S. HRG. 105-205, PT. 2

CONHRMATION HEARINGS

ON FEDERAL APPOINTMEt, *^ o

Vf-TP

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY

SEPTEMBER 5, 30; OCTOBER 28, 29; NOVEMBER 12. 1997

Part 2

Serial No. J-105-4

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

ORRING.

STROM THURMOhfD, South CaroUna

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

FRED THOMPSON, Tennessee

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

HATCH, Utah, Chairman

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, CaUfomia

RUSSELL D. FEINGOLD, Wisconsin

RICHARD J. DURBIN, IlUnois

ROBERT G. TORRICE1.LI, New Jersey

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

(H)

c^
CONTENTS

HEARING DATES

Page

Friday, September 5, 1997 1

Tuesdav. September 30, 1997 339

Tuesday, October 28, 1997 665

Wednesday, October 29, 1997 919

Wednesday, November 12, 1997 1359

FRIDAY, SEPTEMBER 5, 1997

STATEMENTS OF COMMITTEE MEMBERS

Specter, Hon. Arlen 1

Leahy, Hon. Patrick J. (prepared statement) 3

INTRODUCTION OF NOMINEES

Graham, Hon. Bob 4

Prepared statement 5

Mack. Hon. Connie 7

Prepared statement 8

Santorum, Hon. Rick (prepared statement) 22

TESTIMOI^ OF NOMINEES

Maijotie 0. Rendell, of Pennsylvania, to be U.S. Circuit Judge for the Third

Circuit 9

Questioning by:

Senator Specter 10

Senator Kohl 12

Senator Sessions 13

Senator Biden 13

Bruce W. Kauffman, of Pennsylvania, to be U.S. District Judge for the Eastem District of Pennsylvania 15

Questioning by:

Senator Specter 15

Senator Kohl 17

Senator Biden 17

Richard A. Lazzara, of Florida, to be U.S. District Judge for the Middle

District of Florida 19

Questioning by:

Senator Specter 18

A. Richard Caputo, of Pennsylvania, to be U.S. District Judge for the Middle

District of Pennsylvania 20

Questioning by:

Senator Specter 21

Senator Kohl 22

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Caputo, A. Richard:

Testimony 20

Questionnaire 225

(III)
IV

Page

Graham, Hon. Bob:

"Lazzara Deserves Federal Appointment," newspaper article from the

Tampa Tribune, Jan. 7, 1997 6

Kauffman, Bruce W.:

Testimony 15

Questionnaire 86

Lazzara, Richard A.:

Testimony 19

Questionnaire 159

Rendell, Marjorie O.:

Testimony 9

Questionnaire 25

Specter, Hon. Arlen;

Letter to Senator Orrin G. Hatch, chairman. Senate Judiciary Committee,

Washington, DC, Sept. 4, 1997 2

Letter from Senator Orrin G. Hatch, chairman. Senate Judiciary Committee, Washington, DC, Sept. 4, 1997 2

TUESDAY, SEPTEMBER 30, 1997

STATEMENTS OF COMMITTEE MEMBERS

DeWine, Hon. Mike 339

Leahy, Hon. Patrick J. (prepared statement) 351

Radio address of the President to the Nation 352

INTRODUCTION OF NOMINEES

Hatch, Hon. Orrin G 339

Bennett, Hon. Robert F 340

Glenn, Hon. John 341

D'Amato, Hon. Alfonse M 343

Prepared statements 346

Moynihan, Hon. Daniel Patrick (prepared statements) 344

Thompson, Hon. Fred 348

Frist, Hon. Bill 350

Ford, Hon. Harold E 350

TESTIMONY OF NOMINEES

Ronald Lee Oilman, of Tennessee, to be U.S. Circuit Judge for the Sixth

Circuit 353

Questioning by:

Senator DeWine 353

Senator Thurmond 355

Senator Sessions 356

Senator Ashcroft 359

Sonia Sotomayor, of New York, to be U.S. Circuit Judge for the Second

Circuit 355

Questioning by:

Senator Thurmond 354

Senator Sessions 356

Senator Ashcroft 359

Senator DeWine 362

Charles J. Siragusa, of New York, to be U.S. District Judge for the Western

District of New York 367

Questioning by:

Senator DeWine 367

Algenon L. Marbley, of Ohio, to be U.S. District Judge for the Southern

District of Ohio 368

Questioning by:

Senator DeWine 368

Dale A. Kimball, of Utah, to be U.S. District Judge for the District of Utah 368

Questioning by:

Senator DeWine 368

James S. Gwin, of Ohio, to be U.S. District Judge for the Northern District

of Ohio 369
V

Page

James S. Gwin, of Ohio, to be U.S. District Judge for the Northern District

of Ohio—Continued

Questioning by:

Senator DeWine 369

Richard Conway Casey, of New York, to be U.S. District Judge for the

Southern District of New York 369

Questioning by:

Senator DeWine 369

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Casey, Richard Conway:

Testimony 369

Questionnaire 627

Gilman, Ronald Lee:

Testimony 353

Questionnaire 376

Gwin, James S.:

Testimony 369

Questionnaire 599

Kimball, Dale A.:

Testimony 368

Questionnaire 574

Marbley, Algenon L.:

Testimony 368

Questionnaire 538

Siragusa. Charles J.:

Testimony 367

Questionnaire 500

Sotomayor, Sonia:

Testimony 355

Questionnaire 459

TUESDAY, OCTOBER 28, 1997

STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G 665

Leahy, Hon. Patrick J. (prepared statement) 683

INTRODUCTION OF NOMINEES

Wyden, Hon. Ron 666

Prepared statement 667

Smith. Hon. Gordon 668

Prepared statement 668

Mack, Hon. Connie 669

Graham, Hon. Bob 670

Prepared statement 671

Robb, Hon. Charles S 673

Prepared statement 674

Warner, Hon. John W 675

Prepared statement 676

Bond. Hon. Christopher S 677

Prepared statement 678

Ashcroft, Hon. John 679

TESTIMONY OF NOMINEES

Stanley Marcus, of Florida, to be U.S. Circuit Judge for the Eleventh

Circuit 680

Questioning by:

Senator Ashcroft 680

Senator Durbin 682

Rodney W. Sippel, of Missouri, to be U.S. District Judge for the Eastern

and Western Districts of Missouri 684

Questioning by:

Senator Durbin 684
VI

Page

Rodney W. Sippel, of Missouri, to be U.S. District Judge for the Eastern

and Western Districts of Missouri—Continued

Questioning by—Continued

Senator Ashcroft 691

Norman K. Moon, of Virginia, to be U.S. District Judge for the Western

District of Virginia 686

Questioning by:

Senator Durbin 686

Senator Ashcroft 691

Ann L. Aiken, of Oregon, to be U.S. District Judge for the District of Oregon .. 687

Questioning by:

Senator Ashcroft 687

Senator Durbin 689

Jerome B. Friedman, of Virginia, to be U.S. District Judge for the Eastern

District of Virginia 687

Questioning by:

Senator Ashcroft 687

Senator Durbin 690

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Aiken, Ann L.:

Testimony 687

Questionnaire 856

Friedman, Jerome B.:

Testimony 687

Questionnaire 887

Marcus, Stanley:

Testimony 680

Questionnaire 693

Moon, Norman K.:

Testimony 686

Questionnaire 811

Sippel, Rodney W.:

Testimony 684

Questionnaire 775

WEDNESDAY, OCTOBER 29, 1997

STATEMENTS OF COMMITTEE MEMBERS

Kyi, Hon. Jon 919

Leahy, Hon. Patrick J. (prepared statement) 1017

INTRODUCTION OF NOMINEES

Kohl, Hon. Herbert 920

Feingold, Hon. Russell D 922

Prepared statement 923

Durbin, Hon. Richard J 951

Evans, Hon. Lane 952

Moseley-Braun, Hon. Carol 953

LaHood, Hon. Ray (prepared statement) 954

Feinstein, Hon. Dianne 955

Condit, Hon. Gary A. (prepared statement) 999

Boxer, Hon. Barbara 1000

Santorum, Hon. Rick 1001

Foglietta, Hon. Thomas M 1002

Specter, Hon. Arlen 1003

Fattah. Hon. Chaka 1006

TESTIMONY OF NOMINEES

James S. Ware, of California, to be U.S. Circuit Judge for the Ninth Circuit ... 1007

Questioning by:

Senator Kyi 1007

Lynn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern

District of Wisconsin 1011
VII

Page

L3mn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern

District of Wisconsin—Continued

Questioning by:

Senator Kohl 1011

Senator Feingold 1013

Senator Kyi 1015

Charles R. Breyer, of California, to be U.S. District Judge for the Northern

District of California 1011

Questioning by:

Senator Kyi 1016

Frank C. Damrell, Jr., of California, to be U.S. District Judge for the Eastern

District of California 1011

Questioning by:

Senator Kyi 1016

Martin J. Jenkins, of California, to be U.S. District Judge for the Northern

District of California 1012

Questioning by:

Senator Kyi 1016

Michael P. McCuskey, of Illinois, to be U.S. District Judge for the Central

District of Illinois 1012

Questioning by:

Senator Durbin 1013

G. Patrick Murphy, of Illinois, to be U.S. District Judge for the Southern

District of Illinois 1013

Questioning by:

Senator Durbin 1014

Fpederica A. Massiah-Jackson, of Pennsylvania, to be U.S. District Judge

for the Eastern District of Pennsylvania 1019

Questioning by:

Senator Kyi 1019

Senator Sessions 1021

Senator Durbin 1026

Senator Specter 1037

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Adelman, Lynn S.:

Testimony 1011

Questionnaire 1096

Breyer, Charles R:

Testimony 1011

Questionnaire 1124

Damrell, Frank C, Jr.:

Testimony 1011

Questionnaire „ 1197

Feingold, Hon. Russell D.:

Letters supporting the nomination of Lynn S. Adelman from:

John W. Reynolds, judge, U.S. District Court, Eastern District of

Wisconsin, Milwaukee, Wl, Jan. 9, 1997 925

James E. Doyle, attorney general. State of Wisconsin, Department

ofJustice, Madison, WI, Jan. 13, 1997 926

Mary Lauby, executive director, Wisconsin Coalition Against Domestic Violence, Madison, Wl, Jan. 17, 1997 927

David E. Schultz, associate dean, professor of law. University of

Wisconsin, Madison, WI, Feb. 25, 1997 928

Bradley DeBraska, president. Local #21, lUPA, AFL-CIO, Milwaukee

Police Association, Milwaukee, WI, Mar. 17, 1997 929

Karen M. Ordinans, chairman, Milwaukee County Board of Supervisors, Milwaukee, WI, Mar. 25, 1997 930

Leverett F. Baldwin, sheriff, Milwaukee County, Milwaukee, WI,

Mar. 26, 1997 931

Patrick T. Sheedy, chief judge. First Judicial District, Milwaukee

County Courthouse, Milwaukee, WI, Mar. 27, 1997 932

Ben Brancel, assembly speaker. State Capitol, Madison, WI, Apr.

2, 1997 933

Margaret A. Farrow, State Senator, Republican Caucus Chair, Madison, WI. Apr. 3, 1997 934
VIII

Pa«e

Feingold, Hon. Russell D.—Continued

Letters supporting the nomination of Lynn S. Adelman from—Continued

Brian D. Rude, State Senator, Wisconsin Senate Assistant Republican Leader, Madison, WI, Apr. 4, 1997 935

Jan Steinbergs, executive director, Wisconsin Troopers' Association,

Inc., East Troy, WI. Apr. 7, 1997 936

Michael G. Ellis, Senate Republican Leader, Wisconsin State Senate,

Madison, WI, Apr. 8, 1997 937

Alberta Darling, Wisconsin State Senator, 8th Senate District, Madison, WI, Apr. 8, 1997 938

Steve Foti, Wisconsin State Representative, assembly majority leader. State Capitol, Madison, WI, Apr. 8, 1997 939

Daniel M. Finley, county executive, Waukesha County, Office of

County Executive, Waukesha, WI, Apr. 8, 1997 940

Scott L. Klug, Member of Congress, House of Representatives, Washington, DC, Apr. 9, 1997 941

Lee Sherman Dreyfus, Governor, Waukesha, WI, Apr. 9, 1997 942

Thomas E. Petri, Member of Congress, House of Representatives,

Washington, DC, Apr. 14, 1997 944

John E. Charewicz, president, Wisconsin Professional Police Association, Madison, WI, Apr. 16, 1997 945

Mark D. Zeier, State president, Professional Fire Fighters of Wisconsin, Inc., Madison, WI, Apr. 17, 1997 946

Peggy Rosenzweig, State Senator, 5th Senate District, Madison, WI,

Apr. 28, 1997 947

Fred Risser, jpresident, Wisconsin State Senate, 26th Senate District,

Madison, WI, May 1, 1997 948

Jean M. Jacobson, county executive. County of Racine, Racine, WI,

May 1, 1997 949

Scott McCallum, Lieutenant Governor, State of Wisconsin, State Capitol, Madison, WI, May 5, 1997 950

Feinstein, Hon. Dianne:

Letters supporting the nomination of Frank C. Damrell, Jr., from:

Ann M. Veneman, secretary. Department of Food and Agriculture,

State of California, Sacramento, CA, Jan. 17, 1997 958

Attachment: "A dream believer," reprint from the Modesto Bee,

Dec. 15, 1996 959

Ernest Gallo, office of the chairman, E. & J. Gallo Winery, Modesto,

CA, Jan. 17, 1997 962

Gary A. Condit, Anna G. Eshoo, Sam Farr, Nancy Pelosi, Howard

L. Berman, and George Miller, Members of Congress, House of

Representatives, Washington, DC, Jan. 21, 1997 963

John Garamendi, Deputy Secretary, U.S. Department of the Interior,

Washington, DC, Jan. 21, 1997 965

Kathleen Brown, senior vice president and managing director. Bank

of America, Los Angeles, CA, Jan. 21, 1997 966

William T. Bagley, law offices of Nossaman, Guthner, Knox & Elliott,

LLP, San Francisco, CA, Jan. 22, 1997 967

Curriculum vitae of Frank C. Damrell, Jr 968

Carol G. Whiteside, director. Intergovernmental Affairs, Governor's

Office, State of California, Sacramento, CA, Jan. 23, 1997 970

John C. Danforth, Bryan Cave, LLP, St. Louis, MO, Jan. 23, 1997 971

Nancy Pelosi, Member of Congress, House of Representatives, Washington, DC, Jan. 28, 1997 972

Patrick Johnston, Fifth Senate District, Senate California Legislature, San Francisco, CA, Jan. 28, 1997 973

Anna G. Eshoo, Member of Congress, House of Representatives,

Washington, DC, Feb. 4, 1997 975

Paul Locatelli, S.J., president, Santa Clara University, Santa Clara,

CA, Feb. 6, 1997 976

Carmen A. Policy, president, San Francisco 49ers, Santa Clara, CA,

Feb. 7, 1997 977

James C. Brazelton, district attorney. Court House, Modesto, CA,

Feb. 14, 1997 978

Les Weidman, sheriff-coroner. Sheriffs Department, Stanislaus

County. Modesto, CA, Feb. 14, 1997 979
IX

Page

Feinstein, Hon. Dianne—Continued

Letters supporting the nomination of Frank C. Damrell, Jr., from—Continued

Dianne Feinstein, U.S. Senator, U.S. Senate, Washington, DC, Feb.

26, 1997 980

Leon E. Panetta, Carmel Valley, CA, Apr. 15, 1997 982

James R. Dignan, C.P.A., Modesto, CA, Apr. 17, 1997 983

Everett J. (Skip) Mohatt, Amador Valley High School, Pleasanton,

CA. Apr. 21, 1997 984

Marc B. Poche, associate justice. Court of Appeal, San Francisco,

CA, Apr. 23, 1997 985

Rav Simon, supervisor, fourth district, Stanislaus County, Board of

Supervisors, Modesto, CA. Apr. 24, 1997 986

Hugh Rose III, presiding judge, Superior Court of the State of California, County of Stanislaus. Apr. 25, 1997 987

George E. Leonard, law offices of Shughart Thomson & Kilroy, Kansas City, MO, Apr. 25, 1997 988

Richard A. Lang, mayor. City of Medesto, Modesto, CA, Apr. 30,

1997 989

Elaine Watters, judge, Superior Court, State of California, County

of Sonoma, Santa Rosa. CA. May 1, 1997 990

Patrick J. Frawley, Jr., Agoura, CA, June 11, 1997 991

Richard Hagerty, RD, Modesto, CA, Aug. 29, 1997 992

GaiT A. Condit, Member of Congress, House of Representatives,

Washington. DC. Sept. 2. 1997 993

Cosignatories: Ray Simon. Stanislaus County Board of Supervisors; Richard Monteith. California State Senator; Dennis

Cardoza. George House. California State Assemblymen; Richard Lang, mayor, city of Modesto; Les Weidman, Stanislaus

County Sheriff; Jim Brazelton, Stanislaus County District Attorney; Tom Mayfield, chairman, Nick Blom, Paul Caruso, Pat

Paul, Stanislaus County supervisors.

Richard Lyng, Modesto, CA, Sept. 15, 1997 995

David L. Moore, president. Western Growers Association, Newport

Beach, CA, Oct. 22, 1997 996

L. Stephen Endsley, M.D.. Valley Heart Associates. Modesto, CA 997

Additional remarks and a newspaper article from the Washington Post,

Nov. 7, 1997: "U.S. Judge Admits Lie, Withdraws as Nominee" 998

Jenkins. Martin J.:

Testimony 1012

Questionnaire 1224

Kohl. Hon. Herbert:

Letter from Tommy G. Thompson, Governor, State of Wisconsin, Mar.

21, 1997 921

Massiah-Jackson, Frederica A.:

Testimony 1019

Questionnaire 1327

McCuskey, Michael P.:

Testimony 1012

Questionnaire 1264

Murphy, G. Patrick:

Testimony 1013

Questionnaire 1302

Specter, Hon. Arlen:

Letter to Hon. Orrin G. Hatch, chairman. Senate Committee on the

Judiciary. Washington. DC, Oct. 8, 1997 1005

Brief filed in the Superior Court of Pennsylvania, Aug. 1, 1988: Commonwealth ofPennsylvania v. Robert Hicks 1027

Judgment 1035

Extract of a memorandum 1045

Letter to Hon. Orrin G. Hatch, chairman, Senate Judiciary Committee,

U.S. Senate, Washington, DC, Oct. 8, 1997 1005

Ware, James S.:

Testimony 1007

Questionnaire 1051
X

Page

WEDNESDAY, NOVEMBER 12, 1997

STATEMENT OF COMMITTEE MEMBER

Hatch, Hon. Orrin G 1359

INTRODUCTION OF NOMINEES

Kyi, Hon. Jon (prepared statement) 1359

Cleland, Hon. Max 1360

Feinstein, Hon. Dianne 1362

TESTIMONY OF NOMINEES

Barry G. Silverman, of Arizona, to be U.S. Circuit Judge for the Ninth

Circuit 1364

Questioning by:

Chairman Hatch 1365

Senator Feinstein 1368

Senator Grassley 1369

Carlos R. Moreno, of California, to be U.S. District Judge for the Central

District of California 1364

Questioning by:

Chairman Hatch 1365

Senator Feinstein 1368

Senator Grassley 1369

Richard W. Story, of Georgia, to be U.S. District Judge for the Northern

District of Georgia 1364

Questioning by:

Chairman Hatch 1365

Senator Feinstein 1368

Senator Grassley 1369

Christine O.C. Miller, of the District of Columbia, to be a Judge of the

U.S. Court of Federal Claims 1365

Questioning by:

Chairman Hatch 1365

Senator Feinstein 1368

Senator Grassley 1369

ALPHABETICAL LIST AND MATERWL SUBMITTED

Feinstein, Hon. Dianne:

Letter to Hon. Orrin G. Hatch, chairman. Senate Committee on the

Judiciary, Washington, DC, from Governor George Deukmejian, 35th

Governor of CaUfornia, Los Angeles, CA, Oct. 6, 1997 1363

Miller, Christine O.C:

Testimony 1365

Questionnaire 1476

Moreno, Carlos R.:

Testimony 1364

Questionnaire 1417

Silverman, Barry G.:

Testimony 1364

Questionnaire 1376

Story, Richard W.;

Testimony 1364

Questionnaire 1442
XI

Page

ALPHABETICAL LIST OF NOMINEES

FOR FEDERAL APPOINTMENTS

Page

Adelman, Lynn S., of Wisconsin, to be U.S. District Judge for the Eastern

District of Wisconsin 1011

.Aiken, Ann L., of Oregon, to be U.S. District Judge for the District

of Oregon 687

Breyer, Charles R., of California, to be U.S. District Judge for the Northern

District of California 1011

Caputo. A. Richard, of Pennsylvania, to be U.S. District Judge for the Middle

District of Pennsylvania 20

Casey. Richard Conway, of New York, to be U.S. District Judge for the

Southern District of New York 369

Damrell, Frank C, Jr., of California, to be U.S. District Judge for the Eastern

District of California 1011

Friedman, Jerome B., of Virginia, to be U.S. District Judge for the Eastern

District of Virginia 687

Gwin, James S., of Ohio, to be U.S. District Judge for the Northern District

of Ohio 369

Jenkins. Martin J., of California, to be U.S. District Judge for the Northern

District of California 1012

Kauffinan, Bruce C, of Pennsylvania, to be U.S. District Judge for the Eastem District of Pennsylvania 15

Kimball, Dale A., of Utah, to be U.S. District Judge for the District of

Utah 368

Lazzara, Richard A., of Florida, to be U.S. District Judge for the Middle

District of Florida 19

Marbley, Algenon L., of Ohio, to be U.S. District Judge for the Southern

District of Ohio 368

Marcus. Stanley, of Florida, to be U.S. Circuit Judge for the Eleventh

Circuit 680

Massiah-Jackson, Frederica A., of Pennsylvania, to be U.S. District Judge

for the Eastern District of Pennsylvania 1019

McCuskey, Michael P., of Illinois, to be U.S. District Judge for the Central

District of Illinois 1012

Miller, Christine O.C., of the District of Columbia, to be a Judge of the

U.S. Court of Federal Claims 1365

Moon, Norman K., of Virginia, to be U.S. District Judge for the Western

District of Virginia 686

Moreno, Carlos R., of California, to be U.S. District Judge for the Central

District of California 1364

Murphv, G. Patrick, of Illinois, to be U.S. District Judge for the Southern

District of Illinois 1013

Rendell, Marjorie O.. of Pennsylvania, to be U.S. Circuit Judge for the Third

Circuit 9

Silverman, Barry G., of Arizona, to be U.S. Circuit Judge for the Ninth

Circuit 1364

Sippel. Rodney W., of Missouri, to be U.S. District Judge for the Eastern

and Western Districts of Missouri 684

Siragusa, Charles J., of New York, to be U.S. District Judge for the Western

District of New York 367

Sotomayor, Sonia, of New York, to be U.S. Circuit Judge for the Second

Circuit 355

Story, Richard W., of Georgia, to be U.S. District Judge for the Northern

District of Georgia 1364

Ware, James S., of CaUfomia, to be U.S. Circuit Judge for the Ninth Circuit .. 1007

NOMINATIONS OF MARJORIE O. RENDELL

(U.S. CIRCUIT JUDGE); BRUCE W.

KAUFFMAN, RICHARD A. LAZZARA, AND A.

RICHARD CAPUTO (U.S. DISTRICT JUDGES)

FRIDAY, SEPTEMBER 5, 1997

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to notice, at 9:02 a.m., in room

SD-226, Dirksen Senate Office Building, Hon. Arlen Specter presiding.

Also present: Senators Sessions, Biden, and Kohl.

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA

Senator SPECTER. Good morning, ladies and gentlemen. We will

begin the confirmation hearings this morning. We are pleased to

have with us four very distinguished nominees—Judge Marjorie

Rendell, now a judge of the U.S. District Court for the Eastern District of Pennsylvania, for confirmation for circuit court of appeals.

We have former Justice Bruce Kauffman, justice of the Supreme

Court of Pennsylvania, for the U.S. District Court for the Eastern

District. We have Mr. A, Richard Caputo for the U.S. District Court

for the Middle District, and Judge Richard A. Lazzara for the Middle District of Florida.

We had hoped to have hearings this morning for Judge Frederica

Massiah-Jackson, and also for Mr. Bingler. I will put in the record

an exchange of letters which I had with Senator Hatch yesterday

asking about Judge Massiah-Jackson for her hearing today, and

Senator Hatch's reply saying that the committee could not process

Judge Massiah-Jackson in time for this hearing.

Senator Hatch says:

At your request, the Judiciary Committee has undertaken an effort to promptly

review and process all pending Pennsylvania judicial nominees. I appreciate your

concern about Judge Massiah-Jackson not being included. As you know, the committee conducts its own review of nominees' writings, judicial opinions, and background

materials. This review is, as a matter of course, thorough and time-consuming. Unfortunately, Judge Massiah-Jackson did not provide the committee with her committee questionnaire until August 15, more than a week after the other Pennsylvania

(fistrict court nominees.

While the committee has endeavored to complete its review of her nomination, we

have to date been unable to do so. It is my hope that, assuming all paperwork is

complete and fully reviewed, her nomination will be ready for consideration at the

next Judiciary Committee judicial nominations hearings presently slated for later

this month.

(1)
[The letters referred to follow:]

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC. September 4, 1997.

Senator ORRIN HATCH,

Chairman, Senate Judiciary Committee,

Russell Senate Office Building, Washington, DC.

DEAR ORRIN: AS you know, I had hoped that Judge Frederica A. Massiah-Jackson,

a nominee to be a judge on the District Court for the Eastern District of Pennsylvania, would be able to testify at the judicial nominations hearing we are holding

tomorrow morning. 1 think that Judge Massiah-Jackson would make a fine addition

to the bench and I would like to see her nomination move forward.

To my disappointment, I have learned that Judge Massiah-Jackson is not on the

witness list for tomorrow's hearing.

I would appreciate it if you could let me know the reason why Judge MassiahJackson was not invited to testify at tomorrow's hearing.

Sincerely,

ARLEN SPECTER.

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, September 4, 1997.

Hon. ARLEN SPECTER,

Hart Senate Office Building,

Washington, DC.

DEAR ARLEN: Thank you for your letter of September 4, 1997. At your request,

the Judiciary has undertaken an effort to promptly review and process all pending

Pennsylvania judicial nominees. 1 appreciate your expression of concern about Judge

Frederica Massiah-Jackson's not being inclucfed on this week's nominations hearing

agenda.

As you know, the Committee conducts its own review of nominees' writings, judicial opinions, and background materials. This review is, as a matter of course, thorough and time-consuming.

tjnfortunately, Judge Massiah-Jackson did not provide the Committee with her

Committee Questionnaire until August 15, 1997, more than a week after the other

Pennsylvania District Court nominees. While the Committee has endeavored to complete its review of her nomination, we have to date been unable to do so.

It is my hope that, assuming all paperwork is complete and fully reviewed, her

nomination will be ready for consideration at the next Judiciary Committee judicial

nominations hearing, presently slated for later this month.

Thank you for your patience.

Sincerely,

ORRIN G. HATCH, Chairman.

Senator SPECTER. I have discussed this matter with Senator

Hatch and it is my hope we could have Judge Massiah-Jackson on

a week after next, perhaps as early as September 16.

As to Mr. Bingler, whose name has been submitted for the western district, we are continuing to work on that, and we shall continue to do so. It is my hope we will be able to ultimately bring

him forward for confirmation.

We have with us this morning two of my distinguished colleagues, Senator Connie Mack of Florida and Senator Bob Graham

of Florida. If you gentlemen would step forward, the committee,

after deferring to my ranking member, Senator Kohl, would be glad

to hear from you.

Senator KoHL. Thank you, Mr. Chairman. I do not have a statement today, but I would like to thank you for chairing this hearing

and I would like to put a statement into the record by Senator

Leahy. Senator Leahy is concerned about the pace of judicial nominations. We currently have more than 100 judicial vacancies, and
8

I am concerned, as he is, and so, as I would imagine, are you, Mr.

Chairman.

I ask unanimous consent that Senator Leahy's statement be

made a part of the record.

Senator SPECTER. Without objection, it will be made a part of the

record.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE

OF VERMONT

This year the Senate has confirmed only 11 federal judges, during a period in

which we have seen 112 vacancies. We have two nominees from the June 25 hearings who still need to be considered and reported by the Judiciary Committee and

nominees pending on the Senate Executive calendar from as long ago as June 12.

This is only the fifth confirmation hearing for judicial nominees that this Committee has held all year. From the first days of this session of Congress, this Committee

has never had pending before it fewer than 20 judicial nominees for hearings. This

Committee's backlog has now doubled and is more than 40. Many of these nominations, pending for longer than a year, have been re-nominated by the President after

having been held up during the stall last year. Some of those pending before the

Committee had had hearings or were reported favorably by the Committee last Congress but have been passed over so far this year as the vacancies for which they

were nominated more than two years ago persist. The President has sent us 61 judicial nominations so far this year and is sending more each week.

While I commend Senator Specter for chairing this hearing and including nominees to the Third Circuit and District Courts in the Eastern and Middle District

of Pennsylvania, I remain concerned for those nominees, vacancies and litigants who

are not from a Circuit or District with an active Republican member on the Judiciary Committee. Even Senator Specter was unable to have included the two other

nominees for judgeships in the Eastern and Western Districts of Pennsylvania at

this hearing. And while I am delighted to see the Committee moving forward

promptly on nominations received at the end of July, that does not excuse us for

Having passed over and not held hearings on dozens of other nominees throughout

the year. The Committee has 12 nominations that have been pending for more than

a year, including seven nominations that have been pending since 1995. I am always pleased when the Committee moves promptly on nominees, but that does not

excuse the Committee's delay in the consideration of nominees like Professor Fletcher, Judge Beaty, Judge Paez, Ms. McKeown, Ms. Aiken, Ms. MoUway and the others.

We continue to fall farther and farther behind the pace established by Senator

Hatch in the last Congress. By this time two years ago. Senator Hatch has held

eight confirmation hearings involving 36 judicial nominees and the Senate had proceeded to confirm 35 federal judges.

I have spoken often about the crisis being created by the 101 vacancies that are

being perpetuated on the federal courts around the country. At the rate that we are

currently going this year, more and more vacancies are continuing to mount over

longer ana longer times to the detriment of greater numbers of Americans and the

national cause of prompt justice. We are not even keeping up with attrition.

Chief Justice Plehnquist has repeatedly acknowledged me crisis being inflicted

upon the federal judiciary and, I believe, upon all Americans. The Chief Justice has

called the rising number of vacancies "the most immediate problem we face in the

federal judiciary." The Courts Subcommittee heard testimony just yesterday from

judges from the Second and Eighth Circuits about the adverse impact of vacancies

on the ability of the Federal courts to do justice. The effect is seen in extended delay

in the hearing and determination of cases and the frustration that litigants are

forced to endure. The crushing caseload will force federal courts to rely more and

more on senior judges, visiting judges and court staff.

The Attorney General spoke recently about the "vacancy crisis that has left so

many Americans waiting for justice" and noted that vacancies, fihngs, caseloads,

and backlogs are all increasing and that we are experiencing an "unprecedented

slowdown in the confirmation process" that has "very real and very detrimental impacts on all parts of our justice system." She spoke about the hundreds of appellate

arguments being canceled and federal judges who endure entire years without hearing a single dvil case. She said: "Quite simply without enough judges, our laws will

become empty promises and 'swift justice' wilf become an oxymoron, and without the
independence they need to uphold those laws, our judges will become hostages to

politics instead of being the guardians of our principles."

Today we will hear from a few of the highly-qualified nominees pending before

the Committee, including one who was first nominated more than 16 months ago.

I look forward to prompt and favorable action on each of them.

As we enter the last weeks of this session of Congress, I urge the Republican majority to reconsider its strategy and proceed to consider and confirm the nominees

who are before us.

Senator SPECTER. I share Senator Leahy's concern. Of course,

there could be no complaints about this processing. These nominations were submitted in late July and for some magical reason they

have appeared out of turn today; at least the Pennsylvania ones

were. I would have to ask the Senators from Florida about their

timing.

Welcome, Senator Graham and Senator Mack. As our custom is

on seniority, we turn first to Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM

THE STATE OF FLORIDA

Senator GRAHAM. Thank you, Mr. Chairman and Senator Kohl.

I appreciate this hearing this morning for an outstanding Floridian

who has been nominated by the President for the Middle Judicial

District of Florida.

I have a full statement which I would like to ask to be submitted

for the record.

Senator SPECTER. Without objection, it will be made a part of the

record.

Senator GRAHAM. In deference to the heavy schedule that you

have, I will summarize.

Mr. Chairman, it is a tremendous honor to introduce to this committee Judge Richard Lazzara for your consideration as the nominee for the Middle Judicial District of Florida. Before I begin, I

would like to welcome Judge Lazzara and his son, Damon, who

joins him today.

Judge and Damon, if you would please stand up?

[The persons stood.]

Senator GRAHAM. I am pleased to be joined today by my good

friend and colleague. Senator Mack, whose tireless efforts on behalf

of Judge Lazzara have made this hearing today possible, for which

I extend my deep appreciation.

Mr. Chairman, you and Senator Kohl are well aware of the critical responsibility that we share as Members of the U.S. Senate in

the review of those individuals who have been nominated to serve

in lifetime positions in our Federal court system. It is vital that

these appointments command our closest attention and scrutiny,

which I know has been the tradition of this committee. I am certain that in applying that scrutiny, you will be as impressed as we

are with the qualifications of Judge Lazzara for this important position.

Let me just take a moment to talk about the Middle District of

Florida. The Middle District of Florida is geographically an extremely large judicial district, stretching some 400 miles, including

cities such as Jacksonville, Orlando, Tampa, St. Petersburg, and

Senator Mack's hometown of Ft. Myers. This district is projected to

grow by more than 1.5 million citizens in the next 10 years. That
growth is larger than the current population of 13 of our States

and the District of Columbia.

It is also a district which has had a major caseload. The criminal

defendants per judge in the middle district, as an example, are approximately 50 percent higher than the national average. At the

end of 1996, there were over 1,500 criminal cases pending in the

Middle District of Florida. Therefore, your holding this hearing

today and adding Judge Lazzara to the bench, which will bring this

bench to a full complement, is extremely important.

Mr. Chairman, just briefly to review the distinguished career of

Judge Lazzara, a graduate of the University of Florida Law School,

he has served with distinction in a number of professional and

community positions, as well as a long and distinguished career on

the State judiciary. He was nominated by both Republican and

Democratic Governors for increasing positions of responsibility in

the State judiciary, now serving as a member of the Third District

Court of Appeals, which is the intermediate appellate position in

our State system.

His performance at every level of the judiciary has met with

overwhelming praise. He received the highest approval rating of

any of Hillsborough County judges when he served in that position

in 1987, of any 13th Judicial Circuit judge when he was in that position in 1993, and now of those colleagues with whom he serves

as a Second District appellate judge in 1995, was selected with the

highest approval rating. He has received many awards for his service.

Mr. Chairman, I recommend in the highest form Judge Lazzara

for his preparation, his experience, his judicial demeanor, his intelligence, his understanding of what it means to be a jurist. He will

bring distinction to the Federal judiciary. I urge your earliest consideration of this nomination.

Senator SPECTER. Thank you very much, Senator Graham. We

appreciate your being here.

[The prepared statement of Senator Graham and a newspaper

article follows:]

PREPARED STATEMENT OF SENATOR BOB GRAHAM

Chairman Hatch, Senator Leahy, members of the Judiciary Committee, it is a tremendotis honor to introduce Richard Lazzara for your consideration as the next

judge in the Middle Judicial District of Florida.

Before I begin, I want to welcome Judge Lazzara and his son Damon to Washington. I had the privilege of meeting with both of them in my ofTice before this morning's hearing. Mr. Chairman, Judge Lazzara has primarily earned this nomination

through his diligent service and distinguished legal and judicial record. But I think

that the real measure of accomplishment in any individual's life is his or her children. And in this case, Judge Lazzara has been very successful.

I also want to thank my good friend and fellow Floridian Connie Mack for his tireless efforts on behalf of this nomination and his presence here today. For nearly a

decade, I have been extremely privileged to work closely with Senator Mack. I have

also had the good fortune of living across the street from him.

Mr. Chairman, perhaps our most critical responsibility as a legislative body is the

review of those individuals who are selected to serve at all levels of our federal court

system. It is vital that these appointments command our closest attention and scrutiny, and I want to commend you and Senator Leahy for your faithful dedication

to this task. In the last year alone, your leadership has led to the confirmation of

three new federal judges in Florida—Robert Hinkle in the Northern District, and

Alan Gold and Don Middlebrooks on the Southern District.
6

I am hopeful that this hearing will be the first step toward the confirmation of

Richard Lazzra as the newest judge in Florida's large and rapidly growing Middle

District, which stretches 400 miles and includes the major cities of Jacksonville, Orlando, Tampa, St. Petersburg, and Senator Mack's hometown of Fort Myers. It is

Projected to have more than 1.5 million new residents in the next ten years—a niiiner greater than the population in thirteen states.

While not a permanent solution. Judge Lazzara's addition to the federal bench

would be a welcome relief to the overburdened judges in one of the most underserved judicial districts in the nation. Criminal defendants per judge in the Middle

District are approximately 50% higher than the national average. In fact, at the end

of 1996, right before Judge Lazzara was nominated, over 1500 criminal cases were

pending.

Just as the confirmation ofjudicial appointees deserves our best efforts, the American people served by those jurists have a right to expect judges who bring unquestioned competence, strong integrity, devotion to duty, and diversity of experience

with them to the federal bench.

Throughout his career—as a student at the University of Florida Law School, a

Hillsborough County attorney and prosecutor, a distinguished member of the Tampa

Bay area legal community, and an outstanding jurist at the county, cinniit, and appellate levels—Richard Lazzara has met—and exceeded—this standard of excellence

time and time again.

Floridians began relying on Richard Lazzara's judgment more than twenty-five

years ago. His record of exemplary yet humble service to others at the University

of Florida Law School, where he bravely complemented his studies with perhaps the

most challenging assignment of his career—the often thankless but always important job of dormitory resident adviser.

Almost without hesitation, Judge Lazzara's graduation from law school was followed by three years of public service. He worked in the Office of the Hillsborough

County Solicitor and then as an Assistant State Attorney. This prosecutorial experience turned into nearly fifteen years of respected work in private practice.

In 1987, when he was elected a Hillsborough County Judge, Richard Lazzara entered the phase of his career that would earn him the most distinction.

In ten years as a judge, his intelligence, competence, and fairness has earned him

near-universal respect and bipartisan attention. In 1988, then-Governor Bob Martinez, a Republican, appointed Judge Lazzara to a seat on Florida's Thirteenth Judicial Circuit. Five years later. Democratic Governor Lawton Chiles elevated him to

the state's Second District Court of Appeal.

His performance at every level of the state judiciary has been met with overwhelming praise. Judge Lazzara received the highest approval rating of any

Hillsborough County Judge in 1987; of any Thirteenth Judicial Circuit Judge in

1993; and of any Second District Appellate Judge in 1995. The Young Lawyers Section of the Hillsborough County Bar Association named him their "Outstanding Jurist of 1991-1992." And in 1990, he received the highest rating possible in sentencing habitual offenders.

Throughout his career, Richard Lazzara has been respected by his peers, hailed

for his outstanding service to the people of Florida, and praised for his skill and

competence in the legal arena. I have no doubt that this pattern of distinction will

continue once he is invested as federal judge in the Middle District of Florida.

Mr. Chairman, perhaps the best way for me to conclude is to express my unreserved agreement with an editorial that was published in the Tampa Tribune on

January 7, 1997. I hope that the members of this Committee will share in its astute

observation: "Richard Lazzara is just the type of federal judge the country needs."

I agree, and urge his speedy confirmation.

•rhank you, I ask that the full text of the Tampa Tribune editorial entitled

"Lazzara Deserves Federal Appointment" be printed in the Record following my remarks.

(From the Tampa Tribune, Jan. 7, 1997)

LAZZARA DESERVES FEDERAL APPOINTMET^T

Ask any lawyer in West Central Florida to name the best judges in the area and

Judge Richard Lazzara's name is invariably on the list.

The former circuit judge, now on the state's 2nd District Court of Appeal, is

known for his keen legal mind, his calm demeanor and his efficiently handling of
Lawyers are often awed by Lazzara's agile intellect and knowledge of the law, yet

he is a modest man without a shred of the arrogance that sometimes afflicts those

who put on judges' robes. An example of Lazzara s character and his devotion to the

law was found last spring when he took time from his lofty appeals court position

to fill in for a county judge.

So when Sen. Bob Graham recommended Lazzara for a federal judgeship last

year, it was hailed by judges and lawyers as an inspired choice. President Bill Clinton, upon Graham's advice, make the nomination.

Unfortunately, the Senate did not approve the nomination during the presidential

election year. Now President Clinton must renominate Lazzara and the Senate must

approve the appointment.

We don't blame the Senate for being cautious about judicial nominations. The

country doesn't need any more liberal judges who try to set social policy from the

bench. But Lazzara, who is known for being apolitical, is not of that stripe. His approach to the law is conservative. He is interested in interpreting the law as it is,

not as he might like it to be.

Scholarly, hard-working, not given to theatrics or self-aggrandizement, Lazzara is

just the type of federaljudge the country needs.

We urge President Clinton to renominate Lazzara to the federal bench and the

Senate to approve the appointment of this estimable jurist.

Senator SPECTER. Senator Mack.

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

THE STATE OF FLORffiA

Senator Mack. Senator Specter, Senator Kohl, again I thank you

for holding this hearing. I, too, am delighted to be here today to

recommend Judge Richard Lazzara for confirmation to the position

of U.S. district judge for the Middle District of Florida.

This appointment comes at a crucial time for this district. I am

going to take a moment, too, to talk a little bit about the Middle

District of Florida because it is unique, with compelling demands.

It stretches from Jacksonville to Ft. Myers and contains 7.8 million

people, more than half of the State's population. These dynamics

and the rate of growth in the State have contributed to a situation

of crisis proportions for the district.

The middle district currently has the Nation's eighth heaviest

caseload, and the chief U.S. district judge, Elizabeth Kovachevich,

has told me on numerous occasions that the current backlog is

growing at an alarming proportion, and it is for that reason that

Senator Graham and I are committed to addressing these problems.

In the meantime, the middle district is doing what it can to alleviate the situation. The district recently announced an intention to

hold an unprecedented accelerated civil trial calendar in June,

July, and August 1998, in which judges from the Jacksonville and

Orlando divisions will join the U.S. district judges in Tampa to assist the Tampa-Ft. Myers division with their emergency case backlog. It is clear that Judge Lazzara will be a welcome addition to

the Federal bench there.

I have heard from many people in the Florida legal community

about Judge Lazzara's fitness for the Federal bench. He is highly

respected in the Tampa area, where he is currently on the State

appellate bench. The "Tampa Tribune had these positive comments

on Judge Lazzara's nomination, and I quote, "The country doesn't

need any more liberal judges who try to set social policy from the

bench. But Lazzara, who is known for being apolitical, is not of the

stripe. His approach to the law is conservative." He is also viewed

by those who know him as a warm and decent man.
8

I, too, believe that he has shown himself to be a conservative jurist, interpreting statutes and precedents in a strict fashion even

in situations where the outcome is not to his liking or the public's

liking. With the current and appropriate emphasis we are placing

on opposing judicial activism, Judge Lazzara appears to be the

kind of jurist we should enthusiastically confirm. I would also like

to note that back in 1992, my own judicial advisory commission

recommended Judge Lazzara for nomination to the Federal bench.

I want to thank the committee for providing me with the opportunity to introduce Judge Lazzara. I know that Senator Graham

and I both appreciate the timely consideration which has been

given to other Florida judicial nominees in this Congress, and ask

that in light of the compelling demands upon the Middle District

of Florida, Judge Lazzara be confirmed swiftly by the committee

and the full Senate.

I thank you, Mr. Chairman.

Senator SPECTER. Well, thank you very much, Senator Mack.

[The prepared statement of Senator Mack follows:]

PREPARED STATEMENT OF SENATOR CONNIE MACK

Mr. Chairman, I am delighted to be here today to recommend Judge Richard

Lazzara for confirmation to tne position of United States District Judge for the Middle District of Florida. This appointment comes at a critical time for this district.

The Middle District of Florida is a unique one with compelling demands. It

stretches from Jacksonville to Ft. Myers and contains 7.8 million people—more than

half of the state's population. These dynamics and the rate of growth in the state

have contributed to a situation of crisis proportions for this district. The Middle District currently has the nation's eighth heaviest caseload, and Chief U.S. District

Judge Elizabeth Kovachevich has told me on numerous occasions that the current

backlog is growing at an alarming proportion. It is a problem Senator Graham and

I are committed to addressing.

In the meantime, the Middle District is doing what it can to alleviate the situation. The District recently announced an intention to hold an unprecedented accelerated civil trial calendar in June, July and August of 1998 in which judges from the

Jacksonville and Orlando divisions will join the U.S. District judges in Tampa to

assist the Tampa/Ft. Myers division with their emergency case backlog. It is cleaj"

that Judge Lazzara will be a welcome addition to the federal bench there.

I have heard from many people in the Florida legal community about Judge

Lazzara's fitness for the federal bench. He is highly respected in the Tampa area

where he is currently on the state appellate bench. The Tampa Tribune had these

positive comments on Judge Lazzara's nomination: "The country doesn't need any

more liberal judges who try to set social policy from the bench. But Lazzara, who

is known for being apolitical, is not of that stripe. His approach to the law is conservative." He is also viewed by those who know him as a warm and decent man.

I, too, believe that he has shown himself to be a conservative jurist—interpreting

statutes and precedents in a strict fashion even in situations where the outcome is

not to his liking or the public's liking. With the current, and appropriate, emphasis

we are placing upon opposing judicial activism. Judge Lazzara appears to be the

kind ofjurist we should enthusiastically confirm.

I woiUd also like to note that back in 1992 my own Judicial Advisory Commission

recommended Judge Lazzara for nomination to the federal bench. I want to thank

the Committee for providing me the opportunity to introduce Judge Lazzara. I know

that Senator Graham and I both appreciate the timely consideration which has been

given to other Florida judicial nominees by this Congress, and ask that, in light of

the compelling demands upon the Middle District of Florida, Judge Lazzara be confirmed swiftly by this Committee and the full Senate. Thank you.

Senator SPECTER. We will move as expeditiously as possible. I

have a very high regard for the work of the Federal judiciary. I

have been a practicing lawyer all my life; I consider that up to the

moment. I know how important that processing is and we will work

to accomplish that.
I want to note the presence of Staff Director Manus Cooney today

and I want to thank him personally for expediting the process.

When the nominations came in as to the—thank you very much,

Senator Mack and Senator Graham. I know Senator Mack is

straining at the starting point for the next race and I know how

busy you are, so we appreciate your being here.

Senator MACK. Thank you.

Senator SPECTER. I was saying I want to thank Mr. Cooney especially. After the nominations were submitted, he and I talked on

a number of occasions in the month of August and it has not been

easy to have these set up during the first week back from recess.

So we thank you, Mr. Cooney.

Senator Santorum had wanted to be here, but is in Pittsburgh

today on family business and he sends his regrets. I know that he

is very supportive of the Pennsylvania nominees who are here.

At this time, I would like to ask Judge Rendell to step forward,

please.

While you are standing, judge, will you raise your right hand? Do

you solemnly swear that the testimony you are about to give in this

proceeding will be the truth, the whole truth and nothing but the

truth, so help you Gk)d?

Judge RENDELL. I do.

Senator Specter. It is a pleasure to welcome you here. Judge

Rendell. You have an outstanding record as a district court judge,

in the practice of law, and an outstanding academic record, graduating from the Villanova Law School in 1973 and Phi Beta Kappa

from the University of Pennsylvania in 1969.

On a personal note, so that my own bias will be known, I have

known Judge Rendell since she was a college student and she

dated Ed Rendell, who then had the lofty position of assistant district attorney in Philadelphia and now is the mayor of Philadelphia, America's mayor as well.

Judge Rendell, we welcome you here.

TESTIMONY OF MARJORIE O. RENDELL, OF PENNSYLVANIA,

TO BE U.S. CIRCUIT JUDGE FOR THE THIRD CIRCUIT

Judge RENDELL. Thank you, Senator.

Senator SPECTER. Would you care to make any opening statement?

Judge RENDELL. I would like to have the record reflect those

members of my family who are present with me.

Senator SPECTER. If you would introduce them, we would appreciate it.

Judge RENDELL. Yes. My immediate family—my husband, Ed

Rendell, is on his way. The vagaries of the Metroliner probably

have affected his being here, but I know he was on the 7 a.m. or

whatever.

From my immediate family, our son Jesse, who was here the last

time I had a hearing, is in his second day of his senior year in high

school, so he is tending to his educational duties.

I am pleased to have my chambers family here; my secretary,

Beth Cummings, who has been with me for 15 years; my past,

former law clerk, Cheryl Solomon, who is now with a law firm here

in Washington; and my current law clerks, Adam Levin, who grad-
10

uated from NYU Law School, as well as Alison Conn, a graduate

of Yale Law School. They have just started their tenure with me,

so I am very pleased to have them.

Senator SPECTER. If you would all stand, we would appreciate it.

[The persons stood.]

Senator SPECTER. Thank you all very much.

Judge RENDELL. Thank you. Senator, and in addition to that, I

would just like to say I am extremely pleased and honored to be

here and am thankful to the committee for having this hearing.

Senator SPECTER. I should say. Judge Rendell, that your nomination has been pending for some time, unlike the district court nominees, and we will not burden the record with the reasons why. We

are just glad to have you here today and move the process.

Judge RENDELL. Thank you.

QUESTIONING BY SENATOR SPECTER

Senator SPECTER. We are on a tight time schedule, which is customary around here. We have a vote scheduled at 9:50 this morning, and the Governmental Affairs Committee is going to start

hearings at 10 and I am on that committee and early up on a

round of questioning. But I know we have sufficient time to complete our work, but we will move expeditiously.

Judge Rendell, are you committed to faithfully following the Supreme Court precedent and the rulings of other superior courts in

your legal decisions?

Judge RENDELL. Yes, I am. Senator.

Senator SPECTER. If you are presented with a case of first impression, what principles will guide you or what methods will you

employ in deciding that case?

Judge RENDELL. If the case involves an issue of statutory interpretation, I would look first to the statute and to its plain meaning.

Obviously, statutes are presumed to be constitutional in the first

instance. And if the meaning were not plain, if there were ambiguity, I would look then to the legislative history to try to divine the

legislative intent, knowing full well, however, that sometimes that

can be misleading. So, that would involve some careful scrutiny.

If the matter were a matter of interpreting the Constitution, I

would look again to the text of the Constitution and to the historical perspective and background of it. And in all instances, I would

look at other precedent, or if not precedent, other cases, analogous

cases decided by the Supreme Court or fellow circuit courts for

guidance in how to make the determination.

Senator SPECTER. Could you cite any Supreme Court opinion

which you think is particularly well reasoned?

Judge RENDELL. I think the Dalbert case that has to do with expert evidence is very well reasoned and has been of great help to

the trial courts in helping us determine the reliability of expert

opinion which I think is becoming increasingly important. And

Dalbert is well reasoned in that it lays out tests clearly for us to

follow, so I would cite that case.

Senator SPECTER. Can you point to any case or specific areas of

constitutional law where you think the Supreme Court improperly

departed from the principles of the Constitution?
11

Judge RENDELL. Well, I guess I would make the judgment of that

kind of case where the Supreme Court itself has made a judgment

that it has erred rather tnan myself presuming to say they were

wrong and, for instance, Plessy v. Ferguson would be a case that

I would say fits that description.

Senator SPECTER. Judge Rendell, if you believed the Supreme

Court had seriously erred in rendering a decision, how would you

handle that in applying that law to a case pending before you?

Judge RENDELL. I would apply the Supreme Court precedent.

That is the law of the land.

Senator SPECTER. What is your judgment on the constitutionality

of the death penalty?

Judge RENDELL. The Supreme Court has held it constitutional

and I will follow that in my decisionmaking.

Senator SPECTER. Have you had any death penalty cases come

before you as a district court judge?

Judge RENDELL. I have had the trial of a case that was being

prosecuted as a death penalty case under the crime bill, and I convened a jury and we were in the midst of a trial when the matter

was pled, a guilty plea. So I was embarking upon, in fact, the first

death penalty case in our district. That was last fall.

Senator SPECTER. DO you have any conscientious scruples which

would inhibit or prevent you from imposing or upholding the death

penalty?

Judge RENDELL. No, I do not. Senator.

Senator SPECTER. DO you believe it is appropriate for the American Bar Association to take stands on political issues such as abortion, affirmative action, gun control?

Judge RENDELL. I guess the appropriateness of the activities of

any group would depend upon its mission. I am not personally familiar with the mission of the ABA.

Senator SPECTER. Have you been a member of the ABA?

Judge RENDELL. I have in the past. I am not currently. When I

was in practice, in commercial practice, I found it helpful to receive

their publications, but I have never been active. I think it is difficult, if they are purporting to speak on behalf of all of the bar,

for them to be taking positions on one side or the other of an issue.

Senator SPECTER. I am not sure about the appropriateness of

that question, but it is part of the boilerplate.

Judge RENDELL. Yes.

Senator SPECTER. Since you are a friend and since I am presiding, I am going to ask you all the boilerplate questions.

Judge RENDELL. I didn't address it from the standpoint of ethics

and obviously these are—I don't have any such cases before me.

This hasn't come before me.

Senator SPECTER. I have a lot of views on the ABA, but I don't

know that they would qualify or disqualify me for anything.

On the subject of judicial activism, we always take up this question, and with all the preparation, I don't know that it is possible

for a nominee to give an inappropriate answer. Would you care to

comment about the doctrine ofjudicial activism?

Judge RENDELL. I believe that a judge should decide the case before him or her, the issues before him or her, and not stray from

that. And I think my record on the district court shows that that
12

is what I do do. I believe it is inappropriate for a judge to go beyond that, in light of the separation of powers. Our duty is to enforce and interpret the law and not to legislate. I happen to believe

that and try to act accordingly.

Senator SPECTER. In one of my early sessions on the Judiciary

Committee, Senator Thurmond, then chairman, asked a nominee a

question: if you are confirmed, do you promise to be courteous? And

I was amazed at the question because what was a nominee to say

except yes. There were two nominees from Pennsylvania, Judge

Mansman, who is now on the circuit court, and Judge Caldwell,

and they both said yes.

Senator Thurmond said, the more power a person has, the more

courteous the person should be. And as I reflected on that, that is

as wise a comment as I have heard in this room. The competition

hasn't been too heavy for wise comments in this room. But that is

really important, and I say it only once to the nominees who are

here on the importance of courtesy.

I have seen in my experience in the courtroom, and I have had

a fair amount of it, a tremendous amount of conduct which is excessive by judges once they put on the robes—just really, really excessive. Once you are a judge, you are there. Some of us think a

constitutional amendment might be in order to have Federal judges

run every 6 years eind, of course, to have Senators serve for life.

[Laughter.]

But I say with great seriousness the import of Senator Thurmond's admonition that you really ought to keep in mind when litigants and parties are before you that you ought to consider yourself as if they are really before the public and almost up for election, to have your comments judged and your demeanor regarded

as if that were on the line.

Senator Kohl.

Senator KOHL. Thank you, Mr. Chairman.

Senator SPECTER. We have been joined, obviously, here by our

very distinguished colleague, former chairman of this committee,

former ranking member of this committee.

Senator BiDEN. Former everjrthing, but go right ahead. Senator.

Senator SPECTER. And current guru of this committee.

Senator Kohl.

QUESTIONING BY SENATOR KOHL

Senator KOHL. I will be brief. Judge Rendell. In your opinion,

what are the most important decisions of the Supreme Court in the

20th century—the most important three decisions, and why?

Judge RENDELL. I believe that in terms of changing the law and

setting precedent that will guide us—in the criminal area, I would

have to say Miranda is one which is important in terms of changing the thinking or the balance, if you will, in criminal law in a

way unlike it was the first half of this century.

Brown v. Board of Education obviously made a radical change in

our thinking at a time when the Supreme Court felt it was called

for. And the third area—I am trying to think of different areas of

the law—again, I get back to Dalbert and the way we conduct our

civil cases. So often, civil cases come before us with experts or presumed experts, and I think Dalbert will make a big change in the
13

law in terms of cases that do and do not proceed to trial based

upon the reliability of experts.

Senator KoHL. Thank you. Thank you, Mr. Chairman.

Senator SPECTER. Thank you very much, Senator Kohl.

Senator Sessions.

QUESTIONING BY SENATOR SESSIONS

Senator SESSIONS. Mr. Chairman, I think Pennsylvania and the

three nominees that we are seeing here from the State appear to

have exceptional qualifications and appear to be the kind of nominees that will do an outstanding job as Federal judges.

I congratulate you and Senator Santorum and the President for

nominees that appear to be skilled and capable with good experience. You are to be congratulated. I know you have worked hard

in trying to have the kind ofjudges that we need in America.

Good-quality judging is important. I take it very seriously. My

staff and I look at nominees and give it some thought. It is a lifetime appointment. Courtesy, fidelity to the law, hard work, and

case management are the cornerstones of a good Federal judge. I

have practiced full time before Federal judges for 15 years, and a

good judge makes it a pleasure to be in court and a bad judge can

make it a nightmare, or give you nightmares worrying about what

is going to happen the next day.

I think these nominees appear to be the kind of nominees that

will serve the Nation well. I do have another committee hearing to

attend. I also think the nominee from Florida, Mr. Lazzara—both

Senator Graham and Connie Mack are confident in his abilities,

and his background appears to be excellent, too.

So I think it is a good group of nominees and I expect to support

them.

Senator SPECTER. Thank you very much. Senator Sessions.

We have been joined by Mayor Rendell this morning. I understand he is here. Welcome, Mayor Rendell.

Senator BiDEN. Good thing he is not the nominee. [Laughter.]

Senator SPECTER. DO you think the cross might be a little more

extensive?

I am pleased to call on now our distinguished colleague, Senator

Biden.

QUESTIONING BY SENATOR BIDEN

Senator BiDEN. Mr. Chairman, I am completely objective in this

nomination. The fact that the judge is bright, well educated, honest, balanced, and conscientious, has nothing to do with the fact

that I have known her since I have been in high school. She is extremely qualified for this job. She will be a great addition to the

third circuit, which has one of the most distinguished reputations

of all the circuits in the history of the United States of America.

Some truly great jurists have served on that court.

Midge, as a judge, you will be taking a place where others have

sat who have literally changed the face of America for the better,

and I think you deserve to be there. I should ask you questions and

pretend I am interested in your answers. I know you too well. I

have too much respect for you, and I am completely confident m
14

your ability to not only be a sound jurist, but to be a truly great

one.

My one regret and I am sure it is yours, too, is that your dad

is not here. He would be, and is, extremely, extremely proud of you.

Judge RENDELL. Thank you.

Senator BIDEN. I still can't figure out why you married a guy

from New York, but I guess in time we will work that one out. I

welcome the mayor as well. I think, quite frankly, judge, you have

the better job. Clearly, the job security is better, and I think the

decisions, although difficult, may be even easier to make.

I am excited about your nomination.

Judge RENDELL. Thank you, Senator.

Senator BiDEN. And I compliment you. Senator Specter, for pushing the nomination. You know, everybody thinks that bipartisanship is dead in this country. In a lot of places, it is not.

I must say, Mr. Chairman, you have also recommended to the

President three other nominees. I am very regretful that one is not

here today for the western district. I hope it is not petulance that

is keeping that from occurring because he is as qualified as the others that are here today.

With the exception of the circuit judge, I must tell you, Mr.

Chairman, and tell the other judges, including Mr. Kauffman,

whom I know and think is a great appointment as well, that a lot

is going to depend, from this Senator's standpoint, on what happens to the judge from the Western District as to how—at any rate,

that is for another time and another fight and it is unrelated to you

directly and unrelated to Judge Rendell.

I am excited about it. Midge, and I tell you I think it is wonderful. Congratulations. I look forward to watching from afar your continued distinguished career.

Judge RENDELL. Thank you. Senator. I am honored and humbled

by your remarks. Thank you.

Senator SPECTER. Thank you very much. Senator Biden. I had

commented about Mr. Bingler earlier, John Bingler, and had said

that he had been nominated and hoped that we would have him

before this committee soon and that that was in process. I did not

give any further explanation, but

Senator BiDEN. By the way, I want to make it clear for the

record that everything in my experience, knowing you for a couple

of decades now—everything you have ever said, you have done, and

I have absolute, complete confidence that you are trying your best

to make sure Mr. Bingler gets before this committee. I appreciate

that very much and I will pursue that with you.

Senator SPECTER. Thank you very much, and the reason that

Judge Rendell married a New Yorker was because he had a very

important position. He was assistant district attorney in Philadelphia.

Judge RENDELL. For one Arlen Specter, who was then the district

attorney, I might add.

Senator SPECTER. We have had a lot of fun over the years.

Thank you very much. Judge Rendell. I think that your confirmation is as close to being assured as anything can be. Thank

you for coming.
15

Judge RENDELL. Thank you, Senator, and thank you again for

convening this hearing.

Senator SPECTER. Thank you.

We will now call the district court nominees together to speed

the process just a little. If you would all step forward. Justice

Kauffman, Judge Lazzara, and Mr. Caputo, and raise your right

hands, do you solemnly swear that the testimony you will give in

this proceeding will be the truth, the whole truth and nothing but

the truth, so help you God?

Mr. KAUFFMAN. I do.

Judge LAZZARA. I do.

Mr. CAPUTO. I do.

Senator BiDEN. Mr. Chairman, before you begin, may I clarify

the record? I referred to a circuit court nominee. I want the record

to show that I have known her since high school. We go back all

the way to high school; we have been friends for years. Thank you

very much, Mr. Chairman.

QUESTIONING BY SENATOR SPECTER

Senator SPECTER. Thank you very much, Senator Biden.

Let us begin with former justice Kauffman, who brings to this

position an outstanding record, having served on the Supreme

Court of Pennsylvania; an outstanding record as a litigator; an outstanding academic record from the University of Pennsylvania and

Yale Law School. He couldn't have made two better selections because they are the same as mine.

Mr. Kauffman, are you committed to faithfully following Supreme Court precedents and the court of appeals for your district?

TESTIMONY OF BRUCE W. KAUFFMAN, OF PENNSYLVANIA, TO

BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

Mr. KAUFFMAN. Yes, Senator, I am.

Senator SPECTER. If you are presented with a case of first impression, what principles will guide you in deciding the case?

Mr. KAUFFMAN. The principles of recognizing that a statute is

presumed to be constitutional; that it is the role of the courts not

to legislate, but to enforce the law, and therefore we search for

precedents that will help us interpret an ambiguous, if a statute

were to be ambiguous. And, finally, we look at legislative history,

if need be, but I repeat what was said earlier today that legislative

history sometimes can be very dangerous because it may be only

the opinion of one Member of the Congress, and therefore you have

to carefully scrutinize legislative history. Hopefully, the presumption of constitutionality of the statute will

Senator SPECTER. Can you cite any specific Supreme Court opinion which you think is particularly well reasoned?

Mr. KAUFFMAN. Yes; I think that the Adarand decision is a very

well reasoned decision.

Senator SPECTER. Can you cite any situation or case where you

think the Supreme Court has improperly departed from the principles of the Constitution?

Mr. KAUFFMAN. Yes; I think I agree with what Judge Rendell

said that you look at cases that the Supreme Court decided that
16

were improperly decided, such as Dred Scott and Plessy v. Ferguson.

Senator SPECTER. What would you do if you believed the Supreme Court or the court of appeals had seriously erred in rendering a decision? What would you do with respect to applying it to

the case before you?

Mr. KAUFFMAN. AS a Federal district judge, a trial judge, I would

be bound by the precedent of the higher courts.

Senator SPECTER. AS to the death penalty, had you sat on death

penalty cases when you were on the Supreme Court of Pennsylvania?

Mr. KAUFFMAN. Yes; I did, Senator.

Senator SPECTER. Do you have any moral compunction against

the imposition of the death penalty?

Mr. KAUFFMAN. I have no moral compunction that would prevent

me from enforcing the law.

Senator SPECTER. Had you been a part of the majority of the

court upholding the death penalty in cases where you sat on the

Supreme Court of Pennsylvania?

Mr. KAUFFMAN. I don't think that the opportunity came while I

was there to actually enforce a death penalty, but there were cases

where the principle came up and I had no moral compunction

against voting to enforce the law.

Senator SPECTER. Well, as you say that, I reflect we didn't have

the death penalty in Pennsylvania from 1972 for a long time, but

we had had a lot of cases come up where it was imposed but wasn't

carried out.

Mr. KAUFFMAN. Correct.

Senator SPECTER. We are going to skip the American Bar Association question in this round.

What is your view on judicial activism?

Mr. KAUFFMAN. Senator, I believe that the tripartite system of

government that we have is excellent. It has worked. Checks and

balances are important. The job of a Federal court is not to make

the law, but to interpret the law. The job of the legislature, the

Congress, is to make the law, and I think it is very important that

Federal judges understand that and conduct themselves accordingly.

Senator SPECTER. Justice Kauffman, you have had a very distinguished career and done a lot of hard work. You have had a lot of

lofty positions educationally, professionally, supreme court. You are

a big wheel. Can you make a commitment now to all those lawyers

and all those litigants come before you that you are going to keep

your temper all the time and you are going to be courteous to them

all the time?

Mr. KAUFFMAN. Senator, yes, indeed. This is something I have

wanted to

Senator SPECTER. OK, because I know you pretty well and it is

not an easy commitment to keep, and I am going to ask you to

think about this when they are before you and some lawyer is rambling, some litigant is not too directed, and all the temptation is

there and you have had a bad morning. Think about Senator Thurmond.
I had commented, Senator Biden, earlier about Senator Thurmond's comment to always be courteous.

Mr. KAUFFMAN. I promise you, Senator, I will never forget that.

Senator BiDEN. He is a man who has never lost his temper, I can

assure you. [Laughter.]

Senator SPECTER. Senator Kohl.

QUESTIONING BY SENATOR KOHL

Senator Kohl. Thank you, Mr. Chairman. I will ask just one

question.

Since their inception, the Federal sentencing guidelines have

been the subject of debate. In fact, at least one district court judge

resigned because, according to press accounts, he felt that the mandatory guidelines were too harsh and too rigid. Some appellate

judges, like Judge Easterbrook of the seventh circuit, have been

criticized for their unwillingness to allow district court judges to

depart from the sentencing guidelines, even for upward departures.

Is that a concern of yours generally, and is this an issue in the

third circuit?

Mr. KAUFFMAN. Senator Kohl, I believe that a Federal district

judge, no matter what his personal opinion may be of sentencing

guidelines, has no choice but to follow what the law is. The Congress decides that issue, and I promise you that I will very vigorously enforce the laws as passed by Congress and I will not let my

personal opinion of whether sentencing guidelines are good or bad

interfere with my administration of them.

Senator KOHL. Thank you. Thank you, Mr. Chairman.

Senator SPECTER. Senator Biden.

QUESTIONING BY SENATOR BIDEN

Senator BiDEN. I have one question that is going to sound like

I am not being serious at first blush. Justice Kauffman, but I am

very serious. Considering your stature and success in the law in

one of the Nation's largest cities, in a town renowned for very highpowered lawyers, why do you want to be a district court judge?

Mr. KAUFFMAN. Senator, this is something that I have wanted to

do all of my life. I grew up in a family where my dad was a lawyer

and a judge. Our family has always been devoted to public service.

I view this as the pinnacle of the profession and an unusual opportunity to serve the public for the rest of my life. It is something

that I want to do very much, and I have had to answer the same

question to my wife and some others, too, and believe me. Senator,

I have thought about that.

But I feel that I have been very lucky in life and that every lawyer, and me in particular, has the obligation to give back to this

country that has been so good to all of us. And I know this sounds

Uke platitudes, but I sincerely mean that I feel an obligation to devote the rest of my life to public service and that is what I hope,

if confirmed, I will be permitted to do.

Senator BiDEN. Well, I believe you do. I can't think of a better

reason why one should want to be a Federal judge. Thank you.

Mr. KAUFFMAN. Thank you. Senator.

Senator SPECTER. Thank you, Senator Biden.
18

Justice Kauffman, would you introduce your family and friends?

I did not have a chance earlier to greet all of your friends—I didn't

see him there—but I will later.

Mr. KAUFFMAN. Thank you, Senator. I first want to say I am

very honored, sincerely honored and grateful to be here this morning, and I do have my family and friends, both in person and by

representation.

My 89-year-old father who is in Florida is here in spirit and will

be watching this on CNN. This is something very important to him

in his life, too, and I am so happy that he is alive to see this.

My best friend and my wife is here, Carol Jackson Kauffman.

Senator SPECTER. Would you stand, Carol, please?

[Mrs. Kauffman stood.]

Senator SPECTER. Thank you.

Mr. KAUFFMAN. My son, one of my sons, Robert Andrew

Kauffman, who is a former assistant U.S. attorney in Philadelphia,

and now a lawyer, a trial lawyer, in the distinguished firm of

Reese, Smith, Shaw, McLean in Pennsylvania—he is here representing himself, of course, but also his brother, Brad, his sister,

Margie, and his sister, Laurie, and his sister, Christine, £ind my

brother, Alan, who practices law in Florida, and my grandchildren,

Stephanie and Sara. So I am very happy that Robert could be here

today, for a variety of reasons. My other children and brother and

grandchildren are not here.

Senator BiDEN. Bob, are you billing by the hour for that representation? [Laughter.]

Mr. R. KAUFFMAN. NO, Senator.

Mr. KAUFFMAN. I have some very—I am a lucky man. I have

some very dear friends.

Senator SPECTER. Justice Kauffman, may I ask you to expedite

this because we are going to have to conclude this hearing?

Mr. KAUFFMAN. Yes; here today are some wonderful friends of

mine—Leonard Sylk, of Philadelphia; Jerome Richter, Esq., of

Philadelphia; Ken Tepper, Esq., of Philadelphia; and my partner

representing not only himself, but the firm of Dilworth, Paxson,

Kalish & Kauffman, Thomas Groshens.

I also have—and I saved him for last; he should have been first—

a marvelous friend of mine here, Congressman Robert Andrews, of

New Jersey. Well, he was here just a few moments ago.

In any event, thank you, Senator. I appreciate it very much.

Senator SPECTER. Thank you very much. Justice Kauffman.

One final note about Justice KaufTman's extraordinary service

with his law firm, the Dilworth firm, in representing many of us

in the navy yard litigation on base closures; I think a really remarkable contribution.

QUESTIONING BY SENATOR SPECTER

Senator SPECTER. Judge Lazzara, welcome. You bring to this

hearing a very outstanding record academically, professionally, and

as a Florida State judge. Let me begin with a central question

which has been inquired into by the committee, and that is with

respect to a murder case which you presided over where you did

not impose the death penalty after that was recommended by the

jury. That has been inquired into in detail by staff, which has
19

found your explanation satisfactory, but I think it is important for

our record here that you state your reasons for departing from the

jury's recommendation in that case.

TESTBMEONY OF RICHARD A- LAZZARA, OF FLORmA, TO BE U.S.

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

Judge LAZZARA. Well, as you know. Senator, in connection with

those inquiries I have furnished a complete copy of the sentencing

transcript which reflects in detail my legal reasons for not doing so.

In Florida, the jury's recommendation as to whether to impose or

not to impose a death penalty is not binding on the trial judge.

That awesome responsibility falls on the trial judge. After reviewing exhaustively the law of the State of Florida relating to whether

the death penalty should or should not be imposed, and after strictly applying that law as it should be applied to the objective facts

that I found in the record, it was my determination that the death

penalty was not an appropriate sanction in that case. And therefore

I exercised what I believed to be and what I still believe to be good

judgment in sentencing Mr. Bailey to life imprisonment.

That was not the only case that I have had the occasion to consider whether the death penalty should be imposed. There were

two others which I have noted, I believe, in my response. In those

cases, I followed the exact same approach that I followed in Mr.

Bailey's case. I strictly applied the death penalty law, as I understood it, to the objective facts appearing in the record. Using that

same process in those other two cases, it was my determination

that the death penalty was the appropriate sanction.

Senator SPECTER. And you imposed that sentence?

Judge LAZZARA. And I imposed that sentence in both cases.

Senator SPECTER. DO you have any conscientious scruple against

imposition of the death penalty?

Judge LAZZARA. NO, sir.

Senator SPECTER. Judge Lazzara, give us your views on judicial

activism. What is the appropriate role of a judge in that respect?

Judge LAZZARA. As I understand it, a judicial activist is one who,

for their own personal reasons, consciously ignores the law and the

facts in resolving a dispute. I have never been that type of judge,

I think, as my record reflects. I don't intend to be that type ofjudge

as a U.S. district court judge, if I am fortunate enough to be confirmed. And in my view, any judge who takes that approach should

hang up the robe. If they want to legislate, they should run for the

legislature and should not be in the judicial branch of government.

Senator SPECTER. What would you do if you found a case from

the Supreme Court or court of appeals particularly disturbing and

sharply disagreed with it? How would you handle that in your

court?

Judge LAZZARA. If it was the law of the land, binding precedent

under the basic principles of stare decisis which brings continuity

and finality to our judicial system, I must follow them. I would disagree if I felt appropriate, but I would have to follow them.

Senator SPECTER. Can you point to any case where you think the

Supreme Court made an erroneous decision?
20

Judge LAZZARA. I think Judge Rendell and former Justice

Kauffman have pretty well covered the ballpark in that area.

Plessy V. Ferguson

Senator SPECTER. They left out a few cases.

Judge LAZZARA. Yes; Plessy v. Ferguson, of course, comes to

mind.

Senator SPECTER. DO you have members of your family here,

Judge Lazzara? If so, we would be pleased to have you introduce

them.

Judge LAZZARA. Yes. I am pleased to have here my son, Damon

Lazzara, and his good friend and my second son, really, Mr. Daniel

Simitovich. And my wife sends her regrets for not being able to be

here.

Senator SPECTER. We have been joined now by Representative

Andrews. Would you stand?

[Mr. Andrews stood.]

Senator SPECTER. Congressman Andrews met his wife in the

course of the navy yard litigation and was a party to that, a very

distinguished legislator and public servant.

Senator Kohl.

Senator KOHL. I have no questions, Mr. Chairman.

Senator SPECTER. Senator Biden.

Senator BiDEN. I have no questions.

Senator SPECTER. Thank you.

Anything further you would care to say?

Judge LAZZARA. I just wanted to express my appreciation to Senator Graham and Senator Mack for taking time from their busy

schedules to be here and to present me to the committee, and I appreciate the committee having me here, sir.

Senator SPECTER. Thank you very much, judge.

We now turn to A. Richard Caputo, who also brings a very distinguished record to this hearing, a graduate of Brown University and

the University of Pennsylvania Law School, 1963; a JAG officer in

the Air Force; extensive public service, community activities.

Judge Caputo, welcome. Is there any opening statement you

would care to make?

TESTIMONY OF A. RICHARD CAPUTO, OF PENNSYLVANIA, TO

BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

Mr. CAPUTO. NO, sir. I would like to introduce members of my

family.

Senator SPECTER. Please do that, yes.

Mr. CAPUTO. My wife, Rosemary.

Senator SPECTER. Would you stand, Mrs. Caputo?

[Mrs. Caputo stood.]

Mr. CAPUTO. My daughter, Lisa, and my son, Richard. And my

daughter, Christina, lives in Florida and was unable to make it,

and, of course, her husband, Jerry, and my son Richard's wife, Laurie, and my grandson, Richard III.

Senator SPECTER. Thank you very much. It is a very beautiful

family which you have, so that I can put that on the record to be

along with Senator Biden. [Laughter.]
21

QUESTIONING BY SENATOR SPECTER

Senator SPECTER. Mr. Caputo, I am presuming twice now, but I

don't think it is an unreasonable presumption. Are you committed

to faithfully following Supreme Court precedents and the rulings of

the third circuit?

Mr. CAPUTO. Yes; I am, Senator.

Senator SPECTER. What are your views on judicial activism?

Mr. CAPUTO. Well, my views on judicial activism are that judges

are appointed to interpret the law, to decide controversies and

cases, and resolve grievances, not make policy and legislate. I also

would note that Federal courts are courts of limited jurisdiction

and Federal judges certainly should be mindful of that particular

facet of their function.

Senator SPECTER. If you had a case where you thought—well,

what Supreme Court decision would you point to, if any, that you

thought was improperly decided?

Mr. CAPUTO. Well, I know everyone has so far mentioned Plessy

and Dred Scott. I suppose I could add the Lochner v. New York case

involving

Senator SPECTER. What were the facts in that case, Justice

Kauffman?

Mr. CAPUTO. Well, I don't really—^you asked Mr.

Senator SPECTER. The facts in Lochner?

Mr. KAUFFMAN. The facts in Lochner? That was where the—

Senator SPECTER. You don't have to answer that. [Laughter.]

Senator BIDEN. YOU are not required to answer the question.

Senator Specter. I just wanted to know if you were listening. Mr.

Caputo was starting to answer it for you.

Do you have any compunction against the death penalty, Mr.

Caputo?

Mr. CAPUTO. NO, sir, I do not.

Senator SPECTER. What kind of cases have you handled generally

in the practice of law?

Mr. CAPUTO. I have handled most—all kinds of cases. My practice has been fairly general.

Senator SPECTER. Have you had some criminal cases?

Mr. CAPUTO. I have, not many.

Senator SPECTER. Ever represented a defendant in a capital

case?

Mr. CAPUTO. NO, I have not.

Senator SPECTER. Why do you want to be a Federal judge?

Mr. CAPUTO. I think in many respects, as Judge Kauffman said,

it is something I have wanted to do all my life. I feel like I have

trained for it my entire career, and I think I have reached the point

of experience and temperament that qualifies me at this point in

my life to do it. I think it is one of the highest callings we can have

in our profession, and I feel as though I am ready and I would like

to do some public service at this point in my life.

I enjoy a reputation for competence and integrity. I am willing

to work hard and I am a good listener, and I think that is what

a judge has to do, listen and decide, and I am prepared to do that.

45-964 98-2
22

Senator SPECTER. YOU heard my question to Justice Kauffman,

and you also, Judge Lazz£u*a, about being courteous at all times.

Are you ready to make that commitment to this committee?

Mr. CAPUTO. Absolutely, I am, sir.

Senator SPECTER. Senator Kohl.

QUESTIONING BY SENATOR KOHL

Senator KoHL. Just one question. I noticed that no one this

morning mentioned among the most important Supreme Court decisions Roe V. Wade. Do you have a comment on that?

Mr. CAPUTO. I really can't comment on that in any way except

that it is the law and, if called upon, I would follow it.

Senator KOHL. Thank you.

Senator SPECTER. Senator Biden.

Senator BiDEN. I want a commitment, judge, that you will be

particularly mindful of litigants from Scranton, PA. That is my

hometown. Scranton doesn't get paid attention to enough. I just

want you to know that.

Mr. CAPUTO. Yes, sir. You have my commitment.

Senator BIDEN. All right, good. Just so long as they are treated

fairly, I have no question.

I suspect the reason why none of you mentioned Roe, aJthough

all of you probably in your hearts know it is probably one of the

most significant decisions, whether you agreed with it or not, is because you have all been attuned to make sure not to mention Roe

because you know that is a flash point, the one thing that will get

everyone's interest. I kind of wish one of you had, but I think that

is the reason. You have all had significant legal experience, and so

I am sure your good judgment and wisdom prevailed upon you not

to suggest Roe as one of the decisions. At any rate, a wise decision,

I might add.

I thank you very much, Mr. Chairman.

Senator SPECTER. Thank you. Senator Biden.

Thank you all.

At this point we will place into the record a statement submitted

by Senator Santorum.

[The prepared statement of Senator Santorum follows:]

PREPARED STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE

OF PENNSYLVANIA

Mr. Chainnan, thank you for accepting this testimony in strong support of the

nominations of Judge Marjorie Rendell, Justice Bruce Kauffman, and Mr. Richard

Caputo, who are appearing before you today.

1 regret that I will be unable to appear before the Committee today. A family commitment in Pittsburgh will keep me in Pennsylvania throughout the day. Nonetheless, I wish to provide for the record this statement as a means of expressing my

support for these nominees.

Judge Rendell has an impressive record of service on the bench of the U.S. District Court for the Eastern District of Pennsylvania. Having had the opportunity to

review many of her rulings, I am confident that the Third Circuit will benefit from

her skills and experience. Further, her rulings reflect a well grounded, common

sense understanding of the law and the adjudicatory role of judges. For instance,

in United States v. Roberson. 1995 WL 314714 (E.D. Pa., May 17, 1995), Judge

Rendell rightly held that evidence of drug dealing was admissible because the police

had probable cause to stop the defendant after receiving a call regarding the defendant selling drugs.

The Committee should also take note of Judge Rendell's active involvement in

many charitable and nonprofit organizations throughout southeastern Pennsylvania.
23

Whether it is the University of Pennsylvania, the Visiting Nurse Association, or

Philadelphia's Avenue of the Arts, her volunteer efforts have contributed to the

Quality of life in our Commonwealth for over twenty years. I believe this work reflects her deep commitment to the people whom her decisions on the bench will affect.

Justice Kauffinan has practiced law in Philadelphia for over thirty-five years. He

has provided the committee with extensive information on his rich and varied experiences before numerous courts in the Commonwealth of Pennsylvania. In reviewing

his background, I noted his determination and effective representation of the City

of Philadelphia and others in attempting to keep the Philadelphia Naval Shipyard

open. Such pro bono work indicates Justice Kauffman's dedication to the law and

interest in the well being of the people of southeastern Pennsylvania.

As you know. Justice Kauffman has also served as a Justice on the Supreme

Court of Pennsylvania. I have had the opportunity to review many of his rulings.

His work clearly reflects a deep understanding of the many demands faced by one

serving on a judicial bench. I am confident that the Committee will a^ee that the

Eastern District of Pennsylvania will greatly benefit from Justice Kauffman's intellect, character, and experience.

As with the other nominees, Mr. Richard Caputo will bring a wealth of experience

to the federal bench. For over thirty years, Mr. Caputo has practiced law in a wide

range of fields, including Special Courts-martial in the Air Force, state and federal

criminal trials, and extensive civil litigation. I believe the Committee should take

special note of Mr. Caputo's contributions as a public servant. I include in this description both his service in the United States Air Force and his work as a public

defender for Luzeme County, Pennsylvania. His interest in returning to such service as a judge for the U.S. District Court for the Eastern District of Pennsylvania

reflects his deep commitment to the people of our Commonwealth.

Mr. Caputo's experiences have shaped a career uniquely suited for future work

on the federal bench. For instance, in Commonwealth of PA v. Chas. S. Grucella,

Criminal No. 1343 of 1967, (Luzeme County Court of Common Pleas), 58 Luz.L.Reg.

137, 59 D&C 2d 610 (1967), Mr. Caputo argued that former Public Defenders who

later worked for the District Attorney should be precluded from prosecuting defendants who were former clients. I beheve this experience provided Mr. Caputo with

a deep appreciation for prosecutorial powers, the balance of powers, the appearance

of conflict of interest, and the public interest as a whole. Bringing this appreciation

to the federal bench will enhance the already high reputation of the Middle District

of Pennsylvania.

Mr. Chairman, thank you again for accepting this statement. I look forward to

aiding the Committee as it reviews these nominations, and I expect to ultimately

see these nominations pass overwhelmingly before the full Senate.

Senator Specter. These hearings are not as elongated as people

might suppose. I know when nominees come, they are concerned,

as is obvious. There has been a very thorough investigation. Senator Santorum and I have a judicial nominating commission which

has gone over the records in detail, and then there is an American

Bar Association review and there is an FBI review. There has been

a lot of examination.

Unless it is a Supreme Court nomination or a contested nomination for some reason, these hearings do not draw many of the Senators. And we try not to have them pro forma, but you have already submitted answers to many, many questions which have

been reviewed in great detail. So it ought to be said briefly that

there has been a very thorough examination of your records and

qualifications.

You undertake an enormously important job, and my view is that

the third branch of Government—^you are article III in the Constitution, but the Federal judiciary changed that in Marhury v.

Madison and you are now No. 1. You are independent, you are indefatigable, and you render decisions which have really been the

pillar of America, in my opinion.

We are constrained here and at the White House by many, many

considerations. You take up these cases, and you take them up one
24

by one and give a kind of hearing and airing. The Federal judiciary

is the cornerstone of our society, in my opinion. You have a very,

very heavy responsibility, and be courteous.

Thank you. That concludes our hearing.

[Whereupon, at 9:57 a.m., the committee was a4joumed.]

[Submissions for the record follow:]
25

SUBBiOSSIONS FOR THE RECORD

SEKATK JUDICIARY COMMITTKK 0nB8TIQMMMRg

I. BICX3RAPHICAL INFORMATION (PUBLIC)

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

Marjorie 0. Rendell (nee Marjorie May Osterlund)

2. Address: List current place of residence and office

address(es).

Chambers: United States District Court

601 Market Street, Room 3114

Philadelphia, PA 19106

3. Date and place of birth.

December 20, 1947

Wilmington, DE

4. Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name euid business

address(es).

Spouse: Hon. Edward G. Rendell

Mayor, City of Philadelphia

215 City Hall

Philadelphia, PA 19107

S. Education: List each college and law school you have

attended, including dates of attendance, degrees received, and

dates degrees were granted.

University of Pennsylvania (9/65 - 5/69)

B.A., 1969

Dean's List

Graduated cum laude

Georgetown University Law Center (9/70 - 5/71)

1970-71 (transferred to Villanova upon marriage)

Invited to join Law Journal and Criminal Law

Review; declined due to tramsfer to Villanova

Villanova School of Law (9/71 - 5/73)

J.D., 1973

-1
26

Bmployment Record; Llat (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and organizations,

nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or

employee since graduation from college.

Employment

1969-1970 University of Pennsylvania

3451 Walnut Street

l>hiladelphia, PA 19104

Annual Giving - Development Department

(Fundraising)

1972-1994 Duane, Morris t Heckscher

Summer 1972 - Summer clerk

1972-1973 - Part-time

1973-1981 - Pull-time associate

1981-1994 - Partner

1994-present United States District Court

601 Market Street, Room 3114

Philadelphia, PA 19106

Other (Boards)

1973-1978 Philadelphia Bar Association

Board of Directors, Young Lawyers

Section

Late 1970s1994

1978-1994

Late 19808-

1994

1992-1994

University of Pennsylvamia

(various advisory boards)

Visiting Nurse Association

of Greater Philadelphia

Visiting Nurse Society

East Palls Advisory Board of

Chestnut Hill National Bank

Pennsylvania's Campaign for Choice

Academy of Vocal Arts

Market Street East Improvement Association

Philadelphia Bar Foundation

Philadelphia Friends of Outward Bound

1992-Present Avenue of the Arts, Inc. (Vice-Chair)

2-
27

199S-Present University of Pennsylvania

(Board of Trustees)

University of Pennsylvania College of

Arts and Sciences

(Board of Overseers)

*NOTE: I resigned from most of the above boards upon assuming

the bench. I presently serve only on the boards of

trustees of Avenue of the Arts, Inc. and the University

of Pennsylvania, and on the Board of Overseers of the

College of Arts and Sciences.

7. Military Service: Have you had any military service: If so,

give particulars, including the dates, branch of service, rank

or rate, serial number and type of discharge received.

No military service.

8. Honors and Awards: List any scholarships, fellowships,

honorary degrees, emd honorary society memberships that you

believe would be of interest to the Committee.

Phi Beta Kappa

Philadelphia College of Textile and Science

Doctor of Laws - Honorary Degree awarded in May 1992

Fellow, American College of Bankruptcy, 1996

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are or

have been a member and give the titles and dates of any

offices which you have held in such groups.

American Bar Association*

Pennsylvania Bar Association*

Philadelphia Bar Association*

(Board of Directors, Young Lawyers Section, 1973-78)

American BanJcruptcy Institute*

Eastern District of Pennsylvania Banltruptcy Conference*

Philadelphia Bar Foundation (board member, 1992-94)*

Alternative Dispute Resolution Committee

of the Eastern District Beuilcruptcy Conference

Mediation Division*

The Historical Society of the United States District

Court for the Eastern District of Pennsylvania

Federal Judges Association

American Judicature Society

National Association of Women Judges

American College of Banlcruptcy

* formerly

-3-
28

10. other Memberships: List all organizations to which you belong

that are active in lobbying before public bodies. Please list

all other organizations to which you belong.

Organizations active in lobbying: None.

Other organizations:

Board MembershipB

Avenue of the Arts, Inc. (Vice-Chair)

University of'Pennsylvania

Board of Trustees

Board of Overseers

of College of Arts and Sciences

Women's Associations

International Women's Forum

University of Pennsylvania

Trustees' Council of Penn Women

Other

Vesper New Years Association - Vesper Club (eating club);

copy of by-laws provided herewith.

11. Court Admission: List all courts in which you have been

admitted to practice with dates of admission and lapses if any

such memberships lapsed. Please explain the reason for emy

lapse of membership. Give the same information for

administrative bodies which require special admission to

practice.

Supreme Court of Pennsylvamia (11/15/73)

U.S. Court of Appeals for the Third Circuit (4/27/78)

U.S. District Court for the Eastern District

of Pennsylvania (3/18/75)

12. Published Writings: List the titles, publishers, and dates of

boo)cs, 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.

Put?liBhed Writinqg:

Contributing author of seminar materials published in

connection with above-mentioned annual seminar

presentations; drafted sections on Secured Creditor

-4-
Claims and Adequate Protection in all editions. The most

recent editions are:

Pevelgpnientg in Reorganization and Commercial

Finance Law -- 1990 and 1991 (Ninth Annual Seminar)

(305 pps.)

Oueine, Morris & Heckscher

Reorganization and Finance Section

Copyright 1991 Duane, Morris & Heckscher

pgvglQprnsntg in Bankruptcy Reorqaniaatjgn and

Finance Law: 1989: A 1990 Annual (Eighth Annual

Seminar) (249 pps.)

Duane, Morris & Heckscher

Copyright 1990 Aspen Publishers, Inc.

Pgvelqpmgntg in Reorganization and Commercial

Finance Laii! i:: 1988 and 1989 (seventh Annual

Seminar) (181 pps.)

Duane, Morris & Heckscher

Reorganization and Finance Section

Copyright 1989 Ducuie, Morris & Heckscher

Speeches on issues involving constitutional law or legal

policy

11/29/95 - Villanova University School of Law

Nineteenth Annual Donald A. Giannella Memorial

Lecture. Published in Villanova Law Review:

Honorable Marjorie O. Rendell, "What is the Role of

the Judge in Our Litigious Society?," 40 Vill. L.

Rev. 1115 (1995).

Copies of each of the foregoing published writings have been

provided herewith.

13. Health: What is the present state of your health? List the

date of your last physical examination.

Excellent; 12/15/95.

14. Judicial Office: State (chronologically) any judicial offices

you have held, whether such position was elected or appointed,

and a description of the jurisdiction of each such court.

Judge, United States District Court

for the Eastern District of Pennsylvania

Appointed by President Clinton on February 11, 1994

Jurisdiction: Complete original federal civil and

criminal jurisdiction.

5-
15. Citations: If you are or have been a judge, provide

(1) citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or where

your judgment was affirmed with significant criticism of your

substantive or procedural rulings; and (3) citations for

significant opinions on federal or state constitutional

issues, together with the citation to appellate court rulings

on such opinions. If any of the opinions listed were not

officially reported, please provide copies of the opinions.

(1) See attached Exhibit A.

(2) My decision in United States v. Roberson. 1995 WL

314714 (E.D. Pa., May 17, 1995), rev'd 90 F.3d 75

(3d Cir. 1996), was reversed by the United States

Court of Appeals for the Third Circuit. I had

refused to suppress evidence obtained by the police

as a result of a call radioed to the police

regarding an individual selling drugs at a certain

location. The Third Circuit reversed the

conviction, finding that the informant lac)ced

relicUsillty, detracting from the probable cause

necessary for a stop of the defendant.

(3) U.S. V. Tidwell {94-CR-3S3); 12/22/95.

Copy of opinion provided herewith.

16. Public Office: State (chronologically) any public offlees you

have held, other than judicial offices, including the terms of

service and whether such positions were elected or appointed.

State (chronologically) any unsuccessful candidacies for

elective public office.

Committeewoman for the Republicam Party,

30th Ward, 20th Division, from 1972-1976.

Elected position.

17. Legal career:

a. Describe chronologically your law practice and experience

after graduation from law school including:

1. whether you served as cleric Co a judge, atnd if so,

the name of the judge, the court, and the dates of

the period you were a cler)c;

No clerlcahip.

2. whether you practiced alone, and if so, the

addresses and dates;

No solo practice.
31

3. Che dates, names and addresses of law firms or

offices, companies or governmenCal agencies with

which you have been connected, and the nature of

your connection with each;

I began at the law firm of Duane, Morris &

Heckscher as a summer cleric in 1972; upon

graduation I became an associate, and in 1981, a

partner. I left Duane, Morris & Heckscher to

assume my current position as judge of the U.S.

District Court. The firm's address is:

Duane, Morris & Heckscher

4200 One Liberty Place

Philadelphia, PA 19103-7396

1. What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

I spent 20 years litigating amd negotiating

financial and legal interests in the area of

creditors' rights and commercial litigation in and

out of state courts, federal district courts, cuid

especially in the various United States bankruptcy

courts.

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialized.

My clients included individual debtors and

creditors, small to medium-size corporations and

partnerships, and banks and insurance compemies of

local and national stature, with the subject matter

ranging from a chapter 13 restructuring of an

individual wage earner to complex restructuring of

major companies. In the course of representing

these clients, I litigated many issues, many of

which were adversary proceedings in bankruptcy

court or contract claims in state or federal trial

courts. While my practice was varied, I

specialized in representing secured creditors,

primarily banks and insurance companies, whose

borrowers found themselves in financial distress.

As a result, I specialized in, and litigated, all

areas of secured creditors' rights, including but

not limited to: perfection of security interests,

exercise of remedies in satisfaction of judgments,

rights of secured creditors under bankruptcy and

chapter 11 provisions, including rights under, and

treatment under, plans of reorganization, lender

liability, as well as preference and fraudulent

conveyance issues. Other significant legal

7-
32

acclvltles Included extensive negociaclon of rights

of various parties in contract disputes emd In

formal creditor workouts amd chapter 11

proceedings, including negotiation of cocnplex

restructurings on behalf of bank groups and

subordinated debenture holders.

1. Did you appear in court frequently,

occasionally, or not at all? If the frequency

of your appearances in court varied, describe

each such variamce, giving dates.

In examining the records of ny practice since

1988, I found that the nundber of courc

appearances changed radically in 1992 and

1993. My husband became Mayor of the City of

Philadelphia in January of 1992, amd I

delegated many of the court appearances on my

cases to others. Also during 1992, my primary

focus was on two major cases, both of which

involved out-of-court restructurings of

amounts in excess of $100 million in

Indebtedness; the firm represented, in one

case, the bank group, and in the other, Che

subordinated debenture group. Also, during

this time period, my department of the firm

(the Reorganization Section) delegated much of

the coonercial litigation to a special group

of attorneys in our Litigation Department iriio

routinely did this work with and for our

section's attorneys. During the prior four

years, namely, from 19B8 through 1991, I

appeared regularly in court in any given year

on matters in which the firm repressnted Che

major secured creditor of a company in

chapter 11. There trere probably five to ten

such cases in any given year. Also during

this time period, I represented the trustee in

a chapter 11 proceeding and appeared regularly

in at least two complex chapter 11 proceeding*

in which the firm represented different

classes of indebtedness. I believe that

during 1988 through 1991, I appeared in court

anywhere from three to eight days per month.

Court appearances were more frequent during

Che period from 1980 through 1988. More of

Che cases which I handled involved individual

secured creditor rights, rather than complex

cases, and matters such as the right of Che

secured creditor to take back the collateral

pursuant to a hearing for relief fro* the stay

were tried to conclusion frequently. Z
33

appeared in court very regularly, perhaps'as

many aa two to three days per week.

What percentage of these appearances was in:

(a) Federal courts.

Most appearances were in federal courts.

(95-100%)

(b) State courts of record.

Seldom (0-5%); appeared only in

connection with execution on or

enforcement of judgments, or opening of

judgment proceedings.

(c) Other courts.

0%

What percentage of yrour litigation was:

(a) Civil.

100%.

(b) Criminal.

0%.

State the number of cases you tried to verdict

or judgment (rather than settled) in courts of

record, indicating whether you were sole

counsel, chief counsel, or associate counsel.

My experience prior to assuming the bench was

primarily in the ban)cruptcy courts in which a

chapter 11 case was pending. Many contested

matters and adversary proceedings are brought

before the court by way of con^laint or

motion, heard by the court without a jury,

following the Federal Rules of Civil Procedure

(made applicable by the Federal Rules of

Ban)cruptcy Procedure) , as well as the Federal

Rules of Evidence, usually in hearings lasting

from one to three days. It is difficult to

state "cases" that were "tried to verdict or

judgment" because, in each instance, the

matters involved hearings on fraudulent

conveyances, relief from stay, preference

-9-
34

actlona, aoclona to diaoiaa, and the like.

Many of these were tried to conclusion, but

not all led to the end of the caae or total

resolution of a matter. I handled my own

cases and, except in a few instances in which

I was assisted by an associate, I have been

the sole and chief counsel in matters I have

hemdled. I have appeared in and litigated

more thaui 35 bankruptcy matters.

5. What percentage of these trlala waa:

(a) Jury.

0%.

(b) Mon-jury.

loot.

IS. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the citations, if

the cases were reported, and the docket number and date if

unreported. give a capsule summary of the substance of each

case. Identify the party or parties whom you represented;

describe in detail the nature of your participation in the

litigation euid the final disposition of the case. Also state

as to each case:

(a) the date of representation;

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

before whom the case was litigated; and

(c) the individual name, addresses, and telephone numbers of

co-counsel and of principal counsel for each of the other

parties.

See attached Exhibit B.

19. Legal Activities: Describe the most significamt legal

activities you have pursued, including significant litigation

which did not progress to trial or legal matters that did not

involve litigation. Describe the nature of your participation

In this question. Please omit any information protected by

the attorney-client privilege (unless the privilege has been

waived.)

In 1975 I joined with a then-partner, David Sykes,

to form a bankruptcy practice of two attorneys in

our firm (then approximately SO attorneys), and

started working for a new bank client. At the time

that I left the firm, that client was one of the

firm's major clients (perhaps second or third in

overall annual billings) . I was active in

representing that bank, primarily as a secured

-10-
creditor in workout and bankruptcy matters, for 18

years in matters involving anywhere from $300,000

to $80,000,000 in debt. During that time the firm

grew to 205 attorneys, the reorganization section

to 22 attorneys, and the client grew from a small

bank in a community outside of Philadelphia to a

major banking force in Philadelphia. I consulted

actively with this client on complex strategic

matters involving potential lender liability claims

and commercial litigation, and I was one of their

primary attorneys of choice on difficult issues

which required special legal and perceptive skills

in situations involving borrowers, participating

banks, or parties with whom they have sophisticated

commercial relationships.

At the same time, I represented other single-entity clients,

banks, insurance companies, debtors, etc., in bankruptcy

matters and commercial litigation.

From about 1985, my practice expanded to include

representation of debtors, large creditors or classes of

creditors in major national restructurings or chapter

proceedings in, for example, Indianapolis, Denver, Pittsburgh,

Boston, and St. Louis. Many of these matters involved intense

negotiations over claims and issues relating thereto,

including fraudulent conveyances, issues of absolute priority,

rights to payments under a plan, and plan confirmation. Many

of these matters have been in, or in the context of, a chapter

11 case but resulted in amicable resolution of the claims or

the matter generally. Such matters include:

Sudbury, Inc. (subordinated debt holders)

Allegheny International (subordinated debt holder)

Early & Daniel, Inc. (railcar lessors)

The Carlson Group, Inc. (debtor)

Apex Oil, Inc. (single creditor)

Frontier Airlines (aircraft lessor)

I worked on such matters either as lead partner or, in the

larger matters, alternating with another partner on the case.

