to your court as a result of your experiences.

Ms. BAIRD. LOS Angeles is, as all of us know, a very large city. It

is a very multicultural city. We have perhaps—oh, I can't tell you.

It is the State with the greatest variety of cultures, but we certainly do have them. There is a great need for understanding. There is

a need of understanding and communication among the various

ethnic groups that live in the city.

We have a new police chief who was sworn in yesterday. Police

Chief Williams. He has come, I believe, with a good view, a view of

serving the community, and I am very hopeful that given the lessons that all of us have learned—it has been a great shock to all of

us in Los Angeles, and I am quite sure to the entire country—I

would hope that all of us will be in a position to look more carefully and to be sure that all citizens are indeed able to have access to

the justice system, and fair and equal access to that system.

Senator KOHL. Would you share with us your observations on

just a few points? First, in your years as a litigator, what institutional biases have you or other women or minority lawyers faced,

and how will you address these if you are confirmed as a Federal

judge?

Ms. BAIRD. Sometimes when that question is asked of me, I feel a

little bit guilty because I have been very successful and very lucky.

I wouldn't be here today testifying, Mr. Chairman, if I haven't had

lots of opportunities that have been given to me. That does not

mean that there have not been institutional biases against women.

I was very fortunate when I graduated from UCLA Law School

to be hired at the U.S. attorney's office, and I do believe that there

were few, relatively, institutional biases there. There are more of

us now in the practice of law. There are more women. We are all

becoming accustomed to women. It is not quite so unusual; we do

not create the stir that we did when we entered the courtroom in

the early 1970's to argue law and motion in the Federal courts.

Now, we are commonly seen there.

What I do to help that—I have tried very hard to act as a role

model and to encourage women to come into the field of law. I do

believe that the more women that enter the field, then the less bias

there will be.

Senator KOHL. All right. What advice would you offer to this

President or any other President on the wisdom of increasing the

number of women and minority nominees, and what do you think

is the best approach to increasing the number of women and minority representatives in the judiciary?

Ms. BAIRD. The best way to increase that is to increase the pool. I

was active with Governor Deukmajian in the State of California,

and his appointment secretary, in order to encourage the applications of not only women, but also Hispanics. There are extremely
617

competent ethnic minorities out there that should be holding judicial positions and visible positions of that type.

And the issue is, indeed, to increase the pool, and how I have

done that in the past—and I would hope to continue to do that by

addressing ethnic bar associations and groups and encouraging

those individuals who are qualified to join the pool of applicants.

Senator KOHL. Mr. Baird, you have had a varied legal career—

U.S. Attorney, professor, judge, and attorney partner. Why did you

decide to pursue the study of law?

Ms. BAIRD. That's an interesting question, Mr. Chairman. I went

to school after—I had my first college class after the birth of my

youngest son, and I went to night school at Los Angeles City College. I did not really have a focus at that time, but I knew that I

wanted to do something to improve myself.

I had, frankly, focused myself to go into social welfare, and I had

hoped that I would get a master's degree in social welfare. As I

look back on it, I think it was because I had spent an awful lot of

time spraying Bactine on skinned knees and giving children good

hugs and patting them on the head and being the mother that I

thought I should be.

Fortunately, in those areas, the requirement is that one work in

the field in order to be accepted into the schools. The academic credentials are secondary to your experience, and it was fortunate because when I did work for two summers in the field, I realized that

it was something that I was not really very good at. So before I was

going into my last year in my undergraduate, I was beginning to

explore other areas.

A friend of mine had suggested that I look into law school. Quite

frankly, Mr. Chairman, I could not identify myself as being a

lawyer because most all the lawyers I knew were men that I really

didn't identify with. I took the time and the effort of exploring and

doing some research, and there were a number of admirable pioneer women, if you will, in the field that I did identify with. I guess

I saw them and thought if she can do it, then I can do it. And the

law had always been something that I felt was something that

would be not only very interesting, but I could make a contribution

not only to myself as a person, but primarily to my community.

Senator KOHL. What area of the law interests you most?

Ms. BAIRD. Well, it's hard to say. I have been spending most of

my time in the last 2 years focusing primarily on the criminal

area, although there is a great deal of affirmative litigation that

my office has had. It's really difficult to say which area I am interested in most. I do believe that the civil area is the area that I

practiced in in private practice, and I found that to be very interesting. I'm afraid I can't pick one specific area that I would tell you

is more important than another one to me.

Senator KOHL. With more lucrative options available to you, why

do you choose the bench?

Ms. BAIRD. I have been in public service throughout my entire

career, except for 3 years when I was in private practice. I went

into private practice because I felt that I needed that experience,

and I primarily wanted to see whether I would be able to make it

on my own.
618

I enjoyed the practice. I found it to be very rewarding, but,

frankly, public service is really very appealing to me. I had been in

public service. I was in private practice for 3 years and I was very

happy to come back to public service and I am just committed to

public service.

Senator KOHL. Very good. Thank you very much, Ms. Baird.

Ms. BAIRD. Thank you.

Senator KOHL. We would like to call at this time Judge Irma

Gonzalez. Judge Gonzalez has been nominated to the bench for the

Southern District of California.

Would you raise your right hand, please? Do you swear that the

testimony you shall give in this proceeding shall be the truth, the

whole truth, and nothing but the truth, so help you God?

Judge GONZALEZ. I do.

Senator KOHL. Thank you very much. Would you like to introduce us to any members of the family you may have with you here

today?

TESTIMONY OF IRMA E. GONZALEZ, SAN DIEGO, CA. TO BE U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Judge GONZALEZ. Yes, I would. Thank you, Mr. Chairman. First

of all, I would like to introduce my husband, Robert Brewer, if he

would please stand.

[Mr. Brewer stood.]

Judge GONZALEZ. My daughter, Amy, and I would also like to introduce very close friends who took time out from their busy schedules to be here with me today, Joseph Covington and Ms. Del Dameron.

Senator KOHL. Thank you. Welcome.

Judge Gonzalez, from 1984 through 1991, you served as a U.S.

magistrate judge for the Southern District of California. If you are

confirmed, how will your responsibilities change on a day-to-day

basis from those you exercised as a U.S. magistrate?

Judge GONZALEZ. The most important change will be that I

will—my jurisdiction will expand. For the first time, I will be able

to try felony cases in Federal court. As a magistrate, my jurisdiction was limited under the statute and I only presided over misdemeanor and petit offense trials.

In addition, on the civil side I will be able to preside over any

dispositive proceedings—that includes pretrial motions, any trial—

without having to have the consent of the attorneys, which is what

is required for a magistrate to handle any dispositive motions or

trials, is that the consent of the attorneys was always needed, and

sometimes that was difficult to obtain. So I will look forward to

being able to try felony cases and being able to handle all civil

matters.

Senator KOHL. All right. From your broad experience as a magis^

trate, can you offer any suggestions on how to improve magistrates'

current role in our judicial system?

Judge GONZALEZ. Absolutely. I guess I'm a real advocate of using

magistrates in a way that will help the district court and help the

caseload, and certainly help in the management of the caseload. I

was very privileged to work in a district that utilized magistrates
619

to their fullest, and what I mean by that is that we partir;pated in

case management from the very beginning, and that meant that

we held status conferences at the very start, and I'm talking about

civil cases right now.

And, more importantly, the magistrates handled all settlement

conferences. So as a magistrate, I had the experience of presiding

over hundreds and hundreds of settlement conferences at early

stages of litigation, so that hopefully litigation costs could be kept

down. Hopefully, the parties could have their day in court and not

feel that they weren't being treated fairly.

So I think magistrates can be used early on in civil litigation, in

the early stages of litigation, by handling status conferences, by

seeing whether a case can be settled. And we are talking about

some cases that are not minor to the litigants, but certainly may be

minor as far as the amount of damages are concerned.

As a magistrate, I also handled many trials by consent, and that

involved the education of the bar. I think that's very important. I

think it's very important for districts to be involved, for the district

judges, for the members of the county bar to educate lawyers on

the magistrates and how a magistrate can try cases by consent,

and that they are available and that they are competent, and that

they should, and they can, handle any case that a district judge

can handle.

Senator KOHL. SO you intend to use them quite extensively in

your courtroom if you are confirmed?

Judge GONZALEZ. Absolutely, yes.

Senator KOHL. More so than might be found in other courtrooms?

Judge GONZALEZ. NO, I don't think so. I think that all the district

judges in our district, the Southern District of California, use the

magistrates the same, and by local rule we've set out how the magistrates will be utilized and I think—and they are used very extensively, and I will follow that practice.

Senator KOHL. All right. According to a study conducted by the

Federal Pre-Trial Services Agency, in a recent 12-month period

over 50 percent of defendants appearing in San Diego Federal

courts were unable to make bail set by magistrates at their initial

hearing. The study found that the national rate was just slightly

over 8 percent. The head of the Federal Defender Service in San

Diego has said that the San Diego Federal courts follow the philosophy that, quote, "Nobody gets out on bail."

Would you offer your observations to us on why people appearing

in San Diego Federal courts are at least six times less likely than

individuals appearing elsewhere to make bail set by magistrates?

Judge GONZALEZ. Frankly, I was surprised at the statistics, but

we're in a very unique geographical location. We are only 15 miles

from the Mexican border. Most of our cases are drug-related cases,

and quite a few of the defendants who are arraigned in Federal

court are nationals from other countries, not only Mexico, but perhaps other Central or South American countries, and in some instances even Asia.

I suppose one of the reasons—and, certainly, that's one of the

factors we must take into consideration under the Bail Reform Act;

that is, what is this person—what ties does this person have to the
620

community. And if we have before us a person who may have some

wealth, who has no ties to the community, who is a national of another country, naturally the bail is going to be set higher than perhaps a person who has substantial ties to the community.

I can think that that is one reason for the high bail, and because

the narcotics business is very lucrative and it's very easy for some

of these defendants to post bail, and unfortunately a high bail is

necessary. But I can tell you and I can assure you, having arraigned and set bails in literally thousands of cases, that I never

had the philosophy that no one gets out of jail, and I certainly

know that none of my colleagues did either.

Senator KOHL. DO you have any suggestions on the Federal bail

law that you think could be improved to make it more fair and impartial?

Judge GONZALEZ. I think that the Federal bail law is very fair.

As you probably know, there are many factors that we must look

at in determining whether a person should be released on bail. 1

certainly feel that pretrial services—and perhaps that's why these

statistics might be askew a little bit. Pretrial services did not come

into being in our district until approximately 2 years ago, so we

never had the services and the input of pretrial services, and I

think that's very important in any magistrate—in setting bail in

any case, is to have the resources that pretrial services provides,

and that is they do conduct a very important investigation of that

person's background. They make recommendations. They also can

supervise a person while out on bond.

So I think that I don't necessarily have any recommendation as

to how to change the Bail Act, but I certainly feel very strongly

about utilizing other resources and, in particular, pretrial services

and the assistance of pretrial services, and perhaps even the probation office or other agencies that could lend assistance in being

able to supervise people out on bail, and that probably would help

us in being able to release persons who perhaps might be better

off—might have landed in jail initially, but might be able to be supervised by an agency while out on bail.

Senator KOHL. Judge Gonzalez, some people suggest that settling

appropriate cases early would relieve some of the docket backlog

faced by Federal courts. While that may be true, some litigants

would prefer their day in court perhaps to even a favorable settlement.

As a trial judge, what role do you intend to play in this whole

settlement process?

Judge GONZALEZ. I think the settlement process is very important. We have a tremendous backlog of civil cases, but I don't think

settlement should take the place of a litigant having his or her day

in court. I think it's very important for the litigants to know that

it's going to be expensive to go to trial, that the outcome may not

necessarily be what they anticipate or what they feel it should be.

And so I think a settlement early on in a case, and perhaps another settlement during the discovery phase so that the judge can

perhaps impress upon the attorneys and the litigants what it will

cost to try this case—and I think that's probably the worst thing

about litigation these days; that is, the tremendous cost that we
621

incur in litigating cases. But there is no way that I have ever

forced a party or an attorney to settle a case.

And you're right. If a party wants his or her day in court, they

will have it, but at least I had made sure as a magistrate that the

litigants and the attorneys knew what it would cost them, and

knew that there was a chance that they could lose the case. So as a

judge, I will continue to maintain that line of thinking, or that philosophy, and I certainly know that the magistrates in our district

have that philosophy. And as a district judge, I'm hoping to be able

to participate myself in case management and trying to settle

cases, but certainly not at the expense of a litigant having his or

her day in court.

Senator KOHL. Judge Gonzalez, the administration has recently

proposed that losers be forced to pay legal fees in certain types of

lawsuits. Would the administration's proposal have affected the dynamics of any of the cases that you handled as a magistrate?

Judge GONZALEZ. I think so. I can't think of any case in particular, but we come back again to the settlement process, and I think

that's a factor that you must tell the parties about, that if you lose

this case, there is a chance that you will have to pay attorney's

fees for the other side. And unfortunately that's something that

each party has to take into consideration, and I am sure that that

might have had an effect on a case that perhaps didn't settle that

might have settled, knowing that there was—the outcome might be

that attorney's fees would have to be paid, especially when I told a

party that I thought that there was a stronger possibility of losing

the case than winning the case.

And I felt that I was in a unique position to be able to advise

parties of what I felt their chances were of winning or losing a

case. Because of my experience, because of the number of CPO"S

that I had settled, I felt that I would predict to a certain extent

whether a person had a good case or a bad case. And knowing that

attorney's fees might have to be paid, I think, would have been a

significant factor.

Senator KOHL. Some lawyers have commented that the administration's proposal would reward wealthy litigants, while making it

too costly for the average citizen to bring suit. How do you respond

to those comments?

Judge GONZALEZ. There probably is some truth to those comments. I'm hoping that as a district judge—that's why I think it's

important that Federal judges be involved in case management,

that you be able to oversee how a case is going and be able to—if

you see that one side is being abused or whether discovery costs

are being increased or are increasing at the expense of the other

side, that you will step in and try to settle the case, and perhaps

then prevent a wealthy client—or a wealthy party—excuse me—

from being the prevailing turty in every instance.

Senator KOHL. Judge Gonzalez, you have held numerous legal positions since your law school days. Undoubtedly, you have had

ample time to consider your career. What was your reason for pursuing a legal career, and have your motivations changed over the

years?

Judge GONZALEZ. I listened to that question as you asked the

others, and I have to go back a long way. I never thought about
622

law, frankly. I always wanted to be a doctor and follow in my father's footsteps. I was the oldest of seven children and I assumed 1

would be a doctor, and then I decided when I was in college that 1

didn't like taking organic chemistry and various other—calculus,

and I felt I wanted to be more creative with a career and that law

would give me that opportunity. So I decided to go to law school,

not really knowing or having in mind a particular mentor or

person in whose footsteps I wished to follow, but I'm glad I did it.

And once I graduated from law school, I knew I wanted to be a

litigator. I've always, always cherished the courtroom, and I'm

hoping that being on the bench as a district court judge will give

me the opportunity to be able to preside over trials that are hardfought by good litigators because I appreciate good litigation. So

my ideas about the law certainly haven't changed and I'm glad I've

been a litigator. I'm glad I've been a judge and I'm glad I chose lawover medicine.

Senator KOHL. Very good. Thank you very much.

Judge GONZALEZ. Thank you, Mr. Chairman, and thank you for

allowing me to be here today.

Senator KOHL. Judge Randa has been nominated to the bench for

the Eastern District of Wisconsin.

Would you please step forward and raise your right hand? Do

you swear that the testimony you shall give in this proceeding

shall be the truth, the whole truth, and nothing but the truth, so

help you God?

Judge RANDA. I do.

Senator KOHL. Thank you very much. If you have any members

of your family who are here, and they are, could we be introduced

to them, please?

TESTIMONY OF RUDOLPH T. RANDA, MILWAUKEE. WI, TO BE U.S.

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN

Judge RANDA. Thank you, Mr. Chairman. First of all, I'd like to

say how proud I am to be here. It's truly an honor just to go

through this process, and it's a privilege to have my sons and my

family here to witness it and to get a flavor of what the democratic

system and our Republic is all about. And I think even from my

sons' maturity level, they can appreciate some of that, and I really

respect the process. I hope they respect the process and I am happy

for the privilege to have them see this.

I have here today, Mr. Chairman, of course, my wife, Melinda,

and my mother-in-law, Katherine Materra from Kenosha, WI. And

particularly pleasing to me today is the fact that my sister, Claire,

has flown in from London, and I got short notice of this hearing

and I didn't anticipate her being here, but when I walked into the

Dirksen Building today, there she was, my sister, Claire McKuen,

from Milwaukee, and my cousin, Ann Ziff, from New York. They

both surprised me today; and my son, Rudy, and my son, Daniel.

And particularly pleasing, also, by my sister showing up, and

since she's the only remaining sibling that I have left—unfortunately, through death, I lost my other two sisters and my parents,

but today is my mother's birthday and I think just like Judge
Leonard—I mean, Attorney General Leonard; I am anticipating a

bit—that's something special.

Senator KOHL. Thank you. It is nice to have you with us, and

your family.

Judge Randa, you have got an impressive background, having

served as a State court judge since 1975. If confirmed, what difficulties do you foresee in making the transition from the State to the

Federal bench?

Judge RANDA. I was asked that question by a number of people

before I came to this meeting, Mr. Chairman, and I don't see a

great deal of difficulty in making the transition. I have been a

judge for 17 years, having served on all levels, the municipal court,

the circuit court of the State, and the court of appeals. And I think

the Federal bench—and in addition to that, I was a trial attorney

in the Federal courts. I did substantial practice in the Federal

courts when I was with the city attorney.

And the rules of evidence that we have in Wisconsin are patterned after the Federal Rules of Evidence. I think the Federal

Rules of Civil Procedure essentially parallel, and what I would perceive as a difficulty, but not much of a difficulty, is the substantive

aspect of it dealing with different areas of the law, but hopefully

I'll be a quick study. I, quite frankly, don't anticipate a great deal

of difficulty, and the nuances that one has to pick up as a judge,

learning that craft, if you will—I think I've picked up a lot of those

nuances over the last 17 years.

Senator KOHL. All right. Your questionnaire indicates that you

were an original board member of the Child Abuse Prevention

Fund. You wrote that this organization, quote, "was founded to

help stem the rising tide of child abuse in our community by raising private moneys to supplement funds from the public sector."

From your work with the Child Abuse Prevention Fund, can you

offer any suggestions to us on how the Federal Government might

improve its response to the problem of child abuse in local communities?

Judge RANDA. Well, one of the reasons for the establishment of

the CAP fund, the Child Abuse Prevention Fund, which is an organization, as you mentioned, Mr. Chairman, that was formed to supplement the efforts made by the county board in Milwaukee

County, is—was formed for that purpose. I hate to say just to throw

some money at it, but the reason for the formation of the CAP

fund was because there wasn't enough money, first of all, to deal

with the problem on the county level—more social workers, more

everything along that line to, first of all, discover and deal with

those problems.

I think it's almost a knee-jerk reaction to say, well, we need

more money from the Federal Government whenever there's a

problem, but I think that the Senate and the Congress can focus in

on the problem by perhaps

Senator KOHL. Providing more funding.

Judge RANDA. More funding for the local authorities. I think

we've got a pretty good structure in place to deal with it, but the

reason, as I mentioned, for the establishment of the CAP fund

was—and Supervisor Tom Bailey of the county board was very
624

active in this regard. He recognized the problem first of all and

was very instrumental in forming that, but more money.

Senator KOHL. OK. Judge Randa, the Wisconsin media has

talked about your wife's affiliation with Adoption Choice, Inc., a

Milwaukee-based adoption service, and your own conservative philosophy has been the subject of numerous articles. In fact, we recall

one Milwaukee Journal article that mentioned you favoring limited

abortion rights.

Can you assure this committee and the people of Wisconsin that

your personal philosophy will not affect your ability to remain impartial on the bench or your ability to follow precedent in areas

where your personal belief may conflict with the current status of

the law?

Judge RANDA. I can assure the committee of that. Senator, and I

think in some of those same articles I assured the reporters of that

fact, that I'm not here to implement my personal philosophies. I've

always—I'm obviously a believer in the doctrine of stare decisis

and I've always followed precedent.

Senator KOHL. Very good. Judge Randa, as you know from experience in Wisconsin, we use a bipartisan merit selection process, a

15-member selection commission to advise on Federal judicial nominations. Although you must be happy with the commission's work

on the vacancy in the eastern district, would you share with the

committee your observations on the merit selection process in Wisconsin and offer any suggestions on how it might be improved?

Judge RANDA. Taking the latter first, we should shorten the

process. It's been since, I think, last April or May, but I say that

partly in jest, understanding the nature of it is one that requires a

great deal of deliberation and consideration by a variety of people.

I was very pleased with the process. I think the one that we've

established in Wisconsin is a very good one, and I can't think of

improving it in any fashion off the top of my head. Perhaps with

some deliberation and consideration of it, I might be able to offer

some suggestions, but my own experience, getting back to the initial part of your question, has been very favorable, except for the

usual things that accompany it, such as the tension of whether or

not you're going to make it and approaching it from

Senator KOHL. But you believe in the merit selection? In your

opinion, it is a good way to select Federal judges?

Judge RANDA. Yes, I do. I believe in the merit selection process,

Mr. Chairman.

Senator KOHL. All right. Judge Randa, not many people become

judges, and you have held numerous judicial positions. Would you

tell us what attracted you to the study of the law initially and

what of significance you hope to accomplish as a Federal judge?

Judge RANDA. Well, generally, I think I had an appreciation of

the law from my father. He was a man who lived by the law even

though he was a sheet metal worker, and he taught me a deep respect for the law and making me understand, I think, very clearly

that the law is what is the backbone and framework of civilized

life, and that it is what guides us in our daily affairs and it provides, hopefully, the peace and tranquility in any community, and

without it we don't have that. So there was that general apprecia-
625

tion that was instilled in me, I think, by my father, if I had to go

back, as some of the nominees here have gone back.

When I went to school in undergraduate school, I was thinking

law, but I wasn't convinced of law, and one of the other, I think,

influences was Walter Brandeis Rauschenbush, who was the professor at the University of Wisconsin Law School who was doing some

interviewing on campus. And his enthusiasm for the law, I think,

put me over the top and I became, I think, hooked and I went to

law school after that.

What I expect to gain—or accomplish on the Federal bench, I

think, is something that I've accomplished up to this point, and

that is to be involved in the implementation of the law and to get

the satisfaction out of being involved in the process that has as its

ideal a government of laws and not of men. And to that end, it's a

thrill, it's an honor, it's a privilege, it's a heavy responsibility to

attempt to attain that goal to implement the law without favor or

fortune.

Senator KOHL. Very good. Would you tell us how your family

feels about this perspective?

Judge RANDA. They are very excited. I think they are as excited

as I am and looking forward to, hopefully, my confirmation.

Senator KOHL. All right. Where did you grow up, in what part

of

Judge RANDA. I grew up on the north side—near north side of

Milwaukee, and went to Riverside High School, and that's, well,

near Currant Park, that area.

Senator KOHL. Yes.

Judge RANDA. Holton and Townsend. I think you're familiar with

it, Mr. Chairman.

Senator KOHL. Yes, I am, of course. Just two other questions.

When you were young, did your parents shop at Kohl's? [Laughter.]

Judge RANDA. They certainly did. In fact, there was a Kohl's

store, one of the first ones, over on Holton And Townsend, and it

was one of the, as I say, first stores and we shopped at Kohl's.

[Laughter.]

Senator KOHL. All right, and the last question is are your sons

current fans of the Milwaukee Bucks?

Judge RANDA. They certainly are, and they are very pleased with

the trades. I know my son, Rudy, was particularly happy about the

Mayberry acquisition

Senator KOHL. Good, all right.

Judge RANDA [continuing]. Even though he was down in the

draft.

Senator KOHL. That is right; very good. Well, you have done fine

job, and I would like to say at this time that I am very supportive

of your nomination. I know quite a bit about your background and

I think you are a very fine person and that you will make an outstanding judge, and I am going to support your nomination on the

floor.

Judge RANDA. I appreciate that, Mr. Chairman. Thank you very

much.

Senator KOHL. Nice to have you here.

Judge RANDA. Nice to be here.
626

Senator KOHL. We thank you all for being here this morning.

You have done a terrific job.

At this time, this hearing will be closed.

[Whereupon, at 11:59 a.m., the committee was adjourned.]
627

Timothy D. Leonard

QDE8TI0KNAIRE TOR JUDICIAL MOMIMEES

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (include any former names used.)

Timothy D. Leonard; Tim Leonard

Address: List current place of residence and office address.

Residence: 621 Northwest 38th Street

Oklahoma City, OK 73118

Business: 200 Northwest 4th Street

Room 44 34, U.S. Courthouse

Oklahoma City, OK 73102

Date and Place of Birth:

January 22, 1940

Beaver, Oklahoma

Marital Status (include maiden name of wife). List spouse's

occupation, employer's name and business address.

Married to Nancy (Laugh1 in) Leonard

Occupation: Homemaker

Education: List each college and law school you have

attended, including dates of attendance, degrees received, and

dates degrees were granted.

University of Oklahoma (1958-1962)

Norman, Oklahoma

Degree: Bachelor of Arts (1962)

University of Oklahoma College of Law (1962-1965)

Noman, Okl ahoma

Degree: Juris Doctor (1965)

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.

6/63 - 9/63 Legal Intern

Landaen, Drum and Ooetslnger Law Office

Beaver, Oklahoma 73932
628

Tinothy D. Laonari

9/65 - 9/68 Unltad Statas Navy

office of tha Judga Advooata Oanaral

Offiea of Investigations

Legal Assistance Offiea

Pentagon, Washington, D.C.

1/69 - 1/71 Assistant Attorney Oanaral

Oklahoma Attorney General's Offiea

Btate Capitol, Oklahoaa City, OK

1/71 - 11/71 Partner, Blankanahip, Herrold, Buaaall t

Leonard

Oklahoma City, OX

11/71 - lo/ea Partner, Trippet, Leonard t Xea

Beaver, OK 73932

11/79 - 11/88

10/88 - 9/89

1980 - 1989

1987 -

State Senator, State of Oklahoaa

Of counsel, suckaby, Fleming, Prailay, Cbaffis

t Darrah, Oklahoma City, OK

Limited Partner, Alpha Karlin Drilling Prograa

Oklahoma City, OK

Board of Trustees, The Donna High Foundation,

Edmond, OK

1987 - Advisory Board Member, State Fair of Oklahoaa,

Oklahoma City, OK

10/89 - now United States Attorney, western District of

Oklahoma, oklahoaa City, OK

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.