In all of the above instances, my representation involved

analysis of the client's legal position and its relationship

to the positions of others, identification of issues which

enhanced or detracted from each position, plotting a course --

whether litigation or negotiation or a combination of both --

to accomplish the client's goals, and pursuing that course,

while making any necessary adjustments based on changing

circumstances. My approach has been active rather than

reactive. The major "activity" outside of litigation has been

effectively communicating -- usually orally -- to clients and

adversaries the relative positions of the parties, negotiating

11
36

to achieve goals, and documenting the result, whether a loan

restructure, a stipulation, an agreement or a consensual plan.

From 1973 to 1978 I served on the board of the Young Lawyers'

Section of the Philadelphia Bar Association. For about two

years prior to my assuming the bench, I was an active member

of the board of the Philadelphia Bar Foundation {the

charitable arm of the Philadelphia Bar Association which funds

several programs providing legal aid to the indigent). In

addition, I served as a Mediator for the U.S. District Court

for the Eastern District of Pennsylvania, and was a member of

the Bar Alternative Dispute Resolution Committee developing a

mediation process for the U.S. Bankruptcy Court for the

Eastern District of Pennsylvania.

As a district court judge I have served on our court's

Bankruptcy Committee and Arbitration Committee, and have been

active in the Federal Judges Association Congressional Liaison

Committee, serving as coordinator for our Circuit.

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options, uncompleted

contracts and other future benefits which you expect to derive

from previous business relationships, professional services,

firm memberships, former employers, clients, or customers.

Please describe the arrangements you have made to be

compensated in the future for 2uiy financial or business

interests.

None. When I left my former firm to assume the bench,

all pension funds were rolled over; I have no assets in

the firm's plans or funds. I have ongoing interests in

IRAs and pension funds reflected as part of assets listed

on the attached Net Worth Statement.

2. Explain how you will resolve any potential conflict o£

interest, including the procedure you will follow in

determining these areas of concern. Identify the categories

of litigation and financial arrangements that are likely to

present potential conflicts-of-interest during your initial

service in the position to which you have been nominated.

I will continue to recuse myself from any cases

involving: Duane, Morris & Heckscher (my former law

firm); Meridian Bancorp, Inc. (former client); First

Fidelity Bank (former client); the Visiting Nurse

Association of Greater Philadelphia (I am a former board

member); University of Pennsylvania (I am an alumna and

board member); City of Philadelphia (my spouse's

employer); and any entity in which I have a "financial

interest" pursuant to 28 U.S.C. §455. I have adopted a

12
8T

standing Order and waiver of disqualification procedure

regarding parties and counsel who contributed to the 1994

mayoral campaign in which my husband was the successful

candidate. I will follow the dictates of 26 U.S.C. S 455

as to diBqualification due to a conflict regarding any

other matters or Interest.

3. Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

No.

4. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more. (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

See attached Financial Disclosure Report (Exhibit C).

5. Please complete the attached fInsmcial net worth statement in

detail (add schedules as called for).

See attached Exhibit D.

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign, your

title and responsibilities.

Prior to my nomination in November of 1993 for my current

judgeship on the U.S. District Court for the Eastern

District of Pennsylvania, I made public appearances with

or for my husband during various campaigns in which he

was a candidate for public office: for Philadelphia

District Attorney In 1977 and 1981; a primary campaign

for Governor of Pennsylvania in 1986; a primary campaign

for Mayor of Philadelphia; and a primary amd general

election for Mayor in 1991. I had no title or

responsibility. Since my nomination and induction, I

have scrupulously avoided all political activities.

III. GENERAL (PUBLIC)

1. An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the dlsadvantaged." Describe what you have done to

13-
fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

My efforts on behalf of the disadvantaged have been

through my service to several charitable organizations,

on whose boards I served until my judgeship appointment

was confirmed. My primary efforts on behalf of the

disadvantaged were through the Visiting Nurse Association

of Greater Philadelphia; I served on its board and headed

many of its ommittees for approximately 15 years. The

VNA is the only non-profit home care entity which

provides services to the indigent in the Philadelphia

area, and in working with VNA, I was personally involved

in fundraising and other efforts for the poor and

indigent of Philadelphia. I dedicated an average of

10-15 hours per month to VNA-related activities. For two

years prior to assuming the bench I was also an active

member of the board of the Philadelphia Bar Foundation,

the charitcd>le arm of the Philadelphia Bar Association.

I also dedicated considerable time, generally an

additional 15 hours per month, to active service on the

boards of civic and cultural organizations such as the

Market Street East Improvement Association, and Avenue of

the Arts, Inc., and the University of Pennsylvania.

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 discriminsces -- 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).

Not appliceible; there is no such commission for Court of

Appeals positions. I did, however, have several

discussions with representatives of the White House

Counsel's office, the Department of Justice, the ABA, and

the FBI.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

- 14-
inCerpreted as asking how your would rule on such case, issue,

or question? If so, please explain fully.

No.

S. Please discuss your views on the following criticism involving

'judicial activism.'

The role of the federal judiciary within the federal

government, and within society generally, has become the

subject of Increasing controversy in recent years. It has

become the target of both popular and academic criticism

that alleges that the judicial branch has usurped many of

the prerogatives of other branches and levels of

government.

I believe that the role of the judiciary is to be the

interpreter and enforcer of existing law. In the process

of such interpretation and enforcement, the judiciary

should call upon judicial precedent, as well as examine

the intention of those drafting relevauit legislation, in

determining the scope and botinds of its decision-making

authority. While it is tempting for the judiciary to

read expansions into the law, rather than await action of

the legislative brtuich to do so, this temptation should

be resisted by the judiciary in fulfilling its proper

role.

Some of the characteristics of this 'judicial activism' have

been said to include:

With respect to the 'characteristics* noted, I would

comment:

a. A tendency by the judiciary toward problem-solution

rather than grievance-resolution;

A judge should resolve the matter before him or

her, addressing only issues at hand. While it may

be the case that the resolution of the issue at

hand does, and will, have broader implications for

society at large, the judge should not attempt to

solve problems or seek solutions broader than

necessary to resolve the instant matter.

b. A tendency by the judiciary to en^loy the individual

plaintiff as a vehicle for the imposition of far-reaching

orders extending to broad classes of individuals.

15-
40

Again, a judge should provide only the relief

necessary to address the claims of litigants before

him or her. The judiciary should not seek out

controversies, nor address controversies not

immediately presented.

A tendency by the judiciary to impose broad, affirmative

duties upon governments and society;

In certain limited instances, whether pursuant to

mandamus or injunctive powers, the judiciary is

called upon to impose affirmative duties upon

governments and society where the wrong

specifically to be remedied (that is, the issue

before the court) requires it. However, such power

should be exercised with great caution, and the

imposition of duties in such instances should be

narrowly drawn to address the issue at hand,

leaving the actual application and implementation

to other breuiches, to the extent possible. Also,

in order to resolve conflicts in such situations,

orders entered imposing such duties must be clearly

and narrowly stated so as to avoid further

litigation with respect to the nature euid extent of

the power of the judiciary.

A tendency by the judiciary toward loosening

jurisdictional requirements such as stamding and

ripeness,- and

Jurisdictional requirements have been set by law

and interpreted by courts. To the extent that case

precedent adjusts jurisdictional standards and is

controlling, it must be adhered to. As a district

court judge, I have no authority or ability to

loosen such requirements, and I believe that the

appellate courts' actions in doing so must be based

strictly upon legislation and its intent, informed

by the requirements of the Constitution.

A tendency by the judiciary to impose itself upon other

institutions in the manner of an administrator with

continuing oversight responsibilities.

I believe that the judiciary is limited in its role

as indicated above. The judiciary is not a

panacea, an interpreter of society, or an overseer

in any sense of the word. I believe it is

inappropriate for the judiciary to conduct

continuing oversight except in those limited

circumstances where such relief is both required to

16-
41

address ths ham suffered and permitted by existing

precedent.

17-
42

INDEX OF EXHIBITS

Exhibit A - Ten Most Significant Opinions

Exhibit B - Ten Most Significant Litigated Matters

Exhibit C - 1995 Financial Disclosure Report

Exhibit D - Financial Net Worth Statement
43

xqtdatad 12/16/96

EXHIBIT A

TEN MOST SIGKIFICANT OPINIONS

09/15/94

a.s.D.c.

Case No.

9a-CV-3310

£aa£

Resolution Trust Corp. v. Farmer

Cite: 865 F. Supp. 1143 (E.D. Pa.

1994)

11/08/94 93-CV-4547 Britamco Underwriters, Inc. v.

George Giouzelis, Inc.

Cits: 1994 WL 622109 (E.D. Pa.,

Nov. 8, 1994), aff'd. 65 F.3d 161

(3d Cir. 1995)

12/29/94 93-CV-7027 Mallenbaum v. Adelphia Conuit. Corp.

Cite: 1994 WL 724981 (E.D. Pa.,

Dec. 29, 1994), aftld. 74 F.3d 465

(3d Cir. 1996)

08/16/95 93-CV-6729 LeJeune v. Bllss-Salem, Inc.

Cite: 1995 WL 491253 (E.D. Pa.,

Aug. 16, 1995), aff d. 85 F.3d 1069

(3d. Cir. 1996)

08/18/95 94-CV-1422 Surace v. Caterpillar, Inc.

Cite: 1995 WL 495123 (E.D. Pa.,

Aug. 18, 1995)

10/05/95 93-CV-3701 Taylor v. Sterling Winthrop

Cite: 1995 WL 590160 (E.D. Pa.,

Oct. 5, 1995)

12/22/95 94-CR-0353 United States v. Tidwell

Cite: 1995 WL 764077 (E.D. Pa.,

Dec. 22, 1995)

3/22/96 94-CV-6906 Sinnnerman v. Hardee's Pood Systems,

Inc.

Cite: 1996 WL 131948 (E.D. Pa.,

Mar. 22, 1996)
U.S.D.C.

Cat£ Case No. Qaa&

4/1/9S 94-CV-1818 Stecyk, et al. v. Bell Helicopter

Textron, Inc., et al.

Cite: 1996 WL 153555 (E.D. Pa.,

Apr. 1, 1996)

9/9/96 94-CV-3991 Doby, et al. V. Decrescenzo, et al.

£i££: 1996 WL 510095 (E.D. Pa.,

Sept. 9, 1996)

In September 1995, I sat by designation on an appellate panel of

the United States Court of ;^}peals for the Third Circuit. The

members of the panel were Chief Judge Dolores K. Sloviter, Circuit

Judge Samuel A. Alito, Jr., and District Judge Marjorie O. Rendell

(sitting by designation) . I authored the Third Circuit opinion in

United States v. Brannan. 74 P.3d 448 (3d Cir. 1996) .
45

Index to Exhibit B

TEN MOST SIGNIFICANT LITIGATED MATTERS

1. Bartholomew, et al. v. Northampton National Bank

2. In re Winslow Center Associates

3. In re Reading Tube Corporation

4. In re Dominica V. Civitella

5 . In re Ram Msmufacturing

6. In re Center for the Blind

7. In re Philadelphia Athletic Club

8. In re Bates Energy Corp.

9. In re Marta Oroup

10. Schweibert v. Schweibert
EXHIBIT B

SIGNIFICANT LITIGATED MATTERS

My trial e3q>erience was gained primarily, though not

exclusively, in the bankruptcy court aystem, in which the "case" ia

a reorganization proceeding, and adversary matters, sometimes

involving actual trials, are heard by the court. I litigated

matters in the bankruptcy courts locally and throughout the country

in at least 35 cases. The following are examples from ten cases in

which matters raised by the motion or complaint were litigated by

me, as sole trial counsel, except as noted, several of which

resulted in reported decisions.

1. Bartholomew, et al. v. Northampton National Bank, et al.

Court and docket: U.S.D.C, E.D. Pa., No. 74-2948

Cite: 584 F.2d 1288 (3d Cir. 1978)

Summarv

Suit by purchaser of a vacation lot against banks who financed

purchase on basis of Truth-in-Lending, Interstate Land Sales Full

Disclosure Act, and usury law violations.

One of the defendants, American Bank and Trust Co. of Pa. (now

Meridian Bank).

IsBues Litigated

Whether: (i) financing of the purchase of a vacation lot was

the loan or use of money for purposes of usury law violations;

(ii) banks that finance a purchase of a lot are licOsle for

violations of the Interstate Land Sales Full Disclosure Act; and

(iii) Truth in Lending Act violations could be asserted after one

year from the date of the land sale contract. I, together with

counsel for Merchants National Bank, directed the litigation and

strategy on behalf of the banks and was responsible for the

pleadings and briefs in the matter, especially on appeal to the

Third Circuit.

(continued)

Exhibit B - Litigated Matters - page 1
47

atonifleaneg of laauaii

The court decided against the plaintiff and in favor of the

banka. Issues Involved the interpretation of two relatively new

statutes aind were of great significance to banks and other entities

that fineuiced lot sales in vacation home developments.

Judge

Hon. John P. Pullam, Judge, United States District Court for

the Eastern District of Pennsylvania. (1975)

Hon. James Hunter, III, Judge, United States Court of Appeals

for the Third Circuit. (1978)

Other Counsel

Counsel for plaintiffs:

Edward C. Toole, Jr., Esquire

(215) 241-18184

Michael J. Qlaaheen, Esquire

(215) 241-1821

Claric, Ladner, Fortenbaugh & Young

2005 Mar)cet Street, 21st Floor

Philadelphia, PA 19103

Counsel for defendant Merchants Bank and Trust Co. of Pa.:

John B. Fleiherty, Jr., Esquire

Dechert, Price <• Rhoads

4000 Bell Atlantic To%«er

1717 Arch Street

Philadelphia, PA 19103-2793

(215) 994-2128

Counsel for Horthampton National Bank of Easton:

Bernard S. Bergman, Esquire

(current address un)mo%ni)

Counsel for William E. Brock, III:

E. Parry Hamer, Esquire

Obermayer, ReJsmann, Max%«ell & Hippel

Packard Building, 14th Floor

15th and Chestnut Streets

Philadelphia, PA 19102-2188

(215) 665-3226

Exhibit B - Litigated Hatters - page 2
4B

2. In re Winalow Center Aaaoeiates

Court and Docket: U.S.B.C., E.D. Pa., No. 82-00020G

Cite: 32 B.R. 685 (Bankr. E.D. Pa. 1983)

50 B.R. 679 (Bankr. E.D. Pa. 1985)

57 B.R. 317 (Bankr. E.D. Pa. 1986)

Summary

Chapter 11 proceeding of New Jersey partnership which owned a

shopping center.

Client

Provident Mutual Life Insurance Company, the mortgagee.

Issues Litigated

(1) Relief from stay requested based upon erosion of secured

creditor's equity cushion. 32 B.R. 685 (Bankr. E.D. Pa. 1983) ;

relief granted.

(2) Rights of secured creditor to post-petition rentals

recognized under title theory. SO B.R. 679 (Ban)cr. E.D. Pa. 1985) .

(3) Objected to debtor's request to pay attorneys' fees from

cash collateral assets subject to mortgagee's lien. 57 B.R. 317

(Bankr. E.D. Pa. 1986); payment of fees denied.

Siqni.ti.cance of Issueg

This case, relating to the extent of the interest of the

mortgagee in post-petition rents as cash collateral, resulted In

one of the first decisions on this issue. This issue thereafter

became the subject of much litigation in our district and

elsewhere, commencing with the case of In re T.M. Carlton House

Partners. Ltd.. 91 B.R. 349 (Bankr. E.D. Pa. 1988), and

subsequently addressed by U.S. District Court Judge Bartle in In re

SeSide Co.. Ltd.. 152 B.R. 878 (E.D. Pa. 1993). Also, the decision

has often been cited for its holding that debtors may only charge

attorneys' fees against a secured creditor's collateral if the fees

benefitted the secured creditor.

Judge

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy

Court for the Eastern District of Pennsylvauiia.

(continued)

Exhibit B - Litigated .Matters - page 3
49

other Counaal

Counsel for Comnittee of Equity Holders:

Leonard Qoldberger, Esquire

Nol£, Block, Schorr k SolIs-Cohen

Packard Building, 12th Floor

ISth and Chestnut Streets

Philadelphia, PA 19102-2678

(215) 977-2578

Debtor•s Counsel:

David Fishbone, Esquire

Fonnerly with

Ciardi, Fishbone t DlDonato, PC (current address unknown)

1900 Spruce Street

Philadelphia, PA 19103

(215) 546-4370

Counsel for Trustee:

Robert H. Levin, Esquire

Adelman Lavine Oold t Levin, PC

1900 two Penn Center Plaza

Philadelphia, PA 19102-1799

(215) 568-7515

Bxhiblt B - Litigated Matters - pag« 4
3. In re Reading Tube Corporation

Court and Docket: U.S.B.C., E.D. Pa., Noe. 87-0429T, 87-0430T

Cite: 72 B.R. 329 (Bankr. E.D. Pa. 1987)

73 B.R. 99 (Bankr. E.D. Pa. 1987)

Summary

Chapter 11 proceeding of copper tube manufacturer.

Client

Meridian Bank, primary secured creditor, as well as the

government agencies participating in its loan.

Issues Litigated .

(1) Challenged propriety of debtor-in-possession financing

where debtor failed to prove that it had searched for available

financing elsewhere; financing denied. 72 B.R. 329 (Bankr. E.D.

Pa. 1987) .

(2) Initiated and litigated Motion for Appointment of a

Trustee based upon allegations of fraud, mismanagement and selfdealing of company's shareholders. Discovery ruling reported at 73

B.R. 99 (Bankr. E.D. Pa. 1987).

Significance of Issues

The Motion for Appointment of a Trustee became a trial of

issues of alleged fraud and mismanagement conducted on an expedited

basis, with discovery encompassing 20 to 25 days over 3 months and

the trial itself lasting for several days during a 3-week period in

May 1987. Extensive expert testimony as to financial dealings was

presented. The matter was settled before conclusion of the trial,

paving the way for the plam of reorgcuiization with favorable

treatment of our client's claims and release of all claims against

our client, including alleged lender liability.

Jwdqg

Hon. Thomas M. Twardowski, Bankruptcy Judge, United States

Bankruptcy Court for the Eastern District of Pennsylvania.

Other Counsel

Debtor's Litigation Counsel:

Louis Lustenberger, Esquire

Donovan & Leisure

30 Rockefeller Plaza

New York, NY 10112

(212) 632-3290

(continued)

Exhibit B - Litigated Matters - page 5
51

Debtor' a Batnkruptcy Counsel:

Bruce Frankel, Esquire

Angel & Frankel

460 Park Avenue, 8ch Floor

New York, NY 10017-3191

(212) 752-8000

Counsel for Creditors Coaunittee:

Charles Phillips, Esquire

Baskin Leisawitz Heller Abramowitch, P.C.

2201 Ridgewood Road, Suite 400

Hyomissing, PA 19610

(215) 372-8427

Exhibit B - Litigated Hatters - page 6
52

4. In re Dominica V. Clvitella

Court and Docket: U.S.B.C., E.D. Pa., Mo. 80-01083K

Cite: 14 B.R. 151 (Bankr. E.D. Pa. 1981)

IS B.R. 206 (Bankr. E.D. Pa. 1981)

SMmmary

Chapter 11 proceeding of apartment complex.

The debtor.

laaues Litigated

Rebuffed constant attempts of three secured creditors to cause

case to be dismissed, converted, or to file their own plan of

reorganization.

Successfully reorganized debtor amd distributed one hundred

cents on the dollar to unsecured creditors in Plan of

Reorgani zat ion.

Resulted in frequently-cited reported decision holding that

Disclosure Statement must he based on statements of fact, not

opinion. 14 B.R. 151 (Bemkr. E.D. Pa. 1981); reconsideration

denied, 15 B.R. 206 (Bankr. E.D. Pa. 1981).

Significance of Issues

The client was a widow whose son was managing the complex.

The personal, business, legal and strategic aspects were very

challenging. The secured creditors were extremely aggressive and

constantly commencing litigation to try to tcOce over the property.

We were able to prevail over them and confirm a 100% plan --a rare

result in a bankruptcy case. I handled all of the litigation and

negotiations in order to achieve this result.

Judge

Hon. William King, Judge, United States Bankruptcy Court for

the Eastern District of Pennsylvania.

Other Counsel

(Each of the following represented a secured creditor)

Rush T. Haines, Esquire

Drinker, Biddle & Reath

1100 PNB Building

Broad and Chestnut Streets

Philadelphia, PA 19107

(215) 988-2944

(continued)

Exhibit B - Litigated Matters - page 7
53

Neal B. Colcon, Esquire

Oechert, Price & Rhoads

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103-2793

(215) 994-2515

Matthew Siembieda, Esquire

(215) 569-5609

Samuel Becker, Esquire

(215) 569-5527

Blanlc, Rome, Comisky &.McCauley

Pour Penn Center Plaza

Philadelphia, PA 19103

Exhibit B - Litigated Matters - page 8

45-964 98-3
M

In re Ram Manufacturino

Court and Docket: U.S.B.C., E.D. Pa., No. 83-OlOlG, 83-0102G

Cite: 32 B.R. 969 (Bankr. E.D. Pa. 1983)

36 B.R. 822 (Bankr. E.D. Pa. 1984)

Summary

Chapter 11 proceeding of electronics manufacturer.

£liSil£.

Meridian Bank, secured creditor.

Issues Litigated

Whether Meridian was entitled to relief from the automatic

stay due to lack of adequate protection. Relief from stay granted

at 32 B.R. 969 (Bankr. E.D. Pa. 1983); reconsideration denied 36

B.R. 822 (Bankr. E.D. Pa. 1984).

Significance of Issues

The bankruptcy court found that accounts receivable arising

from pending lawsuits were too uncertain to be considered for

purposes of adequate protection, and proper valuation standard for

company which had ceased operations was distress value.

Judge

Hon. Bmll F. Goldhaber, Chief Judge, United States Bankn^tcy

Court for the Eastern District of Pennsylvania.

Other Counsel

Counsel for Debtor:

Thomas B. Rutter, Esquire

Rutter, Solomon & DiPiero

The Curtis Center, Suite 7S0

Philadelphia, PA 19106

(215) 925-9200

Counsel for Trustee:

Donald M. Collins, Esquire (retired)

Formerly with

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

Philadelphia, PA 19103-7098

(215) 564-8080

Exhibit B - Litigated Matters - page 9
55

6. In re Center for the Blind

Court and Docket: U.S.B.C., E.D. Pa., No. 79-818-EG

Cite: (none)

SummarY

Chapter 11 proceeding of non-profit corporation serving tha

blind.

Client

The debtor.

iBsuea Litiqated/Sionificance of iBSuea

This case was not adversarial, but it was unic[ue in that the

debtor confirmed a plan providing for the triuisfer and continuation

of the Center's endowment intact for the benefit of the intended

beneficiaries, i.e., the blind, and payment to unsecured creditors

of approximately fifteen cents on the dollar. Given the competing

interests of creditors versus the blind community, this case

required social auid political skills as well as the negotiation and

litigation skills normally required in a standard Chapter 11 case.

[Chapter 11 was commenced in 1979 and concluded in 1963.]

Judge

Hon. Emil F. Goldhaber, Chief Judge, United States Bemkruptcy

Court for the Eastern District of Pennsylvania.

Other Counsel

Counsel for Rudolphy Residence:

Christopher H. Gadsden, Esquire

Drinker, Biddle & Reath

1100 FNB Building

Broad emd Chestnut Streets

Philadelphia, PA 19107

(215) 988-2780

For Attorney General, Commonwealth of Pennsylvania:

James Sutton, Esquire

(Current address unknown)

Counsel for Unsecured Creditors:

Lawrence Lichtensteln, Esquire

Buchanan Ingersoll

Professional Corporation

1200 Two Logan Square

18th & Arch Streets

Philadelphia, PA 19103-6933

(215) 665-3923

Exhibit B - Litigated Matters - page 10
56

7. In re Philadelphia Athletic Club

Court and docket: U.S.B.C., E.D. Pa., No. 80-02028G

Cite: 17 B.R. 345 (Bankr. E.D. Pa. 1982)

20 B.R. 325 (Bankr. E.D. Pa. 1982)

Summary

Chapter 11 proceeding of athletic club facility in Center City

Philadelphia.

Client

Trustees of Central States, Southeast and Southwest Areas

Pension Funds, Victor Palmier! t Co. as Investment Manager, primary

secured creditor.

iBBMgs Litigated

Initiated a motion for relief from the stay and entered into

a stipulation providing for automatic relief from stay upon the

happening of certain events. Upon defaults by the debtor, relief

from stay was to be automatically enforceable. Debtor defaulted,

then contested such automatic relief in an injunction proceeding.

The bcuikruptcy court upheld the stipulation providing that relief

from the stay was automatically enforceaible. 17 B.R. 345 (BsuiJcr.

E.D. Pa. 1982). Subsequent stipulation approved at 20 B.R. 325

(Bankr. E.D. Pa. 1982).

Siomificance of Issues

The court's opinion is often cited as authority for

enforcement of court-approved stipulations, especially relating to

relief from stay for secured creditors who are otherwise

forestalled from executing on property which constitutes their

collateral.

Judge

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy

Court for the Eastern District of Pennsylvania.

Other Counsel

Debtor's Counsel:

Pace Reich, Esquire

Clark, Ladner, Fortenbaugh & Young

2005 Market Street, 21st Floor

Philadelphia, PA 19103

(215) 241-1330

(continued)

Exhibit B - Litigated Matters - page 11
87

Counsel for Partners of Owner of Debtor:

Stuart H. Savett, Esquire

Savett, Prutkin, Pidell & Ryan, PC

320 Walnut Street, Suite 506

Philadelphia, PA 19106

(215) 923-5400

Counsel for Trustee:

Melvin Lashner & Lashner

1604 Locust Street

Second floor

Philadelphia, PA 19103

(215) 732-9229

Exhibit B - Litigated Matters - page 12
e. In re Bates Energy Corp.

Court and Docket: U.S.B.C., N.D. Ohio, No. B-86-476-y

Cite: (none)

Summary

Objection of creditor, the Bethlehem Corporation, to the

proposed sale of assets of Bates Energy Corp. in Chapter 11

proceedings.

Client

Bethlehem Corporation, a major unsecured creditor.

Issues Litigated

Client believed that the proposed sale of assets was for the

benefit of insiders of the company. I traveled to Youngstown,

Ohio, in June of 1986 on a few days' notice and put on evidence

during four days of hearings to demonstrate insider dealings and

preferences, sham transactions, undercapitalization, and detriment

to creditors. The court approved the sale over objection.

Significance of Issues

Bankruptcy courts are to scrutinize transactions involving

Insiders. Court approval of a sale of assets of a debtor company

presents a difficult predicament for a bankruptcy judge where the

company has little prospect for reorgamization without such a sale.

While the case itself may not appear to be significant, what was

significant at the time, and since that time, was the fact that I

put on a substantial case of insider dealing on a few days' notice,

without the opportunity tor any discovery. Notwithstanding the

fact that I was not successful, I believe I raised serious doubts

about the sale that should have been sufficient to warrant its not

being approved.

Judge

Hon. William T. Bodoh, United States Bankruptcy Court for the

Northern District of Ohio,- Case No. B-86-476-Y. (Court's opinion

not reported.)

Other Counsel

Our local counsel:

Jeffrey Baddeley, Esquire (current address unknown)

Formerly with

Squire, Sanders & Dempsey

4900 Society Center

127 Public Square

Cleveland, OH 44114-1304

(216) 479-8500

(continued)

Exhibit B - Litigated Matters - page 13
w

Debtor'8 Counsel:

David J. Naftzlnger, Bsqulre

Thompeon, Hine & Flory

3900 Society Center

127 Public Square

Cleveland, OH 44114-1216

(216) 566-5500

Counsel for Mellon Bank (secured creditor)

Eric A. Schaffer, Esquire

Reed, Smith, Shaw iSi McClay

James H. Reed Building

435 Sixth Avenue

Pittsburgh, PA 15219-1886

(412) 288-3131

Exhibit B - Litigated Matters - page 14
60

9. In re Marta Group

Court and Docket: U.S.B.C., B.D. Pa., No. 83-012760

33 B.R. 634 (Bankr. B.D. Pa. 1983)

Summary

Chapter 11 debtor of appliance wholesale cooperative.

Client

Eraeraon Quiet Kool Corporation, secured creditor,

seller/ consignor of appliances to the debtor.

X98ue9 Litigate'^

The validity of consignment and/or secured creditor

relationship as between Emerson Quiet Kool and the debtor.

Significance of Issues

The court was called on to determine who should suffer the

consequences of an improperly filed finzmcing statement: the

debtor, who contributed to the improper filing by dealing with

Emerson under a prior name, or Emerson, who should have made

certain that its interest could be determined from a search of

relevant records. The court determined that the onus should be

imposed on the secured creditor, who had the burden of showing that

the discrepamcy in debtor's name was not "seriously misleading.'

Also, the court concluded that consigned goods delivered after

notice of filed financing statements are not property of the

estate. 33 B.R. 634 (Bankr. E.D. Pa. 1983).

Judge

Hon. Emil F. Goldhaiber, Chief Judge, United States Bankruptcy

Court for the Eastern District of Pennsylvania.

Qthgr Coyinggl

Counsel for Debtor:

Pace Reich, Esquire

Clark, Ladner, Fortenbaugh & Young

200S Market Street, 21st Floor

Philadelphia, PA 19103

(215) 241-1330

(continued)

Exhibit B - Litigated Matters - page 15
61

Counsel for Creditors Committee:

David S. Hope, Esquire

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

Philadelphia, PA 19103-7098

(215) 564-8168

Counsel for other secured creditor:

Howard T. Glassman, Esquire

Blank, Rome, Comisky & McCauley

Four Penn Center Plaza

Philadelphia, PA 19103

(215) 569-5568

Exhibit B - Litigated Matters - page 16
62

10. Schweibert v. Schwelbert

Court and Docket: Phila. C.C.P., Sept. Term 1975, No. 4769

Cite: (none)

Summary

Suit in the Court of Common Pleas of Philadelphia County by a

wife against her psychiatrist husband for enforcement of the terms

of a separation agreement.

Client

Husband.

Issues Litigated

The matter was ultimately settled, but not without substantial

discovery and negotiation involving the interplay of equity,

domestic relations, and the meaning of legal terms and conditions

in accordance with their intent.

Significance of Issues

The legal issues were less significant than the learning

experience for me, personally, to be dealing with a dispute of this

nature in a commercial context. The matter was ultimately

satisfactorily resolved by negotiation of a definitive agreement

that had the clarity lacking in the originally negotiated

separation agreement. The significance to the client was probably

much greater than the significance to the client of any other

matter I have worked on,

Judos

Hon. Calvin Wilson, Judge of the Court of Common Pleas for the

County of Philadelphia.

Docket number not obtainable.

Other Counsel

Jerome Charen, Esquire

(current address unknown)

Exhibit B - Litigated Matters - page 17
63

AFFIDAVIT

I, HARJORIE O. RENDELL, do swear that the information provided in

this statement is, to the best of my knowledge, true and accurate.

MAR30R1E,

kO

O. RENDELL

Sworn to and subscribed

this 7th day of January, 1997

.^'^- il^-K^'TU /i K i''%i^^(^

ROTARY PUBLIC

NOTAfMLSEAL

SUZANNE R. 1MHTE Notoy PuHfc

C% d FMMmNi. PML coway

Mir rrroiiBHiii &DIM Dtc 11.199»
64

HNANCUL DISCLOSURE REPORT

FOR CALENDAR YEAR 199S

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«» MditLcaclona p«ct«iniM UMC«to. LC La, tn «ir «pLAlo«.

601 MARKET STREET. ROOM 3114

PHILADELPHIA, PA 19106 •«viMiM9 Otdcar 0«ca

INPOKnVT NOrai nim iMacxMCCMn*

dMcXing UM aOH ba> Cor OMSI M« •i«o on UM p«f«.

I. POSITIONS. (Koporcing indiviAtal onlyj OM fp- f-tJ at InocnMXlOBa I

POSITIQM MAME QF ORGAHIZATIOM/ENTITY n HONE m ropariAAIa poaicl«M*l

Direccor and Vice-Chair

Co-Trustee

Continued afcer Section VIII

Q. AGREEMENTS. {linrmn Udlvldul oalyi ooo pp. l«-Li of lAmwctlc

Q&Xg PARTIES AND TERMS

NOWK (MO nperublo IUIIMMIII

Avenue of Che Arcs. Inc.

T/D/H of Marv B. OsCsrlunsL (Mother)

D

Boasa. NON-INVESTMENT INCOME. iu,.ni>i IMI.UU.I M •

DATE SOURCE AND TYPE z\

I pp. la-n eC iJMcrucciona I

NOMS IMo roponoblo non-uivaauw«C I ••!

122S Cicv of Philadelphia (soouae salary - amounc n/a) JUii
PIMAKCIA^L DISCLOSURE UrORT

w>w of Cnr*an •"pore IH)

RENDELL. MARJORIE O.

Daca at Icpacc

05/13/96

IV. REIMBURSEMENTS and GIFTS .„,»,«„«.oo .....n,, t«>i. -«.«^i~«

itnelwtofl Che«a to BpeuM AIVI JaparMfic chlldran. UM CM ^ranclMtcie«t« * Ifl * And * lOCI * Co iHaiCCK* ripuiUkU

I »r i»aa»« Mid d»pt«J«i« c«lidr»". r««p«eti»«W »« » l«-» «f tiwcntcttona

DESCRIPTION •

SSJUBCE

NONE >>^ .

I vltca I

PhiljdelDhia Orcheacra

"rac Bank

Philadelphia Philligs

Philadelphia Phillies

I

Penn Club Florida Gold Coast

t

Phi la. Club of Palm Beach

or fifcal

Academy Ball - Dinner t Congert 1/28/95

Penna.Society receptiontdinner 12/6/95

Trip to All Star Game 7/9-11/95 (Dallas)

Cooperstown Baseball Hall of Fame 7/29-30/95

S2B2 toward air fare (spouse speaking tour)

S500 toward lodging(spouse speaking tourl

See Section VIII

V. OTHER GIFTS. ii^h-dn CM. U •«•». .M <

udloae* oOME fi(c« ncatwd by apow* aod t

SOURCE

I I noint

DESCRIPTIOK \£aLS£

I rmpntrthl* fietal

Chelsea House Publishers

please see Section VIII

JuaticaB of the Supreme Court s ISO.O

s 0.0

s

s

/\m LlABOLi iuiS. Ilncludaa tho— of apou** end dap*nd«nc cbildnni indieac* «h«r« ftppLleabl*. p«r«oa rM*e«aibU

(or li^illcy by uaUi« UM p«r«nclMCle«I • [Si • tvt •«par*C« liabLllcy o( tb« vpaua*. • IJI • (or ]atac ll«&tllcy of

ropercLiii UidivLdtMl kod >peu««. end '(OCI* (or lUbilLcy o( a ddpanrtwit cAild f«« pp. 1«-1« a( Iiucrueci«tia.l

CREDITOR DESCRIPTION VALOE CODE

Zl (•a ravecubla ILabllUiav)

United Savings Bank 1/2 mortgage on vacation duplex

(one rental prop.: one personal use

i:«. 11, 904. 400 ' • '*>«« t

• 9t<lfl.MI ci )K«.M"
PIHAMCIAL DISCLOSURE RIPORT

IMBM «( (Mraon ••iiorclivi

RENDELL, MARJORIE O. 0S/13/9S

Hm. 0/14/96)

VII. PaRC I INVESTMENTS and TRUSTS . i«»-. ..i-. .,».««i. ilncluttM cnoM a(

A.

Indtuta -»wr« •pplLc»bl«, <>w»«r of

ciM MMC ftr u*lryi CM ft4f«nth4tlc«l •iJl* (or iovftt o«-»«r«mp j( i*eonMMCACa •imarrtlt »y Mauaa. *IOC)'

Placa •IXI" afear a*tfn MMC

axaaipc («>• prior dtaeloauca.

1.

r«t>orcW

Of«a« value

ill anJ ol

capo rt Log

p«lod^

TrMMCcioM durUti raponiMV »artad

(I)

55.'

lA-KI

111

'IS,?'

(I)

Vatua

ft noc o>W*t trw» dlbClowra

Hi..

-S5"

111

valual

Cod*

IJ-PI k

IS)

(If pcivaca

transactioni

KONE IM> raponabla

incQiM. aaaata, oc

cr<naaciionai

1

i

I fcrwab »«onay N*rt« f»»yl.tIW S Dlvldand K T

1 V«>aw*rt lnear««>i.«ca tTMaurr

IIKA roUovarl

0 Dividend a«la u/o« L 0

1 Vanauar4 T/l Short Tar« C«»p.

Iiwl lollovwrl

0 DlWldWM) L T

« McfM- 101 II" r«.ll«r«rl A BtvldMd MU BVIO K 1

> ridallcr Jalane^d Pund (IR* 1 DLvidand aala Ot/ll K A

( •arvar LH (IltA rvllowrl A OiwiilMtd aaU 07/ia L &

1 irax^yvUM fuMd (IIA rall«««Ti fi DWt4«Bd L T

• OakMzK Fund lltA roUovar) • OlvLdmd K T

f tUuCrau nod (tlU rolLovar) • Olvtdmd K T •alc/pe ovto J C

'• i?assi.:tf" •""•""

• DLvLdmid MU OT/IO K 0

» !ses.?"*" "^"" A OlVldMMl R T

•^ S«Si,f'""' -"" "" A Dtvldaad •aU Ol/M J t

11 lOUi Cancitnr Inc'L IIIA

tollo*«r>

A OtvUmd R T

V» tchMB t*»mY Nar»*t (IM

nncrlVl

A OL<rt«Md J T

11 ri4alLCy ««l«iM:«d hwid I («A

Cw>cri» 1 « OivtdWtd Mia Ol/K J A

14 ttttttm^n PXAd IIKA OoMtlb) « MM* J T

17 SehMb MDMV fwr«K 1 rVA

raLlOT^ri isl « OlvlJwM J T

I. fl.l*lny SaUne*.! ^«I MBA

aotlnw*rl l-ll • ni-i.i.wrt aala s«/)a J A

( trtroM/CalA Coa«a A'tl.oa'i or Los* n.si 001 to )1.4a« C-;i,l«l co *t.0«0 0<lt.a9l to }LS,«H

1 vaLiM Cvtaai J-1it,ni(i or ivn- LIU ooi to 1^1.aas L>l«o.o«i to tiga.ooa H.iL«a.Qat to ii«a.M«

1 V4lu« iw»h.-l >>«1«.. y.*wr4.*.l ii-.«r.i**-t -a'.-t- onl,. ••AJ-----« T-C.at./P4.rt«

I3M 1^1 cat fl-dtin* VKL'M V^HPMC «-€»tl~Ea<l
9!

riKMICIAL DISCLOSUKB MPORT

RENDELL, MARJORIE O.

a*c« ot BMparK

05/13/96

(t»M. 0/H/9fr

VII. race 2 INVESTMENTS and TRUSTS ,««.-.. .»x^. tr«.^i«« <i»ci,^ i

U« >a*«c by Miivi CIM »«r«nctwcXe«l

eMM>Mm«Lp »v d*»«nAnt child

' rvpon

•ludna

raporttnq

P«Ttoil

a.' ,T- 4!.*:

CotU

tJ-ri

rapomng

•iKhodl

Cod*

TraAMccioM durtnq r«p«nLnq parlod

buy' Hll Mrv*r.

• dt»elo«ur«

i3t_ Month valual

Coda Cod*

buy«r/a«llar

(l( pciwac*

cranteccLon)

n

20 Wmv^mt IM intA Coacrtkl tl)

23 K*li« t*rnxm Eiic«tprt>« Svy

l5a» 1 ol'ai »artM 11 (J)

)f trlmem OM* Cir St il/lT/«7

lluid I dt 1)

fbarx T«ra wcc iLtiM I

57rM9 Itert r«r* •«? tllA« I

I n VM^tdrd «Mi Short Ca Tir* SoMd

isn ont Dt « (Ml «>Si).qa4 to l^o.!: r-i-in.ini to 1110.Qgg c-itou-oqi tn ji.uiin.omi ii««fcif^ thaw ai.oow.i

1 V4IM C«d««

UM Cml Cl « Oil li-int.«H CM SIOQ,

it.Jiqn.SOt ta JMQ.ODQ

«>««Cl«aC«d
riNAHCIAL DISCLOSUU REPORT RENOELL., MARJORIE O. 05/13/96

(rev. ti/Un

VII. Page ] INVESTMENTS and TRUSTS .. i«»». .41... ».,»..«>«<. ii.«,i..d...

•fMj J«9«fla«nc emijrwi. Sn M. 11-44 et Iiweructiona,I

llncludlnf cruac .iM«cai

lndl<:Jt« -»>-r» «pplic.im«. OWMF of

rr«f .laao-C Dy «an«j th# ^trantMC leal

•<jt- (or l>ti<ic o«t:»r«h4M .if r«Mrc>

•vearBI* uwfMrahLB by apouaa. • (DCl *

(sr OMtaranip By d*p«n<tanr erilld.

ruea •III* *(t«< •«* aaaM

asaav« (ros pctor dtacloaura.

.4-

raportinq

0

TranaacciOAa durtnf raporcin^ paclod

AM.l

ranc ar

III

'alual

1:1

VaLua

(11

iS/iall.

If IMC cKMpc froM diacloaura

lai

DataNonch

Day H"

(«i ISt

tdancicy oC

buy*r/aaliar

lit pclvat*

cranaaccloni

Kicoaa. aaaaca. oc

trana'Ctiona)

J» •anaficul - CD lOCl A tflcaraac

>• DutaAC (DCl A DLvldand

It Nuffy Oorp (OCi A Dlvidand

40 HarldLWi Vaneorp (OCI A DWldMId

«l Toya • IM tOCI A Dlvtdattf

«1 etc Jteerl Tray Sa 0« 11/M A twanac

4J Sctwab Homy Hartat Fd (OCI A OtvLdMd

«4 radaracad I-l hr Oovt tllA

•7oi « owidand twy ll/Sf

as Co-wi Opporcwuey (I»A l/Oi A DLvtdartf byy fl-J/ll

*' ?fic t srir"=** "•* •""

I OLvidaad buy 07/12

" ^rtKSSrar*^''"^*" twy Ol/ll

41 OrartuB f.I Oovt. CIIA i/OI • Dtvtdand buy 9l/l->

" Ml ;*•!,=•" '»* •"" buy 11/07

10 PW( ValtMlIU R/OI • OlvidaAd byy 07/U

SI JafMa rund (IRA R/O) •JtvidMd buy 01/U

tl M. Mttual ((HA a/O) . Oividantf buy 07/11

fl *M (quieyllRA a/oi C OtvOland *>*y 07/13

>4 »«C«n [ntvrnactifMl < laA R/OI « Diviifarhi b»y 04/17

t In'.-Wi«/C«ln Cvtas A.11.000 if L«IM (1.Si.oat Co 11,ietl C-SI.lOl Co tS.OOO 0-K.a«t ta lll.dOO is-ITcol ai k 04) N-tLt.otiL <.a s'.a.o'ia p.r.6.aDk °u sloi.oon o.iiaa.oai co ti.eon.aoa ii.Mor. than ti.ba«.o««

i»M col cv 4 01. N-i«4.o«i ta jlo<i.e<»«i u.i«6,ooi to ji.ooo.ooa P-«»or* el»-« si.ooo.ooo

( Vnltio MKhiBl C-rUm •l-*IH'r-ii*tl a-•'»*'( r>^ 1 -arac* 'wlyl l-AxaawMnr T«Ca«h/M<rh*C
PIHAMCIAL OrSCLOStntE REPORT RENDELL. MARJORIE O.

0*ca «l Bavart

0S/13/9S

Vn. Page 4 INVESTMEfTTS and TRUSTS .. i«,

ftildcan S*a pp n-\* «i lnat.«ic«i«u.)

(cev. 8/U/96)

Ma. tranaacclona I rnctudaa cMaa at >

• ^•kzliallnv cruat aaaatal

imicac- -^ra aprUcaOla. aMtar of

t^ -laait fry uaLiv] tna Mranciiacical

•L/i* («r t^inC »«araM« sf raeoRiM iAJivi.kuL and apouaa. 'I*)* tot

••Aacaca .>wnarahi» ^ apouaa. • I0C1 *

e3r»-«tal«*p &!• Sapandani; child.

PL««a -(I)* attar aacA mmt^t

am»mfT. tvtm prior dlpcloauta-

^SJ""

Ocoaa valua

ac and oC

caporc 11*9

0.

TtAnaacclona durlflf raportinf parivd

(tl

a'

rA-K)

(31

rant or

inc.)

HI

'Sis'

IJ-H

i:i

Valua

Ul

TVpa

It noc asaivc Ins dlacioaur* i

iJi.,

"Si11)

VaLua]

Coda

CJ-»t

Si:'

(A-Kl

(S)

IdaficUy o(

Ouvar/aallar

lU prlvaca

tiania^cLonl

NONE r«e rapenabla

mcaag. aaaaca, ec

cranMcciomal

OMwrikt

A DWiMnd bur 0«/17 J

M SMCan iHCMnacLanal (» A Di*14aMt buy Of/11 J

%J Miltl^a auir Orovcii (SI A Dividend buy OVll z

U «T4T 1J1 A Oivuiand inharic o(/at J

A Olvtdand ifiharlG M/Ol J

M <ton 0»La IJ1 A Divtdoad labdrlc 0*/01 '

•1 aiabsld fJI A Oivtdaad inharic M/Ot J

•3 «BU aiaMr Co (Ji A Oividoad UOimrlt 0«/«l J

il r«««ml fce-l >«nvafl« Mpoe. A OWldaod Lnhartc OC/Bl K

S4 Bl—•« in A OivldMd Lalwrtc 0«/ttl J

«* gpaaral Clwrerle iJ} A Olvlteiri Utfwrlt 04/01 K

M Ctllacca Go. Ml A aivldawl inbarlc fli/01 K

tt aa^aAaU UcnvaclOMl IJI A DlvidaMd inbarlc 0«/01 J

M faiio [acamaCLonat (JI A Olvldand lAharlC 9«/<lt '

n maOottmtdm Corp. IJI A Otvidand inharlt 0«/01 I

M MoCMvLa (ac UP A Olviitand J lAharlc 04/01 J

11 »<^ai<:« Inc. Ul . Oivllaart J Lntwrlc 04/01 J

n a*l-i«art Koraa. Inc IJt A a>vi.|«Mi J Lnharlc 0«/01 J

1.'.^ Cnr St a 041 il>fii,a4t '.« ;'.a.<iun r-S^^.agt tu Sioo.niio o.jtoo.ioi to ii. ooo.aim ri*M>cw ctMn 31.009.ma

t «4lM Cvlaa^ J'lil.aan iw Iwia K.li'i aoi '.« I^a.^ao L-iit oil co Itoa.oao N-3iai.0oi ca SIin.OOQ

1 «•!•« Mat**! O-iw^ J.ntvrjia-l fli>Mt(c«al aat.ala iflli'i S-Aa—i—ant T-«Uan/H4rtal
n

riNAMCXAL DISCt.OSimB REPORT

•U>a of MrMH Mfl^rtlnq

RENDELL, MARJORIE O. 05/13/96

VII. Page S INVESTMENTS and TRUSTS

Arid ilapwAilvnc chlldrsn. S«« pp. 11-t4 ai

I. walu*. traiMactlona IIncLud«a i

f tnvtnucilona. I

OaMrtpclon al AsMia

Uncludlnv cniac «»««£•>

tndleaca oHcra appUc^bta. ownar a(

IM l«li»liu*l ««d apouaa. ' (SI»Jaj

•*&«raEa ownaraMe by apouaa, •(OCf-

'^r »<mar«r.ip Ky Sapandanc e^ild.

H.*ea -lH" af(at aach aaMt

mnm^i inaa prior dlaclocura.

AirlM

raportlitQ

pariod

C

Croaa valua

JC and ot

0

TrwiMCClona Awim r«po«ii*g petlod

III 111

Lnc.i

III 131

VatM

*•

I( not aiwopt troM dlaclOMra

III

0ac«:

-85"

IJt

Valual

(41

(A-K)

(t)

IdOTCLcy o<

buyar/MllM tic aci<rac«

cr«AMC«ianl

NONE liw rapo«*hl«

i«eo-#, «aa«ta. or

cr*iia«>:ciana>

Tj Malla rarge 4 C« fJl • Dvvtdand j iniMcie 0«/l)l

74 Mmtwt Corp. IJI A DLvi4and j inharic 0«/Dl

Tf Schwab US TrMNry NOIMCC . IJI A Incenac j buy i:/j7

i< at T-ltoc« S.aiSI l/fl (Jl IJ) A tncaraac j buy 0«/K

TT Dl T>BOC« 4.1)9% l/tS (Jl A Incaraat J HCurtd OI/IS A

Tl m T-SDM 7.1% U/%« (Jl A tncaran J buy M/IO

79 ftUthClUu BMCKM Corp. » Oindand K Tiuae

•0 MUntle BMrfjr A Olvldwtf J T«wt

• 1 DTMMr IiMuEclaa A Dividend J Tniac

•3 t.t. *i taoe da Mwura A Olvldcftd 1 Trust

• I KlUrian, tnc • Dlvldand K TriMt

•4 TnxMU Corp » Dlvldmd J Truac

•1 MckMBA Inacraawnca « OLvtdMtd J Truac

•« no«tl Carp- A DWldMtd • Truat

• 7 AtUncte aicMlald Ca C Dividend L TriMC

M Nt tndutrcriaa • Ot-ld^W J Trwat

47 OMwrat Mocira « Oivi.i.n,j J Trwac

va

I I(V»-a/Oairt CWlaa d.ll.MO or l^aa B.Ji.OOl to SJ.^io C-jlJ.loi lo H.MO O-Sf. OOi Co ]IS. t4fl

i'.*n Cot. at 4 CMJ B-ilS.oui r,o JSO.oqg ^.J-io.ooi CO Sioo.ooo C-Sion.uoi Co SI. o«(i. oon ii.«ti)r>i than 5i.uoo,ofl«

1 W4LW4 Ciyl«ai j.jil.aoo or liaa •-lis.ooi lo :%o ijno L-Jio.ooi to Jinri.on') n.3ioo.o<ii to 3)%4.«M

ISM Col. ci 4 0)1 M'fito.tai CO sfoa.ouo o-lsob.ooi lo ii.aau.aoi) c-Marn ch^n Sk.aDO.ooq

1 »alua H»«N».| O*-!"^ q.*p|ir«l»4l a-i.-r^c lca«t ••*•'• only! -I-Aifaiaavnt T>Cai>h/*Mrk<K

l»M Cai CJl U-nwjk Valua V.O>.»Mr K-IMiaiacwl
Tl

riKAKCIAI. DISCLOSURE RSPORT

RENDEUL, MARJORIE O.

DMCa If i^vore

05/13/96

(Ly». a/'l</96

VHL ADDITIONAL INFORMATION or EXPLANATIONS. (tiMlieaC* 94n of I

I. All duties as Co-Execucor of ch^ Karjr> of Emma Rendell Imv lace

iWthtr-Ln-Uw) UatS'^ in the 19?4 ReDort have been diacharaad. Due co che

deach of mv either in January 199(; ri.mies aa Co-Truacee u/w of Mary B.

Oaterlund have been diacharaed as wi']\,

rv. REIMBURSEMEKTS AND GIFTS: All tri f ca received by virtue of husband's

BCtictqn aa Mayor 9i the City ot PhiladslBhifl, The trio to Dallas dine 3)

was due to Philadelphia's being site nf i-)96 All-Scar Game. Hall of Fame

(line 4) was due to two Philadelnhia Phillies inductees. The trip in February

199S (linea 5 fc 61 «as a three-dav trio to Florida. As wife of the Mayor. I

accQPpanv mv spouse to ceremonial and other gala events at which meals may be

served and/or which include entertainmi.nr The value of the dinners, event

ticlcets. etc. attributable to my at^>.ndance at those events listed in Section

IV hercgf My exceed 525C, As to snouse. see attached page from his ethics

reporc as Mayor (Exhibit A-2 to statement of Financial Interest filed with The

State Ethics Commission of the Commonwealth of Pennsylvania). I believe all

lifts are exempt due to provisions of Regs, of Judicial Conference section

i(b) • set forth at Appendix (ivi.

'. OTHER CIFTS; 111 As wife of the Mayor. I had the use of tickets for

ieatinq in the Mayor-s Box for sports events.

2) It is mv practice, and that of mv spouse, not to accent honoraria for

.•oealcing or for performing wedding ceremonies.

31 In attending or speaking at functions as wife of the Mavor. r have .

ceasionalLv received token gil^ta. such as a plague or vase; I belinvff that
72

rlMANCIAI. DISCLOSUItC RSPOKT RENDeLL, MAJIJORIE O. OS/13/96

VIII. ADDITIONAL INFORMATION or EXPLANATIONS. <MI<«. .^X •< -fti

fh> valu» nf any auch altta wag wgll under SIOO • Aa to spouae. Bee attached

pjQi. from hi 3 ethlca report aa Mavnr

VTT. IHVESTMRMTS AND TRUSTS: Pleaae note that Laat year's report reflected

i^nrrles fnr Schwab at llnea Mos. 1. and 2: these were duplicate entries and art

combined nn rhis report aa Mo. 1.

Trem 9 retleeta a partial sale, itema 28-30 a partial return of principal.

Itema NOB. 23. 2«. 26. 27. 31. 32 and 34 reflect certain 1994 tranaactiona

which were inadvertently omitted from mv 1994 report.

Trema Nos. 85 through 95 are liated purauant to the inatruction on cage «0

that if aa Co-Truatee I had control over the diepoBition of the asset. iC

ahould be reported: I. together with mv father, had auch control over tha«e

»aaetB that were in the T/g/W of mv mother. Mary B. Osterlund.

I. POSITIONS (Cont'd.)

POSITIOM NAME OF ORGAHI2ATION/EMTITY

-o-F,xec. (all duties discharged Ear, of E.Rendell (mother-in-lawl (since 3/1S/951

member. Board of Overaeera ml 1 of ArtatSciences-Univ.Penn(since 4/27/9S1

rruatee Brt nf Trunreea. Univ. of Pa. (since 1/1/9SI
78

riMMfCIAL DISCLOSORI RXPORT

RBNDELL, HARJORIE O.

0«ta «f ••poR

OS/13/96

(iiiu. s/w/se

DC CERTinCATION.

In compliance wlch the provigions o£ 28 O.S.C. 455 and of Advisory Opinior

Mo. 57 of Che Advisory Commlccee on Judicial Activities, and to the best of my

knowledge at the time after reasonable inquiry, I did not perform any

adjudicatory function in any litigation during Che period covered by this repc

in which I, my spouse, or my minor or dependent children had a financial

interest, as defined in Canon 3C(3) (c) , in the outcome of such litigation.

I certify that all the information given above (including information

pertaining to my spouse and minor or dependent children, if any) is accurate,

true, and complete to the best of my knowledge and belief, and that any

information not reported was withheld because it met applicable statutory

provisions permitting non-disclosure.

I further certify that earned incooa from outside amploynent and honoraria

and the acceptance of gifts which have been reported are in compliance with th

provisions of 5 U.S

Conference regulatii

Signature

BOTE: ANY INDIVIOOAL

THIS REPORT MAY BE SOBJEi

SBCTIOH 104) .

7, section 501 et. seq., 5 U.S.C. 7353 and Judicia

CC- N Date tiiqiuir 14. l<Wfi

/KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE

TO CIVIL AND CRIMINAL SANCTIONS (5 O.S.C. APP. S,

'Xr

J.;.';V;?'; ' FILING INSTROCTIONS:

orlg; 1 and > additional copies eo:

. Coramitcec on Financial Disclosure . -^^i;.,*^

.;.^. Administrative Office of the Uhited States Coiirtglw T'^ '."..^^..i

; ^ One Columbus Circle,

'^Suite 2-301

Washington, D.C. 20544

••:;> •--^y^f'afe;^ ••»- '"i"^ ?-;"?*^
74

FINANCIAL DISCLOSURE RKPOilT

HONIHATION It a.c.c- «v». «. in-uit

RSHDBLL, MARJORIB O. D.S.D.C. (B.O. Pa.)

1. Data of M^Mt

01/07/97

«. TttU (Artiel* (Artiel* lit ;ludBM inatnw acciv* or

DISTRICT COURT JUDGB (ACTIVE) •l/tUM - U/lt/M

UNITED STATES DISTRICT COURT

601 MARKET STREET, ROOM 3114

PHILADBLPHIA, PA 19106

• . <)• tlM kMta e( cte i

c>',^!£:%.':sti:ffi.i=nM'Ub«'u tt^'SSM'

t for MA ••PtiMi «

L POSITIONS. HiiBiTli la«l>14Ml aalr< MM f». fl-U at tMCraecUM.t

£QSin2fi HAMB OP QmaXMIZATIOM/KlfTITY D

Director and Vieg-Chair

tteaber. Board of Overaeera

Truatee

Avenue of the Arta. Inc.

Colleae of ArtatScieneea-OqiY. Of f«nnilYlYMJl

Board of Truateea. Pnlveralf^ nf l».nn»i>'l».n<«

IL AGREEMENTS. t»i>inTin U«I«IA«I «iar< mm m- i«-ii mt IMUVMU

DftXE PARTIES AMD TBtMS

D

m. NON-INVESTMENT INCOME. i»«>nii« uu'U-i-M V_M, •« i*. U-M M u^osi—. i

QUS SOORCE AMD TYPE SSi^^tSSt

n MOMS nto mmifci* <w»-i i ii

19?6 City of Philadelphia lapouae aalarv - amount n/al -tt*.'
75

niOkHCIAL DIBCLOSOU KBPOKT

Maa of ParsMi ftv^ertinf

RENDELL, MARJORIB O.

Oat« of tmfon

01/07/97

IV. REIMBURSEMENTS and GIFTS • i,.,»co,u,i«,. 104,1... lood.

(InclodM UWM ca apeuM and <a»aiiilain alilldranj uaa tha paraathactcala 'Itl* and -(DC)* U ladloaca rapottalil

ral<riwM«Banu and flCta ncMlvad by apouaa and dapandant elUldran. raapaetlwaly. taa ff. »-3* al InacmoClan

SSySCS BESCRIPTIOH n (Ho Micb r«pc»ii«bl« xmXm r fLCt.*!

fiSBSZV. OTHER GIFTS. utnciudu ti>o.« u •

indlckt* «£taaT fife* r«Mlw«d I

n

SOURCE

HONK

: Gblldxanj waa cha paraoxJMClcaU •<8I* and •(OC)* to

nc chlldxan, raatactlvaly. »— pp. 10-lJ of Inacnectona

DB3CRIPTI0N VM.I

"^natfr

VL

•

: $

«

s

LIABIUTIES. (iBBlutea tfcaai e( ipouaa and dapaadant cULdram Ladleac* atacr* appUeabla. paraon raaponatbla

rer ll^lttcy by uaUag tha paranCtaatLoal •«)• foe aapuata llabilUy oE tha apoiua. •IJl* toe ]alnc lUUllcy ol

nv^RlAfl ladlviAMa and H»BWI. aad •IDO- tor Uablllcy of a dapaodaac eklM. taa ip. M-M ot laameciana.t

OtBDITOR DESCRIPTION VALOE COl

Pnlted aaviMB Sank 1/2 Mortoaaa on vacation duplex

(one rental prop.: one neraonal uae

i: i&?::>°; m.^ l: Hb!:i> .T:8:.. > iai« tkiM il.oeo.AM

H • tlM.flOl to HM.tM
H

mOMCXMl. DISCLOSDU WMgOKt

•••• Off ^BTWi Miport&iif

RENDBLL, MMUORIB O. 01/07/97

Va. Pife 1 INVESTMENTS lod TRUSTS •- !.». «.ii», tw

pMortKlaM af diMlMdliif tnwi

PUca •(II* aCcar MtA aaaat a>a^C (r^ prtor aiacloaara.

pSrlai

c

ac aad «<^ Tnaaaetiaaa durlaf npectl^ prla*

35..

sac (A-»t triiaiWlrMl

n IKMCT (BB rapoRaibla

Vanauaxtf I

tDW rollawwl

ga.sa'lury iBC-l (IIA

' or*^'"^

a.I. oawc. (nu ft/01

U n« WOMatllA R/01

14 Ht. ItaUMl lOU «/0)

I •vilti'(DU ft/0)

II •oOaa tKafwtloMal (IB* ft/01

fts-iifiirs; aur«.°;.'ffl.. Mtft.Ml ca"l»O.W* SMIMTWI to tl.OOO.WO SJfera chaw M.wT—

a Valua Cnlaa. ^*!1I>*0« <>' ^tf* B-U>iMl to Iff-**) ^ i-«SO,Ml cs |1M.M«

gagftai. •-GMClM v«otSr_ ' Sr&s?tS!S

I^IIM.OOI CO nM.OM

T-<^a(i/M«rlMt
77

mOUKZAI. DiaCLOSOBS taootcT RENDELL, MARJORIE O. 01/07/97

Vn. Pate 2 INVESTMENTS and TRUSTS in«^. y.iu,. cr«nMctt«

: ehikdrM) amm pp. IT-M o( ItiMn*ction« I

I tnwe M—t*l

leae* w»tmt9 «eBlie*bl«. oaaar «(

MMC by MiSt CM MTMiMCtMl

SanK* B—iTilitB by^apouM. ^ rpct •

raeot

lA^S)

irir

Coda ij-ri

Valua

I durbif taportlng p«rlod

buy; Mil

IJ-pt lA-Sl

Idsncicy of buy«r/a«ll«r IIf pfivvt*

n UMWI. •••«£«. or

> IdC-l aiA ooMrlb)

I tac-1 ttU I/O) (S)

M «nT ui

t UMunaaaca IJ1

wU lac. <Ji

M a>lt Dian«r Co- ui

1« fBAtaaia OM IM: IJI

tmaam/O^iA Oadaa. A-ft.Hfl or laaa Mil,001 CO n.Mo c-ia.toi co is.ooo »*«s.oai co tis.soo r-i<t.8oi to iioo.floo Q-ii6o.oai to ti.ooo.wo a^torm than ti.ioa.aoo

••1100,001 to 1310.000

• siTcya," satiftai. vSchai

;r««l aacaca only) W'^m»»* T-Caah/narkac
78

rXMAMCZAL DI8CL08U1UI REPORT RENDELL, MARJORIE O. 01/07/97

Vtl. Pace 3 INVESTMEPO^ and TRUSTS - !«».. ^IM. tr

and dapMidHK chlldran CM pp IT-M o( Iii«n«eclaM. t

D«#crMlan of Immmtm

tBdle«t« wtwr* aMlicatala. ownar et

Ut* *•—t by u«lU ciM parcMtMCteat •iJl* toe lauic oMMrrtaB of r«vert' IM indlvl&»; Mid apoua*. • [S\* Cor M£«x*t* omwrvfitB fiy ^oiim*. • IOC) '

(a* oMiftratiip by flap^nrttne child.

ri«c« •IX}* aCtar aacti aaaac

• prior dlacloaun

ssa

Si' (A-ll) Cod*

tJ-Ft

-as?

TtMMtctlai^ AirUw rvporttnq period

n.

IJ-H

Idamuy of buyw/MlI*r

<1f privota

n (•o r«port.abla

Mral tlactrlc IJl

It Olllacca CO. {J)

Id IncatmatlofMl IJI

I tncantottonal (J)

: ToctMBlo«laa tJI

44 nXtll (J)

44 K> InduacrlM

4T rapaloo tac (J)

44 Piiblie tmrvxem ktcarp'ta* Ovp.

4* a^tbCllM I

to apTtnt OorporacK

tl vuiea* Nftcailala IJI

S4 Oal-MBrl Star**. Inc IJI

1 Inco—/gam CtodM: &-fl,00e or !•••

(••• CoF » 4 CMP K-lli,«01 to »B.C W1,001 CO IJ.SM c-n.wi

SO.<K>t CO tiM.ooa O-flOO.t

tS.SOO ^IS.Ml U tU.OM

1 >i.oa4.o«« ii««»ra t^ati ji.w.w

iwiiM.eai ta tXft.tM

T-Caoh/MarlMt
79

niOUICZAL OISCLOSTIBB BXPOST

•••• at tacaon tapartlng

RENDBLL. MARJORIE O.

CMC* ot Bayttn

01/07/97

Vn. Pace 4 INVESTMENTS and TRUSTS • inca>. y*iu.. tr.

•Ad fcp—aiwc ctiildnn. «•• pp. >7-S4 ut iMtrwcciona.l

(tncludaa tttoa* o( i

AOMcrlBClan of taMts

(UMluAng Cntft MMta)

•*Ji' tor l«lBt ow»t»liIp ot r«ponLMf i*di.vi&i«l. uMl «p0uM, *iS)* for

fins C-

•stsr

D.

TranMCClOM during npottlnq period

(11

(A-m

(11

ii-r

IS.?'

ID 131

VBIM

(5^ ftIf ooc «MiVC froM dixilodOT

% H'

(1)

(A-¥f "Slskia

"8SSL. ^3r£*"*

U BallA r«npn A Cb- (J) A OlVldMl

M K«m CBIT IJI A Dividnd

•1 m T-fce* $.«as» i/n ui A Intarwt

M 01 T-MC* 7 » 13/ft tJI A tw«rMC

«• MM t»v Tcwac l«riM 1« (J) A Divltetd

ta MBl tnr TVUK SMlM LJ (J) A OlVldM^

«i £2;|?',S3*)i^7ST ^"

c DLvMMd

•1 ic^-it Tax W)itmir. m U) c DtvldMrf

*i

«1 gjijMJt* WMl lbe*t TMm Band • DlvlteMl

U muf. IK. (DO A Diwtdmd

» Mt.um.ie toaxtr coa A Dtvtdaod

M Acl^acte UdUKU IDC) A Ot«l<l«Ml

A Dlvldwtd

» .. r •—..u. ,«:> A Divldwid

•• CMtalK. I0C1 A Dl<rid«nd

t« itairr CBST. loa A OlvtdMd

n KMi too » Olvtdmd

T3 A ijMMCrlM (DCl A Dtvtdw^

' !srsiM.rs:i fciu'ss.no'ss,... wii'sj.'niijs'*.. s:Rin.i»a'i5'8..,M. KStJ'^hS it!tas«.

' TIircSr!i. Dj. i:JiU°S2.°Ul8..«. S:|«t°S!,'S='i!:S?S.... WUi'!U'.i;SS6?88. -"'•"" " ""•''"

' SiTcS^,"—' SasSfiKi. {5SSi"" """ -"" !:JSSra !-:-./-«.«
80

rXMJLMCIAL DISCLOSOn BSPOBT

•MM O( Pafacn lapeRlnf

RENDEU,, HMtJORIE O.

0*c« oC Kavocc

01/07/97

vn. Pace 5 INVESTMENTS uU

«nd itipMilMn ekildrwt.

TRUSTS -- IHCM*. valM. cr«na«eciona (Inelud»« cho** of apcM**

SM pp. 17.M of InKfvetlana.t

laUME* «hM« agllcabl*. o"^ «<

rUc« •(«• •(Mr Mck **MC

MM^c (ro* prior dlaeloour*.

D.

TrMMccioM ducLag r«portln« pwiad

(11

(A-Ml

(1) la) If OM «Maivt tra* diKloMir*

%

(Jl

(A-ll ^%,

NCmX tao rq>orc«bl«

UWOM. UMt*. t»r

truMccioMt

1] aKltWUlM BMChM M« (0C> A Dlwtttaad t T

14 rvr» II » (DCT A Oivldvrf J T

Tl Of Jteerl Tr«y »« 0% 11/9I A tnconat j T

T« BchMb NMwy auta. PD (DC) A niTiiiMiii K T

IT

Tl

T»

IS

•1

n i

M

H

••

M

•T

•I

••

M

' !SST«"{.rBi Wh?S8.n.'B8,... WJi,'!}.'£.'ii8l'«. S:IM?J.S\!S?'8„.«. W5t:*L^ B?»8Sr«.

' TZiTcS?*^ ..., i:85»?SSi%'.'JK..,.. S:!!S4'SJi'°u.'i!:SJS,.». fcSi;;"^MT.6!88. "•"-••" " "'"^

' ';ttroS''S,°— WBTWi. sssi"*' "'"•""" WKSSS T-:.»/-«».
81

rnauRiAL oxscLostiRs UPOKT RENDEIX, HARJORIE O.

Dat« of ItopeiY

01/07/97

Vm. ADDITIONAL INFORMATION or EXPLANATIONS. IMIOC ,^ .(<

OEZZ&i INFORMATION PROVIDED IM SECTION VII IS AS OP 12/18/96.
82

K. CERTIFICATION.

In compliance with Che provislona of 28 U.S.C. 455 and of Advisory Opinion

Ho. 57 of Che Advisory CommitCee on Judicial Acclvlcles, and Co Che beaC of ny

knowledge aC Che Clme after reasonable inquiry, I did noc perform any

adjudicatory funcclon in 2uiy litigaclon during Che period covered by this repc

in which I, my spouse, or my minor or dependenc children had a financial

interesC, as defined in Canon 3C<3) (c), in the outcome of such licigacion.

I certify that all Che Informacion given above (including infonnacion

percaining to my spouse and minor or dependent children, if any) is accxiraCa,

true, and complete Co Che best of my knowledge and belief, and that any

information not reported was wlchheld because it caeC applicable statutory

provisions permitting non-disclosure.

I further certif

and the acceptance

provisions of 5 U.S.C-app

Conference regulatior-

:y that earned income from outside en^loymanc and honoraria

If gifCB which have been reporced are in compliance with Ch

7, secclon 501 et. seq., 5 Q.S.C. 7353 and Judlcia

Signature

NOTE: AlIY INDIVIDOAL

THIS REPORT MAY BE SOBJEl

SSCTION 104) .

ions, i

'Mll.

INOLY AND ¥11SULLY FALSIFIES OR FAILS TO FILB

CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. C,

m PILING INSTRnCTK»JS:

Kail signed original and 3 additional copies to:

COREoicCee on Financial Disclosure

AdmlnlBtraClve Office of the United States Courts

One Columbus Circle, N.E.

Suite 3-301

Washington, D.C. 20544
88

HMUORIE O. neMDCLI.

NET WORTH (as of 18,1996)

Provide 1 camplcic, cuneni Tinviciil MI worth lUuciKni which iumizci in deuil

all UKU (includini bulc accounu, rejj eiuie, luuriDci, grusu, invcssnenu, ind other rmincitl

holdiAis) all Uabilioei Ctncludinf debu. mon|i|ei. loini. uid other nnuicitl obli|>daiii) of

jrounelf, yotir ipouse, ind othu immobile mcmbcn o( your hotiiehold.

Auns UAJ[1JTT£5

Cadi •• kuM ••< a kxii 3 XX) HMU P«r*bl< Id bwtki-MCWod

Naiu riyitk u bviki-wuxm^

iMi ..artu-M uitM. (attach«J) 1,€81, 705 »* Ko4ci ptytbU ta rtladva

XMittU •w»uiu-**l xki4.l< Natu pay^U U «th«n

A«aa«m M4 M-^I ncciviMc Accaunu u<d MUi <u (mlsc) 2 000

D— 6M nbuxi ai< >wdi 10. XX) Unpaid InuiM ua

DMtaaMkn fathar'a ascata 5, »0 Otbs wtpaid ua and iotaml

Dnbdy Raal aaiata mantH** pajaUa-adi

«*•*'• attached 278 000

605, wo Quoal >MRgB|«a and «to liaM pajraMa

tul wu aMt>|« nni>iU< Oaar dabu-iamiu:

SO, XX)

Cai>niia-Ua bMnwa

0U« uifci-MaUr

Momy aackat - Schwab* Z^, >42 .

TxallaMWM 280, OOO

- NaWom ,320, 347

TMllAlvtt

•KI7 Taal laUUM and aal nnk ,600, 047

CaNTINGD.T UAJIUTIES CEMRAL tSTORMAnON

>tn aiqr aawa pladfad! (Add achad-

•hj no

OB k««i« wiwa

none ac^MaT no

UlilQax Kava yva awar lakaa binfavpuy? no

Pn'UM b F.<tf>I bow To inna

0Mlp>><JM< nona

Zaolodaai

14,(IT

ii.ns

Ul

(144,s«a

• joint aoeevat

- ZUi pasaiOB (H.O. Randall)

- ouatadlan (COT J.T. Randalll

- ZU (l.a. Randall)

Includaa all

aacurltlaa

In IKAa and

pansioa fuada
84

/

f(<^i^j'U.( if?A; rj)

1*71.Ha nLk,t«H ||.»III OMWTM.aHf 14.MOO

»*»-Tl« foccN iNnnuTiOMAL nrv , *T.MOO llS.OOt.fO

0.U i-b.L.> y j.L^ T <^/^vi]

'1si
»

Marjorle O. Rendell

SCHEDULE 2 - Hgfttf

Property

3425 Harden Drive

Philadelphia, PA

5032-34 Asbury Avenue

Ocean City, NJ

1

Kss.ooo

B370,QOO

Hortaaae

$ 130,000

$ 148,000

Both mortgages held by:

Dblted Savings Bank

p. O. Box 25087

Philadelphia, PA 19147

45-964 98-4
86

I. BIOGRAPHICAL INTORMATION d-UBLIC)

1. Full name (include any (onner naroes used.)

Bruce Willtun Kauffman

2. Address: List current olaec of residence and office addressCcs).

Office Addros:

Dilwonh, Paxson, Kalish

A Kauftnun LLP

3200 Mellon Bank Center

173S Market Street

Philadelphu. Pennsylvania 19103

Date and place of birth.

December 1, 1934

Atlantic City, New Jersey

Marital Status (include maiden name of wife, or husband's name). List

spouse's occupation, employer's name and business address(es).

I am married to Carol Jackson Kauf&ruui.

Occupation: Marketinj

Employer: Lawyers' Travel Service

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, Pennsylvania 19103

Education: List each college and law school you have attended, indudlnc

dates of attendance, degrees rccdred, and dates degrees were granted.

Yale Uw School

Degree Awarded: LL B (1959)

Dates Attended: Sept.. 1936 - May, 1939
87

University of Peimtylvania

Degree Avbaidcd: Bachelor of Ans (19S6)

Dales Anended: Sept.. 19S3 - June, 19S6

Duke University; Sept., 1952 ~ JuiK, 1953

E^nDlo\TneDt Record: List (by year) all business or professioaal

corporatioDs, companies, fimis, or other enterprises, partnerships,

institutions and organizations, nonprofit or otherwise, including fims,

with which you were connected as an officer, director, partner, proprietor,

or employee finct graduatioa from college.

1983 - present. Chairman -- Dilworth. Paxson, Kalish & Kauffman LXP

1965 - 1980 Partner - Dilworth, Paxson, Kalitb & Kauflman

1960 - 196S Associate - Dilworth, Paxson, Kalish & Kauffman

199S - preseni: Adjunct Professor - University of Pennsylvania

School of Law

1995 - present: USABancShares, Inc. - Chairman, Board of Directors

1980 - 1982. Justice of the Supreme Court of Pennsylvania

1959 -- 1960: Clerk to the Honorable Vincent S. Haneman of the

Superior Court of New Jersey, Appellate Division

1956 - 1958: City of Ventnor, New Jersey - Lifieguard

Military Service; Have you had any military scrviee? If so give particulars,

including the dates, branch of serrice, rank or rate, serial number and

type of discharge t«ceived.

No.

Honors and Awards: List any scholarships, fellowships, honorary degrees,

and honorary society memberships that you bcHcTc would be of interest to

the Committee.

University of Pennsylvania " Phi Ecu Kappa (1955)

Yale Law School - Order of the Coif (1959)

Jewish National Fund Tree of Life Award (1996)

Community Legal Services Champion Award (1995)

Philadelphia Police 'Assist Officer Award" (1989)
68

Judge Learned Hand Human Relations Award (1988)

Anti-Defamation League Torch of Liberty Award (1983)

par Assodations: List all bar associatioiu, legal or judidal-relatcd

committees or conferences of which you are or have been a member and

give the titles and dates of any ofTices which you have held in such groups.

Member. American Law Institute

Fellow, American College of Trial Lawyers (1975-) (Chairman

of Subcommittee of the Federal Judiciary Committee on Judicial

Compensation) (1994- )

Fellow, International Academy of Trial Lawyers

Fellow, American Bar Foundation

Fellow, Pennsylvania Bar Foundation

American Bar Association

Pennsylvania Bar Association

Member - House of Delegates (1987)

Philadelphia Bar Association

Philadelphia Bar Foundation. President (1982 -- 1984)

Committee of Censors - United Sutes District Court for the

Eastern District of Pennsylvania, (1976 - 1980)

Pennsylvania Judicial Inquiry

and Review Board (1984 - 1988). Chairman (1988)

Pennsylvania Bar Asiiociation Judicial

Selection Reform Committee (1983 - 1984)

The Juristic Society

The Federalist Society (1989 - 1992)

The American Judicature Society

Lawyers' Oub
10. Other ManbershtPi: Lilt all organizations to which you belong that arc

active in lobbying before public bodies. Please list all other organizations

to which you belong.

I belong to the following organizations, none of which, to my knowledge,

engage in lobbying before public bodies:

Yale Law School Association. Vice President (1984 -- 1986)

Yale Law School Association of the

PhUadelphia Area. Past Piesident (196S - 1966)

The Yale Club (1959- )

Navy League of the United Sutes. Life Member (1986)

The Pennsylvania Society (1970- )

Fellow, Phi Beta Kappa Associates (1978- )

Phi Beta Kappa Association of the Delaware Valley

Supreme Coun Historical Society

The Union League of Philadelphia (1979- )

United Sutes Coast Guard Auxiliary (Retired Status)

Overbrook Italian-American Club (1975- )

Atlantic City Country Club (1991- )

Vesper Chib (1984- )

11. Cqurt Alimission: List all courts in which you have been admitted to

practice, with dates of admission and lapses If any such membersbips

lapsed. Please explain the reason for any lapse of membership. Give the

same information for administrative bodies which require special admission

to practice.

Supreme Court of the United Sutes (1965)

United Sutes Courts of Appeals:

United States Court of Appeals for the District

of Columbia Circuit (1988)

United Sutes Court of Appeals for the First Circuit (1973)

United Stales Court of Appeals for the Third Circuit (1961)

United States Court of Appeals for the Founh Circuit (1977)
90

United Stitcs Coun of Appals for the Fifth Circuit (1983)

United Sutes Court of Appcali for tbe Eighlb Circuit (1989)

United States Court of Appeals for the Ninth Circuit (1970)

United States District Courts:

United Stites District Court for the Eastern

District of Pennsylvania (1960)

United Sutct District Court for the District of New Jersey (1960)

United Sutes District Court for the District

of the District of Columbia (1988)

State Courts:

Supreme Court of the Commonwealth of Pennsylvania (1961)

Supreme Coun of tbe State of New Jersey (1960)

Court of Appeals for the District of Cohunbia (1982)

12. Published Writings: List the titles, publishers, and dates of books, articles,

reports, or other published material you have written or edited. Please

supply one copy of all published material not readily available to tbe

Committee. Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were press reports

about the speech, and they are readily available to you, please supply

them.

• Judicial Seltclion in Pennsylvania; A Proposal, 27 Villanova L. Rev.

1163 (1982) (supporting merit selection of judges)

• Civil RICO Litigarion Involving Banks: The Developing Case Law, 9

Delaware J. of Corp. Law 1 (1984)

• The Philadelphia Special Investigation Commission: Dissenting

Statement of Commissioner Bruce W. KaufCnum, 59 Temple L.

<2uarterly 411 (1986)

• The Philadelphia Police Advisory Commission: Dissenting Statement of

Commission Member Bruce W. Kaufbnan: In re Moists Dejesus

• The National Law Journal, April 10, I99S. "A Conservative Plea to

SaveLSC"
91

13. HcaBli: What is the preicnt ctate of your health? List the date of your last

physical exauiinatioD.

My health is excelleoi. I received my most recent general physical examination

in December. 1996.

14. Judicial Office: State (chronologically) any judicial ofTices you have held,

whether such position was elected or appointed, and a description of the

jurisdiction of each such court.

On February 26, 1980, I was appointed by Governor Dick Thornburg to fill an

unexpired term as a Justice of the Supreme Court of Pennsylvania Upon the

expiration of my term in January. 1982, 1 chose not to run as a partisan

political candidate.

The Pennsylvania Supreme Court is the Commonwealth's highest appellate

court, with plenary Jurisdiction of all appeals from the Pennsylvania Superior

and Commonwealth Courts.

15. Citations: If you are or have been a judge, provide: (I) citations for the ten

roost significant opinions you have written; (2) a short siunmary of and

citations for all appellate opinions where your decisions were reversed or

where your judgment was atnrmed with significant criticism of your

substantive or procedural rulings; and (3) citations for significant opinioos

on federal or state constitutional issues, together with the citation to

appeUate court rulings on such opinions. If any of the opinions listed were

not ofTicially reported, please provide copies of the opinions.

1) Significant Opinions on Federal and State Constitutional Issues:

• Commonwtalth v. Hayes. 489 Pa. 419, ' y

414 A.2d 318 (1980) (concurring opinion) .•

• Commonwealth v. Ward, 493 Pa. US, 425 A.2d 401 (1981)

- CommonweaUh v. Wadzinski. 492 Pa 35. 422 A.2d 124 (1980)
92

. Commonwtatth v. Virtu. 495 Pa 59, 432 A.2d 198 (1981)

. Commonwealth v. McElligott. 495 Pa. 75. 432 A.2(1 587 (1981)

• Commonwealth v. Robinson, 497 Pa. 49,

438 A.2(1 964 (1981) (dissenting opinion)

. Commonwealth v. Scott. 496 Pa 78, 436 A.2d 161 (1981)

. Commonwealth v. Stamps. 493 Pa. 530, 427 A.2d 141 (1981)

2) Reversals:

None of my Pennsylvania Supreme Court opinions were reversed by the

United States Supreme Court.

3) Other Sieniflcant Opinions:

. In re Albert Compolongo. 495 Pa. 627, 435 A.2d 581 (1981)

• Pennsylvania Industriesfor the Blind A. Handicapped v. Larson.

Secretary of Transportation. Comm . 496 Pa. 1, 436 A.2d 122 (1981)

Public Office: State (chronologically) any public offices you have held,

other than judicial offices, including the tains of service and whether such

positions were elected or appointed. State (chronologically) any

unsuccessful candidacies for elective public office.

In 1967 I was elected as a Delegate to the Pennsylvania Constitutional

Convention, and served until the Convention concluded in 1968 In 1973 and

1974 1 served as an elected member and Chairman of the Montgomery Count>'

Government Study Commission In 1966 I ran unsuccessfully in the primary

election for the Pennsylvania State Legislamre. In 1978 I ran unsuccessfully in

the primary election for the Pennsylvania Supreme Court.

I have also served on the following public commissions and investigative

bodies:

• Member of the Philadelphia Police

Advisory Commission (1994- )

(appointed by Mayor Edward Reodell)

• Co-chairman of the Philadelphia

Election Reform Task Force (1994- )

(appointed by Mayor Edward RendcU)
^ 93^

• Chairraao (1988), Peoiuylvania Judicial Inquiry ind Review

Board (1984 - 1988)

(appointed by Governor Dick Thomburg)

• Chaimian of the Mayor's CommissioD on Minority

Employment in the Philadelphia Police Department (1982)

(appointed by Mayor William Greco)

• Member, Philadelphia Special Investigation

Commission ("MOVE Commission") (1985 - 1986)

(appointed by Mayor Wilson Coode)

• Chairman of Civil Service Commission,

Lower Merion Township (1982 - 1988)

(appointed by Commissiooers of Lower Merion Township)

I7a. Lg^al Career: Describe chronologically your law practice and tsperience

after p-aduation from law (chool including:

1) whether you terred as clerk to a judge, and if to, the name of the

judge, the court, and the dates of the period you were a clerk;

During 1959 and 1960, I clerked for the Honorable Vincent S.

Haneman of the Superior Court of New Jersey, Appellate Division.

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

Since concluding my clerkship with Judge Haneman. my exclusive

afliliation has been with the Dilworth Firm, excepting only my service

between 1980 and 1982 as a Justice of the Pennsylvania Supreme Court.

3) the dates, names and addresses of law firms or offices, companies

or governmental agencies with which you have been connected, and

the nature of your connection with each;

• Dilworth, Paxson, Kallsb

JIE Kauflman LLP

3200 The Mellon Bank Center

1733 Market Street

Philadelphia, Pennsylvania 19103

Chairman (1982- )

Chairman of Litigation Department (1975 - 1980; 1992- )

Partner (1965- )
M

Associitc (1960 - 196S)

• UNIVERSITy OF PENNSYLVANIA

SCHOOL OF LAW

3400 Chestnut Street

Philadelphia. Pennsylvania 19104

Adjunct Professor (1995- )

17b 1) What has been the general character of your law practice, dividing

it into periods with dates if its character has changed over the

years?

My individual practice has ftxfxsai on complex commercial litigation.

Although my practice has expanded into many areas over my thirtyseven years as a lawyer, its principal focus has always been civil

litigation.

2) Describe your typical former clients, and mention the areas, if any,

in which you have spccialixed.

I have had the opportumt>' to represent hundreds of corporate and

individual clients during my practice, including Litton lodustiies.

Occidental Petroletmi Corporation. Dr. Armand Hammer. Excel

Communications. Spectro Industries. Inc., Frank Siiutra, the Barnes

Foundation, Donald Tnmip, Montgomery County (Pennsylvania), the

School District of the City of Philadelphia. The Philadelphia Electric

Company ("PECO"), as well as a coalition of four United Sutcs

Senators, five members of the House of Representatives and three

Governors before the United Stales Supreme Court challenging the

closure of the Philadelphia Naval Shipyard.

My areas of specialty iiKlude antitrust taw, civil rights law, contract

law, statutory interpretation, constimtional law. commercial fraud,

environmental law, regulatory law. and the law of defamation and libel.

I7c. 1) Did you appear in court f^vquently, occasiooaUy, or not at all? If

the frequency of your appearances in court varied, describe each

such variance, giving dates.

Throughout my thirty-seven year legal career, I appeared in both federal

and state courts on a frequent buis
96

2) What percentage of these appearances was io:

(a) federal courts: 15%

(b) slate courts of record: 2SX

(c) oihei courts: 0%

3) What percentage of your litigation was:

(a) civil: 93%

(b) criminal: 5%

4) State the number of cases in courts of record you tried to *erdlct or

judgment (rather than settled), indicating whether you were sole

tsunscl. chief counsel, or associate counsel.

I would estimate that, as chief counsel, I have tried approximately

twenty cases to a verdict or judgment. During my thirty-seven years of

practice, I also have served as associate counsel in numerous other

cases that were tried to verdict or judgment.

What percentage of these trials was:

(a) jury; 5%

(b) non-jury: 95%

10
96

18. Lttipation: Describe the ten moit (igniflcani litigated matters wliich you

personal))' handled. Give the citations, if the cases were reported, and the

docket number and date it 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. Piazza V. Maior League BasebaM.

Reported Decisions:

Piazza v Major League Baseball,

836 F. Supp 269 (ED. P» 1993)

Piazza V. Major League Baseball.

831 F. Supp 420 (ED Pa 1993)

Summary: For the first time since the Svq)rcmc Court's 1922 decision

dcclarlnj; ihe "business of baseball" to be exempt from antitrust regulition. a federal court

held that such antitrust immunity was narrowly limited to conduct involving baseball's reserve

clause, which waj> not at issue in the case.

As lead counsel. I represented the plaintiffs, who had been excluded from a

group attempting to purchase the San Francisco Giants Baseball Club (as a result of

defamatory sutcments made by representatives of Major League Baseball concerning the

background of one client). In a landmark antitrust decision, the District Court held that Major

League Baseball's 70 year old judicially created exemption from federal antitrust laws did not

immunize Baseball's conduct in excluding plaintiffs. After extensive discovery and

immediately before jury selection, I negotiated a favorable financial settlement on behalf of

the plaintiffs, and obuioed on their behalf a formal apology from Major League Baseball. As

lead counsel for plaintiffs, I piesetued all oral arguments, d^osed the central witnesses, and

directed the trial team in all phases of the litigation.

Parties Represented: Vincent M. Piazza and Vincent N. Tireodi

Dates: 1992 - 1994

u
97

Court: United Sntei District Court for the Eastern District of Pennsylvania,

before The Honorable John R Padova.

Co-Counsel:

Mark J. Levin, Esq.'

Ballard Spahr Andrews & Ingersoll

173S Market Street. Slst Floor

Philadelphia, Pennsylvania 19103

(21S) 864-8200

Counsel for Defendants:

Arthur Makadon, Esq.

Ballard Spahr Andrews & Ingersoll

1735 Market Street, Slst Floor

Philadelphia, Pennsylvania 19103

(2IS) 864-8200

Robert J. Kbeel, Esq.

Willkie. Fan St Gallagher

One Citicorp Center

1S3 East S3rd Street

New York. New York 10022-4669

(212) 821-8234

2. Specter T. John H. Dalton. Secretar> of the N«TV.

Reported Decisions:

Dalton V. Specter. 114 S. O. 1719 (1994)

Speaer V. Garretl. 971 F.2d 936 (3d Cir. 1992)

Speaer v. Carrett. ITJ F. Supp. 1226 (ED. Pa 1991)

Summary: During the 1993 round of military base closures, the Base Closure

Commission recoimncnded that the Philadelphia Naval Shipyard be shut down, which would

result in the loss of thousands of jobs and have a devastating impact on regional businesses

that served the Shipyard I served as lead counsel in a bipartisan pro bono effort to keep the

Shipyard open. After extensive discovery, it became clear that the Conunission had ^ed to

comply with the express mandates of Congress. Although my argument was twice successful

in Che United Sutes Court of Appeals for the Third Circuit, the Supreme Coun ultimately

'. Mr. Levin was a partner at the Dilworth Firm through 1996.

U
98

decided ttitt the fedeni courts licked jurisdiction to review base ckMure decisions. As lead

counsel for pUiniilti. I supervised all phases of the litigation, deposed the critical witnesses,

and presented the oral arguments before the district court and the court of appeals.

Parties Represented: United States Senators Arlen Specter, Harris Wofford.

Bill Bradley and Frank R Lautenberg; United States Representatives Robert E. Andrews,

Curt Weldon. Marjorie Margolies-Mezvinsky, James C. Greenwood and Robert A. Borski;

the Commonwealth of Pennsylvania and its Governor Robert P. Casey and Attorney General

Ernest D. Preate, Jr.; the Sute of New Jersey and its Govemor James J. Florio aixl Attorney

General Fred DeVesa: the Sute of Delaware aixl its Governor Thomas R. Carper; the City of

Philadelphia, the International Federation of Professional and Technical Engineers, Local 3;

the Metal Trades Council, Local 687 Machinists; Planners Estimators Progressmen &

Schedulers Union, Local No. 2; and Union represenuiives William F. Reil. Howard J.

Landry and Ronald Warringion.

Dates: 1991 - 1994

Courts: United Sutes Supreme Court; United Sutcs Coun of Appeals for the

Third Circuit, before The Honorable Walter K. Scapleton, The Honorable Anthony J. Scirica.

and The Honorable Samuel A. Alito, Jr.; United Sutes Distria Court for the Eastern Distnci

of Pennsylvania, before The Honorable Ronald L. Buckwaller.

Co-Counsei:

Senator Arlen Specter

Green Federal Bldg., Room 9400

Sixth and Arch Streets

Philadelphia, Pennsylvania 19106

(215) 597-3S80

Counsel for Defendants:

Drew S. Days (foimer U.S. Solicitor General)

Yak Law School

P O, Box 208215

New Haven. Connecticut 06520-8213

(203) 432-4948

Scott R. Mclntosh, Esq.

Department of Justice

Civil Division. Appellate Suff

950 Pennsylvania Avenue, N.W.

Washington. DC. 20004

(202) 514-1201

13
M

Stuart M. Gerson. Esq.

Epstein. Becker & Green. P.C.

1227 25th Street. N.W.. Suite 700

Wijhington. DC. 20037

(202) 861-0900

3. PhU»delDhia Newspapers. Int. v Borouph of Swarthmore.

Reported decisions:

Philadelphia Newspapers, Inc. v Borough tf Stfi/anhinort,

381 F. Supp. 228 (ED Pa. 1974)

Summary: In a case of first impression in the federal courts, the district coun

held that a borough ordinance totally prohibiting the placement of newspaper honor boxes on

public sidewalks violated the First and Fourteenth Amendments to the Federal Constitution.

In so holding. Judge Fogcl concluded that the First Amendment g\uranteed publishers the

right to distribute newspapers by means of honor boxes or other vending devices placed on

public sidewalks, subject only to reasonable, narrowly tailored regulation as to the place and

manner of distribution. The borough's blanket prohibition of newspaper honor boxes,

concluded the district court, could not be squared with the Supreme Court's long recognition

of 'Che importance of the right of access to public streets for the free dissemination of

information." As lead counsel. I obtained a preliminary iiyunction restraining the borough's

enforceriKnt of the ordinance and. following a rwo day trial, succeeded in obuining

pennaneni injunctive and declaratory relief against the borough.

Parties Represented: Philadelphia Newspapers, Inc.

Date: 1974

Court: United Sutes District Court for the Eastern District of Pennsylvania,

before The HoiKirable Herbert A. Fogel.

Co-Counsd:

Richard L. Bazelon, Esq.

Bazelon St Less

ISIS Market Street

7tb Floor

Philadelphia. Peimsylvania 19102

(215) 568-1155

14
100

Counsel for Defendants:

G. Gu) Smith. Esq.

Harris SL Smith

211 West Sute Street

Media, Pennsylvania 19063

(610) $65-5300

4. In re the Barnes Foundation.

Reported Decisions:

In re the Barnes Foundation. 453 Pa. Super. 243, 683 A.2d 894 (1996)

In re the Barnes Foundation. 449 Pa. Super. 81. 672 A.2d 1364 (1996)

In re the Barnes Fouruiation. 14 Fiduc.Rep.2d 92, appeal dit.,

661 A.2d 889 (Pa Super. 1995)

In re the Barnes Foundation. 12 Fiduc.Rep 2d 349 (1992),

aff-d. 430 Pa Super 655. 630 A.2d 468. appeal denied. 535 Pa 628.

631 A.2d 1002 (1993)

Summary: The preservation of a world class, priceless art collection was

threatened by provisions of the eccentric. $event>- year old Trust Indenture of Dr. Albert C.

Barnes, which prohibited even the temporary removal of any part of the collection from the

walls of a rapidly deteriorating facility. Before the Montgomery Cotmty Court of Common

Pleas. Orphan.'i' Court Division. I successfully overcame determined opposition and won

approval of the Barnes Foundation's requests to permit a one-time international exhibition

tour of approximately eighty works of art from the Foundation's preeminent collection of

Impressionist and Post-Impressionist paintings. The international tour raised more than $16

million and generated good will for the Foundation. The fimds raised from the tour enabled

this public charity, whose endowment was being depleted, to undertake a critically needed

restoration project to modernize the Foundation's deteriorating systems and to install a stateof-the art security system to monitor the entire collection I served as lead trial counsel and

presented all appellate arguments before the Superior Court.

Parties Represcotcd: The Barnes Foundation and its Trustees (Richard H.

Glanton, Esq.. Shirley A. Jackson, Ph.D., Niara Sudarkasa, Ph.D., Charles A. Frank, tH,

and Cuyler H. Walker).

Dates: 1992 to present; court proccedi:\gs in 1992. 1993 and 199S.

15
101

Courts: Peraisylvuiia Supreme Court: Pennsylvania Superior Court, before

The Honorable James R Cavanaugh. The Honorable John T. J. Kelly. Jr . and The

Honorable Peter Paul Olszcwski, and before The Honorable Patrick R. Tamilia. The

Honorable Jame<: E. Rowley, and The Honorable Thomas G Saylor; Court of Common Pleas

of Montgomery County, Pennsylvania. Orphans Court Division, from 1992 to 1994. before

The Honorable Louis D Stefan; from 1992 to the present, before The Honorable Stanley R.

OIL

Co-Counsel:

Mason Avrigian, Esq

Wislcr. Pearlstine, Talone, Craig,

Garrity 4 Potash

484 NorristowD Road

Blue Bell, Pennsylvania 19422

(610) 825-8400

Counsel for Other Parties:

S Gordon Elkins, Esq

Jeffrey A. Lutsky, Esq.

Siradley, Ronon, Stevens & Young

2600 One Commerce Square

Philadelphia. Pennsylvania 19103-7098

(215) 564-8013

Marvin Garfinkel. Esq.

Mesirov, Gelman, Jaffe. Cramer & Jamieson

1735 Market Street

Philadelphia, Pennsylvania 19103

(215) 994-1450

Lawrence Barth, Esq. ~ Assistant Attorney General

21 S 12tb Street

3rd Floor

Philadelphia, Pennsylvania 19107

(215) 560-2402

J. Brooke Aker, Esq.

60 East Penn Street

P.O. Box 150

Norristown. Pennsylvania 19404

(610) 275-8200

16
102

Arthur L Jenkins. Jr.. Esq

32S DeKalb Street

P.O. Box 710

Norristown. Pennsylvanu 19404

(610) 275-8222

5. American Bearing Co. *. Litton Industries. Inc..

Reported Decision:

American Bearing Co. v. Litton Industries, Inc.,

729 F 2d 943 (3d Cir. 1984)

Summary: I represented defendant Litton Industries in an action brought by

American Bearing alleging thai Lilion had attempted to monopolize the market for certain

bearing components of industrial air pollution control devices. In a successful effort lo

remedy a miscarriage of justice and unfortunate antitrust precedent, I led the team effort to

obtain a new trial and then served as lead trial counsel following remand to the district court.

Following an initial two week jury trial resulting in a verdict for plaintift. the district court

granted defendant's motion for a new trial (I did not participate in the original trial). On

retrial, the district court granted my motion for a directed verdict. The Third Circuit

affirmed I participated in and supervised the briefing on appeal and presented the successf\jl

oral argument

Parties Represented: Litton Industries, IiK.

Dates: 1982 - 1984

Courts: United States Coun of Appeals for the Third Circuit, before The

Honorable Arlin M. Adams. The Honorable Edward R. Becker, and The Honorable Francis

L Van Dusen. United States District Court for the Eastern District of Pennsylvania, before

The Honorable Raymond J. Broderick.

Co-Counsel;

David H Pittinsky, Esq.

Ballard Spahr Andrews & Ingersoll

1735 Market Street. 51st Floor

Philadelphia, Pennsylvania 19103-7599

(215) 864-8117

17
103

Counsel for PlaintifT:

Gary Wynkoop. Esq. (deceased)

Blank Rome Comisky & McCauley

Four Peon Center Plaza

Philadelphia, Pennsylvania 19103

(215) 569-5500

6. Pennwalt Corp. v. Centaur Partners.

Reported Decisioo:

PennwaU Corp. v. Ceniaur Partneri,

710 F. SuRj. Ill (ED, Pa 1989)

Summary: In a case of first impression under Pennsylvania's newly maclcd

anti-takcovcr statute. I served as lead counsel in challenging the statute's constitutionality. My

client. Ceniaur Partners, a major Pennwalt shareholder, attempted to call a shareholders

meetitig to vote on removing obstacles to a possible acquisition of Peimwalt by Centaur oi a

diird pany. Pennwalt's board of directors brought an action in federal court seeking to block

the shareholders meeting. Centaur opposed the restraining order, arguing that the antiukco\'cr statute, upon which Peiuiwalt's board was relying, violated the Commerce Clause of

•be Federal Constitution While the district court initially rejected Pennwalt's various

abstention arguments, it ultimately concluded that there was no direct conflict between the

aiai-takcovcr statute and federal law. While the case was on appeal, a third-party offered to

purchase Peimwalt's shares at a price approximately 30% above thai which Centaur was

offering, and the board accepted the bid.

Parties Represented: Centaur Partners

Date: 1989

Courtx: The United States District Court for the Eastern Disuict of

Pennsylvania, before The Honorable Robert S. Gawthrop. m.

Co-^^iunscl:

David H. Prttinsky, Esq.

Ballard Spahr Andrews & Ingersoll

173S Market Street. 5Ist Floor

Philadelphia, Pennsylvania 19103-7599

(215) 864-«117

18
104

Counsel for naintilT:

Matthew 1 Broderick, Esq.

Decherl Price & Rhoads

4000 Bell Atlantic Tower

1717 Aich Street

Philadelphia, Pennsylvania 19103

(21S) 994-2652

7. Township of Plymouth v. County of Montgomery

Reported Dedsions:

Township of Plymouth v. County of Montgomery.

121 Pa Commw. 303, S50 A.2d 1033 (1988)

Township of Plymouth v. Montgomery County.

109 Pa Commw. 200, 531 A.2d 49 (1987)

Summary: The Commissioners of Montgomery County, Pennsylvania

determined that a trash-lo-s(eam teilit)' was necessary to protect the enviroiunent of the entire

County and to resolve the County's growing refuse disposal crisis. Although everyone

recognized that such a facility was needed, residents of Plymouth Township (in which the

facility was to be located) believed that it should be built in someone else's township.

Reflecting the "not in my back yard' theme. Plymouth Township brought suit against

Montgomery County seeking a declaration that (he County's trash-to-steam facility violated

recently enacted Township zoning laws. Despite exceptionally bitter opposition, I obtained a

judicial declaration that the Township's zoning laws were invalid, and defeated the

Township's prolonged legal challenges to block the critically needed facility. As lead counsel

for the County, I presented all arguments and supervised all aspects of the litigation team's

efforu.

Parties Represented: County of Montgomery

Dates: 1986 ~ 1988

Courts: The Cotnmonwealth Court of Pennsylvania, before The Hoixirable

David W. Craig. The Honorable Bernard L. McGinley, The Honorable James Crumlish. Jr..

The Honorable John A. MacPhail, The Honorable Joseph T Doyle and The Honorable

Francis A Barry: Court of Conunon Pleas of Montgomery County, before The Honorable

Wilson Buchet. on Special Assignment from the Court of Common Pleas of Lancaster

County.

1»
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Co^ounsd:

Shcryl L. Auerbach. Esq.

Dilworth. Paxson, Kalish Si Kauffman, IXP

3200 The Mellon Bank Center

1735 Market Street

Philadelphia, Pennsylvania 19103

(215) 575-7124

Counsel for PlaiDtifT:

Arthur W. Lefkoe, Esq. (retired)

Wisler, Pearlstein. Talone, Craig.

Garrity & Potash

484 Norristown Road

Blue Bell, Pennsylvania 19422

(610) 825-8400

B. Robert Bruce. Inc. v. Sears. Roebuck & Co..

Reported Decision:

Robert Bruce, Inc. v. Sears, Roebuck A Co..

343 F. Supp. 1333 (ED. Pa. 1972)

Sumnury: In a case pining a "modem merchandising monolith" against a

much siTuIler clothing manufacturer, I succeeded in defending the enormously valuable

indemark rights of my client. Robert Bruce, Inc.. which had spent years developing and

marketing its highly successful "Grubb" line of clothing. At the time (his trademark

•nfrtngement action was brought, the 'Grubb' line represented 50% of Robert Btucc's total

clothing sales In 1971 Sears Roebuck began selling jeans under the "Neets n Grubs'

irademark. and refused the demand of Robert Bruce to cease and desist from the infringing

conduct. After a two week trial in which I served as lead counsel, the district court held that

ibe 'Gnibb' mark was 'arbitrary and fanciful." rather than descriptive, and was thus entitled

to protection without proof of secondary meaning. The district court fiitther held that the

"Neets o Grubs" mark created a likelihood of consumer confusion, and thus et^oincd Sears

from fiirther use of the mark.

Partia represented: Robert Bruce, Inc.

20
106

Ce-Coontd:

Arthur H. Seidel, Esq.

Scidcl, Condi. Lavorgna & Monaco, P.C.

Two Penn Center, Suite 1800

Philtdelphia. Pennsylvania 19102

(215) 568-8383

Dates: 1971 - 1972

Court: United Sutes District Court for the Eastern District of Pennsylvinia,

before The Honorable Edward R. Becker.

Counsel for Defendant:

Bunon Y. Weitzenfold. Esq.

120 South Riverside Plaza

Chicago, Illinois 60606

(312) 876-7100

Charles M. Allen. Esq.

Howsen & Howsen

P.O. Box 457

Spring House, Pennsylvania 19477

(215) 540-9200

9. Molinari T. Commonwealth of Pennsvlrania. Department of TnmsportJrtion.

Commonwealth Court of Pennsylvania, No. 453 M.D. 199 (1993)

Summary: In this bid contest case, I rq)ieseDled Envirotest Partners, OIK of

the largest African-American owned and managed companies in the nation Following a

comprehensive evaluation of proposals submitted in response to the Commonwealth's Request

for Proposals ("RFP"). the Commonwealth awarded Envirotest the contract to implement and

operate an enhanced centralized vehicle emission inspection program required to bring

Pennsylvania into compliance with the Federal Clean Air Act AmendnKnts of 1990. A

disappointed bidder sought to enjoin the contract award, alleging, inter alia, that the RFP

points awarded to Envirotest as a Socially/Economically Restricted Business ("SERB") had

been improperly calculated by the SERB evaluation committee In effect, the disappointed

bidder was challenging the administration of the entire SERB program. Following a six day

trial during which I served as lead counsel for Envirotest. the Commonwealth Court held that

Envirotest's SERB points had been properly calculated and upheld the Commonwealth's

selection of Envirotest to implement the emissions testing program

Parties Represented: Envirotest Partners

21
107

Dates: 1993

Court: Commonwealth Court of Pennsylvania, before Tbc Honorable James R.

KcUey.

Co-Counsel:

John L. HealoQ, Esq.

(then Chief Counsel of Pi. Dept. of Tnnsporiaiion)

Weiss, Weiss & Weiss

802 Walnut Street

P.O Box 838

Lebanon. Pennsylvania 17042

(717) 273-1661

Counsel for Plaintifrs:

Michael D. Reed. Esq.

Mette. Evans & Woodside

3401 North Front Street

P.O. Box 5950

Harrisburg, Pennsylvania 17110

(717) 232-5000

to. Bethlehem Steel Corp. v. Litton Industries. Inc.

Reported Decision:

Bethlehem Steel Corp. v. Linon Industries. Inc.. 321 Pa Super. 357. 468 A 2d

748 (1983), aff-d. 507 Pa. 88, 488 A.2d 581 (1984)

Summary: As lead counsel, I defended Litton and its Lake Erie shipbuilding

divuion in a $95 million breach of contract claim brought by Bethlehem Steel. In 1968,

Bethlehem Steel purchased a 1000 foot, stale-of-tbe-an, self-unloading iron ore carrier from

Lioon for transporting ore between Michigan mines and Pennsylvania steel mills. At the end

of 1968, Bethlehem and Linon executed a two page "option' letter under which Litton

offered to construct up to five similar ships for Bethlehem within the iKxt five years. In the

ensuing years, however, Bethlehem repeatedly told Linon that it did not intend to order any

additional ships, and Litton began dismantling its Lalce Erie shipbuilding facilities.

In 1973, Bethlehem reversed course and purported to order three new 1000

foot self-unloading iron ore carriers. After the parties were unable to reach agreement on

critical contract terms, particularly with respect to inflation indexing, Bethlehem broke off

negotiations and filed a $95 million breach of contract claim in the Allegheny County

22
lOB

Conunon Pleas Court. Following • nine momb trial, the coon held that Ac two page option

letter, executed b> two of the lution's largest corporations, could not h<ve been intended by

the parties to constitute an enforceable option contract. Following en banc review by three

judges of the Common Pleas Court, the decision was aflimied by both the Pennsylvania

Superior and Siqireinc Courts. I served as Litton's lead counsel for both the trial and the

appeals in this case.

Part>' Represented: Linon Industries, Inc.

Court: Pennsylvania Supreme Court, before The Honorable John P. Flaherty.

The Honorable William D. Hutchinson, The Honorable Rolf Larscn. and The Honorable

Stephen A. Zappala: Superior Court of Pennsylvania, before The Honorable William F.

Cercone, The Honorable John P. Hester. The Honorable James R Cavanaugh, The

Honorable Richard B. Wickersham, The Honorable James E. Rowley, The Honorable Donald

E Wieand, and The Honorable J Sidnej Hoffman; Court of Common Pleas of .^llegheny

County. before The Honorable Maurice Louik.

Co^ounscl:

Carl H Hanzelik, Esq

Dilworth, Paxson, Kalish & KaufEman, IXP

3200 The Mellon Bank Center

173S Market Street

Philadelphia, I>ennsylvania 19103

(215) 575-7150

Counsel for Plaintiff:

William B. Mallin, Esq.

Ecken Seamans Cherin & Mellott

600 Grant Street

Pittsburgh, Pennsylvania 15219

(412) 566-6027

Hon. Robert L. Byer

Kirkpatrick &. Lockhart. LLP

1500 Oliver BuUding

Pittsburgh, Pennsylvania 15222

(412) 355-6500

23
109

Curtis H. Barnene. Esq.

President 4: CEO

Bclhlehcm Sicel Corp.

8th & Eaion Avenues

Bethlehem, Pennsylvuia 19180

(216) 694-2424

I have had contact with the following judges and attorneys within the last five

years:

The Honorable Edward R. Beclcer

United Sutes Court of Appeals for the Third Circuit

601 Market Street, Rpom 19613

Philadelphia, Peiuuylvania 19106

(215) 597-9642

The Hoixnable Raymond J. Broderick

United Sutes District Court for the

Eastern District of Pennsylvania

601 Market Street, Room 10613

Philadelphia, Pennsylvania 19106

(215) 597-7500

The Honorable Robert S Gawthrop. Ill

United States District Court for the

Eastern District of Pennsylvania

601 Market Street, Room 7613

Philadelphia, Pennsylvania 19106

(215) 597-6143

The Honorable John R. Padova

Umted Sutes District Coun for the

Eastern District of Pennsylvania

601 Market Street. Room 7614

Philadelphia, Pennsylvania 19106

(215)597-1178

The Honorable Louis H. Pollack

United Sutes District Coun for the

Eastern District of Peimsylvania

601 Market Street. Room 16613

Philadelphia, Pennsylvania 19106

(215) 597-9590

24
no

The Honorable Arlin M Adams

Scbnader, Harrison. Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia. Pcnmylvania 19103-7286

(215) 751-2072

Richard H. Glanton, Esq.

Reed, Smith. Shaw & McCUy

2500 One Libeny Place

Philadelphia, Pennsylvania 19103-7301

(215) 851-8120

Arthur G. Rayncs, Esq.

Raynci, McCarly, Binder, Ross & Mundy

1845 Walnut Street

Suite 2000

Philadelphia, Pennsylvania 19103

(215) 568-6190

David Berger. Esq.

Berger & Montague. PC

1622 Locust Street

Philadelphia. Pennsylvania 19103-6365

(215) 875-3030

Jerome J. Shestack. Esq.

Wolf. Block. Schorr t Solis-Cohen

12th Floor, Packard Building

15th & Chestnut Streets

Philadelphia. Pennsylvania 19102-2678 •

(215) 977-2290

2S
Ill

19. L<tal ActJTJtitjii Describe the most dgnlTicant legal activities you bare

pursued, including signiHcant litigation which did not progress to trial or

legal matters that did not invotve litigation. Describe the nature of your

participation in this question, please omit any inforniation protected by the

attorney-client privilege (uiUess the privilege has been waived.)

• Mellon Bank. N.A. v. Richard I. Rubin. Inc.: In a series of lawsuits in the

Court of Common Pleas of Philadelphia County, before the Honorable Sandra

M Moss. Mellon Bank sued my clients, Richard I. Rubin & Co., Inc., Ronald

Rubin and related eotiiies, on account of Rubin's refusal to close on the

purchase of the Two Mellon Building. Mellon sought ii\)unctive relief to force

Rubin to close the transaction. Subsequent to the Court's denial of Mellon's

motion for the injunction, a disastrous fire destroyed the adjacent building. One

Meridian, reducing the market value of Two Mellon by 90%, and Mellon

claimed damages exceeding S42 million After extensive discovery and

numerous court appearances, the parties entered into a settlement agreement

favorable to Rubin

• Chair - Commission to Preserve Legal Funding for All: I led the fight to

restore over $2 million in state funding for legal services to those in need but

unable to afford a lawyer.

• Pennsylvania Judicial Inouirv and Review Board: While serving on this

Board between 1984 and 1988. the final year as Chairman. I reviewed

complaints brought against members of the judiciary and. where appropriate,

recommended disciplinary action to the Pennsylvania Supreme Court.

• Philadelohia Special Investigation Commission: During its two year

investigation. I served on the MOVE Commission, appointed by Mayor Wilson

Goode to investigate the causes of a police action resulting in the deaths of a

number of children and adults and the destruction of an entire city block. Our

Commission focased not only on the causes of this tragedy, but on fiitding

ways to easure that it would never be repeated.

• Pardon of Dr. Armand Hammer: Dr. Aimand Hammer pled guilty to

making an illegal campaign contribution to President Nixon's 1972 Reelection

Campaign. As lead counsel in seeking a Presidential pardon for Dr. Hammer, I

reviewed the guilty plea and filed briefs with the Pardon Attorney of the

Department of Justice. Dr. Hammer's pardon was granted by President Bush in

1989

26
112

n. FLNANCIAL DATA AND CONFLICT OF INTEREST (PiaBLig

1. List sources, wnouDts and dates of all aotidpatcd receipts from deferred

income arrangemeDts, ftock, options, uncofoplcted contracts and other

Aiturc beneflts which you expect to derive from previous business

relationships, professional services, firm memberships, former emploj'ers,

clients, or customers. Please describe the arransetncnts you have made to

be compensated in the future for any ffaiandal or business interest.

Under my original agreement with the Dilworth Finn, in accordance with its

standard ten year retirement program, I was to receive S200,000 annually

during my first five years of judicial service, and $100,000 annually for each

of the following five years. To minimize any potential for the appearance of

conflict, however, the Firm has agreed to pay for the five annual $100,000

installments through a Ailly paid up aimuily ftindcd by the Firm during the first

five years of my judicial service. Paymenu under this annuity shall be

administered by an independent third party. I intend to recuse myself in any

case in which the Dilworth Firm is involved during the entire ten year period

in which I am to receive payments under my retirement program. A copy of

my agreement with the Firm is included as Attachment *A.'

In 199S. USABancShares granted me options to purchase up to 30,000 shares

of the Company's common stock.

2. Explain how you will resolve any potential conflict of interest, including

the procedure you will follow in determining these areas of concern.

Identify the categories of litigation and financial arrangements that are

likely to present potential conflicts-of-interest during your initial service in

the position to which you have been nominated.

I will resolve any potential conflict of interest through adherence to the Rules

of Judicial Conduct. More specifically, if my appointment to the federal

judiciary is confirmed, I intend to recuse myself in any case in which the

Dilworth Firm is counsel of record. I will also recuse myself from any case in

which a former client or a business entity in which I have an interest is a

party, in which USABancShares is party, or in which the University of

Pennsylvania is a party.

3. Do you have any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during your service witb the

court? If so, explain.

If my appointment to the federal judiciary is confirmed. I will resign as

Chairman of the Board of Directors of USABancShares, Inc.

27
113

During the past two fall semesters. I served as an AdjuiKt Professor of Law at

the Universit> of Petmsylvama's School of Law and would hope to continue

doing so if confirmed. If I do continue teaching at Peon, I would, of course,

recuse myself in any lawsuit in which the University is a party.

Lift sources and amounts i>f 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, bonoraria,

and other items exceeding SSOO or more (If you prefer to do so, copies of

the financial disclosure report, required by the Ethics in Government Act

of 1978, may be substituted here.)

See Attachment "B" (Form AO-iO)

Please complete the attached financial net worth statement in detail (Add

schedules as called for).

See Atuchment "C" (Financial Net Worth StatemeiH)

Have you ever held a position or played a role in a political campaign? If

so, please identify the particulars of the campaign, including the candidate,

dates of the campaign, your title and responsibilities.

In 1991. I served in Ronald D. Castille's campaign in tiie Philadelphia mayoral

race The campaign ended in June. 1991. when Mr. CastiUe. who is now a

Justice of the Supreme Court of Pennsylvania, was defeated in the Republican

primary election I also served in Justice Castille's successful campaign for

election to the Supreme Court of Pennsylvania.

28
114

m. GESJESAL (PUBLIC)

An ethical consideratioa under Canon 2 of the American Bar Aaodatioii'i

Code or Professional ResponsibiUt)' called for "eTcry lawyer, regardless of

professional prominence or profestioaal workload, to find some time to

participate in serving the disadrantagcd." Describe wiiat you have done to

fulfill these responsibilities, listins specific instances and the amount of

time devoted to each.

• Chair - Commictlnn tn Preserve Legal Funding for All: I led the fight to

restore over S2 million in state funding for legal services to those in need but

unable lo afford a lawyer Between inectings in Philadelphia, Harrisburg. and

Washington, I spent several hundred hours in this effort.

• Philadelphia Navv Yard Litifation: I represented a bipartisan coalition of

elected officials and Shipyard workers in a three year legal effort to prevent the

Shipyard's unlawful closure. During the course of litigation that ended in the

Supreme Court, the Dilwotth Firm expended over SI million in legal time on a

pro bono basis.

• Philadelphia Police AdTisorv Commission: Established by Mayor Rendell in

1994. the Police Advisory Commission has been given the vital task of

monitoring and improving the relationship between the nUUdelphia Police

Department and the commimities and citizens the Department serves. From the

Commission's inception, I have participated in all phases of its work,

reviewing not only individual allegations of abuse, but broader issues of police

policy and procedures. I spend several hours per month on Cotimiission related

activities.

• Mayor's Task Force on Minoritv Employment in the Philadelphia Police

Department: At the request of Mayor William Green, I chaired a commission

that studied and issued a unanimous report on measures to remedy the low

minority representation in the Philadelphia Police Department. I devoted

approxinutely one hundred hours to Task Force nieetings and in preparing the

Final Report.

• Philadelphia Special Investigabon Commission: Durinc its two year

investigation, I served on the MOVE Commission, appointed by Mayor Wilson

Goode to investigate the causes of a police aaion resulting in the deaths of a

number of children and adults and the destruction of an entire city block. Our

Commission focused not only on the causes of this tragedy, but on finding

ways to ensure that it would never be repeated. Televised hearings took place

over several weeks, and I estimate that I devoted five hundred hours of lime to

MOVE Commission work.

29
115

. Philadelphia Bar Foundation • President: The Foundation raised substantiil

fiinds for distribution to many worthy charities. During the year in which I was

President of the Foundation. I devoted several hours per week to Foundation

related activities.

2. The American Bar Association's Commentary to its Code of Judicial

Conduct states that it is inappropriate for a jud^e to bold membership in

any organization that tuTidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you belonged, to any

organization which discrimjnates — through cither formal membership

requirements or the practical implementation of membertfaip policies? If

so, list, with dates of membership. What you have dune to try to change

these policies?

To the best of my knowledge. noiK of the organizations to which I belong

(disclosed in response to Question I-10. jupns) discriminates on the basis of

race. sex. or religion. The Union League of Philadelphia, to which I have

belonged since 1979, first accepted women as full memljcrs in 1983.

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 wrhich you participated).

I have appeared twice before the Federal Judicial Nominating Commission of

Pennsylvania, most recently on June 12, 1997. and previously, in early 1996.

In conjunction with my June 12. 1997 interview, I submitted a revised personal

data questionnaire to the Commission. I also interviewed with representatives

of the Department of Justice, the FBI, and the American Bar Association.

Although 1 have not received formal notice, I presume that the Commission

recommended my Nomination to the federal judiciary.

4. Has anyone involved In the proccn 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 hilly.

No.

5. Please discuss your views on the fonowing criticism involvliig "judicial

activism."

30
116

The role of the Federal judidarv within the Federal goTemmeot, and

within society generally, has became the subject of increasine coDtroTersy

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 levals ot go*eminent.

Some of the characteristic* of this "Judicial activiam" have been »aid 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, aflirmatiTe 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.

Under the Constitution's framework of divided powers, the role

assigned to the judiciary is not to construct the law from the policy

choices of iixiividiul judges, but to interpret and apply that law which

the elected members of our legislative branch have enacted. As

Hamilton recognized in Federalist No. 78, the judiciary was the 'least

dangerous branch' precisely because it had neither 'Force nor Will, but

merely judgment. * The courts must not be transformed into a lahoratory

of social engineering, but should limit their role to that of applying the

law to the cases and controversies brought before them. In short, it is

the obligation of judges not to make the law, but tt> interpret the law

made by those elected to do so.

31
117

rv. CONFTDEVnAL

Fidl name (Indude any foimer name* utcd.)

Bruce WUIiam Kauf&nui

Address: List current place of residence and office addre»(es). List all

ofHce and home tekpbonc numbers where you may be reached.

Cufrenl Retidence:

1820 Rittesbouse Sqiuie

No. 601

Philadelphia, Pennsylvania 19103

(215)735-2111

Qffiw Ad<lreH:

Dilworth, Paxson. KaJish

&KauffnunLU>

3200 Mellon Bank Center

1735 Market Street

Philadelphia. Pennsylvania 19103

(215) 575-7001

Have you ever been discharged from employment for any reason or have

you ever retlcncd after being informed that your employer intended to

discharge you?

No.

Have you and your spouse filed and paid all taxes (federal, state and local)

as of the date of your nomination? Please indicate if you filed "married

filing separately." Did you make any back tax pa}inents prior to your

Doraliiations? If so, give full details.

As of the date of my nomination, my wife Carol and I have paid all federal.

Stale, aiK) local uxes owed as of that date. Since our marriage, Carol and I

have filed joint returns. For tax year 1996. we filed a timely request for

exteiuion. under which we received an extension until August IS, 1997 to file

our 1996 federal income tax return. As of July 2, 1997, all prciently calculable

federal income tax liability for 1996 was paid in fUll. On July 14, 1997. we

made an estimated payment for tax year 1997 of $15,000.

32

45-964 98-5
118

5. Has a tax lien or other coUectioD procedure (to include receipt of computer

balance due noticed, ever been instituted against you by federal, (tate, or

local authorities? If so, give full details.

I have always filed my tax renims and/or requests for extensions in a timely

fashion With the exception of tax year 1995. I have obuined the abatement of

late payment penalties for each tax year in which, due to the cash flow

problems described below. I was unable to pay my full tax liability by April

ISth. I did not seek an abaiemem of the late payment penalty for tax year 199S

because it was approximately $600 00. and thus it was less expensive to pay

the penalty than to go through the abatement process. I have received 'balance

due" notices from the IRS for tax years 1992 through I99S. and anticipate

receiving a balance due notice for 1996. All 'balance due' notices have been

paid in full

The followmg sets forth my total federal income lax liabiUty for tax years 1992

through 1996, as well as the date and the amount of my final payment for each

tax year:

Amount of

Tax Year Tax LlabiUtv Date Paid in Fnll Final Payment

1996 $177,410 (esl.) 1I1I91 $11,003

199S $118,854 11/26/96 SS4

1994 $206,956 7/15/96 $14.5J7

1993 $120,298 6/19/95 $10,000

1992 $138,312 12/28/93 $78,926

As explained in my successful requesu for abatement of late payment penalties,

in early 1992 the Dilworth Firm lost almost 50% of its partners, and following

this restrucmnng, sufTered a similar percentage decline in its annual revenues.

During the late 1980's dK Firm had also incurred a substantial debt which,

when combined with this drastic revenue reduction, threatened the Firm's

viability.

Through the sacrifices of its partners and a conservative fiscal policy, the Finn

has survived and prospered. In that prticess, however, my own annual salary

has been cut almost in balf from its levels in the late 1980's. When combined

with my divorce settlement, my own cash flow has been insufBcient to pay my

fttll income ux liability when due I have also worked out a payment schedule

33
119

with the City of Philadelphia with respect to tny rei! estate tax liabilities, to

which I have adhered.

1 always filed my returns or requests for filing extensions in a timely fashion

As of the date of my nomination. I have paid all federal, suie. and local

income taxes that were due

(. Have you or your spouse erer been the subject of any audit, investigation,

or inquiry for either federal, state, or local taxes? If so, give fuU details.

No.

7. Have you or your spouse ever declared bankruptcy? If so, give particnlars.

No

8. Have you to your knowledge ever been under federal, state, or local

investigation for a possible violation of either a civil or criminal statute or

administrative agency regulation? If so, give full details. Has any

organization of which you were an officer, director, or active participant

ever been the subject of such an investigation with respect to activities

within your responsibility? If so, give full details.

No

9. Have you ever been the subject of a complaint to any court, administrative

agency, bar association, disciplinary committee, or other professional

group for a breach of ethics, unprofessional conduct or a violation of any

rule of practice? If so, give particulars.

No

10. Have you ever been a party (whether plaintiff, defendant or in any other

capacity) to any litigation?

1 have been a party in two divorce proceedings. In addition, other than in my

official or representative capacity as a Justice of the Supreme Court of

Pcmuylvania. or of the various commissions and/or governmental bodies

disclosed herein, I vn aware of three suits filed against the Firm in which 1,

together with other partners in the Firm, were individually named. In one suit,

123 South Broad Street Corp. v. Cushman &. Wakefield. Inc . et al.. Court of

Common Pleas. Philadelphia County, Civil Action No. 88-12-5304. brought by

a previous landlord of the Dilworth Firm, I was originally named a party but
120

quickly dropped, and the dispute was subsequently resolved. The nime, current

addicss, and telephone number of counsel for plainlifT in that lawsuit is:

Richard M. Squire, Esq.

Astor. Weiss, Kaplan & Rosenbaum

The Bellevuc

Broad & Walnut Streets

Philadelphia. Pennsylvania 19102

(215) 790-0100

I was also named individually, along with certain other mcDibers of the Finn's

Executive Committee, in two suits brought by former partners of the Firm

seeking, inter alia, the return of their capital accounts. Both of those matters

have been settled. The following reflects docket numbers, and the ctirrent

addresses and telephone numbers of opposing counsel in the lawsuits brought

by the former partners:

Edwm Goldsmith v. Dilworth. Paxson. Kalish & Kauffman. el al.. Court of

Common Pleas, Philadelphia County. Civil Action No. 93-04-02165

Counsel for Plaintiff:

Alan S. Fellbeimer, Esq.

Fellheimer, Eichen. Braverman & Kasky

One Liberty Place. 21st Floor

16S0 Market Street

Philadelphia. Pennsylvania 19103-7334

(215) 575-3900

Neil E. lokelson, Esq.

Neil E Jokelson & Associates, PC.

230 South Broad Street

Philadelphia. Pennsylvania 19102

(215) 735-7556

Daniel Evans v. Dilworth. Paxson. Kalish & Kauffman. et al . Court of

Common Pleas, Philadelphia County, Civil Action No. 94-01-02786

35
121

Counsel for Plaintiff;

Richard P. Myers, Esq.

Paul. Reich & Myers. PC

1411 WalouiSl, Suite SOO

Philadelphia. Pennsylvania 19102

C21S) 972-7090

II. Please advise the Comniittee of any unfavorable information that may

affect your nomination.

I am not aware of any unfavorable information [hat may affect my nomination.
122

AFFIDAVIT

I. Bruce W. Kaufiimaii. do swur that the infomutiuD provided in this suKmcoi is.

to the best of my knowledge, true and accurate

DATED: August 7. 1997
123

cn: FINANCIAL DISCLOSURE REPORT

FOK CALENDAR VEAK 1995

tirat. wMl* iBKtal)

Kouffinan, Bnm N.

Chairman

DUwDTth Paxson Kolish t Kauffnan,!

1200 Mellon Bank Centar

1735 Mari<et Street

1 CMtn *t OifanimattOB

DllMDrth FiBxrcn KaUsh 6 Kauffim

» ••»•»( TYF« '=»•«« frmftimxi T'g-'jy'

1 Data at M»«n

8/ 4/ 97

*. ta^aniAf >arta«

1 'l'97-6 ' 30 97

at tana vanainina i

«• atUi avpUeKCIa

>ncaiiia« tn thia Aaport aiM

Ke. It la, in ay afinun.

• and rafulaiianl.

PHilJtAll;<LU. PM—rttOS

IMPORTANT NOTES. The iattrvaiou accoapaayiai ihb (bm muu be followed Complete tU paru,

cbeckiflg (he NONE bos for cich ledioa wterc yo« have so reportable iafomucioe. Sign oa lait page.

L POSITIONS. (Reponiag iodmdual oaif. ice pp. 9-13 of laatruaiooL)

n

POSITIOM

HOm [No reporuble pasiuoiu)

NAME OF ORGAMIZATION/gWTITY

Chaunan of the Board

Current Biploymsnt

Dilwrth Paxson Kalish i Kauffinn, LLP - Exhibit 1

USA BancShares Inc. - B<hlbit 2

Tnate (PCI Laurl Ann Kauftran Truat UA/8/7/95

IL AGREEMENTS. (Reportiaciadhidualoalir.tecpp. 14.17of Ittimjclioas.}

DATE PARTIES AMD TERt^^

n MONl (No rtportaUe agrecacau)

1997

"W7

DilwDrth Paxson Kalish & Kauffrmn

Tiiiliniat nmjjwnl Piwyaw

USA H.^nr5avir>< T~- luni.lrt r»«ignl

Exhibit I

Exhibit 2

Dilworth Paxson Kalish & Kauffimn

aal^njwiin> Pfaw and 401 (li) See Part VII

in. .MON-INVESTMCNT INCOME. (Reponiai ladividul ud ipouie: KC pp. 1(-2S al laKnioioiii.)

QAIE SOURCE AMD TYPE

n NCMI (No reponable Boa-invcsuaem iaoocDc)

The Lawyers Travel Service

Sole Proprietor-Advertising Services

Peoples "nirift Savings Bank

Dilworth Paxson Kalish t Kauffnan

SR9sa.^Bgii

s

IS)

s

Is)

s 6.000

S433,500

s
124

mOUKXAL OZfCLOfUU UFOKT

^ } Kflufffrwn. Bruce W. e ' 4 ' 97

IV. REIMBURSEMENTS ud GIFTS - truiponitioo. kM%u« food. eaieruiBwA

(lacJuda tboM lo ipooK tad depcadeM chtldrta. UM the pveatbcticti* *(S)* aad *(DC]* to iadkau raporubk

reiaburae«eau ud gUU racemd br ^MOM aad dcpcadaai chddrea, rtipcctrmijr. SM pp. 36-9 «f iMmcbOM.)

52UECE DESCRIPTIOM D worn (No nek raponaMt nmbtntmuu or |ifta)

V. OTHER GIFTS. (InclvdM thou to ipotat ud dcpcadcai children UK the pwtathaticab *(Sr ud '(DC)' (o

isdicau ot^ lifts received by tpoiuc and depeadeu dhildrco, rtspeoivety. See pp- 30-33 of lamneuao^)

SfllfflCB DESCRIPTIOH VXLtJg

MOMI (No meh repoftabk lifti)

Etanpt c

VL LIABILITIES, (ladodc* thou of tpouac aad dcpcadcal childrca; tadkau where applieabic. pcnoe retpoMiMe

for liabiliiy bjr oUBf (be parcalbetical *(S)' for leparue liabilky of the ipouc. '(J)* for loiai lUbiliiy of

reportiac iadividual aad »po«c, aad '(DC)' (or babibry of a depeadcu child. Sec pp. 34-36 of laatmctiou-)

£&£niIQ£ DESCRIPTIPH VALUE CODE D NONB (No rcporubk babOkiat)

Graat LaKas Higher Educaticxi Corp- Student Loan Financing

, ., - . Includes Residence Jefteraon Bank \;^r•^r^,^ rrr.,-ty.g». MT^ rr.«r,^n^iMl

• vtoJM ceou t • tit,901 • 110 o«e L • ffs.sei • iiot 1 . Itie 001 • 11.000.000 f • mn IMM li (
125

PHOMCXJO. DXfCLoauu tmoter

KAifbian, Bruo« H. 8 / 4/ 97

Va PagK I I^fVESTME^r^S ud TUUSTS - ••cewi. VIIM, iruuctiou

L S« pp. 37-S4af iMtracDOM.)

(Tactudaa tboM o( ipeiin

^L

25:

TS.r

TSXJT

ST •^

"TS W s«;

D

' Black HDTM Plka Ltd 19M

PiudencLal U.S. Traas. hM

* Insured Income Prud.

* IwttBn tegoc. (Liffi. Ptr)

Galena Ataos. (Ujn. Ptr)

* Ttaftr— Aaioc. jLiia. Ptr)

Htfitinqton J>a«oc.{Liffl.Ptr)

IW ilDUou»r U-30-85 I .sxhlblt 3)

DQ.lM3rth Paxaon Ratr Plan (»e« exhibit «)

DiI«orth Paxaon Betr Plan I exhibit i)

Ll4url Ann Kauffman Tr (X) exhibit 6)

Dil»irrh Paxaon 401 Ikl 9V'- (ace exhibit 7)

arig^'TE aii'::.';.in.. tt>>'ti."^'ii>r. siBtrt-ra'tn^... s:»>n.esi u (tt Ma

• iJJT.a^. Ml irtib'g.r.ia. Slftfa^"..^!^.^. leiK;'gLr.PS>'8. (fllM.Ml t* I1U.*»I

Ba-jrg,' B.BU'.ai. ••CMCIIMI I
126

Vm. ADOmONAL ZNFQRMATION or EXPlANAHONS. Oa^M* pn of R^ort.)

DC csxnFicxnan.

Incorpliare wnhtheprovuknofZIU&C {453 aid of AiJvisoo'Camion Na STofthc AdvuayConraiueaniucfecial Activno.

nttothebtsofmy kn^itelyc«<he tine ate tnsaniblc inquiry. [ did not pvftrm vy a^udianry ftivbcn inviy Inipticn duvg ihc

pahod C(f«vl by d^ r^nn in «4Kh 1. nqr ^xxae, or my nwir or dependeri diikfctn M a finacial iriB«s. • defined tn Cvon JQlXck

in tfc ouDome oiriuit littfBian.

I certify ^h^l^l^nfarn•6a^y«^«bo^^(ifriudU^infa^na^onpWli^in^ to 1^

mx. «id ooTTfiteie to the bcs of n^ tawwiedgt «il bdicf, and iha v^ infam«ion not nponad vm Mdiheld becnac n met appiiofate

PMitixy pnMSora psiiiBtfig nonnfiidouR.

I ftnho^ cenify da eamed incsme fnm oiside arr|jloyTm and hononria nl die Maepiance of gifti utich have been npomd »e «

oonplianDewRhiheprDvisicniaf 9 U.SCA«^7. |S01 cL aeq^ } U^C ( 73S3 ad Jidcial Confennoe r^ittiorm.

^f/yp NOTE: />MYI^O^VIIX;ALW»K^O«jRJLYA^ffi\MUULYF/^I^FIESCXFAIl5T0^UnHISR^^

TO aVIL AND OUMMAL SANCTIONS (S U^CA AFP. 6. { 104.)

FIUNO DCTRUCTIOrS

^W ii»«l <xi(M nl ] atHoral oopiei «x ContnuBe on Financial DIKJOUK

AArmDwe Offioi oi die

Uhted 9BMI Com

One Cohntw Cfacle. NJ^ Siiie 2-301

iDC 20S44
127

Exhibit 1

JUDICIAL RETIREMENT PROGRAM

BRUCE W. KAUFFMAM

In tha ev«nt that Bruce W. Kauffman 1B appointed to a federal

or state judicial office prior to December 31, 1997, the Executive

Coamlttee seeks the authority of the partnership to enter Into a

retlreaent prograa, the essential econonlc terms of which are as

follows:

1. Payment from the firm of $200,000 a year for the first

five (5) years and a fully paid annuity providing for an

additional $100,000 a year for an additional five (5)

years (paid $3,846 per week by the law firm for the first

five years, and $1,923.08 per week (unless the parties

otherwise agree) paid by the annuity company during tha

second five years), commencing the first calendar month

following confirmation and appointment to Judicial

office. The payments to be made by the firm in years 1

to 5 include his capital account as of December 31,

1994.'' Assuming no further payment of undistributed

1992, 1993 and 1994 income, 91.7962% of each payment

shall represent a retirement payment and 8.2038% shall

represent return of capital. The capital portion of such

payments shall decrease and tha retirement portion

increase if additional 1992, 1993 or 1994 payments are

made to Bruce W. Kauffman before retirement. For income

tax purposes only, any negative tax capital shall be

reflected as Income at the end of the last year in which

the firm meUces any payment or. If earlier, the year of

dissolution.

2. Tha retirement Income portion of the payments will

reflect certain characteristics embodied In a retirement

plan to be adopted soon for certain other partners,

Including:

(i) no personal liability for any partner In

raspact of these payments;

(11) in the event of dissolution, the retirement

income portion of the obligation of the firm

to Bruce W. Kauffman Is subordinated to all

^ The books and records of the firm reflect the following

capital accounts as of December 31, 1994, after consideration of

1995 and September 1996 distributions of 1994 income and the

provisions of paragraph 5 below regarding the $60,000 debt:

Book Capital Account $82,037.91

Tax Capital Account ($35,995.58)
128

outside creditors, financial Institutions,

accrued compensation due any partners, and

partners' capital accounts; and

(111) for the Initial 5-year period, Sno,000 of the

retirement Income portion of the payments

shall be subject to an annual limitation on

the amount paid all retired partners

(Including the above) in the amount of 5t of

the Distributable Net Income of the

partnership for the prior fiscal year or

similar benchmark amount in the event the firm

is operating as a professional corporation.

To the extent there is a shortfall in payments

on account of this provision, the shortfall

shall be added to the following year's target

number. Any shortfall remaining at the end of

5 years shall be paid at such time to Bruce W.

Kauffman.

3. Contemporaneously, with the effectiveness of this

Judicial Retirement Progrzun, the law firm will enter into

an annuity contract with a nationally recognized

Insurance company or similar financial institution, that

when fully funded after 5 years, will provide em annuity

for $100,000 a year annual payments to Bruce H. Kauffman

for years 6 through 10. An independent third party will

be appointed to enforce the payment provisions of the

annuity which are further described below. Bruce W.

Kauffman shall approve the annuity company and the third

party or trustee to be appointed. The firm shall pay all

costs and expenses associated with the annuity. All

payments due pursuant to the terms of the annuity to

Bruce H. Kauffman shall be made directly to him, his

estate and/or surviving spouse, as the case may be.

4. In a dissolution or liquidation, any undistributed

capital remaining owed to Bruce H. Kauffman shall have

the same priority in payment as the capital account of

other partners. No partner shall have personal liability

for payments of capital accounts of other partners.

5. All additional undistributed 1995, 1996 or 1997 profits

or capital due to Bruce W. Kauffman shall be paid to him

at the rate of 2.778% of such total per month with the

balance due, if any, at the end of the third year. The

current balance of 1995 and 1996 undistributed profits or

capital is $61,883.

6. The annual payments, annuity and post-1994 capital

account payments will constitute the entire obligation to

Bruce W. Kauffman for his capital account, severance
129

paynent or otherwise, and the firm agrees to satisfy his

indebtedness owed to the firm in an eunount not in excess

of $60,000 by way of a reduction to his capital account

as of 12-31-94.

7. The fim will assign all life insurance policies to Bruce

N. Kauffman who will assume all premium payments thereon.

8. The firm will move expedltlously to obtain all necessary

Bank consents to the above transactions, which are if

precondition to its Implementation.

9. Should Bruce w. Kauffman die during the term of this

agreement, or during the term of the annuity, and if he

is survived by his spouse, the payments (except for those

due under paragraph 5 above, which shall continue to be

paid without diminution) shall continue at one-half of

the previous sum, with any reduction in payment applied

to the retirement income portion of the payment. Any

annuity payment not made to Bruce W. Kauffman or his

spouse shall be made to the law firm.

10. In the event that at any time during the ten years

following his retirement, Bruce H. Kauffman resigns his

judicial appointment and resumes the practice of law In

competition with the law firm within a radius of 150

•lies from the firm's principal office in Philadelphia,

then this retirement program shall terminate and no

further retirement income payments shall be due or

payable hereunder or under the annuity. Any remaining

annuity payments shall be made to the law firm.

11. It is the intent of the parties that Bruce W. Kauffman

not recognize any taxable income on account of the

annuity unless and until he receives payments in years 6

through 10 and that the law firm not currently deduct any

payments to fund the annuity. Should Bruce H. Kauffman

be taxed currently on said amounts or on the value of

the annuity prior to the time it is paid, the firm shall

hold him harmless from such tax consequences by loaning

him the tax, and paying to him the Interest and addition

to tax, if any, due from him (appropriately grossed up

for tax consequences), with the loan to be recovered (up

to the eunount of the tax saved as the annuity payments

are received) by the firm from the remaining annuity

payments on a pro rata basis or from any tax refunds that

may be due to Bruce W. Kauffman from taxes paid on

receipt of annuity proceeds, or such other appropriate

arrangement as the parties agree. Bruce K. Kauffman

shall notify the firm if any such tax claim is made and

the firm shall have the option to participate in th«

resolution of the Issue at its expense.
130

Exhibit 2

ADVISORY AGRESMENT

THIS AOREEMEBT is Mde on *3/9 Ifif'f^tr'liii, b«tw««n

BRDCE H. KAUFFMAN (• Kauffm«n") i USABANCSKARES, INC., a

corporation organized under th« lava of the Conmonwaalth of

Pannaylvania (the "Company"); and PEOPLES THRIFT SAVINGS BANK, «

•cate-chartered savings bank organized under the laws of

Pennsylvania ('the Bank") . The Bank and the Coi^any are referred

to collectively as the 'Companies*.

BACKOROCND

A. The Company is a registered bank holding eetepany,

and the Bank is a wholly-owned subsidiary of the Company.

B. Opon the completion of first closing of the

initial public offering of Coramon Shares of the Conpany described

in the Prospectus dated July 30, 1995 (the "Closing*), the Bank

became the successor by merger to Peoples Thrift Znterin Bank.

C. Kauffnan is the Chaiman of the Board of the

Company and the Chairman of the Board of the Bank, and after

completion of the Closing will continue to be the Chairman of the

Board of the successor by merger to the Bank.

0. Kauffman has substantial experience in the fields

in which the Companies expect to operate. The Companies desire

to compensate Kauffman for his advice and service as Chairman of

the Board and for certain of his expenses in connection with such

service, and Kauffman is willing to serve as Chaiman of the

Board under the terms and conditions set forth below.

NOW THEREFORE, the parties agree as follows, intending

to be legally bound:

1. Effective Date. This Agreement shall become

effective upon completion of the Closing (the "Effective Dace").

2. aerviees. The Coa^anies and Kauffman agree Chat

Kauffman will- serve the Companies as Chaiman of the Board during

Che period from the Effective Date until the day immediately

preceding the second anniversary of the Effective Date.

3. Compensation. As compensation for serving aa

Chaiman of the Board as required by this Agreement, Kauffnan

shall be entitled to the following:

(a) «»•« Fee. The Companies shall pay to

Kauffman a fee of One Thousand Dollars ($1,000.00) each nonch
m

during hla •ervle* •• Ctutlrman of cb* Board, imd a prorated

anounc for aach partial nonch.

(b) OnMona. At tha Cloaing the Company ahall

iaaue to Kauffman optiona (the 'Optiona') to purchaae up to

Thirty Thouaand (30,000) Common Sharea under the CSA BancShares,

Inc. Stock Option Plan (the "Stocjc Option Plan") . The Optiona

•ball be exerciaable at a price of $13.00 per Comnon Share, and

•hall be exerciaeUsle for a period of ten (10) years from the date

the Optiona are granted under the Stocic Option Plan.

4. Exnenaea. The Companies shall reimburse Kauffman

promptly for reasonable out-of-poc)(et expenses incurred in

connection with his providing consulting services hereunder, upon

receipt of appropriate documentation therefor, up to a total of

Twelve Thousand Dollars (512,000.00) for the first twelve months

of the term of this Agreement and Twelve Thousand Dollars

(S12,oco.oo) for the second twelve months of the term of this

Agreement.

5. Taxes. Kauffman is responsible for paying any and

all federal, state and local income taxes aasessed with respect

to all money, benefits and other consideration he receives from

the Companies under this Agreement, to the extent not already

withheld by the Con^anias; and the Companies are entitled to

withhold any tax payments from amounta otherwise due Kauffman to

the extent required by applicable statutes, rulings or

regulations.

e. Miseellaneoua.

(a) Definitions. As used throughout this

Agreement, the term •Companies'' includes USA BancSharea, Inc.,

Peoples Thrift Savings BanJc and their reapective Affiliates and

all of their respective successors and assigns.

(b) Ooveming Law. This Agreement shall be

governed by and construed in accordance with the laws of the

Commonwealth of Pennsylvania.

(c) Modification. This Agreement may not be

modified omlly but only by written agreement signed by Kauffman

and the Chief Executive officer or vice Chairman of both of the

Companies.

(d) SoLlCSa- All notices and other

concunicationa required or permitted under this Agreement shall

be in writing and shall be deemed to have been duly given, made

and received when delivered (personally, by courier aervice such

as Fsdaral Express, or by messenger) or when deposited in the
182

Oniead Stataa luila, rvglatercd or cartlfiad mall, poataga prapald, racum racaipt re^aatad, addreaaad aa aat forth balowi

If to the Bank:

Paoplaa Thrift Savinga Bank

803 B. Oemantown Pika

Norrlatown, FA 19401

If to tha Company:

USABancShares, Inc.

Ona Pann Square

30 South ISth Street, Fourth Floor

Philadelphia, FA 19102

Attention: Chairman of the Board

If to Kauffman:

Dilworch, Faxaon Kallah k Kauffnan

3200 Mellon Building

173S Market Street

Philadelphia, PA 19103

Any party may alter cha addreaa to which

coimunicationa or copiaa are to be aent by giving notice of auch

change of addreas in conformity with tha provision of this

Section for the giving of notice.

(e) ainrt<rg Mature nf Apr«Mrr«nr. Thla Agreement

ahall be binding upon, and ahall inure to the benefit cf the

Bank, the Company and their respective successors,

representatives, and assigns and shall be binding upon Kauffman,

hi* heirs, executors and legal rcpraaantativea.

(f) Savincs and Separability. If any proviaion

of this Agreement is deemed unlawful or unenforceable by a court

of competent juriadiction, the remaining proviaiona ahall

continue in full force and effect.
133

(g) Saetlon H«adina«. Th* aactlon hcadln^a in

Cbia A^reeiMat ara Cor conv«nlanea only; thay form no part of

chia Xgraaaant and ahall not aZfaec ica Intarpracation.

IN KITDSS5 HHES£OP, tha undaralgcad hava axacutad this

Agraananc tha day and yaar £irat abova writtan.

SAVINGS BANK

Sata!

OSABAHCSKMp^ INC.

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FINANCIAL STATEMENT

NET WORTH 6/30/97

Provide a complete, current flnucial net wortfa statement which itemizes in detail tSi

ttsea (indudiox bank accounts, real estate, securities, trusts, invescments. and other financial holdings)

all liabilities Gnduding debts, mortgages, loans, and odier financial obligations) of younelf, your spouse,

and other immediate membea of your household.

ASSETS UABIUnES 1

Cuhasbud nd in bmb A7 •f-ee Nona payable B baab-aeciirad / ,e^ ^ee

U.S. GovanmsU McuiitiM - aid

•chedul* ^11 J»»

Lijtad lanritiM-sId Khedule

\MuuiS mamdm-iid Kbaiilt /-t» fiS* Notaa payable 10 olberi ^f- ice

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Dua from laUdva ttt frindi Uapaid moooe IBI

Dw from odm Olhar aapaid lai aad iaiaraat

Doubcftil Real eaaia mortgagee payable -

addicbadule

Rad Male atnMd-«dd icliaduta

75-fl » ** payable

Olbar debre^UBaa:

//* ^»» EstinBted '97 Income Tax /eo eeo

Caab value-life uuuraace ^7 »tt 1997 Phila. Real Est. Taj ^ 7'e

Other aaMa-itamiia:

Present Value DPIUK l^t/tf^ / of' f"

Limited Partnership Int.

•»7 eto

f7A *t-ee Total liebilitiee JL 3SU toe

USA BancShares Options — NatWorti its v-»«

Total Aaaea J '/A a^o Total liebilitiee ami Del wortb ,? a-^X x*o

CONTINGENT UABUjnES GENERAL INFORMATION

AM eadotiar, oomakar or foaranlnr

On Laaaaa or coBlncti

or legal actiaill? No

LeialOaima Legal P.V. MilJ. tee Have you ever taken beokniptcy?r«

Piovtsoa for Federal lacone Tut jyj teo

Olber ipecial debt
166

Ca«h In Banlc«

J«ff*raon Bank $ 11,500

Prudential Sacurltlaa Money Market 15.900

$ 27,400

Dnlisted Securltlee

Black Horaa Pike Ltd. 1984

forserly New Jersey Econoale Developaant Bond $ 120,000

Real Batata Owned

1820 Rittanhousa Square $ 750,000

Auto and Other Personal Property

1990 Jaguar $ 16,500

Art, Furnishings and Personal Effects 100.000

$ 116,500

Iilg« Inaaranct

American United Life Insurance Coapany $ 27,000
166

Preatnt Vftlm-Oilwgrth Paxggn KfllUti fc Kttuffaan R«tirtm«it/BuY Out

Aaraamant

1995. 1996. 1997 Capital Account Dua

Tha law fira of Dllworth Paxson Kallsh k Kauffnan has establlah«d

a Judicial RetireDent Program for Bruce W. Kauffman. The flm has

agreed to pay $200,000 per year for five years and purchase a third

party annuity which will pay $100,000 per year for an additional

five years.

In addition to the above payments, the firm is also responsible for

paying 1995, 1996 and 1997 undistributed profits or capital

presently in the amount of $61,900. (See paragraph 5 of the

Judicial Retirement Program for Bruce H. Kauffman.)

The present value of this income stream, assuming an interest rate

of 10%, amounts to approximately $1,091,900.

Limited Partnership Interests

Avenham Associates 36-3066147 $ 1,000

Galeria Associates 36-3159827 1,000

Toftrees Associates-2St 23-2389106 15,000

Huntington Associates 36-3102841 20.000

$ 37,000

The above Partnerships are substantially involved in the business

of Real Estate. The equity and value of these Partnerships has been

estimated.
157

ltetlre»ent Aeeounta

IRA Rollover Account dat*d 12/30/85 $ 140,700

Dllwoirth Paxson R«tlr«B«nt Plan 136,000

Ollworth Paxson Ratlrament Plan 543,100

Dilwoi-th Paxson 401 (k) Plan 52.600

$ 872,400

Provision for Incoas Tax

Ratlraasnt Accounts $ 342,800

PSA BancSharas. Inc.

BHK ovms 30,000 Options to purchase

stiaras of stock in ths Company. Ths

Options may b* •xsrclsed at a pries

of $10.00 par shar* for a period of

ten ysars beginning 11/8/95.

Divorce Settlement

Monthly Payment Payment Total Present Value

Caiild Support $ 2,083.33 $ 22,917 $ 21,800

Alimony 3,664.00 408,536 271,700

Property Settlement 1,833.33 251.165 149.300

Total $ 442,800

The Interest rate used was 10% to determine the present value of

the payment stream.
158

Motaa Payable to Banlf-S«cur«d

J«ff*r«on Bank $ 1,104,600

Kotas Pavabla to BanXa-Unaacurad

Jaffarson Bank $ 262,500

Graat Lakas Hlghar Education Corporation 36.800

$ 299,300

Hotaa Pavabla-Othera

American Unitad Lifa Insuranca Coapany $ 27,000

Dllworth Paxson Kallsh k Kauffman

Ratlrament Plan 35.600

$ 62,600
159

SEMATE QUESTIONHAIRE FOR JtJDICIAL NOMIHEE

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (Include any former names used.)

Full Name

Richard Alan Lazzara

Address: List current place of residence and office

address(es).

Office Addrpss

Second District Court of Appeal

800 East Twiggs Street

Suite 600

Tampa, Florida 33602

Date and place of birth.

Date of Birth

December 17, 1945

Place at Birth

Tampa, Florida

Marital Status (include maiden name of wife, or

husband's name). List spouse's occupation, employer's

name and business address(es).

Namp of Snniisp

Celeste Lindler Lazzara.

Spouse's Occupation

Admissions Counselor

Spouse's Employer and Business Address

Office of Admissions

University of South Florida

4202 East Fowler Avenue

Tampa, Florida 33620

Education: List each college and law school you have

attended, including dates of attendance, degrees

received, and dates degree were granted.
MO

Colle9e Attended

Loyola University of the South

New Orleans, Louisiana

Dates of Attendance

September, 1963 - May, 1967 (inclusive)

Degree Awarded

Bachelor of Arts in History

Date Degree Granted

May 30, 1967

Law School Attended

University of Florida College of I,aw

Gainesville, Florida

Dates of Attendance

September, 1967 - June, 1970 (inclusive)

Degree Awarded

Juris Doctor

Date De(yree Granted

June 13, 1970

Frnplnyment Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and

organizations, nonprofit or otherwise, including firms,

with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from

college.

1967:

Lazzara Oil Company (family company)

St. Petersburg, Florida

General laborer

June - August

University of Florida

Division of Housing

Gainesville, Florida

Dormitory Resident Assistant

January - June
161

Gibbons, Tucker, McEwen, Smith, Cofer, and

Taub, P.A.

Tampa, Florida

Law Clerk

June - August

University of Florida

Division of Housing

Gainesville, Florida

Dormitory Resident Assistant

September - December

1969:

University of Florida

Division of Housing

Gainesville, Florida

Dormitory Resident Assistant

January - June

1970:

Office of the Hillsborough County

Solicitor

Tampa, Florida

Law Clerk

June - November

Office of the Hillsborough County

Solicitor

Tampa, Florida

Assistant County Solicitor

November - December

1971 - 1977:

Office of the Hillsborough County

Solicitor

Tampa, Florida

Assistant County Solicitor

1973:

Office of the Hillsborough County

State Attorney

Tampa, Florida

Assistant State Attorney

January - April

-3-
ie2

Levine, Freedman, and Hirsch, P.A.

Tampa, Florida

Associate Attorney

April - December

1974:

Levine, Freedman, and Hirsch, P.A.

Tampa, Florida

Associate Attorney

1975:

Levine, Freedman, and Hirsch, P.A.

Tampa, Florida

Associate Attorney

January - April

Law Offices of Richard A. Lazzara

Tampa, Florida

Sole Practitioner

April - December

1976 - 1986:

Law Offices of Richard A. Lazzara

Tampa, Florida

Sole Practitioner

1987:

State of Florida

County Judge - Hillsborough County

Tampa, Florida

1988 - 1992:

State of Florida

Circuit Judge - Thirteenth Judicial Circuit

Tampa, Florida

1993:

State of Florida

Circuit Judge - Thirteenth Judicial Circuit

Tampa, Florida

January - November
168

state of Florida

Appellate Judge - Second District Court of

Tampa, Florida

December

1994 - Present:

State of Florida

Appellate Judge - Second District Court of

Appeal

Tampa, Florida

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 Conunittee.

Lovola University:

1) Recipient of a full two-year academic

scholarship for junior and senior years

2) President of the College of Arts and

Sciences in senior year

3) Alpha Sigma Nu Honor Society

4) Delta Epsilon Sigma National Honor Society

5) Who's Who in American Colleges and

Universities for 1966-1967

6) National Blue Key Honor Fraternity

7) Graduated magna cum laude

University of Florida Cnlleyp of Law:

1) Recipient of the book, American

Jurisprudence. 2d. Corporations, awarded to

the law student who attains the highest grade

in the course on corporations

2) Attorney General and Chancellor of the

Honor Court

3) Florida Blue Key Honor Fraternity

4) Omicron Delta Kappa National Honor

Fraternity

Judicial Honors:

1) Highest approval rating of Hillsborough

-5-
164

County judicial candidates in a poll

conducted by the Hillsborough County Bar

Association in 1986 (Source - The Tampa

Tribune, August 22, 1986)

2) Highest approval rating of

Hillsborough County county court judges in a

poll conducted by the Hillsborough County Bar

Association in 1987 (Source - The Tampa

Tribune, June 29, 1987)

3) Highest approval rating of Hillsborough

County circuit court judges in a poll

conducted by the Hillsborough County Bar

Association in 1993 (Sources - The Tampa

Tribune, October 9, 1993, and The St.

Petersburg Times, October 9, 1993)

4) Highest approval rating of Second District

Court of Appeal judges in a poll conducted by

Hillsborough County Bar Association in 1995

(Sources - Warfield's Tampa Bay Review,

September 29, 1995, and La Gaceta trilingual

newspaper, October 13, 1995)

5) Recipient of the Robert S.. Patton Award

for most outstanding jurist for the year

1991-1992 awarded by the Young Lawyers

Section of the Hillsborough County Bar

Association

6) Recipient of the Ybor City Optimist Club's

1993 "Respect for the Law" award

Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you

are or have been a member and give the titles and dates

of any offices which you have held in such groups.

1) American Bar Association

2) The Florida Bar; Member of Thirteenth

Judicial Circuit Grievance Committee 13-D

(1985-1986)

3) Hillsborough County Bar Association

4) American Judicature Society

5) Ferguson-White Inn of Court; President

(1995-1996)

6) Conference of County Court Judges

7) Conference of Circuit Court Judges

8) Conference of Appellate Court Judges;

Member of Education Committee (1994)
165

10. other Memberships: List all organizations to which you

belong that are active in lobbying before public

bodies. Please list all other organizations to which

you belong.

Lobbying Qriyanizations

None

Other Organizations

Order, Sons of Italy

Unita Lodge 2015

Tampa/ Florida

By-laws attached

11. Court Admissions: List all courts in which you have

been admitted to practice, with dates of admission and

lapses if any such memberships lapsed. Please explain

the reason for any lapse of membership. Give the same

information for administrative bodies which require

special admission to practice.

When admitted to The Florida Bar on November

13, 1970, I was authorized to practice in all

of the trial and appellate courts of the

State of Florida - County Courts, Circuit

Courts, District Courts of Appeal, and the

Florida Supreme Court.

United States District Court, Middle District

of Florida - admitted January, 1973

United States Court of Appeals for the Fifth

Circuit - admitted January, 1974.

United States Court of Appeals for the

Eleventh Circuit - admitted March, 1983

12. Published Writings: List the titles, publishers, and

dates of books, articles, reports, or other published

material you have written or edited. Please supply one

copy of all published material not readily available to

the Committee. Also, please supply a copy of all

speeches by you on issues involving constitutional law

or legal policy. If there were press reports about the

speech, and they are readily available to you, please

supply them.
166

Published Writings:

1) Preparation and Education: The Cardinal

Rules of the Trial Lawyer. This article was

published in the August/September, 1990

edition of The Bulletin of the Hillsborough

County Bar Association. A copy is attached.

2) PUT Manslaughter Trial - A Trial Judge's

Perspective. This material was published for

use in connection with an advanced continuing

legal education seminar presented by the

Academy of Florida Trial Lawyers on October

22, 1991, in Orlando, Florida. A copy is

attached.

3) Legal Writing From a Trial Judge's

Perspective. This material was published for

use in connection with a continuing legal

education seminar presented by the

Hillsborough County Bar Association on

October 22, 1992, in Tampa, Florida. A copy

is attached.

4) Motions to Suppress: The Right Way. This

material was published for use in connection

with a continuing legal education seminar

presented by the Pinellas County Criminal

Defense Lawyers Association on October 22-23,

1993, in St. Petersburg Beach, Florida. It

was later republished for use in connection

with a continuing legal education seminar

presented by Stetson College of Law on

September 29, 1995, in Tampa, Florida. A

copy is attached.

Speeches:

Although I have given speeches regarding the

legal system before various groups, all of

them were of an informal nature and did not

relate to issues of constitutional law or

legal policy. Furthermore, I did not speak

from a written text, and any notes I may have

used were discarded. Finally, to my

knowledge, none of these speaking events were

reported by the news media.

-8-
i«r

13. Health: What is the present state of your health?

List the date of your last physical examination.

State of Health

Excellent

Date of Last Physical Examination

January 30, 1996

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was

elected or appointed, and a description of the

jurisdiction of each such court.

1) Current Judicial Office

a) CoilCt

Second District Court of Appeal of State of

Florida; Appellate Judge

b) Elected or Appointed

Appointed by Florida Governor Lawton Chiles

in November of 1993; retained by the voters

residing within the second district court of

appeal for a six-year term commencing January

7, 1997 at the general election held on

November 5, 1996.

c) Periods of Service

December 1, 1993 to present

d) Jurisdiction

Primary jurisdiction involves resolving civil

and criminal cases appealed from the circuit

courts of the fourteen counties located

within the Second District. The court also

possesses an "All Writs" jurisdiction.

2) Prior Judicial Offices

a) Court

Circuit Court of Thirteenth Judicial Circuit

of State of Florida; Circuit Judge

b) Elected or Appointed

Appointed by Florida Governor Bob Martinez in

November of 1987; stood for election without

-9-
168

opposition for a six-year term in September

of 1988.

c) Periods of Service

January 1, 1988 through November 30, 1993

d) Jurisdirtinn

As a circuit judge, I sat for three and onehalf years in a criminal division presiding

over felony cases and two and one-half years

in a civil division presiding over civil

cases involving mortgage foreclosures,

medical and legal malpractice claims,

personal injury and products liability cases,

and contractual and commercial disputes. I

also had jurisdiction over general civil

cases in which the amount in controversy

exceeded $15,000. My jurisdiction also

included resolving civil and criminal appeals

from the county court, as well as issuing

writs of certiorari and mandamus to

governmental boards and agencies.

a) Court

County Court of Hillsborough County, Florida;

County Judge

b) Elected or Appointed

In September of 1986, I was elected in a

county-wide, non-partisan election to a four

year terra.

c) Periods of Service

January 1, 1987 through December 31, 1987

d) Jurisdiction

As a county court judge, I sat for six months

in a criminal division where ray jurisdiction

was limited to presiding over misdemeanor and

criminal traffic offenses and six months in a

civil division where my jurisdiction was

limited to presiding over civil disputes in

which the amount in controversy did not

exceed $5,000, landlord-tenant disputes and

civil traffic cases.

•10-
169

15. Citations: If you are or have been a judge, provide:

(1) citations for the ten most significant opinions you

have written; (2) a short summary of and citations for

all appellate opinions where your decisions were

reversed or where your judgment was affirmed with

significant criticism of your substantive or procedural

rulings; and (3) citations for significant opinions on

federal or state constitutional issues, together with

the citation to appellate court rulings on such

opinions. If any of the opinions listed were not

officially reported, please provide copies of the

opinions.

(1) Citations of Significant Opinions:

1. Berry v. State. 636 So. 2d 555 (Fla. 2d

DCA), approved in part, disapproved in part.

647 So. 2d 830 (Fla. 1994).

2. Bader v. Bader. 639 So. 2d 122 (Fla. 2d

DCA) (en banc), review denied. 649 So. 2d 232

(Fla. 1994).

3. Stephenson v. State. 640 So. 2d 117 (Fla.

2d DCA 1994), approved. 655 So. 2d 86 (Fla.

1995).

4. Kazakoff v. State. 642 So. 2d 596 (Fla. 2d

DCA 1994) (en banc).

5. Hamntnn v. State. 645 So. 2d 555 (Fla. 2d

DCA 1994), aff'd in part, rev'd in part. 660

So. 2d 1038 (Fla. 1995).

6. Snyder v. Douglas. 647 So. 2d 275 (Fla. 2d DCA

1994).

7. Haines City Development v. Diggs. 647 So.

2d 855 (Fla. 2d DCA 1994), approved. 658 So.

2d 523 (Fla. 1995).

8. State Farm Mutual Automobile Insurance

Company v. Hassen. 650 So. 2d 128 (Fla. 2d

DCA 1995), approved. 674 So. 2d 106 (Fla.

1996).

9. Humana nf Florida. Inc. v. McKaughan. 652

So. 2d 852 (Fla. 2d DCA 1995), approved. 668

So. 2d 974 (Fla. 1996).

-11-
170

10. Bcnrley v. Walker. 660 So. 2d 313 (Fla.

2d DCA 1995), approved. 678 So. 2d 1265 (Fla.

1996).

(2) Citations of Reversals and Affirmances

wi.tti Gritxcism:

1. Boffo V. State. 543 So.2d 435 (Fla. 2d

DCA 1989).

Although my judgment revolclng the defendant's

violation of probation was affirmed, the

sentence I imposed was reversed and the case

was remanded for imposition of a sentence

under the youthful offender statute.

2. Parsley v. State. 553 So.2d 730 (Fla. 2d DCA

1989).

My denial of a motion to dismiss the charge

of racketeering was reversed and the judgment

as to this charge was vacated.

3. Knight v. State. 556 So.2d 801 (Fla. 2d DCA

1990).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded for

resentencing.

4. Phelps V. State. 561 So.2d 32 (Fla. 2d DCA

1990).

My denial of the defendant's motion to

correct an illegal sentence based on an award

of improper jail credit was reversed and the

case was remanded for further consideration.

5. Harris v. State. 565 So.2d 897 (Fla. 2d DCA

1990).

My denial of the defendant's motion for

additional jail credit was reversed and the

case was remanded for further consideration.

-12-
171

6. Way V. Duqger. 568 So.2d 1263 (Fla. 1990).

My denial of the defendant's motion to vacate

his death sentence was reversed and the case

was remanded for another penalty phase

hearing. In all other respects I was

affirmed.

7. Helmick v. State. 569 So.2d 869 (Fla. 2d DCA

1990).

Although the defendant's convictions were

affirmed, the court reversed the sentences

imposed and remanded for resentencing.

8. Parlcer v. State. 570 So.2d 1115 (Fla. 2d DCA

1990) .

My imposition of a minimum mandatory sentence

as to one offense was vacated. In all other

respects I was affirmed.

9. Edwards v. State. 570 So.2d 1116 (Fla. 2d DCA

1990) .

My departure order imposing a sentence in

excess of the sentencing guidelines was

stricken.

10. Nichols V. State. 571 So.2d 121 (Fla. 2d DCA

1990) .

My denial of the defendant's motion for post

conviction relief was reversed and the case

was remanded for further proceedings.

11. Walker v. State. 572 So.2d 1028 (Fla. 2d DCA

1991) .

My denial of the defendant's motion for post

conviction relief was reversed and the case

was remanded for further proceedings.

12. Martinez v. State. 575 So.2d 1376 (Fla. 2d

DCA 1991).

My denial of the defendant's motion for post

conviction relief was reversed and the case

was remanded for further proceedings.

-13-
172

Following remand another appeal was taken and

my ruling was affirmed. Martinpz v. state.

583 So.2d 680 (Fla. 2d DCA 1991).

13. City of Tampa g. Redner. 576 So.2d 339

(Fla.2d DCA 1991).

The court reversed my ruling and directed

that I reconsider the case using the correct

municipal ordinance of the City of Tampa.

Following remand another appeal was taken and

the court affirmed my second ruling. City of

Tampa v. Redner. 597 So.2d 305 (Fla. 2d DCA

1991).

14. Johnson v. State. 577 So.2d 725 (Fla. 2d DCA

1991).

My denial of the defendant's motion to

mitigate his sentence was reversed and the

case was remanded for further proceedings.

15. Matthews v. State. 578 So.2d 51 (Fla. 2d DCA

1991).

My written sentences were reversed and

remanded to conform to my oral pronouncements

at time of sentencing. In all other respects

the defendant's convictions were affirmed.

16. Busier v. State. 578 So.2d 872 (Fla. 2d DCA

1991).

The court reversed my order denying the

defendant's motion to suppress evidence

deciding that there was no founded suspicion

to justify the police officer's stop of the

defendant.

17. Morgan v. State. 580 So.2d 176 (Fla. 2d DCA

1991).

My imposition of a sentence under the

habitual felony offender statute was reversed

and the case was remanded for resentencing.

-14-
173

18. Blount V. State. 581 So.2d 604 (Fla. 2ci DCA

1991).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded for

resentencing.

19. Gonzalez v. State. 581 So.2d 648 (Fla. 2d DCA

1991).

Although the court affirmed my departure

sentencing order which exceeded the

sentencing guidelines based on one reason, it

found that two of my reasons for departure

were invalid.

20. Burkey v. State. 582 So.2d 1252 (Fla. 2d DCA

1991).

My written sentences were reversed and

remanded to conform to ray oral pronouncements

at time of sentencing. In all other respects

the defendant's convictions were affirmed.

21. Jancar v. State. 585 So.2d 1200 (Fla. 2d DCA

1991).

Although the judgment and sentence were

affirmed, the court remanded for the

allocation of the proper amount of jail

credit to be awarded to the defendant.

22. State v. MiIhrn. 586 So.2d 1303 (Fla. 2d DCA

1991).

The court reversed my dismissal of the charge

of solicitation to deliver a controlled

substance and remanded the case for further

proceedings.

23. Jackson v. State. 590 So.2d 1070 (Fla. 2d DCA

1991).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded for

resentencing.

-15-
174

24. State v. Tanskley. 590 So.2d Ull (Fla. 2d

DCA 1991).

Although the court affirmed the defendant's

convictions for two offenses, it remanded for

the correction of sentence as to one of the

offenses.

25. Coleman v. StatP. 592 So.2d 300 (Fla. 2d DCA

1991).

The defendant was convicted of burglary and

delivery of cocaine. The court reversed the

burglary conviction, affirmed the drug

conviction, and remanded for resentencing on

the drug conviction using a corrected

guideline sentencing scoresheet that deleted

the burglary conviction.

26. Dumas v. State. 592 So.2d 383 (Fla. 2d DCA

1992).

Although the defendant's convictions were

affirmed, my departure order imposing a

sentence in excess of the sentencing

guidelines was reversed and the case was

remanded for resentencing.

27. State v. Bamher. 592 So.2d 1129 (Fla. 2d DCA

1991).

Although the court affirmed my granting of

the defendant's motion to suppress evidence,

it stated that I should have followed the

holding of another District Court of Appeal.

However, in affirming my ruling, the court

certified conflict to the Florida Supreme

Court with this other court's ruling. The

Florida Supreme Court ultimately affirmed my

suppression of the evidence. State v.

aalntier, 630 so. 2d 1048 (Fla. 1994).

28. Mathews v. State. 596 So.2d 79 (Fla. 2d DCA

1991).

The court reversed my denial of the

defendant's motion to correct illegal

sentence and remanded the case for further

proceedings.

-16-
175

29. Smith v. State. 599 So.2d 265 (Fla. 2d DCA

1992).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded for

resentencing.

30. Lehman v. State. 602 So.2d 610 (Fla. 2d DCA

1992).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded with

directions to discharge the defendant from

any further sentence.

31. Jasperson v. State. 603 So.2d 144 (Fla. 2d

DCA 1992).

The court reversed the sentence imposed and

remanded for resentencing using a proper

guideline sentencing scoresheet.

32. Davis V. State. 605 So.2d 561 (Fla. 2d DCA

1992).

The court reversed my denial of the

defendant's motion to suppress evidence on

the basis that the stop of the defendant by

the police officer was pretextual in nature.

33. Love v. State. 606 So.2d 755 (Fla. 2d DCA

1992).

The court reversed my ruling that the

defendant's community control should be

revolted and remanded the case for

reinstatement of the original sentence of

community control.

34. Rodriguez v. State. 610 So.2d 476 (Fla. 2d

DCA 1992).

The court reversed my sentence on the basis

that it exceeded the sentence called for in a

plea agreement. It remanded the case for

further proceedings including giving the

-17-
176

defendant an opportunity to withdraw his plea

of guilty.

35. Reber v. Statp. 611 So. 2d 91 (Fla. 2d

DCA 1992).

The court remanded the case for the

correction of the written judgment. It also

struck a cost assessment.

36. Dorsey v. State. 613 So. 2d 1368 (Fla. 2d DCA

1993).

The court reversed the defendant's

racJceteering conviction. It also reversed

the defendant's petit theft conviction

finding that I should not have allowed

certain photographs into evidence. However,

the court did affirm the defendant's

convictions for possession of cocaine,

possession of marijuana, and grand theft of a

firearm.

37. Bryant v. State. 614 So. 2d 688 (Fla. 2d

DCA 1993).

Although the court affirmed the convictions,

it reversed one special condition of

probation because it was not orally

pronounced.

38. Hollidav v. Citv of Tampa. 619 So. 2d

244 (Fla. 1993).

In Holliday v. City of Tampa. 586 So. 2d 64

(Fla. 2d DCA 1991), the Second District Court

of Appeal upheld my decision to affirm Mr.

Holliday's conviction for loitering under a

Tampa city ordinance. The Florida Supreme

Court, however, disagreed and held the

ordinance was facially unconstitutional.

39. Bailey v. Hillsborough County. 619 So.

2d 346 (Fla. 2d DCA 1993).

The court reversed my dismissal of a civil

complaint with prejudice and remanded the

case for the plaintiff to be able to file an

amended complaint.

-18-
177

40. Guerra v. State. 626 So. 2d 706 (Fla. 2d

DCA 1993).

My departure order imposing a sentence in

excess of the sentencing guidelines was

reversed and the case was remanded for

resentencing.

41. Charlie Brown's of Tampa. Inc. v. Cook.

630 So. 2d 1158 (Fla. 2d DCA 1994).

The court reversed my order setting aside a

final judgment and remanded with instructions

to reinstate the judgment.

42. Newsome v. Singletary. 637 So. 2d 9

(Fla. 2d DCA 1994).

The court reversed my order dismissing a

complaint for lack of jurisdiction and

remanded for further proceedings.

43. State v. Berry. 647 So. 2d 830 (Fla.

1994).

Although the Florida Supreme Court affirmed

the result reached in the opinion I authored

in Berry v. State. 636 So. 2d 555 (Fla. 2d

DCA 1994), it disagreed with the assessment

that a juvenile could never waive his or her

right to forego certain statutory safeguards

before being sentenced as an adult.

44. State v. Jackson. 650 So. 2d 24 (Fla.

1995) .

Although the Florida Supreme Court agreed

with the result reached in the opinion I

authored in State v. Jackson. 636 So. 2d 1372

(Fla. 2d DCA 1994), it disagreed with my

substantive reasoning that information

transmitted to a digital display pager was an

electronic communication. Instead, the court

held that such information was a wire

communication.

-19-
178

45. StatrP v. Hamilt-nn. 660 So. 2d 1038 (Fla.

1995) .

Although the Florida Supreme Court agreed

with my substantive analysis of what

constitutes the "curtilage" under Florida's

burglary statute in the opinion I authored in

Hamilton v. State. 645 So. 2d 555 (Fla. 2d

DCA 1994), it disagreed with remanding the

case for a new trial, determining instead

that the evidence was insufficient to prove

guilt.

46. Florida Power & Light Company v. Polackwich. 677

So. 2d 880 (2d DCA Fla. 1996).

Although the court reversed and remanded for

a new trial because it determined that two of

my rulings were erroneous, it pointed out

that at the time I made these rulings they

were consistent with the law in effect at the

time of trial. After the trial, however, the

law had changed by virtue of two intervening

United States Supreme Court opinions which

required the appellate court to reverse and

grant a new trial.

47. State v. Montague. 682 So. 2d 1085 (Fla. 1996).

In State v. Montague. 656 So. 2d 508 (Fla. 2d DCA

1995), I certified a question to the Florida Supreme

Court regarding whether a recent Florida Supreme Court

opinion had overruled prior precedent of the Second

District Court of Appeal in the area of preserving a

sentencing error for review. Although the Florida

Supreme Court acJcnowledged that its prior opinion did

not expressly overrule the precedent of my court

upon which I relied in my opinion, it did hold that

this opinion tacitly disapproved this precedent.

The supreme court, therefore, answered the question

in the affirmative and reversed my decision.

(3) Citations of Significant Constitutional

Opinion;;:

1. State Farm Mutual Autaaobi.le Insurance

Company v. Hassen» 650 so. 2d 128 (Fia. 2d

-20-
179

DCA 1995), approved. 674 So. 2d 106 (Fla.

1996).

2. Wallcgr V. Bentley. 660 So. 2d 313 (Fla.

2d DCA 1995), approved. 678 So. 2d 1265 (Fla.

1996).

3. State V. Barnes. 21 Fla. L. Weelcly D2515 (Fla. 2d

DCA Nov. 27, 1996).

16. Public Offlre: 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 cleric to a judge,

and if so, the name of the judge, the court,

and the date of the period you were a cler)c;

I did not serve as a cleric to a

judge.

2. whether you practiced alone, and if so,

the addresses and dates;

From April of 1975 until December

of 1986, I was a sole practitioner

at the following addresses:

April of 1975 - December of 1977

725 East Kennedy Boulevard

Tampa, Florida 33602

January of 1978 - February of 1980

202 South Governor Street

Tampa, Florida 33602

-21-
180

March of 1980 - June of 1985

610 West Deleon Street

Tampa, Florida 33606

July of 1985 - December of 1986

606 East Madison Street

Tampa, Florida 33602

3. the dates, names and addresses of law

firms or offices, companies, or governmental

agencies with which you have been connected,

and the nature of your connection with each;

June flt 197Q - NoYember of 1970

Office of the Hillsborough County

Solicitor

801 East Kennedy Boulevard

Fifth Floor

Tampa, Florida 33602

Law Clerk

NQvember Q£ 197Q - Dec:fiinbfir at 1972

Office of the Hillsborough County

Solicitor

801 East Kennedy Boulevard

Fifth Floor

Tampa, Florida 33602

Assistant County Solicitor

January of 1973 - April of 1973

Office of the State Attorney

801 East Kennedy Boulevard

Fifth Floor

Tampa, Florida 33602

Assistant State Attorney

April of 1973 - April of 1975

Levine, Freedman, and Hirsch, P.A.

725 East Kennedy Boulevard

Tampa, Florida 33602

Associate Attorney

January of 1986 - June of 1987

Hillsborough County Court Judge

Criminal Division

801 East Twiggs Street

Tampa, Florida 33602

-22-
181

July of 1987 - December of 1987

Hillsborough County Court Judge

800 East Kennedy Boulevard

Tampa, Florida 33602

January of 1988 - July of 1991

Hillsborough County Circuit Court

Judge

Criminal Division

800 East Kennedy Boulevard

Tampa, Florida 33602

August of 1991 - November of 1993

Hillsborough County Circuit Court

Judge

Civil Division

419 Pierce Street

Tampa, Florida 33602

December of 1993 - Present

Second District Court of Appeal

Judge

801 East Twiggs Street

Tampa, Florida 33602

1. What has been the general character of

your law practice, dividing it into periods

with dates if its character has changed over

the years?

The general character of my

practice, which remained constant

over the years, involved extensive

litigation in the areas of criminal

law, commercial law, and family

law. I also handled appellate

matters in these same areas of the

law.

2. Describe your typical former clients,

and mention the areas, if any, in which you

have specialized.

My former clients came from all

walks of life - single parents,

educators, business people, law

enforcement officers, public

officials, and members of the

-23-

45-964 98-7
182

general work force. Although I

considered myself a general

litigator, my area of specialty was

criminal defense.

1. Did you appear in court frequently,

occasionally, or not at all? If the

frequency of your appearances in court

varied, describe each such variance, giving

dates.

While a practicing attorney, I

appeared in court on a regular

basis which did not significantly

vary over the years.

2. What percentage of these appearances was

in:

(a) federal courts - 30%

(b) state courts of record - 70 %

(c) other courts - 0%

3. What percentage of your litigation was:

(a) civil - 30«,

(b) criminal - 70 %

4. State the number of cases in courts of

record you tried to verdict or judgment

(rather than settled), indicating whether

your were sole counsel, chief counsel, or

associate counsel.

Sole Counsel

145

Chief Counsel

5

Associate Counsel

10

-24-
183

5. What percentage of these trials were:

(a) jury - 60%

(b) non-jury - 40%

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 substauice 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

nximbers of co-counsel and of principal counsel for

each of the other parties.

1) Citation of Case

Automatic Truck & Trailer Wash

Centers. Inc. v. Eastamp. Inc.. 320

So. 2d 1 (Fla. 2d DCA 1975).

Capsule Summary of Case

This case involved a lawsuit filed

by my client, a secured creditor,

seeking to recover a deficiency

judgment following a foreclosure

sale involving an automatic truck

and trailer washer. The trial

court granted summary judgment

against the client and ruled that

its rights were governed

exclusively by the provisions of

Article 9 of the Uniform Commercial

Code relating to secured creditors

and that it was not entitled to the

benefits of Article 6 of the Code

which protected unsecured

creditors. The appellate court

disagreed, reversed the entry of

summary judgment, and remanded for

further proceedings. To the best

-25-
184

of my recollection, the case was

settled on remand.

Party Represented

Automatic Truck & Trailer Wash

Centers, Inc.

Nature of Participation in Case

I was actively involved in

litigating the case at the trial

court level in terms of drafting

pleadings, researching the law,

participating in pre-trial

depositions, and attending and

arguing motions at hearings. I was

equally active at the appellate

stage in terms of undertaking legal

research and preparing and drafting

the briefs. I do not recall,

however, whether I or my co-counsel

argued the case to the appellate

court.

Final Disposition of Case

It is my recollection that after

the appellate court reversed and

remanded the case the parties then

settled it.

Catfiii Of' Reoresentation

Fall of 1974

Name Qi Court/Judge

circuit Court of Thirteenth

Judicial Circuit of State of

Florida

Circuit Judge Laurence I. Goodrich

(retired) (now in private practice)

Name/Address/Phone Numbers of CoCounsel and Counsel of Other

Parties

-26-
185

CQ-CQunsel

Mr. Michael J. Freedman

300 East Madison Street

Tampa, Florida 33602

(813) 229-6925

Counsel of Other Parties

Raymond C. Farfante, Jr.

(deceased)

Mr. John P. Griffin

15819 Dawson Ridge Road N.W.

Tampa, Florida 33647

(813) 979-9831

Mr. Harold H. Griffin

(deceased)

Mr. Jan G. Halisky

507 South Prospect Avenue

Clearwater, Florida 34616

(813) 461-4234

2) Citation of Case

United States v. Myers. 550 F. 2d

1036 (5th Cir. 1977), 42 ALR Fed.

855, appeal after remand. 572 F. 2d

506 (5th Cir.), cert, denied. 439

U.S. 487, 99 S. Ct. 147, 58 L. Ed.

2d 149 (1978)

Capauie Summary of Case

Mr. Myers was indicted for robbing

a federally-insured ban)c, and I was

court-appointed to represent him.

He raised an alibi defense. His

first trial ended in a mistrial

after the jury could not reach a

unanimous verdict. His second

trial resulted in a jury verdict of

guilt. On appeal, the Fifth

Circuit reversed and remanded for a

new trial. The new trial resulted

in another jury verdict of guilt

which the Fifth Circuit affirmed.

-27-
186

Party Represented

Mr. Larry Allen Myers

Nature Q£ Participation in Case

I was court-appointed to represent

Mr. Myers at trial and on appeal.

In that capacity, I prepared and

filed various pre-trial motions,

undertook discovery, tried his case

to a jury on three occasions,

prepared and filed appellate briefs

on two occasions, and argued his

case on appeal on one occasion.

Final Disposition of Case

Following the second conviction,

Mr. Myers was sentenced to ten

years imprisonment. The conviction

and sentence were affirmed by the

Fifth Circuit, and the United

States Supreme Court later denied

certiorari review.

Dates of Representation

1975-1978

Name of Court/Judae

United States District Court,

Middle District of Florida, Tampa

Division

United States District Judge Ben

Krentzman (retired)

Name/Address/Phone Number of CoCounsel and Counsel of Other Party

Co-Counsel

None

Counsel of Other Party

Mr. John L. Briggs

(I have been advised by a former

law partner of Mr. Briggs that he

-28-
187

is now in a nursing home in the

Jacksonville, Florida area

suffering from Alzheimer's

disease.)

Mr. Terry Smiljanich

300 First Avenue South

Suite 500

St. Petersburg, Florida 33701

(813) 823-3837

3) Citation of Case

Johnson v. Farris. 469 So. 2d 221

(Fla. 2d DCA 1985)

Capsule Summary of Case

I filed a petition to modify the

custody provisions of a final

judgment of dissolution of marriage

on behalf of the former husband in

which he sought custody of his

minor child. The trial judge

dismissed the petition on the basis

that he did not have jurisdiction

under Florida's Uniform Child

Custody Jurisdiction Act. This

ruling was reversed on appeal, and

the case was remanded for further

proceedings. On remand, the case

was settled by the parties with the

former husband obtaining more

extensive visitation rights.

Party Represented

Mr. Cecil E. Johnson

Nature of Participation in Case

I prepared and filed pleadings in

the case, undertoo)c research of the

law, and argued the case before the

trial judge. On appeal, I prepared

and filed the briefs and argued

before the appellate court. On

remand, I represented the client in

-29-
188

successfully resolving the case

without the need for any further

litigation.

Final Disposition of Case

Following the appellate court's

reversal and remand, the parties

resolved the case. As I recall,

the former husband was given more

liberal visitation with his minor

child.

Dates of Representation

1984-1985

Name of Court/Judge

Circuit Court of Thirteenth

Judicial Circuit of the State of

Florida

Circuit Judge Phillip L. Knowles

(retired)

Name/Address/Phone Numbers of CoCounsel and Counsel of Other Party

Co-Counsel

None

Counsel of Other Party

Mr. Stephen Carl Cheeseman

700 East Twiggs Street

Suite 105

Tampa, Florida 33602

(813) 223-4007

4) Citation of Case

MalQne v. State, 390 so. 2d 338

(Fla. 1980), cert, denied. State v.

Malone. 450 U.S. 1034, 101 S. Ct.

1749, 68 L. Ed. 2d 231 (1981)

-30-
189

Capsule Siimmfiry nf Cfisp

Mr. Malone was indicted for and

convicted of two counts of firstdegree murder and one count of

robbery. At trial, the state

introduced into evidence

incriminating statements made by

Mr. Malone regarding his

participation in the murders and

robbery. These statements were

made to a state informant who had

been placed in a jail cell with Mr.

Malone for the specific purpose of

eliciting incriminating statements

from Mr. Malone. A motion to

suppress these statements was

denied by the trial judge. Mr.

Malone was eventually sentenced to

death. The Florida Supreme Court

held that the statements should

have been suppressed. Concluding

that the introduction into evidence

of these statements was not

harmless beyond a reasonable doubt,

the Florida Supreme Court reversed

Mr. Malone's convictions and

sentences of death and remanded for

a new trial. On remand, Mr. Malone

pleaded guilty in return for

concurrent life sentences.

Party Represented

Mr. Charles Willis Malone, Jr.

Nature of Participation

I was court-appointed to represent

Mr. Malone at his first trial and

after the case was reversed and

remanded by the Florida Supreme

Court. The Office of the Public

Defender represented him on appeal.

In connection with my representation of Mr. Malone, I prepared

and filed extensive pre-trial

motions, including the pivotal

motion to suppress, undertook

extensive research of the law and

-31-
190

pre-trial discovery, participated

in numerous arguments before the

trial judge in connection with pretrial motions I filed, and tried

the case to a jury. On remand, I

helped negotiate a favorable plea

agreement on behalf of Mr. Malone.

Final Disposition of Case

Following the Florida Supreme

Court's reversal and remand for a

new trial, Mr. Malone pleaded

guilty to all charges in return for

concurrent life sentences.

Dates of Representation

1978-1981

Name of Court/Judge

Circuit Court of Thirteenth

Judicial Circuit of the State of

Florida

Circuit Judge J. C. Cheatwood

(retired)

Name/Address/Phone Numbers of CoCQunsei and Counsel at Other Party

Co-Counsel

None

Counsel of Other Party

Mr. C. Thomas Davidson

100 North Tampa Street

Suite 2800

Tampa, Florida 33601

(813) 224-0866

5) Citation of Case

United States v. Conover. 772 F. 2d

765 (llth Cir. 1985), affirmed in

part and remanded. Tanner v. United

States. 483 U.S. 107, 107 S. Ct.

2739, 97 L. Ed. 2d 90 (1987),

-32-
191

opinion on remand. United States v.

Conover. 845 F. 2d 266 (11th Cir.

1988)

Capsule Summary of Case

Mr. Conover and Mr. Tanner were

indicted for conspiracy to defraud

the United States and for multiple

counts of mail fraud. The charges

arose from the awarding of a road

building contract to Mr. Tanner by

Mr. Conover as chief of procurement

for Seminole Electric Cooperative.

This contract was one of many

contracts let by Seminole Electric

in connection with its construction

of a power generating plant with

funds loaned and guaranteed by the

Rural Electrification Administration. The first trial lasted

approximately two months and ended

in a mistrial because the jury

could not reach a unanimous

verdict. The second trial lasted

approximately six weeks and ended

with jury verdicts of guilt.

On appeal, the United States Court

of Appeals for the Eleventh Circuit

affirmed the convictions. The

United States Supreme Court

accepted certiorari jurisdiction in

the case. It then affirmed one of

the points raised relating to juror

misconduct but remanded to the

Eleventh Circuit to reconsider the

sufficiency of the evidence to

sustain the convictions. On

remand, the Eleventh Circuit

determined that the evidence was

insufficient and directed that the

convictions be vacated.

Party Represented

Mr. William M. Conover

-33-
192

Nature of Partiripation in Case

I represented Mr. Conover at both

of his trials and on direct appeal

to the United States Court of

Appeals for the Eleventh Circuit.

Because I had become a judge when

the case went to the United States

Supreme Court, and then on remand

to the Eleventh Circuit, Mr. John

DeVault, III, assumed representation of Mr. Conover.

My participation in the case

involved extensive research of the

law, extended discovery, filing,

preparing, and arguing numerous

pre-trial and post-trial motions,

and trying the case to two juries.

I also assisted in the preparation

of the briefs on the initial appeal

to the Eleventh Circuit.

Final Disposition of Case

In United States v. Conover. 845 F.

2d 266 (11th Cir. 1988), the court

vacated Mr. Conover's convictions.

Pates of Representation

1983-1986

Name of Court/Judge

United States District Court,

Middle District of Florida, Tampa

Division

United States District Judge Ben

Krentzman (retired)

Name/Address/Phone Numbers of CoCounsel and Counsel o Other Parties

Co-Counsel

None

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193

Counsel of other Parties

Mr. David Best

20 North Orange Avenue

Orlando, Florida 32801

(407) 425-2985

Mr. Stephen Millbrath

255 South Orange Avenue

Suite 1401

Orlando, Florida 32802

(407) 841-2330

Mr. John DeVault, III

101 East Adams Street

Jacksonville, Florida 32202

(904) 353-0211

Mr. Terry Zitelc

Office of the United States

Attorney

500 Zaclc Street

Tampa, Florida 33602

(813) 274-6000

Mr. David Runyon

100 2nd Avenue South

St. Petersburg, Florida 33701

(813) 892-6001

6) Citation Q£ Case

United States v. Guillen-Linares.

636 F. 2d 1054 (5th Cir. 1981),

appeal after remand. 643 F. 2d 1054

(5th Cir. 1981)

Capsule Summary of Case

The defendants in this case were

indicted for and convicted of

conspiracy to possess marijuana

with intent to distribute and

possession of marijuana with intent

to distribute. The evidence used

to convict them was obtained from a

boarding of their vessel in Tampa

Bay by the United States Coast

Guard at the request of United

States Customs officers. The

-35-
IM

central issue in the case was

whether the boarding was reasonable

under the Fourth Amendment to the

United States Constitution. The

United States Court of Appeals for

the Fifth Circuit remanded the case

to the trial judge for further

findings. After compliance with

this fact-finding mandate, the

Fifth Circuit then reversed the

defendants' conviction because it

concluded that the boarding was

accomplished without any reasonable

suspicion of illicit activity. It

concluded, therefore, that the

trial judge should have granted the

defendants' motion to suppress

evidence.

Party Represented

Mr. Felix Valle

Nature of Participation in Case

I represented Mr. Valle both at

trial and on appeal. I undertook

research of the law and discovery,

prepared, filed, and argued the

motion to suppress before the trial

judge, tried the case to a jury,

prepared and filed appellate

briefs, and orally argued the case

to the Fifth Circuit.

Final Disposition of Case.

In United States v. GuillenLinares. 643 F. 2d 1054 (5th Cir.

1981), the court reversed Mr.

Valle's convictions.

Dates of Trial Periods

1978-1981

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195

NamRs of Court/Judge

United States District Court,

Middle District of Florida, Tampa

Division

United States District Judge

William Terrell Hodges

Name/Address/Phone Numbers of CoCounsel and Counsel of Other

Parties

Co-Counsel

None

Counsel of Other Parties

Mr. Bennie Lazzara, Jr.

606 East Madison Street

Tampa, Florida 33602

(813) 229-2224

Mr. Anthony F. Gonzalez

701 North Franklin Street

Tampa, Florida 33602

(813) 224-0431

Mr. Joseph Ficarrotta

600 East Madison Street

Tampa, Florida 33602

(813) 223-9788

Mr. George Cardet

330 S.W. 27th Avenue

Miami, Florida 33125

(305) 649-4400

Mr. Marvin Rudniclc

35 South Raymond Avenue

Pasadena, California 91105

(818) 798-2514

7) Citation of Case

United States v. McLarty

(unreported)

(case number unavailable)

-37-
196

Capsule Summary o£ Case

Mr. McLarty, who is an attorney,

was indicted for tampering with

evidence in violation of 18 U.S.C.

§ 1512. The charges arose from his

representation of various tax

protesters in an ongoing grand jury

investigation in Tampa, Florida,

directed at violations of the

federal income tax laws. He was

acquitted by a jury.

Party Represented

Mr. Scott McLarty

Nature of Participation in Case

I was co-counsel with another

attorney. My responsibilities

included undertaking discovery,

researching the law, preparing,

filing, and arguing pre-trial

motions, and participating in the

actual trial of the case.

Final Disposition of Case

Mr. McLarty was acquitted by a

jury.

Dates nf Representation

1983

NdIIL££. uf Court/Judge

United States District Court,

Middle District of Florida, Tampa

Division

United States District Judge George

Carr (deceased)

Name/Address/Phone Numbers of CoCounsel and Counsel of Other Party

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197

Co-Counsel

Mr. Edward Garland

3151 Maple Drive N.E.

Atlanta, Georgia 30305

(404) 262-2225

Counsel of Other Party

Ms. Karla Spaulding

4830 West Kennedy Boulevard

Tampa, Florida 33609

(813) 286-4100

8) Citation of Case

State of Florida v. Robinson. Case

Number 84-13740-A (unreported)

Capsulp SiiniTnary of Case

Mr. Robinson was charged with

aggravated battery in connection

with a physical confrontation with

another individual in which this

individual sustained serious bodily

injury. Mr. Robinson claimed he

acted in self-defense and so

testified to the jury. The jury

acquitted him.

Party Represented

Mr. John Robinson

Nature of Participation in Case

My representation of Mr. Robinson

required me to underta)<e extensive

pre-trial discovery, including the

talcing of pre-trial depositions,

research of the law, preparing,

filing, and arguing relevant

motions, interviewing defense

witnesses, and trying the case to a

jury.

-39-
198

Final Disposition of Case

Mr. Robinson was acquitted by a

jury.

Dates of Representation

1984-1985

Names of Court/Judge

Circuit Court of Thirteenth

Judicial Circuit of the State of

Florida

Circuit Judge Harry Lee Coe, III

(retired) (current State Attorney

for Thirteenth Judicial Circuit)

Name/Address/Phone Numbers of CoCounsel and Counsel of Other Party

Co-Counsel

None

Counsel of Other Party

Mr. Michael LeBron

235 West 56th Street

Suite 25D

New Yor)c, New Yorlc 10019

(unpublished phone number)

9) Citation of Case

State V. Moore. 486 So. 2d 79 (Fla.

2d DCA 1986)

Capsule Summary of Case

Mr. Moore and Mr. Moorman were

indicted by a grand jury for

official misconduct. The trial

judge granted a motion to dismiss

the indictment because it

determined that the indictment was

tainted by the defendants'

compelled appearances before the

grand jury that indicted them. The

-40-
199

Second District Court of Appeal

upheld the dismissal.

Party Represented

Mr. Joseph Moore

Nature of Participation in Case

I represented Mr. Moore in

connection with his appearances

before the grand jury. After his

indictment, I undertook pre-trial

discovery, including the taking of

pre-trial depositions, engaged in

research of the law, and prepared,

filed, and argued pre-trial

motions, including the critical

motion to dismiss. I also

represented Mr. Moore on appeal,

which included more research of the

law, the preparation and filing of

appellate briefs, and oral argument

before the Second District Court of

Appeal.

Final Disposition g£ Case

In state v. Moore. 486 So. 2d 79

(Fla. 2d DCA 1986), the court

affirmed the trial judge's

dismissal of the indictment brought

against Mr. Moore. He was never

recharged.

Dates o£ Representation

1984-1986

Names of Court/Judge

Circuit Court of Sixth Judicial

Circuit of the State of Florida

Circuit Judge Lawrence Keough

(retired)

Name/Address/Phone Numbers of CoCounsel and Counsel of Other

Parties

-41-
200

Co-Counspl

None

Counsel of Other Parties

Mr. Bennie Lazzara, Jr.

606 East Madison Street

Tampa, Florida 33602

(813) 229-2224

Mr. Richard Mensch

2001 80th Street North

St. Petersburg, Florida 33710

(813) 847-8158

Mr. Michael HalJcitis

10036 Casey Drive

New Port Richey, Florida 34654

(813) 869-2401

10) Citation of Case

United States v. Fred Arthur

Anderson et al.. Case Number 85-59-

Cr.-T-13 (NOTE: This case is

unreported as to my client because

he was acquitted. It is reported

as to convicted, appealing codefendants. See United States v.

Kotvas. 941 F. 2d 1141 (11th Cir.

1991), cert, denied. 506 U.S. 1055,

113 S. Ct. 982, 122 L. Ed. 2d 135

(1993).)

Capsule .Summary of Case

My client in this case, Mr. Richard

Guagliardo, was indicted for

conspiracy to commit raclceteering,

racJceteering, and mail fraud. His

co-defendants were indicted for

similar offenses, including

extortion. All of the charges were

based on acts of alleged public

corruption before the Hillsborough

County Board of County

Commissioners. The essence of the

charges was that the Board was a

-42-
201

criminal enterprise, and certain of

its members, aided by non-members,

were engaged in soliciting and

accepting bribes in return for

favorable votes on matters,

particularly zoning matters, which

came before the Board. Following a

protracted, highly publicized case,

Mr. Guagliardo and the majority of

his co-defendants were acquitted.

Party Represented

Mr. Richard Guagliardo

Nature Q£ Particigation in Case

This case represented the most

complex and time-consuming matter I

ever undertook as a trial attorney.

It required extensive pre-trial

discovery, which included securing,

compiling, cataloging, and

reviewing in detail literally

thousands of documents. The case

also required extensive research of

the law, followed by the

preparation, filing, and arguing of

numerous pre-trial motions. It

also demanded intense preparation

in terms of attempting to secure a

fair and impartial jury, preparing

and delivering an effective opening

statement, preparing effective

cross-examinations of numerous

government witnesses, presenting a

concise defense, and delivering a

convincing final argument to the

jury.

Final Disposition of Case

The jury acquitted Mr. Guagliardo

of all charges.