9/65 - 9/68 U.S. Navy, Lieutenant, Serial

697809, Honorable Discharge.

Number

9/68 - 1/72 U.S. Navy Reserves, Rank of Lieutenant

Commander, Honorable Discharge.

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

White House Military Aide, President, United States, 1966-67

Oklahoma University Track Team, 1958-62

Minority Floor Leader, Oklahoma State Senate, 1985-86

Who's Who in America (Marquis)

Who's Who in the South and Southwest (Marquis)
Timothy D. Leonard

Who's Who in American Politics (Marquis)

Who's Who in American Law (Marquis)

west's Who's Who in U.S. Law Enforcement Leaders

Outstanding Legislator, Oklahoma School Board Association

1988

Faculty Member Continuing Legal Education (OCU/CLE); Tort

Refonn and Oklahoma Law. 1987.

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.

Oklahoma Bar Association, 1965 - present

American Bar Association, 1965 - present

Federal Bar Association, 1989 - present

10. Other Memberships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

I belong to no organizations that are active in lobbying

before public bodies, other than the above mentioned bar

associations.

American Legion Post 149, 1971 - Present

University of Oklahoma, Varsity "O" Club - 1961 to Present

11. Court Admission: List all courts In which you have been

admitted to practice, with dates of admission and lapses if

any such memberships lapsed. Please explain the reason for

any lapse of membership. Give the same information for

administrative bodies which require special admission to

practice.

United States Supreme Court, Admitted March 5, 1970

United States Court of Appeals for the Tenth Circuit, January

16, 1969

United States District Court for the Western District of

Oklahoma, July 23, 1969

United States District Court for the Northern District of

Oklahoma, July 24, 1969

United States Court of Military Appeals, February 24, 1966

United States District Court for the District of Columbia,

February 28, 1969

Oklahoma Supreme Court and all Courts in Oklahoma, August 3,

1965

12. Published Writings! List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues
Tiaothy D. Leonard

involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily

available to you, please supply them.

4 Days. 4 0 Hours, edited by Riva Poor, 1970, (Contributing

Author)

Tort Reform and Oklahoma Law, continuing legal education

seminar

13. Health: What is the present state of your health?

date of your last physical examination.

List the

Excellent.

Last physical examination: February, 1991

14. Judicial Office: state (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each such

court.

None

15. Citations: If you are or have been a judge, provide: (1)

citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional

issues, together with the citation to appellate court rulings

on such opinions. If any of the opinions listed were not

officially 'reported, please provide copies of the opinions.

N/A

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

Public Offices Raid:

Assistant Oklahoma Attorney General, January 1969

to January 1971, Appointed

State Senator, State of Oklahoma, November 1979 to

November 1988, Elected

United States Attorney, Western District of

Oklahoma, October 1989-Present, Appointed by

President, Confirmed by U.S. Senate
631

Timothy D. Leonard

Dasuoeasaful eaadidaeiaa for Blaetiva Public Offloat

United Statea Congress, Primary Election, 1974

Lieutenant Governor, Oklahoma, General Election,

19B6

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 ao,

the naae of the judge, the court, and the datea of

the period you were a clerk;

N/A

whether you practiced alone,

addresses and dates;

and if ao, the

N/A

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;

6/«3 - 9/(3 Legal intern, Laadsan, Drum and

ooetiiagar Law office

Beaver, OX 73932

9/65 - 9/«a United ttataa Havy

office of the Judge

Advooate Oeneralt Office of

Inveatigatioaa; Legal Aasiataaoe office

Pentagon, Washington, D.C.

i/t9 - 1/71 A»«i»tant Attorney Oeneral

Oklahou Attorney Oeneral'a office

State Capitol

Oklahoma City, OK 73105

1/71 - 11/71 Partner, Blankenahip, Barrold,

Kussell t Leonard

Oklahoma City, OK

11/71 - xo/es Partner, Trippet, Leonard 4 Kee

133 Douglas

BeaTer, OK 7393S

11/79 - ll/«« State Senator, State of Oklahoma

State Capitol Building

Oklahou City, OK 73105
632

Timothy D. Leonard

io/88 - 9/89 of coun««l, Buakaby, riming, mil*;,

Chaffln t Darrah

1215 Claaaan Drive

oklahoaa City, OX 73103

10/S9 - now nnitad atataa Attoraay

Woatam District of Oklahoaa

Room 4434, U.S. Courthouaa

200 Morthvaat rotirtb

Oklahoma City, OX 73102

B. 1. What has bean the general character of your law

practice, dividing it into periods with dates if its

character has changed over the years?

19 6 5 - 19«8: Served in the Office of the Navy Judge

Advocate General. While in the Office of Investigations,

I reviewed all Navy investigations and was primarily

responsible for making the determination whether an

injury or death to Naval personnel occurred in the line

of duty. After making such determination, I wrota

binding published opinions supporting the result. After

being transferred to the Legal Assistance Office, I

provided a wide variety of legal advice and assistance

to all Navy and Marine personnel stationed in the

Washington, D.C. area. Such assistance consisted of

writing and reviewing legal documents and contracts,

estate planning, and general advice on legal matters.

1968 - 1971: As an Assistant Attorney General, my

responsibilities included representing many state

agencies and boards. This representation included giving

written legal opinions which were published and had the

force of law and giving informal advice on legal matters.

Also, I served as the final reviewing authority on all

bond issues of state and local subdivisions. In addition

to these duties, I wrote many appellate briefs

representing the State on criminal matters before the

Court of Criminal Appeals and appeared before that Court

for oral argument. Also, I wrote appellate briefs in

civil cases and appeared before the State Supreme Court

for oral argument on several occasions. In addition, I

made one appearance before the U.S. Supreme Court. I

conducted proceedings for several state grand juries.

1971 - 1919: As a private practitioner, my law practice

was general and varied. I handled most of the litigation

matters for my law firm, including areas of family law,

criminal and juvenile matters, personal Injury, estate

disputes, and oil and gas matters. I have handled estate

planning, real estate matters, and real estate title

opinions. My practice required numerous court

appearances including jury and non-jury trials. I
633

Timothy 0. Leonard

practiced primarily in state court, but also appeared in

federal court on a number of occasions.

1989 - Present: As United States Attorney, I have

represented the United States Government in both civil

and criminal matters. In addition to managing an office

of 32 attorneys and 45 support personnel, I have been

directly involved in the oversight and management of some

900 criminal cases and 3,000 civil cases. I have been

personally involved in making prosecutorial decisions in

the important criminal cases, as well as litigative

decisions in the important civil cases. In addition, it

has been my responsibility to coordinate cases with the

Department of Justice and with the investigative

agencies.

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialized.

When I was in private practice, my typical clients were

average citizens, farmers, and business persons and

firms. I also represented several banks, many school

districts and some municipalities. I specialized in oil

and gas law and had an extensive practice representing

the interests of royalty owners.

As United States Attorney, my client has been the United

States Government, its agencies, departments and

individual employees. I have been involved in all

aspects of federal civil and criminal practice.

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 frequently from 1968 until 1985.

Although I continued to handle cases and make court

appearances, such appearances became less frequent from

1985 through 1989 as my duties in the Oklahoma State

Senate required more and more of my time.

From 1989 to present, I have personally appeared in court

as co-counsel on several criminal and civil cases and

have monitored the court proceedings in numerous other

criminal and civil cases in which the U.S. Attorney's

Office has been involved.

2. What percentage of these appearances was In:

(a) federal courts: 20 percent

(b) state courts of record: 80 percent
634

Tinothy D. L*onmrd

3. What percentage of your litigation was:

(a) civil: 80 percent

(b) criminal: 20 percent

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than settled),

indicating whether you were sole counsel, chief

counsel, or associate counsel.

Total: 60

Sole Counsel: 15

Chief Counsel: 25

Associate Counsel: 20

5. What percentage of these trials was:

(a) jury: 30 percent

(b) non-jury: 70 percent

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:

(bj the name of the court and the name of the judge or

judges before whom the case was litigated:

(c) the individual name, addresses, and telephone

numbers of co-counsel and of principal counsel for

each of the other parties:

(1) Paul Duerson. et ml. vs. Amoco Production Co.. •t «1..

Case No. C-78-1

Substance of Case:

Plaintiffs were mineral owners of certain royalty

interest and brought suit against Defendants to cancel

certain oil and gas leases for breach of implied

covenants to further develop the leases and for drainage

of their oil and gas minerals by surrounding production.

Petitioners in Intervention were also mineral owners who

alleged that the leases were in force beyond their

primary term and should be cancelled for failure to

produce in paying quantities. Defendants denied

allegations and stated that the leases were still in full
635

Tlaotby D. Leonard

force and effect and that the leases were paying in

quantities to keep them from being cancelled. At trial,

the issues narrowed to those raised by Petitioners in

Intervention. Most interesting points of law which

developed were what expenses could be deducted for

depreciation purposes and as operating expenses. This

case set new precedent in Oklahoma law.

Parties Represented:

Roger Mills; Francis Mills; Letha Maxine Mills; Fern

Angleton; B.R. Snylie; Overta Smylie; Iva Lauderdale; and

Vernie McLaughlin (Petitioners in Intervention)

Mature of Participation:

Research of law; preparation of pleadings and motion and

court appearances on same. Preparation of

Interrogatories, examination of witnesses, preparation

of trial and principal attorney on behalf of clients at

trial of case. Preparation of pleadings and briefs for

case on appeal.

Disposition of case:

Trial Court cancelled all leases and quieted title in

Plaintiff and Petitioners in Intervention and barred

Defendants from claiming any interest in the property.

Oklahoma Court of Appeals made some adjustment in the

Trial Court's ruling, but affirmed the overall effect of

cancelling the leases. The Oklahoma Supreme Court denied

Certiorarl.

(a) Date of trial period: March 1978 - March 1982

(b) District Court, State of Oklahoma, County of Beaver.

Oklahoma State Court of Appeals, Division II, No.

54, 196.

Judge: Honorable Frank Ogden, District Judge

Boydson, Presiding Judge - wrote opinion

Bacon and Brightmare, Concurred

(e) Co-Counsel: Robert J. Kee, 123 Douglas, Beaver, OK

(405) 625-4597

Counsel for Other Parties: C. Harold Thweatt, 1700

Liberty Tower, Oklahoma City, OK (405) 235-7751

(Defendant). Keith Drum, Beaver, OK (Plaintiffs),

(405) 625-4526.

(2) Shadden. et ml. vs. Cities Service Oil Corp. and AMOCO

Production Co.. Case Ho. C-78-18

substance of Case:

c/\_ocl r\
636

Ti»othy D. Laonard

Plaintiffs were owners of mineral Interests and

Defendants were owners of oil and gas leases of the

property. Plaintiffs brought action to cancel lease as

to non-producing formations for breach of implied

covenants to further develop property and for damages for

drainage of oil and gas by surrounding production.

Defendants denied allegations and asserted they had been

prudent operators of the lease.

Parties Raproseatedi

W.C. Shadden and Ralph Harvey (Plaintiffs)

Mature of Partioipatioat

Conferences with parties, preparation and presentation

in court of pleadings and motions, interviewing

witnesses, and lead counsel at trial.

Disposition of Case:

Court ordered lease cancelled unless Defendants commenced

drilling a new well within 90 days of date of Judgment.

Damages for drainage were denied.

(a) Date of trial period: June 1977 to March 1979

<b) District Court, State of Oklahoma, County of Beaver.

Judge: Honorable Frank Ogden, District Judge

(c) Co-Counsel: Robert J. Kee, 123 Douglas, Beaver, OK

73932, (405) 625-4597

Counsel for Other Parties: C. Harold Thweatt, 20

North Broadway Avenue, Oklahoma City, OK 73102,

(405) 235-7700

(3) frani vs. KMerioan Tritieale Inc. and Mvteo lerTices.

inc.i Irving Trust Co. - Intervenor. Case No. C-7S-3S

Substance of Cases

complex litigation filed by Plaintiff Franz to recover

from Defendants certain suns of money for rental of

storage facilities and for handling grain and equipment.

The Defendants cross-petitioned against Plaintiffs

alleging conversion and certain other claims. Irving

Trust intervened in the natter because certain warehouse

receipts totaling $258,202.00 were issued by Defendant

Nytco to then. A receiver was appointed and it was

discovered about one-half of the grain was missing or

stolen. The case was complex because of all the rights

of the various parties, the poor records kept by aany of

the parties, the stolen grain, and agreements and

lawsuits between the parties in other jurisdictions.
637

Tiaothy D. Leonard

Partlaa Raprasaatad:

Irving Trust Company, Ona Wall Straat, New York, NY 10015

(Intervenor)

Matura Of Participation:

Corraapondanca with New York counsel. Research,

preparation and presentation of all pre-trial notions in

court. Oversaw appointment of receiver. Also, filing

of a foreign judgment in a related case and counsel

responsible for trial of case.

Oisposition of Case:

Judgment rendered against Plaintiffs and Defendant,

American Tritlcale, and in favor of Intervenor, Irving

Trust, to receive all monies.

(a) Date of trial period: April 1975 - June 1978

(b) District Court, State of Oklahoma, First Judicial

District, County of Beaver.

Judge: Honorable Merle Lansden, District Judge

Honorable Frank Ogden, District Judge

(c) Co-Counsel: Roy H. Carlln of Krause, Hlrsch t

Gross, 41 East 42nd Street, New York, NY 10017,

(212) 986-1122.

Counsel for Other Parties: Leon Fetzer, 1703 Main,

Woodward, OK, attorney for Plaintiff Franz. Bryan

L. Wright, Box 591, Guymon, OK, (405) 338-6591,

attorney for Defendant Nytco.

(4) Huohes vs. White Shield Oil and Qas Con>. • Case No. C71-34

Substance of caiat

Plaintiffs brought a suit for damages to their irrigated

agricultural farmland as a result of oil and gas drilling

operations by the Defendants. The issue involved was the

amount of damages and how they were to be calculated.

Plaintiffs were requesting damages for lost crops In the

past and in the future because the land was not capable

of being restored to its original condition. This would

have resulted in a very large award of damages.

Defendant claimed that Plaintiffs could recover only the

value of the land before the damage occurred, less the

value of the land after the damage, and not loss of

future crops. Also at issue were future damages to crops

since Plaintiffs used flood irrigation on property, and
Tiaothy 0. L«on*rd

contended that damaged land would affect crops on all of

land, as materials might flood over on other land.

Parties Represented:

White Shield Oil and Gas Corp (Defendant)

Mature of Participation:

Served as primary counsel during all preliminary court

motions and during trial of case and in dealing with

other attorneys.

Disposition of Cases

Defendants prevailed in their arguments to the Court and

jury, and, although Defendants did pay a portion of the

damages which occurred, this amount was based on

Defendants' theory of how the damages should be

calculated.

(a) Date of trial period: March 1971 - June 1973

(b) District Court, State of Oklahoma, First Judicial

District, County of Beaver

Judge: Honorable Merle Lansden, District Judge

(c) Co-Counsel: R.F. Hamilton, Post Office Box 2139,

Tulsa OK.

Counsel for Other Parties: H.A. Berry, Post Office

Box 9158, Amarillo, TX 79105 - Baker t Taylor

Drilling Co., Co-Defendant.

Otis Shearer, Post Office Box 520, Perryton, TX

79070 (806) 658-4545 - Hughes, Plaintiffs.

(5) ai-nn-- -T^n... m*A .alter Dale Mitchell yt, • • t.«rt«r

and sons. Inc.; Richard Oene Maulton end aulf Insurance

Company. Case No. CIV-77-616-D

Substance of Case:

Plaintiffs brought action in negligence seeking to

recover damages for injuries they sustained as a result

of a two-vehicle accident. Defendants denied liability

and offered only a token amount in settlement. Jury

awarded Plaintiffs a total of $106,000 In damages. Court

later ordered a new trial on the basis it had committed

prejudicial error at trial In sustaining Plaintiffs'

objections to the introduction of the Investigating

trooper's official accident report and his opinion as to

the cause of the accident.

Parties Represented!

Glenda, Joann, and Halter Dale Mitchell (Plaintiffs)
Ti»othy 0. L«onard

Natura of Participation;

Interviewed witnesses, worked with co-counsel in

preparation of all court pleadings and interrogatories,

court appearances, preparation for pre-trial and trial,

and participation with co-counsel at trial.

Disposition of caaei

Plaintiffs and Defendants finally settled matter for

about 80 percent of the jury's original verdict.

(a) Date of trial period: April 1977 - June 1980

(b) United States District Court for the western

District of Oklahoma

Judge: Honorable Fred Daugherty

(c) Co-Counsel: Kent Fleming, 1215 Classen Drive,

Oklahoma City, OK 73102, (405) 235-6648

Counsel for Other Parties: Drew Neville, Bank of

Oklahoma Plaza, Oklahoma City, OK, (405) 239-6781

(6) Brvant and Lalluayon vs. Barby aad Barby a Co-partnership.

Case No. C-80-100

Substanoe of Casat

Plaintiffs claimed adverse possession and wanted title

quieted in their name. Defendant claimed that any

possession by Plaintiffs of the land owned by Defendants

had been for the purpose of convenience between parties

because of a flooding problem on the creek running

between Plaintiffs' and Defendants' land. At issue also

would have been mineral rights. The case would have set

precedent regarding adverse possession law in Oklahoma.

Parties Represented:

Russell Barby and Alferd Barby, a Co-Partnarship

(Defendants)

Mature of Participation:

Researched law, prepared all court documents and made

appearances in court on all pre-trial motions, met with

witnesses, and conducted all trial matters on behalf of

defendants.

Disposition of Case:

Jury rendered verdict for Defendants. Plaintiffs

appealed, but later dismissed their appeal.

(a) Date of trial period: December 1980 - July 1982
640

Timothy D. Laonard

(b) District Court, State of Oklahoma, First Judicial

District, County of Beaver.

Judge: Honorable Wayne B. Smith, Associate District

Judge

(c) Co-Counsel: Robert J. Kee, 123 Douglas, Beaver, OK

73932, (405) 625-4597, law partner

Counsel for Other Parties: Tom Hieronymus, Post

Office Box 529, Woodward, OK 73802, (405) 256-5517

(7) Evans vs. Banfc of Beaver. Case No. C-75-22

Substance of Caset

Plaintiff Evans sued the bank for conversion for placing

certain checks in an account based on a forged signature.

These facts all dealt with a former law partnership

involvement and bank accounts of this partnership which

had been dissolved. The issue of the Statute of

Limitations also was applicable in regard to when

Plaintiff had knowledge of certain events and

allegations.

Parties Kepresantedi

Bank of Beaver, Beaver, OK; Firemen's Fund Insurance

Company, Dallas, TX (Defendants)

Mature of Participation>

Researched and prepared all court responses, motions, and

pre-trial pleadings. Also prepared trial brief and

personally represented clients in all court natters,

including trial and appeal. Prepared brief for appeal

to Supreme Court.

Disposition of Case:

Defendant Bank prevailed at the trial level, and decision

was upheld by the Oklahoma Supreme Court.

(a) Date of trial period: February 1975 - July 1977

(b) District Court, State of Oklahoma, First Judicial

District, County of Beaver.

Supreme Court, State of Oklahoma, Case No. 49041.

Judge: Honorable J. Russell Swanson, District Judge

Honorable Ben T. Williams, Chief Justice -

op: written by Justice Davison

(c) Co-Counsel: Richard P. Trlppet, Box 72S, Beaver,

OK (law partner), (405) 625-4597
641

Timothy D. Leonard

Counsel for Other Parties: Josh J. Evans, Guynon,

OK

(8) Leonard and Andersen vs. Atlantic Kichfield. P.C. Fraiee.

et al.. Case No. C-80-25

Substance of Case:

Plaintiffs sued to cancel an oil and gas lease which was

beyond its primary term and was being held by production.

The well had been shut in for several months by a fire.

The leases called for cancellation if there was cessation

of production for a definite period of time. Also, some

of the Defendants were owners of royalty interest for a

term specified "for as long as there Is production."

Plaintiffs contended that the cessation of production

terminated those Defendants' ownership and asked that

title be quieted in them.

Parties Represented:

William L. Leonard and Richard F. Anderson (Plaintiffs)

Mature of Participation:

Researched law, prepared pleadings and other court

documents, presented motions in court, negotiated with

opposing counsel and served as lead attorney in trial of

the case.

Disposition of Caset

The Trial Court ruled that production had ceased for the

period of time in question and called for cancellation

of those oil and gas leases. Also, the Court ruled that

the term mineral interest owned by certain Defendants had

terminated and quieted title in Plaintiffs.

(a) Date of trial period: January 1980 - Hay 1981

(b) District Court, State of Oklahoma, First Judicial

District, County of Beaver

Judge: Honorable Frank Ogden, District Judge

(c) Co-Counsel: Robert J. Kee, 123 Douglas, Beaver, OK

73932 (law partner), (405) 625-4597

Counsel for Other Parties: C. Harold Thweatt, 20

North Broadway Avenue, Oklahoma City, OK 73102,

(405) -235-7700

(9) Western Waste Manaoeaent. Ino. v. United 8tat»» Ot

Aaeriea. Case No. CIV-88-1849-T
642

Timothy D. Leonard

Bub static* of Caaat

Two Plaintiffs sued the United States of America under

the Federal Tort Claims Act for damages in excess of

$300,000. The Plaintiffs alleged employees of the United

States caused hazardous material to be placed in a trash

receptacle which was later picked up by Western Haste

Management, Inc., a contract trash hauler for Tinker Air

Force Base. The Plaintiffs further alleged that the

material ignited causing the truck and the building in

which it was parked to be destroyed by fire. The case

involved extensive expert witness preparation and

testimony, in both fire orientation and chemical

analysis.

Parties Represented: United States of America, Tinker

Air Force Base (Defendants)

Mature of Participation: Interviewed witnesses;

researched the law; prepared the case for trial with cocounsel; served as co-counsel at trial; and examined and

cross-examined witnesses.

Disposition of Casat

The Plaintiffs were jointly awarded a verdict of

$148,940.

(a) Date of trial period: June 26-28, 1990

(b) United States District Court, Western District of

Oklahoma

Judge: Honorable Ralph G. Thompson, Chief Judge

(c) Co-Counsel: Assistant United States Attorney Vicki

Zenp Behenna, U.S. Attorney's Office, 200 Northwest

Fourth Street, Room 4434, Oklahoma City, Oklahoma

(405) 231-5281.

Counsel for Other Parties: Randy Sewell, Richard

Black, and Thomas S. Adler, Suite 1400, 101 North

Robinson, Oklahoma City, OK 73102, (405) 232-1211,

for the Plaintiff Cecil Curtis.

Dan Holloway and Gary Bachman, Suite 900, 211 North

Robinson, Oklahoma City, OK 73102, (405) 235-8593,

for the Plaintiff Western Waste Management, Inc.

(10) United States of America vs. Thomes B. Ackerman. Willian

8- Ti*lU. infl iafcttt Pi <?i9»tiP, Case No. CR-90-228-R

•ubstanca of Cases

This case involved the criminal offenses of conspiracy

and theft from interstate shipment. The Defendants were
643

Timothy D. Leonard

ringleaders in a multi-state theft and fencing ring which

operated out of rental property managed by Ackerman in

south Oklahoma City. Defendants presented a two-fold

defense: (1) any illegal conduct was done by a "straw"

person who supposedly had access to rental property, and

(2) denial that any criminal wrongdoing occurred.

Parties Represantedt United States of America

Mature of Participations Interviewed witnesses; research

of law; preparation of case for trial with co-counsel;

co-counsel at trial; and examined and cross-examined

witnesses.

Disposition of case: The case was tried to a twelve

person jury before the Honorable David L. Russell. All

Defendants were convicted of Counts 1, 4, and S of the

Indictment and acquitted on Counts 2, 3, and 6. All

Defendants were sentenced to the custody of the Attorney

General of the United States and are currently

Incarcerated.

(a) Date of trial period: January 28-30, 1991

(b) United States District Court, Western District of

Oklahoma

Judge: Honorable David L. Russell

(c) Co-Counsel: Assistant United States Attorney Ted

A. Richardson, U.S. Attorney's Office, 200 Northwest

Fourth Street, Room 4434, Oklahoma City, OK (405)

231-5281, for the Government.

Counsel for Other Parties: Michael Gassaway, Suite

1100, One North Hudson, Oklahoma City, OK 73102,

(405) 232-2800, for Defendants Ackeman and Fields.

Jerome Kearney, Assistant Federal Public Defender,

524 Old Post Office Building, 315 Dean A. McGee,

Oklahoma City, OK 73102, (405) 231-5725, for

Defendant Glosslp.

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).
644

TlBothy D. Laoaard

(1) William F. Poulaa. Petitioner, vs. Ford. Case No. 50931 -

In the Supreme Court of Oklahoma, Ralph B. Hodges, Chief

Justice

The Petitioner brought an action In the State Supreme

Court asking the Court to assume original jurisdiction

in interpreting a State constitutional provision and

challenging the method used in disbursing to school

districts ad valorem tax money on public utility

property. The applicant successfully represented sixtyfive school districts in intervening in the lavsuit. The

litigation had a major Impact on school funding in

Oklahoma. The Supreme Court denied application, thus

upholding the position of intervenors represented by

applicant. Applicant prepared Petition in Intervention,

Brief and made oral arguments to the Supreme Court.

(2) Independent School District No. 22, Beaver County,

Oklahoma.

In 1977, Applicant was counsel for School District in

preparation of all documents and advising school district

on a $750,000 school bond issue which was successfully

passed and sold.

(3) In the Matter of the Estate of George W. Cafkv. Deceased.

Case No. P-72033, Beaver County, Oklahoma

From April 1971 until December 1977, Applicant

represented the only child of the deceased in a

protracted and complex estate matter with the deceased's

second wife. Litigation involved several matters that

went to trial and ware appealed in State Courts as well

as one matter tried and appealed in Federal Court.

Questions involved from Interpretation of title to jointtenancy instruments to possession of estate property and

inventories.

(4) Applicant was counsel and/or co-counsel on five major

personal injury and wrongful death cases that were

settled prior to trial and resulted in major recoveries

for clients. Complex questions of fact and law were

Involved in all of these cases.

(5) Applicant represented numerous royalty owners In

litigation involving cancellation of oil and gas leases.

Almost all of these cases resulted in the cancellation

of existing leases or in the drilling of additional wells

to satisfy the terms of the leases and to the benefit of

Applicant's clients.

(6) As an Assistant Attorney General, served as counsel for

two major county grand juries to investigate fraud and
645

Tlaothy D. Laoaard

corruption In county government. Both grand juries

recommended ouster and criminal indictments against

corrupt county officials.

(7) As an Assistant Attorney General, represented the State

of Oklahoma in the appeal of many criminal cases.

Prepared briefs and made oral arguments to the Court of

Criminal Appeals in numerous cases on behalf of the State

of Oklahoma.

(8) As a State Senator, was the principal author of a bill

which was passed into law which allowed the surviving

spouse of an intestate deceased to receive one-half

rather than one-third of the decedent's estate.

(9) As a State Senator, was the principal author of

legislation which was passed into law which allowed for

sanctions to be imposed and costs to be awarded in

frivolous lawsuits and also made other necessary reforms

to correct some of the abuses that had arisen in the tort

liability area.
646

Timothy D. Laourd

ZX. 7INXNCIAL DATA UR> COUTLICT OF IKTEWSBT (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.

Oklahoma Public Employees' Retirement, Plan 001 — vested

retirement, due from service in State Senate. No arrangements

have been made other than upon reaching a certain age, I will

be eligible to receive a monthly sum of Income from the

retirement system.

Thrift Savings Plan — When leaving the United States

Attorney's Office, I will be entitled to be reimbursed the

total sum of my contributions.

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.

There is a recognition that as United States Attorney there

are numerous cases in which I have been directly or indirectly

involved which will be before the Federal Court. I will

follow the Code of Judicial Conduct as it applies to recusal

and recuse myself from any matter or case which the United

States Attorney's Office was involved during my tenure. I am

aware of no other categories of litigation or financial

arrangements that are likely to present a potential conflict

of interest. However, I will follow the Code of Judicial

Conduct as It applies to recusal to avoid any actual or

perceived conflict.

3. Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

No.

4. List sources and amounts of all Income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends.

Interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so.
647

Tiaothy 0. Laonmrd

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

Copy of Financial Disclosure Report, required by Ethics in

Government Act of 1978 enclosed herein.

Please complete the attached financial net worth statement in

detail (Add schedules as called for).

Financial Net Worth Statement, Schedules A, B, C, and D

enclosed herein.

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.

1970

1974

1974

1979

1980

1984

1986

1988

1988

Coordinator G.T. Blankenship for Attorney General

Campaign

Republican Candidate for U.S. Congress

Chairman Beaver County Republican Party

Elected to the Oklahoma State Senate District 49,

Candidate

Reelected to Oklahoma

opposition. Candidate

State Senate without

Reelected to Oklahoma State Senate, Candidate

Republican nominee for Oklahoma Lt. Governor,

Candidate

State Co-Chairman George Bush for President

State Co-Chairman Shorten Our Session petition drive
648

FINANCIAL DISCLOSURE REPORT 1 M^v.rM «T v.« !••.:•

i Jtci zt .»»•, *d. 1. «J. iai-tM. in rfir i: .>»i (s o.s.c*. AM- *• us;:*;;;

| (LMt uaa. flMt. fciafli* UltiSl 1

LEONARD, TIMOTHY D- Unitad State* District Court

Western District of QklAhcma

11/21 '5:

United States District Judge

41 *pptspri*c» cy*a)

=.^ U/20/91

1/90 - U/91

• M ociic* mtmm

Poor, 4434, U.S. Courthouae

200 Northunt 4th Street

rkl^hnra City. CK 73102

IMPORTANT NOTE& TV

ck«±la( HK NONS kK kr ai

I. POSITIONS. fReponmi ladivMul only, MC pp. !•» ol Insiraciiom.)

EfiSHIQti NAME OF OROANlZA-nON/EhfTTTY n NONE (M

United State! Attorney

Advisory Board Member

Board of Trustees

U.S. Department of Justice

State Fair of Oklahoina (Resignation effective 1

Ooma Nigh Foundation (Rasignation effective 12,'1.'?1

II. AGREEMENTS. (Rcpotdai ladivldul only: wc p. S-9 of Insimcuom-)

QAS, PARTIES AND TERMS

m NONE (•• i

NON-INVESTMENT INCOME. (Rapordai iaOMdiial ud tpoae; HC pp. 9-12 of lauraotaat.)

DATE SOURCE AND TYPE GROSS INCOME

(Hoaonria only) Qnen. sot spouu'i) D NHW—1 t

Qiildrwi's Medical nts»BiThf Inc.
FINANCIAL DISCLOSURE RETORT (cou'd)

••*• at tmnam tfrxutq

LECNASD, TDCIHK D. 11/21.91 i

(Indudn ibo— a ipmiH ud dcpradnu chlMnn: uu ib« pumhtaalt 'iSi' lod •iTtcr w indlou rrporuhle JJ by »foaf Mi•§••• chUdren. rMpectlxly. SM ^.I5*1S of la»Iru^tunv<

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment

(lAdudn tboM to apmtM ud dcpcr-*-

nijDbuneacDU and ftfti WWM

SfijaKOi DESCRIPTION

NONE .o .

DOIPT

«ta M flfui

V. OTHER GIFTS. Oadndca U>OM u ifMW lad depradral <•••• u*t t

I Md fcf*«i rMMlM. rMf«cilnC. S«t iMWi at MMIlJ

H

iDdkaM otbtr |Uli notivd by tpouM I

SOVRCE PBcumw

"(DC)-u

utrw

V\LtT

NONE

VI. LIABILITIES (1***, **m *^mm m* i

(or UoMllty Oj ulof UK pomkMol 'A.'

ladJrtdiu) .n4 i|i7ii, MST'IDO' lor Ho--

Q NOVE (•• ruifftilli UakUlUa*)

mfoasiblc

rcportlat

l cfalMne; Mkate vtan MyOoMt. pcnoa

i UabtlitT of (POUM. '(J)' for loiM U»MUtT of

DESCMmON VALUE CODE
650

FINANCIAL DISCLOSURE REPORT (ooil'd)

MOB ot fltar, K*porxL3«

LEDtMS, TOOIHY D. 11'"21 91

VII. INVESTMENTS and TRUSTS - income, value, transactions, (isdufe* iboM or ^u.*

and depeadtat chlWrto; tc* pp. lt-Z7 of Iflitructlooi.)

[ ISClBilMf

. Itorn pr ioi SGelat

rKJsr

TTT

S5i'

TIT—

'SF;

•t Mid Of

m m

TTUMctloM during rapaniafl parlari

EXEMPT

#

(n. il^L.r.

HI:. Wj tteattty -r

BSHSKSM

•

160 acres farmland

Share

Prtxi.

JEG-Eact vui 1 Oil i Gas Boyalty

snaze

Prod.

1 Oil I Gas Vtorkiin Interest

B?.v»r Cmmrv. (* ar snare

ProdOil i Gas Royalty Interest

' Personal ISA Acct. Bank of

Beaver. Beaver County, OK

' Personal IDA Acct. Bank of

IMME tovpr nmirty- fK lat^.

' Okla Public Qiployee

RpfiniiiRnr., (KC. OK lilYSIi

' Cash Value Life Ins. icu

• Bjuity Bank, CKC, OK

Tnt«i-i-3t on Acct Int.

'"Nichols Hills Bank, OKC,

jg, Bart jBEh ; Leonard Joint

County. I

toint VanBeaver

Ventura

CK 20% Int

Vtark.

Jot. V M

I'LTSK Joint Venture, HMV

County, Ot, 53 1/3tlot

''Wpi« MarlinDrilliiig, CKC

Vtark.

Inr. V MSe Part Mill

mirfrt Pni-mnr J

tin Leonard Inav. BH t

Hark.

Int. jLii

"Kirs

aJ ry TT- F

to*vfr P?- - f

^S PWdValue Life Ins

iHlank of Beaver - uiecKing

Beaver County, CK

lalx100 Siares Kerr McGee Dlv.

"Ryan Lecnard Irrev. Trust

nrlBnyalty Int. Beaver Co.. CK

"Bank

Prod.

joBauity Bank - CD

of Beaver, CD

iDt^

'Equity

' '». CiSL.

• iBia kHl.000

-mm r •••

••tl.Ml to II,>M I>U.H1 t» «,0« 0-.I.IX11 U ""JM

riwftMBi lashKL'*"""' P3aiiLF'j{;;r^i paaagt"""

8

'—*e~u»~^
651

ATCC-JE.T 1

FTNANCbM. DISCLOSURE REPORT (cooia)

LBXMO, ravnn o. U..Ji

VII. INVESTMENTS and TRUSTS - income, value transactions ,._.-_ *** a^endco. childmii K, pp. 1H7 ol UtmicUoo;., '

ll,:,nsa(-llOnS. r Include, time of .poux

0.

rou<.uu „„„, „„„„, „,.„

tXEVT

w 'ST; tt

(j-»

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#

fraragi rsnarszt 1

"SB bin.

CM*1

NONE 11. rwruM.

New York Life Ins. B Int. K T

100 Shares Kerr KcGee A Dlv. J T

aovaltv Int. Rwver to., oc c | W

" Bank of Beaver CD

Beaver Co., fiy fl Int. | T

Dquitv Bank 03

c Int. | T

,New YarK r.ifp Tnq. s Tnf. K T

100 Shares Kerr ftGee A Div. J T

^ig^glj.'rsi Sii^j" r"« t

:

ijf'?ji",jiUM«. izifi.rdZ'..,*. zifixw's?^ LiY^fp, tWjJH.^!

!s.„ «ni»i.BjjW• P'^L""!^ W»iW^'i«8^
652

FINANCIAL DISCLOSURE REPORT (conrd) LEONARD, TIMOTHY D. 11/21/91

VIM. ADDITIONAL INFORMATION or EXPLANATIONS. (Mte. pM .r B^n.)

Part VII - •I 16Q acres farmland <«urfaoe only) ourchaaed in July 1980 for 550,^00.

Surrou.ndi.Tg aalea would indicate the property has depreciated in val-^

purchase. •_

Part VII - ill, >12, and tl3 Values Mere determined on tlgae properties tTy sale :f

interest ir. these pnspertiea durij-ig reporting period.

IX CERTIFICATION.

la coapliaaoe witii the provmooi of 2S U S.C I 453 aad of Attvuory Opioioo No. 57 of the Advisory Comntittee os

JudicUJ ActMiMt. aad to the bai of ay kaowledfc at tbc uaie after rcaionabte toquiry. I did oot pcitof aay adjudicaton

fuocuoe LD any liupuoo dttriog tbe penod covered by tha report IB which 1, my spouse, or my aiaor or depeodcai cbildrea

had a flaaacial iatereu, a* defined ta Caaoa 3C<3)(c), ia tbe ovtcoioe of iuch btipdoa.

I certify that all iafornatioa ftvca above (lactndlag laloraatloB penalaiag to my tpoac aad aiaor or depeadcot children,

if aay) is accuntc. tree, aad complete to tbe best of my kaowled|e aad beUct aad thai aay inJonaauoo ooi reported »ai

withbetd because It oei applicable statstory provWoH permittiaf aoa-disdoaafc.

I ftmber certify that eareed iacooe from ootaldc eaployiaeot aad boeorarla aad tbe aoceptaace of gifts which have bece

reported are ia oompliaaoe with the pravkloai of 5 U S CA. »pp 7. | SOI CL seq, 5 U S,C | 7333 aad Jadioai Coalercace

regulaitoas.

NOTE: ANY INDIVIDUAL WHO KNOWffiOLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U S.CA. APP. 6. I 104. AND U U S C I 1001.)

F1UNO INSTRUCTIONS:

MJJ ilpe* oilgaal ud i tMUoul oopkm to-. JuUicUl Eihla Cnmatnm

Adalainntlv* OOce of iki

Uoium Sum Co«n>

Wuhuifiot, DC 20544
FINANCIAL STATEMENT

NET WORTH

LECfJ-SE, TIMOTV :.

Provide • eompl«t», cumnt buncial ntl »orth itXMTwnl which iltnuin In d««il •!! ands (includint banli

•ccounli. r»»l tllall. Mcurttill. tnnls. ioy«jlmcnli, and atlMf financial holdinft) all UabilitiM (includini dabti

monfttt. leant, and othar financial aMi|alions) ol yauiulf, your tpouu. and Mhar Immadlata mamban oi

your household.

ASSETS lunifncs

Cjt" en Iwna ana In aanka

i mtau nwlaana iveaivaaia

AUIM and mhar aafiaaal a«aaat|

Cash wahia Bla lotunnet

Omar aiaata—Ramlaa;

oil tJamJaaitU '

!r,h B

Deo. CJu-Idren's Trusts i.

Perscnal Accts. Sch. c

-0-

-0-

-0-

QOC

WOT

aa

"555

222 Jlfi. "W" Mraau la aaxu00C

nx

aas

•Maa aamaia »1—

Mataa nMla k aiaaia

OUiar wwaiK u« ana t—i

Raalaatata a

Talal aaMMtaa

Nataarai

Talal laaiHIIaa ana aa! i

"^^ -0-S

000 00

ooo loo

rocn^

eoNTmecMT uaaiunu MNnM. MmttUTION

Oa laaaaa f aamracn

lacalC

-0-

_-ih HIM y«u M«r IMM tmmkfyfttff

_t£L
654

Tlaothy D. Lsonird

aemiDnLB A; MAL KiTMB QWWP

Paraonal Raaidaooat Lots Forty-two (42) to rorty-five (45),

both inclusive, to Block Sixteen (16), In

Blocks 11 thru 16, Crown Heights Addition,

to Oklahoma County, Oklahoma

$ 200,000

Rural Agricultural

raniand:

sw 1/4 Section 33-Twp4N-Range

22 ECM, Beaver County, OX S 35,000

TOTAL S 235. 00C
Timothy 0. Leonard

8CHBD0LE B» Othor A»»»f—Oil j Q>» KOVltv Ownod

Section 2l-TwplN-Range2lECM, Beaver County, OK

Section 2 2-Twp3N-Range2 5ECM, Beaver County, OX

Section 23-Twp3H-Range2SECM, Beaver County, OK

Section 24-Twp3N-Range25ECM, Beaver County, OK

Section 21-Twp4N-Range24ECM, Beaver County, OK

Section 27-Twp3N-Range27ECM, Beaver County, OK

Sections 9,10,15,16-Tvp34S-Range28W6PH, Heade County, KS

Total Value of All Royalty Interest Owned: $40,000
656

Timothy D. Leonard

•gmagJ Bl D«p«nd«nt Chlldr«n'« Tru«f 4 P«r«on«l Aeeounf

Kirstin D. Leonard Irrevocable Trust:

Cash on hand

Cash Value-Life Insurance

Stocks-100 shs. Kerr McGee

Royalty Interest-Beaver Co. OK

Sec.27-3N-25 ECM

Total Trust Assets

$ 3,500.00

14,000.00

4,200.00

20,000.00

$41,700.00

Ryan T. Leonard Irrevocable Trust:

Cash on hand

Certificates of Deposit

Cash Value-Life Insurance

Stocks-100 shs. Kerr McGee

Royalty Interest-Beaver Co. OK

Sec. 27-3N-25 ECM

Total Trust Assets

$10,000.00

25,000.00

16.000.00

4,200.00

20,000.00

$75,200.00

Tyler D. Leonard Irrevocable Trust:

Cash on hand

Certificates of Deposit

Cash Value-Life Insurance

Stocks-100 shs. Kerr McGee

Royalty Interest-Beaver Co. OK

Sec.27-3N-25 ECM

Total Trust Assets

$ 6,000.00

55,000.00

14,000.00

4,200.00

20,000.00

$»f,200.00

Kirstin D. Leonard Personal

Bank Account Balance

Ryan T. Leonard Personal

Bank Account Balance

Tyler D. Leonard Personal

Bank Account Balance

$ 500.00

$ 1,500.00

$ 900.00

TOTAL ASSITS—DEPENDENT CHILDREN'S TROSTfl AMD

PERSONAL ACCOOIRSi $219,000.00
657

Tiaothy D. Leonard

BCHEDOLE D; Mtl Bttttt •BKtgMM gMtltH

Paraonal Raaldanoa: Lots Forty-two (42) to Forty-five (45),

both inclusive, to Block Sixteen (16), In

Blocks 11 thru 16, Crown Heights Addition,

to Oklahoma County, Oklahoma

Original Mortgage $110,000.00

Due and Owing to

Dwight Leonard

Post Office Box 925

Beaver, OK 73932

laiaaMuii
Timothy D. Laenard

III. GEHERAL (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 dlsadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific Instances and

the amount of time devoted to each.

1969-79 Served on a County Bar Program to meet monthly

with prisoners who were in a pre-release center and about

ready for release. The purpose of the meeting was to answer

all legal questions they might have dealing with their release

or other personal legal matters they or their families were

having. 5 hours per month

1970-1989 While in private practice, I performed many

legal services and offered consultation on numerous occasions

to persons who were unable to pay for legal services. In a

small town where my practice was located, there was no legal

aid or other source for those people to turn to.

Approximately 10 hours per month

1970-1969 Participated in Bar Association Program "Ask

A Lawyer" on Law Day, along with other lawyers in the

community. I was available to give legal advice free of

charge to people who called. 5 hours per year

1970-1989 In addition to the above specific programs,

I was active in several community service organizations and

not only provided free legal service to these organizations,

but also many hours of a non-legal nature and service through

and with these organizations. Also, I served on my church

board and provided free legal services to not only my church,

but other churches and non-profit organizations in the

community.

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 have

you done to try to change these policies?

No, not to my knowledge.

3. Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?
659

Timothy D. LAOnard

If so, did it recommend your nomination? Please describe your

experience in the entire judicial selection process, from

beginning to end (including the circumstances which led to

your nomination and interviews in which you participated).

Yes. Yes. Pursuant to notice of judicial vacancy, I responded

to a judicial selection committee appointed by Senator Don

Nickles (R-OK) of my interest in the position. The committee

interviewed all applicants (over 50) over a two-day period

and, selected three applicants to recommend to Senator

Nickles. I interviewed with the committee and subsequently

interviewed with Senator Nickles. After Senator Nickles1

recommendation, I interviewed with several officials within

the Department of Justice. Subsequent to those Interviews,

I have filled out lengthy questionnaires for the Federal

Bureau of Investigation and the American Bar Association, and

interviewed representatives from both organizations.

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 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 farreaching 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

jurisdictlonal requirements such as standing and

ripeness; and
660

Tisothy 0. Laoaaid

e. A tendency by the judiciary to impose itself upon

other institutions in the manner of an administrator

with continuing oversight responsibilities.

I have had the unique opportunity to serve in both the

executive branch of government at the state and federal levels

and the legislative branch as an elected official. I have a

deep respect for the separation and unique role of these two

branches, as well as the role the judicial branch serves.

Certainly, there have been occasions where the courts through

"judicial activism" have had a tendency to usurp some of the

prerogative of the other branches of government. The federal

judiciary should not "legislate" and the interpretation of

legislation should follow the true intent of the legislative

branch rather than any personal agenda or goal. Judges should

limit themselves to the particular case before them and

restrict their rulings to the individual facts and Issues of

that case. They should always be mindful to use restraint.
661

QUESTIONNAIRE FOR JUDICIAL NOMINEES

UNITED STATES SENATE

BIOGRAPHICAL INFORMATION (PUBLIC)

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

Leurdes olllespia Baird

2. Address: List current place of residence and office

address(es).

Residence Offioa

631 N. June St. 1200 U.S. Courthouse

Los Angeles, CA 90004 312 North Spring St.

Los Angelas, CA 90012

3. Date and place of birth.

Kay 12, 1935, Quito, Ecuador

4. Marital Status: (include maiden name of wife, or

husband's name). List spouse's occupation, employer's

name and business address(es).

Divorced

5. Education: List each college and law school you have

attended, including dates of attendance, degrees

received, and dates degrees were granted.

Los Angeles City Collage; September 1966-Juna 1971;

AA 1971

D.C.L.A.; September 1971-June 1973; BA 1973

U.C.L.A. School of Law; September 1973-June 1976;

JD 197C

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.

1977 to 1983:

Assistant U.S. Attorney

U.S. Attorney's Offioa, Central District of California
662

196 3 tO 198 4:

Xttornay partner

Baird t Quadros, Loa Xagalas, California

1984 to 1986:

Attoraay partnar

Balrd, Mungar t Nyara, Loa Xngalas, California

198« to 1987:

Judga

East Loa Angelas Municipal Court

1987 to 1988:

Judga

Loa Angelas Municipal Court

1988 to 1990:

Judga

Loa Angeles Superior Court

1986 to 1990:

Adjunct Profaasor (part-tiao)

Loyola Law School

Loa Angeles, California

1990 to Present:

Unitad states Attornay

U.S. Attorney's offica, Cantral Diatrict of California

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.

Mo

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that

you believe would be of interest to the Committee.

D.C.L.A. School of Law Moot Court Honors Program

U.C.L.A. Daan'a Honor List; Honors Program

U.C.L.X. School of Law "Alumnus of the Year" 1991

L.A. City Collage "Alumnus of the Year" 1991

L.A. City Collage, "valedictorian" 1971 graduating

class

Hispanic womena' Council "Woman of Promise Award"

1991
663

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.

Attorney General's Advisory Committee

0.8. Department of Justice

Vice chairman, 19*1 to present

Member, 1990 to present

Minth Circuit Conference Executive committee

Member, 1991-present

Judicial council of California

Member, 1987-19SS

Minth Circuit Court of Appeals, Advisory committee on

Rules and Procedures

Member, 1983-1986

ninth Circuit Judicial Conference

Lawyer Representative, 1983-198C

Mexican-American Bar Association, 1988 to present

California women Lawyers, 1980 to present

American Bar Association, 1989 to present

10. Other Memberships: List all organizations to which you

belong that are active in lobbying before public

bodies. Please list all other organizations to which

you belong.

To my knowledge, I belong to no organisations active in

lobbying other than the bar associations listed above

in paragraph 9.

Constitutional Rights Foundation

I«s Angeles, California

iculate Heart High School Board of Trustees

Los Angeles, California

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.

On December 22, 1976, I was admitted to practice in all

California State Courts.
664

On April at, l»77, I ma adalttcd to praetiea in tha

Daltad Btataa District Court of tha Cantral District of

California.

On May 3, 1*77, Z waa adaittad to praetiea in tha

Dnitad Stataa Court of Appaala for tha Ninth circuit.

On Juna 30, 1*S0, Z waa adaittad to praotiea in tha

Dnitad Stataa auproaa Court.

12. Publiahed Writings: List tha 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

tha 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.

Ccuaenieal leadarahip Confaranoa Spaaoh, 1991

"Motions and Pleading Conaidarationa on Civil Rico

Actions," Civil Rico course Handbook, Praotieing Law

Znatituta, 1984

"Tha Predicate Offenses of Mail and wire Fraud" Civil

Rico 1985 Course Handbook, Practicing Law Institute,

1985

13. Health: What is the present state of your health?

List the date of your last physical examination.

Izoallant. February 7, 1992.

14. Judicial Office: state (chronologically) any judicial

offices you have held, whether such position was

elected or appointed, and a description of the

jurisdiction of each such court.

Beat Los Angelas Municipal Court

Appointed 198(

Jurisdiction: criminal misdemeanor, felony preliminary

hearings, traffic and civil matters under $15,ooo

Los Angeles Municipal court

Appointed 1987

Jurisdiction: Sana aa above

Los Angeles Superior Court

Appointed 1988

Jurisdiction: Criminal felonies, juvenile, family law,

probate law and all civil matters over $15,000
665

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.

•one. My assignments since 1986 on the Municipal and

Superior Courts did not provide the opportunity to

write opinions.

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.

United states Attorney

Presidential Appointment, 1990

4-year term

17. Legal Career;

a. Describe chronologically your law practice and

experience after graduation from law school

including:

1. whether you served as cleric to a judge, and

if so, the name of the judge, the court, and

the dates of the period you were a clerk;

MO.

2. whether you practiced alone, and if so, the

addresses and dates;

Ko.

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;
666

July H»0 to Dr«»«nt;

Unltad Stataa kttornay

Onited stataa Attorney's Offlea

1200 Unitad States Courthouse

312 North Spring Street

Los Xngeles, CA 90012

Baptambar 1988 to JulT H90

Judga

Los Xngeles Superior Court

111 North Hill Street

Loa Xngeles, CA 90012

Bactanbar 1987 to Saptaabar 1988

Judga

Loa Angeles Municipal Court

110 North Orand Avanua

Loa Angeles, CA 90012

January 1986 to Baptaabar 1987i

Judga

East Loa Angeles Municipal Court

214 South Fetterly Avenue

Loa xngeles, California 90022

June 1984 to January 1986;

Attorney Partner

Baird, Mungar t Nyara

727 west Bavantb Btraat

Loa Angeles, CA 90017

July 1983 to Juna 1984i

Attorney Partner

Baird t Quadroa

727 west Bavantb Btraat

Loa Xngeles, CA 90017

April 1977 to July 19831

Assistant Oaitad States Attorney

Unitad Btataa Attorney's Offiea

1200 unitad Btataa courthouse

312 North Spring Btraat

Loa Angeles, CA 90012
667

17. (Cont'd.)

b. 1. What has been the general character of your

law practice, dividing it into periods with

dates if its character has changed over the

years?

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

July 1990 to present!

Since July, 1990 to the present, X have headed the United

States Attorney's office for the Central District of California.

This district is the most populous district in the nation with

over IS.5 million persons. The office is staffed with over 200

Assistant D.s. Attorneys (ADSAs) practicing in the United States

District Court and the Ninth Circuit Court of Appeals.

The United States Attorney's clients are all federal

agencies who have matters before the United States District Court

and the Court of Appeals. My principal responsibilities include

management and policy setting for this district; coordination

with the U.S. Department of Justice in Washington, D.C.; and,

most importantly, the oversight of the major criminal and civil

investigations and cases in the district. As the principal

federal law enforcement officer in this district, X have the

responsibility to coordinate -ha efforts of joint federal and

local law enforcement efforts in several anti-crime task forces

in the district.