Dates of Representation

1985-1986

-43-
202

Names of Court/Judge

United States District Court,

Middle District of Florida, Tampa

Division

United States District Judge George

Carr (deceased)

Name/Address/Phonp Numhprs nf CnCounsel and Counsel of Other

Parties

Co-Counsel

None

Counsel o£ Other Parties

Mr. Michael Otis

3841 West Kennedy Boulevard

Tampa, Florida 33609

(813) 872-2656

Mr. David Maney

606 East Madison Street

Tampa, Florida 33602

(813) 228-7371

Mr. Robert Polli

101 East Kennedy Boulevard

Suite 3130

Tampa, Florida 33602

(813) 222-8350

Mr. Patric)c Doherty

619 Turner Street

Clearwater, Florida 34616

(813) 443-0405

Mr. Raymond Harris

(no longer practices law; address

and phone number un)cnown)

Mr. Claude Tison

111 East Madison Street

Suite 2300

Tampa, Florida 33601

(813) 273-4200

-44-
208

Mr. Lee Fugate

13630 58th Street North

Clearwater, Florida 34620

(813) 539-6536

Mr. Joseph Beeler

3050 Biscayne Boulevard

Suite 300

Miami, Florida 33137

(305) 576-3050

Ms. Julianne Holt

801 East Twiggs Street

Fifth Floor

Tampa, Florida 33602

(813) 272-5980

Mr. Thomas Hanlon

210 North Pierce Street

Tampa, Florida 33602

(813) 228-7095

Mr. Manual Lopez

801 East Twiggs Street

Fifth Floor

Tampa, Florida 33602

(813) 272-5980

Mr. Joseph Magri

7650 Courtney Campbell Causeway

Tampa, Florida 33607

(813) 281-9000

Mr. David Runyon

100 2nd Avenue South

St. Petersburg, Florida 33701

(813) 892-6001

Ms. Karla Spaulding

4830 West Kennedy Boulevard

Tampa, Florida 33609

(813) 286-4100

In that all of these cases are older than

five years, I provide the following list of

members of the legal community who have had

recent contact with me in my capacity as a

judge:

-45-
204

Mr. Frederick L. Bateman, Jr.

Bateman & Graham, P.A.

300 E. Park Avenue

Tallahassee, Florida 32301

(904) 224-2677

Mr. Thomas Gonzalez

Thompson, Sizemore & Gonzalez, P.A.

109 N. Brush Street-Suite 200

Tampa, Florida 33601-0639

(813) 273-0050

Ms. Arthenia Joyner

Stewart, Joyner, Jordan-Holmes S

Holmes, P.A.

1112 E. Kennedy Blvd.

Tampa, Florida 33602-0297

(813) 229-2300

Mr. Christopher Knopik

Yerrid, Knopik 4 Valenzuela, P.A.

101 East Kennedy Boulevard

Suite 2160

Tampa, Florida 33602-5150

(813) 222-8222

Mr. Thomas C. MacDonald, Jr.

Shackleford, Farrior, Stalllngs &

Evans, P.A.

501 East Kennedy Blvd.-Suite 1400

Tampa, Florida 33601-3324

(813) 273-5000

Ms. Kay J. McGucken

Kay J. McGucken, P.A.

1320 East Ninth Avenue

Suite 210

Tampa, Florida 33605-3616

(813) 248-3782

The Hon. Stevan Northcutt

Second District Court of

Appeal

Post Office Box 327

Lakeland, FL 33802-0327

(941) 499-2290

-46-
205

Mr. Hugh Smith

Smith & Fuller, P.A.

101 East Kennedy Blvd.-Suite 1800

Tampa, Florida 33602-5148

(813) 221-7171

Mr. Thomas Steele

Fowler, White, Gillen, Boggs,

Villareal & Banker, P.A.

501 E. Kennedy Blvd.-Suite 1700

Tampa, Florida 33602

(813) 228-7411

Mr. Fran)c Strelec

Williams, Par)cer, Harris, Dietz &

Getzen, P.A.

P.O. Box 3258

Sarasota, Florida 34230-3258

(941) 366-4800.

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal

matters that did not involve litigation. Describe the

nature of your participation in this question, please

omit any information protected by the attorney-client

privilege (unless the privilege has been waived.)

1. I represented Mr. Kenneth Mullins in

State of Florida v. Mullins. Case Number 79-

5025-D, Circuit Court of the Thirteenth

Judicial Circuit of the State of Florida.

Mr. Mullins, along with a co-defendant by the

name of Mr. Brett Bachelor, was charged with

first-degree murder and robbery of an older

gentleman in the Hyde Par)c area of Tampa.

The co-defendant was arrested immediately

after the murder, went to trial, and was

convicted of second-degree murder, after

which he was sentenced to ten years in the

Florida State Prison. This co-defendant

always maintained his innocence.

Following the co-defendant's trial, my client

was arrested, and I was immediately retained

to represent his interests. After extensive

pre-trial discovery, I was able to convince

the State Attorney's office of Hillsborough

County that both my client and the co-

-47-
2M

defendant did not commit this crime. As a

result, the charges against my client and the

co-defendant were dismissed and the codefendant was freed after spending

approximately one year in prison.

A very interesting event just took place in

this case several months ago. Another person

allegedly confessed to committing this murder

and has been indicted by the Hillsborough

County grand jury for first-degree murder.

To my knowledge, the case has not been

disposed of.

The Assistant State Attorneys who handled

these cases for the State of Florida were Mr.

Thomas Fox, 401 East Kennedy Boulevard,

Tampa, Florida, 33602, (813) 228-9819; now

Circuit Judge Robert Sims, Hillsborough

County Courthouse Annex, Room 122, Tampa,

Florida, 33602, (813) 272-6874; and now

County Judge Walter Heinrich, Hillsborough

County Courthouse Annex, Room 123 (813) 272-

6841. The Assistant State Attorney who is

handling the case against the recentlycharged individual is Ms. Karen Cox,

Hillsborough County Courthouse Annex, 800

East Kennedy Boulevard, Fifth Floor, Tampa,

Florida, 33602, (813) 272-5400.

2. I represented the dean of students of a

local high school who was charged with

committing a sexual offense on a young boy

who was his "little brother" in the "Big

Brother-Little Brother" program. He was

immediately suspended from his position by

the Hillsborough County School Board. Quite

naturally, the case was the subject of

extensive publicity.

My client was adamant that he was innocent of

the charge. The child had made a similar

accusation against another individual which

proved to be unfounded. Accordingly, I

immediately undertook an extensive

preindictment investigation to establish his

innocence including the taking of numerous

sworn statements from relevant witnesses.

The case was presented to the Hillsborough

County grand jury for its determination of

-48-
207

whether there was probable cause to return an

indictment against my client. The State

Attorney's office of Hillsborough County

presented certain evidence that I had

uncovered to the grand jury for its

consideration. Additionally, my client,

without a grant of immunity, testified before

the grand jury. The grand jury declined to

indict my client and the charge against him

was dismissed. He was later reinstated to

his position by the school board and awarded

all of his back pay.

I later had the court file sealed pursuant to

Florida law so I cannot furnish a case

number. I do recall, however, that Mr. Lee

Atkinson, 2655 McCormick Drive, Clearwater,

Florida, 34617, (813) 799-2882, was one of

the assistant state attorneys assigned to the

case.

3. I represented Mr. Allan Brown in the case

of Independent Bank of Tampa v. Brown. Case

Number 82-8533-H, Circuit Court of the

Thirteenth Judicial Circuit of the State of

Florida. Mr. Brown had been taken into

custody pursuant to a Writ of Ne Exeat. The

facts of the case were unique in that the

client was alleged to be in default as to an

unsecured bank loan in the principal sum of

approximately 3100,000. After I obtained the

release of my client from jail, I

counterclaimed against the bank for malicious

prosecution, false imprisonment, and abuse of

process. The basis of these claims was that

the bank had misused the Wric of Ne Exeat and

their actions in that regard amounted to

nothing more than having my client imprisoned

for owing a simple debt which is contrary to

Article 1, Section 11 of the Florida

Constitution. After negotiations with the

bank, it dismissed its claim against my

client and forgave the $100,000 debt. In

return, my client dismissed his claims

against the bank for the sum of $1.

The attorney for the bank was Mr. Samuel

Mandelbaum, 712 South Oregon Avenue, Tampa,

Florida 33606, (813) 222-7500.

-49-
4. I am frequently called upon to lecture at

continuing legal education seminars. Over

the past several years I have lectured at

educational events sponsored by The Florida

Bar, the Hillsborough County Bar Association,

the Young Lawyers Section of the Hillsborough

County Bar Association, the Hillsborough

County Criminal Defense Lawyers Association,

the Pinellas County Criminal Defense Lawyers

Association, the St. Petersburg Bar

Association, the Academy of Florida Trial

Lawyers, Stetson University College of Law,

The American Judicature Society, the Defense

Research and Trial Lawyers Association, the

Judicial Assistants Association of Florida,

and the Second District Court of Appeal. I

have also judged "Moot Court" competitions

for Stetson University College of Law.

Finally, I have also participated in —

community relations forums sponsored by the

University of South Florida and the City of

Tampa and have spoken to elementary, high

school, and college students about the role

of the judiciary in our society.

5. Finally, I would like to emphasize

another aspect of my background which I

believe reflects favorably on my candidacy

for United States District Judge. Since May

of 1992, Senators Connie Mack and Bob Graham

have impanelled Federal Judicial Nominating

Commissions to consider the qualifications of

applicants for vacancies on the United States

District Court, Middle District of Florida.

I am honored to have been the only applicant

recommended by each of the Commissions to

Senators Mack and Graham as being qualified

to be a United States District Judge.

-50-
209

II. FIHAMCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated

receipts from deferred income arrangements, stock,

options, uncompleted contracts and other future

benefits which you expect to derive from previous

business relationships, professional services, firm

memberships, former employers, clients, or customers.

Please describe the arrangements you have made to be

compensated in the future for any financial or business

interest.

Only two categories of this question apply to

me--deferred income arrangements and

retirement benefits.

Deferred Income Arrangement

Beginning in July of 1987, after becoming a

state-court judge, I have deferred $100 per

month from my state salary under the State of

Florida Deferred Compensation Plan

administered by Security First Life Insurance

Company. According to the latest account

statement issued September 30, 1996, the

annuity value is $14,983.86, the lump sum

retirement value is $14,691.29, the lump sum

termination value is $14,656.33, and the lump

sum transfer value is $14,656.33. Withdrawal

from the Plan is limited to the following

circumstances: retirement, termination of

employment, total and permanent disability

lasting at least six months, death, or

unforeseeable emergency. Assuming I am

confirmed as a United States District Judge,

I would have the option of obtaining this

money under the category of "termination of

employment." I have not yet decided whether

I would pursue that option or leave the money

in the account until I retire.

Retirement Benefits

Since becoming a state-court judge in January

of 1987, I have been a member of the Elected

State and County Officers' Class of the

Florida Retirement System. Retirement

contributions to the system are made solely

by the state of Florida on behalf of members

of the class based on a certain percentage of

-51-
210

a class member's monthly salary. Vesting for

retirement benefits occurs after 8 years of

continuous service, a requirement I have

fulfilled. Assuming I am confirmed as a

United States District Judge, I would have

two options—take early retirement and

receive reduced benefits or wait until age 62

to start drawing retirement at a higher rate.

I have not yet decided which option to

pursue.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas of concern. Identify the

categories of litigation and financial arrangements

that are likely to present potential conflicts-ofinterest during your initial service in the position to

which you have been nominated.

As a state-court judge, I have adhered to a

basic philosophy--always avoid even the

appearance of impropriety. I will continue

to adhere to this philosophy if I become a

United States District Judge. That is, once

I become personally aware of a potential

conflict of interest, either on my own or

through any source, I will immediately bring

it to the attention of all parties and, if

the conflict is of such a nature that my

continued involvement in the case manifests

even the appearance of impropriety, I will

recuse myself from the case.

I know of no specific category of litigation

that may present a conflict of interest. As

to financial arrangements, I do have a

partnership interest with other attorneys in

a law office building. However, since

becoming a state judge, I have always recused

myself from presiding over cases in which

these attorneys were involved. I will

continue to follow this practice if I am

ultimately confirmed as a United States

District Judge.

Additionally, I have several relatives who

practice law in Tampa, Florida. Once again,

since becoming a state judge, I have always

recused myself from presiding over cases in

which these attorneys are involved. I will

-52-
211

continue this practice if ultimately

confirmed as a United States District Judge.

Finally, I will adhere strictly to the

standards imposed by the Codes of Conduct for

United States Judges and other rules of the

Judicial Conference of the United States, as

well as all statutory provisions, governing

disqualification or recusal.

Do you have any plans, commitments, or agreements to

pursue outside employment, with or without

compensation, during your service with the court? If

so, explain.

No.

List sources and amounts of all income received during

the calendar year preceding your nomination and for the

current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents,

honoraria, and other items exceeding $500 or more (If

you prefer to do so, copies of the financial disclosure

report, requested by the Ethics in Government Act of

1978, may be substituted here.)

See attached form AO-10 which immediately follows

this part.

Please complete the attached financial net worth

statement in detail (Add schedules as called for).

See attached financial net worth statement which

immediately follows this part.

Have you ever held a position or played a role in a

political campaign? If so, please identify the

particulars of the campaign, including the candidate,

dates of the campaign, your title and responsibilities.

No.

-53-
812

Jgry FINANCIAL DISCIDSURE REPOKT

NOMIMATION

1. parMH llipertfna (LMt IWM, firat, tMUt inltlil)

LAZZARA, RICHARD A.

2. court or Orfwiintton

D.S.D.C. Florida

3. Data of Ivan

01/07 /97

U.S. District Court Judge

5. •afort Type ttt>»<k IpprapriM* typ«)

Initial tenMl fiimi

t. fkmrtOv Mrlad

01/01/9$ - 01/01/97

7. Oii^iiii or oefica MdrMs

801 E. THlgga Street, 1600

Tampa, FL 33602

Rwlnlna office Data

IMIXJRTAhn'NOTES: The mmukiuKcoav>uqriiigUiBfonnmi>HbtraUci»ed. Compfele aJl |MIU,

cfaecUog tile NONE box for each Hctioowlicre you have 00 reporubletiifarauljoa. Sigo on Utst page.

L POSITIONS. (Reportii^mdivtdualcialy-.icepp. 9-13ofbttlruc(ioas.)

POSITION NAME OF ORCAMIZATION/KMTITT n (No rqxirtabic pocilioDs)

Custodian

Trustee

Damon Lazzara-Florida Gift to Minor's Act

Damon Lazzara Trust

II. AGREEMENTS. (Repoctiog iodividiul only, tee pp. 14-17 of Instructiom.)

n VOMB (No reportable agreemeats)

HI. NON-INVESTMENT INCOME. (Repaniiigiodividiialaiidipoiiic;iccpp. IS-ZSoflnilniclion.)

DATE

n

SOURCE AND TYPE

(No reporuble noa-invutmeol iDcoaie)

1S35-

I99i

ms-s*

state of Florida-Judicial Salary

State of Florida-Judicial Salarv

University o£ South Florida IS\

S 104382 Q9

S 110627 00

S 0 00

s

s
213

LAZIARA, RICHARD A. 01/07/97

IV. REIMBURSEMENTS and GIFTS-tru^>(xuin>.lodgia(. rood, e

(ladudcs l^MC to ipooe ud dqxndeal cUdrca; mc Ibe paruitbeticals '(S)* ud '(DC)* to indicale repoctaMc

mabmnomt aad gifii receawed by spouic aad dependcal rhiHrrn. respectively. Sec pp. 26.29 ot iMtradioiu.)

SOORCB DESCRIPTIOH D MOVE (NosachreportaNcreiBriMuieoKaUorgifU)

tenet Bxeapt

OTHER GIFTS. (Iidudcs tboM lo ipotuc and depcodeM childtca; UK the pwcnllMicak '(S)' ind '(DC)' lo

iadinlr otker giAi reccncd by ipoiHe ind depcodcm duldreo, respectively. See pp. 30-33 at lutnictioos.)

?OUBgE DESCRIPTIOM VftHJB

RMR (No inch rcpoftable gifts)

g»ei»pt Exenpt $ 0.00

D

1

$_

$_

4

$_

VL LIABILITIES. (ladodesdloie of ipoueud dependent chi]drea;ifidicatewbcrcappliaMc.pcnoarcspoaaiUc

fcr Kabilily by using Uie parenthetical '(S)' for separate liability of the spouse. *(J)' for joint liability of

reporting individBal aad spouse, and '(DC)' fof habdity of a dependent child. Sec pp. 34-36 of Instructions.)

CREDITOR DESCRIPTIOH VAfcUE TOPE* D MSB (No repoctahlc liabiBlies)

Barnett Bank of Florida Wprtqaq^ 9n l«w <?»ic? in Ta)np». ft.

.mmam,: ii^^c.^i.^ 6:l&?ffl,--'K:888,o<» k:IB?*°!J-;BSiS&o "•"»."""•«>.'«»

45-964 98-8
214

riaUKIAI. OISCLOSIMB UPORT

Has* of ficion R«port4ng

LAZEARA, RICHARD A.

tol« of Uwport

OI/O7/97

VIL Page 1 INVESTMENTS ud TRUSTS - incorai:. nhic, InBUCtions (Indiidei IhoK of ipailK

•od dependeal duldrco. Sec pp. 77-54 of luuuctioni.)

(?!star„j-Ci:.*s».. '• #3^ •^^

TrvtMCtlons durfn« reparttng pwiod

(1) «) <i) (2)

"•JO"

If not onopt froa dltcloMiro |

4

<S)

trflKacTlanl

""Ifla^rosF-*"

' ^•Ut,'Si,.v^.'fart/M/« IntcTMl e>.«t

' ^•?-°<fr«!¥..:s?.'.i'i"Wfi./« Int«r«it bo^

' "CToaf'fOT,%^"r' Nont E<Mpt

' "«3JTlii'i,'*S?!!3fJf,p, •Mt bavt

' '^r^'i','ff!S)'4^<„l 7/Z3/W. None pi £••.!«

' '^'p'T.'L'ui.yi'.'r-' lM«r»»t txoopt

7 MtlonalMnk (IIA), Taapa, a IntarMt Cxo^it

8 PMtatrtcMi L1f« (IRA> tWw lnt«r«at Eiivt

9 N»1an«lMnk (IU> <l> Ta^a, lnt«r«»t utmt

10 P^raiy^1g»^Uf^<IU) (S), Intarnt E««opt

" "£:;.%^ HfSi:rfsfk. ..Y. Interval e»wt

12 SUM^t Schools crodit union InterMt tio«>t

" "'^/(fliSir ft- '•"' ""'"

IntvTMt nav<

"•"SffrvffaWcsr-"""' Dividend C><v<

" •iwrsiSr'^L''-" """ = Interest bavl

16

17

IS

' \^srtLV%Vai Kfl«?88i''f,'BJ,ooo mk?8Ji>?.Si88?ooo Kfi()J?W«,;S??8oo,ooo «efr,hS!n«88?oao

' mrcoWi. »> CI3l<i?88i°;o'n&,.o<» S«&>?8J,'?„'S?;888,«» k:SI?4°?;U°.i:886°88o '"•«" "«"•"»

' ittTcsra)"**^ SBfjofj. K8?Kf'-^ ••'•••"'" £«{t»a .•U«,/«H».
215

rmacuu. DISCLMOKB npom

AH* Of Nnon ••pBrtfflt

LAIZARA, RZCRARO A.

tat* of lipnrT

01/07/97

Vm. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate p«t of R<:)xin.)

lEBfi
816

rzaMMCixL DiscLOsan UPOKT lAZZABA, RICBARO A. 01/07/97

IX CERTIFICATION.

In coapllance with the provisions of 28 U.S.C. 455 and of Advisory Opinion

Ho. 57 of the Advisory Comnittee on Judicial Activities, and to the best o£ ny

knowledge at the time after reasonable inquiry, I did not perform any

adjudicatory function in any litigation during the period covered by this r*epoz~t

in which I, ny spouse^ or my minor or dependent children had a financial

Interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.

I certify that all the information given above (including information

pertaining to my spouse and minor or dependent children, if any) is accurate,

true, and complete to the best of my luiowledge and belief, and that any

Information not reported was withheld because it met applicable statutory

provisions permitting non-disclosure.

I further certify that earned income from outside employment and honoraria

and the acceptance of gifts which haveybeen reported are in compliance with the

provisions of 5 U.S.C. app. 7, section 501 et. seq., 5 U.S.C. 7353 and Judicial

Conference regulations.

Signature [>ate Jsnmry 7, 1997

NOTE: AKT INDIVIDUAL «H0 KNOWINSBf AND WILFULLY FALSIFIES OR FAILS TO Fit*

THIS REPORT MAT BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. 6,

SECTION 104).

FILING INSTRUCTIONS:

Hail signed original and 3 additional copies to:

Committee on Financial Disclosure

Administrative Office of the United States Courts

One Columbus Circle, N.E.

Suite 2-301

Washington, D.C. 20544
217

Part.netship 289, 000 00

TIAA (Annuity) e. 7 50 00 Total

Liabilities

ro4, 400 00

Tot4i assets 697, 900 00 Net north

Total

liabilities and

net worth

693,

897,

500

900

00

Contingent

LiAbilities

00 General Infomation

As endorser,

co«akec or 00

Are any assets

pledged? Add

schedule

NO

On leases or

contracts 00

Are you

defendant m

any suits or

legal actions

NO

L«9al claiAS

00

Have you ever

taken

benJtruptcy?

NO

Provision for

federal incoise

tax

00

Other special

debt 00
218

REAL BSTATK OWED/RKAL KASTACT MORTOMES OWED

1) RESIDENCE

Fair market value $198,000

First Mortgage due Barnett Bank

of Tampa 121,100

Home Equity Loan due Barnett Bank

of Jacksonville 10,900

2) OFFICE BUILDING (1/12 interest)

fair market value of interest S 91,200

liability on mortgage due

Barnett Bank of Tampa based 71,800

on interest

HllIiISTBP SICWMTIKS

1) L. O. C, Inc. $ 58,000

(Closed family corporation)

Lazzara Bulk Oil and Packaging, Inc. 58,000

(Closed family corporation)

2) Plaza Equipment Company

(Closed family corporation) 65,550

KQZB

I am currently the Trustee for my son Damon's trust (he is

19 years of age). The trust has $5,580 in a money market accoun-t

at the Suncoast Schools Federal Credit Union and $35,275 in a

certificate of deposit at the same institution. I also hold

shares of stock in The Southern Company for my son under the

Florida Gift to Minors Act. The current fair market value of the

stock is $51,085. I am also the beneficiary of two life

insurance policies on my son's life with Metropolitan Life and

Nationwide Mutual. The cash value of the Metropolitan policy is

$8,700. The cash value of the Nationwide policy is $1,600. All

of these assets were derived from gifts made to my son over the

years by my parents. I am simply managing them for his benefit

until such time as he is financially mature enough to manage them

himself. Finally, my son has no debts.
219

FIHAWCIAXi STATEMEWT

NET WORTH

Provide a complete, current financial net worth statement which itemizes in

detail all assets (including bank accounts, real estate, securities, trusts,

investaents, and other financial holdings} all liabilities (including debts,

Bortgages, loans, and other financial obligations] of yourself, your spouse, and

other iiomedlate members of your household.

ASSETS LIABILITIES

Cash on hand

and in banks

(average

monthly

balance)

13, 000 00

Notes payable

to banks

(secured)

00

U.S. GOv't

securities--add

schedule

00

Notes payable

to banks

(unsecured)

00

Listed

securities—add

schedule

181. 550 00

Notes payable

to relatives 00

Accounts and

notes

receivable

00

Accounts and

bills duecredit cards

600 00

Due from friend

or relative 00

Unpaid income

tax 00

E>ue from others

00

Other unpaid

tax and

interest

00

Doubtfiil

00

Real estate

mortgage

payable-add

schedule

203, 800 00

Real estate

owned- add

schedule

289, 200 00

Chattel

mortgages and

other liens

payable

00

Real estate

mortgages

receivable

00

Other debtsitemize 00

Autos and other

personal

property

45, 000 00

Cash value

life insurance 11, 500 00

Other assetsItemize-- IRAs 45, 000 00

Security Life-

(Deferred Comp.

Plan)

14, 900 00
220

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American

Bar Association's Code of Professional Responsibility

calls for "every lawyer, regardless of professional

prominence or professional workload, to find some time

to participate in serving the disadvantaged." Describe

what you have done to fulfill these responsibilities,

listing specific instances and the amount of time

devoted to each.

Both as a lawyer and judge, I have

participated in various activities designed

to educate the community about the legal

profession and the judicial system. Such

activities have included service on Law Day

committees, speaking to members of civic

clubs and organizations, speaking to students

in a classroom setting, and serving on

community discussion panels. Furthermore,

although I never belonged to any organization

which provided pro bono legal work during my

years as a practicing attorney, I would from

time to time take cases for a minimal fee.

Additionally, I was on the court-appointed

list of attorneys in both the federal and

state systems. When selected from this list,

I would provide legal representation to

indigent criminal defendants for a reduced

fee.

The American Bar Associates Commentary to its Code of

Judicial Conduct states that it is inappropriate for a

judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you

belonged, to any organization which discriminates—

through either formal membership requirements or the

practical implementation of membership policies? If so,

list, with dates of memberships. What you have done to

try to change these policies.

I have never belonged to any organization

that discriminates on the basis of race, sex

or religion.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal

courts? If so, did it recommend your nomination?

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221

Please describe your experience in the entire judicial

selection process, from beginning to end (including all

circumstances which led to your nomination and

interviews in which you participated).

Senator Bob Graham has impanelled a Federal

Judicial Nominating Commission to recommend

candidates to him for nomination to the

United States District Courts located in the

State of Florida. This commission

recommended me to Senator Graham for

nomination to the United States District

Court, Middle District of Florida.

In connection with this process, I was

required to fill out and submit to each

commission member a detailed questionnaire

designed to elicit much the same information

that is asked for in this questionnaire.

After that, I was invited to be personally

interviewed by the commission members who

reside within the Middle District. During

the course of the interview, which lasted

approximately thirty minutes and was open to

the public, the commission members asked me

in-depth and far-ranging questions designed

to determine my qualifications to be a United

States District Judge. My name, along with

the names of two other well-qualified

individuals, was then submitted to Senator

Graham.

Senator Grctham then conducted personal

interviews of all three of the finalists,

after which he submitted his recommendation

to President Clinton that I be nominated for

this federal judgeship.

Following Senator Graham's recommendation to

the President, I completed and submitted

comprehensive background forms to the

Department of Justice, the American Bar

Association, and the Federal Bureau of

Investigation. I was then interviewed by

representatives of the Department of Justice,

the ABA, and the FBI and was the subject of

extensive background checks by all three of

these entities.

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222

Has anyone involved in the process of selecting you as

a judicial nominee discussed with you any specific

case, legal issue or question in a manner that could

reasonably be interpreted as asking how you would rule

on such case, issue, or question? If so, please

explain fully.

No.

Please discuss your views on the following criticism

involving "judicial activism."

The role of the Federal judiciary within the

Federal government, and within society

generally, has become the subject of

increasing controversy in recent years. It

has become the target of both popular and

academic criticism that alleges that the

judicial branch has usurped many of the

prerogatives of other branches and levels of

government.

Some of the characteristics of this "judicial

activism" have been said to include:

a. A tendency by the judiciary toward

problem-solution rather than 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

imposed itself upon other institutions in the

manner of an administrator with continuing

oversight responsibilities.

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223

As a state court judge for the past nine

years, I am keenly aware of the criticism

levied against not just federal judges but

also state judges regarding their tendency to

engage in "judicial activism" and to usurp

functions which, under the constitutional

doctrine of the separation of powers, are the

exclusive prerogatives of the executive and

legislative branches of government.

In my view, a judge's resolution of a case,

whether in the federal or state system, must

be accomplished in strict accord with the

relevant statutory provision that confers

jurisdiction to act in the case.

Accordingly, in resolving a case, a judge

must first determine whether jurisdiction has

been conferred by the legislature and whether

it has been properly invoked by the parties.

If jurisdiction or standing is lacking, the

judge is then obligated to terminate the

litigation because it is a fundamental

principle of our jurisprudence that without

jurisdiction conferred by law, a judge has

absolutely no authority to act.

Once a judge has determined that jurisdiction

has been legislatively conferred, it is

equally important that the judge, during the

dispute-resolution process, exercise that

jurisdictional authority in strict accord

with the legislative will embodied in the

statutory provision at issue. I am a firm

believer in the fundamental precepts that

legislative intent is the polestar by which a

judge must be guided in interpreting and

applying a statutory provision and that such

intent, as gleaned from a statute, is the law

which must be followed.

I also adhere to the basic proposition that

where the legislature has clearly manifested

its intent through plain and unambiguous

language, any further judicial construction

is not only inappropriate but unwarranted.

In my view, a judge who does not strictly

adhere to this fundamental principle becomes

in effect a "legislator" and risks expanding

the reach of a statute far beyond what the

legislature intended, to the detriment of the

-57-
cornerstone of our system of constitutional

government, the doctrine of the separation of

powers.

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225

I. BIOGRAPHICAL IMFORNATKHt

1

1. Full nane (include any former names used),

A. Richard Caputo*

Address: List current: place of residence and office

address(es).

Office: 387 Wyoming Avenue, P.O. Box 2059, Kingston,

PA, 18704-2059

3. Date and place of birth.

Hay 22, 1938, Portchester, New York

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 the former Rosemary Shaa. She Is not employed

outside the home.

Education: List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

Brown University, 1956-1960, A.B. Degree 1960

University of Pennsylvania Law School, 1960-1963,

LL.B. Degree 1963

Employment Record: List (by year) all business or 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.

My first name is Albert. Because my father's name was the

same, I have been called Richard since childhood, and have never

used my first name, with the exception of military service where

personnel forms called for the use of one's first name.
A. Richard Caputo

1960-1963 Summers: Worked as a truck driver/laborer for

R. J. Rich Construction Company, a residential developer

In the town of Rye, New York. The firm is no longer in

business.

August 1963-SeDtember 1964: Clerked in the law office

of Charles A. Shea, Jr., Esquire, 626 First Eastern

Bank Building, Wilkes-Barre, PA, 18701. I did research,

drafted pleadings, briefs and nenoranda.

September 1964-September 1967: Served in the United States

Air Force (JAG), Plattsburgh AFB, New York. I performed

as both trial and defense counsel in courts-martial, as

counsel in administrative elimination board hearings and

as a claims officer.

January-September 1968: Served as a public defender for

Luzerne County, Pennsylvania. I represented Indigent

defendants in criminal cases.

September 1968-Present: Principal In Shea, Shea & Caputo,

626 First Eastern Bank Building, Wilkes-Barre, PA, 18701

(1968-1982); 310 Bicentennial Building, Wilkes-Barre,

PA, 18701 (1982-October, 1994); 387 Wyoming Avenue,

Kingston, PA, 18704 (November, 1994-Present). I have

been engaged in the general practice of law with emphasis on construction and commercial litigation and

nultlemployer pension plan law.

1973-1992; Secretary and Director of Stegmaier Brewing Company,

Wilkes-Barre, Pennsylvania

1980-Present: Assistant Secretary, McCarthy Enterprises, Inc.,

Kingston, Pennsylvania

1985-Present: Partner in Druid Associates, an investment

partnership, which owns an interest In an apartment

building in Mamaroneck, New York (Carolyn Court), and

an interest in an apartment building in Fleetwood,

New York (William Street). I am a twenty-five (25%)

percent partner in Druid Associates.

1985-Present: Assistant Secretary of Bronsberg & Hughes

Pontiac, Inc., d/b/a Wyoming Valley Motors, Larksville,

Pennsylvania

1986-Present; Partner in Alafaya Associates, an Investment

partnership, which owns an Interest in an apartment

building in Fleetwood, New York (William Street). I am

a sixteen and two-thirds (16 2/3%) percent partner in

Alafaya Associates.

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227

A. Richard Caputo

1988-1992: Director of Unifax, Inc. (now US Foodservice, Inc.)f

Wilkes-Barre, Pennsylvania

1990-Present: Assistant Secretary of Middle Road Development

Corp., Kingston, Pennsylvania

1990-Present: Assistant Secretary of Magicorp, Inc.,

Kingston, Pennsylvania

1990-Present: Assistant Secretary of Plainco, Inc.,

Kingston, Pennsylvania

1990-Present: Assistant Secretary of Forsuns, Ltd.,

Kingston, Pennsylvania

1990-Present: Assistant Secretary of Robbins Door & Sash

Company, Kingston, Pennsylvania

1991-Present: Director and Vice-President of Maplemoor,

Inc., Lehman, Pennsylvania

1994-Present: Director and Secretary/Treasurer of The

Luzerne Foundation, a conmunity foundation,

Wilkes-Barre, Pennsylvania

Military Service: Have you had any military service? If so,

give particulars, including the dates, branch of service,

rank or rate, serial number and type of discharge received.

Yes.

September 2, 1964, through September 1, 1967, U.S. Air Force

(JAG) - First Lieutenant, promoted to Captain March 2, 1966

Inactive Reserve from September 2, 1967 through September 27,

1973

Serial Number: FV 3106149

Honorably Discharged September 27, 1973

Honors and Awards: List any scholarships, fellowships, honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

None.

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are or

have been a member and give the titles and dates of any

offices which you have held in such groups.

American Bar Association

Pennsylvania Bar Association

-3-
A. Richard Caputo

Federal Bar Association

Luzerne County Law & Library Association (Luzerne County

Bar Association)

Member, Committee on Unauthorized Practice

Member, Committee on Continuing Legal Education

Member, Third Circuit Judicial Conference

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:

Except for the American Bar Association, I am not aware

that I belong to any organization which is active in

lobbying before public bodies.

Other organizations to which I belong:

Huntsville Golf Club - Bylaws attached as Exhibit •

The Luzerne Foundation

Westmoreland Club - Bylaws attached as Exhibit "2"

Wyoming Valley Country Club - Bylaws attached as

Exhibit "3"

11. Court Admissions: List all courts in which you have been

admitted to practice, with dates of admission and lapses if

any such memberships lapsed. Please explain the reason for

any lapse erf membership. Give the same information for

administrative bodies which require special admission to

practice.

Supreme Court of the Commonwealth of Pennsylvania,

April 27, 1964

Luzerne County Court, February 27, 1964

United States District Court for the Middle District of

Pennsylvania, October 26, 1967

United States District Court for the Eastern District of

Pennsylvania, April 4, 1996

United States Court of Appeals for the Third Circuit,

March 19, 1970

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all 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.
229

A. Richard Caputo

13. Health: What is the present state of your health? List

the date of your last physical examination.

On October 16, 1993, I suffered a heart attack.

On October 25, 1993, I had coronary artery bypass surgery

which involved three (3) grafts. I was hospitalized at

Wilkes-Barre General Hospital, Wilkes-Barre, Pennsylvania

from October 16, 1993, to November 1, 1993. I began to work

in January, 1994, on a part-time basis and resumed full-time

practice in April, 1994. I have recovered and function as

well as before the episode and surgery.

Since October, 1993, examinations are ongoing every

three (3) to five (5) months.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

None.

15. Citations: If you are or have been a judge, provide:

(1) citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional issues, together with the citation to appellate court

rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the

opinions.

Not applicable.

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

1968-1974 - Member of Fairview Township Zoning Commission

Appointed by the Board of Supervisors of Fairview Township.

This was a non-paying position. I have never run for public

office.

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school

including:

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230

A. Richard Caputo

1. whether you served as clerk to a judge, and

If so, the name of the judge, the court, and

the dates of the period you were a clerk; No.

2. whether you practiced alone, and if so,

the addresses and dates; No.

3. the dates, name and addresses of law firms

or offices, companies or governmental agencies

with which you have been connected, and the

nature of your connection with each;

August 1963-Septerober 1964: Charles A. Shea, Jr., Esquire

626 First Eastern Bank Bldg., Wilkes-Barre,

Pennsylvania, 18701; research, drafting pleadings,

briefs and memoranda.

September igeil-September 1967; U.S. Air Force (JAG),

Plattsburgh AFB, New York; trial and defense counsel.

January-September 1968: Public Defender for Luzerne

County; represented indigent defendants in criminal

cases.

September 1967-present: Shea, Shea & Caputo, 626

First Eastern Bank Building, Wilkes-Barre, PA, 18701

until 1982; 310 Bicentennial Building, Wilkes-Barre,

PA, 18701 until October, 1994; and, 387 Wyoming Avenue,

Kingston, PA, 18704 from October, 1994 to present,

office principal; general practice with emphasis on

construction and commercial litigation and multiemployer

pension plan law.

b. 1. What has been the general character of your law

practice, dividing it into periods with dates,

if its character has changed over the years?

1963-4: Research, drafting of briefs, memoranda and

pleadings in civil matters

1964-7: Trial and defense counsel in six (6) General

Courts-martial (criminal), ten (10) Special Courtsmartial (criminal), and in excess of 20 Administrative

Elimination Review Hearings (civil)

1967-9: Criminal trials, extensive work on numerous

federal actions for collection of pension contributions,

research, memoranda, briefs, pleadings and motions

1970-Dresent: General practice, litigation and arbitration, multiemployer pension plan law, construction law

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231

A. Richard Caputo

2. Describe your typical former clients and nention

the areas, if any, in which you have

specialized.

Clients:

A multiemployer pension plan; several contractors;

numerous small businesses; and numerous individuals

and families from all walks of life.

Specialization:

General practice with emphasis on commercial litigation;

construction contract disputes; federal law relating to

multiemployer pension plans.

c. 1. Did you appear in court frequently,

occasionally, or not at all? If the frequency

of your appearances in court varied, describe

each such variance, giving dates.

For the past fifteen (15) years, I have appeared in

court six (6) to ten (10) times annually. From 1967

to 1980, I appeared in court more frequently, viz twelve

(12) to eighteen (18) times annually.

2. VRiat percentage of these appearances was in:

(a) federal courts; 70%

(b) state courts of record; 30%

(c) other courts. N/A

3. What percentage of your litigation was:

(a) civil; 99%

(b) criminal. 1%

4. State the number of cases in courts of record

you tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Approximately thirty-six (36). I approximate

because as a public defender I cannot recall the exact

number. I know I had at least ten (10) jury trials and

ten (10) non-jury trials. Therefore, I am certain of at

least sixteen (16) trials to verdict or judgment. In

all but two (2), I was sole or chief counsel.

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232

A. Richard Caputo

5. vniat percentage of these trials was:

(a) jury; 52.8%

(b) non-jury. 47.2%

18. Litigation: Describe the ten nost 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. Indentlfy 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. Lakeland School District Authority and Lakeland School

District v. The Sutter Corporation: Albert A. Hiller. t/a Phoenix

Roofing and Supplv Company and Albert Miller, individually;

Celotex Corporation: Bellante Clauss & Partners and Joseph

Bianca. Jr.• Civil Action No. 190 September Term 1979 (Lackawanna

County Court of Common Pleas).

In this case, I represented defendant. The Sutter

Corporation, a general contractor who contracted with plaintiffs

to build a new high school according to the plans and specifications of the defendant architects, Bellante Clauss & Partners and

Joseph Bianca, Jr. Sutter entered into a contract with

defendant, Albert A. Miller t/a Phoenix Roofing, to Install the

roof and defendant, Albert A. Hiller t/a Phoenix Roofing, purchased the roofing products from defendant, Celotex Corporation.

The school was constructed by Sutter, the Celotex built-up

roof installed by Miller, t/a Phoenix Roofing, and shortly

thereafter, and while students were in attendance, the roof began

to leak profusely. Ultimately, the roof failed, and it was

replaced by the plaintiffs with a rubber roof at a cost some

seven (7) times the amount of Butter's agreement with Miller, t/a

Phoenix Roofing.

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233

A. Richard Caputo

Action was instituted against the defendants on the theories

of breach of warranty and negligence. Defendant, Bianca, settled

isunedlately and secured a joint tortfeasor release. All other

defendants answered and cross claimed against each other.

The case was tried before a jury. The trial lasted three

(3) weeks, at the end of which the jury returned a verdict in

excess of $900,000.00 against Sutter (34%) Miller, t/a Phoenix

Roofing (33t), Celotex (32%) and Bianca (1%).

After an appeal was filed, the case was settled.

My involvement was as sole counsel for defendant, Sutter.

The trial preparation was extensive and involved four (4) experts

on built-up roofing. My preparation for their cross examinations

involved educating myself about a myriad of technical data concerning built-up roofing and the careful review of the reports of

the experts. The other preparation related to the engineering

involved in the parapet wall design and the connections of the

structural steel at the top of the building.

(a) 1982.

(b) The Honorable John J. Cottone

Judge of the Court of Common Pleas of Lackawanna County

(c) Counsel for defendant. Miller, t/a Phoenix Roofing

Company

Janes E. O'Brien, Sr., Esguire (deceased)

Kennedy, O'Brien, HcCormack & Mulcahey

Suite 700 Scranton Life Building

538 Spruce Street

Scranton, PA X8503-1808

(717) 342-0151

Counsel for defendant, Celotex Corporation

Christopher K. Walters, Esquire

Reed Smith Shaw & McClay

2500 One Liberty Place

Philadelphia, PA 19103-7301

(215) 851-8100
234

A. Richard Caputo

Counsel for defendant, Joseph Blanca, Jr.

Janes M. Howley, Esquire

Scanlon, Howley, Scanlon & Doherty

321 Spruce Street

Scranton, PA 18503

(717) 946-7651

Opposing counsel: James A. Kelly, Esquire

1500 South Webster Avenue

Scranton, PA 18501

(717) 346-1735

John Krisa, Esquire

Krisa, McDonough S Cosgrove

Route 6

Blakely, PA 18447

(717) 383-3205

2. Emmett Thomas. Nicholas J. Haydock and John D. Jillson.

Trustees of the Anthracite Health and Welfare Fund v. Blue Coal

Corporation. Civil Action No. 71-46 (M.D.Pa.), 355 F.Supp. 510

(M.D.Pa.), aff'd by judgment order sub nom., SavitsXv v. Blue

Coal Corp.. 485 F.2d 681 (3d Cir. 1973).

This was a case in which my client, the plaintiffs.

Trustees of the Anthracite Health and Welfare Fund, a

nultiemployer pension fund, brought suit against the defendant.

Blue Coal Corporation, to recover contributions alleged to be due

the plaintiffs. Defendant was obligated to make pension contributions to the plaintiffs on the basis of anthracite (coal) it

"produced for use or for sale."

Defendant had purchased discolored anthracite from a third

party which was not a party to the collective bargaining agreement which required parties such as the defendant to contribute a

per ton royalty contribution to plaintiffs on anthracite the

party "produced for use or for sale." The discolored coal had

been processed through the third party's preparation plant and

was saleable as coal, but because of its color, it would not

bring the price of non-discolored coal. After defendant purchased the coal, it ran it through its processing plant with its raw

coal, and as a result, blended it with a non-discolored product

thereby reducing its notoriety. The defendant did not pay plaintiffs a royalty on the quantity of purchased discolored coal

although it did pay on the finished coal with which it was

blended in the process mentioned above. Plaintiffs brought an

action seeking the royalty contributions on the discolored coal

on the theory it had been produced for use or sale by the

defendant.

-10-
A. Richard Caputo

The case was tried before a judge without a jury, and the

court determined that plaintiffs were not entitled to recover

because the subject coal had already been "produced for use or

for sale" before it arrived at defendant's plant. The court said

subsequent processing was irrelevant. I was sole counsel

for plaintiffs.

The case was appealed, and the decision was affirmed without

opinion.

This case is significant in that it set a precedent in the

anthracite industry with respect to the point at which

"production for use or sale" occurs and hence when more importantly in cases such as this, whether a contribution is due.

(a) 1972.

(b) The Honorable Malcolm Muir

Judge of the United States District Court for the

Middle District of Pennsylvania

(c) Opposing Counsel: James E. O'Brien, Sr., Esquire

(deceased)

Kennedy, O'Brien, McCormack S

Mulcahey

Suite 700 Scranton Life Building

538 Spruce Street

Scranton, PA 18503-1808

(717) 342-0151

3. H. Eugene Waaner v. Corey E. Waaner. et al.. Civil No. 27

of 1972 (Luzerne County Court of Common Pleas); No. 611 of 1974

(Supreme Court of Pennsylvania, Eastern District); 466 Pa. 532,

353 A.2d 819 (1976).

This was a suit by a father against his children to establish

his claim to ownership of the stoc)c of a corporation. He had,

through his attorney, formed a corporation which bought a piece

of real estate, its sole asset, and subsequently informed his

children that he was making a gift of the corporation to them.

He instructed his attorney to issue the stock certificates to the

children. This was never done in completed fashion, and a year

later, the father brought the suit and the children defended on

the basis that the complete gift had been made. I represented

the children and the case was tried in the Luzerne County Court

of Common Pleas in equity before The Honorable Bernard J.

Brofflinski, P.J. Judge Brominski found for my clients, the

Defendants. The Court en Banc overruled the Plaintiff's

exceptions. On appeal, the Pennsylvania Supreme Court affirmed.

The decision is reported in 466 Pa. 532, 353 A.2d 819 (1976).

-11-
236

A. Richard caputo

This case is significant because it presented the difficult

problems of having to represent children who were being sued by a

parent. These children were people who had, throughout their

childhood, and most of their adult lives, been extremely close to

their father. The series of cases involved in the complete scenario were the domestic breakup of the mother and father; the

dissolution of the family construction business; the upsetting

of liens of the Small Business Administration wrongfully extended

by the father to the assets of the family business as well as the

corporation, the subject of the foregoing suit; the accounting by

the father of the business of the family partnership

(construction business); and proceedings before the United States

Tax Court. The emotional problems occasioned by such litigation

were, of course, delicate. The handling of legal problems with

the undercurrent of family disharmony was significant in my

development as a lawyer.

(a) 1972-4.

(b) The Honorable Bernard J. Brominski (Trial Judge)

The Honorable Richard L. Bigelow (deceased)

The Honorable Robert J. Hourigan (deceased)

The Honorable Peter P. Olszewski (now a Judge of the

Superior Court of Pennsylvania)

The Honorable Bernard J. Podcasy

The Honorable Arthur D. Dalessandro

Luzerne County Court of Common Pleas en Banc

and Supreme Court of Pennsylvania, Eastern District:

(c) Opposing Counsel: William J. Taylor, Esquire

Taylor & Taylor

Suite 811

Ten Penn Center Plaza

1801 Market Street

Philadelphia, PA 19103

(215) 568-2644

Lawrence I. Washor, Esquire

> address unknown

4. Commonwealth of Pennsylvania v. Gregory Reap. No. 675 o£

1984, No. 676 of 1984 (Luzerne County Court of Common Pleas).

In this case, I represented a twenty-two (22) year old

defendant accused of aggravated assault and battery and simple

assault. The facts of the case are typical. Four (4) young men

were out drinking at a local singles bar. Vfhen they spoke to two

(2) young women, who they thought were unescorted, their spouses

suddenly appeared. Words ensued and all parties were asked to

leave. The controversy continued in the parking lot and onto the

highway, where threats and challenges resulted in the vehicles

-12-
237

A. Richard Caputo

stopping and a physical confrontation taking place. The defendant

and his three (3) male friends were pitted against the two (2)

husbands, each of whom was bigger and stronger than the defendant

and his friends. The defendant said that in order to protect one

(1) of his friends, he hit one (1) husband on the head with a

rock. This resulted in a serious head wound and other injuries.

The other husband was beaten about the head and face with fists.

The defendant and his friends suffered minor injuries.

The defendant and two (2) of his friends were tried

before a jury and convicted after four (4) days of trial. An

unsuccessful appeal followed, and the defendant, who had no prior

record, was sentenced to ten (10) years probation and ordered to

pay restitution.

I acted as chief trial counsel and prepared all defense

witnesses. I also prepared the cross examinations of the

prosecution witnesses, which involved the review of extensive

prior testimony.

(a) 1985.

(b) The Honorable Arthur D. Dalessandro

Judge of the Court of Common Pleas of Luzerne County

(c) Co-Counsel: Cynthia A. Smith, Esquire (now by

marriage Cynthia A. Muroski, Esquire)

Shea, Shea & Caputo

387 Wyoming Avenue

P.O. Box 2059

Kingston, PA 18704

(717) 288-5020

Opposing Counsel: Joseph G. Albert, Esquire

Albert, Dingle, Russin,

Sklarosky, Sleminski & Kamage

157 5 Wyoming Avenue

Forty Fort, PA 18704

(717) 283-1200

5. Leo R. Coroan v. Kingston Metal Specialties Co.• William

Dickson. Jr.. Robert Oeller and Jeff Dickson. Civil Action No.

352-C of 1987 (Luzerne County Court of Common Pleas).

I represented the plaintiff who brought suit against the

defendants to recover damages for cutting down some ninety (90)

mature trees on the plaintiff's property.

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238

A. Richard Caputo

Defendant, Kingston Metal Specialties, owned by the Diclcsons,

was a land owner which adjoined the plaintiff's property.

Defendants' property was higher than plaintiff's and was visible

in the winter from an expressway artery serving the largest concentration of population In the county. In the spring and summer,

the nature trees on plaintiff's land obscured the view of

defendants' business establishment from that road. The

defendants, claiming they did not know It was plaintiff's land,

entered the land and cut down some ninety (90) mature trees.

Because of the intentional acts of the defendants, the

plaintiff also sought punitive damages.

The case was tried before a jury. I acted as chief counsel.

The jury returned a verdict for the plaintiff for both damages

and punitive damages in the amount of $15,000.00 and $780.00,

respectively.

There were several damage theories viz dlmlnishment of value

of the real estate, loss of the value of the trees, replacement

cost as a measure of damages, damages for the trespass and

whether exemplary damages were appropriate. There were expert

witnesses on land value and tree replacement cost.

I mention this case because it Involved a dispute about

fundamental real property rights.

(a) 1990.

(b) The Honorable Bernard C. Bromlnski

Judge of the Court of Common Pleas of Luzerne

County

(c) Co-counsel: J. Thomas Shea, Esquire (deceased)

Shea, Shea & Caputo

Opposing Counsel: Charles A. Shaffer, Esquire

Mahler, Shaffer & Pugliese

541 Pierce Street

Kingston, PA 18704

(717) 283-1800

Counsel for Kingston Metal

Specialties Company and Dlcksons

Charles R. Coslett, Esquire

COSLETT & COSLETT

312 Wyoming Avenue

Kingston, PA 18704

(717) 288-4517

Counsel for Oeller

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A. Richard Caputo

6. Division Two. Inc. v. Linde Enterprises. Inc.. Civil

Action No. 86-0942 (M.D.Pa.).

In this case, I represented the plaintiff, Division Two,

Inc., a dewatering contractor from Denton, Maryland. Plaintiff

brought an action against the defendant, a Pennsylvania utilities

contractor, for the balance due on a contract to dewater a site

for the defendant. The defendant counterclaimed for defective

performance and failure to cure. The counterclaim exceeded the

claim ($75,000.00 to $126,481.00).

The case was tried before a jury in May, 1987. I acted as

sole counsel. My involvement was trial preparation as well

as the conduct of trial. Preparation included preparing

witnesses, reviewing and learning technical data regarding the

dewatering process, the design of the dewatering holes and the

preparation of cross examinations of defendant's witnesses

including an expert on dewatering. The case also involved a

parol evidence issue, since the defendant sought to introduce evidence at variance with the written agreement between the parties.

The parol evidence issue was resolved favorably by the court.

After a four (4) day trial, the jury returned a verdict in

favor of plaintiff of $56,250.00 and in favor of the defendant on

the counterclaim of $18,618.00. No appeal was taken.

(a) 1987.

(b) The Honorable William J. Nealon

Judge of the United States District Court for the Middle

District of Pennsylvania

(c) Opposing counsel: Raymond P. Wendolowski, Esquire

Koff, Wendolowski, Ferguson & Mangan

22 East Union Street

Wilkes-Barre, PA 18701

(717) 822-5600

7. Unictraphic-Color Corporation v. Mobil Oil Corporation and

Petrolc'ip ^i?r^ice Company. Civil Action No. 1675-C of 1985

(Luzerne County Court of Common Pleas)

This was a jury trial in which I acted as chief trial

counsel. The case involved a claim against Mobil Oil and its

distributor for breach of warranty, product liability and

negligence. The plaintiff was a printing company, and it introduced the Defendant Mobil's oil product into two (2) of its large

printing presses. The presses had thousands of moving parts

which required constant lubrication. The presses, which were of

superior quality in the industry, began to experience mechanical

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A. Richard Caputo

failures and breakdotms. In fact, the failures and breakdowns far

exceeded what could be considered normal experience. Further

complicating the process was the fact that the printed product

produced in the presses became inferior and unclear. When a tarlike substance was discovered in the oil in the presses, the

plaintiff sought to establish that Mobil oil was contaminated

with asphalt, and that the oil had been delivered in that

condition.

After a trial of approximately two (2) weeks and the

testimony of several witnesses, including two (2) expert witnesses in the field of spectography, an engineer who expressed

the opinion that the contiminated oil caused the catastrophic

failure of the presses, and an engineer who was an expert on the

maintenance of operation of these particular presses, the jury

returned a defense verdict.

My preparation in this case involved becoming familiar

with a voluminous maintenance manual for the presses, as well as

the cross examinations of the experts in spectography and the

maintenance and operation of the presses.

(a) 1988.

(b) The Honorable Gifford R. Cappellini

Judge of the Court of Common Pleas of Luzerne County

(c) Co-Counsel: Charles A. Shea, III, Esquire

Shea, Shea & Caputo

387 Wyoming Avenue

P.O. Box 2059

Kingston, PA 18704

(717) 288-5020

Opposing Counsel: Edward F. Mannino, Esquire

Hannino Griffith, P.C.

2400 One Commerce Square

Philadelphia, PA 19103

(215) 851-6300

Thomas J. Elliott, Esquire

Elliott, Reihner, Siedzikowski,

North & Egan, P.C.

Union Meeting Corporate Center V

92 5 Harvest Drive

Blue Bell, PA 19422

(215) 977-1000

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A. Richard Caputo

8. Interfacts America. Inc. v. Dr. Jalal B. Fatemi• Civil

Action No. 85-0609 (H.D.Pa.).

I was chief counsel for a plaintiff, private investigator,

which brought suit against a client for the payment of fees for

services performed. The defendant, while not denying the engagement, disputed the extent of services provided and contended

nothing was due.

The facts revealed the defendant engaged plaintiff to find

his children, whom he advised had been kidnapped by his wife with

whom he was having domestic difficulties. The plaintiff's people

performed investigative services such as surveillance, record

checking, personal inquiries and other related activities. The

performance of these services took them from Wilkes-Barre,

Pennsylvania, to Baltimore, Maryland, to Savannah, Georgia.

Unfortunately, the plaintiff never found the defendant's

children. The contract between the parties was oral and provided

for the payment of services at hourly rates regardless of whether

or not the children were found.

The case was tried before a jury which, after three (3) days

of trial, returned a verdict in favor of the plaintiff for

approximately fifty percent (50%) of the amount claimed.

My involvement in the case consisted of discovery, the review

of my client's billing records and time records, the preparation

of plaintiff's witnesses and the preparation of cross examinations of defendant and his witnesses.

(a) 1986.

(b) The Honorable William J. Nealon

Judge of the United States District Court for the

Middle District of Pennsylvania

(c) Opposing Counsel: Arthur L. Piccone, Esquire

Ronald V. Santora, Esquire

Hourigan, Kluger, Spohrer &

Quinn, P.C.

700 Mellon Bank Center

8 West Market Street

Wilkes-Barre, PA 18701

(717) 825-9401

9. The Sutter Corporation v. Girard Bank. Civil Action

No. 82-C of 1980, (Luzerne County Court of Common Pleas).

In this case, I represented the plaintiff, a general

contractor, who brought suit against Girard Bank to recover for

the balance due plaintiff for the construction of an office

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A. Richard Caputo

building in Wilkes-Barre, Pennsylvania. The plaintiff had a

construction agreement with the owner, who never paid the balance

due on the contract, and ultimately sought bankruptcy protection.

Defendant, Girard Bank, had entered into a loan agreement with

owner to provide owner the funds to construct the building. The

construction agreement was in the amount of $1,730,000.00 and the

loan agreement was for $1,600,000.00. The plaintiff was not a

party to the loan agreement. The defendant, Girard Bank, drafted

and caused the owner and the contractor to execute a document

providing for the assignment, at Girard's option, of the construction contract to Girard. All payments to plaintiff were

made by Girard; Girard failed to require owner to deposit

sufficient funds in excess of the loan commitment of

$1,600,000.00 to build the building, despite a requirement in the

loan agreement to do so; Girard contracted with plaintiff's subcontractors to do work on the building, bypassing the plaintiff's

contractual relationship with those subcontractors; and, Girard

failed to pay plaintiff, despite Girard's Inspecting architect's

commitment to pay for all work and change orders if the plaintiff

would complete the project.

Girard contended it had not triggered the assignment

because it had not given written notice it was doing so. Plaintiff argued that by its actions, Girard had indeed triggered the

assignment and stood in the shoes of the owner. Girard also contended its inspecting architect was not its agent and that it was

therefore not bound by what he said.

The case was tried before a jury in November, 1994. At the

conclusion of five (5) days of trial, the jury returned a verdict

for the plaintiff on all theories of liability, namely:

(a) Girard exercised its rights of assignment, took over the construction contract, and breached it by its failure to pay; (b)

the architect was the agent of Girard, promised payment, and

Girard was bound to pay; (c) Girard made material misrepresentations to plaintiff and was liable therefor; and, (d) Girard

intentionally interfered with the contractual relations between

the plaintiff and its subcontractors.

I acted as chief trial counsel. I prepared all witnesses for

the plaintiff and the cross examination for each defense witness.

Preparation involved becoming completely familiar with the operative

contracts, the job conference minutes, the payment requisitions

and correspondence.

The Superior Court of Pennsylvania reversed on the basis of

the lower court's denial of defendant's pretrial motion for non

pros. A petition for allowance of appeal to the Supreme Court of

Pennsylvania was denied.

(a) 1994.

(b) The Honorable Hugh F. Mundy

Judge of the Court of Common Pleas of Luzerne County

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A. Richard Caputo

(c) Co-counsel: Joseph A. Dente, Esquire

Shea, Shea & Caputo

387 Wyoming Avenue

P.O. Box 2059

Kingston, PA 18704

(717) 288-5020

Opposing Counsel: James C. Ingram, Esquire

Michael K. Sullivan, Esquire

Drinker, Biddle i Reath

134 5 Chestnut Street

Suite 1100

Philadelphia National Bank Bldg.

Philadelphia, PA 19107

(215) 988-2700

10. Frank J. Valvano and Pamela B. Valvano. his wife v.

Joseph E. Galardi and Kaye L. Galardi. his wife. Civil No. 48 of

1984 (Lackawanna County Court of Common Pleas), aff'd, Frank J.

Valvano and Pamela B. Valvano. his wife v. Joseph E. Galardi and

Kaye L. Galardi. his wife. 363 Pa.Super. 584, 526 A.2d 1216

(1987) .

In this case I was sole counsel representing a husband and

wife who were defendants in an action for specific performance of

an agreement to provide a right-of-way.

The defendants entered into an agreement to buy ten (10)

acres of thirty (30) which were owned by the plaintiffs. An

agreement of sale was prepared by a broker, signed by the defendants and submitted to plaintiffs who rejected the agreement and

offered an amendment to the agreement which was signed by the

plaintiffs and the male defendant only. The amendment provided

an option to the defendants to buy the remaining twenty (20)

acres within two (2) years, and it provided for a right-of-way to

plaintiffs in the event the option was not exercised. The transaction of purchase closed, the two (2) years expired, and the

defendants did not exercise the option. Thereafter, the defendants refused access to the plaintiffs, and the plaintiffs

brought an action for specific performance of the agreement and

the amendment to agreement. The female defendant testified she

was not aware of the amendment until two (2) years after closing.

The plaintiffs contended that the defendants performed the

amendment by closing the transaction and thereby acknowledging de

facto the terms of the agreement. They contended that part performance took the matter outside of the Statute of Frauds.

Defendant contended that the Statute of Frauds prevented the

action for specific performance of the right-of-way because the

female defendant never executed the agreement or the amendment to

the agreement.

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A. Richard Caputo

The trial judge, sitting without a jury, in equity, agreed

with the plaintiffs and entered a decree of specific perfomance.

The defendants appealed, and the lower court was affirmed.

The trial of this case presented issues of credibility as

well as issues of law. The court simply did not believe the

female defendant on the issue of her awareness of the amendment.

It was my contention that the failure of execution by a wife in

these circumstances violated the Statute of Frauds and did not

permit the forced performance of the amendment against her.

Neither court agreed with me.

(a) 1987.

(b) The Honorable James Hunley

Judge of the Court of Common Pleas of Lackawanna

County

(c) Opposing Counsel: William J. Oliver, Esquire

(deceased)

Oliver, Price and Rhodes

Suite 300 - 200 Penn Avenue

P.O. Box 1409

Scranton, PA 18501

(717) 343-6581

For further reference, I include the following list of judges

and counsel with whom I have been involved in various matters in

the past two (2) years:

1. Michael Beltrami, Esquire

1110 South Church Street

Hazleton, PA 18201

(717) 459-1491

2. Martin J. Cerullo, Esquire

CERULLO, DATTE & WALLBILLICH, P.C.

Second Street & Laurel Boulevard

P.O. Box 450

Pottsville, PA 17901

(717) 622-0767

3. Ruth S. Borland, Esquire

BORLAND t BORLAND

Suite 1100, PNC Bank Building

69 Public Square

Wilkes-Barre, PA 18701

(717) 822-3311

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A. Richard Caputo

4. Morton F. Daller, Esquire

DALLER, GREENBERG & DIETRICH

Valley Green Corporate Center

7111 Valley Green Road

Fort Washington, PA 19034

(215) 836-1882

5. Michael B. Sacks, Esquire

10 Fairfield Drive

Short Hills, NJ 07078

(215) 912-9679

6. George A. Spohrer, Esquire

400 Third Avenue

Suite 101

Kingston, PA 18704

(717) 287-1156

7. The Honorable Williain J. Nealon

United States District Court for

the Middle District of Pennsylvania

235 North Washington Street

P.O. Box 1148

Scranton, PA 18501

(717) 344-9619

8. The Honorable Edwin M. Kosik

United States District Court for

the Middle District of Pennsylvania

235 North Washington Street

P.O. Box 1148

Scranton, PA 18501

(717) 344-2124

9. The Honorable Thomas I. Vanaskie

United States District Court for

the Middle District of Pennsylvania

235 North Washington Street

P.O. Box 1148

Scranton, PA 18501

(717) 344-0125

10. The Honorable Correale F. Stevens

Luzerne County Court of Connon Pleas

200 North River Street

Wilkes-Barre, PA 18711

(717) 825-1723

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45-964 98-9
A. Richard Caputo

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant litigation

which did not progress to trial or legal 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.)

1. International Union of United Brewerv. Flour. Cereal.

Soft Drink and Distillery Workers of America. AFL-CIO. et al. v.

Steqmaier Brewing Company, et al. . Civil No. 70-556 (H.D.Pa.).

This case involved a suit by a decertified bargaining agent

of a bargaining unit comprised of two (2) local breweries to compel arbitration toward the termination of the employee benefit

plan theretofore established and maintained by the employers and

the decertified bargaining agent. I represented one (1) of the

breweries, the Stegmaier Brewing Company, which was also one (1)

of the defendants.

In addition to the facts revealed by the foregoing paragraph,

a new bargaining agent had been certified by the N.L.R.B. and on

the defendants' Motion for Summary Judgment the question was

whether the new bargaining agent should be substituted, as a

matter of law, on the panel of fund trustees in the place of the

decertified bargaining agent as the representative of the employees thereon within the meaning of $302 of the National Labor

Relations Act, as amended, 29 U.S.C. $186.

I argued on 'behalf of the defendant company and contended

that the newly certified union should be substituted in place of

the old union for purposes of representing the employee interests

on the governing body of the jointly administered pension trust

and that, consequently, the plaintiffs had no standing to compel

arbitration. This position was sustained and a summary judgment

was granted by Judge Muir. An appeal to the Third Circuit

followed, but subsequent to the submission of briefs and

appendices, the appeal was abandoned.

I view this case as significant because it concerned a point

of federal labor law not theretofore directly decided, viz: by

what authority could it be said that a newly certified bargaining

agent represented retired personnel as a trustee of a jointly

administered trust when the authority conferred on it as a bargaining agent under the At:t did not extend to retired personnel.

The resolution of the issue involved the determination of the

extent of that authority in the newly certified bargaining agent

under the federal common law of collective bargaining agreements,

not under federal statutory law.

(a) 1970-1.

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A. Richard Caputo

(b) The Honorable Malcolm Mulr

Judge of the United States District Court for the Middle

District of Pennsylvania

(c) Co-counsel: S. Keene Mitchell, Esquire (deceased)

Edward Darling, Esquire (deceased)

Darling, Mitchell & Schooley

Mellon Bank Center

Wilkes-Barre, PA 18701

(717) 822-8195

Allan M. Kluger, Esquire

Hourigan, Kluger, Spohrer t Quinn, P.C.

700 Mellon Bank Center

8 West Market Street

Wilkes-Barre, PA 18701

(717) 825-9401

Alan R. Howe, Esquire

530 Park Avenue

Unit 205

P.O. Box 34

Scotch Plains, NJ 07076

(908) 322-8184

Opposing Counsel: Bernard N. Katz, Esquire

Meranze and Katz

12th Floor

Lewis Tower Building

N.E. Corner 15th and Locust Street

Philadelphia, PA 19102-3977

(215) 546-4183

2. Commonwealth of PA v. Chas. S. Grucella. Criminal No.

1343 of 1967, (Luzerne County Court of Common Pleas).

Upon the election of a new District Attorney in Luzerne

County, the successful candidate hired seven (7) assistants,

three (3) of whom were immediate past members of the staff of the

Public Defender of Luzerne County. Since in excess of twentyfive (25) cases wherein the defendants were represented by the

Public Defender's Office were to be tried in the first term of

Criminal Court handled by the new District Attorney, the question

vas presented as to whether or not the foregoing facts did not

present such an appearance of a conflict of interest, if not an

actual conflict in some cases, sufficient to cause the disqualification of the entire District Attorney's staff from prosecuting

the cases where the defendants were represented by the Public

Defender.

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A. Richard Caputo

In advance of the coBunencement of the new term of Criminal

Court, we of the Public Defender's Office filed a motion to

disqualify the District Attorney and his staff from prosecuting any

cases against defendants represented by the Public Defender's

Office.

I argued the case for the Public Defender's Office before the

Court of Common Pleas of Luzerne County en Banc. The Court en

Banc ultimately decided the matter adversely to the position I

advanced on behalf of the Public Defender, two (2) members dissenting (3 to 2). An unsuccessful appeal later followed.

I view this case as significant because it presented a question of the public confidence in a public official on the one

hand and the integrity of the prosecutorial system as it related

to Public Defender clients, present and future, on the other.

(a) 1968.

(b) The Honorable Bernard C. Bromlnski

The Honorable Richard L. Bigelow (deceased)

The Honorable Jacob Schiffman (deceased)

The Honorable Robert J. Hourigan (deceased)

The Honorable Peter P. Olszewski (now a Judge of the

Superior Court of Pennsylvania)

Luzerne County Court of Conmon Pleas en Banc

(c) Co-counsel: William R. Keller, Esquire

1111 Mellon Bank Center

8 West Market Street

Wilkes-Barre, PA 18701

(717) 822-6138

Peter J. Webby, Esquire (deceased)

Northeastern Bank Building

Wilkes-Barre, PA 18701

(717) 824-3161

John E. O'Connor, Esquire

14 60 Wyoming Avenue

Forty Fort, PA 18704

(717) 288-6441

Joseph C. Giebus, Esquire

2 Oakwood Drive

Laflin, PA 18702

Opposing Counsel: The Honorable Patrick J. Toole

President Judge

Luzerne County Court of Common Pleas

Luzerne County Courthouse

200 North River Street

Wilkes-Barre, PA 18711

(717) 825-1667

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A. Richard Caputo

Blythe H. Evans, Jr., Esquire

1013 PNC Bank Building

69 Public Square

Wilkes-Barre, PA 18701

(717) 825-6601

S. Keene Mitchell, Esquire (deceased)

Darling, Mitchell & Schooley

Mellon Bank Center

Wilkes-Barre, PA 18701

(717) 822-8195

3. Frank J. Galoav and Francis P. Bonner. Trustees of the

Anthracite Health and Welfare Fund and the Anthracite Health

and Welfare Fund v. Gil-Pre Corporation. Civil No. 86-1363

(M.D.Pa. 1986); Frank J. Galqav and Francis P. Bonner. Trustees

of the Anthracite Health and Welfare Fund and the Anthracite

Health and Welfare Fund v. Gilberton Energy Corporation. Civil

No. 86-1364 (M.D.Pa. 1986); alt'd on other grounds, Frank J.

Galaav. et al. v. Gil-Pre Corporation. No. 88-5200 (3d Cir.

1988); aff'd on other grounds, Frank J. Galaay. et al. v.

Gilberton Energy Corporation. No. 88-5201 (3d Cir. 1988); aff'd

on other grounds, Galgay v. Gil-Pre Corp.. 864 F.2d 1018 (3d Cir.

1988) .

This began as a suit by the Anthracite Health and Welfare Fund (the "Fund"), the multiemployer pension plan which

involves retired anthracite miners and the anthracite industry

employers, against one (1) of the employers, Gil-Pre Corporation,

to recover pension fund contributions in the form of tonnage

royalties. The operative collective bargaining agreement provided that a royalty was due the Fund on all anthracite "produced

for use or for sale" by an anthracite operator or employer. The

quoted language had been in all industry collective bargaining

agreements dating back to 1946 and as of the time of the suit,

the number was fourteen (14). The entire industry was organized

until the late 1960's, and this language was taken to mean that

the royalty was due when the anthracite was prepared in a coal

breaker. It could have been when the coal was mined, but since

there was verified measurement (weighmasters) and sale to consumers after it was finished in the coal breaker, the parties

interpreted the key phrase to mean the royalty was due after the

raw mined coal was prepared in the coal breaker.

Two (2) things changed in the industry. First, the

industry was no longer completely organized after the late

19e0's. Indeed, more and more operators were nonunion to the

point where today over one-half of the total production of

anthracite is produced by nonunion operators. Second, technological advances in the utilization of anthracite permitted what

had been waste to be used as a fuel without the necessity of coal

breaker preparation. The employers sought to exclude production

from royalty on the basis that it did not go through the breaker

process. Gil-Pre was such a case.

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A. Richard caputo

Factually, Gil-Pre involved a substandard product that

had been screened and then sent on for further processing. The

United States District Court for the Middle District of Pennsylvania determined that the material was not subject to royalty

because it did not go through a coal breaker. Indeed, the District Court held that the words "produced for use or for sale"

exclusively meant run through a coal breaker. This would have

excluded material being sold and used as anthracite coal. We

appealed.

On appeal to the United States Court of Appeals for the

Third Circuit, the Court rejected the District Court's view of

the operative contract language and recognized that technology,

as well as the realities of a non-organized industry, compelled a

construction of the key language which required a royalty on

material made marketable for use as fuel, whether it went through

a breaker or not.

The significance of the case is manifest. The anthracite

pension plan now receives contributions on material which does

not pass through a coal breaker or other involved process. The

use of key language of the contract as language of exclusion has

lessened since this decision.

(a) 1986-8.

(b) The Honorable Richard P. Conaboy

Judge of the United States District Court for

the Middle District of Pennsylvania

The Honorable Walter K. Stapleton

The Honorable Carol Los Mansmann

Judges of the United States Court of Appeals

for the Third Circuit

The Honorable Clarkson S. Fisher

Judge of the United States District Court for

the District of New Jersey, sitting by designation

(c) Co-counsel: Cynthia A. Smith, Esquire, now by marriage

Cynthia A. Muroskl, Esquire

387 Wyoming Avenue

P.O. Box 2059

Kingston, PA 18704

(717) 288-5020

Opposing counsel: Howard A. Rosenthal, Esquire

Pellno & Lentz

32nd Floor

One Liberty Place

Philadelphia, PA 19103-7393

(215) 665-1540

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A. Richard Caputo

4. Frank J. Galgav and Francis P. Bonner. Trustees of the

Anthracite Health and Welfare Fund fPension Trust) and the

Anthracite Health and Welfare Fund (Pension Trustl v. Paanotti

Enterprises. Inc.. No. 3:CV-91-0999 (H.D.Pa.).

In this case, my client, the Trustees of the Anthracite

Health and Welfare Fund, instituted suit against Pagnotti

Enterprises, Inc. ("PEI") to recover the withdrawal liability of

Beltrami Enterprises, Inc. ("BEI") on the theory that PEI and BEI

were part of a controlled group of companies within the meaning of

29 U.S.C. S1301(b)(1).

The issue in the case was whether PEI ever became a member of

a controlled group with BEI.

While there never was a transfer of the stock of BEI to

PEI, the parties began negotiations in 1980 and arrived at an

"agreement in principle" in March, 1982. Thereafter, we alleged

and believe we established through discovery, that PEI exercised

such a degree of control of BEI for the next eight (8) years

that, for purposes of the statute, it controlled BEI. The

indicia of control upon which we relied included the control of

funds, accounts payable, field operations, labor relations,

sales, pricing, and environmental matters. Admitted funds in

excess of $34 Million passed from PEI to BEI between 1982

and 1988 in the form of "advances for coal" for which no coal was

delivered. Moreover, there were no notes or other evidence of

indebtedness regarding the funds advanced.

Cross motions for summary judgment were denied. The case was

called for trial in 1997, and after four (4) days of trial, the

case was settled.

The case is significant because we sought to establish that

substance should govern over form with regard to the enforcement

of the controlled group provisions of 29 U.S.C. S1301(b)(l). BEI

declared bankruptcy while owing the Fund $2,400,000 in withdrawal

liability. Although there was no executed agreement of purchase

between BEI and PEI, we attempted to show that the requisite

degree of control was extent by virtue of the conduct of the

parties.

(a) 1991-February, 1997.

(b) The Honorable Thomas I. Vanaskie

Judge of the United States District Court for the

Middle District of Pennsylvania

(c) Opposing Counsel: Robert D. Schaub, Esquire

Robert N. Gawlas, Jr., Esquire

Rosenn, Jenkins & Greenwald

15 South Franklin Street

Wilkes-Barre, PA 18711

(717) 826-5600

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A. Richard Caputo

5. Eimnett Thomas, et al. and Charles Nedd. et al. v.

Honevbrook Mines. Inc.. Civil Action No. 8499 (M.D.Pa.).

This was a suit by the trustees of an employee benefit fund

which had been established as a result of collective bargaining

between the United Mine Workers of America and the anthracite

coal operators against an operator which was delinquent in its

contributions to the fund. Jurisdiction was founded in S301 of the

Labor Management Relations Act, as amended, 29 U.S.C. S185. The

issue in the case was whether the trustees of a jointly administered multiemployer pension fund could maintain an action to

recover delinquent contributions in a federal district court pursuant to S301 supra absent diversity of citizenship between the

parties.

The matter was heard on the delinquent operator's motion to

dismiss before The Honorable William J. Nealon, United States

District Judge, and Judge Nealon sustained jurisdiction. This

was later affirmed by the United States Court of Appeals for the

Third Circuit.

This case is significant because it was, at the time, a case

of first impression in the United States.* Moreover, the trustees of this fund were, at the time of the institution of this

suit, confronted with an industry which was virtually, to an

operator, delinquent in its contributions to the fund. In

addition, the fund was in terrible financial condition and was

attempting to pay benefits to some 14,000 pensioned miners. The

prospect of suits in local courts was undesirable because of the

rumored and known coal interests of various county common pleas

judges. It was imperative that a more objective forum be

selected to resolve the issues of delinquencies. The federal

courts proved, with the passage of time and some thirty-seven

(37) additional cases, to have been that forum.

(a) 1964-71.

(b) The Honorable William J. Nealon

Judge of the United States District Court for the Middle

District of Pennsylvania

The passage of the Employee Income Retirement and Security Act

(ERISA) provided a statutory enforcement mechanism for such

actions after 1974; 29 U.S.C. §1132, 1145.

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A. Richard Caputo

(c) Co-counsel: Charles A. Shea, Jr., Esquire (deceased)

Shea, Shea & Caputo

626 First Eastern Bank Building

Hilkes-Barre, PA 18701

(717) 823-2151

The Honorable Thonas N. O'Neill, Jr.

Judge of the United States District Court

for the Eastern District of Pennsylvania

14613 U.S. Courthouse

Independence Hall West

601 Market Street

Philadelphia, PA 19106

(215) 597-2750

Opposing counsel: Theodore R. Laputka, Esquire (Deceased)

Laputka, Bayless, Ecker & Cohn

citizens Bank Building

Hazleton, PA 18201

(717) 455-4731

6. I serve on the Unauthorized Practice Committee of the

Luzeme County Bar Association. The Committee is currently

considering three (3) matters of alleged unauthorized practice.

I have attended one (1) meeting with regard to these natters, and

I will be involved in the final decision as to how to proceed

with respect to each case.

-29-
264

A. Richard caputo

II. FIHANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncompleted contracts and other future benefits which you

expect to derive from previous business relationships, professional services, firm memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

business interest.

I expect to collect the outstanding fees on matters on

which I have performed services up to the date I discontinue

practice. I do not expect to negotiate a buyout or deferred

income arrangement. I do anticipate that my interest in the

building in which I practice and which Charles A. Shea, III

and I own will be purchased on a market basis.

With respect to Druid Associates and Alafaya Associates,

I expect to continue to hold ray interests, which I understand

do not have an optimistic future.

I currently hold options to purchase 664 shares of

Rykoff-Sexton stock at a price of $10.54 per share.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in determining these areas of concern. Indentify 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.

Obviously, I would recuse myself from cases involving

former clients, entities in which I served as an officer

and/or director, and for the prescribed period, from any matterE

handled by members of my firm. I do have one (1) client, the

Anthracite Health and Welfare Fund (Pension Plan), which has

been active in federal litigation, and as I stated, I would

recuse myself from any matter in which it, or any other

client, was involved. I would, of course, follow the Code

of Judicial Conduct.

In the event any matter involved an entity in which the

Grace K. Shea Trust (my wife, children and I are beneficiaries)

my wife's IRA or my IRA had an interest, I would recuse myself.

I would use the same due diligence I use in my practice

to identify problem areas, and I would avoid any appearance of

impropriety by recusing myself.
255

A. Richard Caputo

3. Do you have any plans, conanltments, or agreenents to pursue

outside employment, with or without compensation, during your

service with the court? If so, explain.

No.

4. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

See attached Exhibit "4".

5. Please complete the attached financial net worth statement in

detail (Add schedules as called for).

See attached Exhibit "5".

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

campaign? If so, please identify the particulars of the

campaign, including the candidate, dates of the campaign,

your title and responsibilities.

In 1991, I was active in raising campaign funds for

The Honorable Hugh F. Hundy, Judge of the Court of Common

Pleas of Luzerne County, in his bid for election to a ten

(10) year term. I had no official title, but I was active

in seeking contributions from people who supported him.

-2-
256

A. Richard Caputo

III. 6ENERU. (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 tine devoted to each.

As essentially a practitioner in a moderately sized

community, I have and continue to perform legal services for

a number of people who cannot afford to pay, on a no fee for

service basis. I estimate that in the performance of this

type of service, I devote approximately twenty (20) hours per

year. In addition, I have volunteered and eus an active Pro

Bono Project Volunteer Attorney which project is sponsored

by the local bar association and Legal Services of

Northeastern Pennsylvania, Inc.

I also serve as Secretary, Treasurer and Director of The

Luzerne Foundation, a community foundation organized in 1994

to serve the communities of Luzerne County. This is the

first community foundation established in this geographical

area, and it involves approximately thirty (30) hours per

year.

The American Bar Association's Commentary to its Code of

of Judicial Conduct states that it is inappropriate for a

judge to hold membership in any organization that invidiously

discriminates on the basis of race, sex or religion. Do you

currently belong, or have you belonged, to any organization

which discriminates — through either formal membership

requirements or the practical implementation of membership

policies? If so, list, with dates of membership. What have

you done to try to change these policies?

I have been a member of the Wyoming Valley Country Club

since 1967. It is a golf club. Until April, 1995, it did not

offer voting membership to women. It did offer a "Ladies"

membership which involved dues which were less than those of a

full member, and which also involved limited access to the

course. In 1995, as a new member of the by-laws committee,

I, along with others, proposed the elimination of this inequity.

The new by-laws provided for full membership to women by way of

a conversion from "Ladies" membership to "Senior" member. No

initiation fee was required; only the payment of Senior member

dues. I drafted the set of changes to the by-laws which

accomplished this task and offered full membership to women.

These changes were adopted by the membership on April 22, 1995.
287

A. Richard Caputo

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).

Ves, the Federal Judicial Nominating Commission of

Pennsylvania. I do not know if it recommended my

nomination.

In the late spring of 1995, I was contacted by Congressman Paul Kanjorski, who said he was seeking qualified people

for the position of Judge of the United States District Court

for the Middle District of Pennsylvania. I indicated my

interest to him. I asked the Luzerne County Democratic Party

leader to write a letter to the President recommending me for

the position, and I also made the same request of the State

Democratic Party leader. In addition, I sought the support

of those who were aware of my abilities and whom I thought

could appropriately recommend me to the President for consideration as a nominee. In April of 1995, I was contacted by

White House counsel and asked to complete and return various

forms. I did so, and shortly thereafter, vetting began. I

was interviewed extensively by a deputy assistant attorney

general. Others such as clients, lawyers, judges and business associates reported to me that they had been interviewed

as well. In August of 1995, I was interviewed at the Justice

Department in Washington by representatives of the Office

of Policy Development. In October of 1995, I was interviewed

by the FBI, and in December, 1995, by the American Bar

Association.

On February 25, 1997, I was asked by the Office of

Policy Development at the Justice Department, to complete and

update various forms necessary to be further considered for

nomination. I did so. I was again interviewed by an FBI

agent in March, 1997. I was interviewed by the Federal

Judicial Nominating Commission of Pennsylvania on June 17, 1997.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be interpreted as asking how you would rule on such case, issue, or

question? If so, please explain fully.
A. Richard Caputo

5. Please discuss your views on the following criticism

involving "judicial activism.**

The role of the Federal judiciary within the Federal

government, and within society generally, has become the

subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism that

alleges that the judicial branch has usurped many of the 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.

Federal courts are courts of limited jurisdiction.

The judiciary determines matters in the context of a case or

controversy, considering standing and ripeness. It should

not, as the legislature is charged to do, make broad

pronouncements of policy. The federal judiciary is not a

popularly elected body, and it does not have the constitutional or statutory mandate to generally engage in solving

society's problems. That is left to the Congress, and to a

lesser extent, the President. The judiciary's function is to

decide cases or controversies, viz resolve grievances between

and among parties, and in the process, follow precedent,

interpret statutes and, when called upon, review legislation

to determine constitutionality. With respect to the latter,

we should be mindful that state and federal legislators and

state court judges also take the oath to uphold the

Constitution of the United States.

'3-
2S»

A. Richard Caputo

Moreover, with respect to following precedent, stare

decisis is a fundamental principle of the judicial process.

It provides predictability, and therefore stability to the

judicial system. A lower court judge has the responsibility

and obligation to follow the precedent of the relevant higher

courts, even if he or she disagrees with that higher court

decision.

The ability of any one branch of our government to check

or contain the usurpation of the function of any other is

manifest in our system. Indeed, this separation of powers and

checks and balances has been acknowledged as part of the

genius of our system. I believe the ability of the other

branches of our government to keep the judiciary in check

provides the ultimate remedy for the type of concerns

proposed in the criticisms I have attempted to address here.

-4-
260

A. Richard Caputo

hflcrddftk

hBc.cM EXHIBIT "1"

*> of 2/23/9S

Bylaws of the Huntsvllle Golf Club.

CONSTITUTION

OF THE

HUNTSVILLE GOLF CLUB

ARTICLE I

NAME AND PURPOSE

1.1 The organization shall be known as the HUNTSVILLE

GOLF CLUB (hereinafter "HGC" or the "Club"). The Club is a private golf club wholly owned by Maplemoor, Inc. which exists for

the purpose of fostering an interest in the game of golf and its

traditions.

ARTICLE II

MEMBERSHIP

2.1 Classes. The Membership shall consist of the

classes and number of Members permissible per class as follows:

(a) Regular 300

(b) Junior 100

(c) Associate See Paragraph 2.4

(d) Non-Resident 50

(e) Honorary 10

2.2 Regular Members. Only persons at least thirty-five

(35) years of age shall be eligible for Regular Membership.

Regular Members may enjoy all the privileges of the Club.

Regular Memberships are voting (as permitted by this

Constitution), nonproprietary, assessable, nontransferable and

terminate upon death.

2.3 Junior Members. Only persons at least twenty-one

(21) years of age who have not reached their thirty-fifth (35th)

birthday shall be eligible for Junior Membership. Junior Members

may enjoy all the privileges of the Club. All Junior Memberships
an

are nonproprietary, nonvoting, nonassessable, nontransferable and

terminate upon death. Sons and daughters of Regular Members in

good standing may have priority over other applicants for Junior

Memberships.

A Junior Member accepted to Membership on or before

December 31, 1994 shall purchase a Membership Bond according to

the schedule in Paragraph 5.2. However, a Junior Member shall be

permitted to make equal annual payments toward the cost of that

Membership Bond. The amount of the payments shall be determined

by dividing the total cost of the Membership Bond by the number

of years difference between the Junior Member's age at acceptance

to Membership and when that Junior Member will reach his thirtyfifth (35) birthday. A Junior Member purchasing on installments

shall be paid interest on the amount of the installment paid in

at the rate of interest provided in the Membership Bond. In the

event there is a default in a payment of an installment which

persists for thirty (30) days beyond the due date, the Junior

Member shall be deemed to have withdrawn from the Club, lose his

privileges of Membership, and be repaid the amount of the

installments already paid. The applicable initiation fee will be

payable as hereinafter set forth in Article V.

A Junior Member accepted to Membership after

December 31, 1994 shall pay a Membership Fee according to the

schedule in Paragraph 5.2. However, a Junior Member shall be

permitted to make equal annual payments toward the cost of that

Membership Fee. The amount of the payments shall be determined

by dividing the total cost of the Membership Fee by the number of

years difference between the Junior Member's age at acceptance to

Membership and when that Junior Member will reach his thirtyfifth (35th) birthday. In the event there is a default in a payment of an installment which persists for thirty (30) days beyond

the due date, the Junior Member shall be deemed to have withdrawn

from the Club, lose his privileges of Membership, and be repaid

the amount of the installments already paid. The applicable initiation fee will be payable as hereinafter set forth in Article

V.

A Junior Member's annual dues shall vary according to

his age as determined by the Board of Governors. Upon reaching

his thirty-fifth (35) birthday, a fully paid Junior Member shall

become a Regular Member and shall pay the same dues required to

be paid by Regular Members.
2.4 Associate Members. Only persons who are surviving

spouses of Regular, Junior or Non-Resident Members are eligible

for Associate Membership. Associate Members may enjoy all the

privileges of the Club, except as modified herein. Associate

Memberships are nonproprietary, nonvoting, nonassessable, nontransferable and terminate upon death, marriage or remarriage.

Those Associate Members who are the surviving spouses of

Non-Resident Members shall continue limited golfing privileges as

stated in Section 2.5.

2.5 Non-Resident Members. Only persons at least

twenty-one (21) years of age who, for at least nine (9) months a

year do not reside within forty (40) miles from Public Sguare in

Wilkes-Barre (hereinafter the "Club Area"), are eligible for

Non-Resident Membership. Non-Resident Members may enjoy all the

privileges of the Club, provided, however that they shall be

restricted to twenty (20) rounds of golf per year, including

those played by the Member and those played by other eligible

family members. Non-Resident Memberships are non-proprietary,

nonvoting, nonassessable, nontransferable, and terminate upon

death. Upon establishing legal residence in the Club Area, a

Non-Resident may, within ninety (90) days, make application to

the Club for Regular Membership.

If the Non-Resident Member becomes an Accepted Applicant

for Regular Membership on or before December 31, 1994, and there

are no Regular Memberships available to him, the name shall be

placed upon the waiting list for Accepted Applicants to Regular

Membership. Such Non-Resident Member may retain his status as a

Non-Resident Member until such time as he is accepted as a Regular Member, provided, however that such a Non-Resident Member may

continue his status only after depositing with the club an amount

equal to one-fourth (^) of the Membership Bond and initiation fee

required for the last Regular Membership accepted. Such deposit

shall be applied toward the Membership Bond and initiation fee

required to be purchased at the time of the acceptance. A NonResident Member in making payment in order to be accepted as a

Regular Member, shall receive credit toward the Regular Membership for the amount of such payments made for such Non-Resident

Membership, provided, however, said amount does not exceed the

amount of the Regular Membership transfer fee then established.

During the period of time said Non-Resident Member is on the

waiting list of Accepted Applicants for Regular Membership, he

shall pay Regular Memlaer dues and receive all privileges accorded

a Regular Member (except the right to vote) but he shall be

counted as a Non-Resident Member for the purpose of determining

the number of Non-Resident Members then outstanding. In the

event such Non-Resident Member fails to make such deposit or fails

-3-
to perform such acts as are required by this Constitution for

acceptance to Regular Membership after Regular Membership is made

available to him, his Non-Resident Membership together with all

Club privileges, shall thereupon terminate.

If the Non-Resident Member becomes an Accepted Applicant

for Regular Membership after December 31, 1994, and there are no

Regular Memberships available to him, the name shall be placed

upon the waiting list for Accepted Applicants to Regular

Membership. Such Non-Resident Member may retain his status as a

Non-Resident Member until such time as he is accepted as a Regular Member, provided, however that such a Non-Resident Member may

continue his status only after depositing with the Club an amount

equal to one-fourth (%) of the Membership Fee and initiation fee

required for the last Regular Membership accepted. Such deposit

shall be applied toward the Membership Fee and initiation fee

required to be paid at the time of the acceptance. A NonResident Member in making payment in order to be accepted as a

Regular Member, shall receive credit toward the Regular Membership for the amount of such payments made for such Non-Resident

Membership, provided, however, said amount does not exceed the

amount of the Regular Membership transfer fee then established.

During the period of time said Non-Resident Member is on the

waiting list of Accepted Applicants for Regular Membership, he

shall pay Regular Member dues and receive all privileges accorded

a Regular Member (except the right to vote) but he shall be

counted as a Non-Resident Member for the purpose of determining

the number of Non-Resident Members then outstanding. In the

event such Non-Resident Member fails to make such deposit or

fails to perform such acts as are required by this Constitution

for acceptance to Regular Membership after Regular Membership is

made available to him, his Non-Resident Membership together with

all Club privileges, shall thereupon terminate.

2.6 Honorary Members. Honorary Memberships may be

issued to worthy individuals upon the majority vote of the Board

of Governors. Honorary Members may enjoy all the privileges of

the Club. Honorary Memberships shall be nonproprietary, nonvoting, nonassessable, nontransferable and terminate upon death.

The term of an Honorary Membership shall be for one (1) year.

Upon the expiration of such term, the Board of Governors shall

review such Membership and in its sole discretion either renew

the Membership for an additional one (1) year term or determine

not to renew the Membership, whereupon the Membership shall

terminate.
264

2.7 Residence Requirement. All Members, regardless of

Membership classification, shall reside within the Commonwealth

of Pennsylvania.

2.8 Extension of Privileges. The Board may extend the

privileges of the Club to such other persons and upon such terms

as the Board may from time to time prescribe.

2.9 Privileges of the Club. As used in this

Constitution, "privileges of the Club" means the right to use the

facilities of the Club and to sponsor guests to use those facilities subject to any rules and regulations which may from time to

time be established by the Board.

2.10 Family Privileges - Persons Entitled. A Member's

spouse is entitled to the same privileges as the Member enjoys.

Members' unmarried children up to the age of twenty-one (21)

years or up to the age of twenty-four (24) years who are attending college on a full time basis and living either In the family

home or at or about the college campus during the college term

are entitled to the same privileges as their member parent.

Where a Member has living with him and dependent upon him for

financial support, an immediate member of his family other than

his spouse or children, the Board may grant such person such

privileges of the Club for such period and under such restrictions as the Board may. In its discretion, choose and provide

that any such privileges granted may be changed or withdrawn by

the Board at any time. The enjoyment of family privileges by any

person entitled thereto pursuant to this Section is subject to

such rules as may be adopted by the Board.

2.11 Admission Application. Subject to the general

provisions hereinafter set forth, the Board shall prescribe when

and the manner in which all applicants for Membership shall be

made. Each Applicant must initially be Invited to join by a

Regular Member, and his formal application for Membership must be

endorsed and sponsored by at least two (2) Regular Members of the

Club. Only Regular Members, with at least two (2) years tenure

as Regular Members, may sponsor new Applicants for Membership and

such sponsorship is limited to two (2) Applicants In any one (1)

calendar year.

Until such time as there are Regular Members of the Club

with at least two (2) years tenure as Regular Members, Applicants

may only be invited to join by the Board.
265

2.12 No Discrimination. Applicants shall be accepted

and consideration given for Membership in the Club without regard

to sex, race, creed or color.

2.13 Membership Conunittee. The Membership Committee

shall consist of the Board of Governors. The Membership

COBuaittee shall investigate each Applicant for Membership. The

records and proceedings of the Membership Committee shall be confidential and shall be subject to the inspection only by the

Board. The Membership Committee shall fix the time for the holding of its regular and special meetings and shall be subject to

rules and regulations as the Board may from time to time adopt

with respect to the Committee.

2.14 Election to Membership. Applicants shall be

elected to Membership only after they shall have received a

•ajority vote of acceptance from Members of the Membership

Committee in attendance at a regular meeting with a quorum. An

Applicant receiving such vote shall be known as an "Accepted

Applicant." The name of each Accepted Applicant shall be placed

upon a list of Accepted Applicants and the Membership Committee

shall thereafter promptly notify such Accepted Applicant.

2.15 (A) Acceptance to Membership on or before December 31. 1994. At the time of his election, an Accepted Applicant

shall:

(i) If a Membership vacancy exists, be accepted

to Membership upon payment in full to the Club for the applicable

Heabership Bond and initiation fee.

(ii) If no Membership vacancy exists, be accepted

to Membership, subject to any waiting list established pursuant

to Section 2.18, when (a) a Membership vacancy occurs by reason

of the death, resignation or surrender of a Membership, and

(b) full payment for the applicable Membership Bond and initiation fee has been received by the Club.

An Accepted Applicant who within seven (7) days after

receipt of notification of the availability of a Membership has

not made the above payment, shall have his name removed from the

waiting list which is established for Accepted Applicants, unless

the Board, for cause extends the time for payment.
266

(B) Acceptance to Membership after Decewber 31.

1994 • At the time of his election, an Accepted Applicant shall:

(i) If a Membership vacancy exists, be accepted

to Membership upon payment in full to the Club for the applicable

Membership Fee and initiation fee.

(ii) If no Membership vacancy exists, be accepted

to Membership, subject to any waiting list established pursuant

to Section 2.18, when (a) a Membership vacancy occurs by reason

of the death, resignation or surrender of a Membership, and

(b) full payment for the applicable Membership Fee and initiation fee has been received by the Club.

An Accepted Applicant who within seven (7) days after

receipt of notification of the availability of a Membership has

not made the above payment, shall have his name removed from the

waiting list which is established for Accepted Applicants, unless

the Board, for cause extends the time for payment.

2.16 (A) Membership Bond. The Board shall require the

purchase of a Membership Bond upon acceptance as a Regular, Junior or Non-Resident Member on or before December 31, 1994 as

hereinafter set forth in Article V.

(B) Membership Fee. The Board shall require the

payment of a Membership Fee upon acceptance as a Regular, Junior

or Non-Resident Member after December 31, 1994 as hereinafter set

forth in Article V.

2.17 Initiation Fee. The Board shall require a

nonrefundable initiation fee to be paid by Regular, Junior

and Non-Resident Members as hereinafter set forth in Article V.

2.18 Waiting List. The Board may establish a waiting

list for Accepted Applicants to whom no Membership is then available for issuance. The Board shall regulate all aspects of any

waiting list established, including, without limitation, priority

on the list and the obligations and privileges of and payments,

if any, to be made by persons on the list.
2.19 Resignations. Any Member may resign his

Membership; provided, however, such resignation may be refused by

the Board unless and until any indebtedness owing to the Club by

such Member has first been paid in full. Such resignation shall

be submitted in writing to the Board.

2.20 Leave of Absence. A leave of absence may be

granted in the discretion of the Board upon the showing of special circumstances.

2.21 Changes in Classes. The Board of Governors may

BaKe such changes in the number of classes of Membership or the

number of Members permissible per class as it may deem

appropriate.

ARTICLE III

GOVERNMENT

3.1 Governing Body. The management of the Club shall

be under the control of a governing body of nine (9) persons to

be known as the Board of Governors. Five (5) persons shall be

appointed to the Board by Maplemoor, Inc. (hereinafter "Appointed

Governors"). The remaining four (4) persons shall be elected by

the Members of the HGC as hereinafter set forth (hereinafter

"Elected Governors"). The Chairman of the Board of Governors

shall be appointed by Maplemoor, Inc.

3.2 Eligibility. Only Regular Members shall be eligible for election to the Board of Governors. Candidates shall be

nominated by the Nominating Committee appointed by the Board of

Governors. The Nominating Committee shall submit the names to

the Board of Governors at least thirty (30) days prior to an

annual meeting in which an election is to be held. The Board

shall post the list of names at the premises of the Club on a

bulletin board and mail a copy of same to each Regular Member at

least three (3) weeks prior to the annual meeting.

Any Regular Member in good standing may make additional

nominations of a Member or Members who are eligible for election

to the Board of Governors by submitting the name or names of the

candidates in writing at least fifteen (15) days prior to the

annual meeting to the Board of Governors which shall promptly
268

post such names on the bulletin board at the Club upon which

names of others for such office have been posted and shall mail a

list of such names to each Member at least ten (10) days prior to

the annual meeting.

3.3 Term. Elected Governors, shall be elected for a

term of three (3) years. An Elected Governor may be elected to

succeed himself once but may not serve more than two (2) consecutive terms unless his first service on the Board is to fill the

uhexpired term of another Member who has for any reason left the

Board. All Members of the Board shall assume their duties immediately upon election.

3.4 Elections. Elected Governors shall be elected by

the Regular Members at the annual meeting at which time the

Chairman of the Board shall appoint two (2) tellers who shall act

as inspectors and shall tabulate the vote.

Voting shall be by ballot and the four (4) candidates

receiving the highest number of votes shall be declared elected.

In the event of a tie vote between two (2) candidates, the Board

of Governors shall, at its next regular meeting, or at a special

meeting called for such purpose, decide which such candidates

shall be elected.

Elections shall be held every three (3) years at which

time all four (4) Elected Governors shall be chosen.

3.5 Vacancies. Vacancies in the Board of Governors

among the Elected Governors shall be filled by the Chairman of

the Board by appointment, subject to the confirmation of the

Board, and Members so appointed shall hold office until the next

regular election.

3.6 Quorum. Seven (7) Members, no less than four (4)

of whom shall be Appointed Governors shall constitute a quorun of the Board of Governors.

3.7 Rules and Regulations. The Board of Governors

shall, from time to time, make such rules and regulations as it

may deem necessary.

-9-
3.8 Appointment to Committees. The Chairman with the

approval of the Board of Governors shall appoint the Members of

all Conunittees provided for in this Constitution and shall likewise have power to establish and fill such other standing or special committees as may be deemed necessary to assist in the

nanagement of the club.