September 1988 to July 1990:

Xn September, 1988, when X was appointed to the Los Angeles

Superior Court, X was assigned to the North-central District in

Burbaak. My assignment consisted of a direct calendar of all

civil matters within the jurisdiction of the Superior Court,

except for juvenile. The calendar Included family, probate and

civil matters.

From November, 1988, to July, 1990, X was assigned to the

Juvenile Dependency Department in Los Angeles Superior Court. My

calendar was a direct calendar consisting of detentions,

dispositions, six-month judicial reviews, guardianship hearings

and voluntary commitment hearings; all of which are civil in

nature. All matters concerned dependent minors of the court who

were victims of physical abuse, sexual abuse or abandonment.

Trials were adjudications of petitions and contested

dispositions, six-month reviews and guardianships, all of which

were tried to the court.
668

B«Dteinbar 1987 to SeofmbT 19881

In September, 1987, after my appointaent to the Loa Xngoles

Municipal Court, I was assigned to a criminal felony panel

division, hearing long-cause preliminary hearings which consisted

of a cross-section of tha more complex criminal filings. In

addition to tha preliminary hearings, Z handled all motions

brought by tha partiaa to tha hearings and I was tha primary

magistrate responsible for all arrest warrants and search

warrants submitted to tha Los Xngeles Municipal Court.

January 1986 to Baotaabar 1987;

Aftar my appointment in January, 198S, until September,

1987, Z sat in East Los Angeles Municipal Court. My calendar was

a diract calendar, consisting of mostly criminal casaa, which

iaeludad preliminary haariags, jury and court triala, pratrial

motions, arraignments, pleas, arrest warranta, search warrants,

as wall as restitution, divarsion and bail haarings. X alao

handled a asall number of civil casas, including pratrial

motions, jury trials and court triala in all araas within tha

civil jurisdiction of tha Municipal Court.

August 1983 to January 1986;

From August, 1983, to my appointment to tha banch, Z waa

engaged in a general civil and criminal litigation practice,

representing a ranga of clianta which includad public agencies,

corporations, small businesses and individuala. My specialties

ware in tha civil araa of employment dafansa and eommarcial fraud

dafansa.

April 1977 to August 1983;

From tha beginning of my legal career to 1983, I waa an

Assistant United statea Attorney in the Central District of

California in the Criminal Division, handling the investigation

and prosecution of federal criminal violations. My practice

conaiated of conducting grand jury investigations, case

disposition, jury and court trials, appellate practice, training

new attornaya and supervising senior attorneys.

17. (Cont'd.)

1. Did you appear in court frequently,

occasionally, or not at all? Xf the

frequency of your appearances in court

varied, describe each such variance, giving

dates.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;
669

(c) other courts.

What percentage of your litigation was:

(a) civil;

(b) criminal

r 4. State the number of cases in courts of record

1 you tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

5. What percentage of these trials was:

(a) jury;

(b) non-jury

since July, 1990, when I was appointed the United

States Attorney, Z have made very few court appearances. From

January, 1986, until July, 1990, I was a California State Court

judge and Z was in court daily.

My calendar in Los Angeles Superior Court from

September, 1988, to July, 1990, consisted of all civil matters

and, with the exception of one jury trial in the North-Central

I District, all hearings and trials were court trials, i presided

over approximately 50 full trials during this period.

i

My calendar in Los Angeles Municipal Court from

September, 1987, to September, 1988, consisted of all felony

preliminary hearings tried to the court.

My calendar in East Los Angeles Municipal Court from

January, 1986, to September, 1987, consisted of approximately 95%

criminal matters and 5% civil matters, and tbe trials over which

Z presided were approximately 85% jury and 15% court trials. The

approximate number of cases i tried during this period was 40.

Zn my private practice from mid-1983 to January 1986, z

appeared in court one to two times per month on law and motion

matters and tried three eases to verdict totaling approximately

twenty-two trial days. During that time, approximately 15% of my

court appearances were in federal court and 85% were in

California state courts of record. My practice was approximately

95% civil and 5% criminal. Two of my trials were court trials

and one was a jury trial.

My experience from 1977 to 1983 was exclusively as an

Assistant United States Attorney in the Criminal Division of the

United States Attorney's Office in the Central District of

California. My court experience during those years was extensive

and exclusively in federal court. My trials were approximately

95% jury and 5% court trials. Z tried to verdict approximately

20 trials as sole counsel or chief counsel.
670

In 1977 vben Z b«aaM an As»i»tant United States

Attorney, I began laaadiataly conducting hearing* on notions to

suppress and bail notions, writing and arguing appeals to the

Court of Appeals for the Ninth Circuit, and trying simpler felony

casas. At that time, Z Bad* at least two court appearances par

weak in addition to trials and appeals.

In 1978, Z entered the Complaints Unit of the United

States Attorney's Office for approximately eight months at which

time Z prepared cases for consideration and presentation to tbe

grand jury, presented oases to the grand jury, argued bail

motions in Magistrate courts, handled arraignments and supervised

the preparation of arrest warrants and search warrants.

From 1978 to 1980, Z was in the Major Crimes Unit of

the United States Attorney's Office where Z conducted grand jury

investigations; briefed and presented evidentiary hearings and

arguments on pretrial motions, revocations of probation and

modifications of bail in District Court; conducted major felony

trials in District Court; and briefed and argued appeals in the

United States Court of Appeals for the Ninth Circuit.

In my last two years as an Assistant United States

Attorney, 1981 to 1983, Z spent one year as the Assistant

Division Chief in charge of Training in which Z was responsible

for the training and direct supervision of eaoh new Assistant

United States Attorney in case development and strategy, trial

advocacy and appellate advocacy. As a result, all of my court

appearances during that year were accompanying a new attorney at

his or her trial. The other year 1 supervised senior attorneys

and appeared in court on the average of twice per week on

hearings, motions and trials.

18. Litigation: Describe the ten most significant

litigated natters which you personally handled. Give

the citations, if the cases were reported, and the

docket number and date if unreported. Give a capsule

summary of the substance of each case. Identify the

party or parties whom you represented; describe in

detail the nature of your participation in the

litigation and the final disposition of the case. Also

state as to each case:

(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.
671

Selectad casas X handled as a trial •ttornay ara as followst

1) Dnlfd Btatoa V. QTald L. KOQTa. CA 83-5037

Judges: Honorable Robert Takasugi in the Dnitad

States Diatrict Court,

Central Diatrict of California

Honorablaa Proctor Hug, Jr.,

Dorothy W. Kelson and William C. East*

In tha Dnitad Stataa Court of Appeals,

Ninth Circuit

•Banior Dnitad Stataa Diatrict Judga

for District of Oragon sitting by

daaignation.

Defense Counsel:

Mr. Piarca O'Donnall

Kaya, Scholar, Fiaraan, Baya t Bandlar

2121 Avenue of tha Stars

Los Angeles, California 90067

Talaphona: (310) 552-6400

Mr. Jaffray S. Gordon

Kaya, Scholar, Fierman, Haya C Handlar

2121 Avenue of tha Stars

Los Angeles, California 90067

Talaphona: (310) 552-6400

Rogers was charged with nine counts of mail fraud and

twanty-ona counts of aiding and abetting tha filing of false

income tax returns. Tha indictment charged that Rogers

deviaed a multi-million dollar tax ahalter fraud involving

the aale of ownership interests in motion pictures. The

salea were made to victima based on misrepresentations

regarding the nature of tha investment and tha resulting tax

advantages. The litigation consisted of a large number of

pretrial motions and evidentiary hearinga.

Tha Diatrict Court granted one of defendant'a motions

to dismiss baaed on a finding of government miaconduct. The

Diatrict Court'a finding of government miaconduct was baaed

upon the Internal Revenue agent's interview of an attorney

who had repreaented the defendant for a period of time

during the years alleged in the indictment.

The decision of the District Court waa appealed by the

United Stataa, and the Ninth Circuit Court of Appeals

reveraed the Diatrict Court1a ruling. Tha principal legal

issue raiaed on appeal was the atandard for dismissal of an

indictment based on government miaconduct. Tha holding was

significant at the time becauae it olarifiad the atandard in

a factual aetting commonly encountered in the inveatigation
672

wad prosacution of fraud cases. Tb« casa is raported at 751

r.2d 1074 (9th Cir. 1985). X reprasantad tha Unitafl States

at trial and on appeal.

2) Unitad Stafs v. William Z. McLaughlin, CA 79-1637

Judges: Honorable Lawrence T. Lydlek In tha

United states Distriot Court,

Central District of California

Honorables Anthony M. Kennedy,

Warren J. Ferguson and William A.

Morris in tha United States Court of Appeals,

Ninth Circuit

Defense counsel:

Mr. Ronald Von Wert (In U.S. District Court)

1301 Dove Street, Suite 900

Newport Beach, California 92660

Telephone: (714) 752-7964

Bon. William D. Keller

(In U.S. Court of Appeals)

United States District Court

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) S94-2659

McLaughlin was a major framing contractor in the home

building industry in Orange County. Be was charged with

eight counts of aiding and abetting the subscribing of a

false Income tax return. After six days of a jury trial,

McLaughlin was found guilty on all eight counts and

sentenced to one year in custody and fined.

McLaughlin appealed his conviction to the Ninth Circuit

Court of Appeals and his conviction was reversed. The case

is reported at 663 F.2d 949 (9th Cir. 19S1). On remand,

McLaughlin entered a plea of guilty. X bandied both the

trial and the appeal, representing the United States. There

were no particularly significant factual or legal issues at

trial or appeal. The significance of the ease lies

primarily in its effect on the construction industry in this

district, it had been alleged that an industry practice was

that contractora in the home building Industry paid certain

carpenters a wage higher than that mandated by the

collective bargaining agreements of the Carpenter's Union.

This "bonus" was paid in cash to circumvent the union

agreement and the Internal Revenue laws. The prosecution

had a substantial effect in changing this practice.
673

3) Dnlfd 8taf» v. Leonard P«ltlT. mt ml.. 1979

Judges: Honorable Lavrence T. Lydiok in the

nnited States District Court,

Central District of California

Honorablea Alfred T. Goodwin,

J. Elaine Anderson and Earl B. Gilliam*

in the United States Court of Appeals,

Ninth Circuit

•United States District Court Judge

for the Southern District of California

sitting by designation.

Defense counsel:

Professor Karen Smith

(in U.S. District Court)

Southwestern University of Law

675 South Westmoreland Avenue

Los Angelas, California 90005-3992

Telephone: (213) 738-6700

Bon. Rudolph A. Dial

(in U.S. District Court)

Municipal Court of Rio Hondo

11234 East valley Boulevard

El Monte, California 91731

Telephone: (818) 575-4103

Mr. Bruce Ellison (In U.S. District Court

and court of Appeals)

Law Office of Bruce Ellison

816 St. Joseph St.

Rapid city. South Dakota 57701

Telephone: (605) 348-9458

Leonard Peltier, Bobby Garcia and Rogue Duenas were

charged with conspiracy, escape and assault on a federal

officer, and Peltier was charged with being a convicted

felon in possession of a firearm. This indictment was based

on the armed escaped of three prisoners from the Federal

Correctional Institution at Lompoc, California.

The defendants raised coercion and necessity as a

defense. After five and one-half weeks of trial, Peltier

and Garcia were found guilty and the jury was unable to

agree on a verdict as to Duenas. The two convicted

defendants appealed their convictions to the Ninth Circuit

Court of Appeals and Duenas entered a plea of guilty.

The Ninth Circuit Court of Appeals reversed the

convictions of Peltier and Garcia by memorandum opinion.

The government filed a petition for rehearing which was
674

granted and the Court of Appeals withdrew it* memorandum

opinion. After rehearing, the Ninth Circuit Court of

Appeals affirmed the oonviotion of Peltier. The case is

reported at (93 F.2d 96 (9th Cir. 19S2) and 529 r.Supp. 549

(CD. cai. 1982). z represented the united States at trial

and on appeal.

It is noteworthy because the principal defendant was a

well known leader of the American Indian Movement (AIM).

Because of defendant Peltier's position, the trial received

a great deal of attention from members of AIM, political

commentators and the media. These dynamics resulted in

several Interesting peripheral issues such as security of

the courtroom, security of witnesses and the defendants, and

first amendment issues raised by the defendants as well as

demonstrators.

4) Dnited States v. Hector Rivera and Rene Bloch.

1979, CA NO. 81-1424

Judges: Honorable Laughlin E. Waters

in the United States District Court,

Central District of California

Bonorables J. Blaine Anderson,

Harry Fregerson and Dorothy W. Nelson

in the Dnited States Court of Appeals,

Ninth Circuit

Defense counsel:

Mr. Richard Walton (In U.S. District Court)

sso West First Street, suite 814

Los Angeles, California 90013-2458

Telephone: (213) 880-2404

Mr. John Meyers (In U.S. District Court and

Court of Appeals)

800 West First Street, Suite 814

Los Angeles, California 90012-2458

Telephone: (213) 680-2404

Bloch and Rivera, business agents of Local 47,

Musicians Union, were charged with conspiracy and six counts

of accepting payments of money in violation of the United

States Labor Code. After two weeks of jury trial, both

defendants were found guilty on all counts charged.

Defendants were sentenced and fined by the District Court.

The case is significant because it was one of the first

prosecutions under the criminal provisions of the United

States Labor Code.

Both defendants appealed their convictions to the

United states Court of Appeals for the Ninth Circuit and
675

th«ir convictions war* affined. Thm decision is reported

mt. C9C r.2d 1212 (9th Cir. 1983).

5) Clvde DicXerson v. Southern California Rapid

Transit District. Pnited Transportation Pnion

and Local. LASC Mo. c 308 919

Judge: Honorable Norman Dowds in the

Los Angeles Superior Court

Opposing counsel:

Ms. Yvonne Renfrew

1299 ocean Avenue, Suite 312

Santa Monica, California 90401

Telephone: (310) 395-4224

Dickerson filed a suit charging the Southern California

Rapid Transit District with employment discrimination based

on Title 7 of the Civil Rights Act, the Federal

Rehabilitation Act, and California anti-discrimination

statutes. I represented the defendant. Southern California

Rapid Transit District. This case is significant as

representative of employment discrimination matters which I

handled during my private practice.

After a four-day presentation before the Court of

plaintiff's case, defendants made motions for judgment

pursuant to C.C.P. S 631.8. The motions were granted.

6) James Kr""""* V. Southern California Rapid

Transit District. United Transportation Union

and the Local 1985

Judge: Honorable Stanley R. Malone, Jr.

in the Los Angeles Superior Court

opposing Counsel:

Douglas Del Tondo

Nelson, Sheehan, Del Tondo ( Guggenheim

12424 Wilshire Boulevard, Suite 1120

Los Angeles, California 90025

Telephone: (310) 207-8337

Xrumme sued the Southern California Rapid Transit

District for breach of its collective bargaining agreement

with the United Transportation Union and he sued the Union

and the Looal for breach of their duty of fair

representation. I represented the defendant. Southern

California Rapid Transit District. Fretrial motions were

argued and plaintiff's case-in-ehief was presented to a jury

over a period of ten court days. A motion for nonsuit was

made by defendants and granted by the Court. This ease is
676

significant «s representative of employment discrimination

matters which Z handled during my private practice.

Selected cases which Z heard as a judge are as follows:

1) People v. Lowe. Hu. Barrv. QAL Construction and

Panda Corporation. LASC No. C643162

Prosecutor: Deputy District Attorney

Jan Chatten-Brown

L.A. County District

Attorney's Office

320 West Temple street

Los Angeles, California 90012

Telephone: (213) 974-5903

Defense counsel:

William Driscoll

Drew, Driscoll fc Peterson

251 South LaXe Street

Pasadena, California 91101

Telephone: (818) 795-2801

Michael D. Kasatir

Masatir t Hirsch

2115 Main street

Santa Monica, California 90405

Telephone: (310) 399-3259

Mr. Michael Mayock

35 South Raymond

Pasadena, California 91105

Telephone: (818) 405-1465

Mr. Carl K. Osborna

Osborne s Eisenberg

1157 South Beverly Drive

Los Angeles, California 90035

Telephone: (310) 278-2345

H.O. Robert Pong

Xu and Pong

609 South Grand Avenue

Los Angeles, California 90017

Telephone: (213) 488-1400

The defendants were charged with involuntary

manslaughter, a violation of Penal Code S 192(b), and

violation of Labor Code § 6423(a). The complaint was based

upon the death of a construction worker on a building site

caused by a cave-in of an excavation alleged to have been

without reinforcement and in violation of the Labor Code.

Those charged were the owner of the property, the developer

of the project, the building contracting company and its

president, and the soil engineer who prepared the soil
677

analysis and report. Savaral aotiona wars bsard prior to

tha prsliainary hearing. The preliminary hearing lastsd

approximately tan court days.

This cass was significant inasmuch as tha Labor Coda

statute eraatas a striotar criminal liability for

individuals and antitiss encompassed within tha statute and

found in violation of tha statuta. Tha case was ona of

first impression and application of tha statuta in this case

hald tha dafandants to diffarant standards depending on

thair status in rslationship to tha Labor Coda. As a

rasult, tha soil anginaar, defendant Ru, who was charged

only with Involuntary manslaughter sines hs was not within

the umbrella of tha Labor Coda, was dismissed for

insufficlsnt avidanca to support a charge of manslaughter.

The remaining defendants wars hald to answsr on all charges.

2) Psopls v. Prattsr. at al.. LXSC No. A70S427, 1987

Prosscutor: Deputy District Attornsy

Joasph Charnay

L.A. County District Attorney's office

Environmental Crimes Dnit

320 West Temple Street

Los Angslss, California 90012

Tslsphons: (213) 974-5907

Defense Counsel:

Mr. Ronald A. ziff

11111 Wast Olympic Boulevard

Los Angeles, California 90064

Telephone: (310) 477-9064

Mr. Michael M. Plotkin

4219 Sherman Oaks Avenue

Sherman Oaks, California 91403

Telephone: (818) 501-5019

The dsfsndant and her corporation ware charged with

savaral counts of unlawful disposal of hasardous wastes,

violation of Realth and Safety Coda 5 25189.5. The

complaint alleged that tha defendants had recklessly

abandonsd various highly toxic chemicals at sitss opsn to

ths public.

Ths significance of this cass turnsd on ths tozioity of

ths hasardous wastes and the testimony of the experts. This

area of environmental prosecution was a nsw ona and there

was little guidance in the caselaw to determine whether a

substance was "hazardous" as contemplated in the statute.

The preliminary hearing lastsd approximately tan court

days and defendants wsre held to answer.
678

3) Vmonlm v. ttodrlau*«. at «1.. LABC Ho. Af«3SC«, 1988

Prosecutors: Deputy District Attornays

Curt Rat«lX and B11«B Burk*

L.A. County District Attorney's Offie*

isooo crininal courts Building

210 West Temple Street

Los Angolas, California 90012

Telephone: (213) 974-7454

Defense counsel;

Mr. Robert L. Shapiro

2121 Avenue of the Stars

Los Angeles, California 90067

Telephone: (310) 282-6255

Mr. Gerald V. Scotti

•383 Wilshire Boulevard

Beverly Bills, California 90211

Telephone: (310) 451-2822

Mr. Gerald H. Klausnsr

4676 Admiralty Way

Marina del Ray, California 90292

Telephone: (310) 821-4045

Mr. Gerald M. Cobb

8484 wilshire Boulevard

Beverly Hills, California 90211

Telephone: (310) 658-8977

Mr. Richard Caballero

280 South Beverly Drive

Beverly Hills, California 90212

Telephonei (310) 271-6241

Mr. Alvin S. Michaelaon

Michaelson t Levine

1901 Avenue of the Stars

Los Angeles, California 90067

Telephone: (310) 278-4984

Defendants were charged with conspiracy, possession,

and possession for sale of a controlled substance, to wit,

cocaine, violations of Penal Code S 182 and Health and

Safety Code SS 11350 and 11351. The defendants filed

•otions to suppress based on Fourth Amendment privacy

violations which war* the significant issues in the case.

The preliminary hearing and the •otions were heard over a

period of several weeks. Six of the seven defendants were

held to answer.

4) People v. Blake and Mational Titaniua Corp.. 1988
679

Proattcutor:

William carter

Asa't. Socratary of Law Enforeamant

California Environmental Protection Agency

555 Capitol Mall, Suite 525

Sacramento, California 95814

Telephone: (916) 445-3846

Defense Counsel:

Mr. Joel Moskowits

Oibson, Dunn 6 Crutcher

333 South Grand Avenue

Los Angeles, California 90071-3197

Telephone; (213) 229-7000

Mr. John Burns

Oibson, Dunn t Crutcher

2029 Century Park East

Los Angeles, California 90067-3026

Telephone: (310) 557-8056

The defendants ware charged with several counts of

unlawful disposal of hazardous waates, a violation of Health

and Safety Code s 25189.5. The complaint alleged that the

defendants had willfully disposed of highly toxic chemicals

to enter the sewer system.

The significance of this case rested on an issue raised

in defendant's motion to suppress turning on the expectation

of privacy of the defendant corporation of its enclosed

vorkyard. The motion to suppress was heard and denied.

The preliminary hearing lasted approximately five days and

defendants were held to answer.

5) People v. Marshall and Harris. LASC Mo. A954922, 1988

Prosecutor: Deputy District Attorney

John Krayniak

Los Angeles District Attorney's Office

210 west Temple Street

Los Angeles, California 90012

Telephone: (213) 974-3611

Defense Counsel:

Ms. Madelynn Kopple

528 Colorado Avenue

Santa Monica, California 90401-2408

Telephone: (310) 451-1486

Mr. John E. Meyers

880 West Pirst Street, Suite 614

Los Angeles, California 90012-2458

Telephone: (213) 680-2404
680

Tba defendants war* charged with nurder In the flrat

degree with special circuastances. The preliminary hearing

lasted four days and defendants war* hald to aaswar. The

significance of this case raata upon tha seriousness of the

charge rathar than any factual or lagal issues.

6) Simpson House Movers, at al. v. rine House

Movara. et al.. LASC Mo. MCC 3006S-B, 19S8

Plaintiffs' Counsel:

Williaa D. Pangburn

260 Maple Court, Suite 230

Ventura, California 93003

Telephone: (SOS) 656-1390

Defense Counsel:

Steven P.. Young

Cunnings t Young

•60 Mewport center Drive, Suite 750

Newport Beach, California 92660

Telephone: (714) 640-1822

The complaint alleged several causes of action of

breach of contract, conversion and fraud. The parties

waived jury and tried the case to the court. Pretrial

motions were filed and heard. The trial lasted

approximately eleven court days. Plaintiff prevailed and

was awarded damages.

This case has no particularly significant legal or

factual issues; however, it is representative of civil cases

I heard as a judge.

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal

natters that did not Involve litigation. Describe the

nature of your participation in this question, please

omit any information protected by the attorney-client

privilege (unless the privilege has waived.)

Z am presently tha Vice Chairman of tha Attorney

General's Advisory Committee and am involved in several of

its subcommittees. Together with other United States

Attorneys and officials of the Department of Justice,

national policy is set and implemented through this

committee and its subcommittees.

Chief Justice Malcolm Lucas appointed me to the

Judicial Council of California and Z served for the years

19 87 and 1988. The Council consisted of a small group of

judges from each of the four levels of the California

courts, two members of the California legislature and three

members of the bar of California. The Council studied
681

issues affecting tha court* and advisad tha Cbiaf Justice on

policy matters.

From 1986 to 1990, aftar my appointment as D.8.

Attorney, Z taught trial advocacy at Loyola Law School in

Los Angeles. In addition to imparting trial skills and

providing trial practica to tha atudants, tha class daalt

•ztanaivaly with tha law of avidanca and lagal athios.

Whan Z was in privata practica, I sarvad from 1983 to

1986 on tha Advisory Committee to tha Ninth Circuit Court of

Appeals on Rules and Procedures. Tha Committee, which

eonsistad of approximately twenty Circuit judges and members

of tha bar completely revised the Ninth Circuit's appellate

rules and procedures.
682

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncompleted contracts and other future benefits which you

expect to derive from previous business relationships,

professional services, firm memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

or business interest.

LOB Angelas County Trustee: The Holdan Group, Los Angeles,

California. When I left my position as Judga of the Los

Angelas Superior Court I kept ay deferred compensation

account and uy 401-X savings plan account intact and with

Los Angelas County's trustee. Since my resignation froa the

Los Angeles Superior Court in July, 1990, I have not

received further contributions to these funds nor have I any

arrangement with the County for any future compensation.

Federal Retirement Thrift Savings Plan. Since August, 1991,

I have participated in the above deferred income program.

When I resign from my present position, I will no longer be

eligible for the program and I do not anticipate making or

receiving any contributions to this account.

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.

Any potential conflict of interest will be handled on a

case by ease basis. The most common conflict which will

occur will be cases brought during my tenure as the United

States Attorney. In those cases the conflict will generally

be resolved by my recusal or a waiver of the potential

conflict by all parties. I do not anticipate any other

major conflicts; however, if ethers occur, they would be

handled in the same manner in conformance with the Coda 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.

Mo

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.
683

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, nay be substituted here.)

Fleas* see attached Financial Disclosure Report.

Please complete the attached financial net worth statement

in detail (Add schedules as called for).

See attached financial stateaent and schedules.

Have you ever held a position or played a role in a

political campaign? If so, please identify the particulars

of the campaign. Including the candidate, dates of the

campaign, your title and responsibilities.

MO.
684

FINANCIAL STArtMtNl

NET WORTH

Pronde • compltlt. cumnl financid nd mrtli tUlwncnl which Httntin In dcuil IK tuns (.nclud.oi fci-•

•tcounii. nal islali. Mcunlitt. Ifum. invcilmcnu. *nd slhir nnanciil heldin|t) all Kabililws Cxludinf at a:,

fnoni>|ts. loani. and olhar linancial obliialiona) ol yoantll. ysur tpom*, and whtr kntnadlata mambari c

your housthold.

ASSETS \ UABIUTIES

C*%* Wt tend and ((I b*n«j 1.000

•MM aanau u fc

•Mai Mr>tu » aBwn *

IMaaMlMBMaa

acKMlM

0

0 n

lM«d •—li tm Kfivdwi* 2.

?.noo

0

— n

n

0

0

PMHM 290.665

Pt.*!•mil O-T>K}—•dd •eh««u>« BOSS

0 n

20.000 0

C->i" vilut—lifa Iftiunncs o

o —

Deferred compensation 86.S8S

and IRA accounts —

TalaiaaHaiM

MMNI ^e.is;

Tvui •u«n i.O^.B ^_ Tsui CAWIIUM and *m worth I .058.877

CONTINGENT uAtiLmes eCNCiui MRxounaH

A* •n0e«««r, Ger«uh«r or flwramor

•N No.

An iw daftMart la aqr ariB ar

0 On IMMS or eontnra

Uf^l CU<mi 0

hnMH l«r r»«tnl Income TM u

Otner tpMlel Mt 1 0—^

"
685

Ll«fd Securities Schadule

American Telephone ( Telegraph Bond

Eastman Kodak Co. Bond

Franklin Custodian Fund

D.s. Government series

Government Securities Income

Fund GMKA Ser.

Teppoo Partners

Common Stock

Bankamerica Corp.

Bond

Chase Manhattan Corp.

Preferred Stock

General Motors

Preferred stock

Govt. Securities Income Fund

Occidental Petroleum Corp.

Common Stock

Pacific Telesis Group

Common Stock

Southern California Edison

Preferred Stock

American Home Products

Common Stock

Chase Manhattan Corp.

Preferred Stock

First Interstate Bancorp

General Motors Corp.

Household Finance Corp.

Bond

Security Pacific

TCW Convertible Securities Fund, Inc.

Value

$ 10,300

10,050

9,809

8,900

5,962

5,100

1,325

2,562

567

3,575

2,231

3,625

8,462

1,325

3,000

2,562

5,212

5,975

8,750

enlisted securities Schedule

Imperial Bancorp

Bend

$ 99,292

value

$ 2,000

Other Accounts Schedule

Los Angeles County

Deferred Compensation Plan

Los Angeles County

401(K) Savings Plan

Thrift Savings Plan

for Federal Employees

Bank of America

IRA Account

Western Federal Savings 6 Loan

IRA Account

$ 39,675

24,637

3,073

7,000

4,000
686

Alliuo* Capital Reserves •,200

Honey Market Account

$ 86,585

Real Estata Bchadul* Value

50% Interest in Residential $150,000

Rental at 4935 Marathon,

Los Angelas, CA

Personal residence at 700,000

631 V. June St.

Los Angelas, CA

$850,000

Real Eataf Mortoaaas Pavabla Bchadula BWlAHga

American Savings Bank $148,170

First mortgage holder on

personal residence

Bank of California Equity Line 6 6,5is

second mortgage holder en

personal residence

Coast Federal Savings t Loan 76,000

First mortgage on Marathon property

(50% interest)

$290,685
687

FINANCIAL DISCLOSURE REPORT ft!rfV

BAIRD, LOLRDES C.

C.S. AtterMW1! Office

312 N. Spring St.. Suitt 1200

Los Angele!.. CA 90012

4/3/92

fall- ar >*:---..-•

I'nlttd Scatts Attorney

» Nfswiei >»t.K

lait;«J *MMi riM.

:.'i/9i - 3/30'9:

, .- r> M otlica uaiaaa

1200 Cnictd States Courchou**

312 North Spring St.

• Us Angtles. CA 9001:

*Kftl* the NONE kw kr «Kk MCMM vtatv yw h^t ao raporttMe IMIIMHII ^pi « tef ^wfe

I. POSITIONS. iRcponini udrntfiul ooljr. MC pp 7-8 of Lasirumoai i

POSmON NAME OF ORGANgA-nON^P^TTy

a NONE it.

1/1^90-Prcstnt Inm*culac« Heart High School Bd. of Trus 1, LA, CA

1/1/90-6/1/90 Adjunct Proftnor Loyola Law School, LA, CA

II. AGREEMENTS. OUponui aimaati only, uc p. 8-9 of laurucuoM.)

DAIE PARTIES AWD TCRMS

nL. A. Councv:

Deferred compenietlon end 401K accounts. These accounts accrued during

ay employvent as a Judge Cor Los Angeles County. All contributions ceased

* upon ny resignation; however, the balances retiain in the indcp«nder.c and

widely diversified fund aanaged by Holden Croup, 11365 Olympic Blvd.,

Los Angeles^ CA 90064.

III. NON-INVESTMENT INCOME, (vuponteg i^uvUttai.

CAIE SQLTRCE AND TY?E

(Hoaorifto oojy)

I K | WOW (»•

t pp. 9-12 of lasnaioas.)

GROSS INCOMF

lyoon, ooc tpowc't)

r
:.•>< .f-HE *£?«'';

BAIRC. LOl»DgS C. 4/3/92

3rV3 qsEMEN-5 arc GIFTS - transportationJ^ging.J^eme^rr^

nESCRlPTlON

EXIMPT NO\f

V OTHER GIFTS (Imludn ibow w ipoun ••*

pKscmmoN

Sa rf.l5-l< <X IMTMto

VAUT

EXI -MPT NOSE .M r-et (•por'-Ml* I***

s_

s_

s_

$

VI LIABILITIES, o^k. ^jL'ttfL**^S^JT^tttS&SJS?*

• NONE m tvu

It Federal Knk

' V«n Nuyi. CA

nmcMmow VAiim COPF

il« liMllltlMl

No. Hollvyood. CA

Horcg.g* on lt«nt«l Prop.rty (}0I lnt.r.»t)_

Mort«w on Mon-»«nt«l Proi>«rtT

—— izmuvwkm izwuvsAm i-.s^LTSsa. -
689

FLNA.NC1AL DISCLOSURE REfORT (cooca)

•«•• it ii -.. .

BAIRD. LOURDES C. /3/9:

VI!. INVESTMENTS and TRUSTS -- income, value, transactions.

wd tepcodctii ctuld/ro. Mt pp l»-;" of lastrucuoaio

iljicludca thOM of •

.-.•:.*:• .!*;• «;.-..r«i,» BWWf Of

*i JJ¥fat lunt sMsra^ls of rafert-

.- , i*a4*:tMi. u4 apMM. - » ' • •

?.»=• *tSl* arw •••» MMt i i^n ff«a pxlM aL»c.a«-i». »;

•HT:

rJ-fi

«rM« ••,.• at •-: sf

... J SL, TTT"

IJ-fl

•

AB«rican T«l«phont &

Telegraph Bond

Eaccman Kndak Co. Bond

1 Franklin Custodian Fund

S. Cov*rnp<nc S«rl<s

4Govammant Sccurltla*

ncone Fund GNMA 5er.

1 Tappco Partners

Co^aon Stock

kBankaa«rlca Corp

las. TChase Kanhactan Corp.

*C«n«ral Motors

Preferred Stoc'< Oiv

'Cov't. 5«curlcl«a Incoac

luad. Piv- L

t)ccld«ntal Pecroleua Corp.

Cfi—B totfc

'taclfle talasls Cocaaon Stock Croup

Dlv.

ao. California Edison

£1^

^acrlcan Hoat Products

Cn—nn Stock

1Chas« Manhattan Corp.

PraUrrad Stock

Hfc

^irsc Interstate B«ncorp

• Sract CiY.

^neral Hotors Corp.

Slack CSS

"Kit

BtY.

ulenold Finance Corp.

tat.

•ecurlcy Pacific

OgWi Irnrli

'*CV Convtrtlbl« S«curltl«»

Piv-
690

BAIRD, LOURDES G.

VII. Investments and Trusts (Cont'd.)

Description

21. Central Hudson Gas

& Electric

Conunon Stock

22. Puget Sound Power

& Light Co.

Common Stock

23. International

Business Machines

Conunon Stock

B.

Income During

Reporting Period

Amount

A

Type

Div.

Div.

Div.

Gross Value

At End of Reporting

Period

Value Value Method

24. Bristol Myers

Squibb

Common Stock

A Div. J T

25. Glenfed, Inc.

Common Stock

A Div. J T

26. Ford Motor Co.

Preferred Stock

A Div. J T

27. Los Angeles County B

Deferred Compensation

Plan

Int. K T

28. Los Angeles County

401(K) Savings

B

Plan

Int. K T

29. Bank of America,

Civic Center Branch

Los Angeles, CA

IRA Account

A Int. J T

30. Western Federal

Savings & Loan

Los Angeles, CA

IRA Account

Int.
BAIRD, LOURDES G.

31. Alliance Capital B Int.

Reserves

Secaucus, NJ

Money Market Account

32. 50* Interest in D Rent

Residential Rental at

4935 Marathon

Los Angeles, CA
FT-ANClAL DISCLOSUR£ R£?ORT (ODBld)

8AIRD. LODXDES G.

VIII ADOITIONAL INFORMATION or EXPLANATIONS .\mttam *n •* a^-t.1

IX. CERTIFICATION.

la ooapliuci •>»> ite pnMUoai <K 21 use I «55 um of Atfvkocy Opuuoo Na 57 of tkf Advuoiy Commmm oa

iudkul Aamus. u« lo iM Mn o( •)> t>l»M|C « Ike liat Xlo raaouMc iaquqr, I dM •« pertorm ur ad|udmor>

funcuoa m uy bupuoo danai lAc penod oMrad br um repon ta wtoc* I. By ipo«*e, or By •feor or depcadew ckiMrca

aid i Uaaaoal lawnM, u diflaad la Caaoa 303)(c). la the OBUDB* of MCft ljupuoa.

I canily thai ilJ tatormatloa glva ibow (tadadiai latofmiuoa p—'-'•••| to By ipnf aad i

tl lay) u atrafait. trac aad miwpliM lo tha be»i of By kaootadfli aad bcttct lad thai aay 1

witabcld beaoac it nst appticaMa Mamocy pravfBoa permicuni ana-dtartnaaia.

I rankar centfy tkal aanad lanriBi taa —m aaplayBaat aad toaonila aad ltd mmfmak of jl/u atlca kaw taca

rtponad m la —|— auk tka prantoai of 3 US-OS. app. 7. | Ml al. aa*, 5 UJ.C I 71S) aad JadUal Coatonca

rcftdauoaa.

<, , ^jtuJLiL f^ ^»^^ ^v/^^"-^ ^/ /^fc^^a^ Daa Wffi

NOTE. ANY INDIVIDUAL WHO KNOWTNOLY AND WILFULLY FALSIFIES OH FAILS TO FILE THIS RETOKT

MAY SB SUWECT TO CIVIL AND CRIMINAL SANCTIONS (5 UiCA AFT. M 104, AND II UiC I 1001 i
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 dlsadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances

and the amount of time devoted to each.

Sine* X became a lawyer in 1976 Z have worked la a pro bono

capacity in the following areast

Continuing Legal Education Programs:

Practicing Law Institute

Civil Rico Programs, 19B4-1985

national Institute of Trial Advocacy, 1980-1986

American Bar Association

corporate Criminal Liability, 1991

State Bar of California

Federal sentencing, 1991-1992

Oniversity of Southern California

Federal Sentencing Guidelines, 1992

Tulane Law School

Corporate Law institute, 1992

Community Legal Education Programs:

Constitutional Rights Foundation

Lawyer-in-classroom program, 1979-I9ts

Junior and Senior High School

Mock Trial Program, 1979-1990

Marymount School, Los Angeles, CA

Lecturer on legal ethics

Immaculate Heart High School, Los Angeles, CA

Lecturer on legal ethics, 1979-1983

Community Volunteer Work:

Immaculate Heart High School, Los Angeles, CA

Board of Trustees, 1989 to present

Commencement speaker 1980 and 1990
694

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?

Vo.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

I have no personal knowledge of a selection eomaission;

however, I have been told that an advisory committee exists

for the purpose of recommending candidates for nomination to

the federal courts.

If so, did it recommend your nomination?

I believe so.

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).

In November I was contacted by Senator John Seymour's

office regarding my interest in appointment as a judge in

the U.S. District Court in the Central District. After an

interview with Senator Seymour's staff the Senator offered

to recommend me for nomination for appointment to the U.S.

District Court in this district. X accepted the Senator's

offer.

Later, I interviewed with staff at the D.S. Department

of Justice. I completed several application forms and

returned them to the Department of Justice.

Shortly thereafter I interviewed with an agent from ft*

Federal Bureau of Investigation and a member of the Standing

Committee on the Federal Judiciary of the American Bar

Association.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case,

issue, or question? If so, please explain fully.

Mo.
696

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 problemsolution 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.

Our Constitution defines three separate branches of

government, each with a distinct role. This framework works

best when each branch fulfills its role without infringing

upon the role of the other. A natural and healthy tension

exists among the three branches which is necessary to

achieve a proper balance and this tension functions as a

means to effectuate that balance.

Courts have a heavy responsibility to interpret the

lav, to decide the facts and to apply the law to the facts

in the ease before them. Court decisions often have

far-reaching consequences on government and society;

however, those "characteristics" of judicial activism

described above are generally not within the defined role of

the court. Courts were not meant to administer social

institutions, to solve all of the problems of society, nor

to mieromanage government or the legislature.
696

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (include any former naaes used).

Irma Elsa Gonzalez

Irma E. Dirst (former name used)

Irma Gonzalez Dirst (former name used)

Address: List current place of residence and offio

address(es).

7 30 Pomona Avenue (residence)

Coronado, CA 92118

Superior Court (office)

220 West Broadway

San Diego, CA 92101

Date and place of birth.

March 29, 1948, Palo Alto, California

Marital Status (include maiden name of wife, or husband'!

name). List spouse's occupation, employer's name and busiscs:

address(es).

Husband - Robert S. Brewer, Jr.

Attorney - Partner with the law firm of

McKenna & Cuneo

750 B Street, Ste. 2800

San Diego, CA 92101

Education; List each college and law school you h«i

attended, including dates of attendance, degrees received, i"-

dates degrees were granted.

Stephens College Sept., 1966 - May, 1967

Columbia, MO

Stanford University Sept., 1967 - June, 1970

Stanford, CA Bachelor of Arts Degree in

History, June 14, 1970

Aug., 1970 -

Juris Doctor

Tucson, AZ May 19, 1973

University of Arizona Aug., 1970 - May, 1973

School of Law Juris Doctor Degree,
697

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.

Sept., 1972 - May, 1973

(part time law clerk while

attending law school)

Dickorson, Butler & Rabb

673 E. River Rd., Ste. 169

Tucson, AZ 85704

Aug., 1973 - March, 1975 Law Clerk

William C. Frey (deceased)

U.S. District Judge

District of Arizona

Tucson, AZ

March, 1975 - May, 1979 Assistant U.S. Attorney

Criminal Division

U.S. Attorney's Office

District of Arizona

110 S. Church Ave., Ste. 8310

Tucson, AZ 85701

May, 1979 - Sept., 1979 Trial Attorney

Antitrust Division

U.S. Department of Justice

300 Los Angeles St.

Los Angeles, CA 90012

Sept., 1979 - Oct., 1981 Assistant U.S. Attorney

Criminal Division

U.S. Attorney's Office

Central District of California

312 N. Spring Street

Los Angeles, CA 90012

Dec, 1981 - March, 1984 Associate Attorney

Seltzer Caplan Wilkins & McMahon

750 B Street, Ste. 1900

San Diego, CA 92101

April, 1984 - Jan., 1991 U.S. Magistrate Judge

Southern District of California

U.S. Courthouse

94 0 Front Street

San Diego, CA 92101

Jan., 1991 - present Superior Court Judge

San Diego County

220 West Broadway

San Diego, dk 92101
Jan., 1992 - present Adjunct Professor

University of San Diego School

of Law

Alcala Park

San Diego, CA 92110

f. 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.

None.

10.

Bar Associations; List all bar associations, legal or

judicial-related committees or conferences of which you are or

have been a member and give the titles and dates of any

offices which you have held in such groups.

California Bar Association

San Diego County Bar Association

Arizona Bar Association

Pima County Bar Association

National Association of Women Judges

National Council of United States Magistrates

Lawyers' Club of San Diego

American Bar Association

California Judges Association

Thomas More Society, President 1990-1991

La Raza Lawyers

Education Committee, Ninth Circuit Judicial Conference,

1988-1990

Compensation & Retirement Committee, California Judges Assn. ,

September, 1991-present

Other Memberships; List all organizations to which you belong

that are active in lobbying before public bodies. Please list

all other organizations to which you belong.

California Judges Association

Other Organizations: Trustee, San Diego Museum of Man

President, Girl Scout Women's

Advisory Cabinet

American Inns of Court
699

XI. 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 State of Arizona 9/29/73

U.S. District Court for the District

of Arizona 10/1/73

Ninth Circuit Court of Appeals 3/3/75

Supreme Court of the State of California 5/30/80

U.S. District Court for the Central

District of California 6/16/80

U.S. District Court for the Southern

District of California 8/2/82

12. Published Writings; List the titles, publishers, and dates of

books, articles, reports, or other published material you have

written or edited. Please supply one copy of all published

material not readily available to the Committee. Also, please

supply a copy of all speeches by you on issues involving

constitutional law or legal policy. If there were press

reports about the speech, and they are readily available to

you, please supply them.

I have not written nor edited any published materials other

than two opinions.

I have never given a speech on constitutional law or legal

policy. One time I served on a panel which discussed the

history of women and the constitution.

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 January 20, 1992.

fiA_5«;i n - oi tt
700

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 April 10, 1984, to January 4, 1991, I was a United States

Magistrate Judge sitting in the Southern District of

California. I was appointed to that position by the judges of

the district court. The jurisdiction of a magistrate judge is

limited by Title 28 United States Code §636. Pursuant to -that

authority, I tried civil and criminal misdemeanor cases with

the consent of counsel. In addition, I arraigned defendants,

set bail and appointed counsel in criminal cases. I handled

a wide variety of non-dispositive motions and settlement

conferences in civil cases.

I am presently a Superior Court Judge sitting in San Diego

County, California. I was appointed by the Governor of

California, George Deukmejian, on January 4, 1991. The

Superior Court is a trial court of general jurisdiction. I am

presently assigned to a trial department. Approximately 95%

of the cases I have tried have been civil and 5% have been

criminal.

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) I have attached copies of ten of the most significant

opinions I have written. They are:

(a) Reavis v. Metropolitan Property and Liability

Insurance Co. and Metropolitan Life. This case is

reported at 117 F.R.D. 160 (S.D. Ca., 1987)

(b) In re Sealed Search Warrant For Cubic Corporation.

This case is reported at 1989 WL 16075 (S.D. Ca.)

(c) Joseph Fernando Balelo v. Campbell Industries, et

\ aK, Case No. 86-0044 IEG. (S.D. Ca.)

(d) In the Matter of the Extradition of Henrv Errol

/ Kinaswell. Case No. 86-5650-M. (S.D. Ca.)

(e) In the Matter of the Extradition of Jorae G.

Kraiselburd. Case No. 84-2644-M: (S.D. Ca.)
701

(f) United States of America v. Real Property Located

at 9930 Stevens Road. Santee. California. Case No.

88-1206 GT/IEG. (S.D. Ca.)

(g) United States of America v. One Residential

Prypertv Located at 936 Cornish Street. San Diego.

California. Case No. 85-1068 IEG. (S.D. Ca.)

(h) The Estate of George Augustus Bishop, et al. v.

Bechtel Power Corp.. Case No. CV 87-0814GT(IEG) and

Case No. CV 88-0997GT(IEG). (S.D. Ca.)

(i) United States of America v. Walker Bennett Monroe.

Case No. 89-0013-0X1. (S.D. Ca.)

(j) United States of America v. One Residential

Property Located at 11488 Alkaid Dr.. San Diego.

California, case No. 89-0373IEG. (S.D. Ca.)

(2) I am not aware of any appellate opinion where my

decisions were reversed or where my judgment was affirmed

with criticism of my substantive or procedural rulings.

(3) The only significant opinion I have written concerning

federal or state constitutional issues is In re Sealed

Search Warrant For Cubic Corporation. 1989 WL 16075

(S.D.Ca.), which is attached in response to Question

15(1) above.

16. Public Office; Stat* (chronologically) any public offleas you

have bald, other than judicial offices, including the tarns of

service and whether such positions ware elected or appointed.

State (chronologically) any unsuccessful candidacies for

elective public office.

I have never held a public office, other than a judicial

office. I have never been an unsuccessful candidate for

elective public office.

17. Legal Career;

a. Describe chronologically your law practice and experience

after graduation from law school including:

1. whether you served as clarX to a judge, and if so,

the name of the judge, the court, and the dates of

the period you were a clerk;
702

Aug., 1973 -

March, 1975 Law Clerk

William C. Frey (deceased)

U.S. District Judge

District of Arizona

Tucson, AZ 85701

2. whether you practiced alone, and if mo, the

addresses and dates;

No.

3. the dates, naaes and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of

your connection with each;

March, 1975 -

May, 1979: Assistant U.S. Attorney

Criminal Division

U.S. Attorney's Office

District of Arizona

110 S. Church Ave., Ste. 8310

Tucson, AZ 85701

Responsible for case filings, pre-trial hearings

and notions, grand jury investigations, trials and

writing and arguing appeals.

May, 1979 -

Sept., 1979: Trial Attorney

Antitrust Division

U.S. Department of Justice

300 Los Angeles St.

Los Angeles, CA 90012

Participated in investigation of bid-rigging by

construction firms during construction of several

nuclear plants.

Sept., 1981 -

Oct., 1981: Assistant U.S. Attorney

Criminal Division

U.S. Attorney's Office

Central District of California

312 N. Spring St.

Los Angeles, CA 90012

Responsible for case filings, pre-trial hearings

and motions, grand jury investigations, trials and

writing and arguing appeals.
703

Dec., 1981 -

March, 1984: Associate Attorney

Seltzer Caplan Wilkins & McMahon

750 B Street, Ste. 2200

San Diego, CA 92101

At the time I worked at Seltzer Caplan, I handled

predominately commercial litigation matters. There

were approximately 30 attorneys with the firm at

that time.

April, 1984 -

Jan., 1991: U.S. Magistrate Judge

Southern District of California

U.S. Courthouse

940 Front St.

San Diego, CA 92189

I arraigned thousands of defendants. 1 set bail

and appointed counsel in those cases. I tried both

civil and criminal (misdemeanor) cases, with the

consent of counsel. 1 also handled a wide variety

of non-dispositive motions and settlement

conferences in civil cases.

Jan., 1991 -

present: Superior Court Judge

San Diego County

220 West Broadway

San Diego, CA 92101

Superior Court is a court of general jurisdiction.

I am presently assigned to a trial department.

Approximately 95% of the cases I have tried have

been civil and 5% have been criminal trials.

b. 1. What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

From the time I graduated from law school until

March, 1975, I clerked for a district court judge.

I performed legal research and wrote bench

memoranda in civil cases. I assisted the judge in

researching jury instructions in criminal cases.

The general character of my practice from March,

1975, to October, 1981, was criminal law. As an

Assistant U.S. Attorney, I represented the United

States and handled a wide variety of criminal

cases, including bank fraud, mail fraud, bank

robbery, tax evasion and narcotics violations.

8
704

While in the anti-trust division, between May,

1979, to September, 1979, I participated in one

investigation of bid-rigging by construction firms

in bidding for the construction of nuclear plants.

While I was an associate attorney at Seltzer Caplan

Wilkins & McMahon, from December, 1981, to March,

1984, approximately 75% of my practice was devoted

to business litigation. The remainder involved

general litigation matters.

Since April 1984, I have been a judicial officer.

I have described my responsibilities in response to

Question 17a.

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialised.

My typical former clients while in private practice

Included real estate developers and builders

involved in disputes over construction defects; and

banks and large corporations involved in disputes

over commercial transactions. I also handled two

plaintiffs' personal injury cases, two antitrust

cases, and a palimony lawsuit. As an Assistant

United States Attorney, I represented the United

States in criminal cases.

1. Did you appear in court frequently, occasionally,

or not at all? if the frequency of your

appearances in court varied, describe each sucb

variance, giving dates.

I appeared in court frequently from March, 1975, to

October, 1981. During this time, I tried

approximately 20 cases and handled many pre-trial

motions. I appeared in court occasionally from

December, 1981, to April, 1984. During this time I

tried two civil trials and handled several motions.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

(a) From March, 1975, to October, 1981, 100%

of my appearances were in federal court.

From December, 1981, to March, 1984,

approximately 2% of my appearances were

in federal court.
705

(b) From December, 1981, to March, 1984, 98%

of my appearances were in state court.

(c) I have made no appearances in any other

courts.

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

(a) 1 handled no civil cases from March,

1975, to October, 1981. From December,

1981, to March, 1984, 100% of my

litigation was civil.

(b) From March, 1975, to October, 1981

(except May-September, 1979), 100% of my

litigation was criminal. I handled no

criminal cases from December, 1981, to

March, 1984.

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than settled),

indicating whether you were sole counsel, chief

counsel, or associate counsel.

I tried approximately 22 cases to verdict or

judgment in courts of record. I was chief counsel

in two cases, associate counsel in three cases and

sole counsel in all other cases.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

(a) 98% of these trials were jury

(b) 2% of these trials were non-jury

18. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the citations, if

the cases were reported, and the docket number and date if

unreported. Give a capsule summary of the substance of each

case. Identify the party or parties whom you represented;

describe in detail the nature of your participation in the

litigation and the final disposition of the case. Also state

as to each case:

10
706

(a) the date of representation;

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

judges before whoa 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) Stewart v. Amway Corp. & General Int. Industries. San

Diego Superior Court Case No. 475235 (1981) . (Date of

representation: 1981-1983.)

Co-counsel Gerald McMahon and I represented the plaintiff in

this personal injury lawsuit. Plaintiff, an elderly

gentleman, burned his foot on a thermal massage device (a

Polorator) manufactured by Gil and distributed by Amway.

Plaintiff sought damages under theories of strict liability

for a design defect, negligence and breach of warranty. In

addition to compensatory damages, plaintiff sought punitive

damages. I handled and coordinated all pre-trial discovery,

pre-trial motions and trial preparation. I conducted many

depositions in Ada, Michigan (Amway*s headquarters) .

This case is significant because through discovery, I learned

that Amway knew of the dangers (overheating) inherent in the

Polorator and that there had been accidents similar to that of

Mr. Stewart's before he brought this lawsuit. Gil was aware

of several safer design alternatives for the Polorator at the

time they manufactured the device. I firmly believe that a

jury would have awarded punitive damages if the case had been

brought to trial. However, the case settled shortly before

trial was scheduled to commence in late 1983. A substantial

settlement in favor of plaintiff was reached.