3.9 Power to Censure. Suspend or Expel. The Board of

Governors shall have power to censure, suspend or expel any

Member or Members, for nonpaynent of money owing to the Club or

for conduct prejudicial in their judgment to the good name or

welfare of the Club. Ten (10) days' notice in writing shall be

given to the Member against whom charges have been made, at which

time the Member may appear and be heard.

3.10 Interpretation of Constitution. The Board of

Governors shall be the final authority for the interpretation of

this Constitution and such rules and regulations as may be

enacted.

3.11 Meetings. The Board of Governors shall meet

at the Clubhouse or a designated location with such frequency as

they may determine. Special meetings of the Board may be called

by the Chairman upon his own motion and must be called by him

upon the written request of four (4) Members thereof.

3.12 Resignations. An Elected Governor who shall

absent himself without leave from three (3) consecutive regular

•eetings of the Board may be deemed by the Board of Governors to

have resigned therefrom.

3.13 Removal from Office. An Elected Governor may be

removed from office by the affirmative secret ballot of a majority of the Members of the Board of Governors present at a special

meeting of the Club called for such purpose, at which time such

Governor may appear and be heard.

3.14 Control and Management. The Board of Governors

shall have control and management of the affairs, funds and property of the Club, and shall authorize and control all

expenditures; they shall have full power, and it shall be their

duty to carry out the purposes of the Club according to law, and

as provided in the Constitution, and to make and enforce all

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270

rules and regulations which they may deem desirable for the welfare of the Club. The Board of Governors shall have full power

to make and levy assessments.

3.15 Proxy. No Member of the Board may cast any ballot

by proxy on any issue.

3.16 Legal Action. No legal action based upon any

claim shall be brought against the Club by any Member unless the

claim is first presented in writing to the Board of Governors

thirty (30) days prior thereto. The Member shall receive ten

(10) days' written notice of a hearing on such claim.

3.17 Membership Meetings. There shall be an annual

meeting of the Regular Membership on the first Saturday in April.

Special Meetings of the Regular Membership may be called by the

Board of Governors upon reasonable notice. Action by the Regular

Membership shall be upon majority vote of those Regular Members

in attendance at the Annual and/or Special Meeting. There shall

be no quorum required.

ARTICLE IV

COMMITTEES

4.1 The Standing Committees of the Club shall be:

Executive Committee Membership CoBunittee

Green and Grounds Committee Nominating Committee

Entertainment Committee Golf Committee

Planning Committee

4.2 Executive Committee. The Executive Committee shall

consist of the five (5) Appointed Governors, and the Chairman of

the Board of Governors shall be Chairman thereof. It shall convene at the call of the Chairman and may act on behalf of the

Board of Governors during the interim between Board meetings. In

so acting, it shall have the same authority and effect as the

-11-
271

Board itself; provided such actions shall be fully reported to

the Board of Governors and ratified by the body at its next succeeding meeting.

4.3 Green and Grounds Committee. The Committee shall

define and be solely responsible for all policy relative to care

and maintenance of the golf course and the purchase of supplies

and equipment relating thereto. The Committee shall review and

monitor the professional manner in which the Golf Course

Superintendent implements Committee and Club policy.

4.4 Entertainment Committee. The Committee shall

initiate, arrange, promote and supervise the execution of a program of social activities and entertainment, in cooperation with

the management and the scheduled affairs of other Committees.

Expenditures for music, performance, decorations and publicity

shall emanate from funds allocated to the account of this

Committee. The Entertainment Committee shall work with such

other Committees as necessary to implement its programs.

4.5 Planning Committee. The Committee shall study all

trends and club usage and shall develop and continually update a

long-range program of facilities and activities for the Club.

They shall advise the Board of Governors concerning all proposals

for alterations and improvements of the Club buildings, its

facilities and grounds and other properties. In general, the

Committee shall concern itself primarily with matters to be

accomplished two (2) or more years in the future.

4.6 Membership Committee. The Committee shall have

charge of all matters pertaining to Membership applications,

resignations, cancellations, suspensions and transfers in status;

and shall make recommendations in connection therewith to the

Board of Governors, who shall have full and final authority to

act with respect to such matters.

4.7 Nominating Committee. The Committee shall be

appointed by the Chairman of the Board of Governors and consist

of at least five (5) Members of the Club. It shall nominate candidates for the Board of Governors to succeed those whose term is

about to expire.

-12-
272

4.8 Golf Committee. The Committee shall have administrative charge of all play, including intra-Club and inter-Club

matches. It shall have the power to establish local rules concerning play which are not inconsistent with those of the United

States Golf Association. It shall recommend the selection and

use of an improved system of handicaps and shall exercise control

over the condition and awards of all golf trophies and other

prizes. It shall review and monitor the professional manner in

which the Golf Professional implements Committee and Club policy.

It shall regulate Greens, Caddy Fees and Cart Fees subject to the

approval of the Board of Governors.

4.9 Special Committees. In addition to the standing

Committees, the Chairman of the Board of Governors may from time

to time also create such other Committees as he may deem

necessary.

4.10 Advisory Committees. All Committees are advisory

in nature, and have no authority to act without express approval

of the Board of Governors. All Committees shall make written

reports to the Board of Governors as often as required.

ARTICLE V

FEES. DUES AND ASSESSMENTS

5.1 Business Year. The business year of the Club shall

be the calendar year.

5.2 Membership Bonds. Membership Fees and Initiation

Fees. Upon acceptance to Membership on or before December 31,

1994, each Member shall be required to purchase a Membership

bond. Upon acceptance to Membership after December 31, 1994,

each member shall be required to pay a Membership Fee. One-half

(%) of the Membership Fee shall be due upon acceptance to Membership and one-half (%) of the Membership shall be due six (6)

months after acceptance to Membership. The schedule of the cost

of the Membership Bonds and Membership Fees, as the case may be,

for each classification of Membership is as follows:

(a) Regular $15,000.00

(b) Junior $15,000.00

(See Paragraph 2.3)

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273

(c) Associate S -0-

(d) Non-Resident S 5,000.00

(e) Honorary S -0-

In addition to the purchase of the Membership Bond, all

Regular, Junior and Non-Resident Members shall pay a

nonrefundable initiation fee in such amounts as determined by the

Board of Governors.

No play on the course will be permitted until the initiation fee is paid, and in the event the initiation fee is not

paid within twenty (20) days of acceptance to Membership, the

Member shall be deemed to have withdrawn as a Member of the Club.

Except as otherwise noted herein, a new Applicant

accepted to Membership or a Member transferring to another classification for which the purchase of a Membership Bond or payment

of a Membership Fee and/or payment of an initiation fee is

required shall thereupon become obligated for payment of the Membership Bond or Membership Fee and/or initiation fee amount in

full. Except however, one-half (%) of any Membership Fee shall

be due upon acceptance to Membership or transfer to another classification of Membership and one-half (i;) shall be due six (6)

months after acceptance to Membership or transfer to another

classification of Membership. In the event that such payment is

not made within twenty (20) days of the date it becomes due, the

Member shall be deemed to have withdrawn as a Member of the Club.

Interest shall be paid on the Membership Bonds semiannually at the rate of interest provided in the Membership Bond.

Redemption shall occur within ninety (90) days of the date of the

Member's death or disability, regardless of the availability of a

new Member to take his place. A Member shall also be entitled to

receive full repayment of the face amount of the Membership Bond

within ninety (90) days of the termination of his Membership,

provided there is an available new Member to talce the place of

the withdrawing Member. If such replacement is not immediately

available, then redemptions shall be made on a first

withdrawn/first redeemed basis. Interest will be paid on the

Membership Bonds so long as they remain outstanding. The

Membership Bonds also have a call provision granting Maplemoor

the right, at any time, to redeem all or a portion of the

Membership Bonds on a ratable basis. In any and all events, the

Membership Bonds shall have a fixed maturity date of twenty (20)

-14-
274

years from the date of issue. The Membership Bonds will not be

amortized and there will be no return of principal to a

Membership Bondholder except under the terms for redemption which

are described above. The interest income on the Membership Bond

will be paid semi-annually. A form 1099 will be provided to the

Member in the amount of the Member's Membership Bond interest.

Repayment of the Membership Fee shall occur within

ninety (90) days of the date of the Member's death or disability,

regardless of the availability of a new Member to take his place.

A Member shall also be entitled to receive full repayment of the

Membership Fee within ninety (90) days of the termination of his

Membership, provided there is an available new Member to ta)ce the

place of the withdrawing Member. If such replacement is not

immediately available, then repayments shall be made on a first

withdrawn/first repaid basis.

5.3 Annual Dues. All Members of the Club shall pay

regular dues in such amounts and in such manner as determined by

the Board of Governors. Dues are payable in advance as follows:

one-half (%) is due the first day of January of each year and

one-half (%) is due the first day of May of each year. Dues

shall be prorated for the portion of the half year within whlcb

acceptance to Membership occurs.

5.4 Assessments. The Board of Governors nay levy

assessments against Regular Members as it deems proper for funds

required for Club purposes, provided that any assessment or

assessments which in the aggregate in any given year exceed fifty

percent (50%) of the annual dues for Regular Members shall not be

effective unless approved by a majority of the Regular Members in

attendance at a Membership meeting preceded by written notice to

all Regular Members mailed thirty (30) days prior to the

Membership meeting stating the intent to make such assessment,

the amount and purpose thereof, and the effective date and manner

of payment.

5.5 Nonpayment. Except as otherwise noted herein, the

Board of Governors shall cause to be posted by the 15th of each

month, the names of and the amounts due by Members who have

failed to pay within one (1) month after due any dues, fees,

assessments, penalties, fines or debts owed the Club. If such

sum and all debts accruing thereafter are not paid with fifteen

(15) days after such posting, the Board of Governors shall cause

to be sent to such delinquent Member a notice that if the debts

are not paid within ten (10) days after the mailing of the

-15-
275

notice, the Member will be suspended. If the debts are not paid

within such ten (10) day period, the Member is automatically suspended from all privileges of Membership unless the Board of

Governors accepts the Member's explanation as justifying the

delinquency in which case the Board may extend for not more than

thirty (30) days the time for payment of the debts and the effective date of suspension. Prior to expulsion, the Board of

Governors shall reinstate any Member so suspended upon payment of

all debts owed the Club, including any sums for dues or the debts

which would have accrued during the period of suspension. Any

Member who fails to pay for any Membership Bond, Membership Fees,

fees, dues, penalties, fines or other debts owed the Club for a

period of three (3) months, whether or not the Member has been

suspended shall be expelled at the next regular or special meeting of the Board of Governors. A Member whose Membership is suspended due to non-payment for the second time in one (1) fiscal

year, shall be expelled by the Board of Governors at its next

regular or special meeting.

ARTICLE VI

GUESTS

6.1 Guests Permitted. The use of the privileges of the

Club by guests of Members shall be as determined by the Board of

Governors.

6.2 Violation of Rules. Any guest or visitor violating

the Constitution, rules or regulations of the Club may, in the

discretion of the Board of Governors, be notified that he is no

longer able to enjoy the privileges of the Club.

ARTICLE VII

DISCIPLINE AND COMPLAINTS

7.1 Suspension and Expulsion. Any Member may be suspended or expelled for cause by the Board of Governors on the

complaint of a Member, or on its own initiative. Except as otherwise expressly provided in this Constitution, no such action

shall be taken before the Member shall have been furnished with a

written statement of the charges preferred against him, and shall

-16-
27S

have been given at least ten (10) days' notice of the tine when,

and the place where, the same will be considered by the Board.

Every such Member shall have the right to appear before the Board

and be heard in answer to the charges before final actions shall

be taken.

7.2 Complaints. All complaints by Members against

other Members for conduct in violation of Club rules or other

misconduct bearing on a Member's suitability for continued Membership in the Club, and complaints against employees of the Club

for whatever reason, shall be in writing, signed and dated by the

complainant, and delivered to the Board of Governors. The Board

may refer such complaints to appropriate Committees of the Club

for recommendations, and upon receipt of such recommendations

take appropriate action.

ARTICLE VIII

MISCELLANEOUS

8.1 Amendments. This Constitution and any rules and

regulations promulgated thereunder nay be amended by a majority

vote of the Board of Governors.

8.2 Notice. Any notice required to be given to the

Board of Governors of the Club shall be sent by United States

mail, postage prepaid addressed as follows:

Board of Governors

Huntsville Golf Club

14 7 Hayfield Road

Shavertown, PA 18708

8.3 Prohibition Against Solicitation Mailings. Members

shall not use or disclose to others for use the Membership roster

for the purpose of making mass or general mailings for business

or commercial purposes.

8.4 Gender. Any references in this Constitution to the

masculine gender shall be deemed to include the feminine and any

references to the feminine gender shall be deemed to include the

masculine.

8.5 Club Colors. The colors of the Huntsville Golf

Club shall be Hunter Green and Gold.

-17-
277

A. Richard Caputo

E3MIBIT "2"

Bylaws of the Westmoreland Club.

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A. Richard Caputo

EXHIBIT "3"

uvce.l

Bylaws of the Wyoming Valley Country Club.

CONSTITUTION AND BY-LAWS

The name of the organization shall be THE WYOMING VALLEY

COUNTRY CLUB.

ARTICLE II

OBJECT

This Club is organized to promote social recreation

among its Members through encouraging and stimulating an interest

in golf. It is a corporation which does not contemplate monetary

gain, incidental or otherwise, to its Members.

ARTICLE III

MEMBERSHIP CLASSIFICATIONS

SECTION I. .

The membership of the Club shall consist of the

following classifications:

A. SENIOR - All Members over the age of twentyfive (25) . Seniors shall be the only voting

Members, and the only ones entitled to hold office

in the Corporation. Senior Members in good standing

shall be the only Members considered to have equity

in the Club.

B. SPOUSE - The spouse of any Senior Member in good

standing, and the spouse of an Associate who married

prior to his or her twenty-sixth (26th) birthday.

If the Senior Member or Associate, and his or her

spouse shall be divorced, then the spouse shall no

longer be a Member of the Club.

C. ASSOCIATE - Sons or daughters of a Senior Member

between the ages of twenty-one (21) and twenty-five

(25) years of age. Upon marriage, prior to their

twenty-fifth (25th) birthday, he/she may apply for

Senior Membership.

45-964 98 - 11
810

Associate Members who have paid one (1) year's

associate dues must apply for Senior Membership

before reaching their twenty-sixth (26th) birthday.

If accepted, they automatically become Members

regardless of a waiting list and no initiation fee

will be charged.

D. JUNIOR - Children of Senior Members or children of

their spouse. They may have automatic golfing

privileges until their twenty-first (21st) birthday.

E. CLERGY - Open to ordained clergy of all faiths.

F. SOCIAL - Those Members entitled to the full

facilities of the Club but do not have golfing

privileges, except for one (1) round of eighteen

(18) holes per month, upon payment of the required

Green Fee.

G. NON-RESIDENT - Any Senior Member, in good standing,

moving his or her permanent residence beyond a

seventy-five (75) air-mile radius from the Clubhouse

may apply to the Board for transfer to this

category. Permanent residence to mean in this

instance year round living at the new address.

H. HONORARY - May be granted under extraordinary

circumstances for service to the Club, but is

limited to one (1) in any given year. Subject to

majority Board approval.

I. WIDOW/WIDOWER - The surviving spouse of a Senior

Member.

J. SPECIAL - All those previously Members under the

category heretofore known as LADIES who shall not

elect to become Senior Members, and who maintain

membership without interruption shall remain

Members in this classification.

SECTION II.

The Board of Governors, under the powers granted by

these By-laws, may limit the number of memberships available in

any of the classifications when they feel that it is in the best

interest of the Club to do so.
SECTION I.

311

ARTICLE IV

APPLICATION AND EJECTION

A. A Candidate for membership must first be proposed

by a Senior Member, in good standing, acting as the

Candidates' Sponsor. The Sponsor, by letter to

the Secretary of the Board, shall not only recommend

the Candidate, but also state his or her willingness

to orient his or her Candidate regarding course and

Club rules. Upon the acceptance of the Candidate,

in his or her letter, the Sponsor shall list three

(3) other references on behalf of his or her

Candidate; one (1) of whom shall be another Senior

Member in good standing.

B. The Secretary, upon receipt of the proposal, shall

immediately notify the Membership Chairman. The

Membership Committee shall then contact the four (4)

references as to the Candidates' financial

responsibility, character, integrity and any other

information the Committee may deem necessary. If

the Membership Committee finds that a Candidate is

not worthy of membership, the Chairman shall so

inform the Board.

C. Once a Candidate is screened, and recommended for

acceptance by the Membership Committee, he/she must

appear before the Board of Governors prior to

approval. Seven (7) Members shall constitute a

quorum for purpose of acceptance or rejection. Two

(2) negative votes by any Member of the Board will

reject the acceptance of any Candidate. If a

Candidate is rejected by the Board, he/she may not

reapply for membership for a period of two (2)

years. Upon approval by the Board, an accepted

Candidate's name shall be posted on the bulletin

board for a period of two (2) weeks for scrutiny by

the general membership.

D. Any Senior Member, in good standing, may write a

letter to the Secretary objecting to the admission

of any Candidate for membership. If two (2) or more

such letters are received, it will be necessary to

so inform the Sponsor of the Candidate; who, in

turn, shall have the right to appear before the
SECTION II.

312

Board to support his or her Candidate. The Board,

sitting as a Committee on Admissions, shall then

re-evaluate the Candidate and either accept or

reject the plea of the Sponsor. Two (2) negative

votes will reject the Candidate.

Once a Candidate has been screened, approved and

accepted for membership, his/her admission is

automatic, providing there is not a waiting list

for admission. In the event there is such a list,

the Candidate's name shall be placed on said list

in order of his/her date of application, until such

time as an opening in the classification is

available. However, this does not obligate the

Committee on Admissions to necessarily accept those

heading the waiting list in preference to applicants

who may have been placed on the waiting list at a

later date.

Upon admission, all fees such as initiation and the

pro-rated amount of the yearly dues must be paid

prior to the use of Club facilities.

All Candidates must be informed of their status as

to rejection, acceptance on a waiting list, or

admission within ninety (90) days of their date of

application.

A. The Board of Governors may transfer a Member from

one (1) membership classification to another

classification in the event of an age or residence

change by a said Member. Existing dues and initiation fees shall be changed as of the date the Board

makes this determination either on its own

authority, or at the request of the individual

Member.

B. The Board of Governors may declare any category of

membership of the club to be closed at any time,

when, in its discretion, it is in the best interest

of the club to do so.

C. At any time the membership is declared to be

closed, Candidates may be encouraged to apply for

membership and be placed on the waiting list until

such time as the membership shall be declared open.
813

SECTION I.

SECTION II.

ARTICLE V

RESIGNATION AND LEAVE OF ABSENCE

Any Member, in good standing, and, with no indebtedness to the Club, may resign. The resignation shall

be in writing, addressed to the Board of Governors,

and must be filed with the Treasurer to release the

Member from liability for dues. Any indebtedness

incurred for any phase of the Club operation prior

to the date of receiving said resignation at the

Club office will be considered a liability. All

Senior Members resigning or otherwise losing their

membership shall forfeit their equity in the Club.

Members who resign and who, at the time of resignation, were in good standing may be re-elected to

membership by the Board with payment of one-half (h)

of the then current initiation fee by the following

procedures outlined in Article IV.

A. Any Member, in good standing, with no indebtedness

to the Club, may request a leave of absence due to

illness of prolonged duration. The conditions for

granting a leave of absence will be the same as

those outlined above in Article V, Section I A on

resignation except the Member requesting leave shall

be carried on the roll as "on leave" and his/her

dues shall be suspended until the termination of

his/her illness or the Member requests, in writing,

reinstatement to active status.

B. The Board of Governors, at its discretion, may consider a leave of absence for a reason other than

illness if there are extenuating and unusual

circumstances surrounding such a request by a

Member.

c. In no case will leave be granted for more than one

(1) year. If more time is needed, a new request

must be submitted by the Member or someone designated to act on his/her behalf.

-5-
814

ARTICLE VI

SUSPENSION AND EXPULSION

SECTION I.

Any Member violating any rules of the Club or guilty of

any misconduct, and especially any Member whose conduct shall be

injurious to the character or interest of the Club, may receive a

Letter of Reprimand with a warning or be suspended or expelled by

the Board of Governors. No Member shall be suspended or

expelled without an opportunity to be heard. In the event the

Board agrees that suspension and/or expulsion is being

considered, the Member must be notified by certified mail that a

hearing will take place within ten (10) days of notice to

him/her. The notice will list the time, place, date and charges.

SECTION II.

If, after the hearing, the Board agrees to a suspension,

said suspension shall automatically be for a minimum of two (2)

weeks. Suspension will be valid when a majority of the Board

present so votes.

If the Board agrees to expulsion, it shall be valid when

a two-thirds (2/3) majority of the total Board so votes.

SECTION III.

All suspended or expelled Members shall be denied all

Club privileges and denied access to Club property.

Expelled Members shall be dropped from the rolls, and may

never again apply for membership to The Wyoming Valley Country Clut

and it shall be so recorded in the minutes of the Club.

ARTICLE VII

FEES AND DUES

SECTION I.

The Board of Governors shall have the power to determine

the annual dues and golf fees; to establish initiation fees; to

set assessment rates; and, to levy any charges it may deem necessary to maintain the financial stability of the Club.

-6-
816

SECTION II.

The fiscal year will be considered as the first of

October of the calendar year until the 30th of September of the

following calendar year.

A. The annual dues are payable on the first of

October, however, the amount due may be

pro-rated on a schedule approved by the Board

of Governors, except for new Members who shall

pay all fees as directed under Article IV,

Section I F of these By-laws.

B. Senior Member applicants accepted after July

1 pay half-year dues, plus full initiation

fees for that fiscal year.

SECTIOH III.

When the dues, or any other indebtedness to the Club,

remains unpaid, by a Member, for a period of twenty (20) days

following the month in which said indebtedness occurred, the Member shall be considered in arrears. The Treasurer shall then

send a second statement to the Member advising him or her that

the Member's name shall be posted unless the account is paid

within ten (10) d^ys from the date of such notice. At the end of

this ten (10) day period, the Member will then be in arrears for

thirty (30) days, and, if his/her debt is still unpaid, he or she

shall be posted by the Treasurer. ONCE THE MEMBER'S NAME IS

POSTED, HE OR SHE WILL BE CONSIDERED DELINQUENT AND SHALL BE

DENIED ALL PRIVILEGES OF CLUB MEMBERSHIP, INCLUDING ADMISSION TO

THE CLUB PROPERTY.

The Treasurer shall notify the Board of Governors when

Members are posted. When the indebtedness of a Member remains

unpaid for ten (10) more days after being posted, or a total of

forty (40) days following the month in which said indebtedness is

incurred, the Board of Governors shall then declare such membership to be forfeited, and the delinquent shall thereupon cease to

be a Member of the Club. Any member thus forfeiting a membership

may be considered for reinstatement upon payment of all arrears,

and requesting, in writing, that the Board of Governors reinstate

him or her. The individual concerned shall not become an active

Member until he or she is so advised that the request is granted.

A favorable vote by the Board of Governors present at any meeting

of the Board will be necessary for reinstatement.

-t-
316

When circumstances seem to justify such action, the

Board of Governors may authorize for non-payment of indebtedness

when said Member is known to be ill or absent from home.

ARTICLE VIII

SECTION I.

OFFICERS

The officers shall be a President, First and Second

Vice-presidents, Secretary, Treasurer (who will also

be the Finance Chairman), four (4) Governors, and

the respective chairmen of the Golf, Green, House

and Membership Committees provided for in Article X

of these By-laws, and these officers shall constitute the Board of Governors.

Quorum - At all meetings of the Board, the

majority of the Officers in office shall be necessary to constitute a quorum for the transaction of

business, and, the acts of a majority of the

officers present at a meeting at which there is a

quorum shall be the acts of the total Board of

Governors.

SECTION II.

In case of any office becoming vacant for any cause, the

Board of Governors shall fill the office by appointment for the

remainder of the term.

SECTION III.

Effective in fiscal year 1987/88 and thereafter, officers'

terns of office shall be as follows:

The President, First Vice-President and two (2) of

four (4) Governors shall be chosen at an annual

meeting and shall hold office for two (2) years.

The Second Vice-President, Secretary and Treasurer

shall be chosen at the annual meeting and shall hold

office for one (1) year.
317

SECTION IV.

Above officers shall be chosen at the annual meeting

by a majority of votes cast by the Senior Membership present and

by way of absentee ballots cast. Election need not be by ballot

except in cases where an opposing slate has been posted.

SECTION V.

The President, or in his/her absence, the First or Second Vice-President shall, at least thirty (30) days prior to the

annual meeting, appoint a comnittee of five (5) Members, not more

than two (2) of whom shall be officers of the Club, and the committee shall nominate a slate of candidates for all vacancies

about to occur. The proposed candidates will be posted on the

bulletin board at least twenty (20) days before the date of the

annual meeting. Any five (5) Senior Members may nominate other

candidates for the same offices, but the names of such candidates

must be posted on the bulletin board at least ten (10) days prior

to the annual meeting.

The names of the Senior Members placing the candidate's

name or names in nomination must be signed on the posting. No

Member shall be eligible to any office unless nominated and

posted as aforesaid.

The Secretary of the Club shall have ballots prepared

containing all the names so posted, and furnish the same to the

Members at the opening of the meeting when the election is to

ta)ce place. If there is no slate or candidates for office in

opposition to those candidates recommended by the nominating

committee, voting need not be by ballot.

The Secretary shall also have available a current list

of Senior Members, in good standing, all of whom shall be

entitled to one (1) vote.

If there is more than one (1) candidate for any office,

voting shall be by ballot. If voting by ballot, the President

shall appoint three (3) Judges of Election from the Senior

Membership. They, in turn, will name one (1) of their Members as

Chairman. None of the judges shall be candidates for office.

The judges shall tal(e all action necessary to ensure fairness to

all concerned, to tally the votes and announce the results of the

election to the membership.

-9-
818

A. When voting is by ballot, an Absentee Ballot

will be available in the office for any Senior

Member who cannot be present to vote on election

day.

B. Senior Members must sign for an official Absentee Ballot, seal and return the ballot prior to

election day in order for it to be placed in the

ballot box by the Chairman of the Election

Committee.

C. The number of Absentee Ballots placed in the

election box will be duly recorded in the Minutes of the Club.

D. Only Senior Members, in good standing, with no

indebtedness to the Club, who have been Members

for two (2) years, are eligible to vote.

ARTICLE IX

DUTIES OF OFFICERS

SECTION I.

PRESIDENT - The President shall be the chief executive

officer of the Club. The President shall preside at all meetings

of the Board of Governors and at all meetings of the general

membership. The President shall, with the Secretary, sign all

written contracts and obligations of the Club and perform such

other duties as may be required by these By-laws or the Board of

Governors. The President shall appoint all committees and shall

be an ex-officio member of all such committees. The President

shall arrange for an annual audit of the accounts of the

Treasurer, and present an annual report on the business of the

Club to the membership. Such report to be given either in writing and mailed to each Member, presented orally at a business

meeting, or a copy of the report placed in the files at the

office, after notifying each Member of his/her right to study

said report.

SECTION II.

VICE-PRESIDENTS - The first Vice-President shall, in

the absence or disability of the President, perform the duties

-10-
819

and exercise the powers of the President and shall perform such

other duties as may be assigned to him/her by the Board of

Governors. The Second Vice-President assumes responsibility if

both the President and First Vice-President are disabled or

absent from any meetings.

SECTION III.

SECRETARY - The Secretary shall attend all meetings of

the Board and of the membership and act as clerk thereof, and

record all the votes and minutes thereof in books to be kept for

that purpose. The Secretary shall notify all Members of their

election to office, arrange to have the proper people informed of

all meetings as to the time, place and purpose. The Secretary

shall be co-signer, with the President, of all written contracts

and obligations of the Club. The Secretary shall conduct or

cause to be conducted, all official correspondence of the Club

and shall see that such correspondence is properly preserved and

filed until otherwise disposed of by the Board. In the event

that he/she shall be absent at any meeting duly called, he/she

shall arrange to have the minutes of all previous meetings made

available to the Board for their edification when necessary. In

such absence, the President shall appoint any Board Member in

attendance as Temporary Secretary for the recording of the

Binutes.

SECTION IV.

TREASURER - The Treasurer shall be the chief financial

and accounting officer and shall cause full and accurate accounts

of receipts and disbursements to be kept in books belonging to

the Club. The Treasurer shall render to the President, and to the

Directors, at regular meetings of the Board, or whenever the

President or the Board may require, an account of all his/her

transactions as Treasurer and the financial state of the Club.

The Treasurer shall cause to be deposited all funds of the Club

in one (1) or more of the banks in the Wyoming Valley area, in the

name and to the credit of the Wyoming Valley Country Club. The

Treasurer shall send out bills for dues and all other indebtedness to the Club, as specifically set forth in Article VIII

Sections II and III of these By-laws or as may be ordered by the

Board. The Treasurer shall sign and countersign all such

instruments as may be required by his/her signature as an officer

of the Club. The Treasurer shall perform all such other duties

as may be properly assigned to him/her by the Board, one (1) of

which will be Chairman of the Finance Committee.

-11-
ISO

SECTION V.

THE BOARD OF GOVERNORS - This body shall exercise general supervision of the affairs, funds and property of the Club

and to this end is invested with all the powers of the Club. It

shall make such house and ground rules as raay be deemed

necessary. It shall make and enforce all regulations as it may,

from time to time, feel are essential for the proper maintenance,

care and use of the golf course; including, but not restricted to,

regulations providing for the registration of golfers, and the

use of the course by registered golfers only. It shall set

regulations providing for the establishment, imposition and collection of golf dues or charges and green fees. It shall set any

regulations necessary to prevent damage or congestion of the golf

course. The Board shall meet on call of the President or on

written request of any three (3) Board Members. Due notice shall

be given by the Secretary of such meeting. A majority of the

Members of the Board in office shall be necessary to constitute a

quorum as specified in ARTICLE VIII, SECTION I B.

ARTICLE X

COMMITTEES

SECTION I.

Immediately after the annual election, the President

shall appoint, with the approval of the Board, any committees

that are deemed necessary or desirable for the successful operation of the Club for the ensuing year. It shall be mandatory

that the standing committees be Finance, House, Greens and

Grounds, Membership and Golf Committees. Committees shall not

consist of more than five (5) Senior Members. The President

shall designate the chairman of each committee. The committees

shall be delegated authority to fulfill their mission, subject to

the approval of the Board, and, for purposes not inconsistent

with these By-laws. Each committee chairman must submit his

annual anticipated budget for the coming year for scrutiny by the

Finance Committee. Final budgets must be presented for Board

approval at the regular meeting of the Board in the month of

March following the January election of officers. Once approved

by the Board, the committee is free to expend funds as needed.

Any unexpected expenditures beyond the funds already budgeted

must be submitted for Board approval. All monies received or

expended by all committees must be handled by the office under

the supervision of the Club Treasurer. All members of any

special committee shall serve until their successors have been

-12-
321

appointed or until the Board decides that a particular committee

is no longer necessary.

A. FINANCE COMMITTEE - This Committee, subject to the

Board, shall have general supervision of the finances

of the Club; help other committees determine their

financial needs for the year; help determine the

Club's total yearly budget; and, act in an advisory

capacity in reference to all financial matters

affecting the Club. The elected Treasurer will be

the Chairman of this Committee.

B. HOUSE COMMITTEE - The House Committee, subject to

Board approval, shall have full charge of the

clubhouse, and any buildings where refreshments,

articles or supplies are sold. Keeping within its

established budgetary allowance, it shall have

authority to make all purchases necessary for the

proper maintenance and operation of each building

and facility under its supervision. It shall determine the prices to be charged for all articles and

supplies served in any facility under its jurisdiction and shall prescribe any special terms and conditions under which Members or outside agencies may

use the facilities under its charge for private

occasions. This Committee shall supervise the

employment and discharge of all personnel needed to

properly fulfill its obligations to the membertship.

It shall be the duty of this Committee to make the

necessary house rules and regulations that all

Members are to abide by and to have said rules

printed and posted in a conspicuous place in the

golf clubhouse.

C. GOLF COMMITTEE - The Golf Committee, subject to

Board approval, shall arrange and conduct all

tournaments, exhibition matches and other special

golf events. This Committee shall consult with

other Committees that may be involved, such as the

House Committee, as to the dates of such events and

will notify Members of said dates and conditions

pertaining to such events. It shall have the

authority to employ, supervise or discharge extra

tournament personnel, and to purchase such articles

or supplies as may be necessary for the efficient

conduct of such special events. It shall have

charge of all publicity for special events and shall

select, purchase, and award any prizes which are won

-13-
by the contestants. During special golf events

only, it shall have charge of carts, the caddie

area, caddie master and caddies fixing the latter's

tournament fees.

The Golf Committee will conduct and supervise any

inter-club matches held during the season. This

Committee shall organize and select Members to represent the Club at any such matches. Along with the

House Committee, they shall provide for the

reception and entertainment of the visiting teams.

The Golf Committee shall be responsible for

determining the handicaps of all Club golfers and

for posting such handicaps.

D. GREENS AND GROUNDS COMMITTEE - This ConUQlttee,

known simply as the Greens Committee, subject to

Board approval, shall have full charge of the golf

course and grounds of the Club property. This

includes all trees, shrubs, vines, road, walk, cart

paths and automobile parking spaces on said property

and such buildings as not specifically covered by

the House Committee in Article X B. This Committee

shall employ such personnel and procure such

articles, tools, equipment and supplies as may be

necessary for the proper upkeep and maintenance of

such facilities that come under its jurisdiction.

Any major changes or alterations on the course or

grounds beyond what would be considered as routine,

every day procedure must first be presented to the

Board for discussion and approval. Since this Committee is directly concerned with the golf course,

and since said course is the basis of the entire

Club operation, it shall be empowered, after consultation with the greenskeeper, to decide when and if

the course is being damaged for any reason, such as

weather conditions, use of golf carts, or

negligence, and to take whatever steps to remedy

such situations as may be deemed necessary. In the

best interest of the Club, this could mean limiting

the use of carts, closing certain area to play, or

complete closing of play at the course until the

problem is resolved. This Committee shall be

responsible for proper training and supervision of

all caddies.

It shall be the duty of this Committee to make the

necessary rules and regulations concerning the

-14-
323

course and carts that all Members are to abide by

and to have said rules printed and posted in a

conspicuous place in the Clubhouse.

E. MEMBERSHIP - This Committee shall be responsible

for screening candidates in all membership

classifications before presentation to the Board of

Governors for approval.

F. Standing Coimittee Chairmen are voting members of

the Board.

a. Immediate Past President is Honorary Member

of Board for one (1) year, but has no voting

privileges.

G. Long Range Planning Committee is a special committee

of the Club.

It shall consist of nine (9) Members whose individual term will be five (5) years. These Members will

be elected at the annual meeting

The Committee will elect their chairman annually

after the general election and he/she shall be a

voting Member of the Board.

The Long Range Planning Committee is a Special

Committee of the Club, and as such, will be charged

with the responsibility of planning the future

growth and development; refurbishing the present

facility; and, replacing the equipment, buildings,

grounds, etc., in a sound and orderly manner

consistent with logical development of The Wyoming

Valley Country Club. Said Committee will formulate

its plans and report to the Board, which will then

be responsible for the appropriate action within the

confines which that Board sees proper.

The recommendations of the Long Range Planning

Committee are not to be considered binding on the

Board, but since they are the recommendations of a

Committee of the Club, their plans must be given

very serious consideration by the Board.

-15-
324

SECTION II.

CAPITAL IMPROVEMENTS

A. Capital Improvement Budgets shall not exceed ten

percent (10%) of the audited, preceding year's dues

income, without a special membership meeting on the

proposed budget.

B. In the event capital expenditure actual figures may

exceed budgeted figures by ten percent (10%), a Special Membership Meeting must be called by the Board

to inform the membership.

C. When and if it becomes necessary to borrow from any

lending institution to finance capital improvements,

a Special Meeting of the Membership must be held to

inform the Members of the project(s) involved prior

to any commitment by the Club.

ARTICLE XI

. MEETINGS

SECTION I.

There shall be an Annual Meeting of the Club for the

election of officers which shall be the second Saturday of January in the clubhouse at a time to be determined by the Board.

A. Notice of such meeting shall be posted in the

clubhouse not less than two (2) weeks before the

meeting date.

B. Fifteen (15) Members shall constitute a quorum for

the Annual Meeting.

C. The audited Financial Report for the preceding year

must be mailed to all Senior Members by December 1.

D. In the event of a tie vote for any office, a Special

Election for the office/officer in question will be

held not later than the first Saturday in February.

-16-
325

SECTION II.

The order of business shall be as follows:

1. Reading the minutes of the last stated meeting, and

of any special meetings held thereafter.

2. Report by the President for the Board.

3. Report of the Treasurer.

4. Appointment of Auditor.

5. Report of standing Committees.

6. Election of officers.

7. New Business

8. Adjournment.

SECTION III.

Special Membership Meetings may be called at the discretion of the President and must be called upon written request of

ten (10) Senior Members who shall state the specific purpose of

the meeting.

A. Special meetings must be held within twenty (20)

days of such a request by either the President or

Members.

B. Each Member of the Club shall receive ten (10) day's

notice, stating the place, time and purpose of the

meeting.

C. No business shall be transacted other than the

stated purpose of the meeting.

SECTION IV.

QUORUM - Twenty-five percent (25%) of the Senior

Membership shall constitute a quorum of the Club for special

Beetings. The acts of the majority of the quorum present shall

be the acts of the total Senior Membership. Any decisions voted

upon by the membership shall be considered to be binding upon the

Board of Directors in any future meeting of the Board relating to

the decision made at the special meeting.

-17-
326

ARTICLE XII

VISITORS

SECTION I.

Upon written request, by a Senior Member in good

standing, the Secretary may issue an invitation to any person not

a resident of Wyoming Valley to use the facilities of The Wyoming

Valley Country Club for a two (2) week period. The same guest

shall not be introduced more than twice in one (1) season and

then only after an interval of at least one (l) month. The guest

shall pay the required greens fee for each round of golf. No

Member shall have three (3) introductions in force at any one (1)

time.

SECTION II.

Should a non-resident guest of a Senior Member desire to

use the Club beyond two (2) weeks, he/she may, if the Board

approves, be granted a two (2) month guest card upon payment of

one-fourth (h) of the then current annual dues.

SECTION III.

The names and places of residence of such visitors, as

outlined in the last two (2) sections, shall be recorded in the

Pro Shop in a book kept for that purpose. Any Member who uses the

privileges of these rules shall be held responsible for any debts

or liabilities to the Club that may be incurred by any person

he/she introduces or sponsors.

ARTICLE XIII

COLORS AND EMBLEM

The colors of the Club shall be Blue and Red and the

Club emblem shall be a Tomahawk.

ARTICLE XIV

EQUITY AND DISSOLUTION

SECTION I.

In the event that it is considered necessary or proper

to dissolve the corporation, the Board of Directors shall notify

-18-
827

all Members in good standing of a meeting to be held for the

purpose upon not less than ten (10) day's written notice to each

paid Member at his last known address.

At the meeting so called, an election to dissolve the

Corporation shall be made by a majority vote of all of the

Members.

Following the vote concerning dissolution, the Board of

Directors may take whatever action they deem proper and necessary

to wind up the Corporation by the sale of all of its assets providing for the payment of all secured or unsecured obligations.

After all debts and obligations of the Corporation are approved

and paid, any assets remaining shall be distributed to Senior

Members of the Club who are fully paid and in good standing on

the date of dissolution, provided however, that only Senior Members who have been Members of the CLub in good standing for five

(5) consecutive years immediately prior to the date of dissolution shall be entitled to any equity distribution.

ARTICLE XV

AMENDMENTS

These By-laws may be amended by a two-thirds (2./3) vote

of the Members present at any regular or special meeting, provided the proposed amendments shall be in writing, and shall be

proposed by the Board of Governors, or by ten (10) Senior

Resident Members two (2) weeks prior to the annual meeting, or a

special meeting called for that purpose, and that the notice of

said meeting shall contain a copy of the proposed additions or

anendnents.

ARTICLE XVI

EFFECTIVE DATE OF BY-LAWS

These By-laws shall become effective on the date of a

regular or special meeting of the Senior Members of the Club duly

called for the purpose of their adoption.

-19-
328

ryriTiiTT •!•

A. Richard Caputo

AO-tOM FINANCIAL DISCLOSURE REPORT

Noiniiuirion Rcparl

Mtftrm Aa of 1*89. A*i.Mi.

101 t94. M»wwt«r M. /W»

PU.SC A^ 4.SeK lai-IITt

CMVrO. A. RIOIARD . US DIST CT MID DIST OF PA

3. Dx « RifM

06/01/1997

4.T1te (Af^cU 111 Jmdgn iaOMMt ocn^ or

f»il-orrarnimti

U.S. DISTRICT JUDGE NOMIMBB

s.Kc|»ni>p«totediirp*)

X NenfawiDD. Dm 07/31/1997

loiM AaiMl FInl

01/01/1996

10

07/30/1991

7. ClKBlMn or OlDn Addroi

3B7 WYOMING AVENUE

P.O. BOX 20S9

KINGSTON. PA 18704-2059

I. Oe Ibc bub ef [he biforauiion c«aulMd In tUi RqM>n ud any

wftb spplkabk U»> n»d rrfuUttosi.

_

IMPOKTAyr NOTES TV Mitr«c«MU octwapanyt

chtckmt (hr M>VC iOM foe €a<h uctum **rrt ytm

nt thisfarm mKttbt/oOoo^ Carnpitu mU pern.

I. POSITIONS CvnuilFOSmON

NOKK (Ncnpotnbk

1 VICE PRBSIDBNT AHD DIRECTOR

* SBCTY, TREASURER (< DIRECTOR

3V.P., ASST. SECY fc DIRECTOR

M^; M<r;qp. 9-l3^lmanel00al

NAME OF ORGANIZATION / ENTITY

HAPLEHOOR, IMC.

THE LUZERHE FODNDATIOH

BACK MOUNTAIN HOUIIHGS, INC.

II. KGKEEMESTS <lltronUtl'i*Mml<i^.mprl4-l7cfhamatml

DATE PARTIES AND TERMS

DNONE {No nport^ilc t\_Fees which have been billed, and Chose representing my work In progress not yet billvd

will be ascertained upon nv departure from ny office, and those sums will be renitccd

to me when received over the next twenty-four (24) months.

m. NON-INVESTMENT INCOME tlttrorHmgi,idl^t^mal^9mat;t»tppl$-Vafbanalau.l

DATE PARTIES AND TERMS

• NONE (No reporuM* oon iDvcaonem mcoine )

1 199S INCOME PROM LEOAL SERVICES

, 199« INCOME FROM LEOAL SERVICES

3 TO 7/97 INCOME FROM LEGAL SERVICES

CROSS INCOME

(youn. not ^MMIC'I)

32e,091.00

394,677.00

140.270.(7
KNANCIAL DISCLOSURE REPORT

Nimc of Penoa Rxponing

CAPUTO, A. RICHARD

Date of Rqwn

08/01/1991

SECTION HEADING. <li.nici«i»n<.(it|»)n)

SECTION 1. POSITIONS (cont'd.)

Li. POBition Nane of Organization/Bntity

4 CO-TSUSTEB

5 ASSISTANT SECRETARY

6 ASSISTAUT SECRETARY

7 ASSISTANT SECRETARY

9 ASSISTANT SECRETARY

9 ASSISTANT SECRETARY

10 ASSISTANT SECRETARY

H ASSISTANT SECRETARY

12 PARTNER

13 PARTNER

14 PARTNER

GRACE K. SHEA TRUST

MCCARTHY ENTERPRISES, INC.

PLAIHCO, INC.

BRONSBERG & HUGHES PONTIAC, INC.

MIDDLE ROAD DEVELOPMENT CORP.

KACICpRP. INC.

PORSUNS. LTD.

ROBBINS DOOR t SASH CO.

DROID ASSOCIATES

ALAFAYA ASSOCIATES

381 WYOMING AVENUE ASSOCIATES
FINANCIAL DISCLOSURE REPORT

HUM orftnon HeponMf

CAPUTO. A. RICHARD

Davof Rcpon

08/01/19r7

IV. REIMBURSEMENTS and GIFTS

flndadet Utoi* lo spouit aitd dtptt^na ctuUim. auiht pareniheiKaU '(S)' ai^ '(DQ' w iitditau rtpona^U rrur^ntifmeiiii and gifis naiwtd ty i^omae

and ttptt^tm diiUrtn. resptetirftf Set pp 26 29 oflattntcaoiu I

D

SOURCE

NONS (No MCb rcpon^ik re

DESCRIPTION

V. OTHER GIFTS

{t»ehides OiOMt to ^oast OMI dtptndtni cMMrm. mu At fiareiUMeaaiU '(S)' <

n^fOnHf. Stfpp. S0-3S t^IntartcHoKS)

U

SOURCE

NONE (Noi

'(DQ' » indioue adtr giftj rrcmyrf by spoiue atid

DESCUFnOS

ChUdm.

VALUE

VI. LIABIUTIES

ffududes ihost oftpoatt oitd dtprndmi ckiUrtn: Mdicau xiltrrt appticabU. ptrton rtiponsiU* far babtUrj bf Mtng At parttnhntc^ 'fSl'for Stfonir

UabitUf oftlujpOMSt. 'in'fifr/oiralutbtUryc^riporungtadividiiaiaMdtpoiue.and'fDO'prUabitirf^ofadtptndtnichild Setpp i4-i6of tiaruc^av.)

D

CREDITOR

NOm (No raporabic lubumct)

> FIRST UNION NATIONAL BANK

DESCRIPTION

HKUXIH BANK

MBHA

FIRST NATIONAL COI«. BANK

FIRST NATIONAL HORTQME CORP.

LINK OF CREDIT J

CREDIT CARD J

CREDIT CARD J

HTO. OH PROP. (367 WYO. AVB ASSOC.) N

HORTOAas OH PROPERTY (RBSIDEHCEI J

•VALCODBS:J-SlS.000ortai K-SI5.OO1-U0.00O L-$»A>1 uSlOO.OOO U-$100.001-S2».000 N-S25O^l-190O.flO0

0-S300.00I-SI.000,000 Pl-II.OOOJ)Ot-U.OOO.OOO r2-S5.O00.OOl-$25.OO0.0OD P3-n3.0O0.0O]-S».0OO.O0O P4-SS0.000MlorMi«
881

FINANCIAL DISCLOSURE REPORT

riiiiii iif riiiiiii ftiiiiiirin

CAPUTO, A. RICHARD

cMUrM. Sttpp J7 54ofhuinalMi)

Daieariicpoii

08/01/1997

Vn. FSfe 1 INVESTMENTS and TRUSTS

ADocr^sfiMorAsKii

AiCcair ^^mt app&oMe. <rm^i of

»g mtsti »7 msttig iht fOfttahrttcal

B

Income

during

reportai»

C

Gnwinlw

Head of

nponmt

D

innucitoiv dufMf lepufttng pefioo

nacr 'CO'aflef <«* aatt

(I)

Am

Cod.

(AH>

(2)

Type

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dividend,

ml or

(1)

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code

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1 nVrrAL PROPERTY 11 - RYE. MY D R«nt M "

2 USTA;. PROfXRTy I2 - RYE. HY D R«nt H w

3 naST UHICM NAT'L BAKK - INTCRCST A Ini.«r«at K T

* CCMt HITTER RCYMOLOS - IRA - GTE

CtVHCM STOCK

A Dividend J T

SDtAH WITTER RETWOLOS - IRA - CE -

COWOW STOCK

A Dividend J T

« aJW WITTER REYNOLDS - IRA -

CKRYStXR CSMC - CQW10M STOCK

A Divldvrtd J T

5 OtAM WITTER RCYMOLOS - IRA -

TCW/DW EMEROIMG MARKETS

A Dlvld«r«l J T

> OCAf) MITTER REYNOLDS - IRA - LIQ.

ASSETS FVNO

A Intet«Bi J T

S OCAM WTTCR REYNOLDS - IRA -

COMPAQ CtXPUTER - CCM4CW STOCK

A Ol¥id«r*d J T

lODCAM NITTER REYNOLDS - [RA -

T1«AVCLERS-.»£TMA - CCrWCN STOCK

A Dividend J T

U EXAM WITTER REYNOLDS - IRA -

HOSIL COHP - COM^OH STOCK

A Dlvideryl J T

12 DCAU WITTER REYNOLDS - IRA -

M£M. SAFETY RAZOR - COM. STOCK

A Dividend J T

13 0EAH WITTER REYNOLDS - IRA -

CARNIVAL C«P. - CCM. STOCK

A Dividend J T

14 DEAN HITTER REYNOLDS - IRA -

CCNCRAL MOT. CORP. - COM. STOCK

A Olvldorrf J T

l&DCAN WITTE* REYNOLDS - IRA -

iNGEftSOLL RAND - COM, STOCK

A Dividend J T

l( QCAJ* WITTUt RElNOLt^ - IRA -

Ct»*PUTCH ASSOC- INT'L - CH. 5TK

A Dividend J T

ITDCAN WITTER REYNOLDS - IRA -

MARLCr DAVIDSOH - CC»«. STOCK

A Dividend J T

tkeXl«C(idKA-Sl.(no«l« B-»1.00I.n.»0 C-n,»l.«.000 D-S3.«I4IS.OOO E-S15;001.HO.OOO

(CdBl.M) F<4M^I-1100.000 O-S100.001-S 1.000.000 H 1-Sl.000.001-U.000.000 H3-S}.000.001 at mort

lValC«te J-Sl);0OOarkM K-SI 5.001-SU.OOO L-SU.OOl-SI00.000 M-SI00.001-SIM.OOO N-S2».001-S»a.000

(CaiCl.Da) O-SMMlOOl-SI.000,000 PI-SI.OOOJWl-S3.000.000 PJ-SSMO.OOl.$13,000^10 P3-S13.000.00l-tlO.000.000 P4-S3O.O0a,00l of marc

(CJ. C2) U-Boofc ValM V-OOn W-E«illMMd
FINANaAL DISCLOSURE REPOftT CAPUTO, A. RICHARD . 08/01/1997

Vn. P»gc 2 INVESTMENTS SDd TVUSTS

imdMdaa) OHJ ipoitsf. '(S}'pru^

tm* Ofittnhtp ty spoau. '(DO'

fat ommtoMp bj dtptndeM t^U.

nac€ 'CO' tfitf mc* ao«f

(I)

Am.

Cod*

(AH)

Co*

to-n

(I) ltaHnanp> tiamt^

DMT GM

Co*

(A-H)

UtMHyoT

NONE (no npombte VKomejt

II GMMX K- SXCA TRUST - ««

fHOOUCTS- CC»«CW STOCK

1» CAACe K. SHCA TRUST - AMERICA**

MCHL PRODUCTS - COM. STOCK

70 GRACE K. SHCA TRUST • AT4T

COMWN STOCK

31 CRATE K. SHEA TRUST - CHEVRON -

CCi»IOH STOCK

ISOXACE K. SHEA TRUST - CHRYSLER - [A

STOCK

23 OMACC K. SHEA TltUfT - COCA COLA •[^

CC»«10M STOCK

24 OMACE K. SHEA TRUST - COKPAO

CCMPVTCJI - CXM¥M STOCK

25 GRACE K. SHEA TRUST - DUPOKT •

STOCK

26 GRACE K. SMEA TRUST - GC -

STOCK

21 GRACE K. SHEA TRUST - GTE

COMKW STOCK

2t GRACE K. SHEA TRUST - JOHNSON k

JOKMSOW - CC»««N STOCK

29CRACX K. SHEA TRUST - UKXKT

TECH. - CCM«OH STOCK

lOCAACE K. SHEA TRUST - HICROSOFT

COmON STOCK

31 ORACE K. SHEA TRUST • SAAA LEE

COMIOM STOCK

32CHACe K. SHEA TRUST - SMITH-KLIMt

- COMCN STOCK

13 CWACE K. SHEA TRUST - HARLEY

QRVIDSON - CO*4. STOCK

31 GRACE K. SHEA TRUST - CAflNIVAL

coup, - C<3^9i. STOCK

I iBb'O^CAda-A-S1.000or IM B-SI.001-S1.300

(OtlBI.W) F-i30MI-S100.000 O-SIOOOOI-SI.OOO.OOO

C-S3»l-U.000 O-SS.00l-SlS.000

HI-SI.OOVOl-U.000.000 K>».000.00l orn

SVdOiaK 1-SIS.OOOorlM K-SISjOOI-UO.000

(COLCLOS) O'tSOO.ODl-Si .000.000 fl-SI.O0OMI.S)JXNU»O

L-UOJM)14IO0;O0O M*SIOejOOI-S])0/KK> N-G90J»1-1)00,000

R-Uj00ajtl-S31,000.000 n-S3S.OOOJX)l-S3a00O.OOO P4-$3Oj00O.0Ol or««<

3ValMftCo*c T 111 r

fCM.Cl) t>«erfiVilM

R^«i(i«d«iM«ir>
FINANCIAI. PISCXOSURE RETORT

Hime of rtnm gxfaiti^~

CAPUTO, A. RICHARD

Vn. Page 3 INVESTMENTS and TRUSTC r*"""-"^•°~'•~"'~**"»»'"»'''

IWofllciwft

08/01/1997

A. B

Inc

ilin

rep

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C

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(5)

UetMifyof

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35 «ACt K. SHtA TRUST - ACTIVE

ASSETS - W3NEY KWUtET *

Dividend J

M r»»SS BROTHERS - COmw STOCK

(S)

A Olvidand K

37 nR*T UMICM MATIOWU. BANK -

ottiai STOcx (St

C Dividend H

M RTKOrr-SEXTON - OPTIONS - COmCM

STCOC

Honm J

-TMC/ W CR, EO- TR. , MUT FD

A Dividend J

« OCAN KinXR RErNOLDS - IRA (S) -

•N AH VALUC/WY KARKET

A Inter«ot J

-CARLIStX CO., IMC. - COH. STOCK

A Dividend J

l\ Dividend J

DUPCW El DCKEMOUHS - COffWN

^ Dividend J

Dtness CORP. - cot^fcw

^ Dividend K

a>»«« STOCK

DlvldeiMj J

l«« ORLAHOOI FLORIDA {SI

0

1

1

h -1--^

HOO«Co4= A-Sl.O0O.rtai B-Il.OOl-n.SOO

KXB1.D4) F-«MJ)0l-II0O.000 O-»100,001Jl 000000

--n,50l4JA» D-$J.00I-JI 5.000

Hr-Xl.OOOJJ01.J3.000.000 H2-JS.000,00I «BW

E-SIJ/WI'JSO.OOO

I»«0.*» J-S13.a»«tai K-SI).00|.SSO,000 L

(OXCI.DJ) 0-1300.061^1,000,000 P1-SI.OOO,OOI.1SJ»0.000 K

-JM.0014IOO.OOO U-JI00.001.OW.000 N-$2».0014500,000

•^JMf»\-Sl\OOQfiftO ra-t2J/X»,OOI-MO.00O.O0O P4-SM,000.00 lor nan

««a) u-Bpokvj« v-odw ^-UHnmrnA
nNANCIAL DISCLOSUKE RETORT

DMBaTRcpui

08/01/1997

Vm. ADDITIONAL INFORMATION OR EXPLANATIONS.

X NONl (No a
FINANCIAL DISCLOSUItE RETORT CAPtrrO, A. RICHARD

Due of Report

08/01/1997

DL CERTIFICATION

la con^ilunce with tbe provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory Conuniiice on

Iwlicial Activities, and to the best of my knowledge at the time after reasonable inquiry. I did not perform any adjudicatory

fuoctioa in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children

had a financial interest, as defined in Canon 3C(3Xc). in the outcome of such litigation.

[ certify that all the Information given above (inchiding information pertaining to my spouse and minor or d^Mndenl

^Idren. if any) is accurate, true, and complete to die best of my knowledge and belief, and that any information not reported

was withheld because it met applicable sututory provisions permitting non-disclosure.

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been

reported are in compliance with the provisions of 5 U.SC. app. 4. section SOI et. seq,, 5 U.S.C. 7353 and Judicial Conferenoe

r^ulations.

Signature 6>^U<^ta^~ D.» 911 hi

Any iodividual who knowiilgty and wilfully falsifies or fails to file tfiis report may be subject to civil

and criminal sanctions (5 U.S.C. App. 4. Section 104).

FIUNG INSTRUCTIONS

Mall oiigliul and three additional copies to:

Committee oo Floaadal DiKloiurc

AdralBlttrativc orQcc of tbe United States Courtt

One Colombui Circle, N.E.

Suite 2-Ml

WBsfatDgtoa. D.C. 20544
A. Richard Caputo

mgBIT 'S'

FIMMCIM. STATBCXT

Hotos payablo to banks-socurod -0-

Cam on hoii) •nd In Ixnks 2) 91( 39 Notos payablo to banks-unsacurad i 9« 18

U.S. Qovamaant sacurltUs -0- Hf»tas payabia to ralatlvas -0-

LISUd Mcurttlu -0- HoUs payablo to othors -0-

Unlisted stcurltlu IS 000 00 Accounts and bills dua 12 ax 00

SM Schwlilt -A- Uvald Incsao tax 2( ooo 00

Accounts and notos rocolvlblo; (Estlaatod for 1M7)

Duo froa rolstlvos and frionds -0- Other unpaid tax and Interest -0-

IXlo froa othors 76 153 00 Real asuu •ortyaoas payable 511 Kl «

Oat)ttll^ ( 700 00 Sao Schedule 'O*

Roal ostata owiod I,ll( ooo 00 Chattel Bortgeges end other -0-

Sea Schedulo •&• liens payable

Roal astata Bortgagos rocolvabia -0- Othor debts -0-

Autos and othor porsonal prepart> 1! OK 00

Cash valua - Ufa Insurance to 25< 00

Otiwr assots

Hotlrvant Plan Si 7ie 18

Intarost In Partiwrshlps 1 000 00

Soo Sctwdulo -C"

Total Liabilities 551 72< 01

Hot north 801 Ml M

ToUl a>MU I.3S1 774 57 ToUl Liabilities and Mt Horth 1 .J5J 77< 57

CONTIHOENT LIABILITIES OBCRAl. INRXMATION

As andorsor. eoaakar or ouarantof -«• Are any assots plodgetfT No

Are you defendant In any suits or

On laasas or contracts -0- legal actions? No.

Lagal Claln -0- Ka<a you ooor Ukan bantnotcy? No

Provision for Fodaral Incoaa T« -0-

(Sao Llibtlltlas abov*)

Otnar spaclal di6t -0-
337

A. Richard Caputo

SCHEDULE "A" - UNLISTED SECURITIES

$15,000.00 (Bond) Huntsville Golf Club - 20 years - 8%

Bond - Cost $15,000.00

SCHEDULE "B" - REAL ESTATE OWNED

Personal Use

Residence

Shavertown, Pennsylvania, 18708 - owned by A. Richard Caputo

and Rosemary S. Caputo

Purchased 1974

Market Value - $210,000.00

Investments in Real Estate

11 New Street

Rye, New York 10580 - owned by A. Richard Caputo

purchased 1975

Market Value - $200,000.00

17 New Street

Rye, New York 10580 - owned by A. Richard Caputo

purchased 197 5

Market Value - $200,000.00

387 Wyoming Avenue

Kingston, Pennsylvania 18704 - owned by A. Richard Caputo and

Charles A. Shea, III as

co-partoers

Purchased 1994

Market Value - $500,000.00
338

A. Richard Caputo

SCHEDULE "C" - PARTNERSHIP INTERESTS

Druid Associates 2 5% interest - owns an interest in an apartment building in Mamaroneck, New York, and an

interest in an apartment building in

Fleetwood, New York, with other investors.

Current value of my interest is estimated at

$5,000.00.

Alafaya Associates 16 2/3% interest - owns an interest in the

same apartment building in Fleetwood, New

York, in which Druid Associates owns an

interest. Current value of my interest is

estimated at $3,000.00. My wife also owns

16 2/3% interest.

•SCHEDULE "D" - REAL ESTATE MORTGAGES

First Union Mortgage Corp.

Balance: $8,173.40

Security: Residence - Shavertown, Pennsylvania

. First Union Mortgage Corp.

Balance: $132,897.69

Security: Residence - Shavertown, Pennsylvania

First National Community Bank

Balance: $375,893.34

Security: 387 Wyoming Avenue, Kingston, Pennsylvania

Mortgagors: A. Richard Caputo and Charles A. Shea, III
NOMINATIONS OF RONALD LEE OILMAN AND

SONIA SOTOMAYOR (U.S. CIRCUIT JUDGES);

CHARLES J. SIRAGUSA, ALGENON L.

MARBLEY, DALE A. KIMBALL, JAMES S.

GWm, AND RICHARD CONWAY CASEY (U.S.

DISTRICT JUDGES)

TUESDAY, SEPTEMBER 30, 1997

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 3:02 p.m., in room

SD-226, Dirksen Senate Office Building, Hon. Mike DeWine presiding.

Also present: Senators Hatch, Thurmond, Thompson, Torricelli,

Sessions, and Ashcroft.

OPENING STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR

FROM THE STATE OF OHIO

Senator DEWINE. I would invite my colleagues, I see Senator

Glenn and Senator Bennett, to come immediately to the table. We

are now proceeding to hearings for two circuit court judges and five

district court judges. We need to be out of here by 4:30 p.m., which

I assume we can be.

I would say to all of the prospective judges who are here that it

is certainly possible that we may submit some written questions for

the record, either because we run out of time or because some

members are not here. Some members may have to leave, so you

should be prepared to receive written foUowup questions from

them, as well.

Let me start, if I could, with the chairman of the committee. Senator Hatch. Mr. Chairman.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM

THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman. I appreciate this opportunity to appear before the committee for and on behalf of Dale

A Kimball, who has been nominated for district court judge for the

District of Utah. I am also happy to be here with my friend and

colleague. Senator Bennett, as well.

Mr. Kimball obtained his B.S. from Brigham Young University in

August 1964, his juris doctorate from the University of Utah in

1967, became an associate with the largest law firm in Utah and

(339)
340

one of the most prestigious, was a partner and then helped fonn

one of the major firms in Salt Lake City, Kimball, Parr, Waddoups,

Brown & Gee. He has been the senior partner in that law firm

from 1975 to the present. He was an associate professor of law at

the Brigham Young University School of Law from 1974 to 1976,

and adjunct professor from 1976 to 1979.

Mr. Kimball has extensive experience in the practice of law and

has been engaged in general practice, title work, oil and gas and

mineral matters, contract negotiations, and litigation, including securities law, shipping disputes, administrative agency matters, and

criminal defense. Since 1975, he has been engaged primarily in

business litigation, including securities fraud, insurance, antitrust,

contract, and energy cases, along with some arbitrations and municipal litigation.

He has had extensive experience in the practice of law, in the

practice of teaching law, and as a fine lawyer in the Utah area. He

has authored several articles. He is a member, of course, of the appropriate bar associations and is one of the finest people I know.

Dale Kimball is not only an excellent lawyer, he is a person of

the highest integrity, the highest ability, a person we can rely

upon, a person who understands the role of judging, and a person

who, literally, I think, will elevate the Federal bench in this country.

There is so much more we could say. He is here with his wonderful wife. I have known him for a long time. I have total respect for

him, as I think do all people in Utah and especially all members

of the bar association.

As you know, in any of these situations, it is very difficult to

make a decision as to who should replace another Federal district

judge. There are so many people who can be qualified for that position, and there are a number in Utah who certainly do qualify, but

I know of none better, none greater, or none with more ability than

Dale Kimball. I think he will become one of the great judges in

America and I would expect no less from him.

I recommend to the committee that they approve this nomination

as quickly as possible and help us to resolve the problem of an

open seat on that bench, which has been open since June of this

year.

Senator DEWINE. Senator, thank you very much.

Let me turn now to the junior Senator from Utah, Senator Bennett.

STATEMENT OF HON. ROBERT F. BENNETT, A U.S. SENATOR

FROM THE STATE OF UTAH

Senator BENNETT. Thank you, Mr. Chairman. Being the junior

Senator and not being a member of the Judiciary Committee where

the senior Senator is the chairman of the Judiciary Committee usually means that my activity with respect to the appointing of Federal judges is a fairly minimal one.

I will say that Senator Hatch has been more than solicitous,

however, of my opinion and he came down to see me early in this

process to tell me of the various people that were being considered

for this particular vacancy and to tell me that his recommendation
341

would be Dale Kimball. This made it very easy for me to say yes

without any kind of demur or objection.

I will not go over the specifics in Dale Kimball's background.

Senator Hatch has already done that and they are available to the

committee generally. I will share with you this personal experience.

I was the CEO of a company that grew very rapidly and finally

got to the point where, if its investors were to get any of their

money out, it had to go public. The decision was made that it

would go public and go directly to the New York Stock Exchange.

That meant underwriting by two of the Nation's largest investment

bankers, Merrill Lynch and Smith Barney, and I said to the people

who were then handling it, I assume this means we are going to

hire a very expensive law firm in either New York or San Francisco

or possibly both.

The folks at Merrill Lynch said, actually, you have one of the finest law firms in the country dealing with this particular issue in

Kimball, Parr and we would recommend, as a New York investment banker, that the law firm that handles the public offering for

Franklin be Kimball, Parr. That was the first time I had heard Mr.

Kimball's name, and as I associated with the people at Kimball,

Parr, both in that official manner and in the unofficial question of

how I handle my own shareholdings, I have come to realize how

wise they were in making that recommendation.

Mr. Kimball is the founder of that firm and his name is the first

in the list of named partners. He would be qualified to serve on

any bench in any jurisdiction and I am happy to add my endorsement to that of Senator Hatch's, based on that personal experience

with him and his legal background.

Senator DEWINE. Senator Bennett, thank you very much.

Let me now turn to the senior Senator from the State of Ohio,

my colleague, John Glenn.

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

THE STATE OF OHIO

Senator GLENN. Thank you very much, Mr. Chairman and members of the committee. It is a pleasure to be here today to introduce

to the committee two Ohioans who have been nominated by the

President to serve as Federal district court judges. They are products of our judicial review commission that advises me on these selections, as the chairman knows.

These individuals. Judge James Gwin and Mr. Algenon Marbley,

are certainly worthy of appointment and I would ask them to come

up and sit with me up here while I introduce them, if I could. Mr.

Marbley and Judge Gwin, would you come up, please? Thank you.

They both have had very distinguished careers, and before I go

on to scribe some of the qualities in these gentlemen that I believe

make them well suited to serve on the Federal bench, I want to

take just a moment to recognize their families who have traveled

with them here today to share in this proud moment. As I read

your names, if you would just stand back there, I would appreciate

it so you could be recognized.

We have Mr. Marble/s wife, Janet Green Marbley, as well as

their two sons, Algenon, Jr. and Aaron Marbley. They are both

45-964 98-12
342

here. They are joined by Mr. Marbley's mother, Ann Johnson. We

thank you for coming in today.

We also have Judge Gwin's wife, Bonnie Gwin, their two sons,

John and Michael Gwin, and Judge Gwin's mother, Carol Gwin.

Thank you all for coming here today. I am not sure who is minding

the store back home, Mr. Chairman, but they have quite a contingent in here.

This committee has a large amount of information on these nominees. I will not try and go through it all. I will just sort of summarize or highlight some of the things I believe make them outstanding nominees.

Jim Gwin currently sits as a Stark County Court of Common

Pleas judge, where he has presided for the last 7 years. Judge

Gwin has earned a reputation for hard work. Since 1989, he has

presided over more jury trials than any other general division

judge in the State of Ohio. Judge Gwin has presided over 440 jury

trials, including 225 felony trials, 19 of which were murder trials.

Where the average is 15 jury trials per year, Jim Gwin has averaged more than 50 jury trials per year, so we would definitely be

getting a hard worker, Mr. Chairman, when we get Jim Gwin.

When not hearing cases. Judge Gwin has been active with the

Ohio Judicial Conference, chairing the court technology subcommittee and serving as a member of the court reform committee. He has

also worked in the community on behalf of the Central Stark County United Way, the Central Stark County Mental Health Center,

the East Central Ohio Juvenile Diabetes Foundation, and the Canton Group Home. Judge Gwin has also been a lecturer at the Ohio

Judicial College.

In my opinion. Judge Gwin has demonstrated the talent, the intellectual capacity and commitment to public service to make an

exceptional addition to the Federal bench in the Northern District

of Ohio.

I would also like to introduce to the committee Mr. Algenon

Marbley, or Monte Marbley, as he is better known. Mr. Marbley is

a partner in the law firm of Vorys, Sater, Seymour & Pease. He,

too, is exceptionally well qualified to serve on the Federal bench.

He has had 18 years of excellent experience as a trial lawyer, both

in the public sector, for the U.S. Department of Health and Human

Services, and in the private sector, with Vorys, Sater. Mr. Marbley

has had substantial trial experience at the Federal and State levels

in civil and criminal matters, both in jury and nonjury trials.

Monte Marbley has significant academic experience as an adjunct professor at both the law school and undergraduate levels

and he has taught trial advocacy to lawyers at the National Institute for Trial Advocacy for the past 10 years.

Like Judge Gwin, Mr. Marbley has also taken the time to play

an active role in his community. He has worked as a leader in organizations assisting disadvantaged youth in the Columbus area.

He has served as secretary and counsel to the board of directors

of the Big Brothers and Big Sisters Association of Franklin County.

He has served for 7 years on the board of directors and 2 years as

president of the Salesian Boys and Girls Club, which serves economically disadvantaged inner-city youth. He also has served in

leadership positions for the Franklin County United Way Cam-
343

paign and the United Negro College Fund. In 1995, he was honored

as 1 of the top 10 outstanding young citizens of Colunnbus, OH.

Mr. Chairman, I recommend Jim Gwin and Monte Marbley without any reservation whatsoever and I believe both of them will

make very, very fine Federal judges. They have the demonstrated

ability and they have the temperament to be able to dispense justice fairly and impartially and I am confident the committee will

agree with this assessment and I hope to see their very swift confirmation.

Thank you very much, Mr. Chairman.

Senator DEWINE. Senator Glenn, thank you for that fine statement.

Let me turn now to our colleague from the State of New York,

Senator D'Amato.

STATEMENT OF HON. ALFONSE M. D'AMATO, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator D'AMATO. Thank you very much, Mr. Chairman. Might

I ask that as I introduce the nominees, they have an opportunity

to come forward.

First, it is my pleasure on behalf of both myself and Senator

Moynihan, who has submitted an extensive statement, and let me

just read a little part of it. He said today is a great day for New

York, and he talks to the honor and privilege it is for him to put

forth and join with me in support of three of the wonderful nominees that will be before this committee.

I am going to ask Mr. Richard Casey, who is the President's

nominee for the southern district. This nomination follows the nomination of Mr. Casey by President Bush. Not very often do we get

one nominee nominated by two Presidents for the same job, two

Presidents of different parties. I think that is a testimony to our

Presidents, their administrations, the Justice Department, and to

the caliber of the nominee.

Second, Judge Sotomayor, who comes before the committee for

the second time. It was less than 5 years ago when the judge was

nominated for the southern district, a position that she has held

now for almost 5 years and she is now nominated to one of the

most important courts in the land, the Courts of Appeals, Second

Circuit.

Then Judge Charles Siragusa from Rochester, whose wife went

to law school, coincidentally, with my son, Christopher. I think she

helped him get through. [Laughter.]

By the way, I want you to know that this 's not a payback, that,

indeed, I have been privileged to support this nomination.

Judge Siragusa was brought to the attention of the President by

Senator Moynihan. Were it not for Senator Moynihan feeling somewhat under the weather, as he has a heavy, heavy cold, he would

be here. I ask that his statement be inserted in the record as if

read.

Senator DEWINE. His statement will be made a part of the permanent record.

Senator Torricelli.
344

Senator TORRICELLI. Mr. Chairman, I had three statements from

him. Senator D'Amato, do you have all three statements from Senator Moynihan?

Senator D'AMATO. Yes; all three of them, and that is why I wanted to characterize his statement as this being a great day for the

judicial system of this country, but particularly as it relates to

these three magnificent individuals.

[The prepared statements of Senator Moynihan follow:]

PREPARED STATEMENT OF SENATOR DANIEL PATRICK MOYNIHAN ON THE CONFIRMATION OF SONIA SOTOMAYOR FOR THE UNITED STATES COURT OF APPEIALS FOR THE

SECOND CIRCUIT

It is my great honor today to support Sonia Sotomayor, a most exemplary candidate for the United States Court of Appeals for the Second Circuit.

In March of 1991, I had the pleasure of recommending Sonia Sotomayor to be a

U.S. District Court Judge for the Southern District of New York, a position which

she currently holds. Her career as a District Court Judge has been a distinguished

one. She has presided over a number of high profile cases, including one which, to

the delight of baseball fans everywhere, put an end to a bitter strike in 1995. I>uring the five year tenure, her decisions have been reversed only six times—an outstanding record.

Judge Sotomayor is a former Assistant District Attorney with the New York

County District Attorney's office and was a partner at the law firm of Pavia & Harcourt. She has considerable experience in criminal law from her work as a prosecutor, as well as commercial litigation from her days in private practice.

Her academic achievements are truly outstanding. She was graduated summa

cum laude from Princeton University in 1976, where she was elected Phi Beta

Kappa and was a co-winner of the M. Taylor Pyne Honor Prize, awarded to the

graduating senior who has most clearly manifested excellent scholarship and effective support of the best interests of the University. She received her law degree from

Yale University, where she was an Editor for the Yale Law Journal.

I believe that Judge Sotomayor's considerable accomplishments merit appointment to the United States Court of Appeals for the Second Circuit and I am confident that, upon confirmation, she wall serve with high distinction.

PREPARED STATEMENT OF SENATOR DANIEL PATRICK MOYNIHAN ON THE CONFIRMATION OF CHARLES J. SIRAGUSA TO BE UNITED STATES DISTRICT JUDGE FOR THE

WESTERN DISTRICT OF NEW YORK

I am pleased to present to the committee New York State Supreme Court Justice

Charles Joseph Siragusa, nominated to be United States District Judge for the

Western District of New York.

Might I note that my judicial screening panel interviewed more than twenty applicants to fill the vacancy that resulted when Judge Michael A. Telesca took senior

status. There were, as one might have expected, many splendid candidates. However, Judge Charles J. Siragusa stood out.

Judge Siragusa has served with great distinction in the Seventh Judicial District

He was elected to the State Supreme Court in 1992, following fifteen years as a

prosecutor with the Monroe County District Attorney's office. In that capacity he

tried over 100 felonies and was involved in a number of significant criminal cases

including the prosecution of Arthur J. Shawcross, a serial killer responsible for the

deaths of eleven women. He received widespread recognition and praise for his work

on that case.

A native of Rochester, Judge Siragusa was graduated from LeMoyne College in

DeWitt, New York in 1969. He received his law degree from Albany Law School

1969 and has been a member of the New York State Bar since 1977.

Judge Charles J. Siragusa is a man of great intelligence and unwavering principle. I am confident that, upon confirmation, he will serve with honor and distinction.
345

PREPARED STATEMENT OF SENATOR DANIEL PATRICK MOYNIHAN ON THE CONFIRMATION OF RICHARD C. CASEY AS A U.S. DISTRICT COURT JUDGE FOR THE SOUTHERN

DISTRICT OF NEW YORK

It is my great privilege to support the confirmation of Richard Conway Casey, a

nominee for United States District Judge for the Southern District of New York.

Mr. Casey has been associated with the New York firm of Brown & Wood for over

thirty years, serving as a partner for fourteen years before becoming Of Counsel to

the firm in 1984. During his time in private practice, he has specialized in securities, corporate and criminal litigation.

Earlier in his career, he served as Assistant United States Attorney for the Southem District of New York and investigated public corruption as counsel to a Special

Commission of the State of New York, commonly known sis the Moreland Act Commission.

Might I add that Mr. Casey has benefited from the rigors of a Jesuit education.

He was graduated from the College of the Holy Cross in 1955 and went on to receive

his law degree at Georgetown University Law center in 1958. At Georgetown he was

the recipient of the Beaudry Cup for best Moot Court argument in his class. He

later went on to be a finalist in the National Moot Court Competition.

It is an honor to introduce Mr. Casey to the Committee today. I am quite confident that upon his confirmation he will serve New York with distinction.

Senator D'AMATO. Let me say, I am going to ask that my full

statement be included in the record as if read in its entirety, because I have these loquacious speech writers who have gone into

every detail of all of the candidates and their lives. Some, they

might want to hear. Others would be—well, no.

Senator DEWINE. It will be made a part of the record.

Senator D'AMATO. Let me say that it is a great privilege and

honor to nominate Dick Casey. Dick Casey's impressive legal career

is quite extraordinary. But I think more extraordinary is the fact

that over the past several years, Mr. Casey's legal work has shifted

slightly as a result of his blindness. He is blind. He would be the

first district court judge who would be nominated for this position

and take the bench as a person who has no sight—who is legally

blind.

There is no doubt as to his legal acumen. There is no doubt as

to the brilliance of his academic record and his distinguished career

before the bar. Even after he lost his sight, he remained vigorous

in actively practicing law, probably more than most. His tenaciousness toward justice and fairness will never be impeded by his loss

of sight.

We had a distinguished panel of jurists before our committee

who came forward with this nominee and who explored the question as to whether or not he would be able to discharge the duties

as a trial justice. This was headed by the former chiefjustice of the

southern district. Their recommendation was unanimous in terms

of indicating that Dick Casey could do the job.

1 believe that not only is he eminently qualified by way of his

background and his experience, but his success in the face of the

disability that he has had to deal with will give further testimony,

living proof, to his great personal strength and it will be an inspiration to Americans and many others that we are winning the battle against the prejudice toward the disabled. As always, he will be

a trail blazer, opening new doors for others.

Let me just add, for the record, just some of his credentials. I

might mention that those who know him best have come forward

and are here today, not only his family but one of the great U.S.

attorneys from the Southern District of New York, a great prosecu-
346

tor in his own right is here today to lend his support to his friend

and colleague, former U.S. attorney Otto Obermeyer.

Mr. Casey's impressive legal career began as an assistant U.S.

attorney in the Southern District in the Criminal Division. He

joined the special commission for the State of New York investigating public corruption, and for over three decades, he has been practicing with Brown and Wood in New York City. So it is my distinct

pleasure to put forward this nominee.

As it relates to Justice Sotomayor, what can one say? But only

in this country, the daughter of a humble working family has risen

by way of her legal scholastic stewardship to the highest trial court

in the Federal district, the premiere district, I might add with some

prejudice, the Southern District of New York, where she has distinguished herself.

I predicted to this committee almost 5 years ago that Judge

Sotomayor would be an exemplary, outstanding justice. She has

demonstrated that repeatedly. She has shown compassion, wisdom,

one of the great intellects on the court. Her experience both as a

prosecutor, civil litigator, and Federal trial judge makes her an exceptionally qualified candidate for the second circuit. She is here

with her beautiful mama, and I am wondering if we could have

your mother stand. Mrs. Sotomayor, congratulations to you.

Last but not least is Judge Siragusa, and I want you to know

that the judge comes with one of the most highly rated records as

a great trial judge, sitting in the Supreme Court in Monroe County,

having served as first assistant district attorney and thereafter

being recognized by more groups than one could possibly mention

in terms of his service to community and in terms of his legal stewardship.

Of all of his great accomplishments, I might add, is the fact that

the judge graduated from a wonderful school, and you know that

my chief and top administrative assistant put this in. He said,

after graduating from a wonderful college, LeMoyne College in S5Tacuse. So I want you to know, judge, that Mike Kinsella has never

forgotten that kinship and we share that with this committee

today.

I recommend him to this committee, along with Senator Moynihan, recognizing that the President has chosen well and also that

this district is one of the busiest districts, most overworked districts, in the country and they certainly could use the judge as

quickly as possible.

Mr. Chairman, it is a great honor to recommend these three

nominees and join with our senior Senator in presenting them to

the committee today.

Senator DEWINE. Senator D'Amato, thank you very much for

joining us.

[The prepared statements of Senator D'Amato follows:]

PREPARED STATEMENT OF SENATOR ALFONSE D'AMATO INTRODUCING SONIA

SOTOMAYOR

I am pleased to join my colleague, Senator Moynihan in the introduction of Judge

Sonia Sotomayor to the Senate Judiciary Committee.

Several years ago I introduced Judge Sotomayor to the Judiciary Committee when

she was nominated to the federal bench in the Southern District of New York. I was
347

conBdent then that she would be a fine addition to the federal bench and, nearly

5 years later, I remain confident of her abilities and fairness as a federal judge.

After graduating from Princeton University, Summa Cum Laude, and then earning a law degree from Yale, where she served as editor of the Yale Law School Journal, Judge Sotomayor worked in the New York County District Attorney's Office.

She joined the law firm of Pavia & Harcourt and made Partner in 1988. In private

practice. Judge Sotomayor has had significant experience in general civil litigation

mcluding real estate, employment, contract, intellectual property law and export

commodity trading.

Judge Sotomayor has exercised her civic duties as a Board Member of a number

of organizations, including the Puerto Rican Legal Defense & Education Fund, the

New York State Mortgage Agency and the New York City Campaign Finance Board.

During her term in the Southern District of New York, she received numerous

honors including the "Distinguished Woman in the Field of Jurisprudence" by the

Secretary of State of Puerto Rico, "Recognition of Outstanding Achievement and

Dedication to the Latino Community" by the Latino American Law Student Association of Hofstra University School of Law and an Award for "Outstanding and Dedicated Service to the People of New York County" by the District Attorney's Office.

Her "Lifetime Achievement Award" was presented to her by both the National Puerto Rican Coalition and the Hispanic National Bar Association.

Judge Sotomayor's experience as prosecutor, civil litigator, and federal district

court judge makes her an exceptionally qualified candidate for the Second Circuit.

Her extensive knowledge of the law and ner experience deciding federal cases prepares her for the complex legal decisions that must be made by Circuit Court

judges.

I thank the Committee for this opportunity to present Judge Sotomayor and urge

the Committee's swift consideration of her nomination to the Second Circuit.

PREPARED STATEMENT OF SENATOR ALFONSE D'AMATO INTRODUCING CHARLES

JOSEPH SIRAGUSA

I am pleased to introduce Mr. Charles Siragusa to the Senate Judiciary Committee. As the Committee is aware, the President has nominated Judge Siragusa to the

position of District Court Judge for the Western District of New York.

I would like to take a moment to recognize his family members who are present—

his bride (as of August 30, 1997) Lisa Serio Siragusa and his new parents-in-law,

Mr. and Mrs. James Serio. (In fact. Judge Siragusa would have been before the

Committee weeks ago had he been able to get a plane back from his honeymoon.)

Judge Siragusa is from Rochester, New York and has been a life-long New Yorker.

After graduating from a wonderful school, LeMoyne College in Syracuse, and working for several years as a teacher in a Rochester school, Judge Siragusa entered law

school, and graduated from Albany Law School.

Judge Siragusa's impressive legal career began as an Assistant District Attorney

with the Monroe County District Attorney's Ofiice. He was promoted to First Assistant District Attorney and was employed in that position for eight of his fifteen years

of service. Judge Siragusa's work at the prosecutor's ofiice has been recognized by

many groups, awarding him distinguishing honors including, among others, the

Gannet Rochester Times Union's Person of the Year (1991), Honorary Deputy Chief

of the Rochester Police Department (1991), Exemplary Service Award from the Monroe County Sheriffs Department (1991) and a Distinguished Service Award for his

contribution to the Italian American Community-Counsel General of Italy (1996).

Since 1993, Judge Sira^sa has served New York State as a State Supreme Court

Judge in Rochester, deciding cases in a fair and equitable manner.

This nominee has also served in several community positions, volunteering his

leadership and knowledge for people in need. He has sat on the Advisory Board for

Rape Crisis and the Families and Friends of Murdered Children and Victims of Violence.

I thank the Committee for allowing me this opportunity to introduce Judge

Siragusa and I look forward to swift action on his nomination.

PREPARED STATEMENT OF SENATOR ALFONSE D'AMATO INTRODUCING RICHARD

CONWAY CASEY

It is an honor for me to introduce Richard Casey to the members of the Senate

Judiciary Committee—a highly regarded and respected lawyer, and a close personal

friend, who President Bill Clinton has nominated to the Southern District of New

York, echoing a prior endorsement by former President George Bush.
348

After graduating from the College of Holy Cross, Mr. Casey attended Georgetown

University Law Center. A sign of his future abilities, he became a finalist in a national competition for his moot court team. He served his country in the United

States Army and served overseas before he was honorably discharged.

Mr. Casey's impressive legal career began as an Assistant U.S. Attorney with the

U.S. Attorney's Office, Criminal Division, in the Southern District of New York. He

joined the Special Commission for the State of New York investigating public corruption.

For over three decades, Mr. Casey has been practicing with Brown & Wood in

New York City, elected to partner in 1970 and Counsel in 1984, practicing complex

securities, corporate and criminal litigation.

Over the past five years, Mr. Casey's legal work has shifted slightly as a result

of his blindness but there is no doubt he remains vigorously active in the practice

of law, probably more than most. His tenaciousness toward justice and fairness will

never be impeded by his loss of sight.

What some may view as a disability has only strengthened his resolve for equity

and justice. He served as Director of Guiding Eyes for the Blind, a non-profit school

for training of guide dogs and the blind and Director of Catholic Guild for the Blind,

a nonprofit organization dealing in rehabilitation of the blind.

In addition to his work with these groups, Mr. Casey has shared his incredible

knowledge of the law, civil and criminal, as the Chairman of the American Bar Association Committee on Securities Litigation from 1975 to 1977 and as a member

of the Southern District of New York 'Trial and Appellate Panel representing indigent defendants in criminal trials and appeals for twenty years.

Mr. Casey was appointed by the Honorable Jack Weinstein to serve on the Special

Commission on Discovery Abuse, amending local rules, and previously served, at the

request of Chief Justice Warren Burger, on the Special Committee for Discovery

Abuse, which issued a report recommending amendments to the Federal Rules of

Civil Procedure.

Whether a criminal case or a civil, with a disability or without, Mr. Casey has

earned the tremendous reputation that has followed him throughout his career. His

extensive knowledge of the law, thoughtful consideration and his demonstrated leadership make him an exceptionally well qualified candidate for this position.

Besides being eminently qualified to serve in this position, his success in the face

of his disability is further testament of his great personal strength. His appointment

shows that in America we are winning the battle against prejudice towards the disabled. As always, he will be a trailblazer, opening new doors for others.

I strongly support his nomination and urge the Committee's swift consideration.

Senator DEWINE. Let me turn now to my colleague from the

State of Tennessee, Senator Thompson.

STATEMENT OF HON. FRED THOMPSON, A U.S. SENATOR

FROM THE STATE OF TENNESSEE

Senator THOMPSON. Thank you, Mr. Chairman.

Mr. Oilman, would you come forward, please.

Senator DEWINE. I see our colleague from Tennessee, also. Senator Frist, is here.

Senator THOMPSON. Mr. Chairman and fellow members of the

committee, I am pleased to come here today before you to introduce

Ronald L. Oilman, the President's nominee to fill a vacancy in the

U.S. Court of Appeals for the Sixth Circuit. I want to start by acknowledging my gratitude and the gratitude of all lawyers who

Eractice before the sixth circuit to our chairman for scheduling a

earing on Mr. Oilman's nomination so promptly.

Before I summarize Mr. Oilman's accomplishments to the committee and explain why I believe he merits the committee's approval, I want to say a brief word to recognize Judge Ted Milbum,

whose seat Mr. Oilman will be filling if he is confirmed.

Judge Milbum has served the people of Tennessee and the

United States as a judge for almost a quarter of a century, first as

a State trial judge and, since 1983, a Federal judge. Judge Milbum
349

is widely regarded throughout the sixth circuit as a leader on the

court. On behalf of all Tennesseeans, I want to thank him for his

service and wish him well in his retirement. Mr. Oilman has big

shoes to fill.

Let me turn now to the nominee before you today. Mr. Oilman

is a native of Memphis and attended high school at Christian

Brothers Academy in Memphis, from which he graduated as valedictorian. He left Tennessee for college and law school in Massachusetts, attending the Massachusetts Institute of Technology and

Harvard Law School. After graduating cum laude from Harvard in

1967, Mr. Oilman returned to Memphis, where he has practiced

ever since in one of Tennessee's leading law firms, Ferris, Mathews, Oilman, Branan & Hellen. I might point out that the Mathews in that firm name is former Senator Harlan Mathews. I

might also point out that my son is a member of that firm.

Mr. Oilman rapidly became established as a leader of the Memphis bar, serving as the president of the young lawyers division of

the Memphis Bar Association and president of the young lawyers

conference of the Tennessee Bar Association. He subsequently

served a term as president of both the Memphis Bar Association

and the Tennessee Bar Association. In recognition of Mr. Oilman's

leadership at the bar, he was appointed to serve on the Tennessee

Court of the Judiciary, which hears disciplinary cases against State

judges. He has also served occasionally as a special judge in the

State courts in Memphis.

Mr. Oilman has been a leader not just in the Memphis bar but

in the Memphis community, as well. He has served on the board

of directors of the Chickasaw Council for the Boy Scouts of America, the Memphis Jewish Home, and the Memphis Senior Citizens

Services, among other groups. In 1981, Mr. Oilman was awarded

the Sam A. Myar, Jr. Memorial Award for outstanding service to

the legal profession and the Memphis community.

Perhaps most interesting of all is Mr. Oilman's membership in

the Society of Memphis Magicians, which he served as president in

1986. While this gives me a little concern, I assume he will restrict

himself to pulling rabbits out of his hat and not judicial decisions.

Mr. Oilman is an extremely well-qualified and unusually wellrounded nominee. While his practice is concentrated on litigation,

particularly commercial litigation, he also has engaged in estate

planning and general business law. Not only is he experienced in

civil law, but in criminal law, as well, as he has represented a

number of indigent criminal defendants in Federal court.

More recently, Mr. Oilman's practice has focused on the practice

of alternative means of dispute resolution, such as arbitration and

mediation. Mr. Oilman has often served as an arbitrator and mediator for groups like the American Arbitration Association and the

National Association of Securities Dealers. With the backlog in civil

litigation throughout the Nation, I think it is important to recognize the importance of the nominee's experience in this area. Not

only is this experience similar to the experience of being a judge,

but it will no doubt help him bring a special insight to a variety

of procedural issues to help the civil litigation system work better.

1 know his wife, Betsy, is here today. I know he will want to introduce her. I want to thank again Chairman Hatch for scheduling
350

this hearing and you, Mr. Chairman, for presiding today. I am confident that after hearing from Mr. Oilman, the committee will favorably report his nomination and that the full Senate will confirm

him promptly. Thank you very much.

Senator DEWINE. Let me turn to the other Senator from the

State of Tennessee, Senator Frist. I also saw Congressman Ford

back there. Congressman, CEin you come on up and join us?

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

STATE OF TENNESSEE

Senator FRIST. Thank you, Mr. Chairman. I will join my colleague from Tennessee in welcoming the opportunity to introduce

Mr. Ron Oilman, who has been nominated to fill the vacancy in the

Sixth Circuit Court of Appeals. The President has chosen wisely in

his selection of Ron Oilman of Memphis, TN, to fill this vacancy

and it is an honor for me to be here to speak on his behalf

I have heard from many Tennesseeans since the nomination from

across the State, and uniformly and unanimously, they have called

to express their support, their full support, for this nomination. Mr.

Oilman will make an outstanding judge and do a tremendous job

in serving Tennessee, as well as the entire sixth circuit.

His experience, which has been outlined to you, is diverse and

impressive. His reputation throughout Tennessee is fair and deliberative, all of which speaks volumes toward his integrity. I am

proud to support this outstanding nominee, was glad to have the

opportunity to meet his family earlier today, and look forward to

completion of this nomination process.

Senator DEWINE. Senator Frist, thank you very much.

Congressman Ford, welcome.

STATEMENT OF HON. HAROLD E. FORD, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TENNESSEE

Mr. FORD. Thank you, and I certainly thank my Senators, Mr.

Thompson and Mr. Frist, for their leadership on this. I welcome my

friend and certainly the future sixth circuit jurist, Mr. Oilman, and

his family. I know his wife Betsy, if she would not mind standing,

and certainly his daughter. Sherry, who is there in the back. I

know Laura was not able to be with the soon-to-be jurist today, but

I am sure she would be proud of her father.

I thank Chairman Hatch, and certainly, again, my Senators for

moving this process forward in the way that they were able to and

did. I would certainly say that Mr. Oilman's nomination, the way

that this Senate has conducted itself, I believe, is a clear illustration of how this process can and should work when partisan politics

takes a back seat to the pressing needs of our judiciary.

I thank you again, Mr. Chairman, for scheduling this hearing

and I congratulate my friend, Mr. Oilman, again.

Senator DEWINE. Congressman, thank you very much.

I have a statement that Senator Leahy has asked me to place in

the record. It will be made, without objection, a part of the record

today.

[The prepared statement of Senator Leahy and President Clinton's radio address on judicial nominations follow:]
351

PREPARED STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE

OF VERMONT

I commend the Chairman for holding this confirmation hearing for judicial nominees this afternoon and, in particular, for including Judge Sonia Sotomayor among

those being considered. Judge Sotomayor has been an outstanding Federal District

Court Judge. She was nominated to fill a vacancy on the Second Circuit Court of

Appeals last June. There are currently four vacancies among the 13 judgeships that

constitute that distinguished court. The Chief Judge of Second Circuit recently testified that in light of these vacancies 80 percent of Second Circuit 3-judge panels over

the next 12 months will have to be filed by visiting judges, since there are simply

not enough Second Circuit judges to complete them and to hear all the cases that

need attention. I hope that we will proceed without delay to consider the nomination

of Judge Sonia Sotomayor to the Second Circuit and move promptly to fill the vacancies plaguing the Second Circuit.

I note that we are also considering the nomination of Ronald Oilman to the Sixth

Circuit, which nomination was received in July 16; the District Court nominations

of Charles Siragusa and Richard Casey to the Western and Southern Districts in

New York, which nominations were both received in mid-July; the District Court

nominations of James Gwin and Algenon Marbley to the Northern and Southern

Districts in Ohio, which nominations were received in late July and the District

Court nomination of Dale Kimball to the District of Utah, which nomination was

received on September 5, less than one month ago. I expect that Senator Thompson

and Senator DeWine are likewise appreciative of the Chairman's willingness to include these nominees in this hearing. The confirmation process for the vacancy in

Utah is likely to set the standard for how promptly this Committee can proceed to

review and report federal judgeship nominations. We all look forward to Mr.

Kimball's speedy confirmation.

Unfortunately, this is only the sixth confirmation hearing for judicial nominees

that the Committee has convened all year. By this time two years ago, the committee had held nine confirmation hearings involving 36 judicial nominees.

While I am encouraged that the Committee is today proceeding with a hearing

on these six nominees, there remains no excuse for the Committee's delay in considering the nominations of such outstanding individuals as Professor William A.

Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret

McKeown, Ms. Ann L. Aiken, and Ms. Susan Oki MoUway, to name just a few of

the outstanding nominees who have all been pending all year without so much as

a hearing. Professor Fletcher and Ms. MoUway had both been favorably reported

last year. Judge Paez and Ms. Aiken had hearings last year but have been passed

over so far this year.

After this hearing, which is the first time this year the Committee has been willing to hold two hearings in any one calendar month, the Committee will still have

pending before it more than 40 nominees in need of a hearing from among the 69

nominations sent to the Senate by the President during this Congress. From the

first day of this session of Congress, this Committee has never had pending before

it fewer than 20 judicial nominees for hearings. The Committee's 'oacklog has now

doubled and is more than 40. Many of these nominations were before us last Congress, during the election year slowdown, and have had to be re-nominated by the

President. The vacancies for which they are nominated have not been filled but persist for periods now reaching years. For exfunple, the Committee has 10 nominees

who have been pending for more than a year, including five who have been pending

since 1995. Thus, while I am delighted that we are moving more promptly with respect to the nominees being considered today, I remain concerned about the other

vacancies and other nominees.

Some of those pending before the Committee had hearings or were reported favorably by the Committee last Congress but have been passed over so far this year as

the vacancies for which they were nominated more than two years ago persist. The

President has sent us 69 judicial nominations so far this year and is sending more

each week. Over the last three weeks, apparently in anticipation of the President's

radio address on the judicial vacancy crisis, the Senate doubled its confirmations

from 9 to 18 in the course of 23 days. I expect even those who have spent so much

time this year holding up the confirmations of federal judges were uncomfortable

defending this Senate's record of having proceeded on only 9 of the 61 nominees received through August of this year. With the two confirmations last Friday, the Senate achieved the snail-like pace of confirming two judges a month over the course

of this year, while still faced with almost 100 vacancies.

The Senate continues to lag well behind the pace established by Majority Leader

Dole and Chairman Hatch in the 104th Congress. By this time two years ago, the
352

Senate had confirmed 36 federal judges, double the number achieved this year. For

purposes of perspective, let us also recall that by the end of September 1992, during

the last year of the President Bush's term, a Democratic majority in the Senate had

confirmed 59 of the 72 nominees sent to us by a Republican President. This Senate

is on pace to confirm less than one-third of a comparable number of nominations.

Those who delay or prevent the filling of these vacancies must understand that

they are delaying or preventing the administration of justice. We can pass all the

crime bills we want, but you cannot try the cases and incarcerate the guilty if you

do not have judges. The mounting backlogs of civil and criminal cases in the dozens

of emergency districts, in particular, are growing taller by the day. National Public

Radio broadcast a series of reports all lasts week on the judicial crises and quoted

the Chief Judge and U.S. Attorney from San Diego earlier this week to the effect

that criminal matters are being afiected.

I have spoken about the crisis being created by the vacancies that are being perpetuated on the Federal courts around the country. At the rate that we are going,

we are not keeping up with attrition. When we adjourned last Congress there were

64 vacancies on the federal bench. After the confirmation of 18 judges in nine

months, there has been a net increase of 30 vacancies, an increase of almost 50 percent in the number of federal judicial vacancies.

The Chief Justice of the Supreme Court has called the rising number of vacancies

"the most immediate problem we face in the federal judiciary.' Chairman Hatch has

said that we can do better. I agree with them and add that we must do better. I

have urged those who have been stalling the consideration of these fine women and

men to reconsider their action and work with us to have the Committee and the

Senate ftilfiU its constitutional responsibility.

This weekend the President of the United States devoted his national radio address to the threat being posed to our judicial system by those who are intent on

partisan and ideological intimidation of federal judges. I ask that a copy of the

President's Radio Address on Judicial Nominations from September 26, 1997, be included in the record.

RADIO ADDRESS OF THE PRESIDENT TO THE NATION

The PRESIDENT: Good morning. I want to talk this morning about a very real

threat to our judicial system. For more than 220 years our nation has remained

young and strong by meeting new challenges in ways that renew our oldest values.

Throughout our history our judiciary has given life and meaning to those values by

upholding the laws and defending the rights they reflect, without regard for politics

or political party.

That is the legacy of the judicial system our founders established, a legacy we recalled this Thursday on the 40th anniversary of the court-ordered desegregation of

Little Rock Central High School.

But in the past 18 months this vital partnership has broken down as the Senate

has refiised to act on nomination afi^r nomination. And in federal courthouses

across America, almost 100 judges' benches are empty. In 1996, the Senate confirmed just 17 judges—that's the lowest election-year total in over 40 years.

This year I've already sent 70 nominations to Congress, but so far they've acted

on less than 20. The result is a vacancy crisis in our courts that Supreme Court

Chief Justice William Rehnquist warned could undermine our court's ability to fairly administer justice.

Meanwhile, our courts are clogged with a rising number of cases. An unprecedented number of civil cases are stalled, affecting the lives of tens of thousands of

Americans—from the family seeking life insurance proceeds, to the senior citizen

trying to collect Social Security benefits, to the small business protecting its right

to compete. In our criminal courts nearly 16,000 cases are caught in limbo, while

criminals on bail await punishment and victims await justice. Our sitting judges are

overloaded and overworked, and our justice system is strained to the breaking point.