Settlement Judge:

Co-Counsel:

Opposing Counsel:

Honorable Gilbert Harelson

JAMS

401 B Street, Ste. 200

San Diego, CA 92101

(619) 236-1848

Gerald McMahon, Esq.

Seltzer Caplan WilJcins & McMahon

750 B Street, Ste. 2200

San Diego, CA 92101

(619) 685-3003

Michael T. Gibbs, Esq.

Gibbs, Eppsteiner & Stagg

1420 Kettner Blvd., 602

San Diego, CA 92101

(619) 234-1760

11
707

Ray J. Artiano, Esq.

Stutz, Gallagher & Artiano

401 West A Street, 15th Floor

San Diego, CA 92101-8298

(619) 232-3122

(2) Rhea v. Robert J. Casale. San Diego Superior Court Case

No. 498969 (1982). (Dates of representation: 1982-

1984.)

In this case I represented the defendant, Mr. Casale, who was

sued by plaintiff, a woman with whom he lived for

approximately seven years. Plaintiff sought a declaration

from the court that an oral agreement was entered into between

plaintiff and defendant whereby the parties agreed to live

together as an unmarried couple and thereafter combine their

efforts and earnings and share equally any property

accumulated during the relationship. Plaintiff also sought a

declaration from the court that the actions of the parties

gave rise to property and contract rights by implication. I

handled all pre-trial discovery, prepared and argued a summary

judgment motion and began to prepare for trial. Prior to

trial I was appointed a U.S. Magistrate. The case was tried

by Bonnie N. Reading of Seltzer Caplan Wilkins & McMahon

before the Honorable Franklin Orfield (now retired) in

November, 1984.

During trial the parties reached a stipulated judgment in

favor of defendant. This case is significant because the

legal issues were unique. The provisions of the Family Law

Act do not govern property rights of non-marital partners. At

the time there were few cases that had been brought under the

theory advanced in the case. In addition, it was a very

emotional case for both parties which focused on their private

lives and the lives of their three children.

Opposing Counsel: Thomas Ashworth, III

(subsequently appointed to the

Superior Court)

Superior Court

1501-55 Sixth Avenue

San Diego, CA 92101

(619) 557-2005

(3) County of San Diego v. Lafayette Steel Co.. dba Ocean

Systems Research. San Diego Superior Court Case No.

462635 (1980). (Dates of representation: 1979-1983.)

I represented the defendant in this lawsuit brought by the

County seeking recovery of unsecured delinquency taxes and

penalties on a vessel as personal property for the year 1978.

The defendant, an oceangoing vessel desigrfed for fishing and

12
708

oceanographic research, was home-ported in Alaska and was in

San Diego for nine months of 1978 undergoing repairs and

refurbishing. I handled all discovery, pre-trial preparation

and trial. The case was tried to the court in one day, June

28, 1983. The court entered judgment for plaintiff.

This case is significant because the County was able to tax a

vessel which had no connection to San Diego other than the

nine months it was in port. The defendant contended plaintiff

did not have sufficient jurisdiction over the vessel to assess

a tax because the vessel did not have a permanent situs within

San Diego. The sole reason for its being in San Diego was for

repairs and refurbishing.

Trial Judge: Honorable Ben W. Hanrick (Retired)

JAMS

401 B Street, Ste. 200

San Diego, CA 92101

(619) 236-1848

Opposing Counsel: Bruce W. Beach, Esq.

Jennings, Engstrand & Henrickson

501 W. Broadway, Ste. 1400

San Diego, CA 92101

(619) 557-7626

(4) Sorensen v. McMillan Construction Co.. Inc.. San Diego

Superior Court Case No. 472998 (1980). (Dates of

representation: 1980-1982.)

Co-Counsel Gerald McMahon and I represented plaintiffs, Mr.

and Mrs. Sorensen, in this lawsuit against McMillan, the

builder of their home. Plaintiffs alleged that cracks in the

concrete slabs and walls of their home were due to the

existence of compressible organic soil for which the defendant

should be strictly liable. Plaintiffs also claimed negligence

per se due to a violation of the County Code and breach of

warranty. I handled all pre-trial discovery which included

the depositions of engineers. I also prepared all written

memoranda including settlement conference briefs. The

plaintiffs received a substantial amount due to a settlement

reached prior to trial.

This case is significant because plaintiffs were able to

convince the defendant of the profound effect the

deterioration of their home had on their lives. More

importantly, the soil problem prevented plaintiffs from being

able to install a pool which was needed for their 7-year old

son who suffered from Duchenne Muscular Dystrophy.

13
709

Co-Counsel: Gerald HcMahon, Esq.

Seltzer Caplan Wilkins & McMahon

750 B Street, Ste. 2200

San Diego, CA 92101

(619) 685-3003

Opposing Counsel: John Lally, Esq.

Mr. Lally is no longer practicing law and I do not know

his whereabouts. His supervising attorney on the case

was:

Michael Edwards, Esq.

Edwards, White & Sooy

1615 Murray Canyon Road, Ste. 1000

San Diego, CA 92108

(619) 692-2020

(5) Standard Bank of Swaziland Limited v. Rov Black and

Anthony Black. San Diego Superior Court Case No. 501378

(1983). (Dates of representation: 1983-1986.)

I represented Plaintiff, Standard Bank of Swaziland, which

gave a line of credit to WVM, a corporation which distributed

American television programs in Africa. The defendants, Roy

and Anthony Black, were the principals of WVM and they

personally guaranteed repayment to plaintiff of all sums WVM

might owe to plaintiff. When the defendants failed to make

repayments under the terms of their guarantees after demand by

plaintiff, plaintiff filed a lawsuit in San Diego. The Blacks

were living in San Diego at the time. I obtained writs of

attachment on the Blacks' assets (residences and bank

accounts) pending trial of the matter. I handled all the

discovery and started preparing for trial. While the case was

pending, I was appointed a U.S. Magistrate. The case was

taken over by Dennis Wickham of Seltzer Caplan Wilkins &

McMahon. The case eventually settled on July 18, 1986, in

favor of plaintiff.

This was one of the most interesting cases I ever litigated.

I worked very closely with Peter Keyter, an attorney with

Standard Bank of Swaziland. Through Mr. Keyter I learned much

about Swaziland, an independent kingdom in South Africa.

Defendants contended that the loans by plaintiff were illegal

transactions because they violated the Rand restrictions under

the laws of Swaziland and South Africa.

Opposing Counsel: Jeffrey Isaacs, Esq.

Procopio, Cory, Hargreaves & Savitch

530 B Street, Ste. 1900

San Diego, CA 92101

(619) 238-1900 *

14
710

(6) United States v. Catarino Murillo. et al.. United States

District Court for the Central District of California,

Case No. CR 81-363(A) WPG (1981)

1 served as the government•s co-counsel. This case presented

the prosecution of a major Mexican heroin distribution

organization supervised in Los Angeles by Catarino Murillo.

The defendant was charged with conspiring to import, possess

and distribute large quantities of heroin as well as several

counts of tax evasion. Murillo was also charged with

supervising a continuing criminal heroin enterprise. This was

one of the first cases in the Central District of California

where the government successfully sought and obtained the

criminal forfeiture of a defendant's heroin wealth, including

a home, ranch, vehicles, jewelry and cash. This was also the

first case in which the Justice Department successfully

obtained records of a defendant's Mexican bank accounts in a

heroin trafficking/income tax evasion case. After a four week

trial, Murillo was convicted on all counts on October 14,

1981. On October 15, 1981, the jury returned special

forfeiture verdicts for all of Murillo's property listed in

the indictment.

In an unpublished opinion, the Ninth Circuit Court of Appeals

affirmed Murillo's conviction. The government appealed the

district court's order exempting certain property from the

jury's special forfeiture verdict under Title 21 USC §848.

The Ninth Circuit reversed the district court's order. The

case is reported at 709 F2d 1298 (9th Cir. 1983).

Trial Judge:

Co-Counsel:

Honorable William P. Gray

U.S. District Court

312 N. Spring Street

Los Angeles, CA 90012

(213) 894-5265

Layne Phillips, Esq.

(Former U.S. District Court Judge)

Irell & Manella

840 Newport Center Dr., Ste. 500

Newport Beach, CA 92660

(714) 760-0991

Opposing Counsel: Alvin Michaelson, Esq.

1901 Avenue of the Stars, Ste.

Los Angeles, CA 90067

(213) 272-1293

1708

15
711

(7) United States v. German Gomez. et al.. United States

District Court for the Central District of California,

Case No. CR 80-373MRP (1980).

1 served as the government's counsel. Six defendants were

charged with conspiracy to distribute cocaine and distribution

of one kilo of cocaine. One defendant was charged with

possession of a firearm. Three defendants pled guilty, one

defendant absconded and two defendants went to trial. During

the trial of this matter, the government presented evidence of

undercover negotiations with DEA agents which led up to the

final transaction. One of the defendants provided security

during the negotiations by being armed with a firearm. The

trial lasted four days and both defendants were convicted on

or about July 30, 1980. DEA agents arrested the defendant who

absconded approximately ten years later, when they learned he

was running a major cocaine organization.

Trial Judge: Honorable Marianna Pfaelzer

U.S. District Court

312 N. Spring Street

Los Angeles, CA 90012

(213) 894-7284

Opposing Counsel: Wayne McMillan, Esq.

462 South Marengo

Pasadena, CA 91101

(818) 796-5008

Samuel Jackson, Esq.

11400 W. Olympic, Ste. 600

Los Angeles, CA 90064

(310) 473-3100

(8) United States v. Walter Seifert & Jack Ehrlich. United

States District Court for the District of Arizona, Case

No. CR 78-318TUC(WCF) (1978).

I served as the government's chief counsel in this prosecution

In which two individuals were charged with 19 counts of

interstate transportation of property taken by fraud. The

defendants devised a scheme whereby they opened a camera

retail store. The defendants established credit by ordering

small amounts of camera equipment which they paid for in a

timely manner. Thereafter, they started ordering large

quantities of camera equipment on credit from wholesalers.

Defendants then would hire individuals to transport the

equipment to California for resale. The scheme, called a

"bust-out", resulted in a loss of over $100,000 to the camera

equipment wholesalers. I coordinated the investigation of the

case whereby we were able to track all shipments of the camera

equipment by interstate carriers to defendants' store in

16
712

Arizona. After six days of trial, both defendants were

convicted on March 14, 1979.

The case was later appealed. Co-counsel argued the appeal

because I had already moved to California. The Ninth Circuit

reversed the judgment of conviction of Seifert and affirmed

the judgment of conviction of Ehrlich. The opinion is

reported at 648 F2d 557 (9th Cir. 1980).

Trial Judge: Honorable James Fitzgerald

(Sitting as a visiting judge in

Tucson, Arizona)

U.S. District Court

District of Alaska (Anchorage)

(907) 271-5553

Co-Counsel: John G. Hawkins (deceased)

Tucson, AZ

Opposing Counsel: Richard Kirschner, Esg.

10850 Wilshire Blvd., Ste. 400

Los Angeles, CA 90024

(310) 474-6555

Philip Deitch, Esq.

10850 Wilshire Blvd., Ste. 400

Los Angeles, CA 90024

(310) 474-8891

(9) United States v. Billie Mac Jobe. et al.. United States

District Court for the District of Arizona, Case No. CR

78-042TUC{WCF) (1978).

I served as government co-counsel in this prosecution which

grew out of the failure of the Peoples Bank of Wilcox,

Arizona. The bank failed because of fraudulent transfers and

loans made by the owners and president of the bank. Using the

wire transfer system and connections in other banks, the

defendants created a $3,000,000 check kite through the bank's

correspondent accounts. Shortages were covered by falsely

documented straw loans without collateral. The bank was

closed by the FDIC and the on-site investigation by the FDIC

and the FBI took six months. This was the largest check

kiting scheme that had been investigated by the FBI at the

time. The main defendants, Jobe, Gary Guilford, and Kenneth

Brightwell pled guilty before trial. Three of five remaining

defendants were convicted after a two week trial which cocounsel tried in December, 1978.

I was co-counsel working with a team of up to three other

lawyers. The grand jury investigation lasted two years. I

traveled to Missouri and Kansas several 'times in order to

17
713

retrieve records and talk to witnesses,

practice was extensive.

Pre-trial motion

Trial Judge:

Co-Counsel;

Opposing Counsel:

William C. Prey (deceased)

U.S. District Court

Tucson, AZ

Daniel G. Knauss, Esq.

U.S. Attorney's Office

110 S. Church Ave., Ste. 8310

Tucson, AZ

(602) 670-6511

Bruce R. Heurlin, Esq.

One S. Church Ave., Ste. 2200

Tucson, AZ 85701-1621

(602) 628-4639

Edward S. Castoria, Esq.

6655 Lipmann Street

San Diego, CA 92122

(619) 535-9450

Bert Polls, Esq.

338 N. Granada Avenue

Tucson, AZ 85701

(602) 884-9911

Claque A. Van Slyke

Snell and Wilner

One S. Church

Citibank 1500

Tucson, AZ 85701-1612

(602) 882-1200

James A. Pein

Alpert, Fein & Hameroff

300 N. Main, Ste. 104

Tucson, AZ 85701-8287

(602) 792-4700

Janes Stuehrinqer

Waterfall, Economidis

5210 E. Williams Circle, Ste. 800

Tucson, AZ 85711-4473

(602) 790-5828

18
714

Benjamin W. Lazarow

Lazarow and Lazarow

25 E. University

Tucson, AZ 85705

(602) 623-5856

Lee A. Chagra (deceased)

El Paso, TX

(10) United States v. Sharon Marouez. et al.. United States

District Court for the District of Arizona, Case No. CR

75-120TUC(JAW) (1975).

I served as government counsel in this case where five

defendants were charged with violating the narcotics laws.

Among the charges were conspiracy to import and distribute

heroin and distribution of cocaine. In this case, five young

people devised a scheme to bring narcotics into the United

States from Mexico. Defendant Sharon Marquez, on several

occasions, would hide the narcotics on her body and then would

walk across the border with one or more of the other codefendants. I handled all trial preparation and the trial of

the case. The case was tried to a jury on May 13 and 14,

1975. All four of the defendants who went to trial were

convicted. The convictions in this case had a profound effect

on the families of the defendants. At least two of the

defendants were heroin addicts. The defendants committed the

crimes charged not only to make a profit, but to support their

own drug habits. The defendants were young and came from well

respected families in Tucson.

Trial Judge:

Opposing Counsel:

James A. Walsh (Retired)

U.S. District Judge

Tucson, AZ

Thomas Chandler, Esq.

Chandler, Fuller, Udall & Redhair

33 N. Stone, Ste. 1700

Tucson, AZ 85701

(602) 623-4353

Patrick J. Briggs, Esq.

1495 Pacific Highway, Ste. 201

San Diego, CA 92101

(619) 238-1015

Fredric F. Kay

Federal Public Defender

97 E. Congress, Ste. 130

Tucson, AZ 85701

(602) 670-6521

19
715

Robert L. Murray

(Disbarred, no longer practicing law)

Legal Activities; Describe the most significant legal

activities you have pursued, including significant litigation

which did not progress to trial or legal natters that did not

involve 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 a prosecutor, I participated in the investigation of two

significant criminal cases: United States of America v.

Billie MacJobe. et al, CR 78-042 TUC (WCF) and United States

of America v. Catarino Murillo. et al, CR 81-363(A) WPB (both

cases are referred to in response to Question No. 18 above.

The grand jury investigation in the Jobe case took two years

to complete. Thousands of documents were subpoenaed by the

grand jury and numerous witnesses appeared to testify before

the grand jury. I coordinated the entire investigation.

Eventually 16 people were indicted. As stated previously, the

principal defendants pleaded guilty before trial.

In the Murillo case, the grand jury investigation took more

than one year to complete. Again, many documents were

subpoenaed by the grand jury. Several convicted felons

testified before the grand jury. The entire drug case hinged

on the testimony of a convicted murderer. I spent months

debriefing him about his knowledge of the drug conspiracy.

All of these conversations were in Spanish. This cooperating

individual testified before the grand jury. As a result,

numerous individuals were indicted. All but the principal

defendant pleaded guilty before trial. At trial the jury

found Murillo guilty, largely due to the testimony of the

cooperating witness.

As a U.S. Magistrate Judge, I presided over the settlement

negotiations of hundreds of civil cases. I settled two

separate personal injury cases (product liability) against car

manufacturers in which each plaintiff obtained a settlement

well in excess of two million dollars. I also settled a

shareholders derivative lawsuit against the officers and

directors of a corporation. Violations of the 1933 and 1934

Securities and Exchange Acts were alleged. After months of

settlement negotiations with attorneys for insurance carriers,

the case settled for fifteen million dollars.

As a member of the Ninth Circuit Education Committee from 1988

to 1990, I participated in the planning of judicial

educational programs. I also participated in one of those

programs. Since 1985 I have participated in at least three

Continuing Education of the Bar programs for the State of

20
716

California.

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounta and dates of all anticipated receipts

from deferred income arrangements, stock, options, uncomplete:

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 bt

compensated in the future for any financial or business

interest.

I have no vested interest in my judge's retirement fund. I

have not been on the bench long enough for my retirement to

vest. However, 8% of my salary per month goes into a

retirement fund, when I leave service as a state court judge

I will roll over the amount withheld into an IRA.

2. Explain how you will resolve any potential conflict of

interest, including the procedure you will follow ia

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 soon as a case is assigned to me, I will attempt to leam

the identity of the parties and the attorneys. I have a

checklist of grounds for disqualification if it appears there

will be a conflict of interest. If the conflict is one that

cannot be waived by the parties and attorneys, then I will

disqualify myself automatically. Those situations would

include: my spouse or other relative appearing as a party,

attorney or witness in the case; my having served as a lawyer

in the case; my belief or another person's belief that I could

not be impartial; and my having a financial interest in a

party. If the conflict appears to be one that can be waived,

I would ask the parties and their attorneys if they wish to

waive the disqualification once I inform them of what I

perceive to be the conflict. I would not seek to induce a

waiver. A waiver must be in writing, signed by all parties

and their attorneys.

I do not believe there is any category of litigation which is

likely to present a conflict of interest. I have not

practiced law for almost eight years. There are also no

financial arrangements that are likely to present a conflict

of interest. However, I will follow the guidelines that are

set forth in the Code of Judicial Conduct.

21
717

3. Do you have any plans, couitaents, or agreements to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

I have an agreement with the University of San Diego School of

Law to be an Adjunct Professor of law for the Spring 1992

semester to co-teach a two-credit section in Lawyering Skills

II. I teach the course every other week and my compensation

will be a total of $750.00.

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.)

Attached is a completed copy of the Financial Disclosure

Report.

5. Please complete the attached financial net worth statement in

detail. (Add schedules as called for.)

Attached is a completed financial net worth statement and

schedules.

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign, your

title and responsibilities.

I have never held a position nor played a role in a political

campaign.

22
718

III. GENERAL (PDBLIC)

An ethical consideration under Canon 2 of the American Bax

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate is

serving the disadvantaged.1* Describe what you have done to

fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

As a prosecutor, I always felt that I was serving the

disadvantaged (victims of crime) by protecting them and fairly

convicting those accused of committing crimes. I served as ar

Assistant United States Attorney for six and one-half years.

As a judicial officer, I am precluded from engaging in the

practice of law. However, I have participated in serving the

disadvantaged by being a mentor for a hispanic law student

during 1990. I made myself available to give advice and

support to her during her first year of law school. At least

twice a year from 1987 to 1990, I spoke to ethnic minority

students at local grammar and junior high schools. All of

these students lived and attended schools in low-incose

neighborhoods. I spoke to the students about law as a career

and tried to answer any questions they had about the law. 1

continue to attempt to be a role model for ethnic minorities

and particularly young women by speaking to various groups

such as the Chicano Federation, La Raza Law Students and

California Women Lawyers. I am presently a member of the Girl

Scout Women's Advisory Cabinet. We promote Girl Scouting in

the San Diego Community, especially in low-income schools and

ne i ghborhoods.

The American Bar Association's Commentary to its Coda of

Judicial Conduct states that it is inappropriate for a judge

to hold membership in any organiiation that invidiously

discriminates on the basis of race, sex, or religion. Do you

currently belong, or have you belonged, to any organisation

which discriminates — through either formal membership

requirements or the practical implementation of membership

policies? If so, list, with dates of membership. What y:

have dons to try to change these policies?

No.

Is there a selection commission in your jurisdiction te

recommend candidates for nomination to the federal courts? It

so, did it recommend your nomination? Please describe your

experience in the entire judicial selection process, froa

beginning to end (including the circumstances which led to

your nomination and interviews in which you participated).

23
719

Yes. I believe I was one of three persons recommended to the

Senator by the selection commission. I completed an

application similar to the American Bar Association's Personal

Data Questionnaire and forwarded it to Mr. John Davies,

Chairperson of the selection commission of which I believe

there are five members. The commission conducted an

investigation of my legal qualifications by sending

questionnaires to or interviewing members of the bar.

Thereafter, I was interviewed by Mr. Davies. Following that

interview, I was interviewed by Mr. Floyd Farano, Legal

Counsel to Senator John Seymour. Approximately one month

after my interview with Mr. Farano, Senator Seymour called to

tell me that he was recommending me as a candidate for

nomination.

Subsequently, I was interviewed by representatives of the

Department of Justice, an FBI Agent and a member of the ABA

Standing Committee on the Federal Judiciary.

4. Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case, issue,

or question? If so, please explain fully.

No.

5. Please discuss your views on the following criticism involving

"judicial activism."

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;

24
720

d. A tendency by the judiciary toward loosenisg

jurisdictional requirements such as standing and

ripeness; and

a. A tandanoy by the judiciary to inpose itself upoa

other institutions in the Banner of an

administrator with continuing oversight

rasponsibilities.

A major feature upon which our republic is founded is the

separation of powers, which means that under Article I of the

Constitution the legislative powers are entrusted to Congress,

under Article II the executive power is entrusted to the

President and under Article III the elements of the judicial

power are set forth. These powers are very different in

nature, although the executive and legislative powers are

shared at times. The intended function of the federal courts

is to interpret the Constitution and the laws passed by

congress.

The controversy surrounding judicial activism stems froa

members of the federal judiciary who are perceived as having

reached beyond their authority to arrive at a certain

decision. The Constitution provides that all of those given

the authority to make policy or laws are directly accountable

to the people through regular elections. Federal judges,

however, are given life tenure precisely so that they will not

be accountable to the people. If judges are to perform their

vital role, unelected and unaccountable, judges must consider

themselves bound by law that is independent of their own views

of what a desirable result may be. Judges cannot act as super

legislators. Legislators who are duly elected are better

equipped with their committees and their hearings to make

decisions deemed best for society.

Judicial activists, in my opinion, are also those judges who

do not respect precedent. Precedent requires simply that a

judge follow prior case law in deciding legal questions.

Respect for precedent promotes predictability and uniformity.

Through its application citizens can have a better

understanding of the law and act accordingly.

In summary, it is not the function of the federal district

judge to search for an innovative interpretation of the law

that invades the provinces of the executive and legislative

functions of the government or to expand precedent, whether it

is done in furtherance of "conservative" or "liberal"

philosophies. The Constitution did not place the

responsibility for solving social and political problems in

the hands of the Courts.

25
721

FINANCIAL DISCLOSURE REPORT 1

••port laqulrsd by tk* itnic.

- .ft.r. hex. of 1M«. f*M. t. •».

is U.J.C.A. xpv *. ••m-mi

XMZALEZ. IRMA E. U.S. District Court

1. D»l« Of 1

4/9/92

«. THI. |krtt«l* Krtlcl* lit t ]iJMO^H Isdlral* •rtl*« or

•••lor ii^ta*; na^iatjata imtama ladle. r»li- or part-tM)

laltl.l

t> 4/3/92

U.S. District Judge

1/1/91 - 4/8/92

• or Of fie* Mdtoo*

940 Front Street

S«n Diego, California 921S9

IMPORTANT NOTKS: 77le intfrucoort/ tcecmpafiying this farm must bt folkmed. Coetplctc all parts,

e NONE beat for cadi wctloa wksn yoo ha« no rtporubie Mtafartom. Sifin OR fax pujpe.

POSITIONS. (Reponiog tDdtvldul only, see pp. 7-S of Insiruciioos.)

POSITION NAME OF ORGANIZATlON/ENTTry

Zl NONE ,.,.

TRUSTEE San DigRQ MuseuK of Han

I. AGREEMENTS. (Rcponisi mdivxliuJ onlr. set p g-9 of [nuraoion.)

PATE PARTIES AMD TCRMS

Tj NONE \mo [•por'jbla aqliMinlal

ri. NON-INVESTMENT INCOME. (Reporting individual and ipousc. see pp. 9-12 of lostnciioos.)

Zl

DATE

(Homnaru only)

SOURCE AND TYPE

NONK (Mo raperukl* Ma-lai

State of California-Superior Court Judge-Salary

County of San Diego-Judges' Executive Auto Allowance

Coapensat ion tor

University of San Diego- Adjunct Professor

Honorafia-Callt• Continuing Education of the Bar

(S) Employee of Law Fim of McKenna 4 Cuneo - Salary

GROSS INCOME

(youfs. not spouse's)

S 124.121.00

S 2,010.00

$ 750.00

S 149.00

S
722

FINANCIAL DISCLOSURE REPORT (ann'il)

IHMA E. GONZALEZ

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment

' m to spcuu •nd fcuui^uil cUUnn; utt tk< pMnrtliHlrah '(S)' ud '(DC)* to liHiili

nls mod (ifU naH bjr (poyae an) «l|il«<ldl ckUdra, illflrtlitlj. See f^ll-15 •< I

D

SOURCE

NONE (Bo siKk r>porv*bl- tsll

EXEMPT

UtSCRlPTION

»i« or final

V. OTHER GIFTS, (toctode* ibom y> ttmm ud

lodkalc other Rifts received by tpousc Slid

children; MC the pftnatbctkab '(S)* ud *(I>0'

il childrtn, ropctlively. See pp.15-14 of 1

•

SOURCE

NONE (Bo (Lit rcpodBbl* «lttB)

EXEMPT

DESOUFnON VALUE

VI. LIABILITIES. (ladodcs IbMC of ipoajc aad Atpendcnl chlldiro; lodkau when

r br aslnc tbc Mnathctka] '(S)* tor ifuiau lUMUtv of ipoosc, *(J)' •.___-

nl •pouM, and'(DC)* tor ItoMliqr or . dtptodtnl child. S~ pji.11-18 oTlmnKltau.)