The Senate's failure to act on my nominations, or even to give many of my nominees a hearing, represents the worst of partisan politics. Undfer the pretense of preventing so-called judicial activism, they've taken aim at the very independence our

founders sought to protect. The congressional leadership has actually threatened sitting judges with impeachment, merely because it disagrees with their judicial opinions. Under this politically motivated scrutiny, under ever-mounting caseloads, our

judges must struggle to enforce the laws Congress passes and to do justice for us

Edl.

We can't let partisan politics shut down our courts and gut our judicial system.

I've worked hard to avoid that. And the people I've nominated for judgeships and
353

had confirmed have had the highest rating of well qualified fi'om the American Bar

Association of any President since these ratings have been kept.

So today I call upon the Senate to fiilfill its constitutional duty to fill these vacancies. The intimidation, the delay, the shrill voices must stop so the unbroken legacy

of our strong, independent judiciary can continue for generations to come. This age

demands that we work together in bipartisan fashion—and the American people deserve no less, especially when it comes to enforcing their rights, enforcing the law,

and protecting the Constitution.

Thanks for listening.

Senator DEWINE. We will now proceed with our circuit court

nominees. I would ask our two nominees to come forward. We

apologize for moving everyone around, but I think that we will proceed with two panels, starting with the circuit court nominees.

As you come up, I will just ask you to remain standing and take

the oath. Do you swear the testimony you shall give in this hearing

shall be the truth, the whole truth, and nothing but the truth, so

help you, God?

Mr. OILMAN. I do.

Judge SOTOMAYOR. I do.

Senator DEWINE. Thank you both for joining us today. We will

start with Mr. Oilman. Mr. Oilman, is there anyone in the audience who is with you that has not been introduced that you would

like to introduce? This is sort of a family day here today, which is

just fine with me.

TESTIMONY OF RONALD LEE GILMAN, OF TENNESSEE, TO BE

U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT

Mr. OILMAN. Well, I appreciate it, Mr. Chairman. My wife, I believe, has been introduced, and my daughter. Sherry. Also, I have

my cousins from Chevy Chase, Marian and Leon Blum.

Senator DEWINE. Let us have them all stand up, or maybe they

are standing up already.

Mr. OILMAN. And I have three friends of my daughter Sherry,

Rhonda Rivens, Allison Issacman, and Stuart Frisch are all here,

living in the Washington, DC area. Thank you very much.

QUESTIONING BY SENATOR DE WINE

Senator DEWINE. Mr. Oilman, all of us have interest in all of the

nominees. I obviously have a special interest in your nomination,

because you will be serving in the sixth circuit. The State of Ohio,

of course, also happens to be part of the sixth circuit.

I notice in your resume that you have worked as an arbitratormediator for the American Arbitration Association. I think you also

worked as a referee in the Dalkon shield litigation.

Mr. OILMAN. Yes, Mr. Chairman.

Senator DEWINE. You have written on this topic. I wonder if you

could just comment for us as to whether you think our system uses

mediation enough, both at the Federal level and at the State level.

Mr. OILMAN. My own experience, of course, is in the Tennessee

courts and it is just coming of age. It was just this year, as a matter of fact, that the Tennessee Supreme Court adopted an official

rule for mediation. The Western District of Tennessee just set up

its program this year. I believe it is something that has been quite

helpful. I know the sixth circuit several years ago set up a special
354

counsel's office to try to resolve disputes, even when they reached

the court of appeals.

It seems to me a way of shortening the process of resolving civil

cases and the statistics show that about 80 percent of cases that

are mediated end up being resolved. So I think the parties are better off and the courts are better off because it unclogs the system

a good bit.

Senator DEWINE. What is your opinion? Are we using this to its

fullest potential in the Federal system?

Mr. OILMAN. It is not yet, in my own experience in the Western

District of Tennessee, not being fully—^but it is just in the process

of being utilized. I expect, though, as I have talked to colleagues

in the States of, for example, Texas and Florida, where it has been

in existence for approximately 10 years, I understand it has gotten

to the point in those States where you cannot go to trial until you

first try mediation, and that is probably the direction that we are

going in, which, in fact, I think is healthy, as particularly mediation is not binding and the parties are not obligated to settle, so

if they have to go to court, they certainly have the opportunity and

the legal right to do so. But on the other hand, many of these civil

cases get resolved far earlier and at far less expense to the parties

than if they had to go through traditional litigation.

Senator DEWINE. Mr. Oilman, during your tenure as president of

the Tennessee Bar Association, the Association drafted a professional creed for Tennessee lawyers. Is there anything particularly

unique about that professional creed that we should take note oP

Mr. OILMAN. Only that probably the thing that seems most importamt is the need for attorneys to disagree without being disagreeable. Unfortunately, it seems to be more and more as the profession grows where the lawyers do not have regular contact with

each other on a repeated basis that you find less civility in the

process and that then reflects on the cost to the litigants and the

prolonging of the litigation and the need for lawyers to be able to

cooperate, particularly on procedural matters that do not affect the

substance of the case, but rather than just schedule a deposition

date and then have problems, oh, I am going to be out of town, to

talk to each other first and do things informally, where it does not

affect the merits but yet it greatly aids in the case being processed

through the system, and that is sort of the heart of the professionalism and the creed standards.

Senator DEWINE. Thank you.

Senator Thurmond.

QUESTIONING BY SENATOR THURMOND

Senator THURMOND. Thank you, Mr. Chairman. Judge

Sotomayor, a former Supreme Court Justice has expressed his view

of consitutional interpretation as follows, and I quote, "We look to

the history of the time of framing of the Constitution and the intervening history of interpretation, but the ultimate question must be,

what do the words and the text mean in our time?" Do you agree

with that statement?
355

TESTIMO^fY OF SONIA SOTOMAYOR, OF NEW YORK, TO BE U.S.

CIRCUIT JUDGE FOR THE SECOND CIRCUIT

Judge SOTOMAYOR. No, sir, not fully. I agree with the first two

parts of it, that you look at the Constitution and what it meant at

the time. The last suggests that I would be trying to change its

meaning today, and no. I think the first two would inform what the

last result should be, which is what did it mean then and how to

apply new facts to that if the issue is new facts.

Senator THURMOND. Mr. Oilman.

Mr. OILMAN. Senator, I think that

Senator THURMOND. Do you want me to repeat that, or do you

remember it?

Mr. OILMAN. If you would, that would be fine.

Senator THURMOND. "We look to the history of the time of framing of the Constitution and the intervening history of interpretation, but the ultimate question must be, what do the words and the

text mean in our time?'

Mr, OILMAN. I think that we need to look more at the text of the

Constitution as it was written. The words are important and I

think that if the Constitution is to have enduring meaning, those

concepts obviously have to be applied to current circumstances.

New events arise all the time, but I think the Constitution has got

to be interpreted within the meaning of its text.

Senator THURMOND. Now, this question is for both of you. You

have both had some involvement with the American Bar Association. Do you believe that the ABA should take positions on social

and public policy issues such as abortion and aid to the homeless?

Mr. OILMAN. I would be glad to answer first. I was actually in

the House of Delegates for the last 8 years. I am no longer in the

House. My term ended in August of this year. I believe the ABA

does a tremendous amount of good in areas like continuing legal

education and professionalism and providing legal services. My own

opinion is it should not, though. Senator, be involved in these

issues that are primarily socied and moral on which lawyers have

no particular expertise, and I, in fact, have voted against those

kind of resolutions when they have come up before the House.

Judge SOTOMAYOR. I have only been an inactive member of the

bar. I joined it largely because of its educational importance. The

American Bar Association regularly issues studies on the current

state of the law and analysis of where the law is and what is happening in that area and I receive their publications and receive

them for that purpose.

I am aware, obviously, as any reader of newspapers, that they

have taken larger positions on social issues. I believe, like Mr. Oilman, that that perhaps would not be terribly helpful to them generally because it undermines their effectiveness on the central

issues of their mission, which is the education of lawyers.

Senator THURMOND. This question is for you. It is a sad fact that

many young people get involved in selling drugs. Based on your experience as a judge, why do you believe mjmy young, poor youths

become drug dealers?

Judge SOTOMAYOR. Senator, I wish I had the answer. If we had

the answer, we would have a solution to one of the worst ravages

on our society, drugs, and I do not. The reason why kids become
356

in drugs, as I have learned as a judge, vary enormously. Some, because of the lure of easy money, something that perhaps they

should not be tempted by, but they are. Others, through their own

self-ignorance about the damage they are doing to society and to

themselves. I simply do not have one reason I can give you. The

reasons are myriad and complex.

Senator THURMOND. NOW another question. Do you oppose mandatory minimum sentences for drug offenses?

Judge SOTOMAYOR. No, sir.

Senator THURMOND. Another question. Some argue that the Federal sentencing guidelines do not provide enough flexibility for the

sentencing judge and some even say they should be abolished.

What is your view of the Federal sentencing guidelines, based on

your experience with them?

Judge SOTOMAYOR. Thus far, sir, in the vast majority of cases, I

have found the guidelines to be very helpful in giving some comfort

to me as a judge that I am not arbitrarily imposing sentences

based on my personal feelings. I believe that congressional sentiment, as reflected in the guidelines, is important because it permits

me not to impose my personal views but to let the democracy impose the society's views.

With respect to your second point. Senator, the guidelines already provide mechanisms for departures in appropriate circumstances. In my experience, when there are principled and reasoned grounds to depart, the guidelines already permit it.

Now, there is obviously discussion going on, I am very well

aware of it, of issues that the Senate is taking up on changes within the guidelines with respect to some kinds or others or with respect to some issues or other. I expect, as has happened during the

last 10 years, that the Sentencing Guideline Commission will continue to take up those issues and revisit them when they are appropriate.

Senator THURMOND. Thank you both for your presence and your

testimony.

Senator DEWINE. Senator Sessions.

QUESTIONING BY SENATOR SESSIONS

Senator SESSIONS. Mr. Oilman, I think you are correct. We do

need to look for ways to develop alternatives to litigation and I

think we can do a better job of settling controversies many times

without the expense and the trauma of a full-fledged litigation. I

am impressed that you have tried 37 cases going directly to judgment. I think that helps you bring something to the circuit that

would be a kind of experience and understanding of what it is like

to be in the pit, if I might, so I congratulate you for that.

I notice that you are an Eagle Scout. I will ask you a legal opinion. Do you feel that the Washington Zoo appropriately denied the

Boy Scouts the right to have a court of honor there because the

Scouts affirmed a belief in a superior being? Do you think that

would be an appropriate decision for them to make under the Constitution?

Mr. OILMAN. I do not have any immediate opinion on that. I was

not familiar with the issue. Senator.
357

Senator SESSIONS. Apparently, that has been somewhat of a controversy and I think they have backed down now, but originally,

that was the explanation that I understand they gave. I think

sometimes we do need to respect differences. We need to respect

people's religious views and, under the Constitution, the right to

exercise those views. I do not think they should be discriminated

against because of that.

With regard to the Constitution, I think you were pretty clear

about that. Do you take the view, and would you not agree that the

Constitution was fundamentally a contract between the people and

its government. The first three words, "We the People," shows that

it was a contract with the people and we should be very careful before we alter the meaning of a contract which the people ratified.

Mr. OILMAN. I fully agree with that, Senator.

Senator SESSIONS. Judge Sotomayor, would you agree that if we

respect that Constitution, we have to enforce it, the good and bad

parts?

Judge SOTOMAYOR. Absolutely, sir.

Senator SESSIONS. Even if we do not agree with a part of it?

Judge SOTOMAYOR. Absolutely.

Senator SESSIONS. And we really undermine and weaken that

Constitution when we try to bend it to make it fit our contemporary feelings of the moment?

Judge SOTOMAYOR. Sir, I do not believe we should bend the Constitution under any circumstance. It says what it says. We should

do honor to it.

Senator SESSIONS. And when we honor it as it is written, I think

we strengthen it and make it available to protect us when any

great threat to our liberty arises. I agree with you on that.

You mentioned the sentencing guidelines that Senator Thurmond

asked you about. I did notice that you had, on occasion, stated that

you disagree with the mandatory minimums. Is that correct? I have

heard that.

Judge SOTOMAYOR. Sir, I do not ever remember saying that.

There may have been situations in which in a particular set of

facts I was unhappy with the results, but I do not believe that I

have ever stated that I was unhappy with mandatory minimums

as a policy question, no, sir.

Senator SESSIONS. I think you made a good point about the fact

that, as a judge, it would be easier to sleep at night when you basically have a guideline to help you decide what that sentence should

be rather than having it totally your burden from 0 to 20 years.

I think, in some ways, it provides more uniformity and would be

easier on a judge.

Judge SOTOMAYOR. Unquestionably, sir.

Senator SESSIONS. Do you find it that way?

Judge SOTOMAYOR. I have no idea how the judges before me ever

set a consistent standard by which to sentence individuals. The

guidelines do provide that framework in a very helpful way.

Senator SESSIONS. I have been in court when I thought a person

might get probation and they got 15 years and vice versa. I think

something is not healthy when you have that much flexibility.

So I do believe in the guidelines and I think in the long run they

are helpful, but I do notice in one case that you issued a sentence
358

and you were very critical of the guidelines and said, "I hope that

yours," referring to, I believe, Louis Gomez's case, "will be £imong

the many that will convince our new President and Congress to

change these minimums. The only statement I can make is this is

one more example of an abomination being committed before our

sight. You do not deserve this, sir. I am deeply sorry for you and

your family, but the laws require me to sentence you to the 5-year

minimum. I have no choice." Would you like to comment on that?

Judge SOTOMAYOR. Sir, that is a case where the facts and my

personal feelings would have imposed a different result, but I did

not. I imposed what the law required. If that is—I am sorry, the

name of the case is?

Senator SESSIONS. I think it was Louis Gomez.

Judge SOTOMAYOR. Can you tell me how far back that case was,

sir?

Senator DEWINE. Ninety-three.

Judge SOTOMAYOR. If I am not mistaken, sir, that was before the

safety valve provisions that were passed by Congress and I believe,

and I could be completely mistaken, because it has been a very

long time and I have had many sentences since, that I may have

been talking about the mandatory minimums more than the guidelines in a first offense—exactly what Congress later did, which was

to say, in a first offense situation with someone who is willing to

cooperate, as that gentleman was but had nothing to give and he

has no history of violence and none was used, that you could depart

from the guideline minimums in that regard, or lower them.

So I may be mistaken, sir, but I do believe that that was the situation and that Congress did do what I had earlier stated, which

was to look at the factual situations and the impact and make

changes when they are appropriate.

Senator SESSIONS. I think the Congress should do that and I do

not disagree with the judge calling on Congress and suggesting

that they should consider making any changes in the law. However, I do think that a judge, would you not agree, has to be careful

in conducting themselves in a way that reflects respect for the law

and the system?

Judge SOTOMAYOR. Absolutely, but

Senator SESSIONS. A second guess aboutJudge SOTOMAYOR. Maybe I would not have called it an abomination, but I was thinking more of the factual outcome in that case.

But no question that all I meant in the context of that case was

the facts of that particular case, which Congress did come very

shortly thereafter to change. So, obviously, my strong feelings were

reflected sufficiently that Congress—not because of me, obviously,

I doubt they knew who I was at the time and may not all know

who I am now—but it was because of the hardships that were created in meuiy situations that caused the safety valve provision to

be passed.

I do agree, however, that great respect both for the law and for

the process is terribly important, and as I underscored there, I do

what the law requires and I think that is the greatest respect I

could show for it.

Senator SESSIONS. It is important to follow the law, though, in

cases like this, had you not, it would have been reversed. But I
359

think that perhaps had you expressed your criticism with the skill

you have done today, it might be a little better conduct for a judge.

I just think that, as you know, when you set a standard of guidelines, everybody is not going to fit perfectly within it and maybe

you have a responsibility to help that defendant to understand

that, though it may be unfortunate and you personally would not

have given as much, that there is a rationale to this law.

Judge SoTOMAYOR. I have done that on numerous occasions, Senator, and there, it was very shortly at the time that I took the

bench and I believe that since then, I have always been very careful, and I say it repeatedly at sentencing. When I am faced with

emotionally difficult situations for defendants and their families,

often, I get a lot of letters from heartbroken family members and

at sentencing, I explain to them that as much as I understand their

pain, that I have a greater obligation to society to follow the law

in the way that it is set forth.

Senator SESSIONS. One more thing. I noticed a New York Times

article that indicated that you had not applauded or not stood and

applauded when Justice Thomas appeared at the second circuit

conference. Are you aware of that?

Judge SoTOMAYOR. Well, I never did say that, sir. I took the fifth

amendment when the New York Times asked me that because of

the raging controversy at the time. I thought it made no sense for

a prospective nominee to enter that kind of political fray by any

statement, but I do not think I ever did, sir.

Senator SESSIONS. Well, that might explain it. The question in

the article was, when Justice Clarence Thomas was introduced at

the second circuit conference, the question of the reporter was,

were you among those who sat on her hands rather than giving

him a standing ovation, and you said, "I will take the Fifth."

Judge SOTOMAYOR. I explained to her clearly, as I do to you now,

I did that because I thought as a—at that point, I was a confirmed

nominee, and as a judge, that I should never be making political

statements to the press or anyone else and I thought that was a

politically charged question.

Senator SESSIONS. Let me just ask you, did you see fit to stand

and applaud when he

Judge SOTOMAYOR. He was my Supreme Court Justice of my circuit. I stood up.

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

Senator DEWINE. Senator Ashcroft.

QUESTIONING BY SENATOR ASHCROFT

Senator ASHCROFT. Thank you, Mr. Chairman. I appreciate the

opportunity.

Mr. OILMAN, I was interested in Senator Sessions' question about

the Boy Scouts, who for a time were deprived of an opportunity to

conduct a ceremony at the zoo because their organization espoused

a belief in a supreme being. I was more interested in your response. You seemed to express some uncertainty about whether or

not that should be a disabling characteristic of an organization. Do

you think that organizations or groups of people that express a belief in a supreme being should be subject to differential access to

public facilities or should have fewer rights than others?
360

Mr. OILMAN. Oh, absolutely not. No. I think I just expressed that

I was not familiar with that situation, Senator. No. I certainly

would be—frankly, sounded shock that that would be a basis for

denying the Boy Scouts of America access to a public facility.

Senator ASHCROFT. I would hope that that would be the way you

would approach the first amendment. Thank you for clarifying

that. It was not something I knew anything about, but I have come

to trust my colleague from Alabama.

Senator SESSIONS. I am relying on Eagle Scout Mike Enzi, who

examined that recently.

Senator ASHCROFT. Judge Sotomayor, at one time, you were

asked to rule on a case of a prisoner who was removed from his

food service job in prison because he was an open homosexual. The

plaintiff sued under the 1983 provisions, arguing that prison officials violated his constitutional rights by transferring him from the

food service job. Prison officials argue that he was reassigned from

his food service job to prevent disciplinary problems that could

arise from having open homosexuals prepare food.

You denied the motion for summary judgment on procedural

grounds, but you wrote that a person's sexual orientation, standing

alone, does not reasonably, rationally, or self-evidently implicate

mess hall security concerns. You ruled that prison officials did not

present evidence that having homosexuals prepare food was a real

threat.

I wonder, as a Federal judge, how much difference

Judge SOTOMAYOR. Sir, may I just interrupt one moment, and I

apologize greatly. It was not a motion for summary judgment, it

was a motion to dismiss, which has a different standard. So I am

somewhat surprised when you say that I criticized them for not

producing eviaence, because on a motion to dismiss, they do not

produce evidence. I have to take the prisoner's allegations on their

face. And I am sorry. I did not know if that affected the premise

of your question.

Senator ASHCROFT. I am going to find out here in a minute. I

guess what I really want to know is, what level of deference does

a Federal judge owe to prison officials when trying to figure out

what security risks there are in a prison?

Judge SOTOMAYOR. Enormous. It is a rational basis, which means

any government interest, as long as there is a reasoned, rational

basis for it and it is not arbitrary and capricious, the prison officials can do what they like.

In that particular case, sir, as I said, it was a motion under

12(b)(6)—I believe it is 12(b)(6). It could have been 12(b) (6) or (5).

But under either, you take the plaintiff, in this case, the prisoner's

facts as stated. You do not in any way pay attention to what the

defendants are saying. You take just the pleadings, and the pleadings in that case alleged that there was—the plaintiff claimed that

there were no security threats against overt nomosexuals whatsoever, that he was not aware of any threats, none had been directed

in prison.

'The reason I know this case so well. Senator, is I just tried it

last week and it turned out the jury found in favor of the prison

guards because there was one fact there that was slightly different.

The prison claimed that it never removed him from the food line.
361

That was a factual dispute between them. They say that they

asked him to leave and that he consented to leave because of the

threats that had been made. And, in fact, the jury credited the

prison guards on that claim and held for the defendants.

Senator ASHCROFT. You say you just tried this case last week?

Judge SOTOMAYOR. Yes.

Senator AsHCROFT. Is this on a second appearance before you,

then? Is this the Holmes v. Artuse?

Judge SOTOMAYOR. Holmes v. Artuse.

Senator ASHCROFT. I had that as a 1995 case. Am I mistaken?

Judge SOTOMAYOR. It was. What happened, sir, in that case, is

if you notice my—^because it was a motion to dismiss, I had invited

pro bono counsel to take on the case. They came on it later, I do

not remember exactly when, and we just got it to trial last week.

Senator ASHCROFT. What was the outcome of the case?

Judge SOTOMAYOR. As I said, the jury found for the defendants

on the initial question, which is that the prison had not removed

him without his consent, that he had, in fact, consented to the removal. But those are issues of fact that a judge cannot decide on

paper, sir. Those are factual questions always for a jury. Did X or

Y happen?

Senator ASHCROFT. I think those are evidentiary questions.

Judge SOTOMAYOR. Exactly. Exactly.

Senator ASHCROFT. I guess it is possible that a judge can decide

evidentiary questions in the absence of a jury, though.

Judge SOTOMAYOR. Well, in some circumstances.

Senator ASHCROFT. Do you believe that there is a constitutional

right to homosexual conduct by prisoners?

Judge SOTOMAYOR. No, sir; there is not. The case law is very

clear about that. The only constitutional right that homosexuals

have is the same constitutional right every citizen of the United

States has, which is not to have government action taken against

them arbitrarily and capriciously. The Supreme Court said that

last term in Evans v. Romer. But outside of that, that is a basic

constitutional right, not to them in particular, but to the world that

constitutes the United States.

Senator ASHCROFT. Do you think there should be one, a special

constitutional right?

Judge SOTOMAYOR. I do not think that we should be making constitutional rights any greater than they exist right now. The Constitution should be amended sparingly, sir, as it has been throughout our history. It is something that should be done only after

much history and much thought.

Senator ASHCROFT. DO you agree with the amendments that have

been made to date?

Judge SOTOMAYOR. Yes, sir. It is a document that I live by.

Senator ASHCROFT. I agree with them and I think it was good

that they were amended, so I accept the process. So in your judgment, you would not read additional rights into the Constitution,

like a right for homosexual conduct on the part of a prisoner?

Judge SOTOMAYOR. I cannot do it, sir. I cannot do it because it

is so contrary to what I am as a lawyer and as a judge. The Constitution is what it is. We cannot read rights into them. They have

been created for us.
362

Senator ASHCROFT. Are there any rights that are not protected

by the Constitution that, as a matter of policy, you would like to

see protected?

Judge SOTOMAYOR. I have not thought about that in a while, sir.

No.

Senator AsHCROFT. My time is not up.

Judge SOTOMAYOR. I think I answered.

Senator ASHCROFT. In your opinion, do you think Congress has

the right constitutionally to restrict the jurisdiction of lower Federal courts?

Judge SOTOMAYOR. You know, I have not examined that question

in the longest time, but I cannot—I am not thinking—we were created by legislation of Congress, so I would think that if Congress

created it, Congress can take it away. What you cannot do is take

away that which the Constitution would give the courts. I think

that was established in Marbury v. Madison. But absent that, not

looking at the question or studying it in depth, I cannot give a better answer than that.

Senator ASHCROFT. I thank you, Chairman DeWine. Thank you.

Senator DEWINE. Judge, one of the great burdens of being a Federal district court judge must be to deal with prisons. I have a little

familiarity with that. When I was Lieutenant Governor in Ohio,

one of my jobs was to oversee our prison system—so I have a great

deal of sympathy with judges who have to deal with the litigation,

and there is a tremendous amount of litigation.

I say that and preface it by way of an apology because I am going

to turn to one more prison question, if I could. I do not have a

name for this case, but I suspect you will recall it. The date I have

is 1994 and the issue was multicolored necklaces under the clothing of prisoners. Do you remember the

Judge SOTOMAYOR. Yes, I do.

Senator DEWINE. SO you remember the name of the case?

Judge SOTOMAYOR. It is my Campos case. It is better known as

the Santorea beads case, or at least colloquially known that way,

I should say.

Senator DEWINE. My understanding is that there was a dispute

involving the wearing of these beads. Again, I am going to summarize and you can correct me and then tell me a little bit about the

case. What I am trying to get at is how you reason as a judge.

My understanding is that prison officials argued that the beads

were gang symbols that provoked fights. Contrary to that, I assume

the argument is the religious freedom question. Do you want to

walk through for me how you balance that, and ultimately, do we

get back to what we were just talking about a minute ago, a factual

question?

Judge SOTOMAYOR. In that case, sir, yes, prison officials had

taken the position that the wearing of beads of colors were a symbol of gang membership. The prisoners, in turn, had asked the prison officials to permit them to wear the beads under their shirts as

opposed to visibly. So the question for me was, was it rational for

the Government not to permit that alternative when I was bailancing a religious right against a security concern.

The Supreme Court in these cases has held that you must give

heightened deference to prison security concerns and other con-
363

cems but that prisoners do not lose fundamental rights, like religion, in prison, and so that unlike the standard rational basis review that is given—this is before the Religious Restoration Act,

Senator, it is not a part of the jurisprudence tied to that

Senator DEWINE. I understand.

Judge SOTOMAYOR. The Court has said that it is a slightly different review in that context, that the context there is that you

must balance as a judge the security concerns with readily accessible alternatives. There is no bright line rule, but there, unlike the

traditional rational basis test where you take as a presumption

that the Gkivernment is doing what it thinks is right, that is a jury

or a factfinder, you must weigh whether there are reasonable alternatives that could be just as effective.

My reasoning in that particular case, as the opinion stated, was

that, in essence, hiding the beads was a reasonable alternative because it could not show. I do not know if in the opinion, but I know

when I spoke to the prison officers later, I said to them, if it turns

out that they are finding ways to evade that, then, obviously, you

can take steps that are different. But until that was tried first, because it was a reasonable, inexpensive alternative and not terribly

costly, that I felt that that was consistent with Supreme Court

precedent on this area.

Senator DEWINE. I appreciate your explanation. Let me move to

one final case, the 1993 Gonzalez case. Let me quote you in that

case. "We understand that you," referring to the defendant, "were

in part a victim of the economic necessities of our society, but unfortunately, there are laws that I must impose." Do you recall that

case at all?

Judge SoTOMAYOR. Not much, sir.

Senator DEWINE. I understand that, because we sit up here and

we can look at all your cases and you have to try on the spot to

remember a case that may have occurred, in this case, 4 or 5 years

ago, so

Judge SoTOMAYOR. I have had two or three Gonzalez cases, and

I cannot, meaning not the same defendant, but different ones

Senator DEWINE. Let me give you the additional facts, and if it

refreshes your memory, fine, and you can tell me about it. If it does

not, we will just move on.

My understanding is that Gonzalez had been convicted of constructively possessing at least 600 grams of cocaine. He exercised

dominion and control of an apartment in which the cocaine was

found. He also stated he knew someone else was supposed to pick

up the cocaine to sell it and distribute it to others. Do you recall

anything about that?

Judge SOTOMAYOR. No.

Senator DEWINE. OK. That is fine.

Judge SOTOMAYOR. I am terribly embarrassed to say that that

fact situation is also extraordinarily common

Senator DEWINE. And I can understand that. I appreciate it.

Thank you.

Any other questions from any members of the committee? Senator Sessions?

Senator SESSIONS. I would like to ask

Judge SOTOMAYOR. If you would like to—I am sorry, Senator.
364

Senator DEWINE. NO, go right ahead, Judge.

Judge SOTOMAYOR. If you have a question generally about something I might have said, perhaps I

Senator DEWINE. I think it is difficult, frankly, if you do not recall. I think it would be unfair to you to ask you anything further

about that, if you do not recall it.

Judge SOTOMAYOR. Thank you, sir.

Senator DEWINE. Senator Sessions.

Senator SESSIONS. You mentioned that you appointed pro bono

counsel in this prison case?

Judge SOTOMAYOR. We do not appoint them, sir. There are no

funds to appoint counsel in civil cases, as you may know. What we

do is put the case on a pro bono list, which is made up of volunteer

lawyers, and the volunteer lawyers decide whether they want to

take the case or not. So if I used the word "appoint" the lawyer

there, what it means, in essence, is putting them on the list so that

they are eligible to get a lawyer from that volunteer list if a lawyer

chooses to take the case.

Senator SESSIONS. Those turn out to be often very expensive

processes. Sometimes it is easy for a judge to call in a lawyer and

then charge him to take a case—I am not saying you did, but I

have seen that befo»-e—but the State has the expense of going

through this whole process, which went on from 1995 until, I guess,

just last week. A lot of expense goes into that. I think we have got

to learn to do a better job.

Judge SOTOMAYOR. Senator, if I may add, I put people on a pro

bono list very, very rarely. I am on the pro se committee of our

court. I do it only when, generally, after some discovery has happened so I can take a look at what is there and determine whether

there is some substance to the claim, and not initially in all cases,

and where there may be a complex legal question.

For example, in that case and a few others, in that Holmes v.

Artuse, where I did that, the Supreme Court was just considering

an equal protection claim that I mentioned might elucidate this

area. In a case like that, where there is an unsettled legal question,

and you can define that by something where the circuits are split

or the Supreme Court is hearing an issue, then I will usually ask

for a lawyer because then the questions are so complex that one

needs some help in terms of making sure that you have thought

of all the arguments. You want the lawyers and not a pro se prisoner to brief them.

Senator SESSIONS. Thank you.

Senator DEWINE. I want to thank both of you very much and

thank you for your patience. I would just again state that there

may be questions from members of the committee who were not

here today. They will be submitted to you in writing. On the other

hand, there may not be any written followup questions.

Also, I would invite you, if you want to elaborate on any answer

and want to submit anything in writing to us, the committee would

be more than happy to receive that.

Judge SOTOMAYOR. Senator, may I take just half a second just

to introduce my mother again and my fiance?

Senator DEWINE. I think that is very appropriate.
365

Judge SOTOMAYOR. My mother, Celina Sotomayor, is here, and

my fiance, Peter White, and respecting your time, I will not introduce individually all of the wonderful supportive friends I have

here, other than my godson, who is a Boy Scout.

Senator DEWINE. Let us have the godson stand up, then.

Judge SOTOMAYOR. Tommy John Butler. He is the back standing

up.

Senator DEWINE. He is standing up anyway. Thank you very

much.

Mr. OILMAN. Thank you. Senator.

Judge SOTOMAYOR. Thank you.

Senator DEWINE. Thank you very much.

Let me just make kind of a personal comment. As the father of

eight kids, I have rarely seen children so quiet. We have a room

full of children here and I congratulate all of you for staying with

us.

I would ask our next panel to come up. We are going to take

about a 4- or 5-minute break, then ask you to come forward. We

are going to start this at 15 after, so we will give you a couple-minutes break. After the break, we are going to plow right on through.

Thank you very much.

[Recess.]

Senator DEWINE. Let me thank all of you for coming today and

thank you also for your patience.

Let me just start from my left with you, Judge Siragusa. Judge,

is there anyone in the room you want to introduce? We are going

to go right down and do that to begin with because I do not want

you leaving here and getting home and realizing there is someone

who has not been introduced.

Judge SIRAGUSA. Mr. Chairman, at the risk of correcting a U.S.

Senator, it was my wife, Lisa, who attended law school with Senator D'Amato's son, although I am sure of two things, that she is

very flattered by his comment and she will never let me forget it.

[Laughter.]

Judge SIRAGUSA. My wife, Lisa, is here, and my in-laws, James

and Lucille Serio, and I thank them for coming. Thank you.

Senator DEWINE. Thank you very much.

Mr. Marbley.

Mr. MARBLEY. Yes, Senator. I have been fortunate. I have had

some very good support throughout this process and I have some

law school classmates who were with me back in the old days at

Northwestern who came and I would like to have them acknowledged for the record, if I may. One is Thomas Preston, who is with

the IRS, and then another friend of mine, Antoinette Cook Bush

was here. I do not know whether she left. She was a former staffer

and now partner at Skadin Arps. Then I have Ronald Sullivan,

who was like an understudy but he is a Harvard lawyer now, so

I cannot call him that anymore, and he is a Washington attorney

now, so thank you very much.

Senator DEWINE. Very good.

Mr. Kimball.

Mr. KIMBALL. Thank you. Senator. I am grateful to have my wife,

Rachel, here. She is a nurse and I hope I do not need her medical

services during the hearing. Our six children and 16 grandchildren
9Bo

are scattered across the country taking care of each other and

working.

Senator DEWINE. Judge Gwin.

Judge GwiN. I am pleased to have my wife, Bonnie, and my sons,

Michael and John here. I would also introduce my sister, Mary Jo

Weis, and her husband, Ted Weis, and their sons, Robert and Edward, and also my mother, Carol. I have also some special friends

who have been helpful to me and these include John Lewis of the

Squires, Sanders firm and John Heider, who is the executive vice

president of B.F. Goodrich, and John Manos had been here. Judge

John Manos, but he may have stepped out. I thank them for their

help during this process.

Senator DEWINE. Thank you.

Mr. Casey.

Mr. CASEY. Mr. Chairman, I would like to introduce, I have my

sister here, Mrs. Carol Brunell. Unfortunately, my son, Richard Jr.,

was unable to be here today, but I do have v/ith me my nephew,

Christopher Brunell, and his daughter, Kelly, and my nephews,

Frank Casey, and Tom Casey.

Senator DEWINE. Great.

Mr. CASEY. I also have with me. Senator, some of my very dearest friends who have been so supportive to me from years back and

since I lost my eyesight. With me here today is Mr. Richard McCarthy, Mr. Otto Obermeyer, who the Senator identified as a former

U.S. attorney. Another friend was supposed to be here, Suzanne

Brown, and she, unfortunately, could not make it. But I also have

with us today several members of the National Federation of the

Blind and some other blind organizations. I am not sure all have

arrived, but I am very grateful for their support. Thank you. Senator.

QUESTIONING BY SENATOR DEWINE

Senator DEWINE. Very good. Thank you all very much.

One of the privileges of having this gavel is you get to ask whatever questions you want

Mr. CASEY. Excuse me, Senator. I am sorry. It would be remiss

and I could not go home. I have two of my partners here, Mr.

Thomas Suther and Mr. Robert Petersak and life would not be too

good when I got home if I did not mention them.

Senator DEWINE. I appreciate that. I have had law partners myself

Mr. CASEY. Thanks so very much.

Senator DEWINE. I appreciate that very much.

Let me just say to the nominees that the questions that we ask

are, frankly, difficult to frame because most of us who sit here and

who have the obligation to confirm or not confirm Presidential appointments have some very definite ideas about what we think a

judge should be. Those of us who have appeared before judges, especially have our ideas. But it is difficult sometimes to phrase

questions that can get at what we are really looking for.

Let me just be very candid with you and then I am going to

start. Judge, with you, if I could, and we will just go from my left

all the way down. We often talk about judicial temperament. I do
367

not particularly like the term because I do not even know what it

means, but I think we generally know what we are talking about.

One of the things that I am always concerned about and, frankly,

it is difficult asking somebody this question and getting an answer

that is going to tell you a whole lot—maybe I am just stating it so

that 2 years from now or 10 years from now, at some point, maybe

you will remember what some U.S. Senator said during the confirmation hearing.

One of the things that troubles me is that occasionally when

someone is either elected to the bench—but, frankly, maybe more

often when they are appointed to the bench and they have life tenure—they become what I would call arrogant. They become out of

touch with the community. They fall out of touch with the people

whom they have dealt with before. I would just like for you to talk

a little bit in turn about any kind ofjudicial temperament.

Before I get into the substantive questions, let me ask you now

to stand and we will actually swear you in, which is the normal

procedure of the committee. Do you swear the testimony you shall

give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?

Judge SiRAGUSA. I do.

Mr. MARBLEY. I do.

Mr. KiMBALL. I do.

Judge GwiN. I do.

Mr. CASEY. I do.

Senator DEWINE. Thank you. Judge.

TESTIMONY OF CHARLES J. SIRAGUSA, OF NEW YORK, TO BE

U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW

YORK

Judge SiRAGUSA. Mr. Chairman, I think there are three basic

qualities that go into a good judicial temperament. The first is commitment. I think that you have to be committed to be the very best

judge you can be. That involves a commitment to work hard, a

commitment to demand no more of the attorneys who appear in

front of you than you demand of yourself. It involves a commitment

to—a judgeship is not just a profession but really a way of life to

excel as best you can.

I think the next broad trait would be dedication. You have to be

dedicated to the oath that you take. I have been a trial judge and

you have to understand that the responsibility of a trial judge is

to resolve the cases and controversies that come in front of you and

not to think of yourself as a talisman to solve the social ills that

plague society.

The third, I think, is humility. I think you have to have an appreciation that it is the position that is important and not the individual. I have tried a lot of cases as a litigant. I have had interaction with a lot of judges following my election and I think there

is a danger that sometimes people get what I refer to as robe-itis,

that because you put on the robes, it does not make you a better

person and it is well to remember, and perhaps it is most important that it is the position that is important and not the individual.

Thank you.
368

Senator DEWINE. Certainly none of us have ever known anybody

in that position.

Mr. Marbley.

TESTIMONY OF ALGENON L. MARBLEY, OF OHIO, TO BE U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO

Mr. MARBLEY. Certainly, one of the advantages of going second,

Mr. Chairman, is that you can adopt

Senator DEWINE. Mr. Casey is given the last shot at this thing.

Now, he does not know we are going to start with him first next

time. [Laughter.]

Mr. MARBLEY [continuing]. The testimony of Judge Siragusa, but

I think that one of the key traits that a judge has to have is a commitment to fairness. I think that a judge has to be fair to the litigants who appear before him or her. I think that another key consideration is the quality of being courteous. You have to be courteous to the litigants, and I think that that will permeate your

courtroom. Once you establish that you are going to be courteous

and that civility will carry the day, the litigants who appear before

you will understand that they are to conform their behavior accordingly, so we will not have the problem of noncivility in an otherwise charged adversarial relationship.

I think that humility is perhaps one of the most single important

qualities because you have to realize that you have within your

hands often the ability to affect the course of events or alter people's lives, and so you have to be humble with that type of responsibility.

Finally, I think you have to be thoughtful. When someone has

posed the faith in you to allow you to sit in that position and to

be a neutral arbiter of cases and controversies, the least that you

could do is to be thoughtful in your deliberations.

I think all of those qualities, in addition to the qualities that

Judge Siragusa pointed out, make for a sound judicial temperament.

Senator DEWINE. Mr. Kimball.

TESTIMONY OF DALE A. KIMBALL, OF UTAH, TO BE U.S.

DISTRICT JUDGE FOR THE DISTRICT OF UTAH

Mr. KIMBALL. Thank you, Senator. I certainly agree with what

these two gentlemen have said. A judge must be fair, a judge must

be impartial, a judge must be patient, a judge must be well-prepared and informed and render timely and thoughtful and well-explained decisions.

I believe the best example of judicial temperament I know is the

judge I hope to replace, Judge David Winter. One of the reasons

he is such a great judge is because he has always remembered, as

he says, what it is like on the other side of the bench, on the lawyers' and the participants', the parties' side of the bench, and I

would hope to be as he is. Thank you.

Senator DEWINE. Judge.
369

TESTIMONY OF JAMES S. GWIN, OF OHIO, TO BE U.S. DISTRICT

JUDGE FOR THE NORTHERN DISTRICT OF OHIO

Judge GwiN. Thank you. I think I would adopt just by reference

the comments made earlier, but I have also been impressed—it is

so important for judges and people in the judicial system to understand that for most litigants, they come before a court one time in

their life, perhaps two or three times, and if those people have gone

away from the court believing that their concerns, their claims,

their defenses have been given just short shrift, I think that they

walk away with a diminished respect for our legal system.

So I think it is extremely important in every case that all the

participants, but especially the judge, give a concern for that and

treat people with respect and treat people with an open mind. So

those would be the qualities I would hope to bring to the bench for

the Northern District of Ohio.

Senator DEWINE. Mr. Casey.

TESTIMONY OF RICHARD CONWAY CASEY, OF NEW YORK, TO

BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF

NEW YORK

Mr. CASEY. Senator, I love the profession of the law and I have

the greatest admiration for and affection for the Southern District

of New York. It is where I started and I am going to be fortunate

enough, if I am confirmed, to be with several colleagues that I

started out with.

But I think what has made me love being a trial lawyer is the

wonderful experiences before some great judges in that district.

There is nothing quite as pleasurable for a trial lawyer to try a

case before an intelligent judge who has compassion and understanding, at the same time understands his function and moves the

administration of justice along, but just as important, one who has

a sense of humor that we all need in life and I would hope to emulate some of those that I have had the pleasure of appearing before

over the years.

Senator DEWINE. Thank you very much.

Let me turn to my second question. Mr. Casey, I will start with

you, if that is all right. If each one of you is confirmed, you will

be taking over a specific court with a docket and I would ask you

to maybe reflect—^you have to have given it some thought—about

some of the things you want to do. What I am looking for is not

substance in the sense of how you decide cases, but I am looking

at more procedure—how you would run the court, what you have

observed in Federal courts or in other courts that work, what does

not work, what you like, what you do not like, how you would really run your court, because one of the things that litigants want is

a disposition of their case. They want the case resolved. So the

speed at which cases can be brought to trial, or can be resolved in

some way, is important.

So if you could just maybe comment on that, maybe reflect on the

use of support staff, reflect on the use of law clerks, reflect on the

use of arbitration or whatever the local rule might allow. That is

the t3T)e of response that I am looking for. What have you thought

about that? What is important to you, or what is not important?
370

Mr. CASEY. Well, Senator, I think one thing, at least in the

course of my experience, I have spent a substantial amount of time

in private practice, at least, involved in major securities litigation

and I would think that a major step to handle the administration

of the court, if I were to be confirmed, is to get involved early, especially in large cases, to get a handle on what the issues of the case

are before things can get out of haind in order that you can move

them along.

I have served on committees involving discovery abuse and I

think much of that can be prevented if a judge is to get in early,

get his or her hands on the case, assist the lawyers in setting the

discovery schedule, and move the case along and always, of course,

with a mind that an early trial date frequently helps things to

move along, as well.

As far as the staff, certainly, it is a team effort with the lawr

clerks and everyone involved. I would certainly keep a keen eye to

things that various judges I know in the Southern District have experimented with as to how they move their dockets along and I

would certainly try to inquire of them and utilize all their experience, as well.

Senator DEWINE. Judge Gwin.

Judge GWIN. I think it is so terribly important that cases move

along to an expeditious conclusion. After conversations with innumerable people who have been involved in litigation, I find that one

of their biggest concerns is how destructive and debilitating it is to

have litigation pending. That is true for individuals. It is perhaps

equally or more true for businesses. It is just to have the uncertainty of a litigation pending is very damaging.

So I think it is extremely important for litigation to move along

quickly. I think the ways we do that are well known. It requires

an early intervention by the judge in terms of setting reasonable

but firm dates for preparation of motions aind trials. It requires a

judge to stick to those dates, it requires a judge to quickly supervise discovery disputes, and it requires a judge to quickly rule and

supervise dispositive motions.

The things that it takes to move a case along, I think, are well

known, but it does require the hands-on effort of a judge, and those

are things I would like to have an opportunity to give to the Northern District.

Finally, I would comment, I am a big believer in alternative dispute resolution and I find that in many cases, it can help narrow

the differences between the parties, even if it is not able to bring

about a conclusion to the matter. So that would be another area

where I would give emphasis.

Mr. KiMBALL. I agree with Judge Gwin, that the litigation process can be very disruptive in people's lives and it is very important

that it move along. I would also say it can be very, very expensive

and if some of that expense can be saved by good management by

judges, then that ought to be done.

I have been an arbitrator. I have been a mediator. I have represented clients in front of arbitrators and in front of mediators

and I would encourage the voluntary, but not mandatory, use of

those ADR processes.
371

I believe in the early intervention and management that has

been discussed. Perhaps there is no more important case management technique than timely and well-explained decisions, and I

would hope to be able to render those. I believe it is important to

utilize the magistrate judges and I consider myself a good manager

and would utilize the various management techniques for moving

things along and keeping them orderly that I have utilized in my

law practice.

Senator DEWINE. Mr. Marbley.

Mr. MARBLEY. Thank you, Mr. Chairman.

Perhaps the single most important feature is the early entry of

the judge into the fray. That is important because the judge can

counsel the litigants on the expense of litigation, perhaps reach an

early resolution of the matter through settlement or otherwise.

Judges tend to be able to help the parties close the gap and resolve

their differences.

Also, the judge, I think, should counsel the litigants about the

advantages of alternative dispute resolution, and I know that in

our district, there are options in that respect, and so that would be

another method to move the cases along.

Third, I think that it will be important to resolve motions that

are pending, particularly discovery motions or dispositive motions.

Certainly, magistrate judges can be used for that and those magistrate judges who perhaps have their own backlog and cannot do

it, you certainly can rely on your law clerks to get much of that

research done to resolve pending motions.

Finally, and perhaps most important, is to establish a reputation

for setting realistic discovery deadlines and trial dates and sticking

to them. A judge who has a reputation for having firm trial dates

is a judge who moves his docket along with a great deal of dispatch, and I think that once the litigants in your district realize

that you are going to adhere to those trial dates and that they are

firm, then you will see a lot more motion in terms of getting matters resolved.

Senator DEWINE. Judge.

Judge Siragusa. As I listen to my colleagues, the old maxim of

justice delayed is justice denied comes to mind, and I think it is

true, and I think the ultimate responsibility is with the presiding

judge to manage his caseload. Certainly, the techniques that have

been suggested are good ones. I think it starts with a judge who

actively is involved in his case, who utilizes scheduling orders, and

I agree to set realistic demands and not grant adjournments unless

there is a legitimate reason. Certainly in Federal court, the use of

magistrate judges to deal with both nondispositive and dispositive

motions.

I agree that it is important for a judge to establish a reputation

that the judge is prepared and willing to do the work, and I think

you do that by rendering prompt decisions. I found that attorneys

can live with a decision that goes against them because then they

can proceed to the next step. What they cannot live with is decisions that pend for months upon end.

Certainly, the use of mediation or alternative methods of dispute

resolution is something that I think can be utilized to deal with our

backlog. Thank you.
372

Senator DEWINE. Judge, let me continue with you, if I could.

Judge SiRAGUSA. Yes.

Senator DEWINE. YOU, in April of this year, had a writing that

had to do with cameras in the courtroom. Do you want to tell us

about that?

Judge SiRAGUSA. Sure.

Senator DEWINE. Any conclusions you reached, or

Judge SiRAGUSA. I was careful not to give any conclusion to the

presentation, but basically, I was asked as part of the continuing

education program to present both the pros and the cons on cameras in the courtroom and I made that presentation. I would be

glad to comment on it.

I should preface it by saying, in June of this year, the New York

experiment on cameras in the courtroom ceased. There is no legislation now. So since I am a sitting judge, I will speak to what my

experience has been on cameras in the courtroom.

In New York, the purpose of promulgating rules on cameras in

the courtroom was a recognition by the legislature that it was important to enhance the citizens' understanding of our criminal justice system and thereby promote both confidence in the judiciary

and also to promote the fair administration of justice, and that is

why these rules for cameras in the courtroom were initially enacted

back in 1987.

In my experience in New York, both in trying cases that were

some televised live and in presiding on cases, the goals of the experiment have been approached, but I think it primarily dependsSenator DEWINE. The goals have beenJudge SiRAGUSA. Approached. I am not going to—quote, approached. I am not going to say

Senator DEWINE. What does that mean?

Judge SiRAGUSA. I think it would be naive to say that we have

achieved exactly what the legislature intended, but I think in New

York they have been approached, but it largely falls because of

three reasons, the responsibility of the media, the responsibility of

the attorneys, and the responsibility, of course, of the judge.

In my experience in Monroe County, the media has been responsible about not being intrusive in the positioning of cameras and

following the dictates of the judge. The litigants have not engaged

in histrionics. There has not been theatrics. They have not been

playing to the cameras. And I hope myself, as a judge, and certainly the judges who have presided on cases that I have tried that

have been publicized, have kept control of their courtroom and

were consistent in the demeanor that was established in the courtroom, whether the presentation was televised or not.

Senator DEWINE. Any unintended consequences, based on either

your personal experience or what you found out?

Judge SiRAGUSA. No. I think, to share an aside, I mean, and why

I said the goal was approached, when I was in the D.A.'s office, I

tried a case that was televised live for 12 weeks and after the case

was over, more than one citizen came up and said they were impressed by the professionalism both of the prosecutor, the defense

attorneys, and the judges, and I think that speaks toward the purpose of approaching the goal.
373

Senator DEWINE. Mr. Kimball, let me refer to something that

you wrote a few years ago, I believe it is entitled "The Constitutional Convention, Its Nature and Powers, and the Amending Procedure," Utah Law Review. It has been a few years ago, I guess.

Mr. KIMBALL. A lot of years ago.

Senator DEWINE. I guess maybe the lesson that people take

away from these hearings is do not ever write anything so you will

not be asked questions—^but I hope that is not the lesson.

Considering the job that you have been nominated for, I wonder

what you learned from performing research for that law review article that might be of any relevance to your service on the Federal

bench.

Mr. KIMBALL. AS I recall that law review article, it was basically

about State constitutions and the amending process and problems

that arose and how conventions were called and what powers they

had and so on.

I think I gained a greater respect for both what constitutions say

and what the people say through their whatever it be, whether it

is the writing of the Constitution or the writing of legislation. That

has to be given great deference by a judge. That is one thing I

would have learned through writing that article.

Senator DEWINE. Let me ask each one of you, and we will start

with Mr. Casey—^you had the opportunity—I think you were all in

the room when the circuit court nominees were here—to hear a series of questions in regard to a problem that Federal court judges

have to deal with—and that is State prison systems. I wonder if,

based on what you heard today, you have any additional comments

about that, about your philosophy, and how you approach that type

of a case.

Please understand, I am not asking you to comment about any

particular case. I am not asking you, obviously, to comment about

anything we already have discussed. But I would just like to know

your approach in general. You all had the opportunity to hear the

two judges talk earlier and I wonder if you have anything to add

to that. Mr. Casey.

Mr. CASEY. Well, Senator, I was very interested by the comments

of the two candidates. It is a problem which, I think, many members of the court in the Southern District are concerned about.

However, it is a responsibility of the judge, regardless of who the

litigants are, to give them a fair and reasonable hearing, just as

they would to anyone else.

Senator DEWII>JE. Judge Gwin.

Judge GWIN. I would generally think that in all cases, there

ought to be differentiated management, and so I think it is important for the judge on a case to take an early perspective on the

case, the claims made, and put it on a track that leads to a final

disposition commensurate with the claims made and the defense as

a surrogate.

I use that as background to say that I think it is important for

judges to separate the wheat from the chaff in terms of this type

of litigation and others and to set these type of cases on a path

where they come to final disposition fairly, but not running a case

that should be resolved quickly through a long history of litigation

before a final resolution is reached.

45-964 98 - 13
874

So I would comment just generally, I think that is important in

all civil litigation and I think it applies equally to the prison litigation. It applies similarly to habeas corpus litigation.

Senator DEWINE. The prison cases are, to some extent, unique in

the sense that we have had experience with special masters with

whom these cases go on and on for years. I know that is not totally

unique to prisons. It happens in other areas, as well. It might happen in a school district. But some of these cases go on and on and

on. That is something that I think I have some sensitivity to because of the previous position I held and some of the problems that

I saw. I know it is very difficult to comment in general about that.

Mr. Kimball.

Mr. KIMBALL. I agree with what these two gentlemen on my left

have said, but I would also say that it seems to me that it would

be a very unusual emd unique set of circumstances that would require or even allow a judge to really get into the management business, which I think is partly what you are talking about. I do not

really see that as part of the job description.

Senator DEWINE. Mr. Marbley.

Mr. MARBLEY. I think that I can answer your question in two respects. First, these matters have to be dealt with expeditiously because they are administrative matters and an early resolution is

important to everyone involved, the inmates as well as the prison

officials.

Second, £ind perhaps more importantly, you have to subject them

to the same type of analysis that you would most other cases. You

start with whatever existing precedent is and then as far as the

issues that were discussed here today, it appears that as long as

there are no suspect classifications involved, you use a rational relationship test, and in doing so, you give substantied deference to

officials who are enacting a particular program or whatever the

issue may be before the court.

So as long as you take that sort of analytical approach that we,

as lawyers, are trained to do and abide by the doctrine of stare decisis, as we as article III judges are obligated to do, I think that

you can pretty much dispose of that litigation expeditiously and

fairly.

Senator DEWINE. Judge.

Judge SiRAGUSA. Again, I do not know that I will add anything

new, but I do believe that deference should be given to administrative decisions. Obviously, if there is a rational basis for an administrative decision affecting an inmate, it should be upheld. If cases

get to the court system, then I think it is the responsibility of the

judge, where possible, to separate the frivolous lawsuits out and to

deal with them expeditiously.

Senator DEWINE. Let me thank each one of you for your presence

and for your patience today. I will again state that the record will

remain open and you may get additional questions. If any of you

want to supplement any of your answers, you are more than welcome to do that by contacting the committee staff" and you can do

that in writing.

Again, I appreciate your participation and appreciate the patience of the members of your families, particularly the young

members of your families.
375

Mr. CASEY. Senator.

Judge SiRAGUSA. Thank you very much.

Mr. MARBLEY. Thank you very much.

Mr. KiMBALL. Thank you very much.

Judge GwiN. Thank you very much.

Mr. CASEY. Senator.

Senator DEWINE. Yes.

Mr. CASEY. Could I just, because I have to ride home with them

on the plane, ask the chair to recognize Mr. and Mrs. Doyle, who

came with me, too, because that would be a long ride home.

Senator DEWINE. It would be. Thank you, Mr. Casey, very much.

Mr. CASEY. Thank you. Senator.

Senator DEWINE. The committee is adjourned.

[Whereupon, at 4:48 p.m., the committee was adjourned.]

[Submissions for the record follow:]
376

SUBMISSIONS FOR THE RECORD

SENATE JUDICIARY COMMITTEE QDESTIOMNAIRE

I. BIOGRAPHICAL INFORMATION (PUBLIC)

1. Full nam* (include any former names used).

Ronald Lee Gilman

2. Address: List current place of residence and office

address(es).

Office;

Farris, Mathews, Gilman, Branan S Hellen, P.L.C.

One Conunerce Square, Suite 2000

Memphis, Tennessee 38103

Home;

Memphis, Tennessee

3. Date and place of birtb.

October 16, 1942, in Memphis, Tennessee

Marital status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married to Betsy Dunn Gilman. Former preschool director.

Currently a community volunteer.

Education! List each college and law school you have

attended, including dates of attendance, degrees

received, and dates degrees were granted.

Massachusetts Institute of Technology

1960-1964

S.B. degree awarded in June of 1964

Harvard Law School

1964-1967

J.D. degree awarded in June of 1967
377

C. P^rl"Y*^*nt Record; List (by year) all business or

professional corporations, companies, firms, or ottaer

enterprises, partnerships, institutions and

organisations, nonprofit or otherwise, including firms,

with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from

college.

Paid Employment

1967 - present: Farris, Mathews, Oilman, Branan &

Hellen, P.L.C.

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

Associate 1967 - 1969;

Partner since 1969

1980 - Present: University of Memphis School of Law

Memphis, Tennessee 38152

Adjunct professor of Trial Advocacy

1988 - Present: American Arbitration Association

211 Seventh Avenue North, Suite 300

Nashville, Tennessee 37219

Arbitrator and Mediator

1993 - Present: National Association of Securities

Dealers

10 S. LaSalle Street, 20th Floor

Chicago, Illinois 60603

Arbitrator and Mediator

1994 - Present: Private Adjudication Center

8000 Weston Parkway. Suite 330

Gary, North Carolina 27513

Dalkon Shield Referee

-2-
378

Onpaid Activities

1967 - Present:

1967 - Present:

1967 - Present:

1995 - Present:

1991 - Present:

1993 Present:

1979 - Preser t:

1988 - 1995:

1984 - 1987:

1979 - 1987:

1968 - 1973:

1968 1973:

Memphis Bar Association (see 9 below)

Tennessee Bar Assn. (see 9 below)

American Bar Assn. (see 9 below)

Association of Attorney-Mediators

(see 9 below)

Commercial Law Affiliates

(see 9 below)

Boy Scouts of America, Chickasaw

Council (Executive Board)

Society of Memphis Magicians

(President 1986)

Capital Case Resource Center

of Tennessee (Board member)

Memphis Jewish Home (Board member)

Tennessee Court of the Judiciary

(Member of the Court, serving

without compensation. See

14 below for an explanation

of the Court's function.)

Senior Citizens Services

(Board member & Treasurer)

Memphis Junior Chamber of Commerce

(Parliamentarian - Legal

Counsel 1971)

I have also sat at various times throughout the years as

a special judge in the Shelby County Circuit Court and

the Shelby County Probate Court at the request of several

regular judges during their absences from the bench.

Such service was without compensation.

7. Military Service: Have you had any military service? If

so, give particulars, including the dates, branr:h of

service, rank or rate, serial number and type of

discharge received.

No

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919

8. Honors and Rwarda: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that

you believe vould be of interest to the committee.

Eagle Scout Award (1958)

William L. Stewart, Jr. Award for "Outstanding

Contributions to Extracurricular Life at M.I.T."

(1964)

Cum Laude graduate of Harvard Law School (1967)

Sam A. Myar, Jr. Memorial Award for "Outstanding Service

to the Legal Profession and the Community" (1981)

Best Lawyers in America (Woodward/White)

(Listed in categories of business litigation,

corporate law, and estate planning)

Who's Who in American Law (Marquis)

Who's Who in America (Marquis)

9> Bar Associations; List all bar associations, legal or

judicial-related committees or conferences of which you

are or have been a member and give the titles and dates

of any offices which you have held in such groups.

Memphis Bar Association

President (1987)

President, Young Lawyers Division (197 4)

Tennessee Bar Association

President (1990-1991)

Speaker, House of Delegates (1985-1987)

President, Young Lawyers Conference (1978-1979)

American Bar Association

Member, House of Delegates (1990-Present)

American Law Institute

American Bar Foundation

American Judicature Society

American Arbitration Association

Tennessee Bar Foundation

Memphis Bar Foundation

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Association of Attorney Mediators (West Tennessee Chapter

Vice President, 1996-Present)

American College of Trust and Estate Counsel

Life member, Sixth Circuit Judicial Conference

Chair, Bankruptcy Merit Selection Panel for the

Western District of Tennessee (1992-1993)

Member, University of Memphis Law Dean Search Conunittee

(1991-1993)

Member, Federal Court Local Rules Revision Committee

(1989-1992)

Commercial Law Affiliates

Board of Directors (1991 - 1993)

Lawyers Journal Club of Memphis (This unincorporated

educational organization has no bylaws.)

10. Other Memberships; List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

American Mensa, Ltd.

B'nai B'rith

Boys Scouts of America, Chickasaw Council

Economic Club of Memphis (A copy of the Bylaws of this

organization is attached to this Questionnaire as

Exhibit 1.)

Estate Planning Council of Memphis (A copy of the

Bylaws of this organization is attached to this

Questionnaire as Exhibit 2.)

Kiwanis Club of Memphis (A copy of the Constitution and

Bylaws of this organization is attached to this

Questionnaire as Exhibit 3.)

International Brotherhood of Magicians

Society of Memphis Magicians

I am not aware that any of the above organizations are

active in lobbying before public bodies, although the Boy

Scouts and B'nai B'rith may occasionally do so.
381

11. Court Admission; List all courts in which you hava 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

spei-ial admission to practice.

Shelby County Chancery Court

Shelby County Circuit Court

Shelby County General Sessions Court

Shelby County Probate Court

Shelby County Criminal Court

Tennessee Court of Appeals

Tennessee Supreme Court

Unites States District Court

for the Western District of Tennessee

United States Tax Court

United States Cou.t of Appeals

for the Sixth Circuit

United States Supreme Court

1967

1967

1967

1967

1967

1967

1967

1967

1980

1973

1971

12. Published Writings; List the titles, publishers, and

dates of books, articles, reports, or other published

material you have written or edited. Please supply one

copy of all published material not readily available to

the Committee. Also, please supply a copy of all

speeches by you on issues involving constitutional law or

legal policy. If there were press reports about the

speech, and they are readily available to you, please

supply them.

BOOK

Tennessee Corporations. Lawyers Cooperative Pub. Co,

(1980; supplemented annually through 1994)
382

ARTICLES IN LEGAL PERIODICALS

"The Extension of the Privilege to Libel Without

Actual Malice," 3 Harvard Legal Commentary 169 (1966)

"Medical Expert Testimony in Tennessee," 34 Tennessee

Law Review 572 (1967)

"Non-Tax Aspects of Estate Planning," 2 Me.nphis State

University Law Review 41 (1971)

"Annotated By-Laws for a Tennessee Corporation,"

Tennessee Bar Journal (May, 1975)

"Agreements for Buying and Selling a Business,"

The Practical Lawyer (Jan., 1977)

"Saving for College with a Clifford Trust,"

The Practical Lawyer (June, 1979)

"The Holographic Codicil," Tennessee Bar Journal

(August, 1982)

"Dishonesty Alone Do-s Not Deck a Fidelity Insurer,"

Insurance Counsel Journal (October, 1984)

"Tangible Evidence in Tennessee," Tennessee Bar Journal

(May/June, 1986)

"Planning for Disability," The Practical Lawyer

(March, 1989)

"The Shifting Focus of Estate Planning from Death

to Disability," Tennessee Bar Journal (May/June, 1989)

"Pro Bono & You," Tennessee Bar Journal

(March/April, 1993)

"Mediation: Prime ADR Tool of the '90s," Tennessee Bar

Journal (March/April, 1994)

"Resolving Commercial Cases through Alternative Dispute

Resolution," 26 University of Memphis Law Review 1121

(Spring, 1996)

OTHER ARTICLES

President's Column in Memphis and Shelby County

Bar Forum during my year as Memphis Bar Association

President in 1987 (Issued quarterly)
President's Column in The Bar Fiver (name changed in 1987

to The Bar Essentials) during my year as President of

the Memphis Bar Association

Letter to the Editor written as President of the

Memphis Bar Association, replying to an editorial

titled "Only Lawyers Lose." (Published in the

Memphis Commercial Appeal on December 27, 1987)

President's Column in the Tennessee Bar Journal and

Across the Bar during my year as President of the

Tennessee Bar Association in 1990-1991.

Travel report to Singapore, published in the Memphis

Business Journal on October 9, 1989.

ePEECHES

I have made no speeches on issues involving

constitutional law or legal policy.

CONTIKUIHG LEGAL EDUCATION PROGRAMS

I have made numerous talks over the last 28 years at

various Bar Association continuing legal education

programs in the areas of estate planning, business

organizations, trial practice, and mediation. Many of

these programs required the preparation of handout

materials. I have not made a practice of saving these

materials. Copies of such handouts, to the extent

available in the files of the Memphis Bar Association and

the Tennessei! Bar Association (the two organizations that

have sponsored almost all of the talks I have given),

have been supplied.

13. Health; What is the present state of your health? List

the date of your last physical examination.

Excellent. Last general physical exam was on May 5,

1997.

-8-
S84

14. Judicial Office; State (chronologically) any judicial

offices you have held, whether such position was elected

or appointed, and a description of the jurisdiction of

each such court.

Tennessee Court of the Judiciary, 1979-1987. I was

appointed as a member of the Court by the Tennessee Bar

Association. The Court has jurisdiction over

disciplinary complaints against state court judges.

During my time on the Court, It met semi-annually to

handle various disciplinary complaints, as well as

adjudicated several cases against judges where no

voluntary settlement could be reached.

I have also sat on various occasions as a special judge

in the Shelby County Circuit Court and the Shelby County

Probate Court at the request of several regular judges

during their absences from the bench.

15. Citations; If you are or have been a judge, provide:

(1) citations for the ten nost significant opinions you

have written; (2) a short summary of and citations for

all appellate opinions where your decisions were reversed

or where your judgment was affirmed with significant

criticism of your substantive or procedural rulings; and

(3) citations for significant opinions on federal or

state constitutional issues, together with the citation

to appellate court rulings on such opinions. If any of

the opinions listed were not officially reported, please

provide copies of the opinions.

I wrote no opinions as a member of the Court of the

Judiciary. My only written opinion during my service as

a special judge was In the Circuit Court case of Rita

Hahn. et al. v. John Freeman, et al.. Case No. 82401

(Opinion dated November 30, 1981). The Tennessee Court

of Appeals unanimously affirmed my Opinion on

November 22, 1982. Copies of both my Opinion and the

Opinion of the Tennessee Court of Appeals are attached as

Exhibit 4 to the full sets of this Questionnaire.

16. Public 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

-9-
385

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school.

Including:

1. whether you served as clerk to a judge, and if

so, the name of the judge, the court, and the

dates of the period you were a cleric;

Not applicable

2. whether you practiced alone, and If so, the

addresses and dates;

Not applicable

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies

with which you have been connected and the

nature of your connection with each.

1967 - present: Farris, Mathews, Gilman, Branan &

Hellen, P.L.C.

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

Associate 1967-1969;

Partner since 1969

1979 - 1987: Tennessee Court of the Judiciary

100 Supreme Court Building

Nashville, Tennessee 37219

Judge appointed by the Tennessee Bar

Association

1980 - Present: University of Memphis School of Law

Memphis, Tennessee 38152

Adjunct professor of Trial Advocacy

1988 - Present: American Arbitration Association

211 Seventh Avenue North, Suite 300

Nashville, Tennessee 37219

Arbitrator and Mediator

-10-
386

1993 - Present: National Association of Securities

Dealers

10 S. LaSalle Street, 20th Floor

Chicago, Illinois 60603

Arbitrator and Mediator

1994 - Present: Private Adjudication Center

8000 Weston Parkway. Suite 330

Gary, North Carolina 27513

Dalkon Shield Referee

1. What has been the general character of your

law practice, dividing it into periods with

dtttes if its character has changed over tb«

years?

Early in my legal career (1967-1973), I represented

indigent defendants in the United States District

Court for the Western District of Tennessee and

engaged in a very general practice. Later (1974-

1984) I began to concentrate in the areas of estate

planning, business formation, and comniercial

litigation. Since 1985, my primary emphasis has

been in the areas of commercial litigation,

arbitration, and mediation.

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

My typical clients are business corporations, an

insurance company, a bank, other lawyers, and

individuals with moderate to large estates.

My areas of concentration are the following:

Business Litigation. Much of my practice has been

in the U.S. District Court and the Shelby County

Chancery Court representing litigants as both

plaintiffs and defendants in cases dealing with

contractual, statutory, or constitutional disputes.

Such cases have included Issues dealing with

fidelity bonds, commodity contracts, securities

laws, bank regulations, statutory ambiguities, and

alleged constitutional violations. Many of these

cases have required extensive document production

and numerous depositions. My longest jury trial,

-11-
887

for example, lasted six and one-half weeks in the

U.S. District Court and involved over 40 pretrial

depositions, many witnesses, massive exhibit books,

and thousands of pages of documents. The case

arose from the failure of the Butcher banking

system, and was settled near the end of the trial

with a recovery to my client of over one million

dollars.

Representation of Other Lawyers. I am currently

defending various local attorneys in four separate

cases, with the issues ranging from legal

malpractice to statutory violations to contract

disputes.

Estate Planning. I have drafted hundreds of wills,

trusts, durable powers of attorney, and living

wills over the past 29 years for clients with

moderate to large estates. These instruments often

incorporate the use of the unlimited marital

deduction and credit shelter trusts to minimize the

impact of the federal estate tax on the individuals

and their families.

Mediation and Arbitration. I am currently

certified as a trained mediator by both the United

States District Court for the Western District of

Tennessee and the Tennessee Supreme Court. I am

also a member of the arbitration panels for the

American Arbitration Association, the National

Association of Securities Dealers, and the Private

Adjudication Center associated with Duke

University. I have served as a mediator in 38

cases and as an arbitrator in 15 cases within the

last few years. The cases have included claims of

personal injury, wrongful death, statutory

violations, property damage and distributions,

medical and legal malpractice, contract disputes,

and business dissolutions.

1. Did you appear in court frequently,

occasionally, or not at all? if the frequency

of your appearance in court varied, describe

each such variance, giving the dates.

I appear in court occasionally as needed for the

various cases I am handling. My appearances in

court were more frequent during my first 20 years

of practice. In the last 10 years, I have made

fewer appearances in court, but the cases I have

handled have tended to be larger and more complex.

-12-
I have also become increasingly involved in

arbitration and mediation, having served as an

arbitrator in 15 cases and as a mediator in 38

cases within the last few years.

2. What percentage of these appearances was in:

(a) federal courts;

50%

(b) State courts of record;

35t

(c) other courts.

15%

3. What percentage of your litigation was:

(a) civil;

90%

(b) criminal.

10%

4. State the number of cases in courts of record

you tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

I have tried to judgment or verdict in courts of

record 37 cases. I have also handled 24 appeals in

the federal and state courts. I served as either

sole or chief counsel in all of these cases.

5. What percentage of these trials was:

(a) jury;

25%

(b) non-jury.

75%

-13-
389

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 svunmary of

the substance of each case. Identify the party or

parties whom you represented; describe in detail the

nature of your participation in the litigation and the

final disposition of the case. Also state as to each

case:

(a) the date of representation;

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

judges before whom the case was litigated; and

(c) The individual name, addresses, and telephone

numbers of co-counsel and of the principal counsel

for each of the other parties.

FEDERAL CASES

Gau Shan Company, Ltd. v. Bankers Trust Company t

The Julien Company, United States District Court

for the Western District of Tennessee, Civil Action

No. 90-2122; 956 F.2d 1349 (6th Cir. 1992)

This case involved a $20 million dispute between

Gau Shan (a Hong Kong cotton merchant), The Julien

Company (a bankrupt Memphis cotton merchant), and

Bankers Trust Company (a major New York bank). I

represented Gau Shan as lead counsel, both

presenting all the proof in the trial court and

arguing the case on appeal.

Gau Shan filed suit in the United States District

Court for the Western District of Tennessee in

February of 1990 to enjoin Bankers Trust Company

(ETC) from suing in Hong Kong for the collection of

a $20 million promissory note signed by Gau Shan

for cotton that was never delivered due to the

bankruptcy of The Julien Company (TJC). After a

three day injunction hearing before U.S. District

Judge Robert M. McRae Jr. in May of 1990, the

District Court enjoined BTC from filing suit in

Hong Kong on a finding of fraudulent

misrepresentation by the bank relating to the

signing of the note. The whole issue of "foreign

anti-suit injunctions" and "international comity"

was decided by the Sixth Circuit Court of Appeals

on February 24, 1992.

-14-
aw

The Sixth Circuit reversed Judge McRae and remanded

the case back to the District Court for trial. The

case was then mediated by U.S. District Judge Julia

S. Gibbons, resulting in a partial settlement with

BTC. The remainder of the claims between Gau Shan

and TJC was then arbitrated for three days in

February of 1993 before a panel of distinguished

neutrals drawn from a list prepared by the Center

for Public Resources.

BTC was represented by:

Lee L. Piovarcy

22 North Front Street

Memphis, Tennessee 38103

(901) 522-9000

TJC was represented by:

David J. Harris

130 Court Avenue

Memphis, Tennessee 38103

(901) 524-5120

Assisting me within my own firm was:

Rebecca P. Tuttle

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

2. Charles D. Winston v. Federal Express Corp., United

States District Court for the Western District of

Tennessee; 853 F.2d 455 (6th Cir. 1988)

I was the sole attorney for the plaintiff Winston

in both the trial court and on appeal, handling all

aspects of the case. The Complaint for a

Declaratory Judgment was filed on May 28, 1986,

seeking to recover $176,570 in profits from the

plaintiff's sale of his Federal Express stock that

Federal Express impounded following his sale of the

same on March 26, 1986. The issue in the case was

whether the District Court erred in holding that

the plaintiff was an officer of Federal Express

within the meaning of Section 16(b) of the

Securities Exchange Act of 1934 when he purchased

8,298 shares of its stock on September 30, 1985.

U.S. District Judge Julia S. Gibbons granted

summary judgment in favor of Federal Express on

April 28, 1987, although she acknowledged that "the

-15-
»1

question Is an extremely close one ... •• The Sixth

Circuit Court of Appeals affirmed the ruling of the

District Court.

The case was significant in that it involved the

proper interpretation of the "short swing profit"

prohibition of Section 16(b) of the Securities

Exchange Act in light of the facts presented.

Federal Express was represented by:

Veronica F. Coleman

(currently the United States Attorney for th«

Western District of Tennessee)

800 Federal Building

Memphis, Tennessee 38103

(901) 544-4231

Interstate Brands Corp. v. Hartford Accident a

Zndennity Co., United States District Court for the

Western District of Tennessee; Sixth Circuit Court

of Appeals, No. 82-5660 (1984) (noted at 729 F.2d

1461 as an unpublished opinion)

I was the sole attorney for the defendant Hartford

in both the trial court and on appeal, handling all

aspects of the case. The Complaint sought recovery

on a fidelity bond claim for $223,716 plus a bad

faith penalty against Hartford. The case was filed

on March 27, 1981. A jury verdict for Hartford was

rendered on September 13, 1982, and the verdict was

affirmed by the Sixth Circuit Court of Appeals on

February 3, 1984. U.S. District Judge Odell Morton

presided over the trial. The case was significant

in recognizing the subtle difference between

fidelity insurance and surety bonds where the

plaintiff had previously obtained state court

judgments against the dishonest employees.

The plaintiff was represented by:

Patrick M. Ardis

6055 Primacy Parkway, Suite 360

Memphis, Tennessee 38119

(901) 763-3336

and

-16-
Glen G. Reld, Jr.

6075 Poplar Avenue, Suite 650

Memphis, Tennessee 38119

(901) 537-1000

Oilaan v. FDIC, United States District Court for

the Wertern District of Tennessee; 660 F.2d 688

(6th Cir. 1981)

This lawsuit, filed in 1976, alleged the violation

of Regulation U margin requirements under the

Securities Exchange Act of 1934. Seymour Gilman

and Rosalind Gilman brought suit in the United

States District Court to void a $139,500 promissory

note signed by them and held by the FDIC as

liquidator of the Hamilton National Bank of

Chattanooga. I represented the plaintiffs (my

parents) as their sole counsel, handling all

aspects of the case both in the trial court and on

appeal.

On October 15, 1979, U.S. District Judge Robert M.

McRae, Jr. rendered judgment for the plaintiffs.

He voided the promissory note in question based on

a violation of Regulation U by the bank. On

December 1, 1981, the Sixth Circuit Court of

Appeals reversed Judge McRae's ruling and found for

the FDIC. The case was settled prior to perfecting

a petition for certiorari to the United States

Supreme Court.

This case involved complex and novel issues as to

the interpretation of Regulation U, the measure of

damages, whether a private right of action exists,

and the status of the FDIC as liquidator.

The FDIC was represented by:

James W. McDonnell, Jr.

6075 Poplar Avenue, Suite 650

Memphis, Tennessee 38119

(901) 537-1000

and

Mimi Phillips

22 North Front Street, Suite 800

Memphis, Tennessee 36103

(901) 529-0606

-17-
B. Molsen t Co., Inc. v. Flowers, et al.. United

States District Court for the Western District of

Tennessee No. C-72-139 (Judgment on Jury Verdict

rendered on September 11, 1973; 62 F.R.D. 14 (1973)

I was the plaintiff Molsen's sole attorney in this

case, handling all aspects of the litigation. H.

Holsen & Co., Inc. was a Texas cotton merchant who

brought suit against a number of West Tennessee

farmers and their agent for failure to deliver on

their cotton contracts. Because the market value

at the time of harvest was substantially higher

than the contract price, the farmers failed to

deliver all the contracted cotton.

After a four-day trial and two more days of jury

deliberation between August 27 and September 4,

1973, the jury returned a verdict for Molsen in the

sum of $21,750, and U.S. District Judge Harry W.

Wellford added a $2,000 attorney's fee in the

nature of punitive damages. The case was reported

in the September 15, 1973 issue of Cotton Digest

International with the headline "Molsen Wins

Landmark Decision Against Farmers When Farmers

Renege On Acreage Contract," and stated that it was

the nation's first cotton contract case tried to a

jury verdict in federal court. A copy of the

article is attached to this Questionnaire as

Exhibit 5.

The defendants' attorneys were:

John S. Wilder

(currently Lieutenant Governor of Tennessee)

108 E. Court Square

Somerville, Tennessee 38068

(901) 465-3616

and

Thomas F. Johnston

80 Monroe Avenue, Suite 700

Memphis, Tennessee

(901) 523-8211

STATE CASES

Onited Physicians Ins. Risk Retention Group, et al.

V. United American Bank of Memphis, Chancery Court

for Davidson County, No. 94-1889; Tennessee Court

of Appeals No. 01-A-01-9503-CH-00096 (1996)

-18-
894

I was the lead counsel for the defendant United

American Bank of Memphis (UAB), both presenting all

the proof in the trial court and arguing the case

on appeal. The Complaint was filed in June of 1994

by the Tennessee Commissioner of Commerce and

Insurance, as the plaintiff's liquidator, to

recover the sum of $800,000 that the Commissioner

alleged had been received by UAB as a preferential

payment. The case involved the proper

interpretation of the Tennessee statutes dealing

with preferences that may be avoided by a

liquidator.

This was a case of first impression in Tennessee as

well as in the 29 other jurisdictions which have

enacted the Insurers Rehabilitation and Liquidation

Model Act. Nashville Chancellor Robert S. Brandt

granted UAB's Motion to Dismiss the Commissioner's

Complaint on January 20, 1995, and the Tennessee

Court of Appeals affirmed the dismissal on

February 7, 1996. The case was reported in the

February 22, 1996 issue of Mealev's Litigation

Report: Insurance Insolvency, a copy of which is

attached to this Questionnaire as Exhibit 6.

The Commissioner was represented by:

William B. Hubbard

424 Church Street, Suite 2900

Nashville, Tennessee 37219

(615) 251-5444

My local co-counsel was:

John Knox Walkup

(currently Attorney General

for the State of Tennessee)

500 Charlotte Avenue

Nashville, Tennessee 37243

(615) 741-3491

Assisting me within my own firm was:

Rebecca P. Tuttle

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

Mall of Memphis Associates v. Tennessee State Board

of Equalization, et al.. Chancery Court of Shelby

County, No. 106118-3; Tennessee Court of Appeals,

-19-
No. 02A01-9609-CH-00214 (appeal pending, 1997)

This case was filed in the Chancery Court of Shelby

County by the Mall of Memphis in July of 1995,

challenging the right of the Shelby County Assessor

of Property to revalue the Mall's real estate for

the tax year 1990 without simultaneously examining

the values of all the hundreds of strip centers in

Shelby County. I was retained to represent the

Assessor and have been lead counsel for the defense

in both presenting all the proof in the trial court

and arguing the case on appeal.

In March of 1996, Chancellor D. J. Alissandratos

entered a Final Decree voiding the Mall of

Memphis's increased property tax assessment for the

year 1990 on the basis that the Assessor's action

violated the Mall's 14th Amendment rights under the

United States Constitution. The Assessor and the

State Board of Equalization appealed this decision

to the Tennessee Court of Appeals, arguing that the

Chancellor applied the wrong legal test in his

determination of a constitutional violation. I

argued the case before the Tennessee Court of

Appeals on April 15, 1997. The case is currently

under advisement.

The Mall of Memphis was represented by:

Clare Shields and Harry J. Skefos

22 North Front Street, Suite 1100

Memphis, Tennessee 38103

(901) 522-9000

The State Board of Equalization was represented by:

Christine Lapps

Assistant Attorney General

404 James Robertson Parkway, Suite 2121

Nashville, Tennessee 37243

(615) 741-6424

Assisting me within my own firm was:

Steven C. Brammer

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

Gaile K. Owens v. State of Tennessee, Shelby County

Criminal Court No. P-8806; Tennessee Court of

-20-
Criminal Appeals No. 02C01-9111-CR-00259; Tennessee

Supreme Court, 908 S.W.2d 923 (Tenn. 1995)

I was originally appointed by United States

District Court Judge Jerome Turner in October of

1989 to represent Gaile K. Owens on her petition

for a writ of habeas corpus. Ms. Owens iii and was

an indigent defendant incarcerated at the Tennessee

Prison for Women in Nashville. Prior to my

appointment, she was convicted (on January 15,

1986) of being an accessory before the fact to the

first-degree murder of her husband, and was

sentenced to death by the jury. The petition for

writ of habeas corpus was dismissed without

prejudice in September of 1991 in order to allow

Hs. Owens to pursue her state petition for postconviction relief which had been filed in February

of 1991. I was thereafter appointed to continue

representing Ms. Owens by state Criminal Court

Judge Arthur T. Bennett, along with co-counsel

Stephen B. Shankman.

1 petitioned Judge Bennett for an ex parte hearing

to request authorization for investigative and

support services necessary to protect Ms. Owens's

constitutional rights in a capital case postconviction proceeding. Judge Bennett denied Ms.

Owens's petition, but allowed her an interlocutory

appeal to the Tennessee Court of Criminal Appeals.

The Tennessee Court of Criminal Appeals held that

support services should be provided to an indigent

prisoner in an appropriate case, but denied her

right to an ex parte hearing to show her need for

such services. On the State's appeal to the

Tennessee Supreme Court, the Supreme Court held

that a proper interpretation of the Tennessee

statutes and its own Rules entitled Ms. Owens to an

ex parte hearing to request support services at the

state's expense. The Opinion of the Tennessee

Supreme Court was rendered on October 23, 1995.

I was lead counsel for Ms. Owens in both the trial

court and on appeal, both presenting the proof in

the trial court and arguing the case on appeal. At

the joint request of Stephen B. Shan)cman and

myself. Judge Bennett discharged us from further

responsibilities as Ms. Owens' counsel on November

28, 1995, shortly after the successful

interlocutory appeal.

-21-
397

The State was represented by:

Amy L. Tarkington

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37243

(615) 741-2216

Co-counsel in a related case consolidated for the

appeal was:

J. Brooke Lathram

130 Court Avenue

Memphis, Tennessee 38103

(901) 524-5130

Assisting me within my own firm was:

Steven C. Brammer and Rebecca P. Tuttle

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

My outside co-counsel was:

Stephen B. Shankman

(currently the Federal Public Defender)

100 N. Mid-America Mall

Memphis, Tennessee 38103

(901) 544-3895

State of Tennessee, et al. v. County of Shelby, et

al.. Circuit Court of Shelby County, No. 55237-4;

Tennessee Supreme Court, No. 02S01-9312-CV-00083

(1994)

This case began in 1992 when the four

African-American members of the Shelby County Board

of Commissions brought suit in the United States

District Court for the Western District of

Tennessee to challenge the then-existing

reapportionment plan for the Shelby County

Commission. I was retained to represent the

County, the Mayor, the Board of Commissioners, and

the iniividual white Commissioners. As lead

counsel, I both presented all the proof in the

trial court and was principally responsible for the

briefs on appeal. United States District Judge

Jerome Turner stayed the action on July 9, 1993 in

order to allow the state courts an opportunity to

settle the underlying state law question of whether

-22-
the required number of votes needed to adopt a

reapportionment plan was a majority (pursuant to

the applicable state statute) or two-thirds

(pursuant to the Shelby County Charter).

State Circuit Court Judge James E. Swearengen

entered an order on November 16, 1993 voiding the

reapportionment plan approved by a majority vote.

The defendants then appealed the trial court's

order to the Tennessee Supreme Court, arguing that

the trial judge erred in ruling that the Shelby

County Charter controlled over a conflicting state

statute. While the appeal was pending, the Shelby

County Board of Commissioners reached a political

compromise on December 7, 1993 by adopting a new

redistricting plan by more than a two-thirds vote.

The Tennessee Supreme Court subsequently dismissed

the appeal as moot.

The plaintiffs were represented by:

P. A. Hollingsworth

415 Main Street

Little Rock, Arkansas 72202 ,

(501) 374-3420

and

Keith C. Kyles

200 Jefferson Avenue, Suite 850

Memphis, Tennessee 38103

(901) 522-1200

Assisting me within my own firm was:

Rebecca P. Tuttle

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

10. Phil M. Canale, et al. v. Ruby Stevenson, 458

S.W.2d 797 (Tenn. 1970)

I was lead counsel for the plaintiff Stevenson in

both the trial court and on appeal, handling all

aspects of the case. Ms. Stevenson brought suit to

declare unconstitutional a Tennessee statute

prohibiting the practice of fortune-telling in

counties whose population exceeded 400,000 persons.

-23-
Chancellor Charles Nearn ruled in favor of Ms.

Stevenson after a trial in December of 1969, and

his decision was affirmed by the Tennessee Supreme

Court on October 5, 1970. The case was significant

in that both the trial and appellate courts held

that the statute was unconstitutional as arbitrary

and capricious class legislation, because there was

no discernable reason for the classification based

on county population.

The State was represented by:

Eugene C. Gaerig

(then an Assistant District Attorney General)

100 North Main Building, Suite 3118

Memphis, Tennessee 38103

(901) 526-6000

Supervising me within my own firm was:

Henry H. Hancock

One Commerce Square, Suite 2000

Memphis, Tennessee 38103

(901) 575-0100

ARBITRATIOH AND MEDIATION CASES

Other representative members of the Memphis legal

community who have had recent contact with me in my

capacity as an arbitrator or mediator are as

follows:

1. David M. Cook

80 Monroe Avenue, Suite 650

Memphis, Tennessee 38103

(901) 525-8776

2. Richard Glassman

26 North Second Street

Memphis, Tennessee 38103

(901) 527-4673

3. J. Kimbrough Johnson

One Commerce Square, Suite 2900

Memphis, Tennessee 38103

(901) 525-8721

-24-
400

4. Hayden Lait

99 North Third Street

Heiphie, Tennessee 38103

(901) 523-0301

5. Earle J. Schwarz

50 North Front Street, Suite 1300

Memphis, Tennessee 38103

(901) 543-8000

6. Kenneth R. Shuttleworth

200 Jefferson Avenue, Suite 1500

Memphis, Tennessee 38103

(901) 526-7399

19. Legal Activities; Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal

matters that did not involve litigation. Describe the

nature of your participation in this question, please

omit any information protected by the attorney-client

privilege (unless the privilege has been waived.)

I consider my service as President of the Memphis Bar

Association (1987), President of the Tennessee Bar

Association (1990-1991), and my membership in the House

of Delegates of the American Bar Association (1990-

Present) among my most significant legal activities.

The programs and innovations that occurred during my term

as President of the Memphis Bar Association included the

establishment of a Lawyers Helping Lawyers Committee, a

Corporate Counsel Section, a staff policy manual, the

addition of a CLE Director/Section Administrator, a

committee to plan for a new bar headquarters, new bylaws,

a judicial evaluation program, and changing the election

for bar leadership positions from in-person voting to a

mail ballot system.

The programs and innovations that occurred during my term

as President of the Tennessee Bar Association included

the formation of two new sections, one on criminal law

and the other on environmental law, the drafting of a

professional creed for Tennessee lawyers, the formation

of special committees to study alternative dispute

resolution, lawyer advertising, merit selection of

judges, outreach to the public, and the pros and cons of

a unified bar, and the formation of a Long Range Planning

Committee to formulate a list of both goals and

strategies to guide the Tennessee Bar Association's

future activities.

-25-
401

I also consider my service as a member of the Federal

Local Rnles Revision Committee (1989-1992), as Chair of

the Bankruptcy Merit Selection Panel for the Western

District of Tennessee (1992-1993), as a board member of

the Capital Case Resource Center of Tennessee (1988-

1995), and as a member of the University of Memphis Law

Dean Search Committee (1991-1993) to be significant

activities that have advanced the Interests of our legal

system.

-26-
402

II. PIMAMCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, tuaounts and dates of all anticipated

receipts from deferred income arrangements, stock,

options, uncompleted contracts and other future benefits

which you expect to derive from previous business

relationships, professional services, firm memberships,

former employers, clients, or customers. Please describe

the arrangements you have made to be compensated in the

future for any financial or business interest.

Pursuant to the Farris, Mathews, Oilman, Branan ( Hellen,

P.L.C. Operating Agreement, I would be paid a lump sum

within 90 days of my withdrawal from the firm for my

interest in its tangible assets. I would receive no

payment for accounts receivable or for work in process,

and would thus have no continuing financial interest in

the firm. I would also promptly transfer my account with

the firm's 401(k) Plan to an Individual Retirement

Account.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas of concern. Identify the

categories of litigation and financial arrangements that

are likely to present potential conflicts-of-interest

during your initial service in the position to which you

have been nominated.

I do not anticipate any potential conflicts-of-interest.

If any potential conflict were to arise, I would recuse

myself from hearing any case in which even the appearance

of a conflict might exist. Any potential conflicts would

be resolved by fully complying with the applicable

provisions of the Code of Judicial Conduct.

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,

-27-
403

honoraria, and other items exceeding $500 or more (IC you

prefer to do so, copies of the financial disclosure

report, required by the Ethics in Qovernfflent Act of 197B,

may be substituted here.)

A copy of the Financial Disclosure Report is attached to

this Questionnaire as Exhibit 7.

Please complete the attached financial net worth

statement in detail (Add schedules as called for).

Hy financial net worth statement is attached to this

Questionnaire as Exhibit 8.

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

-28'
404

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American

Bar Association's Code of Professional Responsibility

calls for "every lawyer, regardless of professional

prominence or professional workload, to find some time to

participate in serving the disadvantaged." Describe what

you have done to fulfill these responsibilities, listing

specific instances and the amount of time devoted to

each.

Early in my legal career (1968-1973) , I served as a board

member and then as treasurer of Senior Citizens Services,

a United Way Agency. Later I served for 3 years (1984-

1987) on the board of the Memphis Jewish Home. For the

past 5 years, I have served on the Executive Board of the

Chickasaw Council of the Boy Scouts of America. For the

past 2 of those years (1995 and 1996) , I was chair of the

Special Scouting District. This is the District for

physically and mentally handicapped youth with special

needs. Our activities included a Learning for Life

program in the schools and a Special Scouting Jamboree

each fall.

In the legal arena, I volunteered to represent indigent

defendants in the federal court system prior to the

establishment of the public defender's office. More

recently, I volunteered to represent an indigent death

row inmate at the request of the Honorable Odell Horton,

then Chief Judge of the United States District Court for

the Western District of Tennessee. He explained that as

President of the Tennessee Bar Association, my

participation in a post-conviction proceeding would

encourage other civil law practitioners to do the same.

Because of the very modest rates of compensation for time

spent in representing such indigents, I consider this as

largely pro bono wor)c.

The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is inappropriate for a

judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you belonged,

to any organization which discriminates -- through either

formal membership requirements or the practical

implementation of membership policies? If so, list with

dates of membership. What you have done to try to change

these policies?

I do not belong to any organization that invidiously

-29-
405

discriminates on the basis of race, sex, or religion.

The Kiwanis Club of Memphis, prior to 1987, did not admit

women to membership. I have been a member of the Kiwanis

Club since 1981, though I have never been an officer or

director of the organization. I voted to admit women as

members every time it came to a vote.

Is ther* a ••lection commission in your jurisdiction to

recommend candidates for nomination to the federal

courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection

process, from beginning to end (including the

circumstances which led to your nomination and interviews

in which you participated).

There is no selection commission in my jurisdiction to

recommend candidates for nomination to the federal

courts. I was recommended for this judicial position by

my law partner Harlan Mathews, a former United States

Senator from Tennessee. His recommendation was supported

by numerous written endorsements from legal, political,

and community leaders in Tennessee. I was not

interviewed prior to Vice President Gore's decision to

recommend me to the President for this judicial vacancy.

I met briefly with Michael O'Connor in the White House

Counsel's Office after my selection to discuss the

process of background checks and to review the various

forms to be completed. I have subsequently been

interviewed by representatives of both the American Bar

Association and the Federal Bureau of Investigation as

part of their respective background investigations.

Baa anyone involved In the process of selecting you as a

judicial nominee discussed with you any specific case,

legal Issue or question in a manner that could reasonably

be Interpreted as asking how you would rule on such case.

Issue, or question?

No

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

-30-

45-964 98-14
406

levels of government.

Some of the characteristics of this "judicial activism"

have been said to include:

a. A tendency by the judiciary toward problem-solution

rather than grievance-resolution;

b. A tendency by the judiciary to employ the

individual plaintiff as a vehicle for the

imposition of far-reaching orders extending to

broad classes of individuals;

o. A tendency by the judiciary to impose broad,

affirmative duties upon governments and society;

d. A tendency by the judiciary toward loosening

jurisdictional requirements such as stanc'ing and

ripeness; and

e. A tendency by the judiciary to impose itself upon

other institutions in the manner of an

administrator with continuing oversight

responsibilities.

A federal judge needs to be mindful of the proper role of

the judiciary in the basic constitutional scheme

concerning the separation of powers. The federal courts

must carefully balance their responsibilities as

interprc::ers of the constitution with the limited nature

of their jurisdiction, their duty to resolve actual

controversies on the nai.rowest possible grounds, and with

due respect for the doctrine of judicial restraint. In

particular, the judiciary should refrain from unwarranted

intrusion into the legislative and executive processes

that the constitution delegates to Congress and the

Executive Branch. By the same token, the federal courts

must maintain their judicial independence, remedy

constitutional violations, and interpret statutory

language in their basic role as the resolver of disputes

properly brought before them.

-31-
407

BY-LAWS

OF

ECONOMIC CLUB OF MEMPHIS

ARTICLE I

The name of this corporation shall be Economic Club of

Memphis.

ARTICLE II

The purpose and objectives of the Economic Club of Memphis

shall be those set forth in its charter of Incorporation, as

such Charter now exists and as it may hereafter be amended from

time to time, and no others. The alms and purposes of the corporation are to be carried out through any and all lawful activities, both direct and through contributions to any other corporation, trust fund or foundation whose purposes are charitable, scientific, literary or educational, provided:

1. That any such activity or contributions shall conform

to any applicable restrictions or limitations set forth In the

corporate charter.

2. That any such activity or contribution shall conform to

any restrictions which are Imposed by the Internal Revenue Code

on corporations described in Section 50i(c)(3) of the Internol

Revenue Code and its regulations.

EXHIBIT

1
408

Tha Economic Club of Memphis shall exercise only such

powers as are in furtherance of its exempt purpose under the

Internal Revenue Code.

ARTICLE III

Section 1. The principal office of the corporation shall

be located at City of Memphis,

County of Shelby, State of Tennessee. Tha corporation may have

such other offices as the Board of Directors may determine from

time to tiine.

Section 2. The fiscal year of the corporation shall be

June 1 - May 31.

ARTICLE IV

Section 1. The elected officers of the corporation shall

be a President, a vice-president, a Secretary-Treasurer, and

such other officers as may be elected in accordance with tha

provisions of this Article.

Section 2. The vice-President and Secretary-Treasurer shall

be elected by the membership annually by written ballot to

take office on June 1 for a term of one year or until their

successor is elected and qualified, except as hereafter prO'

vided.

- 2 -
409

Section 3. The President shall be the Chief Executive

Officer. He. or In his absence, the vice President, or other

executive officer, shall preside at all meetings of the Board

and of the membership. The President shall preside at, or may

choose a presiding officer for, each public discussion.

Section 4. The Vice-Presldent shall perform all of the

functions of the President In his absence. UJxan completion of

his term as vice-Presldent he shall succeed to the office of

President, which office he shell hold foe an additional term.

He shall also be President of the program Committee, which

shall consist of himself and two other members selected by him

with the approval of the Board of Directors. This Comnlttee

shall be responsible for recommending programs to the Board of

Directors.

Section 5. The Secretary-Treasurer shall perform such

duties as ordinarily attached to that office, including

keeping minutes of all meetings of the Board and executive

Committee. He shall have custody of the funds of the corporation. He shall be Chairman of the Finance Committee, which

shell in addition to himself consist of not more than four or

less than two other members selected by him with the approval

of the Doard.

Section 6. There shall also be an Executive Djrector, who

shall be appointed by the President, subject to the approval of

the Board.

- 3 -
410

Section 7. Any officer elected or appointed may be removed

at any time by a vote of a majority of the members of the Board

of Directors whenever In its judgment the best Interest of the

corporation would be served thereby.

Section 8. A vacancy In any office because of death,

resignation, removal, disqualification, or otherwise, may be

filled by the Board of Directors for the unexpired portion of

the term.

Section 9. The several officers shall have such povers

and shall perform such duties as may from time to time be specified in resolutions or other directives of the Board of

Directors. In the absence of such specifications, each officer

shall have the powers and authority and shall perform and

discharge the duties of officers of the same title serving in

non-profit corporations having the same or similar general purposes and objectives as this corporation. The powers of the

Executive Director however shall be limited to those delegated to

him by the Board of Directors.

ABTICLE V

Section 1. The corporate powers of the Corporation shall

be exercised and directed by a Board of Directors consisting of

- 4
411

12 mambers alacted as provided in Article Vll heraof and in

addition such officers as qualify under Section 2 of Article v

heraof. The Executive Director may unless the Board detennines

otherwise meet with the Board but shall have no vote. The

President may with the consent of the Board designate others to

attend its meeting but without vote. .

The Board of Directors shall determine the policies

programs of the corporation and the projects for which funds

will be expended, provided, however, such policy determinations

are within the exempt purposes as provided by Section 501 of

the I.R.C. of the United states and the applicable Sections of

the Tennessee Code Annotated under which this corporation is

organized.

The Board of Directors nay, from time to time, appoint, as

advisers, persons whose advice, assistance and support may be

deemed helpful in determining policies and formulating programs

for carrying out the corporate purposes.

The Board of Directors is authorized to employ such persons,

including an Executive Director. officer, attorneys, agents, and

assistants, as In its opinion are needed for the administration

of the corporation and to pay reasonable compensation for services and expenses thereof.
412

Each member of th« Board of Directors shall ssrve in a

fiduciary capacity and shall refrain from exercising any powers

in such manner as to disqualify the corporation from federal

Income tax exmptlon as to qualified charitable organliatlon or

any gift from deduction as a charitable contribution, gift or

bequest In computing federal income, gift or estate tax of the

donor or his estate.

Neither the Board of Directors, nor any of its members

individually, shall be llabla for acts, neglects or defaults or

any employee, agent or representative selected with reasonable

care nor for anything it may do or refrain from doing in good

faith, including the following if done in good faith: errors

In judgment, acts done or committed on advice of counsel, or

any mistakes of fact or law.

The Board of Directors may provide for such standing or

special committees as it deems desireable, in addition to the

committees herein provided for, and discontinue the same at its

pleasure. Each such committee shall have such powers and

peform such duties, not inconsistent with law. the Charter of

the corporation, or these By-Laws. as may be delegated to it by

the Board of Directors, vacancies in such committees shall be

filled by the President or as the Board of Directors may provide.

- 6
413

Section 2. The President, the immediate past President, the

Vice-President, end the Secretary-Treasurer shall (if not otherwise members of the Board of Directors) bo Directors ex

officio while holding those offices.