NONE l»i raforUbl* llaftllltlM)

(S) Groat Western Bank

P.O. Box 1900, Northridgo. CA

•

DESCRTFTION

ippOfMf. Dcnou mpoaBAlB

wjoint UsMUtj of ii|iiiiHi

VALUE CODE*

1st Trust Deed on Rental Property

(Asset No. 12 in Section VII)

3 tirst California Bank 1st Trust Deed on 22 acres

350 West C St., San DleRo, CA 92101 (Asset Wo. 14 in Section VIII
723

FINANCIAL DISCLOSURE REPORT (cuoi'd)

«•»• of raraon tteportlag

IRMA E. GONZALEZ

l"l* Of lia[

4/9/92

VII. INVESTMENTS and TRUSTS - income, value, transactions.

•nd fependent children; sec pp. 1R.27 of InstructlMU.)

(locludcs those of ipoosc

liTimvibirtor iWpi«li-i cilli.

riaoa -ilf .(lar Moh a***!

•WWH tx«a prloc 4L*cl«w«r*.

C. MOM V.lM •I M. or

EXEMPT

ID

is;

(ai

'ST:

lit ,4- It Mtt waavt tnm dl«c)<»i»r«

I.I

SI

NONE (M> r.port-bl1 cruM«laMi

i Cabrillo Federal Credit Un

380 Front St..San Diego, CA. A Int. J T

J IRA-Home Federal Savings

7th & Broadway, San Diego, Ci B Int. K T

Mutual Fund-Dreyfus3dCentur)

P.O. Box 105.Newark, N.J. A Dlv. J T

*1RA-Janus Venture Fund, Inc

PO Box 173372. Denver. CO. A Dlv. J T

4 BTKT Growth Fund

1665 Charleston Rd ^tnView.C) B Dlv. K I

Mutual Flnd-Dreyfus3dCenturi

PO Box 105, Newark, N.J. A Dlv. K T

financial Funds, Health

7800 E. Union Ave,Denver,CO. A Dlv. K T

• Founders Specifll Fund

P0 Box 419638 Kansas City.MO A Dlv. K T

» tounders Bluechip

PC Box 419638 Kansas City,MO A Dlv. K T

lor.Kowe Price New America

Growth Fund

1UU h. Fratt Street 1st Fl.

Baltimore.MD 21202 A Dlv. K T

iliateco Growth Fund

Safeco Plaza. Seattle, UA. A Dlv. K T

U Rental Residence. lUIU

ladera Rosa Uy.San Diego.CA A Rent H V

»J Petro-Tieg Lnergy Partners

4275 Exec.Sq.. Suit* 320

La Jolia. CA {UA.

partner in oil drilling) A Dlv. 1 T

t

1

! ^nd Irust Deed on 2/ acres

of vacant land .Highland Rd.

Poway, California C Int. L 1

li Mutual Fund - Dreyfus

3rd Century

P.O. Box 105

Newark, New Jersey A Dlv. J T

•

1

iMOM/CAin codMi ft-si.ooo or !••• >-ii.ooi u 32,500 c-S2,soi to »,ooo o-sa.oot to sn.ooo

-1i*f- fol, HI i t>4| f-HS.OOl to SiO.OOO F-SiO.OOl to 1100.000 OS100.001 to 11.000.000 B-ftor* UM* 11.000.000 :^reoWr —J4»:PM « l~i —^I»:MI ^ ha.tM v-m:toi •«. ji6i;Mi • • £?fH^srU"t9io:»o

ilUUIUlSI'UUi S-ipp?irii'i" * "" M^-lrLfm^iXi^u l-.:...',..]^.,.;

(taa cal. C3j vaook VftlM v-otb.r WBaUMUd i
724

FINANCIAL DISCLOSURE REPORT (CMld)

•aaa of r*faaA IMpcrtloq

IRHA E. GONZALEZ */9/92

VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (ta«=« f-i- R^«t.)

n For Asset No. 12 (rental residence) value is approxioacely 135,000 based on

co«parable sales.

2) For Asset No. 14 (22 acres of vacant land) property was purchased In Noveaber 1985

for >225,00O. The land was sold In August 1989 for 250,000. Spouse took back

a second trust deed and still owes on the st trust deed.

IX. CERTIFICATION.

In coDipliance with the provisions of 28 US C. fi 455 and of Advisory Opinion No. 57 of i be Advisory Q imimMnM. m

JUIIKXII Activiiies, and to the besi of my knowledge at ibe (iste after reasonable inquiry, I did not perform any adjvdicaian

function in any liiigation during the period covered by this report in which I, my spouse, or my minor or c

had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigatkm.

I certify that all infonnaiiou given above (including information pertaining to my spouse and minor or

if any) a accurate, true, and complete to the best of my knowledge and belief, and that any isfonnaikxi not

withheld because it met applicable statutory provisions pcnniiimg noo-discknure.

1 further certify that earned income from outside employmcnl and booonria and the acceptance of gifts wtucb km tea

reported arc in compliance with the provisions of 5 U.S.CA. app. 7. f 501 et. seq., 5 US.C ft 7353 and Judicial Coafcrace

regulations.

Sim.u,. dZm*. i jtkrttf&i^ v~£pvU fPfMj>.

NOTE: ANY INDIVIDUAL WHO KNOWINOW AN^WtLFUU-Y FALSIFIES OR FAILS TO FILE THIS REFOKT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6. S 1W, AND 18 U5.C i 1001.)

RLINO INSTRUCTIONS:

Mail iignol orifinal •nd 3 Mldilioiial copia to; Judicial Eihla Canmiim

Admiaismtive OOkc of ibe

Untied Suus Courts

WutiiDglon, DC 20544
725

FINANCIAL STATEMENT

(NET WORTH)

ASSETS UABIUTIES

Cash (in Banks) 3,700. 00 Notes Payable to Banks

(Secund)

24^.200. 00

Penanal

Retirement Accounts

ORA. KeoeW

|25,ooc. 00

Notes Payable to Banks

(Unsecured) 0

Stocks/Bonds ^ Notes Payabfe/CMiers ^_

Nota Receivable

(Doubtful)

E35,ooo. 00 Accounts/Bills Due ISoo. 00

Autos (3) 22.0°°. 00 Taxes Payable 40,000, 00

Household Goods

(Est.)

30,000. 00 Real Estate Payable

(Schedule A)

Aliooo. 00

Real Estate Owned

(ScteluleA) 775,000. 00

Chattel Mongafe/Othcr

Liens Payable

^00. OO

Real Estate Receivable

(Rent) 2.000 00

Other Drt>ts: 0

Mutual Funds (Schedule B) 1+2 .T O

0

-

00 BoM Lou "21,000. 00

Cash Value/Life Ins. 3,«*>o. 00

Other Asseu:

Boat '80,

000 00

Money Maiicet Funds

IS.ooo 00

QTlMT S«oum< fvuB 37.000 00 TOTAL UABDJrrY 2tS,5oo. 00

NET WORTH 8l3,1oo. 00

TOTAL ASSETS (,4T»J4oo .00

TOTAL LIABnJTY/^

NET WORTH l,tn,4oo .00

1. Assets Pledged:

2. Legal Actions (Pending):

3. Bankruptcy (Ever):

jJotie

"Sevcft"
726

FINANCIAL STATEMENT

INETWORTHJ

SCHEDULE A - REAL ESTATE OWNED

AQCKESS

1. 730 Pomona Avenue

Coronado, CA

HEE

Home

2. 11418 Madera Rosa Way Rental

San Diego, CA

ESTIMATED VALUE AMOUNT OWED MQKTGAGEE

fooooo.

I7S,0OO.

3')0,ooo.

tl.ooo.

Valley Fedetal

Savings

Great Wesen)

Savings

YALIZE

SCHEDULE B - MUTUAL FUNDS OWNED

FUND

1. Dreyfuss Thin) Century

2. Financial Fund - Health

3. Founders Special

4. Nicholas II

5. T. R. Price New America

6. SAFECO Growth

20. OOP. OO

Z^.Soo. OO

2?. OOP, oo

334oo. oo

3 i oo. oo

2y, 700.0°

TOTAL 14-2.7oo.oo
727

1. Full Name:

Rudolph Thomas Randa.

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

Office Address: Circuit Court - Branch 10

Milwaukee County Safety Building

821 West State Street - Rm. 324

Milwaukee, Wl 53233

Home Address: 2707 East Ednewood Avenue

Milwiikee. Wl 53211

3. Date and Place of Birth:

Juh 25. 1940 - Milwaukee. Wisamsin.

4. Marital Status: (Include maiden name of wife, or husband's name.) List spouse's

occupation, employer's name and business address(es).

Married.

Wife '.v maiden name: Melinda N. Matera

Wife's occupation: Psychiatric Social Worker and Co-Director of

Adoption Choice. Inc.

815 N. Cass Street

Milwaukee. Wl 53202
728

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

Vniversiry of Wisconsin-Milwaukee. 1958-1963

Bachelor of Science Degree, Polirical Science-Major;

History-Minor; Russian Language (4 credits short of

a minor).

University of Wisconsin Law School. 1963-1966

Juris Doctorate Degree

Employment Record: List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and organizations,

non-profit or otherwise, including firms, with which you were connected as an

officer, director, partner, proprietor, or employee since graduation from college.

1966 - 1967 Sole Practitioner

1967 • 1969 U.S. Army

1970 - I97.'i City Attorney's Office

City of Milwaukee

197$ • 197'/ Mimiapal JuJfic

City of Milwaukee

1979 • I9SI Circuit Court /mlgf

Coiiniy of Milwaukee

I9SI • I9S: Court ofAppeals Judge

County of Milwaukee

District One

1982 • Pu-sent Circuit Court Judge

Court ofAppeals Judge

Milwaukee County and

District 4 Court ofAppeals
729

1990 - Present Board ofDirectors, UWM Alumni Association

1979 - Present Board of Directors. Wisconsin Impact, Inc.

1979 - 1985 Board ofDirectors, Thomas More Society

1990 - 1991 Board ofDirectors. Child Abuse Prevention Fund

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.

Commissioned 2tid Lt. 1963. U.S. Army

1963 - 1967 Inactive Resene. 1st Ll.

1967- 1969 Active Ditty. Captain. Company Commander, Vietnam

fBronzc Star, VCM. 5 Campaign Stars. NDSM. VSM)

1969 - 1975 U.S. Army Resene. 84th Div.

1976 Homiruhlc Discharve

Si-rial .\iimh<-r: 391-40-4789

Honors and Awards: List an\ scholarships, fellowships, honorary degrees, and

honoran. sociei> memberships thai you believe would be of interest to the

Commission.

Phi Alpha Thcw. Saiional Honorary History Society.
730

9. Bar Associations: List all bar associations, legal or judicial related committees or

conferences of which you are or have been a member and give the titles and dates of

any offices which you have held in such groups.

Wisconsin and Milwaukee Bar Associations;

Milwaukee Bar Association Bench and Bar Committee;

Appellate Court;

Wisconsin Association of Trial Judges;

Wisconsin Association of Trial Judges. State Criminal

Law Section;

Vie Publications Committee ofthe Appellate Court;

The Slate Municipal Judges Association;

Milwaukee Young Lawyers Association.

I did not hold any title as such in any ofthese organizations or groups.

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 Before Public Bodies:

Voliinrun AssociaiiiHi of Trial Judges

American Legion. Cndwonh POM

Veierans ol Foreign War\

BiHinl ol Dim ion. UWM Alumni Association

Botml II/ Direaors. Child Abuse Prevention Fund

Trustee. Ronald McDonald HOUM'

Former President ami Board of Directors. Thomas More Society

Board of Directors. Wisconsin Impact. Inc.

Mihwukee County Historical Society

Phi Alpha Delta Alumni Association

St. Jude League

Milwaukee Society. PNA

St. Robert's Church

Jewish Communin Center

Court Admission: List all courts in which you have been admitted to practice, with
731

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.

Wisconsin Circuit Courts - August 1966.

Wisconsin Supreme Court - August 1966.

Federal Courts, Eastern and Western Districts - August 1966.

U.S. 7th Circuit Court ofAppeals - March 1972.

United States Supreme Court - May 1973.

12. Published Wrilings: List the titles, publishers, and dates of books, articles, reports,

or other published material you have written or edited. Please supply copies of all

published material not readily available to the Commission. 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.

/ have niven many tpeetlm durinfi the amrse ofmy 17 years on the bench (including

those given in at leosi three eontesred campaigns) relative to the Courts and the

Criminal Justice System hw do not have copies thereof. Some of these were

commemeil on in the press hm these reports are not readily available.

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

examination.

Excellent. January 3. 1992.

£/\_oci r\
732

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.

August 1982 to Present: Judge, Milwaukee County Circuit Court and Wisconsin

Court ofAppeals.

I was appointed to the Circuit Court in August of 1S>82 and elected in April

of 1983 after having served a year on the Court ofAppeals. During the yean

1985 and 1986. 1 was asked by the Chief Justice of the Supreme Court.

Nathan Heffeman, to sit at various times on the Fourth District Court of

Appeals in Madison to assist with a case backlog there. This was in addition

to my Trial Court duties.

Thefirst year during this period. 1 handled criminal/felony cases. The next

6 years on the Circuit Court 1 handled civil as opposed to criminal cases. 1

also handled criminal cases in addition to my civil calendar because of an

overload in the Criminal Division. The last nvo years 1 have been handling

criminal(felony cases.

While sittitif; on the Court ofAppeals. 1 handled all types of cases: Probate.

Family. Civil. Criminal and Juvenile.

The Circuit Conn is ci court ofgeneral jurisdiction and Milwaukee County is

the geographical area.

The Finirth District Court of Appeals handles all appeals from the Fourth

District Trial Conns, hut its published rulings have statewide application.

Anunst I9SI in Aimiist 1982: During this period of time I served as an Appellate

Conn Judge on the Wisconsin Conn ofAppeals for the First District. I was

uppointeil hy Governor Lee Dreyfiis and remained on this Counfor one year.

This Court is responsible, as indicated in the aforesaid response, for handling

all appeals from the Trial Coun level and its published opinions have

statewide precedential effect. The Coun handles every type of case. While

I sat on the Coun. the number of criminal appeals ran at 26 percent ofthe

case load and the civil appeals made up 74 percent.

1979 to 1981 - During this period of my judicial service I served on the Milwaukee

Counts Circuit Coun and was assigned to the Criminal Division. Jurisdiction

extended to the First Judicial District, which is Milwaukee County. I was

elected to this position in 1979 and left after being appointed to the Wisconsin

Coun ofAppeals.
1975 ro 1979 - During this period oftime 1 served on the Milwaukee Municipal Court

and this Court'sjurisdiction extended to the City of Milwaukee and involved

the resolution of violations of any City of Milwaukee Municipal Ordinance.

I was elected to this position in April of 1975.

15. Chatktns: If you are or have been a judge, provide: (a) Citations for the ten most

significant opinions you have written; (b) 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 (c)

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.

(a) Citations for the ten most significant opinions you have written:

1. M. Bnce and Associates. Inc.. vs. Gladstone and Harlev Davidson

Motor Compam. 107 Wis.2d 241.

2. Staw vs. Amisws. 107 Wis.2d 270.

.'. Bnmcr vs. Hops. 105 Wis.2d 615.

4. Mad vs. Sum- Fum Fin- and Casualn. 105 Wis.2d 710.

5. Hommm and Aetna Casualn Company vs. Otis Erectiiif. et.al.. 108

Ws.2d 456.

6. Milwaukee Coimmwirv Service Board vs. Athans/Haskins. 107 Ws.2d

35.

Sfiynt yf. Hfccoaaa Chapifr rtDtlia Vpiilon. 125 wis.2d 107.

8. Circuit Court Case No. 568-117. Cobb vs. Reblin. Upheld by the

Wisconsin Court ofAppeals at 84-2334.
734

9. Slate Farm n. Kellx. et.al.. Orcuii Court Case No. 651-463. 132

Wis.2d 187.

10. Brinon vs. State Depanment of Transportation. 123 Wis.2d 226.

(b) A short summary of and citations for all appellate opinions where your

decisions were reversed or where yourjudgment was affirmed with significani

criticism of your substantive or procedural rulings:

Pahst Brewing Compam \s. Citx ofMilwaukee and Wisconsin Department of

Revenue. 125 Wis.2d 437.

Tliis action inwhed the issue of whether or not a tax exemption Stature was

to he applied against certain structures owned by the Pabst Brewing Company.

These structures uw barley bins, malt houses, head houses, etc. As the trial

Judge. I ruled that the structures in question did qualify for exemption from

the property tax under the Statute. This portion ofmy ruling was upheld, but

that portion of my riding that extended the exemption to the years outside the

set of focis stipulated to by the parties, was overturned.

Centun Shoppinv Center Fund vs. Crivello & Godfrey Compam. Inc.. 156

V.is.2d227.

This case involved the interpretation ofa lease between the above parries and

in particular whether the PlaintifTs complaint should have been dismissedfor

failure to stale a cause of cation. Whether the complaint by the Plaintiff,

Centun Shopping Center, stated a claim against the Defendant. Godfrey,

turned first on wiiether the lease permitted Godfrey to close its retail food

store operation in the shopping center owned by Century and move it to a

nearby competing shopping center.

I held that the lease allowed Godfrey to do the above and the Court ofAppeals

disagreed. Tlie Court ofAppeals held that the case authority argued by the

Defendants and relied on b\- me to interpret the contractual language was not

persuasiw and that sufficient facts were alleged to support a possible breach

ofthe contract in this regard.
735

Plaintiffs also broughr a claimfor abandonmem which I dismissed. This was

upheld by the Court ofAppeals.

A third cause of action alleged "tortious injury to business'. I dismissed this

cause ofaction hut the Court ofAppeals held that there were sufficientfactual

allegations in the Complaint that iftrue would provide a basisfor relief.

State vs. Williamson. 109 Wis.2d 83 and 113 Wis.2d 389.

This case involved a motion by the Defendant to suppress evidence that was

the result of an alleged unconstitutional seizure. The Defendant argued that

the stop andfrisk that the Police performed on him resulting in the discovery

ofa concealed weapon was in violation ofthe Defendant's Fourth Amendment

riiihi in the U.S. Constitution against unlawful searches and seizures and the

correspondma righi in the Wisconsin Constitution, Article I, Section 11.

In an extensive discussion ofTern vs. Ohio. 392 U.S. 1 (1968), the Wisconsin

Stiprvmc Conn reversed the ruling of the Wisconsin Court ofAppeals which

had earlier reversed an ruling at the trial level.

(o Citations tor significant opinions on Federal or State Constitutional issues,

together VMIII the citation to appellate court rulings on such opinions:

Siaie vs. Willuimson. 109 W,s.2d 83 and 113 Wis.2d 389.

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.

No office,* held except judicial offices.
736

17. LBJ Carwr:

(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;

/ did not serve as a law cleric.

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

1966-1967 - Sole Practitioner - 3369 N. Pierce St., Mihvaukee. WI.

53212.

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;

1970-1975 - Employed h\ the Milwaukee Cin Attorney's Office, 200

East WW/.v St.. Milwaukee. WI. 53202.

(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?

iSi'e 2 hclow: i

2. Describe your typical clients, and mention the areas, if any. in which

you have specialized.

1966-1967 • Sole Practitioner - 3369 N. Pierce St.. Milwaukee. WI.

53212. During this period I handled several contract disputes;

workmen's compensation cases; some probate matters; and a water

rights case for private clients; and did indigent defender work (that

; work which the Public Defender's Office does today).

1970-1972 - Milwaukee City Attorney's Office. 200 E. Wells St..

Milwaukee. WI, 53202. Represented a variety ofGry Departments on

property damage and personal injury claims both as Ptaimiff and

Defense Counsel. Acted as Trial and Appellate Counsel in all cases.

Took issues of Municipal liability to the Wisconsin Supreme Court.

Acted also as a Prosecutorfor a briefperiod in County Court.

10
737

1972-1975 - Milwaukee City Attorney's Office, 200 E. Wells St..

Milwaukee. Wl, 53202. In addition to the above. I became the

Representative forthe Fire and Police Commission, the Fire and Police

Depurtmeiu. and other Departments. Again. I acted as Trial Counsel

and Appellate Counsel. This practice involved administrative law.

Federal and State actions, particularly Title 42 U.S.C. 1983, of the

Civil Rights Act.

(c) I. 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.

/ appeared regularly not only in the Stale and Federal Trial Courts,

hut also in the State and Federal Appellate Courts.

2. What percentage of these appearances was in:

(a) Federal Courts:

40^ <)/ (</.»<'.» were in Federal Court.

(b) State Courts of record:

50^ <>l\v\c\ were in Stale Conn.

(c) Othor Courts.

Wi weir with Administrulivc Agencies.

.v Whai percentage of your litigation was:

(ai Civil.

90* civil ca.H's.

(b) Criminal.

WTt criwinul cases.
738

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.

Fifteen major cases, 12 of which I was sole counsel; two of which I

was chief counsel.

5. What percentage of these trials was:

(a) Jury:

80% ofthese were to juries.

(b) Non-Jury.

20'x o/ these were to the Court.

18. Litigation: Describe (he ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reported, and the docket number and

dale if unreponed. 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 Imgation and the final disposition of the case. Also state as to

each case:

(a) The date of representation;

(b) The name of ihe court and the name of the Judge or Judges before whom the

case was litigated: and

(O The individual name, addresses, and telephone numbers of co-counsel and of

principal counsel for each of the other parties.

/. State e.x.rcl. Cortez vs. Board of Fire and Police Commissioners. 49 Wis.2d

HO. Appellant Police Officer challenged a dry ordinance which gave the

Fire and Police Commission authority to bring to trial any Police Officer

through a prtKedure of citizen complaint. This case was signiflcam because

hy upholding the ordinance, the Supreme Court corrected a glaring equal

protection deficiency that existed in the prior ordinance which allowed only

"reputable freeholders" to bring complaints. I represented the Fire and Police

Commission and handled the briefto the Supreme Court. The Supreme Court

upheld im client '.\ position.

12
739

(a) Writ of Prohibition argued in May of 1970.

(b) This case mu argued before Milwaukee Grcuit Court Judge Max

Raskin.

(c) Co-counsel on this case was Thomas E. Hayes, Milwaukee City Hall,

200 E. Wells Street, Milwaukee. Wisconsin. Telephone: (414) 278-

2607. Opposition counsel on this case was Gerald Boyle, 1124 West

Wells Street, Milwaukee, Wisconsin, 53233. Telephone: (414) 271-

1717.

Armor n. Wisconsin Gas Compam. 54 Wis.2d 302 (1971). The City of

Milwaukee MWJ sued for negligence as a third-party defendant in the

construction of an underground sewer. This case involved the extent of a

municipality's liability/immunity, especially in light of a then recent decision

altering municipal immunity. I represented the City ofMilwaukee at the Trial

Court and the Supreme Court; first on a demurrer (motion to dismiss) and

then the appeal of thai motion to the Supreme Court of Wisconsin. The

Supreme Conn decided against the City but the decision was significant

because it expanded on its earlier decision and also dealt with differing

decisions from otherjurisdictions relative to the issue ofa municipality's duty

w the public in general as opposed to its duty to an individual in particular.

lo i May. 1971. was the approximate date ofthe hearing on the motion to

dismiss and the arguments in the Supreme Court ivere heard on

February 29. 1972.

(hi The case was heard before Judge Marvin Holz in the Grcuit Court of

Milwuiiker County.

h'l Co-counsel in this case wvs Mr. William Lukacevich, Milwaukee City

Hall. 200East Wells Street, Milwaukee. Wisconsin. Telephone: (414)

278-2601. Opposition counsel on the case was Harrold J. McComas,

777 East Wisconsin Avenue, Foley A Lardner, Milwaukee, Wisconsin,

53202. Telephone: (414)289-3528.

1?
740

3. Mihvaukee w. Pomell. 49 Wii.2d 662 (1970). A case I briefed and argued

m the Supreme Court on ihe question of: What is a 'provable' debt under

Sec. 63ia)(l) and Sec. 63(a)(7) ofthe Bankruptcy Act II U.S.C.A. ?

This case resulted in the clarification of the status of a large number of

'claims' that were to be included or excluded in the discharge of debts. I

think it was very helpful to the practicing Bar, especially in die area of

bankruptcy.

I represented the City ofMilwaukee and initially I participated \Mth Assistant

City Attorney,- Wallace Zdun on the collection matter. I later handled it alone

before the Supreme Court. I argued the motion to dismiss at the Trial Court

level and later briefed and argued the case before the Wisconsin Supreme

Court. This case was won in the Supreme Court.

IU i The period ofthe motion to dismiss was in May of 1970.

(hi This case was hrought on by demurrer (now a motion to dismiss) by

delensv counsel Peter Kondos before Judge Thaddeus Pruss of the

Milwaukee County Court.

la Peter Kondos was the Attorney representing the Defendant and his

address is 700 North Water. Milwaukee. Wisconsin. 53202.

Telephone: (414/ 271-8000.

United States of America. Loren Washinfton. National Association for the

Advuncemem of Colored People. Milwaukee Branch vs. Cin ofMilwaukee, a

municipal corporation: William Stamm. Chief Engineer: Cin of Milwaukee

Fire Depanmem: Richard Block, et.al.. Fire and Police Commissioners:

Milwaukee Fire and Police Commission. Federal District Court Case 74-C318 and 74-C-480. 'Consent Decree' between the City of Milwaukee Fire

and Police Commission and the Fire Department and the United States

Depanmem ofJustice and the N.A.A.C.P. and other Plaintiffs.

This inwived a complaintfiled by Loren J. Washington, the U.S. Department

qt Justice and the N.A.A.C.P. against the Fire Department, the Fire and

Police Commission, and the City of Milwaukee. The complaint which dealt

with the Plaintiffs' claim that the Defendants svere engaged in a pattern and

practice ofdiscrimination based on race and national origin led to a 'Consent

Decree' dated October 17. 1974.

14
741

The significance ofthe case rests in the fact that the Pkantiffs' claims M/ere

resolved short ofwhat would have been a lengthy and cosily lawsuit and thai

the lengthy, detailed, and complex negotiations led to a Decree which has

basically met all of the Plaintiffs' goals. As only one example cfthe legal

research required to fashion an agreement acceptable to all parties. I would

refer to Pan 3 (tf said agreement titled 'Qualification' dealing with age,

residence, education, etc. Construction of an agreement relative to these

specifics alone required the detailed analysis ofFederal and State decisions

nation-wide and a tailoring cfthose decisions to the needs ofthe parties at

Bar.

Today the Fire and Police Commission, the Fire Department and the City of

Milwaukee haw been relieved of the hiring portion of the Court's order

because the long-range efforts to recruit and hire Blacks, Latins, and

American Indians in sufficient numbers has been a success.

This cast' absorbed a great deal ofenergy on the pan ofthe undersigned while

mhvr responsibilities ofthe office were being handled.

IUI There were no specific trial dates but, as mentioned, extensive and

detailed negotiations were required with the clients and with the Justice

• Depumwm. N.A.A.C.P., aiuJ all other ponies Plaintiff.

ihi This case was handled in the Federal District Coun of the Eastern

Distria. Judge John Reynolds presiding. Telephone: (414) 297-3188.

in The nunif oj co-counsel on this case is Thomas E. Hayes, now Deputy

City Attorney. Milwaukee City Hall. 200 E. Wells Street, Milwaukee,

Wisconsin. Telephone: (414) 278-2601.

Tlterc were numerous counsels representing the Plaintiffs, including

Richard M. Klein. Larry Ferris, Patrick O. Patterson of Milwaukee

Legal Senices. Inc., Milwvukee, Wisconsin, 53206, (414) 765-0600;

James S. Angus and Theresa M. Holland, Assistant Attorney Generals,

Depanmem of Justice, Washington, D.C., 20530, (202) 514-2151;

' Michael J. Skwierawski, now the Hon. Michael J. Skwierawski,

Milwaukee Counn Counhouse, 901, N. 9th Street, Milwaukee,

Wisconsin. 53233. (414) 278-4596.

15
742

A similar action as cited in No. 4 above involving the Milwaukee Police

Department, along with the Fire and Police Commission and the Chief of

Police, was handled at approximately the some time. United States of

America vs. Cin ofMilwaukee, a municipal corporation: Harold Breier. OiieT

of Police: On ofMilwaukee Police Deparment: Richaid Block, et.al.. Fire

and Police Commissioners: Milwaukee Fire and Police Commission. Federal

District Court Case 74-C-318. 74-C-4S0.

Although this case involved some different Plaintiffs and a different Defendant

(City ofMilwaukee Police Deparment and the ChiefofPolice), the pattern of

research, negotiations, and settlement were as demanding, complex, and

extensive as was the case with the Fire Department. I did not see negotiations

to conclusion because I was required to take a leave ofabsencefrom the Oty

Attorney's Office when I ran for Municipal Judge.

This case holds the same significance as the case involving the Fire

Dcpaniiwni.

ini Again, there were no specific trial dates hut extensive and detailed

negotiations m're required with the clients and with the Justice

Departnwiu. S.A.A.C.P., and all other parties Plaintiff.

ih, This itise was handled in the Federal District Court of the Eastern

Disnia. Judge Julm Reynolds presiding. Telephone: (414)297-3188.

'</ Thomas E. Hayes, now Deputy City Attorney, Milwaukee City Hall,

200 E. Wells Street. Milwaukee, Wisconsin. Telephone: (414) 278-

2601.

In addition. Gram Langley. now City Attorney of the City of

Milwaukee, handled the remainder ofthe case in my absence, (some

address as alxiye. I

Opposition counsel in this case were essentially the same as in No. 4.

16
743

6. Clark vs. ZieJnnis. 513 Fed. 2d (1975). This case involved the question ofthe

use offorce hy a Police Officer in apprehending an escapingfelon. This case

is significant because the issue ofhow muchforce can be used in this situation

was never decided, and this case did so. The case is still quoted in Wisconsin

Statutes under Sec. 939.48 'SelfDefense ttfOthers '.as a standard as to vhen

a person may employ deadly force against another.

1 represented the Police Officer at the trial level and 1 also wrote the briefand

argued the case before the Seventh Circuit Court ofAppeals. The Trial Judge

entered a decision relative to a use of force standard that was contrary to my

client's position and the Seventh Circuit Court ofAppeals in Chicago sustained

him.

Tlie case is significant because it did define the standard as aforesaid.

lui The case was tried in January of 1974 and argued before the Seventh

Circuit Court ofAppeals in November of 1974.

(hi The case was heard in the Federal District Court of the Eastern

District of Wisconsin with the Hon. Myron Gordon presiding.

Telephone: I4I4I 297-3922.

ICI Opposing counsel wvs Gary Gerlach, now the Hon. Gary Gerlach.

Milwaukee Counn Courthouse. 901 N. 9th Street, Milwaukee,

Wisconsin. 53233. Telephone: (414) 278-4490.

7. Boscunno \s. Nelson. 518 Fed.2d 879 (1975). This case dealt with the

standard of "prohahle cause' necessary for arrest and concepts of 'good

faith" and "reasonuhlc helier that provided defenses in civil actions when

prohahle cause in a 'constitutional sense' is lacking. The significance ofthe

decision resis in the fad thai a different standard of 'probable cause' can

exist in this and perhaps in other circumstances. Up to that point the issue

was noi raised or resolved anywhere in the country. This case and discussion

ofthe law is still Mug used at Murquene University in classes discussing the

standard.

I tried the case at the District Court level representing the Police Officer and

also wrote the brief for the appeal. I could not argue the appeal before the

Seventh Circuit Coun ofAppeals in Chicago because I was required to take

a leave of absence from the City Attorney's Office when I ran for the position

of Municipal Judge.

17
744

The Seventh Circuii Court ofAppeals overturned the ruling ofthe Trial Court

and my client's position was ultimately sustained.

(a) This case was tried in July of 1974.

(b) The case was heard in the Federal District Conn of the Eastern

District of Wisconsin, the Hon. Myron Cordon presiding. (414) 297-

3922.

(el Opposition counsel was Gary Gerlach, now the Hon. Gary Oerlach.

Milwaukee County Courthouse, 901 N. 9th Street, Milwaukee.

Wisconsin. 53233. Telephone: (414) 278-4490.

Bencc n. Huivld A. Breicr. 501 Fed.2d 1185 (1974). This case represented

a Constitutional challenge h\ the Plaintiff's to use by the Defendant Chief of

Police ofa disciplimiry rule which proscribed 'conduct unbecoming a member

anil detrimental to the service'. The significance ofthe case rests in the fact

tlwi .similar rules existed in the military (see the Uniform Code of Military

Justice I. and also in Police Departments throughout the country. The question

of whether a rule deemed necessary in a military organization should and

could pass Ctmstiiiiiioiuil muster in a 'para-military' organization was not

answered. This case and its appeal to the Se\enth Circuii Court ofAppeals

and the United States Supreme Court decided this important issue. I handled

the case U» the Chief of Police from summary judgment motion at the Trial

Conn level to the Conn ofAppeals and the United States Supreme Court. The

Siaiutc was declared unconstitutionally vague and sustained on appeal,

although it \va\ a divided appellate coun with Senior District Judge Jameson

rendering a partial dissent. The United States Supreme Court denied

ccnioruri.

HI i The dales ol the lower coun proceedings were approximately August

of 1973.

ihi Vie case \s-us handled in the Federal District Court of Wisconsin, the

Hon. John Reynolds presiding. Telephone: (414) 297-3188.

lei Vie name of opposition counsel was Gerald Boyle. 1124 West Wells,

Milwaukee. Wisconsin. 53233. Telephone: (414) 271-1717.

18
745

Carl E. Nameman vs. Harold A. Breier. 390 Fed.Supp. 633 (1975). This

case involved Plaintiff's Constiiufional challenge to a Police Department rule

that Police Officers treat official business of the Police Department as

confidential. This case is significant because it clarified the scope ofactivin

that bargaining agentsforthe Police Union could engage in while negotiating

rule changes in the Department. I handled the caseforthe Police Department

at the trial level where my client won. The case was later appealed and

overturned. I did not engage in the appeal because I was now on leave of

absence from the Gty Attorney's Office to run far the Municipal Court.

(a) The date of the lower court proceeding is approximately August of

1974.

(hi The case >«M handled in the Federal Distria Court of the Eastern

District of Wisconsin, the Hon. Mvron Gordon presiding. Telephone:

(414) 297-3922.

la Initially, there was no co-counsel on this case, although it was

suhsequently handled h\ Grant Langley during my leave of absence

from the office.

Opposition counsel twu David Loeffler of Goldberg. Previant &

Uelnwn. 788 A'. Jefferson. Milwaukee. Wisconsin. Telephone: (414)

271-4500.

10. Baranowski vs. On of Milwaukee. 70 Wis.2d 684. in which I wrote the

Supmnc Conn brief. The decision ofthe Wisconsin Supreme Court clarified

the iiiipcrtum tiuestion of the distinction between negligent and intentional

torts.

Uh The dale of the lowvr court proceeding is approximately October of

1974.

(hi Tlie case wasfirst handled in the Circuit Courtfor Milwaukee County,

-. Hon. Huney L. Neelen presiding (now deceased).

hi Initially there \ws no co-counsel on this case, although it was

subsequently handled by Grant Langley during my leave of absence

from the office.

Idi Opposition counsel was James P. Maloney qfZubrensky, Padden. Graf

* Bran. 828 N. Broadway. Telephone: (414) 276-4557.

19
746

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 these matters.

Please omit any information protected by the attorney-client privilege (unless the

privilege has been waived).

(a) With Attorney Thomas E. Hayes of the Milwaukee City Attorneys' Office, I

handled the complete research, writing and negotiations in the aforementioned

civil rights actions of United States ofAmerica vs. Otv ofMihyqnfiff- fify Iff

Milwaukee Police and Fire Commission: Chief of Police: Fire Department,

etc. Federal District Court Case 74-C-3I8, 74-C-480.

Tliis case did not proceed to trial because of the Consent Decree that was

iilnnmiely formulated.

th i Miller. Mauwra. Clark. Inc.. vs. Defiance. Inc.. This case involved a major

legal malpractice action against the above prominent plaintifflawfirm which

extended over a period of at least 5 years in my court. Millions ofdollars of

losses were claimed hy the DeRance Foundation. The magnitude ofthe case

can he ascertained hy the following: The principal Defendant's deposition was

taken 27 times: the depositions of the principal officers of the Plaintiff

corporation were taken 22 times: and requestsfor documents in the discovery

process resulted in approximateh 1.500.000 to 2.000,000 documents being

exchanged or made available for viewing which were the subject of67motions

alone.

This case was one of the most complex pieces of litigation in the history of

Milwaukee County and was ultimately settled subsequent to a later ruling by

nw structuring the 'law of the case".

la I have acted as a lecturer on occasion at the Marquette Law School: presided

over main moot court competitions, student mock trial exercises: and given

injonnational talks to a wide variety of community organizations.

20
747

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 except to derive from previous business relationships, professional services, firm

memberships, former employers, clients, or customers. Please describe the

arrangements you have made to be compensated in the future for any financial or

business interest.

None.

Explain how you will resolve any potential conflict of interest, including the

procedure you will follow in determining these areas of concern. Identify the

categories of litigation and financial arrangements that are likely to present potential

conflicts-of-interest during your initial service on the federal bench.

/ do HOI perceive any powmial conflict ofinterest now nor during my initial service

on the Federal bench. However. I would recuse myselffrom any case in which I or

my family would have a financial interest. I plan to follow the Code of Judicial

Conduct.

3. Do you have any plans, commitmems. or agreements to pursue outside employment,

with or without compensaiion. during your service with the court? If so, explain.

/ do not have any such plans. My wife will continue her employment as detailed in

the response to Question 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 A0-10attached.)

21
748

FINANCIAL DISCLOSURE REPORT 5!?B.r2S5 JTiA -

(I B •,C.*- if*. ». HlOl-lU j

(LMt UM Il»t, BtMJa tsltlal)

'RMP* ^RUPOLPH TT

4. ?iii« (Anict* III ]•«••« iMicBt* •cilw* M

Jr/irt'oilier CD**r »«**<

CifLcmr cooKr

SrAre of wiicuJSiii HlHll*-

^flrffS

IMPORTANT NOTES: 7V Msoucaon/ txccwnpajryvif dhif Jbm r

diecUog the NONE beu lor tmOt •Mtoa wb<R ]•• km ao ntiilrtto I Mta. Sv,

I. POSITIONS. (Keponing indMdual ooly, ttt pp. 74 of Insirociiou.)

POSmQN NAME OF ORGANIZATlONyENTTTy 0 NONE i*o (•porub;* po«iti«Mi

d

AGREEMENTS. (RcpontDg uulMdual oohr. see p 8-9 of losintciioiu-)

PATH fART1K ANP TtRMS

NONE • ;.,-•».. .. .

III. NON-INVESTMENT INCOME. (Reponiiii iixiiviiiui ud ipomt, i« pp «i; ot bmnjeuoos. i

PATE SOURCE AND TyfE gRQ» B<CTME

(HoDoram oa}y) (youn, DM spo«se'v • NONE t>B »»porx*»l* Mea-lavwitAMBl

frffrrt of y\kouii*>l sr>tT< 4>i/tr TUPM.

ADcfriot) CHott. (^ &H*HU> e^KtHhi Of M)omi*i Sbtoia s Li)

^___ $
749

FINANCIAL. DISCLOSURE REPORT (cool'd)

IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.

.tfctpnnAillcih'fliFig*—

ET

MBBI DBSCMFTIOH ^

NONE (Bo MA rapMUUa ••——— w iifi*l

OTHER GIFTS (Includes those to tpouM aod depeodeot children, KM the pAmtbtttcate *(S)* and *(XX^* to

indicate other gUU received bj spouse ud depeodcot cUldrca. respacthtf)'. Sec pp.l»>U of iBittwcttoaa.)

SOLUCE DESCRIPTION YAlJiE

Ef NONE <•= . ^ ..,. ..i . , • .

VI LIABILITIES- (Includes those of spouse aod dependent chUdrta; Indicate where appUcaMc, person responsible

for Uabtlity b> using tbr parenthetical '(Si* for separate llabllm of spouse, '(J)* torjoint Uahillty of repurtlng

IndMdual and spouse, aod *(I>C)* for UabUlty of a depeodeol child. Sec pp 16-18 oTLutntctkHtt.)

0" CREDITOR DESCRIPTION VALUE CODE"

NONE (a« r.;- -.: . HUlIltt**!
750

FINANCIAL DISCLOSURE RETORT (conl'd) TZMDTJ&Q*.?* T. I v///7^l

VII. IhJVESTMENTS and TRUSTS - income, value. transacBons. (h•**•*--*—

*• •s^r TT

ft.

?/*H ^ - ' '.

TO (II

'CST

(11 01

#V

-TO- (II ^y:

NONE (Ke ravortakl*

1 UMMCtlOMI

'usAA,(»\ari»/»Lfi/«;p {J) A r T

Srto*Ny fWurjm- fowp ^J ^ A J- T"

Rfc^ftflu ONir ATIWtHtO c f p

-ro Dud. fRir^i^f R6$i-

'•DiNCA (T)

' AffeAtiAi- vone ifa

1

11

30

1 IBCCM/U1B e<^»»1 »-il.OC!J M 1«M l-JlrMl 10 |1.»0 C-lI.SOl M 5,000 0-«!,001 «• l^'***

rnns %L!if^^—Mis'.w h \-i Ptt?t3Bi-S ItTwr i-lw.^i w i^.wi k-jiM.wi « law.Me
FINANCIAL DISCLOSURE REPORT (oool'd)

751

t of fitcm Mportl*»

'1?*f4s>*'Rop»Lf* 77 I y/zz/f^

VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Mtan p^ ^ bvMtj

tX. CERTIFICATION.

In oomptiince wiib the prcnisiov of 28 U.S.C { 455 and of Advisory Opinion No. 5? of the Advbory Commlnee on

Judicial Aciiviiics. and to tbc best of my knouicdgc ai tbe lime after reaKioable inquiry, I did not perform any adjudidiory

function in any Inigaiion during ihc period covered by this rcpon in wbicb I, my spouse, or my minor or dependent children

bad a financial inieresi. as defined in Canoo }C(3){c). in the outcome of such liiigaiion.

I certify that all informaiion given above (including infonnaiioo peruining lo my spouse and minor or dependeni childtcn,

if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported m

withheld because it met applicable statutory provisions permiiiing 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 Kith the provisions of 5 U.S.CA. app. 7. | 501 ct seq. 5 US C | 7353 ud Judicul CottfeK&cc

rcgulatioos.

Signature , J. (%a*/>— H/fl/l*

NOTE: ANY INDIV1DUAL,,WH0 KNOWWGLY AND WEPULLY FALSIFIES OR FAILS TO FILE THIS REPORT

MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 UJbCA APP. 6, I 104. AND IS U.S.C I 1001.)

FILING INSTRUCTIONS:

Mail ripol onf.nil and 3 MUilioul copies lo: Judicial Elhla Oammiiue

AdDiSBlnUve Offia: of Ibe

Umiod Slate* Coum

WashiDpoi.DC 205«
752

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

as called for.)

(See anached.)

Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

No. I have been a candidarr for non-panisan judicial posts on five occasions.

22
753

NET WORTH

Provide • complete, cumnt lifunciel net "ortfi tUlenwM whkh Itemiiei In detlil an iiirls Gnclutfinf benk

eccounl i, real eslale. MCurttiet, Innll. inwiUMflU. Mid older CnoneW holdinft) ell RabiUtiel (Includlnf deW«.

inort|i|ei. lotnt. and other financial oM|alion>) ol (rounetl, your (pause, and other Immediate wamtta o(

your household.

UMiuncs

31 40[oZ

US Co-»^im»nt MCWfT0«1

Unltottd wcwnt«»—•«« «fi«dMi<

AccowntB tnd n*Ut ncarvvWr

Dua (ram nUTi««i And fri«A4i

Du« from ofh«n

Oowbtlwl

Riti crtatt »wn«d—«tfd Kh«dui«

ftul ttUla mot^lM nunrabl*

Aftot end ethar p«ri«nat prpp«rTy

Cath vitur—lift Iniurtnct

Oti-c au**.*—Aamlt*:

Lflca

pAif^TirJfc-s

^irva^fci

^ILM^A r-CHtSTWiToli1

auen

COHTlNfitNT UABILITItS

m> so

Jil 2£

31

35e

OtMr wn#*W Ui Md iM^Mt

KMt MlaH metiirn ptjraW*—«M

ecMM

^y 1 O^Rtr mensifn end atfter IM*

OtMr eebti—Namlaa:

351 <^h/t*<r* 'fif4i

m

Si

H*m pcjraMa to I

ftotos MyaMa to aOMn

teewntoMdHto«w*

QVf (7V (K^F^PfctAc MuK.)

Tout lUMIHiM

Networtn

Tour UbfliUM end net •orth

CCHUM IKFOtUUTlOM

qx KQ 00

>-am.

oa

OS

£0

242 £2.

Aa ensorMr, cernjhar or fuarenter

On loatoa c oentnra

Local CLaimt

Prwiaien lor raeait Ineoma Tea

Omar tpoc.al Oaer

^TT

_^fe_

-&iA_

551

Aft •"! UMtt »I«]|M17 (Add achod

KM.)

An yow 4af«ndaft| In dny «rfb sr

total •eoenar

Kawa |ow aw toUn tafUfvptqr?

&.

it
Y

754

ADDED SCHEDULES TO FINANCIAL

STATEMENT IN RESPONSE TO QUESTION U-S

ASSETS

Listed Securities:

USAA Cornerstone Fund

(Mutual Fund)

Strong Total Return Fund

(Mutual Fund)

Real Estate Owned:

2707 East Edgeuood Axenuc.

Milwaukee. Wl 53211

LIABILITIES

Real Estate Mortgages Payable to:

Advantage Bank

Kenoshn. \V|

rs
755

III. GENERAL (PUBUQ

An ethical consideration under Canon 2 of the American Bar Association's Code of

Professional Responsibility calls for "every lawyer, regardless of professional

workload, to find some time to participate in serving the disadvantaged." Describe

what you have done to fulfill these responsibilities, listing specific instances and the

amount of time devoted to each.

Since starring the practice oflaw I have served the "disadvantaged' in the following

ways: (Tliese activities are in chronological order.)

1966-1967 Pro honn work in the County Courts as a sole practitioner, limited to

three orfour cases.

1967-1968 As u Company Commander in the Republic of Vietnam, I "volunteered"

my troops to aid and assist Vietnamese orphanages by supplying them

with looJ. clothing, shelter and other necessities (mosquito netting,

etc. i. HV- dux wells and refitrbished buildings that housed orphans

who were products ofthe war and in particular the Tet offensive. This

hcaiwc ti continuous operation for the year I spent in Vietnam.

Although this answer is not directly suggested by the question, this

work was done while I was a lawyer and also while I handled some

Court Munuils and rendered Article 15 decisions as a Company

Comimiiulcr under the Uniform Code of Military Justice.

1970-1976 A\ a nwinhfi of the Board of Directors of the Milwaukee JC's, I

directed or participated in a variety of programs held on an annual

basis for inner city youth. Among them were summer outings at

Dumlelion Amusement Park in Muskego; Christmas programs: the JC

Cimis: the Junior Champ Track Meet: and Christmas dinner for the

elderly.

I977-Pic\fni Working with o minority single parent of JO children. Efforts by my

wife and myself in befriending and assisting this family and sharing

their problems and successes has extended to the present.

1983-Present In 1983 while President of the Thomas More Lawyers' Society, the

organization started a sandwich program for the poor at the Guest

House here in Milwaukee. This program supplements the community's

efforts to feed the homeless. It provides sandwiches and other items

to fill a gap in the Guest House meal program that existed on

weekends. I and fellow Society members participate by making and

then delivering the sandwiches and other items on the weekends.

24
756

1980-Presem Board Member of Wisconsin Impacr. Inc. Original Board member of

the 'most successful minority job training program' in Milwaukee

County. This organization had the highest success rare of any

community organization with similar objectives in providing minoriry

youth dropouts the opportunity to gain their high school diplomas and

good entry level jobs in the private sector. It did so at a cost per

individual of less than half of CETA and JTPA programs. In

recognition it was given the Governor's Award For Excellence in 1966

by then Governor Tony Earl.

1989-Present Original Board Member of the Child Abuse Prevention Fund (CAPFund). This organization wasfounded to help stem the rising tide of

child abuse in our community by raising private monies to supplement

fundsfrom the public sector.

1987-Present Trustee of the Ronald McDonald House. Aids and assists parents

whose children have cancer (and must come to Children's Hospitalfar

treatment) by providing a 'home awayfrom home'. (Children's is one

of the nation's leading facilities in the treatment ofchildhood cancer. I

Although not categorized as 'disadvantaged" in the strict sense ofthat

term, these people would be unable to afford a stay in Milwaukee with

their children were it not for the House.

The American Bar Association's Commentary to its Code of Judicial Conduct slates

thai it is inappropriate for a judge to hold membership in any organization thai

invidioush 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 dales of membership. What you have done to

try to change these policies?

//; the year 1959 us an 18/19 year old, I was a member ofthe Milwaukee Eagles Club

which was the local branch of the National Order of Eagles. It had a policy cf

admitting only whites. Ijoined the Eagles Club at the same time Ijoined the Jewish

Conimunify Center, for the purpose of using both organization's gym and pool

facilities. I was t/uite frankly unaware ofthe policy and therefore did not take steps

to change it. It is my understanding that several years after I left the policy barring

minorities was dropped. My current understanding is that the local Eagles Club no

longer exists.

In addition to the above, utien Ijoined the Milwaukee JC's in 1970, the membership

was restricted to men only. That policy was subsequently changed.

25
757

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to

end (including the circumstances which led to your nomination and interviews in

which you participated.)

A 15 memberselection commission was established by SenatorRobert Hasten, Senator

Herb Kohl, and the Wisconsin Bar Association. Seven members were appointed by

Senator Kasten; 3 members by Senator KM; and 4 past Wisconsin Bar Presidents

were appointed by the current President of the Wisconsin Bar. The Dean of the

Marquette Law School was selected as the final member and Chairman.

The Committee did recommend my nomination.

I suhwiiied my name for consideration by the Commission. The Commission then

required all candidates to respond to a series of questions concerning each

candidate't experience, etc.

After those responses were made, the Commission narrowed the list down to twelve

and invited these twelve in for oral interviews. After the oral interviews, the

Commission recommended five names to Senator Robert Kasten. Senator Kasten then

recommended three ofthose names to the Department ofJustice. In addition, I was

inteniewed hy the Depamient of Justice, completedforms for and ivas interviewed

hy reprcsentutives of the FBI and the ABA.

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 imerpreted as asking how you would rule on such case, issue, or question? If so.

please explain fully.

No.

26
758

Please discuss your views on the following criticism involving 'judicial activism*.

The role of the Federal Judiciary within the Federal government, and within socicrv

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 judiciai

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 grievanceresolution;

(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.

"Judicial Acrivism", as I umlersianJ its use in current political discourse, is, in

essence, decision making byjudges which negates legislative enactments and executive

decisions without clear warrant in the Constitution or law. It represents actions taken

by judges that are outside the properjudicialJunction. First, the judge should only

decide a case in which the parties have 'standing' to pursue the cause in question.

In addition, the question or cause must be "ripe'for resolution. Second, once these

requirements are met, the focus must be narrowed to the case or controversy actually

before the Court. Third, in cases ofConstitutional dimension, a judge must attempt

to develop and preserve the permanent principles that most all agree are contained

in the Constitution. Fourth, a judge, particularly a District Court Judge, has to

recognize.his or her own and the judicial branch's limitations in implementing broad

social policy.

Utilizing these as guides, it is then the duty ofthe judge to follow precedent.

27
759

AFFIDAVIT

/. RUDOLPH T. RANDA, do swear that the information provided in Ms statement

is, to the best ofmy knowledge, true and accurate.

(Date)

State of Wisconsin )

)SS:

Milwaukee Counn I

Theftmgoing affiJuvit was signed by the affiant in my presence on the date stated.

NStary Public ''

State of Wisconsin

My commission expires July 10, 1995

o

28

60-251 (768)


ISBN 0-16-040276-X

780160"40276

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