Section 3. Officers (except the President) and Directors

shall be ejected from and by the membership, by written ballot as

herein provided. The directors shall be divided into three

classes, each class consisting of four (4) directors. Each year

the successors to the class of directors whose terms expire that

year shall be elected to hold office for the term of three years,

except as herein provided.

Section 5. A majority of the Board of Directors shall

constitute a quorum for the transaction of business at any

meeting of the Board. The acts of a majority of the directors

present at the meeting at which a quorum is present shall be

the act of the Board of Directors.

Section 6. Any vacancy occuring in the Board of Directors,

including those resulting from an Increase in the number of

directors, shall be filled by the Board of Directors. A

Director appointed to fill a vacancy shall servo for the unexplred term of his predecessor In office.
414

Section 7. Directors as such shall not receive any compenation for their services, but shall be reimbursed for expenses

incurred on behalf of the corporation. Nothing herein contained shall be construed to preclude any director from serving .

the corporation in any other capacity and receiving compensation therefor.

Section 8. A regular meeting of the Beard of Directors

shall be held annually in June. Special meetings of the Board

of Directors may be called by or at the request of the President

or any three members of the Board of Directors. and shall be

held at the principal office of the corporation or at such

other place as the President may determine.

Section 9. Notice of Annual and Special Meetings of the

Board of Directors shall be given at least ten (10) days previous thereto by written notice delivered personally or sent by

mall to each director at his address as shown by the records of

the corporation. If mailed, such notice shall be deemed to be

delivered when deposited in the United States mall in a sealed

envelope so addressed, with postage thereon paid. Any director

may waive notice of any meeting. The attendance of a director

at any meeting shall constitute a waiver of notice of such

meeting, except where a director attends a meeting for the

express purpose of objecting to the transaction of any business

because the meeting is not lawfully called or convened. The

business to be transacted at the meeting need not be specified

- a -
415

in the notice or waiver of notice of Buch meeting, unless specifically required by law or by these Dy-Lawa.

ARTICLE VI

Section 1. There shall be an Executive Committee composed of

the elected officers and the Immediate past President. The

Executive Director shall be a member ex offlcio without vote. The

Chairman shall preside at all of meetings of the Executive

Committee, except that In the event of his absence fr.tn any

meeting, the members of the committee may designate one of

their members to preside over such meetingSection 2. Between meetings of the Board of Directors, the

Executive Committee shall have all of the powers and duties of

the Board, including the management of the corporation's

business; the making of necessary arrangements for meetings;

and the procuring of speakers nad the providing of payment for

services, rents or other expenses Incurred in carrying on the

work of the corporation; but the Executive Committee shall have

no po'er to increase the size of the membership of the Board of

Directors or to fill vacancies, nor to amend these By-Laws.

ARTICLE VII

Section 1. Any member may nominate any other member for

any office or for the Board of Directors by ro advising the
416

Bxecutlve DUector In writing before April 1. On or before that

date each year, the President shall appoint a nominating comnittee consisting of five (5) former Presidents (Chairmen) who are

active members, subject to approval by the Board of Directors.

No more than twenty (20) days after Its appointment the nominating

committee shall make Its report In writing to the President, consisting of the Rominatlon of one member for each of the offices of

vice-President and Secretary-Treasurer and four (4) for the Board

of Directors. These may but need not have been already nominated

by another member. This report, together with the names of all

members otherwise nominated, shall no later than May l be mailed

to the membership together with a ballot prepared in such a way as

to allow each member to vote for any such nominee Individually or

for a write-Jn candidate of his choice. AJl such ballots shall

state that in order to be counted they must be received by the

Executive Director by June 1.

Section 2. On June 1 the candidate for each office

receiving a plurality of the votes then received, and the four

candidates for Director receiving the most votes shall be

declared elected and take office.

ARTICLE VIII

Section 1. The Board of Directors on the recommendation of

the President shall appoint a membership committee of three (3)

members which shall act on all applications for membership by

making recommendations to the Board of Directors. At such date

- 10 -
417

as the membership roaches the total as set by the Board, new

applications for membership shall be acted upon only at th«

regular meeting of the Board of Directors in June.

Section 2. New members shall be elected upon nomination by a

member. Each such nominee shall then be considered by the membership committee, and recommendation of approval or disapproval

shall be made to the Board, of Directors pursuant to Section 1 of

Article VIII. Applicants approved by the Board of Directors shall

become members of the corporation upon payment of initiation fee

and dues fixed as provided herein, provided all other requirements

for membership are met.

Section 3. Any member wishing to resign may do so by

filing with the Secretary, written notice of resignation, but

such resignation shall not relieve the member so resigning of

the obligation to pay any dues, assessments, or other charges

theretofore accrued and unpaid and no return of dues previously

paid will be made.

ARTICLE IX

Section 1. Regular meetings of the members shall be held

at places and times designated by the Board of Directors.

Section 2. Special meetings of the members may be called

by the President or the Board of Directors, or not less than ten

- 11 -
418

(10) members having voting eights, at a place in Memphis,

Tennessee, to be designated by the President. The Executive

Director upon receipt of notice of a request for a special meeting

shall be charged with the duty of notifying the President who shall

then be required to call such meeting not more than thirty (30)

days thereafter.

Section 3. Each member tn good standing shall be entitled

to one vote on each matter submitted to a vote of the members.

Section 4. Written or printed notice stating the place,

day, and hour of any meeting of members shall be delivered

either personally or by mail, to each member entitled to vote

at such meeting, not less than ten (10) nor more than twenty

(20) days before the date of such meeting, by or at the direction of the President or the Secretary. In case of a special

meeting or when required by statute or by these By-Lsws, the

purpose or purposes for which the meeting is called shall be

stated in the notice.

Section 5. Any notice or other communication required by

these by-laws shall be deemed to be delivered when deposited

In the i;nited states mall addressed to the member at his

address as it appears on the records of the corporation, with

postage thereon prepaid.

- 12 -
419

Section 6. Any action required by iaws'to be taken or per-

•Itted to be taken at a meeting of the members may be taken

without a meeting If a consent In writing setting forth the

action so taken is signed by a majority of all the members

entitled to vote with respect to the subject matter thereof.

Section 7. Twenty (20) members present at any meeting

shall constitute a ijuorum at such meeting, tf a quorum Is not

present at any meeting of members, a majority of the members

present may adjourn the meeting from time to time without

further notice.

Section 8. At any meeting of members, a member entitled to

vote may vote by proxy executed in writing by a member or by

his duly authorized attorney In fact. No proxy shall be valid

tf dated three (3) months or more prior to the date of the

meeting at which It is presented, except If such is an

adjourned meeting and the original meeting was one at which the

proxy would have been valid.

ARTICLE X

Section 1. The Board of Directors may authorize any officer

or officers, agent or agents of the corporation, in addition

to the officers so authorized by these By-Laws, to enter into

any contract or execute and deliver any instrument in the name

- 13 -
420

of and on behalf of the corporation, and »uch authority may be

general or may be confined to specific Instances.

Section 2. All checks, drafts, or orders for the payment

of money, notes, or other evidences of indebtedness issued ia

the name of the corporation, shall be signed by the Executive

Director or by such officer or officers, agent or agents of the

corporation, and in such manner as shall from time to time be

determined by resolution of the Board of Directors. All persons so authorized shall be bonded.

Section 3. All funds of the corporation shall be deposited

from time to time to the credit of the corporation in such

banks, trust companies, or other depositaries as the Board of

Directors may select.

section 4. The Board of Directors may accept on behalf of

the corporation any contribution, gift, bequest, or devise for

any purpose of the corporation.

ftRTICLE XI

The corporation shall keep correct and complete books and

records of account and shall also keep minutes of the proceedings of its members. Board of Directors, committees having

and exercising any of the authority of the Board of Directors,

and the membership committee, and shall keep at the principal

- 14 -
421

offlca a record giving the names and addresses of the members

entitled to veto. All books and records of the corporation may

be Inspected by any member, or his agent or attorney for any

proper purpose at any reasonable time, and shall be audited

annually.

ARTICxe XII

Section 1. The Board of Directors shall determine from

time to time the amount of initiation fee. If any, and annual

dues payable to the corporation by its members, and shall give

appcoproprlate notice thereof.

Section 2. Annual dues shall be payable in advance by June

1 of each year. The Board of Directors shall determine initiation fees. If any, and the pro rate share of annual dues

to be paid by new members upon election.

Section 3. Whan any member is In default In the payment of

dues for a period of four (4) months from the beginning of the

period from which such dues became payable, his membership may

thereupon bo terminated by the Board of Directors as provided

hereinabove. However, such default may be waived in advance

thereof by the Executive Conmittee.

- 15
422

ARTICLE XIII

Whenever any notice is required to be given under the provisions of T.C.A. 48-703, or the By-Law8 of the cocporation. a

waiver thereof in writing signed by the person or persons

entitled to such notice, whether before or after the time

stated therein, shall be deemed equivalent to the giving of

such notice.

ARTICLE XIV

These By-Laws may be altered, amended, or repealed, and new

By-Laws may be adopted by a majority of the directors present

at any regular meeting or at any special meeting of the Board

of Directors, if at least ten (10) days written notice as given

of intention to alter, amend, or repeal or to adopt new By-Laws

at such meeting.

- 16 -

IiTD/91/es-ecsb/61-76/cpm
4/92

The purpose of the Charter Amendments which you are asked to approve

today effective May 31. 1992. when Kurt Flexner retires, Is to change the name

of the registered agent of the Club to Its new Executive Director. Robert L.

BerL: the address of the registered and principal office of the Club to Fogelman

College of Business and Economics; to preserve the Club's tax exempt status

by bringing the Charter into accord with present requirements of the Internal

Revenue Code; and to take advantage of certain provisions of the Tennessee

Corporation law dealing with the limitation of liability and indemnification of

Directors. Copies of the proposed amendments are available to anyone desiring

further details.

Purpose for Board ofDirectois

One of the purposes of the meeting of the Board of Directors Is to adopt

certain amendments to the By-Laws. The first amendment proposed for

adoption merely implements the Board's earlier decision to modify the

procedures relative to the appointment of members to sit upon the Nominating

Committee. The text of the proposed amendment, which will be effective

Immediately upon approval by the Board, Is inserted anr* underlined on page 7

ofthe By-Laws which is enclosed herewith. If adopted by the Board, said

amendment is effective Immediately.

The remaining amendments proposed for adoption implement the Board's

earlier decision to change the By-Laws with respect to the administration of
424

the Club. The proposed amendments are In accordance with the Report of the

IVanaltlon Conunittee which was presented to the Board at Its meeting on May

21, 1991. The text of these proposed amendments has been inserted In the

enclosed set of By-Laws. and Is underlined. If adopted by the Board, said

amendments shall be effective as of July 1. 1992.

In addition to the foregoing, proposed Articles of Amendment to the

Charter of the Club shall be presented to the Board for Its review. Said Articles

ofAmendment reflect that as of July 1, 1992, the address of the principal

office and registered office of the Club as well as the name of the registered

agent of the Club will change. The Articles ofAmendment also contain

amendments which implement changes made to the Tennessee Nonprofit

Corporation Act in 1987 by the Tennessee General Assembly.

Some of the amendments contained in the ArUdes ofAmendment can be

adopted only by the members of the Club. Therefore, the Articles are being

presented to the Board In order that the Board may consider recommending the

Articles to the members for adoption at a meeting of the members.

Presented to Members on _^'Jai
4tB

RESTAtED BYLAWS OF

THE ESTATE PLANNING COUNCIL

OF MEMPHIS, TENNESSEE, INC.

ARTICLE I , _ ' \

Th« Estate Planning Council of Memphis. Inc. shall be a

Tennassea not for profit corporation pursuant to T.C.A. . ^ "•

S 48-1-601 et seg.

ARTICLE IT

Membership '•*.•*•

The «embcrship of this Council shall be comprised ofl

1. Trust Officers of trust companies and banks maintaining trust departments.

2. Chartered Life Ondarwriters.

3. Practicing Attorneys at Law, '.'•.

4.. -Certified Public Accountants In public service.

Membership shall be liaited to one hundred jx^d'i^/^o A^e*iAaaJ

members; the total membership for the years ended May 31,

1981, 1982, 1983, 1984 and thereafter shall not exceed

eighty-five (85), ninety (90), ninety-five (95), and one

hundred (100) members respectively. Of the aforementioned

professional classifications, no single participant group •'

shall consist of more than forty (40%) per cent of such

total. Eli^iAt* iuctoe* of Shelby County. i^fidftciiL Estate. lax

ExasOiMLrs, and TenncssA^ ^heitfianc*. Tax., EjtaaJjiers, vrtio meet

EXHIBIT
426

any o£ the above qualifications ^«hAXl.J>Qj( jnstri.ct the ' . ' •

.claaaiflcationa ol which they .«»•. a »e»ib«r. or tha total

ntnbar o£ MBbars. To be qualified for »«tnb«rship, an

applicant, after the adoption of these Bylaws, Bust have

four (4) years experience In his category and such applicant

must b« interested in and actively engaged in cooperative

••'•'• planning or coapliancc activities in the Memphis,

Tennessee area.

A member who is in a category which does not restrict .

. the total nuabar of such member's category and the total '

number of members of the Council, and who ceases for. any

reason not involving a question of moral turpitude, to be a '

member of such category, shall, upon written notice of such

member's desire so to do, continue as a member of the

Council in the proper category. By attrition the toted

number of members of the Council, and the affected categpry,

shall be brought within the limitations otherwise

established by these Bylaws prior to the admittance of new

members to the Council.

Members shall be elected Siy^'it'iBajority votfr. of. the

Executive Committee upon recommendation of the Membership

Committee. Applications for membership shall be submitted

to the Secretary and shall be endorsed by five {5) nenbers

2 -
427

of the Council, thr*«i o£ whom shall'ba lii different me*- .

bershlp classifications and only one of whom may be associated in business with the applicant.

ARTICLE III ..•'•;.

. Executive Coiamlttee ' ' s •

All.powers necessary for the governing of the Council •

shall be vested in an Executive Conmittee composed of thie

officers, the immediate past President of the Council, and

four (4) members-at-large with no more than one (1) from any

participating group.

At each annual meeting and at all other meetings for the

election of members of the Executive Committee, two (2).

neabers-at-large shall be elected for a term of two (2)

years.as members of the Executive Committee, with the

remaining members to continue In office until the expiration

of their term or until their successors are elected.

ARTICLE IV

Officers

The officers of the Council shall consist of a

President, a Vice President, a Secretary and a Treasurer.

The Vice President shall serve as Chairman of the Program

Committee and the Secretary shall be Chairman of the
Membership Committee-: The officers shall hold office for

one (1) year or until their successor shall have been chosen.

ARTICLE V

Quorums

. Any five 15) members of the Executive ComBittee shall •

constitute a quorum for the transaction of business.- Th»

Executive Committee shall have the power to fill, for the

unexpired term, any vacancy which may occur in any office or

in their own body,, by a concurrence of at least five (5)

members.

The presence of twenty-five (25) members shall constitute a quorum for the transaction of business at any regular

meeting of the Council, provided there shall be at least ten

(10) days written notice of the time and place of the

.meeting.

ARTICLE VI

nominations and Elections

The President shall, sixty (60) days prior to the dat* •

of each annual meeting, appoint a nominating committee to

submit a list of nominees for officers of the Council, and

for members-at-large of the Executive Committee, to be voted

- 4

».»
upon at th« annual meeeing. Such Committee shall file the

naa«s of their nominees with the Secretary at least £l£te«n

(15) days before the date of the meeting. In addition, any

nine <9) members, by notice in writing filed with th«

Secretary at least five (5) days before the date of the

•eetlng, may nominate candidates for officers of the Council

and for meobers-at-large of the Executive Committee. The

members shall be entitled to vote for any candidate named by

either one ot the above methods at such meeting. The candidate receiving a simple majority of votes cast for his

office shall be declared elected. • .

ARTICLE VII

Annual Meeting .

The annual meeting of the Council shall be held on the

fourth Tuesday in May of each year or at such other time as

may be selected by the Executive Committee. The Secretary

shall mail each member a notice of the meeting at least ten

(10) days prior to the date hereof.

ARTICLE VIII

Executive Coronittee Meetings

Meetings of the Executive Committee may be called by the

President at his discretion, or when requested so to do by

three (3) members of the Committee. The Executive Committee

- 5 -
shall establish' rul«s of procedure and practice for its

neetings, subject to approval of, or amendment by, the

Council.

• . ARTICLE IX • -

Comaittees

The President o£ the Council, with the advice and consent'of the Executiv« Committee, shall have the power- to

appoint ccaamittees on programs, membership, ethics, cooperation, education, legislation and such other comnittees as he

•ball deem advisable to further the interests of the Council

and its awmbers; and to delegate to such conmittees such •••

power and authority as the Executive Committee shall deem

advisable.

' ., • ARTICLE X

. Program Meetings

Meetings for the furtherance of the purposes o.^ this '

association may be called by the Executive Committee at

stated times, or from time to time in its discretion. The

program of such meetings shall be arranged by the Executive

Committee and the Program Committee.

- 6
481

ARTICLE XI

Duties of OfficT»

Th« President shall preside at all meetings ot the •

Council and the Executive Coaiaittee, and perform the duties

' herein set out.

The Vice President shall perform the duties of the

President in the absence of the President.

The Secretary shall keep a record of the proceedings of

all meetings of the Council and the Executive Committee. »nd

he shall be responsible for maintaining a current membership

roll and for the mailing of notice of meetings and other

coomunications to such members.

The Treasurer shall have custody of all funds and property of the Council and shall deposit all funds of the

Council in the name of the Council in a bank or trust company located in Memphis, Tennessee. All withdrawals of such

funds shall be on checks or orders signed by him or by the

President. He shall prepare and submit a statement of the

financial condition of the Council at the annual meeting and

at such times and in such manner as the Executive Committee

may require.
• ARTICLE XII

Expenses and Dues

The expenses of the Council shall be provided for.by

.annual dues of Ninety (S90.00) Dollars for each member,

payable in advance on or before the September ncetinc in

each year. Annual dues may be increased by the majority of .

the members at a meeting duly called with at least ten (10)

days prior written notice o£ the proposed increase.

ARTICLE XIII

Advertisement

No members of this association shall use his membership

herein in any form of advertisement of solicitation of business. • . •

ARTICLE XIV

Revocation of Membership

Any member who shall have been absent from two <2) consecutive called meetings of the Council, or shall have "

failed to pay his dues at the time and in the amount

prescribed by these Bylaws, as from time to time amended,

shall have his name referred to the Executive Committee by

the Secretary. The Executive Committee, in its sole discretion, may direct that such iMmber be dropped from the roll h.'
433

of this Council, in which event he shall be so notified in

writing by the Secretary. Any such menber who has been.

dropped from the roll of the Council by action of the

Executive Committee shall not be eligible £or membership In

thib Council for a period of at least three (3) years

thereafter.

ARTICLE XV

Amendwents

tipon at least ten {10) days written notice setting out

the proposed amendment, these Bylaws may be amended at any

annual or called meeting of the Council by a vote of twothirds (2/3) of the membership present.

ARTICLE XVI •

Guests

Provided the inviting member pays the meal cost-as

established by the Executive Committee for each guest, any

member of the Council will be permitted to invite guests of

his or her choosing, provided he or she does not bring the

sane guest to more than two (2) meetings in any one (1)

fiscal year.

ARTICLE XVII

The corporate fiscal year shall be June 1 through Kay 31.

Revised: June, 1986

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445

IN tilt: CIRCUIT COURT OF TENNeSSEe

roR me rirtzetna JUDICIAL CIRCUIT AT HKHPHIS

RITA KAUN and KEHHCTH IIAUN.

Individually and as MiCe

and Husband,

VS.

JOAN rRCEHAH, SupvrlnCendenC

or the City of nanpMs Board

of Kducatlon, and THE CITlf OP

HCHPHIS BOARD OP EDUCATION,

Defendants.

SOPPLEMENT TO

ANSWER 15 ON

PAGE 9 OF

QUESTIONNAIRE)

EXHIBfT

This case involves the tragic situation of a kindergarten

teacher at the A. B. HIU eienentacy School being raped in her

clasaroon by an unknown adult assailant shortly after she had dis-

•tesed her class on March i\, 1977. The teacher and her husband

(hereinafter collectively referred to as "plaintiff"} have sued the

Doard of Education,* essentially clainlnq that the Board was negligent In failing to provide her with a safe place to work. Here

specifically, she claims that she was assigned by the school's

principal to a relatively isolated claasroon on the first floor of

the original school building, rather than to another available

claasrooa that was also In the original building but closer to the

other throe kindergarten classrooiBS in the adjacent newer building

on the school caaipua. Plaintiff believes that the assault In question would not have occurred If she had been assigned to the other

classrooM, and contends that thla alleged Bisasslgnaent waa the

proxiaate legal cause of her Injuries.

Plaintiff's action is subject to and controlled by the

Tennessee Covernaental Tort Liability Act, T.C.A. 29-20-101 et seq.

This Act allows actions against governaental entitles for injuries

proxiaatcly caused by a neijllgent act or oaisslon of any e«ptoye«

within the scope of his enployaent, with cectdin enumerated

*Th« Coaplalnt aa to co-ilefendant

dismissed by Order dated nay 13, 1980
&ttmi)ij0^ (l«9. U. S. rat. OM«)

INTERNATIONAL

i wholly disopctiw* of whor you soy but witi defend to the deorh your righr to soy ir-VoIra<r«.

It Is Very Important That Farmers

Deliver Every Bale On Contract

RECENT PRESS RELEASES from the department of agriculture indicate that 122.000 bales

of cotton had been sold for export during the

1972-73 marketing ye:r but were undelivered aa of

Aufujt 10. 1973. It was also reported that another

6.100.000 bales have been sold for e.sport during

the 1973-74 marketing year (August 1 to July

31) aad that 1.6OO.0OO bales have been booked for

•:.•.-•.—. dur^.r ••:'. 1074-7-"> —-r'rstinj year.

Z..7ort3 !::-; .-'jar were ac-;.;: .^.-'.CO.COt) b.-'.'«2

and in thi preceiii.ig season, lS7i-72, were 3.220,-

000 bales.

Tnus. we face final export sales this season of

around 7.000.000 bales, the trade believes. Can this

much cotton be handled through .American ports?

This is the big question.

li we GJ ship 7.000.000 and our own miiis consume 7.500,000, this offtake of lt,.o00.000 bales

will be about 1,300.000 bales above the latest cron

estimate of 12.938.-o00. which report was issued

this week by the USD.\ in Washington.

It is now estimated that we will have a carryover of 3,500.000 bales next Augvit I, but if e.":-

portfi do run as high as we have n-)ted. it would

appear to us that these carryover predictions, will

be half a million bales too much. )t is a good thing

that we do have the caryover or U. S. mills would

be io worse despair than they are now. And they

are cr^nng daily for export controls to be placed

on further sales.

Many in the trade now consider controls ineviubfe due to the continuing heavy, unprecedented sales. They may come so late that controls will

be academic, for forci^ buyers will li.tve filled

tl;eir needs, except for fill-in oi-ders here and

there as the season progresses. , As for U. 3. mill consumption, it h.-\j been

steadily downward, and the trend seem.-* to contmue dotvnward whether the crop i-* larp: or

small. Last year, we had a bij crop, yet totnl cotton consumption was only 7,17l.'^00 runninc I'.ile.^.

This compares with 8.0;i

ing the 1971-72 season

inTO-71 season.

While U. S. milU u:

world use is exp.mdinidicale that the diiy n

farmer may be producing for foreign consumption

mainly, instead of for U. S. consumption.

• a •

IT IS VERY IMPORTANT to the future of the

cotton industr>' that American farmers deliver

every bale of cotton they have contracted to deliver from every acre this year. The trade has sold

cotton ahead to world and U. S- mills.

True, the farmers might have received better

prices if :hey had waited to sell their cotton, but

there is nothing to be done now. The trade too'

would have received better prices if the farmers

had waited to sell. This is water over the dwn.

The farmers can recover some of the profits

they might have made by selling ahead at higher

prices in the 1974-75 season. But. we would recommend that farme.'s move slowly, sell only part of

their intended plantings and hold the remainder of

the acreage for later deals. This way. they can

have their cake and eat it too.

But for cotljn already contracted for this season, the farmer must deliver if he wants to do

business with buyers in the future. The farmer

must help insure that merchants will ge the cotton they have contracted for—for if the trade

doesn't receive every bale for every acre they have

bought, thre won't be many firms remaining to do

business with in the future. It is that simple.

The entire cotton industry needs every member

it now has. and. in fact, could use some new buyers

as well as new producers in 1074—for it appears

that we will need at least another million acres.

Thus. H. Molsen & Company's landmark decision against 15 Tennessee farmers who failed to

deliver two seasons ago takes on added importance

now. It was the first federal case, and it shows

that the farmer must deliver under the law.

whether he wants to or not. Most farmers are

delivering—and most of them want to deliver.

They know the merchant must deliver to the mill

or the merchant will be used.

There have been only 142.800 bales ginned in

the Lower Rio Grande Valley to September 10 but

reports from the Valley say that the farmers art

delivering. They are living up to their word

whether they like to or not. They also seem to be .

delivering sjiti.nfactoril.v in the Corpus Cliristi and

^ (SUPPLEMENT TO ANSWEK 18 (CASE 5) ON VtfX. 18 OF QUESTIOWWRE) THE COTTON OrGIJT
417

In Memphis, Tennesiee:

Molsen Wins Landmark Decision Against Farmers

When Farmers Renege On Acreage Contract

Is* A LANDMARK DECISION, H.

Molsen A Company, DBIIU cotton

mtrchknU, won • $21,750 Jury

vtnlict this wc«k (September 4) in a

Memphis, Tennessee, fedcrBl district

coort against IS farmers and a cotton

rinner-producer.

The jury ruled that the West

Tenn—see fanners and fanners were

in breach of contract.

The farmers were chargetl with

brrakiflK contracts for the sale of

their cotton in order to sell on the

open market when the prices were

hifrher later in the harveitiar period.

The case was filed in April 1972

mad covered transactions on the 1971

crop. The farmers were found piilty

of diverting bales that were on

contractT^e jury awarded the full amount

per bale asked by the Dallas cotton

shippinc firm, which was the difference In contract price and market

price at the time the firm learned of

the diversion which forced them to

cover the loss in-the open market.

The amount svvarded the Molten

firm was S50 per bale, which u-as the

difference between the 23 cents per

poond average contract price and 33

cents per pound average cover price.

The 'fefendanta were George Flow,

en A Hen. Covington Tennessee, and

Wm. B. Cowan. Cowan Brothers,

producers and ginners from La

Grange, Tennessee.

Individual farmers whom the federal

judgement were delivered against

were Bynum Lea(henvood, Leona

Powell, R. D. Daniel. Franklin Farms.

William B. Co»-an. Jr., Clyce Weatheriy, J. J. Smith, B. C. Yoger. Sr..

Paul Gatlin. O- D. Maclin. Robert

Sparkman, WHtiam Gaugh. Joe

Harvey, Franklin and C. W. Middlecoff.

Molsen's attorney, Ronald Gilman

of Memphis, said the case was the

first cotton contract default claim

presented to a jury in Tennessee. It

is belicvcri to be the first cotton

contract case in federal court, although several other cases have been

beard in state courU in Texas and

California. The case was tried before

U. S. District Judge Harrv W. Willford.

Mr. Gilman said the l-S farmers

contracted to sell their cotton at an

average price of 2.1 cents, but

testimony showed they actually

delivered only £59 hales from the

1.9U acres under contract, selling

much of the remainer of the proiluction at prices ranging up to 33 cents

a pound.

In the Molsen case, Mr. Gilman said

the West Tennesseee fanners contracted in 1971 to sell all of their 1971

rotton crops through George Flowers,

III. a Covington. Tennessee, cotton

merchanL

Mr. Flowers, in turn contracted to

sell the cotton to Molsen through the

SEPTEMBER 8. 1973

Texas firm's Memphis agent. Jim

Spurlock of the Delta Cotton Company, Mr. Gilman said.

Heini Molsen, Jr., of Dallas said

this week in Memphis that he felt

his firm had received a landmark

decisioa in the entire industry as it

«-aB carried to a federal jury vcnlict

—which may be the first such case

in the nation. It was tried in federal

court due to the fact the principles

resided in different states.

Mr. Molsen said that "I feel the

verdict should have a substantial

bearing on all cotton contract to that

time, and it has a very special bearing on this year's contracts, ^^-ith

regard to market prices moving

upwards aAer the contracts were executed.

"I feel especiallv happy about this

decision since last year we oaid for

large volumes of contracted cotton

where the price was much lower at

har\'est time than when the contracts

were initially executed. This means

that the farmers recei\-e*l $2,000,000

to $3,000,000 additional by contracting prior to the season than they

would have received if they had sold

in the nvarket durintr harvest oeriod..

The jury found that Mr. Flowers

was merely acting as agent for tha'

1C fa rmers, and he was therefore

not personally liable for the damage*.

The jury *l*o found that it was provn

rhat 435 bales had been djvertcii. and

they awanted $50 oer bale damage.

or a total of $21,750. in the historic

I'ectston.

WASmNGTON

By AMERICAN COTTON

SHIPPER9<4SS0CIATI0N

August 29. 1973

At/^ meetinK in Dallas, Texas on

Fuflay, August 24, 1973, the exfutive Committee of the National

'Cotton Council and the Producer '

Steering Committee met at the

Producer Steering Committee m^. aty

request of the American Textj^

Manufacturers Institute to dis^ns

the current cotton supply situatu

light of the strong export di^and.

spi rating prices, and th^^gencral

problems concerning the p/escnt cotton textile situation.

No determination^^-ere made at

this meeting; hov/yftr, a force was

appointed to discuu alternatives that

the Council diowtort could consider

at the Board^Meeting in Memphis

next weekv^he task force «ill bt

hesdetl byx:. R. Sayre of Greenwoo«l,

.Mis'^issjj'pi, a cooperative representBlivi

'e other members are: W. D.

ftvson. III, of Gastonin, North

:arolina. President of Cotton Council

International, former president of

ACSA and a merchant director of the

National Cotton Council; Gordon McCahe of Greenville. South Carolina.

Vice President of J. P. Stevens Hn<l ^

a spinner illrector of the N;ttioiial

Cotton Council: and L Dun Anders

of Crosbyton, Texas, past prevdent

of the Plains Cotton Grovers A»OCIBtion and a producer directjrr of the

National Cotton Council.

It is understood that Jfie task force

will consider the rrondica available

including the operitfon of Section 22

of the Agri^iftuntl Adjustment Act .

of 1933 (Silimlay authority avail-,

able Nr rVportinir raw upland cotton),

licensinir of cotton exports, export''

contron, and some questions conceniingyfrte trading of cotton futures on

thrf^New York Cotton Exchange.

•^Tie merchant directors to the

^National Cotton Council are W, D.

Lawson, HI; William Tharp of Lai

Cnices. New Mexico; A. Starks'

Taylor, Jr. of Dallas. Texas; Rudi E.

Scheldt and W. B. Dunavant, Jr. of

Memphis. Tennessee,

Sec, Buti Critites .\T.MI

Reacting to intense pressure

nerated bv U. S. Uxtile inter^sta.

Secretary Butx was stronglv/oitieal

of efforts to seek restrictionjr^n U. S

rotton exports. SecreUrr/Buti told

the Washington Po»l/"the textile

people asking for controls are exactly like the vvheat/Tdlers: they don't

know how to opj^te in a free price

economy. The>-/3y: 'We warit you to

protect our yrpply," when they really

mean 'we ^^nt lower prices for raw

prmlucl.'

ThrXf^ry further related that:

i cridp language. Buti said that

.American textile nitnufaeturem

'^Di>eal for export controls on the

basis of assuring cheaper prices fer

consumers, hv will jfugcesl Ihejr

firopone removal of 'voluntj

mport quotas on competing J

from the Far East yr

The Depiirtnicnt, in a torati] statement issued yestenlay bjr Assistant

St^ri-lary Carroll G. Bpmthaver, said

there would be no e-ymrt controls nn

cotton "short of yfcme unforeseen

disaster to this ymr'» growing crops."
448

MEALEY'S LITIGATION REPORTS

INSURANCE INSOLVENCY

TWICE MOI^THLY BY MEALEY PUBUCATIONS. INC.' P O BOX 446 • WAYNE. PA 19087-Ot46 • (610) 68&-6S66

Volume 7. Issue #18 Febmary 22. 1996

FIDUCIARY DUTY

No Breach Of Duty In Purchase. Tenninalion Of Mutual Benefit GIG

Michigan federal judge rules in action brought by former employees of Abitibi-Price «.... 3

(PREFERENTIAL TRANSFER

Avoidance Period For Preferential Transfers Only For Liquidations

Tennessee court: transfer made within four months of rehabilitation petition not voidabU .....^.^„ 5

ASSOCIATION UABIUTY

Missouri Association Liable For Damages. Attorney Fees

Court finds statutory coverage limit does not apply to costs of defending insured ^ ».„. 6

Workers' compensation carrier may not er^orce lien against Delaware association 8

JURISDICTION

Deference To Centaur Illinois Rehabilitation Proceedings Appropriate

However. California appeals court provides for stay instead of dismissal -,.—_..__..._ 9

Appealability Of Remand At Issue Before High Court

Oral arguments in Mission, Allstate dispute center on type <4 f^lf^> finality //

PREEMPTION

Second Circuit Amends Ruling On Preemption

Refers to ruling applying FAA in new footnote; motions call ruUngs inconsiss^tt«....» _„„. 13

SETTLEMENT

Canadian, U.S. Estates Agree To Separate Confederation Life Actions

Under agreement in principle. U.S. policyholders will look to U.S. proceeding for relief „ 14

RUUNGS OF NOTE

Policyholder Did Not Breach Duty To Settle

Second Circuit also affirms New York district court's denial of attorneys' fees — 15

Massachusetts high court to consider realm of owned-property clause J6

INDUSTRY NEWS

CIGNA Restructuring Approved By Pennsylvania Commissioner

Request for stay pending review of petition for appeal denied Feb. 13 17

UTIGATION NOTES

"Riird Circuit Denies Rehearing In Unisys Case EXHIBn*

Ruling vacated order which granted summary judgmera to Unisys ....

California court of appeal publishes Mission ruling

Kentucky court releases decision on standing to appeal for publicati

Q

.19

.19

19

O COfYHICHT l«« MEALEY PUBLICATIONS. INC AU. RIGHTS liESEIIVED Lj PuHctnon ovoKOa

KEFIIODUCnON SnUCTLT PKOHIBITBD WITHOUT WIUTTIN PEKMISSION •• "^^ """ «»»<S«

(SUFFI^IBIT TO KfBlBt 18 (CASE 6) CM PAGE 19 OP QUESTIGTMAIRE)
449

MEALEY'S LITIGATION REPORTS

INSURANCE INSOLVENCY

Febmary 22. iwf

are represented by Su»tfn Bompey and Ira I

stein of OrTicJt*^erringion & Suic|j

New York MirfCharles S. MishW^Miller.

Canfielj^^^addock & Stone in,«>0fand Rapids.

Mjjh: Counsel rcpresentin^^lClAP are Frances

'Menton Jr. and MaryJ3«des of Willkic. EjrfSA Gallagher in Uev^^ork and Thomas„KK,oemke of BoydejK^addcll. Timmony^ Dilley

in Grand RMrtds. Mich. • v^

Avoidance Period For

Preferential Transfers

Only For Liquidations,

Tennessee Court Holds

NASHVILLE. Tenn. — The phrase "the petition" in the ponion of the Tennessee statute providing a four-month avoidance period for preferential transfers refers only to petitions for liquidation, a state appeals coun held Feb. 7.

Therefore, an $800,000 transfer made within four

months of a petition for rebabiliiation, but more

than seven months before a petition for liquidation, is not a voidable preference, according to

the court rUniled Physicians Insurance Risk Retention Group, et al. v. United American Bank

of Memphis. No. 01-A-O1-9503-CH-O0O96. Tenn.

CL of App.. Middle Sec.).

(Text of Opinion in Section C. Mealey's Docomeni •10-960222-103.)

The appeals court thus affirmed the dismissal of

a petition of the Tennessee Commissioner of

Commerce and Insurance as liquidator of United Physicians Insurance Risk Retention Group

(UPI) to avoid an $800,000 transfer made to

United American Bank of Memphis to pay off

an outsunding bank loan.

UPI was a captive insurance company established

in 1989 by United Physicians Association Inc.

to provide medical malpractice insurance to its

members. Statuary capitalization requirements

were satisfied first by $1 million in tellers of

credit. Two years later. United Physicians borrowed $1 million from United American Bank

of Memphis and deposited the funds with the

insurance department to replace the letters of

credit. Subsequently, the balance of the loan was

reduced to $800,000.

The transfer occurred in December 1991 as pan

of a reinsurance transaction, according to the court

United Physicians caused $2.9 million to be paid

from the "L.I.O.N. Trust Account for U.P.I" to

Anchorage Ftre and Casualty Insurance Co.

Anchorage used pan of the funds to retire certain UPI debts, including the $800,000 bank loan.

The coun noted that the parties do not agree

that the funds used to pay off the loan were UPI's

funds and the court assumed the truth of the

allegation for purposes of the motion to dismiss.

According to the court. UPI's 1991 annual statement showed it to be insolvent by $764,102. UPI

was placed under administrative supervision in

March 1992. ordered into rehabilitation in April

1992 and ordered into liquidation in July 1992.

In June 1994 the commissioner filed a complaint

seeking to avoid Anchorage's payment to the bank

as a voidable preference. The bank successfully

moved to dismiss the complaint because the payment did not occur within four months of the

filing of the petition for liquidation as set out in

Tenn. Code Ann. Section 56-9-317{aX2XB) which

provides that a "preference may be avoided by

the liquidator if . . . [tlhe transfer was made

within four (4) months before the filing of the

petition." the coun noted.

Therefore, the coun held, the question of whether

a preferential transfer entered into more than four

months before the filing of the petition for liquidation is voidable when made within four

months before the filing of a rehabilitation petition centers on what is meant by "petition,"

In ruling, the coun considered the phrase "the

petition" in three contexts.

In the context of the language of the section itself, the court held that the term "preference" is

"framed chiefly in the context of a liquidation

proceeding" and as stated in Section 56-9-

317(a)(2) "can only refer to a petition for liquidation."

icDmiCHTI«6MEAL£rPUBIJCAT10NS.IHC. WAYNE. PA
480

February 22. 1996

MEALEY'S LITIGATION REPORTS

INSURANCE INSOLVENCY

Next, considering the phrase in the context of

the Insurers Rehabilitation and Liquidation Act.

the court found that the act's provisions allowing both liquidaion and rchabiliutors to set aside

A^audulent conveyances "demonstrate that

the legislature understood the difference between rehabilitation and liquidation proceedings

and that it intentionally drafted Tenn. Code

Ann. § 56-9-317(aK2KB) to exclude petitions for

rehabilitation."

Finally, considering the term in the context of

the purposes of the act, the court noted that the

purpose of rehabilitation is to preserve a company as an ongoing business. "Since officer and

employees of on-going insurance companies do

not have the authority to avoid preferences, rehabilitators likewise do not have this authority,"

the court held.

Further, the court noted. "A preferential transaction is one that circumvents the statutory priority provisions thereby permitting a creditor lo

obtain more than its fair share of an insurance

company's estate upon dissolution. Since creditors of an on-going insurance company have no

claims against the insurance company's 'esute.*

rchabiliutors need not concern themselves with

preferences or with the priority of creditors'

claims." Therefore, the court found, "preferential transfers, by their very nature, have no relevance in a rehabiliution proceeding."

Concluding, the coun noted that the first mention of the power to avoid preferences appears

in the delineation of a liquidator's duties. "It is

only in the context of a liquidation proceeding

that the avoidance of preferences makes sense."

the coun held.

Judge William C. Koch wrote the coun's opinion, joined by Judges Samuel L. Lewis and Ben

H. Canlrell.

The liquidator is represented by William B.

Hubbard of Weed, Hubbard. Berry & Doughty

in Nashville. Tenn. Counsel for the bank are

Ronald Lee Oilman of Farris, Mathews. Oilman.

Branan & Hcllen of Memphis, Tenn.. and John

Knox Waikup of Gullett. Sanford. Robinson &

Martin in Nadiville. •

Missouri Association

Liable For Damages,

Attoriw Fees

LOUIS, Mo. — The Missouri Insuu

Guaranty Association (MICA) is liable ftff actual damages up to the statutory covprige ttmil

plus attorney fees incurred by aiwMured of an

insolvent carrier in defendine^discrimination

claim, a sute appeals couxyrieTe has held, affirming a summary judgrp^t CMissouri Property

& Casualty Insurance.

Petrolite Corp..

Eastern Dist.).

guaranty Association v

68061. Mo. Ct. of App..

(Text of Opinion in Section D. Mealey's Document>nO-960222-I04.)

iTe coua held that the policy of the insolvent >

' insurer provided coverage for an age discrira

nation claim, that MICA was obligated ta

vide a defense and that MIGA's siatutojy^verage limit did not apply to attorney fen incurred

in defending the insured after MKiA withdrew

its defense in the employment diAiimination case.

Defendant Petrolite Conx^was insured under a

commercial caiastrooln policy issued by nowinsolvent Integriiy^surance Co. providing coverage of %5 nuHion per occurrence. SS million

annual aggreg^ with a retained limit of SIO.OOO.

Undaiiying Utigation

1 October 1985. former Petrolite employee Wi|.

liam M. Zachary filed a discrimination cha|

with the Equal Employment Opportunity .

mission (EEOC) claiming he was dischs^ed by

Petrolite because of his race. The EEDC filed a

complaint against Petrolite in Sf^ember 1988

in the US. District Court f](>f the District of

California.

MIGA provided PCMTHC with a defense in the

place of the insolv^ insurer and settled by paying

Zachary Jll.Opa MIGA then asked Petrolite to

pay it the VfO.OOO retained limit under the Integrity Mficy, but Petrolite refused.

OCOfYRIGHT l»*MEALEY PUBLICATIONS INC . WAYNt PA
451

FINANCIAL DISCLOSURE REPORT

Nomiiutioa Report

A«p0fT Ktqitirtd by tA« EiMicj

Htform Aa of 1989. r^LNo101-194. Nv*rmdtr JO. i999

0Ul.C.Afp 4.Sa. tOIUTi

at, Jim. midSt UWMJJ

I GUman, Ronald L

2.CMt1ar€

I U. S Court of Appeals. 6 Cir.

S. DMcttTIUpan

07/17/1997

I jut-vr pan-amtl

] U. S. Circuit Judge Nominee

1 X_ "-TiiiiT1-i. Dm 07/16/1997 01/01/1996

n

06/30/1997

One Commerce Square #2000

Memphis. TN. 36103

I. Oa Ito bMb of tbt (afomatlM coat^atd Is [bit lUpnrt a^ Mr

•iJUWactoM ptrialalBi thtnts, 11 ia is a^ optnteH. in conpUaac*

twtowlBf Offfetr

oiKXTA/ftsons. TV,

dtecUnr I*'MMf tax^- I •««*« Jen Affvr no nporuMr uvbrMorios. £pi M (to ion pa(«.

I. POSITIONS iR-p")"-* «*'<*«'«yr.M« HP->-«<ir*w•a»«>

POSITION D' E (Non

NAME Of ORG/U4IZATION / ENTTTY

Member

Vice President

Board Member

Farris. Mathewa, Giiman, Branan, & Hellen, P.L.C

Aa8odati<w of Anomey-Mediators, West Tn. Chap

Boy Scouts of America, Chickasaw Coungl

n. AGREEMENTS

DATE

KIMpr.l4-t7iifbvnHntiia.t

PASTIES AND TERMS

I MONK OtonponUiK

•19B7 Farris. Mathews. et al - buy out of partnership interest within

90 days of withdrawal; 401 (k) plan interest will be transferred

to an IRA

m. NON-INVESTMENT INCOME a<)»ftiiviiWixdWs><v<niu. mfn Jt-ua^tamwuMi)

DATE PARTIES AND TERMS

I NONE (No rcponafate aaa-Mvesmnu ncofne )

' 1995

J 1996

• 1996

* June 97

'June 97

GROSS INCOME

(youn. ooi tpcwfc •)

University of Memphis School of Law - adjunct prof

EXHIBIT 1

Farris. Mathews, el al - member $ 251.597.00

Farris, Mathews, et al - member S 231,635.00

University of MempNs School of Law - adjunct praf S 1,950.00

Fams, Mathetvs, el al - member S 86.640.00

$ 1,950 00
462

nNANCIAL DISCLOSUKE REFOrr I Giman. RonM L. ' 07/17/1997

rv. REIMBURSEMENTS and GIFTS

DsscRipnaM

Exempt

V. OTHER GIFTS

D- SOURCE DESCRIFnON

: (Noa

Exampt

VI. UABIUTIES

IMiilrr q/Mf ^HMM. 'WMfoiMliaHUryafrtpQrwtiuiaiindmalmg^KFMU.aHd-OQT^Iiatd&ttafaitfmatmdiiU. Stffp. J4-t6ofttinnuittmiJ

B

CREDITOR DESCRIPTION VALUE CODE*

NOKI (No raporaUc babiboo)

•VALCOOESJ-IIS.OOOarkM K-SIS.OOl-tW.OOO L-tH.OQI M SIOO.OOU M-SIOO.ODltlSQ.Oao N-1230.001 nCDJU

O-ISOO.OOt tl.OOD.OOO PI-Sl.OaO.OOI tS.OOO.QOtt n-U.OOO.OOl $23,000,000 n-$23,000,001 SSO.Oaa.ODO N-tSa.OOD.OOlOTMn
458

nWANClAL DISCLOSURE REPORT | Q^^"*n. Ronald L.

DMiof bpon

07/17/1997

Vn. Piflc UNVEgTMENTS md TRUSTS

nm» 'OQ' afl»r MA aum

(2>

Typf

(1> 0)

v^VdM

Cod!

(1)

(e.»..

If MX cunpi from diicloaira

0)

0«r

(3)

VthM

Code

U-P)

Gun

Code

(A-H)

Idtamyor

NONE (ao rcpornUe •

2 Jta. C«ac. lat'l OLec. U)

1 JM. C«ac. Zac-I OlK. 4«llk)

Cant. PT. Capiul 9mm. tJ)

< Pldaliey Olvafd. Xnt'l tJ)

T riteltey Divafd. Int'l ISA

• Plteliey Dlvafd. laf 1 lU (S) A DivldMtd

' Ptdallty It*^ Batata tJ} D jDlvidand

It ndalicy 1«1. JH. Oold tJ)

U ndsllcy Bal. Vatural. Oaa tlU

undaliey S«l. Baeural Ou n& (1)

U ndslicy Sal. »nc. Hacala IJ)

14 ridalicy Sal. »rae. Hacala tHA

LSPldKliey Sal. rrae. Hatala UA

IS Pl^alLty SI A«i« tJI

IT Ptdallty Spar. Muni H. tJI

fC«l Bl. 0«) F-$3O.00l-SI0a.00O G-S100.MI-SI .000.000 HI-tl,000.0OI-».000.00O hU-SS.0OO.0Or Of more

ii.Ml-tlS.MA ~E=JlJ.MI-JM.0OO

IVriCadta >-Sl3.000<)rWu k-Sli.OOI-t50,dbO

|C«l.Cl.a3) OS}OO.OOI-SI.OOO,000 Pl-f 1.000.001-13.000.000

L-4}O,00t.|IOO.0da M-$l0O.0OI-K».0Od N-S350.0OI.SSOO.0(M

P2-S).000.001-$31,000,000 P1-f23.0O0.00l-S».OO0.000 P4-t».OO0.OOI ur mon

] Vil sa* Cades. 0*Ap|nuel

(CdLO) U-UoakVifaa V-OtfMT
454

INMMof fmoa RcpontBg

Oilman, Ronald L. 07/17/1997

VU. Pate 2 I^^VESTME^^TS and TRUSTS d*,*^d^urm. Stp, 37-54a(hmnai»m4

btAitu "A*** apfiUcabU. »wiw of

Uu atset tr uiuif At panmhmcal

'in'farjoua a^mtntiip trf nparmtg

ii^'ti^ai and tpoitu. 'Oi'for t»^

erau awnmtup by ipouu. 'S>Q'

far oKf^nhip by d*p*nd*tv t^ld.

Ptact '00' 4t«r eadt asttt

aamfl fnm pnor ^setoiitrt.

(2>

Tjrpt

(••I..

Grau«ihH

(I) 1(2)

ViharViliM

Cote

Cixte

Typt

(e-|..

buy. wU.

O)

Dm:

MoHkDiy

O) W

ViJiK CUB

Code Code

U-P) (A-H)

(S>

Ideaotyor

buyer/idkr

(if pnwe

NONE (no KponaU* iacsmciiaeB. or

tl HTS Ca«h Ra«. 401tk]

l» KTS Cold fc Mat. R«K. 401(k)

20 Janua Ov«ca«Aa (J) A Dividend

31LiAdiMr lulwark tJ] C iOLvidmd

2ail-f CoBCrarlJu (Jl 0 Dividmd

19 T. towa Pric« Mini. N. (J)

14 Vaaguard Enargy (J}

ISVanfuard Gold 4 P. H. (J) I Oivldand

2C Vanguaxd laS'l Ors. (Jl :A iDlvtdand ) R

2a OuXt Mouaing L.P.

2) Lock I Ad. rama in %h. Co.

10 fastura land In St\. Co.

A mtarcat

c. Hadnikow D Intaraat

(Cd BI.D4) F-SJO.OOI-SIOO.OOO

yVdCodo: J-liJ.OOOMlen

G-tlOO.OOI-St.000.000 lll*Sl.OOO.OOI-S3.000,000 K2-S5.0OQ.Oai orfltOK

K-$ivborTw.o6o~

^His.bbt-SSo;wo~

L-SlO.abl-SlOO.OOD M-tllW.n)l-i350.O0O N^^ilM.06ht5dO.OM

iCd Cr.D3) OS500.00l-SI.000.000 PI-SI.OOO.OQI-S5.000.000 PI-IS.0OO.DUI-SU.D0O.000 P3-S2S.O00.O01-S30.000.0DO N-S50.000.00I or aura

1 Vil Mlik Cudo: (>-AppniMt R^aMfnalei

tCnl C2> U-OoDk V«aa V-Oher

leoalr) T<mM*MkM
455

Naac of Ptown bpocmi

IDUNCIAL DISCLOSUKE REPORT | Oiln>»n, Ronald L.

DMioflUiMn

07/17/1997

vm. ADDrnoNAL INFORMATION OR EXPLANATIONS.

NONE (No idAiOMl iaibnowion or «|riuuiloM.)

(Mkaii pin of npm.)

F1MAMCIAL DISCLOSURE REPORT

NuiM of PRKM S«panM|

Gilman, Ronald L.

DucofRcpon

07/17/mi

SECTION HEADING. (taUc-opmofnpon)

SECTION 1. POSITIONS (conM.)

Li Poiflkin Name of OrganlzstkxVEnitty

4 Board Member Capitar Case Resource Center of Tennessee (1995)
466

nNANOAL DISCLOSURE REPORT Gilman, Ronald L. '07/17/1997 '

IX. CERTinCATION

[n compliance with ihe provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory CooimiEiee oa

Judicial Aciivities. and to the best of my knowledge at the time after reasonable inquiry. I did not perform any adjudicaiory

function in any litigation during the period covered by this report in which I. my spouse, or my minor or dependent children

had a financial interest, as defined in Canon 3C(3}(c), In the outcome of such litigation.

I certify that all the information given above (including information pertaining to my spouse and minor or dependent

children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported

was withheld because it met applicable statutory provisions permitting non-disclosure.

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been

reported are in compliance with the provisions of 5 U.S.C. ^p. 4, section 501 et. seq.. 5 US.C. 7333 and Judicial

Conference regulacitms.

Signature,^t...di^^^.£. Dale n/n/'?T

Note: Any individual who knowingly and wilAilIy fabifies or fails to file ihis repcn may be subject to civil

and criminal sanctions (5 U.S.C. App. 4, Section 104).

nUNC INSTRUCTIONS

Mail sriginal and Ihrct additional copks to:

CommJIlcc on Financial Disclofurt

Adminiiiralive Omct of the United Sfalcf Courts

Oac Columbai Circle N.E.

SiiiU 2-MI

Waililailoa. D.C. 2QS4a
457

Ronald Lee Cllman

Betsy D. Gllmaa

FINANCIAL STATEMENT

NET WORTH

June 30. 1997

Provide i complete, cunent finwritl net wonh statement which ilemizei in detail

all asset! Oncluding bank accounts, real estate, scCTiriries, tnists, investments, and other Gnandal

holdings) all liabilities Qneluding debts, moRgages, loans, and other financial obligations) of

jrourseU, yotii spouse, and other immediate members of your household.

ASSETS 1 UAsasms

CaibaahBduidiibuka 18 )00 Now pqnkU te b«b-Mcond -

-

KeMpqrabkBkidi^-eaucanl -

•rtetnl.

1, 88, )00 Nala piyeUa la niadni -

62, log Sem pqiUe u editn -

- ABSOUI ud biUl due -

Dae bea nUdne lacl tiiadi - Uepiid iacoax IK -

Daefienedaai Other anpvd tu lod ietsut -

DeeM&l

-

Rul auu euKlHte peyjik-edd

•dMdaU -

lul tsaa enei-add KtaAde 387 000

ChaBd nonaaaei lad ether Uoa peyabia

-

KMI amle BorfScn nenvlbU 61, ooo Oa^dahi iamirr '

li. aOQ

Ob nlta-£b isanoa J?i m

OftB aeia-iUBiK:

Law firm buy-out value 42, )00 •

TMil SaldidBi 0

-

NatWarti 2 ,472, DOO

Tanluta 2 472 ,000 Tua] liabOiliaa aad aai ariitib 2 ,472, )00

co^^^<CEI«T UTILITIES CIMIXAL INFOSMAnON

-

A> odonD. iiOJitrr or ruam 25 000 An aay aaaaa lladtad! (Add idledale.) no

Oa kaui <e teenoi _ aoeaal

no

UtalOaBi Have yee avar lakia baatoepwy* no

rnoiaee &> ttimtl lacoeu Taa - 1 -

<M»r tpKial d<M 1 L.

1'^EXHIBr^^l
459

SotoBuvor StMtt OuMllnnMlre

UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Sonia Sotomayor — October 1983 to the Present.

Sonia Sotomayor de Noonan, Sonia Maria Sotomayor dc Noonan,

or Sonia Noonan, Married Names — August 1976 to October 1983.

As part of my divorce decree, I resumed my maiden name without my

middle name.

Sonia Maria Sotomayor — Birth to Marriage, Aognst 1974>.

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

RF^SIDENCEi Q££l££.

New York, New Yorii U.S. Conrthouie

500 Pearl Street, Room 1340

New York, New York 10007

3. Date and place of birth.

June 25,1954

New York, New York

4. Marital Status (include maiden name of wife, or husband's ruune). List spouse's

occupation, employer's name and business addres8(es).

Divorced since October 1983. Engaged to be married to Peter White,

President of Commercial Residential and Industrial Construction

Corporation, 656 Central Park Avenue, Yonkers, New York 10704.
400

SBlBBiyBf SCBltf f>8<»tlniiMirt

Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

SCHOOL DROREE

DATES

ATTEKDED GRADUATION

Yilc Law School

Prlnttlon

Uatvenlty

A.B.,Skmma

CmmLaude

1»76-1»7»

1»71 - 1976

JIM 1979

Jun 1976

Rmplnvment Record: List (by year) all business or professional corporations, companies,

firms, or other enterprises, partnerships, institutions and organizations, nonprofit or

otherwise, including Arms, with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from college.

ORGANIZATION AQQKESS

United Stita DMiict U.S. Conrtboasc

Coon - Southcni 500 Pearl Street

DlftrtetofNewVork Ncwyorfc,NV

DATES OF

ASSOCIATION

10/92 to

POSITION

Jodge

Pavia A Harcoart <MMadiMnAvc

New York, NY

10022

imtoiAm

4A4I0 12A7

Partner

Anodate

New York Coanty

Dbtrkt Attorney'!

omcc

1 Hogan PUce

New York. NY

10013

vnxoin* AssbUat

Dbtrkt Attorney In

Trial Barean SO

BroolilyB,NY

imi

1983-19«6 CoaaicUncand

fanily and friends

Yak Uw School

MlmcoRooni

127 Wall Street

NewHavcB,CT

06520

9/78toS/79 Saleepenon

Paal, Weisi, Rifkind

Wharton A Garrfaon

1285 Avenue of the

Ancricai

New York, NY 10019

6n8to8n8 Summer Anochit*
461

Soloijvnr SM«te

Tkc Gradulc,

PrDfcBloul StudcBi

Cnilnr

OflkcoftlM

Gcacral Comudt

Yak Uaivtntty

The Eqnttablc Life

AisaniDce Society

of tkc United States

New Yorii City

CaapaigB Flaaoce

306 York Street

New Haven, CT

06520

Woodbridgc Had

New Haven, CT

06520

l28SAvcBacorthc

Americas

New York, NY

I00I9

40 Rector Street

New York, NY

10006

9mto5n»

6/7710 9m

6n6 to ant

1988 to 10/92

Sales person

Snmnier Intern

Snnmer Clerk

Member,

Board of Directors

SUteofNewYork

Mortgage Afency

260 Madison Aveanc

New York, NY

10016

1987 to 10/92 Member,

Board of Directors

Pnefto Rkaa Legal

Defeaa* A EdncatioB

Fnad

99 Hndson Street

New York, NY

10013

1980tal0m Member,

Board of Directors

Matermity Center

Association

48 East 92nd Strce*

New York, NY

10128

1985-1986 Member,

Board of Directors

MilitarY flervice; Have you had any military service? Ifso, give particulars, including

die dates, branch ofservice, 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 Conunittee.

I received financial assistance in the form ofscholarships during my four

yean at Princeton University and my three years at Yale Law SchooL I

graduated summa cum laude. Phi Beta Kappa, from Princeton. Princeton

awarded me, as a graduating student co-winner, the M. Taylor Senior Pyne

Prize, for scholastic excellence and service to the University. My senior tbcsb

work received an honorable mention from the University's History

Department
48t

SotoMvnr Smite Oatmnnmli*

While at law school, I served as an Editor of the Yale Law Journal and

Managing Editor of the Yale Stndics in World Public Order. I was also a

semi-finalist in the Barrister's Union competition, a mock trial presentation.

In reverse chronological order, I have received the following awards:

Secretary of State of Puerto Rico

July 4,1996

Award as Distinguished Woman in the Field of Jurisprudence

Latino American Law Student Association

of Hobtra University School of Law

March IS, 1996

Award in Recognition of Outstanding Achievement

and Dedication to the Latino Community

District Attorney - New York County

January 17,1995

Award for Outstanding and Dedicated Service

to the People of New York County from 8-13-79 to 3-16-M

National Puerto Rican Coalition, Inc.

October 20,1994

Lifetime Achievement Award

National Conference of Puerto Ricao Woman

New York City Chapter

March 24,1994

Certificate of Excellence in Grateful Recognition of

Outstanding Achievements and Contributions to the Community

Cardinal Spellman High School

Honors Night 1993

Excellence with a Heart Medal

Hispanic National Bar Association

Law Student Division

September 25,1993

Lifetime Achievement Award
463

Hispanic National Bar Association

September 24,1993

Award for Commitment to the Preservation of Civil

and Constitutional Rights for all Americans

Bronx Community College

of the City University of New York

Paralegal Studies

June 17,1993

Human Rights Award for Service to Humanity

John Jay CoUegc of Criminal Justice

May 27,1993

Claude E. Hawley Medal for Scholarship and Service

The Puerto Rican Bar Association, Inc.

1993

Emilio Nunez Award for Judicial Service

R«r Association! List all bar associations, legal or judicial-related committees or

conferences of which you are or have been a member and give the titles and dates of any

ofiices which you have held in such groups.

Member, Budget Committee of the Southern District of New York

("S.D.N.Y."), 1996 to present

Member, Pro Se Committee of the S.D.N.Y., 1996 to present

Member, Puerto Rican Bar Association, 1994 to present

Honorary Member, Public Service Committee of the Federal Bar Council,

1994 to the present

Member, Second Circuit Task Force on Gender, Racial, & Ethnic Fairness,

1993 to present (Preliminary Draft Report Attached).

Member, Committee on Rule* of Practice and Procedure of the S.D.N.Y,,

1993 to present

Member, Grievance Committee of the S.D.N.Y, 1992 to present

5
464

SotoBMvnr Swilte OnMHonMlre

Member, Hiipanic National Bar Association, 1992 to present.

Member, American Bar Association, 1980 to present

10. Other Memberships: List all organizatioiis to which you belong that are active in

lobbying before public bodies.

NOM.

Please list all other organizations to which you belong.

NOM.

11. Court Admis.sion: List all courts in which you have been admitted to practice, with dates

of admission and lapses if any such memberstiips lapsed. Please explain the reason for

any lapsed membership. Give the same information for administrative bodies which

require special admission to practice.

United States District Conrt, Eastern District of New York - March 30,1984.

United Sutes District Court, Southern District of New York - March 27,

1984.

New York - First Department - April 7,1980.

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. Ifthere were

press reports about the speech, and they are readily available to you, please supply them.

Note, Stotehood and the Equal Footing Doctrine: The Case for Puerto Rlcan

SMhed Rights. 88 Yale LJ. 825 (1979) (copy attached).

Sonia Sotomayor & Nicole A. Gordon, Returning Majesty To The Law and

Politics: A Modem Approach. 30 Suffolk U.L. Rev. 35 (1996) (copy

attached).

The speeches I have given, in reverse chronological order, are as follows:
465

Smomiwr S«Mte OaertkiiiiMire

Sonia Sotomayor, The Cenesb and Need ofOH Ethnic Identity, Keynote

Speech at Princeton University's Latino Heritage Month Celebration (Nov. 7,

1996).

Sonia Sotomayor, El OrguUo y La RespousabUidad de Ser Latino y Latino,

Keynote Speech for the National Board ofGovernor's Reception of the

Hispanic National Bar Association held at the Association ofthe Bar of the

City of New York (May 17,1996).

Sonia Sotomayor, El OrguUo y La KesponsabUldad de Ser Latino y Latina,

Speech at the Third Annual Awards Banquet and Dinner Dance for the

Latino and Latina American Law Students Association of Hofstra University

School of Law (Mar. 15,1996).

Sonia Sotomayor, Hogan-Morgenthan Award Address (Jan. 17,1995).

Sonia Sotomayor, A Judge's Guide to More Effective Advocacy, Keynote

Speech at the 40th National Law Review Conference (Mar. 19,1994).

Sonia Sotomayor, Women in the Judiciary, Panel Presentation at the 40th

National Conference of Law Reviews (Mar. 17,1994).

Sonia Sotomayor, Doing What's Right: Ethical Questionsfor Private

Practitioners Who Have Done or Will Do Public Service, Presiskel/Silvennan

Speech at the Yale Law School (Nov. 12,1993).

The drafts of these speeches are attached. I am unaware of any press reports

about any of my speeches. lam aware of one press report of a panel

presentation of which I was member, Edward A. Adams, Women Litigators

Discuss Battling Bias in Courtroom, N.Y. Law Jonmal, April 2,1993, at 1.

This press report is also attached.

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

examination.

Good. Please note, I am a juvenile diabetic (insulin dependent since age 7).

My condition b permanent and subject to continuing treatment It docs not

impair my work or personal life. My last physical examination was January

1997.
SotiiM«vnr ScmtU 0«M«lniiMlr«

14. Judicial Office: State (chronologically) any judicial office you have held, whether such

position was elected or appointed, and a description ofthe jurisdiction of each such court

Appointed by President George W. Bush as a United States District Court

Jndgc for the Southern District of New YoriL I commenced service on

October 2,1992. The United States District Court for the Southern District

of New Yorii includes the counties of the Bronx, Dntchcss, New Yoric,

Orange, Putam, Rockland, Sullivan, and Westchester, and, concurrently

with the Eastern District of New York, the waters within the Eastern District

The jurisdiction of United States District Courts n limited to those matters

permitted by Article III, Section 2 of the United SUtes Constitution.

15. Citations: If you are or have been a judge, provide: (I) citations for the ten most

significant opinions you have written; (2) a short summary of and citations for all

appellate opinions wtiere your decisions were reversed or where your judgment was

affirmed with significant criticisms of your substantive or procedural rulings; and (3)

citations for significant opinions on federal or state constitutional issues, together with the

citation to appellate court rulings on such opinions. Ifany ofthe opinions listed were not

officially reported, please provide copies ofthe opinions.

(1) The following, in reverse chronological order, are ten of my most significant

opinions, with citations.

1. United States v. The Spv Factory. Inc. 951 F. Supp. 450 (S.D.N.Y. 1997).

2. Kmeger Int'l v. Nighringale. Inc. 915 F. Supp. 595 (S.D.N.Y. 1996).

3. United States v. Lech. 895 F. Supp. 586 (S.D.N.Y. 1995).

4. Refac Inl'L Ltd. v. Lotus Development Corp.. 887 F. Snpp. 539(S.D.N.Y.

1995), alTd. 81 FJd 1576 (Fed. Cir. 1996).

5. Silverman v. Major League Baseball Player Relatiom rnmmiww880 F. Supp. 246 (S.D.N.Y.), afCd, 67 FJd 1054 (2d Cir. 1995).

6. Modeste v. Local 1199. Dm;. Hospital & Health Care Emploveei Union.

850 F. Supp. 1156 (S.D.N.Y.), afl!d. 38 FJd 626 (1994).

7. United States v. Hendricfaon. 26 FJd 321 (2d Cir. 1994) (sitting by

designation).
467

Sotemivor Stnite Oncrtkmntlre

8. r.inpo.v.rooyhlin. 8S4 F. Supp. 194 (S.D.N.Y. 1994).

9. Azuritt Corp.. Ltd. v. Amster & Co„ 844 F. Supp. 929 (S.D.N.Y. 1994),

alTd. 52 F3d 15 (2d. Cir. 1995).

10. Flamer v. Citv ofWhite Ptoim. 841 F. Supp. 1365 (S.DJJ.V. 1993).

(2) The foUowing, in reverse chronological order, is • short summary of and

citations for all appellate opinions where my decisions were reversed or where my

judgments were affirmed with significant criticisms of my substantive or procedural

rulings.

1. Hellenic American Neighborhood Action Committee v. Citv of New York.

933 F. Supp. 286 (S.D.N.Y.), rev'd. 101 FJd 877 (2d Cir. 1996).

I granted a preliminary injunction on behalf of a contractor which alleged

that it was barred from city procurements in violation ofits due process

rights under the Fourteenth Amendment. The Second Circuit reversed

without addressing whether the City's alleged misconduct deprived plaintiff

ofprotected property and liberty interests. The Court reasoned that even if

there was such a deprivation, there was no failure of due ptt>cess because

there was an adequate remedy available to the contractor under state law.

2. Aurora Maritime Co.. Ltd. v. Abdullah Mohamed Fahem & Co.. 890 F.

Supp. 322 (S.D.N.Y. 1995), afTd on other grounds. 85 FJd 44 (2d Cir.

1996).

The Second Circuit affirmed my decision denying a bank's motion to vacate

various Supplemental Admiralty Rule B attachments ofplaintiffs bank

account. I held that "because plaintiffs obtained Rule B attachments before

[the bank] exercised its set-offri^ts ... plaintiffs gained a limited property

interest under federal law that cannot be defeated by a subsequently

executed state law set-off right." Although upholding my ruling, the

Second Circuit disagreed with my conclusion "that [the bank's] set-off right

and appellees' Rule B attachments d[id] not conflict." Instead, the Second

Circuit reached the constitutional issue and found that the dismissal was

proper because federal law preempted the bank's right, under Section ISl of

state law, to the funds in the disputed account
468

SaaStSiaaaauiiB

3. Enropfn American B»nk v. Benedict. 1995 WL 422089 (SJ).N.Y. 1995),

vacated. 90 FJd 50 (2d Cir. 1996).

I affinned a Bankruptcy Court decision rescinding its prior order which had

extended the time period for a creditor to file a dischargeability complaint.

I reasoned that the Bankruptcy Court did not have the discretion, under the

applicable statute oflimitations, to extend the time for filing a complaint,

and that the Bankruptcy Court was therefore correct when it reversed its

initial decision to do so. Recognizing a split of authority on the issue, the

Second Circuit determined that the applicable limitations period under the

Federal Bankruptcy Rules is not jurisdictional, and that it is therefore

subject to waiver, estoppel, and equitable tolling. The Court proceeded to

enforce the Bankruptcy Court's initial decision to extend the period for

filing, because the debtor had waived its ri^t to object to the extension by

foiling to raise that objection prior to the eviration ofthe statutory

deadline.

4. Bernard v. La» AmericM rommnnication*. Inc. (no written opinion),

afTd in part, vacated in part. 84 F3d 103 (2d Cir. 1996).

Pursuant to a jury verdict, I entered judgment in favor ofplaintiff, an

attorney, seeking legal fees in coimection with his representation of

defendant in proceedings before the Federal Communications Commission.

Applying Washington, D.C. law, the Second Circuit approved ofmy jury

instructions on the issues ofproximate causation and damages, but found

error with respect to my instruction on materiality. Specifically, I had

instructed that a material breach "defeats the purpose of[an] entire

transaction"; the Second Circuit held that D.C. law requires only that

defendant prove that he received "something substantially less or different

fiom that for which he bargained." On remand, a jury again found (ot

plaintiff, and judgment was entered accordingly.

10
469

SoteaMvur S«M«I« OaeitlMiiMlrt

5. BoH Eltctric Inc. v. Citv of New York. 1994 WL 97048 (S.D.N.Y. 1994),

xssli, 53 FJd 465 ad Cir. 1995).

I granted a motion to dismiss on behalf ofthe City ofNew York (the

"City") in a breach of contract action brought by plaintiffBolt Electric, Inc.

("Boh'). I fotind that because the City had undertaken to pay Bolt for

general contracting services pursuant to a letter which was not filed and

endorsed by the City's Comptroller, as required under New York's

Administrative Code, the contract was imenforceable. The Second Circuit

reversed, reasoning that compliance with the endorsement provision ofthe

Administrative Code was not a mandatory precondition to the formation of

a valid contract. In the alternative, the Court reasoned that, even ifthe

contract was executed without proper authority, it was enforceable because

the City had funds available for performance.

6. Rnnqnnt v. Dtlto Capital Management. L.P. 1994 WL 62965 (S.DJO.Y.),

IS£!d, 48 FJd 1212 (2d Cir. 1994).

The Second Circuit reversed a decision in which I adopted a Magistrate

Judge's recommendation that plaintiffs claims ofsecurities fraud be

dismissed. Before the Magistrate Judge, plaintifffailed to file a timely

opposition to defendant's motion for summary judgment, and subsequently

filed an affidavit which the Magistrate Judge found insufficient to raise a

triable issue offact as to the element ofreliance in plaintifTs fraud claim.

The Second Circuit found, however, that the affidavit was sufficient to raise

an issue ofmaterial fact, and that it was error for me to have dismissed

plaintiffs remaining claims on the basis of his attorney's repeated

noncompliance with applicable filing procedures and deadlines.

(3) The following, in reverse chronological order, are citations for my

significant opinions on federal or state constitutional issues, together with

citatioiu to appellate court mlings on sacb opinions.

1. Estate ofJoseph Re v. Komstein. Veisz & Weiler. 958 F. Supp. 907

(S.DJ«.Y. 1997>.

11

45-964 98-16
470

2. United StotM v. The Spy Factory et aL. 951 F. Sapp. 450 (S.D.N.Y.

1997).

3. Nitioaal Helicopter Corp. of Ameriea v. Oly ofNew York. 952 F.

Sapp. 1011 (S.D.N.Y. 1997).

4. United States v.NJF.Yi. 951 F. Sapp. 42 (S.D.N.Y. 1997).

5. Celhv. Board of Flections. 950 F. Sapp. 82 (S.D.N.Y. 1996).

6. United Statea of America. Louis Menchaca. 96 Civ. 5305. decision

unpublislied, read into the record on August 26,1996.

7. Hellenic American Neighborhood Action Committee v. City of New

Yorlc 933 F. Supp. 286 (S.D.N.Y. 1996), rsxH, 101 FJd 877 (2d Or.

1996).

8. In re St. Johnsbnry Tmcliing Co.. Inc.. 191 &R. 22 (S.D.N.Y. 1996);

199 B.R. 84 (S.D.N.Y. 1996).

9. United States v. Jimenez. 921 F. Supp. 1054 (S.D.N.Y. 1995).

10. I^v.Conghlln. 902 F. Supp. 424 (S.D.N.Y. 1995), reconsideration

gnnl£d, 914 F. Snpp. 1004 (S.D.N.Y 1996).

n. Qrtitv. United Stetn. 1995 WL 130516 (S.D.N.Y. 1995), ilEd, 104

FJd 349 (2d Cir. 1996).

12. SenapeV.Constantino. 1995WL29502(S.D.N.Y. 1995),iffiA99

FJd 401 (2d Cir. 1995).

13. aapp V. LeBoenf. Lamb. Lclbv & MacRae. 862 F. Supp. 1050

(S.D.N.Y. 1994), iIEd, 54 FJd 765 (2d Cir.), cciL denied. 116 S. Ct.

380(1995).

14. Campos v. CougfaHn. 854 F. Supp. 194 (S.D.N.Y. 1994) (cited with

approval in .lolly v. Coughlin, 76 FJd 468 (2d Cir. 1996).

12
471

Sotonnvor S«Mte OnratloiiMlra

15. Hamer v. City ofWhite Plains. 841 F. Sapp. 1365 (S.D.N.Y. 1993).

16. United StotM V. C»«tell«n«w. 820 F. Sapp. 80 (S.D.N.Y. 1993).

Copies of opinions not officially published arc attached.

16. I>ublic Office: State (chronologically) any public offices you have held, other

than judicial offices, including the tenns ofserWce and whether such positions

were elected or appointed. State (chronologically) any unsuccessful candidacies

for elective public office.

1988 to 1992 - Board of Directors, New York City Campaign Finance

Board, appointed by the Mayor.

1987 to 1992 - Board of Directors, SUte of New York Mortgage

Agency, appointed by the Governor.

1979 to 1984 - Assistant District Attorney, New York Connty,

appointed by the District Attorney.

17. Legal Career:

a. Describe chronologically your law practice and experioice after graduation

from law school including:

1. whether you served as clerk to a judge, and ifso, the name ofthe judge,

the court, and the dates ofthe period you were a clerk;

No.

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

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New

York, 11231, from 1983 to 1986, but this work was more in the

nature of a consultant to family and friends in their real estate,

business, and estate planning decisions. Iftheir circumstances

required formal legal representation, I referred the matter to my

(inn, Pavia & Harconrt, or to others with appropriate expertise.

13
472

3. the dates, names and addresses oflaw finns or offices, companjes or

governmental agencies with which you have been connected, and the nature

ofyour connection with each;

SotoimYor StMlt 0»

Dues of

Association QrcBni3wt|0|i AddrcM Position

4««tol(V92 PtTia A Hsmwit 600 Madboa Avc

New York. NY

10022

Partner (1/S8 to

10/92)

Associate

l/79to3«l New York County

Dbtrict Attoncy'i

Office

1 Hac«n Place

New York, NY

10013

Asri>taBt

DMrict

Attorney

1. What has been the general character ofyour law practice, dividing it into

periods with dates if its character has changed over the years?

See I(bX2) below.

2. Describe your typical former clients, and mention the areas, ifany, in which

you have specialized.

From April 1984 as an asiociatc, and from January 1988 untfl

October 1992 as a partner, I was a general civil litigator involved in

all facets of commercial work including, but not limited to, real estate,

employment, banking, contract, distribution and agency law.

Moreover, my practice had significant concentration in intellectual

property law involving trademark, copyright and unfair competition

issues. I also worked in automobile franchise law, and export

commodity trading law under the North American Grain Association

Contract. I conducted over fifteen arbitration hearings involving the

banking, fashion, grain, and tire distribution industries. My typical

clients were significant European companies doing business in the

United States.

From August 1979 to March 1984, as a prosecutor in New York

County, my cases typically involved "street crimes,"J^, murders,

robberies, etc I also investigated child pornography, child abuse,

police misconduct, and fraud matters. I further prepared the

responsive papers for five criminal appeals, two of which I argued

and all of which resulted in affirmances ofthe convictions.

14
473

1. Did you appear in court frequently, occasionally, or not at all? Ifthe frequency

ofyour appearances in court varied, describe each such variance, giving dates.

I appeared daily in court aa a prosecutor and I appeared regularly in

court ai a civil commercial litigator in New York with a largely

federal practice.

2. What percentage ofthese appearances was in:

In private practice As a prosecutor

1. federal courts approx. 70% O'/o

2. state courts ofrecord approx. 20% 100%

3. other courts approx. 10% 0%

3. What percentage ofyour litigation was:

in privatt practice Aa a prosecutor

(a) civil 99% 0%

(b) criminal 1% 100%

4. State the number of cases in courts ofrecord you tried to verdict orjudgment

(rather than settled), indicating whether you were sole counsel, chief counsel,

or associate counsel.

I have tried over 23 cases to verdict In two of the cases, 1 was chief

counsel and in another, co-coonseL In all other cases, I was sole

connseL

IS
474

SotoMJYOr SjMte OnuHniiMlre

S. What percentage ofthese trials was:

1. Jury-90%

2. Non-jwy - lOV.

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were repotted, and the docket number and date if

unreported. Give a capsule summary ofthe 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 ofthe case. Also state as to each case:

(a) the date ofrepresentation;

(b) the luime of the court and the name ofthe judge orjudges before whom the case was

litigated; and

(c) the individual name, addresses, and telephone numbers of co-coimsel and of

principal coimsel for each ofthe other parties.

I list the ten litigated matters in revene chronological order.

1.

Case Name: Fritclli LoBi (USA) IM. Y. LOM (USA) A Uoa SpA

Court: United States District Court, Southern District ofNew York

IndSLlila.: 90 Civ. 4170

Judge: Then District Court Judge Fred 1. Parker (sitting by designation)

Federal Building

11 Elmwood Avenue

P.O. Box 392

Burlington, Vermont 05402

(802)951-6401

Date ofTrial: March 16. 1992

IC
475

ro-rnmiMl Allison C. CoUard, Esq.

Attorney for co-defendant Lozza (USA)

1077 Northern Blvd.

RDslyn,NewYorkll576

(516)365-9802

AdTWMria- Charles E. Temko

Temko & Temko

19 West 44th Street

New York, New York 10036

(212)840-2178

Cmat Deacription: 1 represented the defendant Lo2za SpA in this trademark infringement,

trademark abandonment, unfair competition, breach of contract, and

rescission action. The plaintiff, a corporation owned and operated by a

former shareholder ofthe defendant corporation, claimed the defendant

had breached an agreement with the plaintifffor the trademark use of

"Lozza" in the United States, had abandoned use of its marks in the United

States, and had infringed certain ofthe plaintiffs tradetrtarks. I conducted

the trial for the lead defendant, and secured a dismissal of all ofthe

plaintiffs claims. The Court also issued an injunction against the

plaintiffs use ofthe defendants' marks, and offalse and misleading terms

in its advertising. Findings ofFact Conclusions of Law and Order

reported at 789 F. Supp. 625 (S.D.N.Y. 1992).

AJmini«tr«tivg

Ferrari of Sacramento. Int. v. Ferrari North America

Agency: State of California New Motor Vehicle Board

(Appeared jast hac vice>

Protest Wo.: PR-973-88

Administrative

Law Judge*: Marilyn Wong

c/o New Motor Vehicle Board

1507 21st Street, Room 330

Sacramento, California 95814

(916)445-1888

17
476

Robert S. Kendell (retired)

Contact: Michael Sabian

c/o New Motor Vehicle Board

1507 21st Street, Room 330

Sacramento, California 95814

(916)445-1888

SntiMi«v»r Saiite 0«««tkl«Mlrt

D«te»ofHe«riiit! 10/16/90,10/17/90,10/31/90, 11/1/90, and 11/2/90

Co-Connacl: Nicholas Browning, III, Esq.

Herzfeld & Rubin

1925 Century Park East, Suite 600

Los Angeles, California 90067-2783

(310)553-0451

Adver»irie«: Jay-Allen Eisen

Jay-Allen Eisen Law Corporation

9A0 9th Street, Suite 1400

Sacramento, California 95814

(916)444-6171

Donald M. Licker, Esq.

2443 Fair Oaks Boulevard

Room 340

Sacramento, California 95825

(916)924-6600

Catt Description: In or about 1988, Ferrari North America ("Ferrari") terminated the

plaintiff dealer. Thereafter, the dealer filed a timely protest ofthe

termination with the California New Motor Vehicle Board (the "Board").

At a prehearing settlement conference, Ferrari and the dealer entered into a

Stipulated Settlement that permitted Ferrari to terminate the dealer,

without a hearing, ifthe dealer failed timely to cure specified obligations

under its franchise agreement with Ferrari. When the dealer breached the

terms ofthe Stipulated Settlement, Ferrari terminated the dealer, with the

Board's approval and without a hearing. The dealer then secured a writ of

mandate from a California court directing the Board to hold an

administrative hearing.

1 had primary responsibility for representing Ferrari at the administrati\-e

hearing. The Board determined that 1) the dealer had violated the terms of

18
477

Solomivor Stnate Oiic»tlonn«lrt

the Stipulated Settlement, 2) the violations constituted good cause for

Ferrari's termiitation ofthe dealer under California's Automobile

Franchise Law, and 3) the plaintifTs toss of its franchise was not an illegal

forfeiture under California law.

While the hearing before the Board proceeded after issuance of the

mandate, Ferrari also appealed the judgment on the writ, which judgment

was reversed on appeal in an unpublished opinion. The California Court

of Appeals, Third Appellate District, determined that enforcing the

Stipulated Settlement and terminating the dealer, without a hearing, did

not violate due process.

Although not listed as counsel for appellant's briefs, I contributed

signiflcantly to the drafting ofthe briefs. The appellate case was

captioned Ferrari of Sacramento. Inc.. Respondent v. New Motor Vehicle

Board and Sam Jennings as Secretary. Appellants, and Ferrari North

America. Real Party in Interest and Appellant: No. C008840 in the Court

of Appeals ofthe State of California in and for the 3rd Appellate District;

Sacramento Superior Court, Case No. 360734.

3.

C«i«N«in«: In re: Van Ness Auto Plaza. Inc.. a California Corporation. d/b/« Auto

PI«M I.inrnln Mercury. Aiitn P1«T« Porache apH Antn PUM FerrariDebtors.

Cnnrfc United States Bankruptcy Court, Northern District of California

(Appeared pm bac xiffi)

CaatSsL: 3-89-03450-TC

JgdCB: Hon. Thomas E. Carlson

U.S. Bankruptcy Court Judge

235 Pine Street

San Francisco, California 94104

(415)705-3200

D.tM of Hearing: 1/22/90 and 3/19/90

19
478

•StUomiTOr StMtt OM«tio«Mirt

CV-ConaM-l: Nicholas Browning. IH, Esq.

Herzfeld & Rubin

1925 Century Park East, Suite 600

Los Angeles, CaUfomia 90067-2783

(213) 553-0451

AdverMrita: Henry Cohen, Esq.

Cohen and Jacobson

Attorneys for Debtor

577 Airport Blvd., Suite 230

Burlington, California 90067-2783

(415)342-6601

William Kelly, Esq. (retired)

Address Unknown

Home Tel. No. (415) 641-1544

C«M Dwcription: 1 represented Ferrari North America ("Ferrari"), a franchisor of a bankrupt

dealer, in hearings related to Ferrari's opposition to the rejection of

customer contracts, assumption of the dealer's franchise agreement, and

coi\firmation ofthe proposed sale ofthe dealer's franchise. At the time,

Ferrari was intnxlucing a limited production and valuable new car model

to the marketplace. A rejection by the dealer of contracts for that model

would have frustrated the expectations of customers and subjected Ferrari

to potential multiple claims. After a number of hearings, the Bankruptcy

Court ruled that the dealer could not reject the customer contracts,

although financially burdensome, and then assume the franchise

agreement with Ferrari. The case also involved alleged claims by the

dealer and customers that Ferrari had violated the California automobile

franchise, antitrust, and securities laws. The case settled with the sale of

the dealership and resolution of claims among the bankrupt dealer, the new

franchise buyer, Ferrari, and customers.

4.

r««e Name;

Case No.:

Court!

Fendi S.i.«. dl PaoU Fendi e Sorelle v. Burlington Coat Factory

Warehouse Corp- et «1.

86 Civ. 0671

United States District Court, Southern District ofNew York

20
479

SoteM«v»r SwMte OiiMlkiiiB«ire

ladst:

Co^onniel:

Adveri«rit«:

Ditn ofTrial:

CMC PtKrintiaii:

Hon. Leonard B. Sand

U.S. District Judge

U.S. Courthouse

500 Pearl Street

New York, New York 10007

(212)805-0244

Frances B. Bernstein, Esq.

(Deceased)

Stacy J. Haigney, Esq.

Herbert S. Kasner, Esq.

Attorneys for Burlington Coat Factory Warehouse and

Monroe G. Milstein

Burlington Coat Factory Warehouse, Coip.

263 West 38th Street

New York, New York 10018

(212)221-0010

Deimis C. Kreiger, Esq.

Esanu, Katsky, Korins & Sieger

Attorneys for Firestone Mills, Inc. and Leo Freund

605 Third Avenue, 16th Floor

New Yoric, New York 10158

(212)953-6000

5/18/87 to 5/19/87

Combined Case Description in 5 below.

Ca« Name: Pendi S.i.8. di Paola Fendi e Sorelle v. Cosmetic Worid. Ltd.. Loradin

laports. Inc. Linea Prima. Inc. «/lt/« l.ina Carbo Shoes. Daniel

Bensoul. Michael BensonI a/k/a Nathan BcndeL Paolo Vincelli and

Mario Vincelli

85 Civ. 9666

United States District Court, Southern District of New Yoric

21
480

SenMlTor SciMtt OatrtiMiiMhT

Jndca:

ro-Tonmiel:

Advcmry:

Hon. Leonard B. Sand

U.S. Dutrict Judge

U.S. Courthouse

500 Pearl Street

New York, New York 10007

(212) 805-0244

Hon Joel J. Tyler

Magistrate Judge, U.S. District Court

Home address:

2 Primrose Avenue

Yonkers, New York 10710

Telephone unpublished

Frances B. Bernstein

(Deceased)

Stanley Yaker, Esq.

Attorney for Paolo Vincelli and Mario Vincelli

Former Address:

114 East 32nd Street

Suite 1104

New York, New York 10016

(212)983-7241

Telephone not in service. I have been unable to locate Mr.Yaker.

No attorneys appeared for the remaining defendants, who settled pro se.

Date of Inquest

Hearing:

Case Deiicriptioiii:

1/6/88

From 1985, my fonner firm represented Fendi S.a.s. di Paola Fendi e

Sorelle ("Fendi") in Fendi's national anticounterfeiting work. Frances B.

Bernstein, a partner at Pavia & Harcourt (now deceased), and 1 created

Fendi's anticounterfeiting program. From 1988 until the time I left the

firm for the bench in 1992,1 was the partner in charge ofthat program. I

handled almost all discovery work and substantive court appearances in

cases involving Fendi. This work implicated a broad range of trademark

issues including, but not limited to, trademark and trade dress

infringement, false designation of origin, and unfair competition claims.

22
481

SotOMjimr StBMlt 0«««doM«lre

Approximately once every two months fiom 1989 to 1992,1, for Fendi,

applied for provisional injimctive reliefin district court to seize counterfeit

goods fix}m street vetKlors or retail stores. These applications required

extensive submission of evidence documenting Fendi's trademark rights,

its pfx>tection ofits marks, the nature ofthe investigation against the

vendors, and Feodi's right to exparte injunctive relief. Generally, the

street vendors defaulted but others appeared and settled pro se. Two of

these cases filed in the Southern District ofNew York were captioned Jane

Doe V. John Doe and Various ABC Companies. 89 Civ. 3122, the Hon.

Thomas P. Griesa presiding (Tel. No. (212) 805-0210), and Fendi S.a.s. Pi

Paola Fendi e Sorelle v. Dapper Dan's Boutique. 89 Civ. 0477, the Hon.

Miriam G. Cedarbaum presiding (Tel. No. (212) 805-0198).

The preceding two cases (A4 and AS) involved a trial and a damages

hearing on Fendi's trademark claims against the defendants. In the first,

the Burlington case, Fendi alleged that defendants knowingly trafficked in

counterfeit goods and Feixii sought triple profits fix)m the defendants and

punitive damages. ARa extensive discovery, submission of a pre-trial

order and memorandum, and Fendi's presentation ofits expert at trial, the

case settled. 1 was sole counsel present at trial. In the Cosmetic World

case, the Court granted Fendi's summary judgment motion on liability and

referred the matter to a magistrate judge for an inquest on damages. S^

642 F. Supp. 1143 (S.D.N.Y. 1986). I conducted the contested hearing on

damages before the magistrate judge who recommended an award in

Fendi's favor.

i.

Cm Nimt: Republic ofthe PhiHppints v. New York Land Co.. et aL (the

"Philippines Case") and Security Pacific Mortgage and Real Estate

Service Inc. v. Canadian Land Company, et aL (the "Security Pacific

Case").

CluJiai.: 90-7322 and 90-7398

CsaO: United States Court of Appeals for the Second Circuit

tMUt Hon. Thomas J. Meskill

U.S. Circuit Judge

114 W. Main Street, Suite 204

New Britain, Cotmecticut 06051

(203)224-2617

23
SotOMlvor Sni«te O^rtinnMht

Hon. Lawrence J. Pierce

U.S. Circuit Judge

c/o U.S. Courthouse

40 Foley Square

New York, New Yoric 10007

(212)791-0951

Hon. George C. Pratt

U.S. Circuit Judge

U.S. Courthouse

Uniondale Avenue

Hempstead Turnpike

Uniondale, New York 11553

(516)485-6510

ro-TonnMl: David A. Botwinik, Esq.

Pavia & Harcourt

600 Madison Avenue

New York, New York 10022

(212)980-3500

David Glasser, Esq.

Levin & Glasser, P.C.

675 Third Avenue

New York, New York 10471

(212) 867-3636

Roy L. Reardon, Esq. (455-2840)

David E. Massengill, Esq. (455-3555)

Simpson Thacher & Bartlett

425 Lexington Avenue

New York, New York 10017

Advemriea: Jeffiey J. Greenbaum, Esq.

James M. Hirschhom, Esq.

Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross

Attorneys for the Republic ofthe Philippines

Legal Center

1 Riverfront Plaza

Newark, New Jersey 07102

(201)643-7000

24
483

SotoM.Yor<8Mi.t.

PlttOfArrmaat; 6^15/90 (Argued by Roy L. Reardon, Esq. of Simpson, Thacher A Bartlett)

AND

^*" NM •

Cg-Cauniwl:

RePBbUc ofthe PhiliPDlna v. New York Land Co.. t* «1. rth>^

'Philippioes Case") and Security Paeific Morty.f« «nd Real Kit«te

Scryjce Inc. v. Caaadjan Land CnmpaiiY. et .I. (the "Security Pacific

Case").

Tlie Philippines Case: 86 Civ. 2294

The Security Pacific Case: 87 Civ. 3629

United States District Court, Southern District ofNew Yorit

Hon. Piene N. Leva]

U.S. Circuit Judge (Then District Court Judge)

U.S. Circuit Judge

U.S. Courthouse

40 Foley Square

New York, New Yoric 10007

(212)857-2319

David A. Botwinik, Esq.

Pavia & Harcourt

600 Madison Avenue

New Yoric, New York 10022

(212)980-3500

David Glasser, Esq.

Levin & Glasser, P.C.

675 Third Avenue •'

New York, New Yorit 10471

(212) 867-3636

2S
484

P«rtlgip«tiin

AdverMrit*

Oppoaim Motion: Jeffrey J. Greenbaum, Esq.

James M. Hirschbom, Esq.

Sills, Cummis, Zuckennan, Radin, Tischman, Epstein & Gross

Attorneys for the Republic ofthe Phihppines

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

DiteofArpiment: 2/12/90

Case Description: My former firm, Pavia and Harcouit, represented Bulgari Corporation of

America ("Bulgan"), an international retailer offine jewelry, who was a

tenant in the Crown Building at 730 Fiflh Avenue, New York, New York.

The Crown Building was the subject of a foreclosure sale in the Security

Pacific Action, and its beneficial ownership was in dispute in the

Philippines Action. Bulgari was not a party to these actions. The district

court denied Bulgari's request, by way ofOrder to Show Cause, to

approve a rental amount it had reached with the manager ofthe Crown

Building. 1 primarily drafted the papers presented to the district court and

argued the motion. Bulgari's motion attempted to demonstrate that no

competent evidence existed to dispute Bulgari's proofthat the rental

amount agreed upon was at or above fair market value and benefited the

Crown Building and its claimants. Bulgari appealed the district court's

denial ofits approval ofthe rent agreement on the grounds that the denial

was effectively an injunction against Bulgari's exercise of its contractual

lease rights to have its rent fixed by agreement during the term ofthe

lease, and that the district court improperly granted the injunction without

a hearing. 1 did not argue the appeal but participated extensively in the

drafting of appellant's brief and reply. The district court's Order was

affirmed on appeal, without a published opinion. 909 F.2d 1473 (2d Cir.

1990).

X
485

SoteMYOr S«n«t« Omatloiin.lra

7.

CMCWMC: Miierocchi A C... SpA v. Altrad C. Totpfer Inteni«tion«L G.m.b.H.

CaatO^: 85-7734

Coorfc

End:

Adv«r»«rv!

United States Court of Appeals for the Second Circuit

Hon. J. Edward Lumbard

Senior Judge

U.S. Circuit Judge

U.S. Courthouse

Foley Square

New York, New York 10007

(212) 857-2300

Hon. James L. Oakes

Then-ChiefJudge

U.S. Circuit Judge

U.S. Courthouse

40 Foley Square

New York, New York 10007

(212)857-2400

Hon. George C. Pratt

U.S. Circuit Judge

U.S. Courthouse

Uniondale Avenue

Hempstead Turnpike

Uniondale, New York 11553

(516)485-6510

Stephen P. Sheehan

Wistow & Barylick

61 Weybosset Street

Providence, Rhode Island 02903

(401)831-2700

DateofArpiment: 9/17/84

AND

37
486

SotoMvor SjMte o»Bitiiiiiiirr

District Coort

C.MMt Nanig:

CaaifMiterocchi A C- SpA v. AMr«d C. Totpfcr IntennttoB.!. fl.m.h-H.

84 Civ. 6112

United States District Court, Southeni District ofNew Yoric

Hon. Kevin Thomas Dufi^

U.S. District Judge

U.S. Couithouse

40 Foley Square

Nevtr York, New York 10007

(212) 805-6125

David A. Botwinik. Esq.

Pavia & HarcouTt

600 Madison Avenue

New York, New York 10022

(212)980-3500

Stephen P. Sheehan

Wistow & Barylick

61 Weybosset Street

Providence, Rhode Island 02903

(401) 831-2700

Date of Argument: 9/5/84 (argued by David Botwinik of Pavia & Harcourt)

Case Description: This action involved the bankruptcy of an Italian corpotation, Miserocchi

& C, SpA ("Miserocchi"), with affiliates in London and elsewhere. The

London afBliate ofMiserocchi breached a grain conunodity trading

contract with my then client, Alfred C. Toepfer International, G.m.bil.

CToepfer"). Toepfer demanded arbitration ofthe dispute against both

Miserocchi and its London affiliate under the terms ofthe grain

commodity trading agreement between the parties and a guarantee signed

by Miserocchi. Shortly before the arbitration hearing was to commence,

Miserocchi moved to stay the arbitration against it, arguing that it was not

a party to the arbitration agreement. Although my partner, David A.

Botwiiuk, argued the motion before the district court, 1 primarily drafted

Toepfer's responsive papers to the motion to stay arbitration and the

cross-motion to compel arbitration. Toepfer argued that Miserocchi was

Cn^nnntri:

AdvenMry:

28
487

SotomiYor Sjn«tt OnaHonBtlre

bound to aibitrate both as an alter ego ofits London affiliate and under the

tenns of its guarantee. After the district court ruled in Toepfer's favor,

Miserocchi filed a notice of appeal and sought an expedited stay ofthe

district court's Order denying the stay ofarbitration and compelling

arbitration. I argued the motion to stay. At the conclusion ofthe

argument on the motion, the Second Circuit not only denied the motion for

a stay but also dismissed the appeal. I participated extensively as cocounsel in the arbitration that followed and subsequently appeared in the

post-confimiation proceedings resulting from the arbitration award

rendered in favor ofToepfer. The matter settled before the hearing on

appeal ofthe coniinnation order.

S.

Caat Nmme: The People of the Stete of New Yorfc v. gemente D'Alessio and Scott

Hyman

iBdirtmCTt-Hfl.: 4581/82

jadgc: Hon. Thomas B. Galligan (retired)

Then-Actiitg Justice, Supreme Court,

c/o Administrative Judge's Office

Juanita Newton

111 Centre Street

New York, New Yoik 10013

(212)374-4972

A««oriate C.nnnn^: Karen Greve Milton

Director ofEducation Training Program

Association ofthe Bar ofthe City of New Yoric

42 West 44th Street

New York, New York 10036-6690

(212)382-6619

Advenariei: Steven Kimelman, P.C.

Attorney for Scott Hyman

757 Third Avenue

New York, New York 10017

(212)421-5300
488

James Bemanl, Esq.

Attorney for Clemente D'Alessio

ISO Broadway

New York, New Yoik 10038

(212) 233-0260

Dates of Trial! 2/2/83 to 3/2/83

Case Description: 1 was lead counsel in this action in which defendants were charged with

selling videotapes depicting children engaged in pornographic activities.

Defendant Scott Hyman deah directly with the undercover agent and

attempted to raise numerous defenses at trial based upon his alleged drug

addiction. The proof against defendant Clemente D'Alessio was

circumstantial and he raised a misidentification defense at trial. This action

was the first child pornography case prosecuted in New York State after

the U.S. Supreme Court upheld the constitutionality of New York's laws

in New York v. Ferber. 458 U.S. 747 (1982). The defendants filed a

plethora of motions before and during trial. The defendants' request for

severance was denied, as were, after a hearing, the defendants' motions for

the suppression ofstatements, evidence, and identification. Other issues

addressed at trial included whether the trial court should or could, upon

defendants' request, require the government to stipulate to the

pornographic nature ofthe evidence, whether defendant Hyman could

present expert testimony on the effects of drug addiction on mens rea, and

whether defendant Hyman was entitled to jury charges on diminished

capacity or intoxication. The jury convicted defendants after trial. The

defendants received sentences, respectively, of 3'/] to 7 years and 2 to 6

years. The convictions were affirmed on appeal. SC£ People v. r)'Ale<«io.

62 N.Y.2d 619,476 N.Y.S.2d 1031 (Ct. App. 1984); Penplgv Hvman. 62

N.Y.2d 620,476 N.Y.S.2d 1033 (a. App. 1984).

9.

Cue Name: The People of the State of New York v. Richard Maddicks

Indictment No.: 886/82

Court: Supreme Court of the State of New York, County ofNew York
489

Jtelcr

Sotom.Yor Saute Oat«Honn.lr«

Hon. James B. Leff(retired)

Justice, Supreme Comt

c/o Administrative Judge's Ofiice

Juanita Newton

100 Centre Street

New York, New York 10013

(212)374-4972

Lead Couniel:

Advenianf:

Hugh H. Mo, Esq.

Law Offices ofHugh H. Mo

750 Lexington Avenue

15th Floor

New York, New York 10022

(212)750-8000

Peter A. Furst, Esq.

100 Pine Street

Suite 2750

San Francisco, California 94111

(415)433-2626

Dates ofTrial: Almost all ofJanuary 1983

Case Description: The defendant was dubbed the "Taizan Murderer" by the local Harlem

press because he committed burglaries by acrobatically jumping or

climbing &om rooftops or between buildings and entering otherwise

inaccessible apartments. If the defendant found a person in the apartment,

be shot them. 1 was co-counsel on the case, and prepared and argued the

motion, before Justice Harold Rothwax, that resulted in the court

consolidating the trial offour murders and seven attempted murders

relating to eleven of the defendant's burglaries. The consolidation was

unusual in that up to that point, most New York courts had limited

consolidation to crimes in which an identical modus operand! had been

used. We argued successfully that the commonality of elements in the

crimes, although with some variations in modus operandi, warranted

consolidation. 1 participated extensively in preparing and presenting

expert and civilian witnesses at trial. The defendant was convicted after

trial, and sentenced to 67'/] years to life. The conviction was affirmed on

appeal. Sfi£ People v. Maddicks. 70 N.Y.2d 752, 520 N.Y.S.2d 1028 (Ct.

App. 1987).

3t
490

10.

Cue Name;

Indictment No:

Judse:

AdvetMriM:

D«ta ofTrill:

CMB Deicription:

SotoMvor SjfM^f ff—««"—ft

The People ofthe State of New York v. M«iinv Morale «-h.«. Joey

Hernandez. Joieph Pacheco, and Eduardo Pacheco

4399/82

Hon. Alfred H. Kleiman (retired)

Then-Acting Justice, Supreme Court

c/o Administrative Judge's OfiBce

Juanita Newton

100 Centre Street

New York, New York 10013

(212)374-4972

Ira I. Van Leer (deceased)

(Associates present at portions ofthe trial: Valerie Van Lcer-Grecnberg

and Howard Greenberg)

Van Leer and Greenberg

Attorneys for defendant Manny Morales a.k.a. Joey Hernandez

132 Nassau Street, Suite 523

New York. New York 10038

(212)962-1596

Lawrence Rampulla, Esq.

Attorney for defendant Edwardo Pacheco

2040 Victory Blvd.

Staten Island. New York 10314

(718)761-3333

Stephen Goldenberg, Esq.

Attorney for defendant Joseph Pacheco

277 Broadway, Suite 1400

New York, New York 10007

(212)346-0600

March 25, 1983 to May 12, 1983

This multiple-defendant case involved a Manhattan housing project

shooting between rival family groups. 1 was sole counsel in this action on

behalf ofthe govenunent Prior to trial, 1 conducted various hearings

opposing defense motions to suppress statements and identifications. This

32
491

Snti)M«Y«r S«ii«te OueirtonMlit

lengthy trial involved witnesses with significant credibility issues. The

jtiiy convicted one ofthe three defendants who was sentenced to 3 to 6

years for Criminal Possession ofa Weapon in the Third Degree. The

conviction was affirmed on appeal. SK People v. Pacheco. 70 N.Y.2d

802,522 N.Y.S.2d 120 (Ct App. 1987).

Additional QuMtion under Item 18: In addition, if the majority of cases you list in

response to this question are older than five years, provide the name, address and phone

number for 10-12 members of the legal community who have had recent contact with yon,

even if the contact was only an appearance before you as a judge.

I have inteipreted this question to be seeking a list ofindividuals who are familiar with

my judicial work because they are knowledgeable about some of my cases or opinions, or

because they have appeared before me. If you seek only individuals who have tried (

or made other substantive appearances before me, please advise me. I list these

individuals in alphabetical order.

Martin J. Auerbach, Esq.

Dormand, Mensch, Mandelstan, Schaeffer

747 Third Avenue

New York, New York 10017

(212)759-3300

The Hon. Miriam G. Cedarbaum

United States District Court Judge

Southern District ofNew York

500 Pearl Street, Room 1330

New Yoric, New Yorit 10007

(212) 805-0198

Justin N. Feldman, Esq.

Kromish, Lieb, Weiner & Hellman

1114 Avenue ofthe Americas, 47th Floor

New Yoric New Yoric 10036-7798

(212)479-6210

33
492

4. Leonard F. Joy, Esq.

Attomey-in-Oiarge

Legal Aid Society, Federal Defender Division

52 Duane Street

New York, New York 10007

(212)285-2830

5. John Kidd, Esq.

Rogers & Wells

200 Paric Avenue

New York, New York 10166-0153

(212) 878-8000

6. The Hon. John G. Koeltl

United States District Court Judge

Southern District ofNew York

500 Pearl Street, Room 1030

New York, New York 10007

(212)805-0222

7. Sara Moss, Esq.

Vice-President and General Counsel

Pitney Bowes

1 Elmcrofl Road

Stamford, Connecticut 06926

(203) 351-7924

I 8. John S. Siffert, Esq.

, Lankier, Siffert & Wohl

500 Fifth Avenue, 33rd Floor

New York, New Yoik 10110

(212)921-8399

9. Gerard Walperin, Esq.

Rosenman & Colin

575 Madison Avenue

New York, New York 10022

(212)940-7100

34
Soto««Yiir SMMM OiiMttoiiiiiIre

10. Mary Jo White, Esq.

United States Attorney for the Southern District of New Yoik

U.S. Courthouse Aimex

One St Andrew's Plaza

New York, New York 10007

(212)791-0056

19. IiCgal Activiliw Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not

involve litigation. Describe the nature of your participation in this question, please omit

any information protected by the attorney-client privilege (unless the privilege has been

waived).

In the last five yean as a Judge, my legal activities have spanned the gamut of

federal jurisdiction. As part of my daily work, I have addressed many ofthe

complex legal questions of our time in fields as diverse as the First and Fourteenth

Amendments to the United States Constitution, antitrust, securities, habeas corpus,

immigration, tax, intellectual property, ERISA, employment discrimination, and

many other areas of law. The numerous opinions I have cited in Question Number

15 describe in detail many of these significant cases.

A great part of my litigation work while in private practice involved pre-trial and

discovery proceedings for cases which were typically settled before trial. I

conducted a number of preliminary injunction hearings in trademark and copyright

cases, and post-motion hearings before magistrate judges on a variety of issues. My

work also involved rendering advise to clients on a wide variety of legal issues,

including, but not limited to, product liability, warranty, antitrust, securities,

environmental, banking, real estate, patents, emplojnment, partnership, joint

venture and shareholder laws; customs, automobile and joint tire regulations; and

franchising and licensing matters. I, moreover, conducted over fifteen arbitration

hearings involving, predominantly, export grain commodity trading on behalf of

foreign buyers but also hearings involving banking, partnership, tire, and fashion

industry disputes.

Finally, in addition to my work in establishing a national anti-counterfeiting

program for Fendi S.aj. Paola Fcndi e SorcUc, I participated, on behalf of Fendi, in

establishing a Task Force of prominent trademark owners to change New York

State's anti-counterfeiting criminal statutes. I also supervised and participated in

the national dealers and customer warranty relations programs for Ferrari North

America, a division of Fiat Auto USA, Inc.

35
494

SotoMMYor Snute OM>rt~....l~

n. FINANCIAL DATA AND CONFUCT OF INTEREST (PUBLIC)

List sources, amounts and dates ofall anticipated leceipts bom defeired income

anangements, 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 Ac 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 ofinterest, including the procedure

you will follow in determining these areas of concern. Identify the categories oflitigation

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.

Became my former firm, Pavia & Harcourt, advises me on personal matten,

I wiU contfnne to rrcnse myselffrom any matter in which my form firm or its

clicats, or a former client with whom I worked are involved. Similarly, 1 wiU

continae to recusc myselffrom hearing any matter invohing an issue in

which I participated while a member ofthe Board of Directors ofthe nonprofit organizations described in Part III, Question 1. I win further recnse

myself from any matter involving a client or associate of my husband-to-bc.

In all matters, I will foUow the dictates of28 U.S.C. § 455 and the Code of

Judicial Conduct

Do you have any plans, commitments, or agreements to pursue outside employment, witii

or without compensation, during your service with the court? Ifso, 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 $S0O or

more. (If you prefer to do so, copies ofthe financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

3C
495

1996 1997

S133,600 S66300 to 5/31/97

S 912 S 373 to 6/1/97

S 13400 $ 6600 to 6/1/97

Salary - U.S.DJ.

Interest - Citibank Savings Acct

Rent nrom Kings Co. Coop

(SHOO a month]

My Financial Disdosure Report, AIO, is attached.

Please complete the attached financial net worth statement in detail. (Add schedules as

called for.)

My Net Worth SUtemcnt and Schedule is attached.

Have you ever held a position or played a role in a political campaign? Ifso, please

identify the particulars ofthe campaign, including the candidate, dates ofthe campaign,

your title and responsibilities.

No.

37
496

m. GENERAL (PUBUC)

An ethical consideration under Canon 2 oftlie American Bar Association's Code of

Professional Responsibility calls for "every lawyer, regardless of professional

prominence or professional workload, to find some time to participale in serving the

disadvantaged." Describe what you have done to fulfill these responsibilities, listing

qjecific iiutances and the amount oftime devoted to each.

Before my appointment as a judge, all of the non-profit organizations with

which I had been affiliated served the disadvantaged cither directly or

through projects I had participated in developing. The Puerto Rican Legal

Defense and Education Fund, for example, promotes, through legal and

educational activities, the civil and human rights of disadvantaged Hispanics.

I had served, at various times, as the First Vice President of the Board of

Directon of the Fund and as Chairperson of its Litigation and Education

Committees.

The SUte of New Yorli Mortgage Agency ("SONYMA") structures

affordable housing programs for residents of the State of New York. During

my service on its Board of Directors, SONYMA, among many other projects,

implemented special mortgage programs for low-income families to purchase

homes.

I was also a member, in 1988, of the Selection Committee for the Stanley D.

Heckman Educational Trust which granted college scholarships to minorities

and first generation immigrants. I had, moreover, served, in 1990-1991, as a

member of New York State's Panel on Inter-Group Relations. The Report of

that Panel is atUched.

Finally, I had been a member of the New York City Campaign Finance

Board from its inception in 1988 until 1992. This Board distributes public

fbnds to candidates for certain elective positions in New York City when sneh

candidates agree to limit the amount of the contributions they will accept,

and expenditures they will make, during campaigns.

The time I devoted to my service to these assorted organizations varied

through the years but it was never less than two hours a week and had been

over eight hours a week during certain periods. I devoted an average of

approximately six hours a week cumulatively to the various non-profit

organizations of which I was a member.
497

The Code ofJudicial Condnct limits my ability to provide legal service to the

disadvantaged. While a Judge, I nevertheless contribute my time as

permitted by law to bar and faiw school activities. I have served as an

honorary member of the Public Service Committee of the Federal Bar

CounciL I also serve on the selection committees for the Root-TUden-Snow

Scholarship granted to selected New York University Law School students

interested in public service and the Kirfcland and Ellis New York Public

Service Fellowship granted to a Columbia Law School graduate to support a

year's employment in public service. I serve on moot court panels and in

trial advocacy courses at local law schools and for the oflice of the District

Attorney of New York County; I also speak regularly at bar association

functions on issues such as judicial clerkships for minority students and

women in the law. Finally, I have lectured about trial advocacy skills at the

Office of the Attorney General for the State of New York. It is difficult to

quantify the time I spend on these activities because I participate in functiona

as my schedule permits. I estimate that I attend at least one community

service function a month, and often twice a month.

The American Bar Association's Conunentary to its Code ofJudicial Conduct states that

it is ina|q>ropriate for a judge to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do you cunently belong, or have you

belonged, to any organization which discriminates — through either formal membership

requirements or the practical implementation of membership policies? Ifso, list, with

dates of membership. What 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? Ifso, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from begirming to end

(including the circumstances which led to your nomination and interview in which you

participated).

I am not aware of any selection commission which recommended me for this

Circuit Court nomination. I was interviewed by the Office of the Counsel to

the President in or about March of 1996 and again in March of 1997.

Thereafter, the American Bar Association and the Federal Bureau of

Investigations interviewed me. The President's nomination followed.

39
498

SotOMivar S«Mte OM«tln...tr.

Has anyone invotved in the process ofselecting 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? Ifso, please

explain fiilly.

Please discuss your views on tiie following criticism involving "judicial activism."

The role ofthe Federal judiciary within the Federal government, and within society

generally, has become the subject ofincreasing controversy in recent years. It has

become the target ofboth popular and academic criticism that alleges that the judicial

branch has usurped many ofthe prerogatives ofother branches and levels of government

Some ofthe characteristics ofthis "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 plaintifT as a vehicle for the

imposition offar-reaching orders extending to broad classes ofindividuals;

c. A tendency by the judiciary to impose broad, affirmative duties upon

governments and society;

d Atendency by the judiciary toward loosening jurisdictional requirements such as

standing and ripeness; and

e. Atendency by the judiciary to impose itselfupon other institutions in the manner

ofan administrator with continuing oversight responsibilities.

At the time I was nominated a* a^listrict court Judge, I aniwered tliii

qncstion as followt:

"Our Constitution vests the right to make and administer lawi in tkc

legislative and executive branches of onr government Judges

impermissibly encroach upon that right by rendering decisions tliat

loosen jurisdictional requirements outside of the scope of established

precedents and by fashioning remedies aimed at including parties not

before the coart to resolve broad societal problenis.

40
499

Sotonnvor StMte Oii«tfaiiii«ir»

Judges must provide fair and meaningial remediei for violations of

constitutional and statutory rights to the parties before a court Doing

so can, at times, affect broad classes of individuals, may place

affirmative burdens on governments and society and may require

some administrative oversight functions by a court

A judge's decision should not, however, start from or look to these

effects as an end result Instead, because judicial power is limited by

Article III ofthe Constitution, judges should seek only to resolve the

specific grievance, ripe for resolution, of the parties before the court

and within the law as written and interpreted in precedents.

Intrusion by a judge upon the functions of the other branches of

government should only be done as a last resort and limitedly."

My service as a judge has only reinforced the importance of these principle*.

Finding and maintaining a proper balance in protecting the constitutional

and statutory rights of individuals versus protecting the interest of

government, financial and otherwise, is very difficult Judges must be

extraordinarily sensitive to the impact of their decisions and function within,

and rcspcctfkil of, the constraints ofthe Constitution.

41
500

\

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (include any fbnner names used.)

Charies Joseph SIragusa

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

Home address: Webster, New York 14580

Business Address: Rochester, New York 14614

Date and place of birth.

August 10,1947

Rochester, New York

Marital Status (include maiden name of wife, or husband's name). List spouse's

occupation, employer's name and business address(es).

Divorced. However, I am engaged to be married on August 30, 1997. My

fiancee's name is Lisa Serio. She is a lawyer currently employed as an

assistant district attorney in the Monroe County District Attorney's Office,

Rochester, New York 14614.

Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

Colleges:

State University of New York at Buffalo

August 1965 - May 1966

Transferred to LeMoyne College

LeMoyne College

Septemt>er 1966 - May 1969

B.A. Sociology • Cum Laude

Date Granted: June 7,1969

Law Schools:

Franklin Pierce Law School

August 1973-May 1974

Transferred to Albany Law School
501

Albany Law School

September 1974 - May 1976

J.D.

Data Granted: June 5,1976

Emolovment Record: List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, Institutions and organizations,

rxxiprofit or otherwise, including firms, with which you were connected as an officer,

director, partner, proprietor, or employee since graduation from college.

1969 -1973 SL James School

Rochester, New York 14609

I was employed as a sixth grade and then Junior

high teacher.

1974 (summer) Diocese of Rochester

Catholic Youth Organization

Day Camp Counselor

1977- 1992

1984 -1992

1993 - present

1995 - Present

Monroe County District Attorney's Office

Rochester, New York 14614

I was employed as an Assistant District Attorney

From 1984 through 1992,1 served as First Assistant

District Attorney

Rape Crisis Advisory Board Member

(non paid, volunteer position)

New York State, Seventh Judicial District

Rochester, New York 14614

I am c;jrrentiy employed as a New York State

Supreme Court Justice

Families and Friends of Murdered Children and

Victims of Violence Advisory Board Member (non

paid, volunteer position)

Military Service: Have you had any military service? If so, give particulars,

including the dates, branch of service, rank or rate, serial number and type of

discharge received.

No.

45-964 98-17
SOS

8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe would be of interest to ftie

Committee.

1969 Pi Gamma Mu National Honor Society

1983 Certificate of Appreciation - Brighton Police Department

1985 Certificate of Merit for Representing Monroe County with

Integrity and Conviction - Town of Irondequoit

1985 Certificate of Recognition for Successful Prosecution of Rot>ert

P. Reilly - Gates Police Department

1985 Distinguished Service Award - Kiwanis Club; LakeshoreRochester Chapter

1987 Distinguished Service Award - Rosewood Club

1987 Recognition for Successful Prosecution of Northeast Rapist -

Rochester Police Department ,

1988 Distinguished Service Award - Crime Stoppers

1988 Special Recognition for Successful Prosecution of $500,000

Armored Car Theft - New York State Police

1990 Citizen of the Year • Rochester Police Locust Club

1990 Person of the Year - Gannett Rochester Times Union

1991 Honorary Deputy Chief of the Rochester Police Department

1991 Exemplary Service Award - Monroe County Sheriffs Departmeitt

1991 Recognition and Service Award for Outstanding Service •

American Association of Retired Persons

1991 Commendation on Behalf of Citizens of Monroe County for

Successful Prosecution of Arthur J. Shawcross - Monroe County

Legislature
503

1991 Certificate of Honorfor Outstanding Service and Contribution to

Law Enforcement - Association of Rochester Police and Area

Law Enforcement Retirees

1991 Letter of Recognition for Successful Prosecution of Arthur J.

Shawcross - Fnnk Norton, House of Representatives

1991 Certificate of Honor for Extraordinary Diligence in Preparation

and Successful Prosecution of Arthur J. Shawcross - American

Society for Industrial Security, Rochester Chapter

1991 Letter of Recognition for Dedication and Commitment to Public

Service - Louise M. Slaughter, Memt)er of Congress

1991 Letter of Recognition for Successful Prosecution of Arthur J.

Shawcross - Alphonse M. D'Amato, United States Senate

1991 Certificate of Appreciation - National Association of Women in

Construction

1992 Government Award • Greater Rochester Metro Chamber of

Commerce

1996 Recognition Award - Monroe County Magistrates Association

1996 Distinguished Service Award - For Contribution to the Italian

American Community - Counsel General of Italy

1997 Certificate of Excellence - For support of the Rochester City

School District's Weapons Diversion Program

Bar Associations: List all bar associations, legal or judicial-related committees or

conferences of wtiich you are or have been a member and give the titles and dates

of any offices which you have held in such groups.

New Yoric State District Attorney's Association

Monroe County Bar Association

Ethics Committee -1986

Courts Committee -1990

Academy of Law Board of Governors -1995

Chairperson, Evidence Institute -1996
504

Association of Supreme Court Justices, Seventh Judicial District.

1993 to present

Association of Justices of the Supreme Court of the State of New York.

1993 to present.

Rochester Inns of Court. 1995 to present

Jury Advisory Committee. 1996 to present

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public txxJies. Please list all other organizations to which you

belong.

I am not a member of any organization which is active in lobbying before

public t>odies. As to other organizations, I am a member of the Health Club

of the Jewish Community Center.

11. Court Admission: List all courts In which you have been admitted to practice, with

dates of admission and lapses if any such memt)erships lapsed. Please explain the

reason for any lapse of memt>ership. Give the same information for administrative

bodies which require special admission to practice.

Admitted to practice in State of New York, Appellate Division, Fourth

Department - February 22,1977

Admitted to practice in United States District Court for the Western District of

New York - May 9,1977

12. Published Writings: List the titles, publishers, and dates of books, articles, reports,

or other published material you i:>ave written or edited. Please supply one copy of

all published material not readily available to the Committee. Also, please supply

a copy of all speeches by you on issues involving constitutional law or legal policy.

If there were press reports about the speech, and they are readily available to you,

please supply them.

"Prosecution of a Serial Killer", St Vincent's IHospital, Melbourne, Australia,

February, 1992, at Tab A

Rochesterian Magazine "View from the Bench" series, January, 1994, at

TabB

As to speeches, I have included the following:
505

Speech given at the 66th Dante Ball of the Italian Women'* Civic Club,

September 28,1971, at Tab C.

Speech given at the Monroe County Columbus Day Celebration, October 4,

1991, at Tab D.

Speech given at the Safety Council Luncheon, May 14,1993, at Tab E.

Speech given at the Families and Friends of Murdered Children and Victims

of Violence Dinner, May 27,1994, at Tab F.

Speech given at the 30th Firefighter of the Year Luncheon, October 13,1995,

at Tab G.

Presentation on Cameras in the Courtroom as part of the American Justice

Seminar at Fairport High School, April 26,1997, at Tab H.

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

examination.

Excellent

April 9,1997

14. Judicial OfTice: State (chronologically) any judicial ofTices you have held, whether

such position was elected or appointed, and a description of the jurisdiction of each

such court.

1993 to present New York State Supreme Court Justice Seventh Judicial

District

I currently serve as a New York State Supremo Court Justice in the Seventh

Judicial District This is the only Judicial position vi^ich I have held. I was

elected to a 14-year term In November 1992 and took office In January 1993.

The Supreme Court is the highest trial court in New York with general

jurisdiction relating to both criminal and civil matters. Since taking office, I

have been assigned to an IAS civil part, although I have presided over some

criminal cases as well. As of May 26,1997,1 began a full Ume assignment to

a criminal part
506

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

significant opinions you have written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or where your judgment was

affirmed with significant criticism of your substantive or procedural rulings; and (3)

citations for significant opinions on federal or state constitutional issues, together

with the citation to appellate court rulings on such opinions. If any of the opinions

listed were not officially reported, please provide copies of the opinions.

15(1)

(1). Citizens for a Safer Community; The Genesee Conservation League,

Inc., The Monroe County Conservation Council; The New York State

Rifle & Pistol Association, Inc.; The Shooters Committee on Political

Education, inc. (Monroe County Chapter); Leadloader Arms, Inc. d/tWa

American Sportsman; Frederick Calcagno; Steven C. DeMallie; and

Kurt Thomann - versus - The City of Rochester, New York; The Council

of the City of Rochester, New York; Thomas Ryan, as Mayor of the City

of Rochester, New York; Louis Kash, as Corporation Counsel for the

City of Rochester, New York; Roy Irving, as Chief of Police of

Rochester, New York; John Curran; Maxine Childress Brown; WtKle

Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla and

Robert Stevenson, as Memt>ers of the Council of the City of Rochester,

New Yort(.

Reported: 164 Misc 2d 822

(2) In the Matter of the Investigation into the Rape of Jane Doe, John

Horace, Respondent.

Reported: 168 Misc 2d 981

(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rivazfar, a Mirwr

Over the Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under

the Age of Fourteen Years - versus - Patricia An Rivazfar n/k/a Patricia

Ann Pafford and Ahmad Rivazfar

Unreported: Opinion at Tab I.

Modified _ AD2d _, 653 NYS2d 760, leave application to the New Yoik

Court of Appeals Granted NY2d 06/27/97

(4) Keigh Beth Kenyon - versus • Security Insurance Company of Hartford

(DPIC Companies) and William C. Larsen and William C. Larsen, P.E,

P.C. d/b/a Larsen Engineers/Architects

Reported: 163 Misc 2d 991, afTd 206 AD2d 980, Iv den 84 NY2d 813
507

(5) Maiden Lane Nelghbortiood Association; Franlc Andoiino; Emily

Andolino; Paul Andrea; Gay Andree; Burnett Barrett; Beverly Barrett;

Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Albert

Buettner; Joyce Buettner; Gloria Carpenter; Roliert Cross; Helene

Cross; Edward Croteau; Joanne Croteau; Elaine Cummings;

Ciiristopher Curatalo; Catlierlne Curatalo; Ciiarles Dennett; Matk

Eitjeiding; Madeline Ert>elding; Gerard Federation; Carole Federation;

Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French;

Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare;

Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine

Kurz; Roy LaFoice; Mary Ann LaForce; Lawrence Little; Beverly Little;

John Meagher; Jean Meagher; Marjorle Monte; Ait>ert Rehn; Mary Beth

Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice

Webber Till; Howard Wellzer; Beverly Weltzen Edward White; Ellen

White; Franl( Yanno; Carol Yanno; Individually and Wegman's Food

. Markets, Inc. - vereus - The Town of Greece; Roger Boily; Vincent B.

Campbell; Raymond S. DIRaddo; Joan T. Korsch; and Charles J.

Zicari, as and constituting the Greece Town Board; Maiden Associates;

and Mark IV Construction Co., Inc.

Unreported: Opinion at Tab J.

(6) In the Matter of the Application of Anthony L. Jordan Health Center,

Inc. - versus - Baitjara Ann DeBuono, M.D., as Commissioner of Health

of the State of New York, Brian Wing, as Acting Commissioner of Social

Services of the State of New York, and Patricia Woodworth, as Director

of the Budget for the State of New York.

Unreported: Opinion at Tab K.

(7) In the Matter of the Penfleld Tax Protest Group^'Phyilis Dann, Jim and

Carolyn Walton and Peter Sciortino, for Themselves and on Behalf of

All Othere Similarly Situated - vereus - Linda Yancey, the Assessor of

the Town of, The Town Board of tfie Town of Penfield and the Town of

Penfleld.

Unreported: Opinion at Tab L, afPd 210 AD2d 901, app. dism. 85 l4Y2d

903, Iv. den'd 86 NY2d 760

(8) Lawrence J. Demarse; John Sussek, Jr. and Marie Sussek d/b/a Sussek

Enterprises; Donald A. Robins; K.G. VanDlne, M.D., P.C; Troser Group,

Ltd,; Slocum Dickson Medical Group, P.C, Pension Fund; and Joseph

Komler, III, Individually and as Limited Parents of SImulnet East

Associates, a New York Limited Partnerehip, on t>ehalf of themselves
and all other Limited Partners of Simulnet East Associates, slmilaily

situated, and for the benefit and in the right of Simulnet East

Associates - versus - Simulnet East Associates, a New York Umited

Partnership; Simulnet, L.P.; Cabie/IMac Services, Inc., A. Ross

MacGregor; Vincent Laurendi; Donald E. Dillon; John B. Fisher;

Waldon S. Hayes, Jr.,; Parijat Capital, Ltd.; David P. Ott; J. Anthony

DiGuilio; Ashvin J. Zaveri; Bytex Corporation; Simulnet Corporation;

Jerry Nelson; and Jonathan S. Edwards.

Unreported: Opinion at Tab M.

(9) Iqbal Singh - versus - John Karte; Richard Passero; Ram Shrfvastava;

William Larsen, P.E., d/b/a Larsen Engineers.

Unreported: Opinion at Tab Mc, affd AD2d 07/03/97,1997 VWL

378479

(10) Richard D. Castle; William Gowgill; James C. Duffus; J. Allen Gray;

John W. Handy; James T. Henderson; William F. Holly; Jean Fox Lee;

Frank E. Luellen, Jr.; Douglas Martin; Newtin Y. Robinson; Rot>ert F.

Sykes; Herbert W. Vandenbrul; Nora Ward as Executor of the Estate of

Hawley Ward; Jessica W. Warren; Eugene S. Wetmore • versusAlexander and Alexander Services, Inc.

Unreported: Opinion at Tab N.

16(2)

(1) Funk v. Barry

The oral decision in Funk v. Barry, ^vhich granted plalntifTs motion

requesting that the Court sign a Judgment in this case and denied

defendant's cross-motion to dismiss the action as abandoned, was

reversed by the Appellate Division, Fourth Department in an Opinion

reported at 222 AD2d 1017.

The Appellate Division then denied piaintifTs motion for leave to appeal

by order reported at 1996 WL 192891. However, the Court of ApJMals

granted plalnttfTs subsequent motion for leave by order reported at 88

NY2d 809.

That Court reversed the decision of the /Vppellate Division and

reinstated the judgment in favor of the plaintiff in an opinion reported

at 89 NY2d 364. A transcript of my oral opinion is included at Tab O.
909

(2) Haifcer v. Rochester City School District, et al

HM decision in Haiker v. Rochester City School District, et al, denying

defendants' summary judgment motion, was reversed by the Appellate

Division, Fourth Department, in an opinion dated July 3,1997, reported

at AD2d , 1997 WL 373747. A copy of my decision is included

at Tab P.

(3) Rennoldson v. Voipe Realty Corp., at al.

The decision in Rennoldson v. VoIpe, et al. granting plaintHTs motion

for summary Judgment on a Labor Law section 240(1) cause of action

and denying defendants' motion for summary dismissing that cause

was reversed by the Appellate Division, Fourth Department in an

opinion reported as Rennoldson v. James J. Voipe Realty, et al., 216

AD2d 912.

The parties settled the case while piaintifrs motion for leave to appeal

was pending. The application for leave was dismissed. That dismissal

was reported at 86 NY2d 837. A copy of my written decision is included

at Tab Q.

(4) Schiffman v Spring, et al.

The order denying defendants' summary Judgment motion was

reversed by the Appellate Division, Fourth Department in an opinion

reported at 202 A02d 1007. A copy of my order is Included at Tab R.

16(3)

(1) Citizens for a Safer Community; The Genesee Conservation League,

inc., The Monroe County Conservation Council; The New Yor1( State

Rifle & Pistol Association, Inc.; The Shooters Committee on Political

Education, Inc. (Monroe County Chapter); Loadloader Amis, Inc. d/b/a

American Sportsman; Frederick Calcagno; Steven C. DeMaliie; and

Kurt Thomann - versus - The City of Rochester, New York; The Council

of the City of Rochester, New York; Thomas Ryan, as Mayor of the City

of Rochester, New York; Louis Kash, as Corporation Counsel for the

City of Rochester, New York; Roy Irving, as Chief of Police of

Rochester, New York; John Curran; Maxine Chiidress Brovm; Wade

Norwood; Tim Mains; Benjan^n Douglas; Lois Gless; Nancy Padiila and

Robert Stevenson, as Members of the Council of the City of Rochester,
610

New York.

Reported: 164 MIsc 2d 822

(2) In the Matter of the Investigation into the Rape of Jane Ooe, John

Horace, Respondent.

Reported: 168 Misc 2d 981

(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rlvazfar, a Minor

Overthe Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under

the Age of Fourteen Years - versus - Patricia An Riviufar n/k/a Patricia

Ann Pafford and Ahmad Rlvazfar

Unreported: Opinion at Tab i.

Modified _ AD2d _, 653 NYS2d 760, leave application to the New York

Court of Appeals Granted NY2d 06/27/97

(4) Maiden Lane Neighborhood Association; Frank Andolino; Enilly

Andolino; Paul Andree; Gay Andree; Burnett Barrett; Beverly Barrett;

Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Alt>ert

Buettner; Joyce Buettner; Gloria Carpenter; Robert Cross; Helene

Cross; Edward Croteau; Joanne Croteau; Elaine Cummings;

Christopher Curatalo; Catherine Curatalo; Charies Dennett; Mark

Eitielding; Madeline Erbelding: Gerard Federation; Carole Federation;

Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French;

Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare;

Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine

Kuiz; Roy I^Force; Mary Ann LaForce; Lavirrence Little; Beveriy Little;

John Meaghen Jean Meagher; Marjorie Monte; Albert Rehn; Mary Beth

Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice

Webber Till; Howard Weltzer; Beveriy Welt^er; Edward White; Ellen

White; Frank Yanno; Carol Yanno; individually and Wegman's Food

Markets, Inc. - versus - The Town of Greece; Roger Bolly; Vincent B.

Campbell; Raymond S. DIRaddo; Joan T. Korsch; and Charies J.

Zicari, as and constituting the Greece Town Board; Maiden Associates;

and Mark iV Construction Co., Inc.

Unreported: Opinion at Tab J.

(5) In the Matter of the Application of Anthony L. Jordan Health Center,

inc. - versus - Barbara Ann DeBuono, M.D., as Commissioner of Health

of the State of New York, Brian Wing, as Acting Commissioner of Social

Services of the State of New York, and Patricia Woodworth, as Director

of the Budget for the State of New Yori(.

Unreported: Opinion at Tab K.
511

(6) In the Matter of the Penfield Tax Protest Group, Phyllis Dann, Jim and

Carolyn Welton and Peter Sclortino, for Themselves and on Behalf of

All Others Similarly Situated - versus - Linda Yancey, the Assessor of

the Town of Penfield, The Town Board of the Town of Penfield and the

Town of Penfield.

Unreported: Opinion at Tab L, afTd 210 AD2d 901

(7) In the Matter of the Application of Karen Noble Hanson, Petitioner, v.

Marguerite L. Relin and Ronald Starkweather, Commissioners of the

Monroe County Board of Elections and Kevin Murray, Respondents.

For a Judgment invalidating the designating petitions filed with the

Board of Elections, nomination Kevin B. Murray, Respondent, as a

Democratic candidate for Mayor of the City of Rochester, State of New

York, in a primary election to be held on September 14,1993.

Unreported: Opinion at Tab S.

(8) Sabrina Johnson, Plaintiff, v. City of Rochester, Defendant

Unreported: Opinion at Tab T.

16. Public Office: State (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.

1977 -1992 I held the appointed position of Assistant District Attorney

in the Monroe County District Attorney's Office In

Rochester, New York.

November 1991 I ran unsuccessfully for the position of New York State

Supreme Court Justice, 7th Judicial District
512

17. Leoal Career

a. Describe chronologically your law practice and experience after

graduation from law school including:

1. whether you served as clerk to a judge, and if so, the name

of the judge, the court, and dates of the period you were a

clerk;

I did not serve as a Clerk to a Judge.

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

dates;

I did not practice alone.

3. the dates, names and addresses of law firms or offices,

companies or governmental agencies with which you have

l>een connected, and the nature of your connection with

each;

1977-1992

Monroe County District Attorney's Office

201 Hall of Justice

Rochester, New Yoric 14614

I served as an Assistant District Attorney.

From 1984 through 1992, I served as Rrst Assistant

District Attorney

1993 - Present

New Yor1( State Supreme Court Justice

400 Hail of Justice

Rochester, New York 14614

In NovemtMr, 1992,1 was elected to serve as a New Yorit

State Supreme Court Justice in the Seventh Judicial

District for a 14 yearterm and took office In January 1993.

b. 1. What has t>een the general character of your law practice,

dividing it into periods with dates if its character has changed

over the years?

My entire career as a practicing attorney from 1977

through 1992 was spent in the Monroe County District

Attorney's Office.
513

2. Describe your typical former clients, and mention the areas, if

any, in wtiich you have SF>ecialized.

As a Monroe County Assistant District Attorney, i

prosecuted cases on t>ehatf of the Peopie of the State of

New York. My area of specialization was criminal law, and

i routinely interacted with both victims of crimes and

witnesses to crime.

c. 1. Did you appear in court frequently, occasionally, or not at all?

If the frequency of your appearances in court varied, describe

each such variance, giving dates.

As an Assistant IDistrlct Attorney, I frequently appeared in

court

2. What percentage of these appearances was in:

(a) federal courts; 0%

(b) state courts of record; 100%

(c) other courts. 0%

3. What percentage of your litigation was:

(a) civil; 0%

(b) criminal. 100%

4. State the number of cases in courts of record you tried to

verdict or judgment (rather than settled), indicating whether

you were sole counsel, chief counsel, or associate counsel.

i tried to verdict approximately 100 felony cases where i

was soie trial counsel. I was also sole trial couns^ on

numerous misdemeanor and vioiation cases.

5. What percentage of these trials was:

(a) jury; 95%

(b) non-jury. 5%

18. Litioation: 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 ttie party or parties whom you represented; describe in detail the nature of

your participation in the litigation and the final disposition of the case. Also state

to each case:

(a) the date of representation;

(b) the name of the court and the name of the judge or judges before
514

wtiom the case was litigated; and

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

In each case, I was sole trial counsel for the People.

1. People V Arthur Shawcross

SeptemtMr 17,1990 - December 13,1990

Indictment #058

Filed 01/23/90

Murder in the Second Degree (10 counts)

Court: Monroe County Court

Presiding Judge: Honorable Donald J. Wisner

Defense Attorneys: David A. Murante, Esq.

700 Wilder Building

Rochester, NY 14614

(716) 232-6830

Thomas J. CocuzzI, Esq.

700 Wilder Building

Rochester, NY 14614

(716) 232-6830

Reported: 192 AD2d 1128; Iv den 82 NY2d 726

SUMMARY:

Shawcross, a serial killer, was responsible for the deaths

of 11 women. He was on parole to the Rochester area

having been convicted 18 years eariier for the sexual

assault and slaying of an 8-year-old giri. At that time,

Shawcross also admitted to the death of a 10-year-old

boy.

The victims in Rochester included prostitutes and street

people, ranging in age from 22 to 59 years old. At trial,

Shawcross claimed an insanity defense and offered an

expert witness, Dr. Dorothy Otnow Lewis. Dr. Lewis

claimed that Shawcross, due to physical and sexual abuse

that he suffered as a child, as well as a brain injury that

resulted in complex partial seizures, was not responsible
515

for his conduct in Idliing the women. Dr. Lewis submitted

tapes of interviews with Sliawcross which she maintained

were conducted under hypnosis, it was aiso maintained

that Shawcross cannibaiized two of his victims In

Rochester, and previously cannitwiized Viet Cong women

while serving in the U.S. military in Viet Nam. The

cornerstone of Dr. Lewis' defense of Shawcross was her

premise that he suffered from dissociative states akin to

multiple personalities. The prosecution countered with Or.

Park Dietz, an expert in forensic psychiatry, wtw

challenged Dr. Lewis' findings and offered the opinion that

Shawcross was, at tiest, an anti-soclai personality. In

December 1991, Shawcross was found guilty charged.

2. People V Rot>ert Ahalt and Carl "Butch' Campbell

January 19,1988 - March 9,1988

Indictment #834

RIed 11/13/86

Murder in the Second Degree (11 counts); Arson in the

Second Degree; Arson in the Third Degree (2 counts)

Court: New York State Supreme Court

Presiding Judge: Honorable Donald J. Mark

Defense Attorneys: Culver K. Barr, Esq.

1025 Reynolds Arcade Building

' Rochester, NY 14614

716-454-7672

Felix V. Laplne, Esq.

One East Main Street

Suite 711

Rochester, NY 14614

716-454-6690

Reported:

People V Ahalt, 139 Misc 2d 863; 170 AD2d 982, Iv

den 78 NY2d 953

People V Campbell, 139 Misc 2d 863; 170 AD2d 982.

Iv den 78 NY2d 963

SUMMARY:

Ahalt and Campbell were convicted of murdering five

people during a 48-hour period. Among their victims were
516

three people, one male aged 56 and two females, aged 74

and 75, all who were bludgeoned to death. The following

day they killed a 28 year old female. Prior to killing her,

tfie defendants forced her to Ingest glass, broke bottles in

i>er face, and stabbed her seventh-month-old fetus with a

coat hanger. Her body was mutilated after her murder.

That same day at a different location, anottier female,

acquainted with the defendants, was beaten to death by

Ahalt. Following all the homicides, Ahalt and Campbell

attempted to cover their crimes by setting ttie murder sites

on fire. In the second double-jury trial ever to be held In

New York State, twth men were convicted of multiple

counts of murder. Ahalt was found guilty on March 9,

1988 and Campbell was found guilty on March 10,1988.

3. People v Richard Mainprize, Jr.

March 15,1984 - March 27,1984

Indictment #907

Filed 12/30/82

Murder In the Second Degree (3 counts)

Court: Monroe County Court

Presiding Judge: Honorable Charies T. Maloy

Defense Attorney: Vincent Rizzo, Esq.

200 Hall of Justice

Rochester, NY

716<418-5616

Reported: 134 AD2d 943, Iv den 71 NY2d 899

SUMMARY:

Mainprize was convicted of murder in the death of Diane

Mariowe, a 22-year-old female. Mainprize beat and

strangled Ms. Mariowe. After killing her, Mainprize placed

Ms. Mariowe's naked t>ody in an abandoned refrigerator.

At trial, Mainprize claimed Insanity, saying he watched a

"black form" perform the homicide acts. The insanity

defense was rejected. Mainprize was found guilty of

murder in the second degree on March 27,1984.
517

4. People V. Nathaniel Lee Jones

September 2,1987 - September 21,1987

Indictment #918

Filed 12/23/86

Burglary In the First Degree (10 counts); Rape in the First

Degree (12 counts); Sexual Abuse In the First Degree (5

counts); Attempted Rape In the First Degree (4 counts);

Robbery in the First Degree; Sodomy In the Rrst Degree

(4 counts); Petit Larceny

Court: Monroe County Court

Presiding Judge: Honorable Donald J. Wisner

Defense Attorney: Norman A. Palmiere, Esq.

205 St Paul St

Suite 300

Rochester, NY 14604

716-232-6144

Reported: 162 A02d 984, Iv den 74 NY2d 812

SUMMARY:

Jones, who became known the "Northeast Rapist", was

Involved In 10 separate incidents of burglary, rape,

sodomy and sexual abuse that occurred over a 9-month

period from April 1986 through December 1986. His

victims ranged in age from 9 to 26. On September 21,

1987, he was convicted of 37 counts of sexual assault and

burglary.

5. People V Anthony J. Salem, Jr.

July 11,1988 - July 18,1988

Indictment #734

Filed 10/08/87

Burglary In the First Degree (5 counts); Burglary in the

Second Degree; Rape in the First Degree (4 counts);

Sodomy in the First Degree (11 counts); Sexual Abuse In

the First Degree (12 counts); Petit Larceny (4 counts)

Court: New York State Supreme Court

Presiding Judge: Honorable Eugene W. Begin
518

Defense Attorney: Thomas J. Kidera, Esq.

10 North Fitzhugh SL

Rochester, NY 14614

716-428-5642

Reported: 167 AD2d 840, Iv den 77 NY2d 911

SUMMARY:

Saletn was a serial rapist who was convicted of burglary,

rape, sodomy and sexual abuse. Over a six-month period,

he sexually assaulted six different victims who ranged in

age from 24 to 46. On July 18, 1988, Salem was found

guilty of a 37-count indictment

6. People v Bruce W. Walden

August 25,1986 - September 4,1986

Indictment #877

Filed 11/27/85

Murder in the Second Degree (3 counts)

Court: New York State Supreme Court

Presiding Judge: Honorable Donald J. Marti

Defense Attorney: Edward F. Scanlan, Esq.

10 North Fitzhugh St.

Rochester. NY 14614

716-428-5210

Reported: 148 AD2d 971, tv den 75 NY2d 819

SUMMARY:

Walden was convicted of murder in the death of 11-yearold Sunshine McKendree. The child's body was found on

an abandoned railroad track, nude from the waist down,

with a red scarf wrapped tightly around her neck, dead

from strangulation. On September 4, 1986, Walden was

convicted of murder in the second degree for intentionally

killing the child during a rape attempt
519

7. People V David R. Larson

September 26,1985 - October 10,1985

Indictment #191

Filed 03/29/84

Murder In the Second Degree

Court: New York State Supreme Court

Presiding Judge: Honorable David O. Boehm

Defense Attorney: Michael Couture, Esq.

Unknown - Moved out of State

Reported: 145 AD2d 976, Iv den 73 NY2d 1017

SUMMARY:

Larson was convicted of murder In the death of Tracy

Kotllk, a 14-year-old female. Larson killed the girl by

slashing and stabbing her 18 times with a knife. Larson

submitted an Intoxication defense at trial, but it was

rejected by the jury. On October 10, 1985, Larson was

found guilty of murder in the second degree.

8. People V Thomas Taylor and Thomas Torpey

Indictment #433

Filed 06/10/82

Murder in the Second Degree

Court: New Yoik State Supreme Court

Presiding Judge: Honorable Robert P. Kennedy

Defense Attorneys: Robert H. Murphy, Esq.

6461 Main SL

Williamsviile, NY 14221

716-634-6760

David A. Murante, Esq.

700 Wilder Building

Rochester, NY 14614

716-232-6830

Reported:

Taylor 155 AD2d 980, Iv den 75 NY2d 818, cert

den'd Taylor v. New York, 496 US 926

Torpey: 168 AD2d 916,1v den 77 NY2d 967
520

SUMMARY:

Taylor and Torpey, members of an organized crime

faction, were convicted of murder in the second degree in

connection witti the shotgun slaying of John Fiorino.

Taylor and Torpey contracted a hitman to l<ill Rorino, who

was a member of a rival mob. Both defendants were

found guilty on March 12,1986

9. People V Robert Rellly

October 21,1985 - November 11,1985

Indictment #004

Filed 01/11/85

Murder In the Second Degree (4 counts)

Court: Monroe County Court

Presiding Judge: Honorable Andrew G. Celli

Defense Attorney: Thomas J. Kidera, Esq.

10 North Fitzhugh St

Rochester, NY 14614

716-428-5642

Reported: 155 AD2d 961, Iv den 75 NY2d 923

SUMMARY:

Rellly, 43, was convicted of four counts of murder In

connection writh the death of his wife, 31, and his three

children, ages 3, 6 and 8. Rellly killed his wife by cutting

her necl< and striking her with a hammer. Then he

drovmed his three children in the upstaire bathtub. At

trial, Rellly claimed insanity, saying he was not

responsible for his conduct due to nu^or depression. The

insanity defense was rejected and on November 8,1985,

Rellly was found guilty of four counts of murder In the

second degree.
521

10. People V Kurtis Brown, Thaxton Hamlln and Billy Joe

Green

Indictment #088

August 20,1984 • September 4,1984

January 3,1989 - January 10,1989 (retrial of Kurtis Brown

only)

indictment #088

Filed 02/08/83

Murder in the Second Degree (2 counts)

Court: New York State Supreme Court

Presiding Judge: Honorable Eugene W. Begin

Defense Attorneys: Lawrence J. Andollna, Esq.

130 East Main St

Rochester, NY 14614

716-232-4440

Sidney T. FartMr, Esq.

2140 Penfield Rd.

Penfield. NY 14526

716-377-6990

Michael T. DiPrima, Esq.

2024 West Henrietta Rd.

Unit 3-G

Rochester, NY 14623

716-292-0170

Reported:

Brown: 124 AD2d 973, rev 71 NY2d 750,170 AD2d

955, iv den 78 NY2d 962

Hamlln: 131 AD2d 200, affd 71 NY2d 750

Green: 147 AD2d 955

SUMMARY:

Brown, Hamlln and Green were convicted of murdering

Brown's 21-year-old wife, Susan. Brown plotted to have

Hamlln and Green kill Mrs. Brown to obtain the proceeds

from her $100,000 insurance policy. Brown arranged an

alibi for himself while Hamlln and Green carried out the

killing by stabbing the victim more than 30 times and
hitting her with a cane. On September 4, 1984, all three

were convicted of murder in the second degree. Brown's

conviction was reversed liecause of a Bniton issue.

Specifically, sutisequent to the trial, retroactive effect was

given to an appellate decision limiting interiocMng

confessions. However, Brown was retried and again

convicted of murder in the second degree on January 10,

1989.

19. Legal Activities: Describe the most significant legal activities you have pursued,

including signrficant litigation wtiich did not progress to trial or legal matters that did

not involve litigation. Describe the nature of your participation in this question,

please omit any information protected by the attorney-client privilege (unless the

privilege has been waived.)

During my tenure as First Assistant District Attorney, I was on-call 24 hours

a day, 7 days a week for all homicides that occurred within Monroe County.

It was my responsibility, if called, to report to the scene and act as a legal

advisor to ttie investigating police agency, i would estimate that I respocHled

to 250 to 300 homicide scenes, and at various times I assisted the police in

drafting search warrants, conducting lineups, and in making decisions

relating to anrest and probable cause.

Further, as First Assistant, I had supervisory and administrative

responsit)ilities in ttie office and acted as the District Attorney in his absence

from the County. I also handled a number of cases that resulted in pleas prior

to trial and was assigned several Grand Jury investigations.

Finally, I have provided legal instruction on various occasions. I was a

volunteer instructor at a trial advocacy seminar, presented by the Monroe

County.Bar Association and sponsored by ttte National Institute for Trial

Advocacy. Also, in conjunction with my responsibilities as First Assistant

District Attomey, I provided recruit instruction and In-service training for

police officers at the Monroe Community College Criminal Justice and Public

Safety Training Center. Additionally, I have provided training for volunteer

counselors at Rape Crisis. Most recentiy, I chaired the Evidence Institute,

sponsored by the Monroe County Bar Association.
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 t>enefits

wtiich you expect to derive from previous business relationships, professional

services, firm memt>erships, former employers, clients, or customers. Please

descritie the arrangements you have made to be compensated in the future for any

financial or business interest.

Based on my 20 years of public service, I will be eligible at age 62 to receive

retirement benefits from the New York State Retirement System. The yearly

amount would be approximately 40% of my current salary. As an Assistant

District Attorney, I participated in a deferred compensation plan through the

County of Monroe, and as a Supreme Court Justice, I participated in a

deferred compensation plan through the State of New York. As of June 30,

1997, the fund value of my County deferred compensation plan was

$124,365.83. As of that same date, the value of my State deferred

compensation plan was $44,832.42. I was eligible to receive the monies on

deposit In the County plan when I left County employment However, I

decided to maintain the account With respect to the monies on deposit in the

State deferred compensation plan, I would be eligible to receive those when

I leave State employment Prior to the institution of a deferred compensation

plan in Monroe County, I contributed to an IRA. As of June 30,1997, the value

of that IRA was $16,214.00.

Explain how you will resolve any potential conflict of interest, including the

procedure you will follow In determining these areas of concern. Identify the

categories of litigation and financial arrangements that are likely to present potential

conflicts-of-interest dunng your initial service in the position to which you have been

nominated.

Since I have served as a New York State Supreme Court Justice for the last

four and a half years, I don't t)eileve that there are any such potential conflicts

of interest However, I will, of course, follow the guidelines of the Code of

Judicial Conduct

Do you have any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during your service with the court? If

so, explain.

I do not
524

List sources and amounts of all Income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding $500 or more (If you prefer to do so, copies of the financial disclosure

report, required by the Ethics in Government Act of 1978, may be substituted here.)

Please see attached copy of my Financial Disclosure Report

Please complete the attached financial net worth statement in detail (Add schedules

called for).

Please see attached Net Worth Statement

Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign. Including the candidate, dates of the

campaign, your title and responsibilities.

Other tttan my own campaigns for New Yoifc State Supreme Court in 1991 and

1992,1 have not
525

FINANCIAL DISCLOSURE REPORT

Nomination Report

nabra>A>tffMlin*LNg.

Wf-fMMnntarmiMl

fiUAC Api).4,Sto. nt-lt3)

Siraguaa, Charles J.

i.e«i«t«roi|i«<iei [I

US District Court/Weetern NT

>.IM>o«niaM

07/16/1997

•MbritttN; fli«B

I. Riport1>p« (ceacft typit

JH N-Mta. n* 07/15/1997

U.S. District Court Judge

01/01/1997

b

06/30/1997

d In llMRiiport Mid Mif

400 Bell of Justice

Rochester, New Tork 14614

aKXnXNT NOTES: ni«>iiti»cfcm«>o«i»l|*8Wm»iiii»Kt»«*iinil Cnivek afpHtt

NAME OF ORGANIZATION / ENTITY

L POSmONS (m>«ei»>miM*oi«y:M«pp.»-«<i

• POSITION

HOIK (HonpabttapoieMia.)

' Advisory Board Member Faailiee i Friends of Murdered Children

< and Victins of Violence

I. AGREEMEffTS (Rv<>*>gl«M>>lan«;aM(*iM-f7irMMice>iiJ

DATE PARTIES AND TERMS

KMC (No

' Pension NTS Retireaent System

(eligible to receive benefits at age 62)

GROSS INCOME

B. NON-INVESTMENT INCOME (Wipc»«ng »»*««( »rf«pom«:»«« dp. iMamjmnjainj

DATE PARTIES AND TERMS

I |"0W (NoiapWHOnoMmMoMtnoniK)

I 1996 State of New Tork-Salary/MTS Supreme Court Justice $ 112,430.00

t 1995 State of New Tork-Salary/NTS Supreme Court Justice S 112,287.00

i
526

VKAMOAI. DBCXOSOBB RKFORT Slragusa, Charlea J. 07/l«/l»»

IT. KKIMBUBSEMEMrTS and GDIS -

md^trmtmin Lmill it J»«p.lui^u

SOURCX D' t 0*» •Mil

V. OTHEK GIFTS

SODKCE D'I NOW Ob-iknfnIiMsfiM

VL LUBIUTIES

0M*ito*Mr^9<MM«WrfqMHtfairdUUnn,- WleM» »*OT^yawM«.^<CT—)ni»iiftfi JbritoW(»*y Mrtj^Af/ii«i*i*r«f'PJ')*^*

• ^ CREDITOR

t {No

DESCRIPTION VAUKCOOr

vALCcra>J>iMjW>ofii» K-tajm-txjaa L-t]0,OOI«>S100.000 M«S10Q;OOI42)0,000 tt-SlMJIOI-tXaX»

n»*sjooijooi-93ijooojooo n^tujaoojonjnojxajaoo r4-ssQ;ooo^i«raM
527

„.^-., T^'" «rsr5s 5s»;3w D^snnss »,u>,«<u>oo W1.1M) F-aWMIOMW <M,«wmjMUm Hl-tlW/IOI-njOOJOO R>^,I»)(W, .^

'J***!^ *|*"*""'~ WfiSrSoSo MJOJKUIOOW U-SIOOMl-DKHOOO M-»Xll»l-t90IUI<»~

ioi.ci.ni) o-cimwutMMw M-n.M^»„.o,wm», B,BJX„„,.O5«<WO n-tajiMim.actoi»m H-tacjuapn r

ITJMfcfl I n I r~:r : : ; ^_

ffM.(3}
528

WttWCUL BMCL060BE BBtQBT I aix»gaa»,

Vn. ftt» lINVESniENTSMd TStBTS

Cliaxlea J. 07/1C/19S7

Ji*Mri**v ^HF*iMi «»•*

l»lyi.<i»ilW

11 —tfUM* IiM h Dlyldwl

20 —rmr equity InrBMi Fund

Zl —TXP Znt«m«tlcMMl Stock

Z2 —VinaiMi<d GM«1

•" ' • l« I ••! II

<D

1>f>

ii>«MiO>teA-*i,i»o«i_ »«jMi-AMO otun^um D-ajm-tOfiu

tat.Bi.tyn r^sajm-mojai o-twwi-iWMoo m-<uo4a»4MnsM iD-n«(«ii««i

'•°"^ >4""<»«i- K-nuoi-tso^ UvUnSnm SiiSSrSSSor .

««>tci.DB o-catMi-suMMoo n-»i.o<»w)i-ta,Mo.aoi) n-«;mu«i-siwo<ing n-e],ooaA>i-t90L<ioo.oao r*«t«Mn«•
529

nUMOAL DBOJOSUSB SKFOKT Sira^usa, Charl«a J. 07/16/1997

Vm. ADDITIONAL HOOBMAIION OK EXPLANATIONS.
raUNCUI, DISCXOSOBB RKFOKT Charles J. 07/16/1997

a. cxsnncATioN

InoainpUaiicewiltatbepn)visla«of28U.S.C. 4S5iiidof Advisory Opinion No. STofdieAdvisaiyCoiiimlaeeaa

}iididil Aoivitics, and to Ite ben of my knowledge at dK doe ifter reasonable inquiry. I did not palbrm any a^wScaary

Amciian in any Urtpitlofi duriof die period covered by tbis report in wliicb I, my spouse, or my mioor or dttitialm cUldRa

tiad a financial intetot, as defined in Canon 3C(3Xc), in die outoome of such lliigirtnn

I oertiiy dai all the taiftnmaiion given alxnre (indnding inlbrmation pertaining to my sponae and minor or *|«'«*"i

diDdren, if any) is accanilc. trie, and complete to die besi of my Imowiedge and belief, and dm any infiHinatian not tepamd

was withbeid l)ecause it met applicable stamtory provisioos permitting non-disdosure.

I linther certify tbat earned faicome tmm outside mpkiymem and honoraria and the acceptance of gUb whidi have been

leponed ate hi compliance with ihe provisiODS of 3 U.S.C. app. 4, section SOI et. seq., S U.S.C. 73S3 and Jodidai

Confeience regulations.

Signature QJIHASJ'M'^ hmaiunj Date 7//(,/y7

Any hidividaal who knowingly and wiliully falsifies or &ils to file this report may be subjea to civil

and ounhial sanctions (S U.S.C. App. 4, Section 104).

nuNG iN5ntncnoNS

MaO origiaal tad tbnt additional copica to:

CoomitScc oa itaaodaJ Diacloaare

AdiolaiitnllTC Oflke of the Dotted Stala Coorla

Oac Cotmbn Oidc NT.

SaHc 1-301

>,D.CiaS44
8n

FINANCIAL STATEMENT

NET WORTH

Provide a complete, ciment finanriil net wonfa stuement which itemizes in detiS

ill issets Occluding bank accountk, real estate, tecunties. tnuts, investments, and other finmiriii

lioldings) all Uabiliiies Oncluding debts, mortgages, loans, and other finandal oUigadons) of

yomielf, yotii tpoiise, and other immediile members of your household.

ASSETS 1 UAIILmES •

''^

Cuk oc Ur'tnd B buts 21 323I 61 Nola ixyillk 10 bub-uewed 0

as. GoTcnnait Mooniio-«ld

217 71 25

Noi£i ptTibk 10 bttka-wusand

0

limd Moairirf • irtrl icfaodiile ^f£ •jy* KMO F<)IU< U itlitiTa 0

0 Now payibU 10 oOcn 0

1

1

0

Aceouau •Al bjllt due 0

Uspul ioBiaM ox 0

DxtenodMn O0»r mpdd US lad faloal 0

Dosbcfttl Xul ttlau Bontifa pqrddc-Kld

•d»U< SEE -B* 155 000 00

Sul csuir onc«-^ld Klu<U<

210 00( 00

Quid Bomiin aadolla Ecbi ft-

•Idc

Rul ouic Bortaifcs nocivable 0

OchaiHlw-iWnlTT40 ao( 00

CtA Taloc-Gle iasanacx 2 20( 00

Olfcg inm-iumfTr- 0

f

-

TouIEsbililia 155 000 00

•• Kct Worth 336 094 86

Tbul AXttU 491 094 86 Tool UiUilka ud oa nnii 491 094 86 ""

COKIWOENT UABIUnES CEKERALINTORMATION

Ai aatfono. eoutB«imnan

0

An uy uea |l«I(e<0 (Add «iKd- NO

OtkuaaamnOi

0 •cdoaO NO

LcfdOnfln 0 Km r> «w>*> •ooixir'^ NO _ ___-

FrariikB EDC FMcnl bcoau Tiz

1 Olio IliBUl MX Pl 1 J
SCHEDULE A

I. Merrill Lynch

A. Ready Asset Trust 7,215.00

B. Mutual FurxJs

1. Putnam Utilities Growth andlncome

Fund Class A 71.00

2. Putnam Global Growth Fund Class A 10,363.00

3. MFS Municipal Income FD Class B 13.426.00

Total 31,075.00

II. Merrill Lynch

A. Alliance Income Builder Class C 7,389.00

B. ML Global Allocation B 8.825.00

Total 16,214.00

III. Common Stock

Work Recovery New 1,084.00

IV. Deferred Compensation - County of Monroe - PEBSCO

A. Putnam Investors Fund Class A 34,917.71

B. Fidelity Equity - Income 33,485.78

C. American Century, 20th Century WLTRA 28,912.59

D. Templeton Foreign Fund, Class I 27.049.75

Total 124,365.83

Defen-ed Compensation - State of New York - The

Copeland Companies

A. Stable Income Fund 16,310.29

B. Janus Fund 727.11

C. TRP Equity Income Fund 9,935.49

D. TRP International Stock 8,520.16

E. Vanguard GNMA 9,939.37

Total 44,832.42
688

SCHEDULE B - REAL ESTATE

Residence: Webster, New Yoilc 14580

Fair Market Value: $210.CXX)

Mortgage Loan: $155,000

Mortgage: Standard Federal Bank

Savlngs/Finakaal Services

45-964 98-18
684

III. GENERAL (PUBLIC)

An ethical oonsideratlon 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." Descrit>e what you have done to fulfill these responsibilities, listing

specific instances and the amount of time devoted to each.

From 1984 through 1992, while a member of the Monroe County District

Attorney's Office, I served on the Rape Crisis Advisory Board, and also

provided legal instruction for volunteer counselors with that organization.

From 1988 through the present, I have participated in the Mentor Program

sponsored by the Board of Cooperative Educational Services by providing

guidance for students interested In careers in law and criminal justice.

Beginning in 1991,1 became involved in the Community Reading Program

sponsored by the Rochester City School District In conjunction with this

program, I had the opportunity to read to inner-City school children at the

primary level to encourage their interest In learning through reading. Since

1992,1 have participated in police civilian academies, sponsored by various

law enforcement agencies within Monroe County. The purpose of these

academies is to foster better relationships between the police and the

communities they serve. In 1992,1 began assisting Families and Friends of

Murdered Children and Victims of Violence, an organization started by a

mother whose son had t>een murdered in the City of Rochester. On t>ehalf of

this group, I have spoken to teenagers on the impact of violence, based on my

experience as an assistjint district attomey and as a judge. Presently, I serve

on the Advisory Board for this organization. Since 1993,1 have been active

in the Weapons Diversion Program of the Rochester City School District In

connection with this program, I have spoken to inner-City students,

suspended from school because of weapons possession, and their parents,

about the potential consequences of such conduct, as well as the mutual

responsibility to foster a safe environment for learning in our schools. Since

1994,1 have been involved in the Park Ridge Chemical Dependency Outreach

Program. I have met with high school students in the program, as well as

their parents, and discussed the legal ramifications and reasons behind drug

and alcohol abuse. Finally, i am currently a member of the Monroe County

Criminal Justice Council, a group comprised of professionals from various

discipline, which monitors criminal justice issues.
535

2. Tbe American Bar Association's Commentary to its Code of Judicial Conduct states

that It is inappropriate for a judge to hold memt>ershlp In any organization that

invidiously discriminates on the thesis 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 requirements or tfie practical Implementation of membership policies?

If so, list, with dates of membership. What you have done to try to change these

policies?

I do not, nor have I ever belonged to any such organization.

Is there a selection commission In your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did It recommend your nomination? Please

descritM your experience In ttie entire judicial selection process, from beginning to

and (including the circumstances which led to your nomination and interviews In

which you participated).

Yes, there Is. The process started with the Committee on the Judiciary for

Senator Daniel Patriclc Moynlhan. The Committee required the submission of

a detailed "Candidate's Questionnaire" followed by an Interview. At my

Interview, which occurred in New York City, the Committee members

titoroughly questioned me at>out my qualifications, experience and

background. After completing interviews with all candidates, the Committee

recommended certain Individuals to Senator Moynlhan. I was one of the

Individuals recommended, and was subsequently Interviewed by Senator

Moynlhan himself in Washington. Approximately two weeks later. Senator

Moynlhan Informed me that he would be recommending me to President

CUnton for appointment as a Federal District Court Judge. Shortly ttiereafter,

I received various forms from tiw Office of Counsel to ttte President, Including

ttie American Bar Association Questionnaire and the F.B.I. Standard Form 86.

After completion of these forms, I was Interviewed extensively In Washington,

D.C. by memt>ers of the Department of Justice, and next. In Rochester, New

York, first by a representative of the F.B.I., and then by a representative of the

American Bar Association. With respect to the A.B.A. Investigation, I was

informed thtrt I was rated well qualified for the appointment Rnally, on July

IS, 1997, I was notified by the White House Counsel's Office that President

Clinton was nominating me for the position of United States District Judge for

ttie Western District of New Yoric
586

Has anyone involved in the process of selecting you a judicial nominee discussed

with you any specific case, legal issue or question in a manner that could

reasonably be interpreted as asking how you would rule on such case, issue, or

question? If so, please explain fully.

No.

Please discuss your views on the following criticism involving "judicial acUvism."

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

alieges that the judicial branch has usurped many of the prerogatives of other

branches and levels of government

Some of the characteristics of this "judicial activism" have been said to include:

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

grievance-resolution;

b. A tendency by the judiciary to employ the individual plaintiff

a vehicle for the imposition of far-reaching orders extending

to broad classes of individuals:

c. A tendency by the judiciary to impose broad, affirmative duties

upon governments and society;

d. A tendency by the judiciary tovrard loosening jurisdictional

requirements such as standing and ripeness; and

e. A tendency by the judiciary to impose itself upon other

institutions in the manner of an administrator with continuing

oversight responsibilities.

I believe in our tripartite system of government. The stror>g

presumption of constitutionality of legislative acts compels trial courts.

In the absence of a clear showing of conflict with the Constitution, to

determine and give full force and effect to legislatiye Intent. Adherence

to this rule Is necessary to ensure that our representative government

works and works well. Trial courts need to appreciate their

Jurisdictional limitations. While the constitutionality of legislative

enactments may property t>e the subject of litigation, a review of tlw

"wisdom" of such legislation, state or federal, is not
537

Cases in trial courts, in my experience, involve the assertion of the

individuai interests of the parties themselves. These litigants are not

the representatives of society at large. While sometimes their interests

are broad and affect a number of people, as in class actions, more

typically ttiese interests are very narrow and specific, as in negligence

and contract actions. Therefore, an individual case, at the trial court

level, should not occasion the creation of new rights or the

implementation of far-reaching social policy.

My sixteen years as a trial attorney and my four-and- a-half years as a

trial Judge have left me with a strong sense that what litigants expect,

and wtiat ttiey are entitled to from the courts, is an Impartial application

of existing law and precedent, as well as the established rules for

determining legislative intent i do not see the role of federal district

courts differently.
538

I BIOGRAPHICAL INFORMATION (PUBLIC)

Full Name (include any former names used).

Algenon Lamont Marbley

Nickname: Monte Marbley

Address: List current place of residence, office iddress(es), and tdephone numbers.

Residence: Blacklick. Ohio 43004

OfBce: Vorys, Sater, Seymour and Pease

S2 East Gay Street

P O. Box 1008

Columbus, Ohio 43216-1008

Date and Place ofBirth.

Date ofBirth: September 19. 19S4

Place ofBirth: Morehead City, North Carolina

Marital Status (include maiden name of wife, or husband's name): List spouse's

occupation, employer's name and business address(es).

Married: Yes

Spouse: Janet Lynn Green Marbley

Occupation: Administrator and Coutuel, Supreme Court ofOhio Client's Security Fund

17S South Third Street, Columbus, Ohio

Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates d^rees were granted.

University ofNorth Carolina Northwestern University School ofLaw

at Chapel Hill Matriculated August, 1976

Matriculated August, 1972 Graduated May, 1979

Graduated May, 1976 Juris Doctor D^ree, 1979

Bachelor of Arts Degree, 1976
539

Employment Record: List (by year starting with the most recent) all business or

professional corporations, companies, firms, or other enterprises, partnerships, institutions

and organizations, nonprofit or otherwise, including firms, with which you were connected

as an officer, director, partner, proprietor, or employee since graduation fi'om college.

Associate (1986-1991)

Partner (1991 - Present)

Vorys, Sater, Seymour and Pease

52 East Gay Street

Columbus, Ohio 43215

Board Member (1991 - Present)

Board President (1995 -1997)

Salesian Boys and Girls Chib

80 South Sbcth Street

Columbus. Ohio 43215-4784

Board Member (1991 - Present) Big Brothers/Big Sisters Association

Secretary and Counsel to the Board ofColumbus

(1992-1996)

Adjunct Professor of

Trial Advocacy

FaU 1995

Capital University Law School

665 South High Street

Columbus, Ohio

Instructor, 1987 - Present National Institute ofTrial

Advocacy

Assistam Regional Attorney

(1981-1986)

United States Department ofHealth and

Human Services

Office ofthe Regional Attorney

105 W. Adams Street

Chicago, Dlinois

Adjunct Professor ofCriminal

Law and Procedure (1985 -1986)

Northeastern Illinois University

5500 N. St. Louis Avenue

Chicago, Illinois

Associate (1979-1981)

Law Clerk (1977-1979)

James D. Montgomery and Associates

(formerly Montgomery and Holland)

39 South LaSalle Street

Chicago, Illinois

Legal Assistance Cliiuc

Law Clerk (Summer 1977)

Northwestern University

357 E. Chicago Avenue

Chicago, Illinois 60611

Laborer (Summer 1976) Bethlehem Steel Corporation

U. S. Highway 12, Portage, Indiana
540

7. Military Service: Have you had any military service? Ifso, give particulars, including the

dates, branch ofservice, rank or rate, serial number, medals awarded, and type of

discharge received.

None.

8. Honors and Awards: List (by month and year starting with the most recent) any

icbolarships, fellowships, honorary degrees, and honorary society memberships that you

believe would be ofinterest to the Conference.

Ten Outstanding Young Citizens of Columbus (199S);

Outstanding Service Award, Minority Legal Education Resources, ItK. (1986) (Nonprofit

organization which assisted minorities and others in taking the Illinois Bar

Examituoion);

Order ofthe Golden Fleece (197S), Highest Co-educational Honorary Society at the

University ofNorth Carolina, Chapel Hill,

Order ofthe Grail (1974), Highest Male Honorary Society at the University ofNorth

Carolina, Chapel Hill;

North Carolina Fellow (1973), Based on Academic Performance and Leadership Ability,

•warded to approximately 20 students each year.

9. Bar Associations: List all bar associations, legal or judicial-related committees or

conferences ofwhich you are or have been a member and give the titles and data of anjr

ofiSces which you have held in such groups.

Bar Associations:

American Bar Association

National Bar Association

Columbus Bar Association

Ohio State Bar Association

Committees:

Columbus Bar Association:

Chairman, Trial Advocacy Committee - (1996 - 1997)

10. Other Memberships: List all organizations to which you belong that are active in lobbying

before public bodies. Please list all other organizations to which you belong.

a. Lobbying Organizations:

National Institute for Trial Advocacy (I have not been involved in lobbying

activities)
641

b. Other Organizations:

President ofthe Board ofDirectors, The Salesian Boys and Girls Chib; (Tenn

Expires 7/97)

Secretary and Counsel to the Board, Big Brothers/Big Sisters Association of

FrankUn County; (Term Expires 7/97)

Omega Psi Phi Fraternity, Inc.

Jefferson Golf and Country Chib

The Capital Club

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 ofmembership. Give the same information for administrative bodies which require

special admission to practice.

Coua Date ofAdmission

Supreme Court ofIllinois 1980

United States District Court for the Northern District ofIllinois 1980

United States Court of Appeals for the Seventh Circuit 1982

Supreme Coun ofOhio 1987

United States District Court for the Southern District ofOhio 1987

United Sutes Court ofAppeals for the Sixth Circuit 1996

United States District Court for the Southern District ofIllinois 1996

12. Publided Writings: List the titles, publishers, and dates ofbooks, articles, reports, or

other published material you have written or edited. Please supply one copy ofall

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. Ifthere were

press reports about the speech, and they are readily available to you, please supply them.

Now

13. Health: What is the present state ofyour health? List the date ofyour last physical

examination.

Present state of heahh: Excdient

Date oflast physical examination: 1997

14. Judicial Office: State (chronologically, most recent first) any judicial offices you have

held, whether such position was elected or appoimed, and a description ofthe jurisdiction

ofeach such court.

NOM
542

IS. Citations: If you are or have been a judge, provide: (1) citations for the ten most

significant opinions you have written; (2) a short summary of and citations for all appellate

opinions where your decision were reversed or where your judgment was aflinned with

significant criticism ofyour 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 ofthe opinions listed were not oSBdally

reported, please provide copies ofthe opinions.

None

16 Public Office: State (chronologically, most recent first) any public offices you have held,

other than judicial offices, including the terms ofservice and whether such positions were

elected or appointed. State (chronologically, most recent first) any unsuccessful

candidacies for elective public office

None.

17. Legal Career:

a. Describe chronologically your law practice and experience after graduation fi'om

law school including:

(1) whether you served as clerk to a judge, and ifso, the name ofthe judge,

the court, and the dates ofthe period you were a clerk;

No.

(2) whether you practiced alone, and ifso, the addresses and dates;

No.

(3) the dates, names and addresses oflaw firms or offices, companies or

governmental agencies with which you have been connected, and the

nature ofyour connection with each;

Etlc Employer PMe

Law Gerk, Certified 711 Northwestern University Legal September 1976-

Student (As a third year law Assistance Clinic May 1979

student, I was allowed to 375 E. Chicago Avetue

represent clients in court Chicago, Illinois

under supervision ofan

attorney, 1975-1976)
543

Associate Attoiney Montgomery and Holland

39 South LaSalle Street

Chicago, Illinois

(n/k/a James D. Montgomery and

Associates)

May 1979 -

October 1981

Assistant Regional Attorney United States Department of

Health and Human Services

lOS W.Adams Street

Chicago, Illinois 60603

Adjuna Professor of Northeastern Illinois University

Criminal Law and Procedure Chicago, Illinois

Associate (1986 - 1991)

Partner (1991 - Present)

Vorys, Sater, Seymour and Pease

S2 East Gay Street

Columbus, Ohio 4321S

October 1981 -

November 1986

1983 • 1986

1986-Present

Instructor

Adjunct Professor Trial

Advocacy

National Institute ofTrial

Advocacy

Capital University Law School

665 South High Street

Cohimbus, Ohio

1987 - Present

Winter 1995-

Present

(1) What has been the general character ofyour law practice, dividing it into

periods with dates ifits character has changed over the years?

Mav 1979 - October 1981 (Montgomery and Holland)

I was employed by Montgomery and Holland at the beginning of my

second year in law school (fall 1977). I worked there continuously through

law school, until October 1981.

Montgomery and Holland was a litigation boutique with approximately

seven attorneys. I worked primarily with the senior partner, James D.

Montgomery, doing federal and state criminal defense. My primary

responsibility was assisting Mr. Montgomery in the preparation and trial of

cases. Typically, I prepared witnesses for testimony, took witness

statements and engaged in general investigation. I was reqx>naible for

drafting pleadings, writing brie& and arguing motions.
S44

While at Montgomery and Holland, 1 tried six cases to a jury 1 served as

lead counsel on four ofthose trials, and as second chair on the remaining

two. I was involved in one civil jury trial, a paternity case, which 1 also

second chaired with Mr. Montgomery. The remaining four jury trials

involved three felony criminal matters and one misdemeanor matter, all of

which I first chaired

October 1980 - November 1986

In October 1980,1 left the Montgomery and Holland firm and began

employment with the Office ofthe Regional Attorney, U. S. Department of

Health and Human Services ("HHS") in Chicago I was recruited to the

Department of Health and Human Services primarily to practice in the

administrative litigation area My primary responsibilities were prosecuting

physician exclusion and physician suspension cases pursuant to Section

1160 ofthe Social Security Act.

At issue in physician suspension cases was the length oftime that a

physician should be suspended from the Medicare Program due to a

conviction relating to Medicaid fraud. The physician exclusion cases were

akin to medical malpractice cases. At issue in those cases was whether the

physician's practice fell below the standard of care for physicians in that

particular geographical area. Ifit was determined by the administrative law

judge that the practitioner fell below the standard of care, then that

practitioner would be excluded from the Medicare program for a period of

time. While at Health and Human Services, I tried two physician exclusion

cases and won both. I tried In The Matter of_Dr. H. R.. . which was one

ofthe first such proceeding to go to hearing in the country. I also tried u

first chair In The Matter o/M. F. Again, the Agency prevailed throughout

the administrative process My remaining duties included representing the

various HHS umbrella agencies—e.^. the Social Security Administration

and the Health Care Financing Administration in various administrative

matters. During that time, I represented the Agency before the Seventh

Circuit Court of Appeals in the case of 5<. Elizabeth Hospital v. Bowen,

Til F.2d 449 (7th Cir. 1986), a case relating to hospital reimbursement

regulations, in which the Agency prevailed.

'J PufBianl 10 the pertineiu regulatiOM, the name of the iwpoiideiil cannol be discloted.

7
545

November 1986 - December 1995

I joined Vorys, Safer, Seymour and Pease as an Associate in November

1986 I was recruited directly Into the litigation group to handle medicallyrelated matters, such as medical malpractice defense, product liability

litigation and workers compensation litigation My first major case,

however, was in the United States District Court for the Southern District

ofOhio in the case otRopak v. Buckhom, 656 F. Supp 209 (S D Ohio

1987), a securities litigation matter in which the primary issue was the

validity of a "poison pill" plan. This was a case offirst impression in this

district and I was a part ofthe litigation team. Ropak was the first

litigation in which a poison pill plan under Delaware law was found invalid.

I also participated in the preparation ofthe brieffiled with the Sixth Circuit

Court of Appeals. The Sixth Circuit affirmed the favorable ruling below.

Having participated in that case, I also was involved in the trial ofGeneral

Acquisitions. Inc. etal. v. Gencorp, Inc., elal., Case No C2-87-348 U.S.

District Court Southern District ofOhio before the Honorable Joseph

Kinneary. There, as in the Ropak litigation, 1 was primarily involved in

drafting pleadings, and interviewing and preparing witnesses for trial The

GenCorp. matter eventually settled.

Subsequent to my involvement in securities litigation, my litigation practice

involved primarily product liability defense, general business litigation and

workers compensation litigation. I have represented a variety of clients in

my product liability defense practice, including General Motors, CocaCola, Illinois Tool Works and Ford Motor Company One significant case,

an automobile fire case. Bales v. General Motors, Case No. 86 CI 397,

I tried to a jury before the Honorable Nicholas Holmes, in the Ross

County, Ohio Court of Common Pleas. I also tried two additional product

liability matters, as well as three workers' compensation matters during this

period.

My commercial litigation experience, in addition to securities litigation,

involved matters ranging fiom breach of contract to commercial paper. I

was involved in a protracted breach of contract case with product liability

overtones. Buckeye Custom Products, Inc. v. TRW Technar, Case No. C2-

90-207, before the Honorable James Graham. That case settled on the day

oftrial following arguments on motions, but before jury selection. I also

was involved in a complex set of commercial paper cases on behalfof

Signet Bank Maryland which were pending in the District Court with

parallel cases pending in the Franklin County, Ohio Court ofCommon

Pleas. Those cases settled.
Stf

1995 to Present

In 199S my practice changed to some degree I now practice primarily in

the area of employment litigation and commercial litigation. In 199S, I

undertook all ofthe Ohio litigation for Illinois Tool Works, a Fortune 100

company Illinois Tool Works selected me as the attorney for its sixteen

factories in the State ofOhio. I am responsible for all ofthe company's

labor work and all ofthe litigation involving those factories, including all of

its divisions. I also am doing a signi&cant amount of employment litigation

for The Limited and its various divisions. I serve as lead counsel in several

employment litigation matters pending in the United States District Court

for the Southern District ofOhio, and I have appeared as trial counsel for

such other companies as Symix Systems, Inc., Pitn^ Bowes and M/I

Schottenstein Homes

(2) Describe your typical (former) clients, and mention the areas, ifany, in

which you have specialized.

Most of my clients are large corporations, although I have represented

several smaller enterprises and individuals. My civil litigation experience

has been in the areas ofgeneral business litigation, product liability and

employment litigation. My representative clients in litigation iiKlude:

Business Liti|;ation

Wendy's International, Inc.

Worthington Industries

Illinois Tool Works

National City Bank

Signet Bank Maryland

Product Liability

General Motors

Ford Motor Company

The Coca-Cola Company

Illinois Tool Works

Emolovment Litigation

The Limited

Symix Systems, Inc.

Illinois Tool Worics

M/I Schottenstein Homes
647

Workers' Compensation Litigation

General Motors

Tdedyne

IlUnois Tool Worics

George Lynch Controls

Special Counsel Litigation

The Ohio State University

Franklin County Children's Services i

Big Brothers/Big Sisters Association

Project Linden, Inc.

I have also represented The Ohio State University as special counsel in a

wrongful death action from which the University was dismissed pursuant to

a Motion to Dismiss in State Court and later dismissed in the Court of

Gaims. I also have appeared as special counsel for Franklin County

Children Services in a contested child custody matter in which the Agency

had been implicated on negligence counts.

(1) Did you appear in court frequently, occasionally, or not at all? Ifthe

firequency ofyour appearances in court varied, describe each such variance,

giving dates.

I appear in court frequently. Virtually 100% of my professional work is

litigation. The only exception would be some ofthe pro bono counseling

that I provide and have provided to Big Brothers/Big Sisters Association as

well as The Salesian Boys and Girls Chib for the past six years.

(2) What percentage ofthese appearances was iir

(a) federal courts:

Approximately 33% of my cases have been in the Federal courts.

(b) state courts of record:

Approximately 66% ofmy cases have been in the State couits.

(c) other courts:

Less than 1% ofmy cases have been in other courts.

10
548

(3) What percentage of your litigation was:

(a) civil:

85%

(b) criminal:

15%

(4) State the number of cases in courts of record you tried to veniict or

judgment (rather than settled), indicating whether you were sole counsel,

chief counsel, or associate counsel

Twenty (20)

• Sole Counsel: 9

• ChiefCounsd: 15

• Associate Counsel: 5

(5) What percentage ofthese trials was:

(a) jury-83%

(b) non-jury-15%

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, ifthe cases were reported, and the docket number and date if

unrcported. Give a capsule summary ofthe substance of each case. Identify the party or

parties whom you represented; describe in detail the nature ofyour participation in the

litigation and the final disposition ofthe case. Also state as to each case:

a. the date of representation;

b. the name ofthe court and the name ofthe judge or judges before whom the case

was litigated, and

c. the individual name, address, and telephone numbers of co-counsd and ofprincipal

counsel for each ofthe other parties.

11
549

The ten most significant litigated matters are as follows:

1) United Stales v. Powell, 654 F.2d 724 (7th Cir. 1981)

a. Date ofRepresentation: 1980

b. Court: United States District Court for Northern District ofIllinois

Honorable Nicholas i. Bua

c. Co-Defense Counsel: James D. Montgomery

39 S LaSalle Street

Chicago, Illinois

(312)977-0200

d. Opposing Counsel: Assistant United States Attorney Daniel Reidy

(Mr. Reidy is now a partner at Jones, Day, Reavis and Pogue, Chicago,

(312)269-4140)

Defendant James H. Powell was charged with violation ofthe Hobbs Act, 18

U.S.C. § I9S1. The government argued that Mr. Powell, a plumbing inspector for

the City ofChicago, had extorted money from an electrical contractor.

Tbe matter was tried to a jury in the United States District Court for the Northern

District ofIllinois before Judge Nicholas Bua. The govenunent was represented

by Assistant United States Attorney, Dan Reidy, now a partner vnth the law firm

ofJones, Day, Reavis & Pogue in Chicago. The jury trial lasted approximately one

wedc and was tried pursuant to a multi-count indictment. The principal issue

before the jury was whether defendant, Mr. Powell, extorted money from the

electrical contractor who had received goods moved in interstate commerce. In

prosecuting its case, the government relied on wire tap evidence derived from a

wire worn by their primary witness, the electrical contractor. At trial, we proved

that the tape testimony was unreliable and the defendant was convicted ofonly two

counts ofthe multi-count indictment. The defendant was sentenced to one year in

the federal penitentiary.

The Powell case was significant to me because it was my first jury trial in Federal

court. I was responsible for putting on the entire defense case, which included the

direct examination ofthe defendant and various defense factual witnesses and

character witnesses. In addition, I cross examined some ofthe prosecution

witnesses and argued all motions before the Court. The fact that I was able to

coirvince the jury through my examination ofthe defendant that the wire tap

evidence was unreliable and was to be disbelieved certainly resulted in the

defendant not being convicted ofthe more serious charges.

U
550

2) Buckeye Custom Products. Inc. v. TRW Technar. Case No. C2-90-207

a. Date ofRepresentation: 1990-1991

b. Court: Umted States District Coun for Southern District of Ohio

Honorable James Graham

c. Co-Counsel: Michael G. Long

Vorys, Sater, Seymour and Pease

S2 East Gay Street

Columbus, Ohio 432IS

(614) 464-6297

d. Opposing Counsel: Richard I. Werder, Jr.

Michael Carpenter^^

Jones, Day, Reavis & Pogue

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114

(216) 586-7260

This breach of contract action was brought by my client. Buckeye Custom

Products, Inc., against TRW Technar in the United States District Court for the

Southern District ofOhio before the Honorable James Graham. Buckeye Custom

Products, a division ofWorthington Industries, sued TRW for its ftilure to honor a

requirements contract between the companies for the production of cylinders that

were incorporated in TRW's airbags. TRW counterclaimed against Worthington

Industries, Inc., arguing that the part Buckeye produced was defective.

The case involved complex commercial issues, as well as technical issues. TRW's

claim was in (he nature of a product liability claim because it involved questions of

whether the cylinder produced by Buckeye was in full compliance with the

specifications ofthe contract. The primary technical area of contention was

whether the cylinders were "burr free," or produced without any extruded metal

fragments This required extensive expert testimony on "burr technology." The

case lasted approximately two years, with discovery lasting approximately one

• year.

'jMr Carpenter is now a member of the finn ofZeiger and Oupenler, Suite 1600,41 South High Sued,

Columbus. Ohio 43213. (614) 363-4100.

13
I was primarily responsible for conducting much ofthe discovery, including takii^

the depositions ofTRW's factual and expert witnesses and defending the

depositions of Buckeye's factual and expert witnesses. I also was responsible for

the trial brief and arguing motions The case settled after argument on the motions,

but prior to voir dire.

3) Thomas Bales v. General Molars Corpcvntion, Case No. 86 CI 397

a. Date of Representation: 1987

b. Court: RossCounty Court of Common Pleas

Honorable Kicholas Holmes

c. Co-Counsel: Gerald P Ferguson

Vorys, Sater, Seymour and Pease

52 East Gay Street

Columbus, Ohio 4321S

(614) 464-6484

d. Opposing Counsel: Charley Hess

1S20 Old Henderson Road

Suite 102A

Columbus, OH 43220

(6I4)442-S800

This case was a product liability action. I defended on behalf ofGeneral Motors

Corporation. The plaintiff alleged that a defect in the ignition system ofthe

Camero caused the Camero to ignite after the ignition had been turned off and the

car parked in the garage. The fire which ensued consumed the garage and its

contents and much ofthe plaintiffs house. The defense argued that the fire was

not caused by any defect in the Camero, but offered as a possibility defiective

wiring in the garage.

The defense strategy which I developed was significant in two respects. First, the

defense not only had to rebut Plaintiffs theory, but had to present a plausible

theory ofthe fire's origins. In effect, the defense had to sustain a burden of

persuasion to establish that wiring in the garage was the likely cause ofthe fire.

Secondly, because the fire destroyed much ofthe family's belongings, I had to

convince the jury to be guided by scientific fact instead of emotions. It was,

therefore, incumbent upon the defense to focus the jury's attention on the issue of

liability instead of damages and on the expert testimony instead ofthat ofthe

Plaintiffs

14
552

The case was tried to a juiy. I was responsible for every aspect ofthis trial,

including jury selection, opening argument, presentation ofthe defense case, cross

examination of witnesses in the plaintiffs case, closing arguments and arguments

on motions My co-counsel only participated in the charging conference. The jury

returned a verdict in favor ofthe defense on all claims.

4) In nM.F., Case No. 000-57-7005

a Date ofRepresentation: February 27 - March 1, 1985; August 12-14,

1985

b. Department ofHealth and Human Services, Social Security Administratioo

OfRce ofHearings and Appeals

Chief Administrative Law Judge, Kenneth Stewart

c. Co-Counsel: Donna Morris Weinstein

Regional Attorney

U. S. Dept ofHealth and Human Services

105 W. Adams Street

Chicago, Illinois 60603

(312)886-1710

d. Oppo»ng Counsel: Steven O. Murray

Otjen, Van Ert. Stangle, Lieb & Wier

450 Science Drive, Suite 110

Madison, Wisconsin 53711

(608) 238-9500

This case was a physician exclusion case brought by my client, the United States

Department of Health and Human Services ("Department" or "DHHS") pursuant

to Section 1160 ofthe Social Security Act. The Department alleged that the

respondent. Dr. F. rendered care that fell below the professionally recognized

standards of care for the geographical area in which he practiced and that he

should, therefore, be excluded from participation in the Medicare Program for a

period offive (5) years. The Department had the burden of establishing its case

through medical expert testimony.

The case of Dr. F. involved seven medical charts and several days of expert

medical testimony At the conclusion ofthe testimony, the administrative law

judge found for the Department and excluded Dr. F. for five years. The

significance ofthis case was that it was one ofthe first cases tried nationally under

the then newly-enacted Section 1160 ofthe Act and was the second one tried and

won in our region. I had, in fact, tried the first case ofthis kind in the six-state

r^on served by the Chicago office ofHHS. The Dr. F. matter also was

IS
553

significant because I trained our Regional Attorney, Donna Weinstein, in trying

physician exclusion cases.

5) Parks v. Teledyne Ohio Cast, Case No. 91 -CV-0221

a Date ofRepresentation: April, 1993

b Court: Clark County Court ofCommon Pleas

Honorable Gerald F. Long

c. Co-Counsel: None.

d. Opposing Counsel: John Workman

137S Dublin Road

Columbus, Ohio 43215-1069

(614)486-8933

This was a workers' compensation death case brought against my client, Teledyne.

The claimant's decedent had prevailed throughout the administrative process and

Teledyne appealed the matter to Common Pleas Court for a trial de novo. At issue

in this case was whether the Plaintiffs decedent's lung disease was contracted as a

result ofhis work in the Teledyne foundry. This two-day jury trial centered

primarily on the medical testimony ofseveral experts. I was responsible for the

entire case: argument on motions, opening statement, examination of all witnesses

and closing argument.

After several hours of deliberation, the jury returned a verdict in favor ofTeledyne.

This case was significant because it was one of those rare trials in which the

claimant had prevailed throughout the administrative process on essentially the

same medical evidence as was presented to the jury. It was a very difiScuIt case,

both technically and emotionally, inasmuch as the Plaintiff was a very sympathetic

figure, and it was tried in a city which had some antipathy toward Teledyne

because it had closed its foundry, relocated and taken a significant number ofjobs

from the Springfield community.

16
554

6) Pniill V. General Motors, 74 O App 3d 520 (1991), Juris Mtn overruled, 62 O.

St. 3d 1447 (1991)

a. Date ofRepresentation: 1991

b Court: Franklin County Court ofCommon Pleas

Honorable David Johnson

c. Co-Counsel: Gerald P. Ferguson

Vorys, Sater, Seymour and Pease

52 East Gay Street

P. O Box 1008

Columbus. Ohio 43216-1008

(614)464-6484

d. Opposing Counsel: Lyman Brownfield

Lyman Brownfield Law Offices

341 S. Third Street

Suite 10

Columbus, OH 43215

(614)221-5834

This is a product liability case in which I represented General Motors ("CM"). At

issue in this case was whether a cable located on a semitractor, which broke,

causing the PlaintifT significant bodily harm, was defective. The defense contended

that the accident resulted from product misuse or abuse, and vras not related to any

design defect or production defect. The case vtras tried to a jury over a three-day

period. At the end ofthe PlaintifiTs case, the Court granted GM's Motion for a

directed verdia based on GM's ability to refute PlaintifiTs' expert testimony. The

responsibilities for this case were divided evenly with co-counsel. I was

responsible for voir dire and cross examination ofseveral ofPlaintifTs witnesses,

including PlaintifiTs expert. We also prevailed in the Tenth District Court of

Appeals ofOhio. I shared responsibility for preparation ofthe appellate brief

VI
556

7) Nult V, Franklin County Children Services. Case No 92 JU-01 -84

a Date ofRepresentation: March, 1992

b. Court Franklin County Court ofCommon Pleas

The Honorable Ronald Solove

c. Co-Counsel: None.

d. Opposing Counsel: Charles K. Milless

175 South Third Street

Columbus, Ohio 43215

(614) 228-6885

Nancy K. Wonnell

Wonnell & Wonnell

330 S. High Street

Columbus, Ohio 432IS-4S10

(614)224-7291

Natalie Fletcher

122 E. Main Street

3rd Floor

Columbus, Ohio 43215

(614)267-3700

This was a child custody case in which there were two primary issues:

(1) whether the two minor children involved should be in the custody ofFranklin

County Children Services ("FCCS"); and (2) whether FCCS had been negligent in

allowing the children to return to their home after they had been in the temporary

custody of FCCS. The case was tried over the course ofseveral days before Judge

Ronald Solove and was highly publicized by The Columbus Dispatch I was

retained as special counsel to represent FCCS in the proceeding before Judge

Solove.

This was an important case for several reasons. First, the safety and well-being ofthe

children was of paramount importance. It was in the best interest ofthe children to be

permanently removed from a neglectful home environment I also had to defend the

Agency on charges made by the guardian ad litem, Charles K. Milless, Esq., that the

Agency had been negligent in returning the children to the home after the Agency had

taken them into temporary custody. I had to persuade the Court that the Agency

exercised due caution and sound discretion in returning the children to the home. I

had to demonstrate to the Court that, where possible, it was the policy ofthe Agency

to reunite and to maintain the family unit. I was successfiil in persuading the Court

that FCCS acted reasonably under the circumstances.

It
666

The Court agreed with our position and removed the children firom the home. Tlie

Court declined to find that FCCS had been guilty of actionable negligence in

returning the children to the home.

8) Chase Enterprises v. Wendy's Jnlemalional, Case No. 395 CV 00486

a. Date ofRepresentation: 1996

b. Court: United States District Court For The District of Connecticut

Honorable Peter C. Dorsey

c. Co-Counsel: Michael G Long

Vorys, Sater, Seymour and Pease

S2 East Gay Street

P. O Box 1008

Columbus, Ohio 43216-1008

(614) 464-6297

d. Opposing Counsel: Kathleen McManus Trafford

Porter, Wright, Morris & Arthur

41 South High Street

Columbus, Ohio 43215-3406

(614)227-1915

This was a breach of contract case brought by Chase Enterprises against Wendy's

International, Inc. ("Wendy's) for alleged violations ofWendy's franchise

agreemem. Plaintiff, a franchisee whose store was located in Krakow, Poland,

argued that Wendy's failed to provide adequate support services to asast the

fledgling franchise. On behalf ofWendy's, I took the position that Wendy's

International Group offered all ofthe technical support that it was obligated to

provide pursuant to the fi^nchise agreement.

This case was of precedential value to Wendy's. Ifit were found that Wendy's

fiiiled to support its international franchisee, then other franchisees stood poised to

register similar complaints. The Wendy's support system and network, in effect,

were on trial. It was essential that the system be exonerated, and that, irrespective

ofthe resolution ofthe case, the structure ofWendy's firanchise agreement remain

intact.

In order to defend Wendy's interests effectively, I had to hnmerse myselfin

Wendy's operational procedures, as well as develop an understanding offranchise

law. I was responsible for conducting virtually all ofthe discovery in the matter,

developing our litigation strategy and coordinating the efforts ofthe various

19
557

Wendy's divisions. I also was responsible for negotiating with opposing counsel

to settle the dispute. This matter eventually was referred to arbitration but, prior

to arbitration, was settled by the parties

9) Howard V. The LimitedIIK.. Case No BC086556

a Date of Representation: 1994-1995

b. Court: Superior Court ofthe Los Angeles Judicial District for the County

ofLos Angeles

Honorable Edward M. Ross

c. Co-Counsel: Jay S. Hill (Local Counsel)

Wiedner and Swanson

10 Universal City Plaza

Universal City, California

(818)754-3300

d. Opposing Counsel: Timothy E. Meyer

2029 Century Park East

Suite 1020

Los Angeles, California 90067-2901

(310)203-0754

In this case, the PlaintifT, Garry Howard, brought an action against The Limited

alleging that The Limited violated the California Public Accommodations Act and

other state civil rights statutes. Howard alleged that he was wrongfully detained at

the behest ofThe Limited and that The Limited thus violated the civil rights of

Howard and his female companion. In addition to filing suit, the Plaintiff engaged

in a campaign against The Lunited consisting ofpicketing and leafleting. On behalf

ofThe Limited, I argued that Plaintiffs civil rights had not been violated, that The

Limited was acting well in its power in surveilling Plaintiff while he was in the

store, and demonstrated conclusively that The Limited did not order that the

Plaintiffbe searched or detained. The trial court agreed with our position and

granted summary judgment in favor ofThe Limited.

Although on the surface this case was not technically complex, it was a very

sensitive matter for all involved and required me to use not only my legal skills but

also my judgment in handling a tense racially charged situation I had to maintain

the focus on the legal issues in the case and persuade the Court that this was a

legal issue susceptible of resolution, and not a political issue.

I had total responsibility for every aspect ofthis case, which was closely monitored

by The Limited's corporate office.

20
558

10) Symix v. LaRoque, Case No 95 CVH 06-4279; 295-CV-632 (US District Court)

a Date of Representation 1995 - 1996

b. Court; The Court of Common Pleas, Franklin County

Honorable Nodine Miller

United States District Court for the Southern District ofOhio

Honorable John Holschuh

c. Co-Counsel: None

d. Opposing Counsel: Rex H. Elliott, Esq.

Cooper, Elliott & Connors

17 South High Street

Columbus, Ohio 43215

(614)221-1177

This was a breach of contract action brought by my client, Symix Systems, Inc.

("Symix") against two ex-employees who were former members ofthe Symix

management team. Defendants counterclaimed, alleging wrongful discharge. It

was a very contentious matter. Discovery covered a significant period oftime,

lasting approximately one year and involved issues ranging firom psychological

damages to the First Amendment.

I had primary responsibility for the case and conducted all discovery, drafted

pleadings and presented arguments before the court. The case was on paralld

tracks b both the Federal Court and state court, and the federal case was held in

abeyance pending resolution in the state court. Within approximately one year of

commencing discovery, settlement discussions ensued. As we neared trial, I had to

withdraw from litigation as one ofmy law partners, a board member at Symix, was

slated to be a witness at the trial. Shortly after my withdrawal—and based on the

negotiations that already had begun—this matter settled.

2!
19 Legal Activities: Describe the most significant legal activities you have pursued, including

significant litigation which did not progress to trial or legal matters that did involve

litigation Describe the nature of your participation in this question. Please omit any

information protected by the attorney-client privilege (unless the privilege has been

waived),

1) Winfrey, el at. v. Franklin County Community Based Correctional Facility, el al.

97 CVHOI 2225

Our clients in this litigation are the Franklin County Community Based

Correctional Facility ("CBCF') and the Franklin County Judicial Corrections

Board ("JCB") The CBCF is comprised of all ofthe judges on the Franklin

County Court of Common Pleas The plaintiflFs are former employees of CBCF

who claim that their positions were wrongfiilly abolished and that their

constructive discharge was based on race and sex discrimination. This case is still

pending.

The significance ofthis case is personal. I have been seleaed as lead counsel to

represent the judges ofthe Franklin County Court of Common Pleas in a

significant employment discrimination matter. Having had jury trials before both

Judge McGrath, the current JCB President, and Judge David Johnson, the past

JCB President, I consider my selection to be a high compliment from the judges,

and a recognition fi-om the judges of my skills as a litigator. Moreover, the

implications ofthis case are far reaching inasmuch as precedent may be set for

other community-based correctional facilities located throughout the state. I am

therefore looking forward to the challenge oflitigating what I am certain will be a

very compelling case.

2) United Stales v. Erickson, CR-2-93-66

United States District Court for Southern District ofOhio

Honorable John Holschuh

Our client, Vem Erickson, was a buyer for BMY Corporation ("BMY"). BMY

Corporation was, among other things, a supplier to the army. B\fY was under

investigation by the U S. Department ofJustice for fraud in coimection with

certain contracts that BMY had with the Army. Mr. Erickson himself was accused

of participating in BMY's firaudulent activity, but was persuaded to cooperate with

the government in its investigation. Mr. Erickson did in fact cooperate and was

semenced to a term of probation. Under government contracting regulations,

however, the Department ofthe Army decided to debar Mr. Erickson fi'om

participation in any government contracting activity. Because Mr. Erickson spent

much of his career in government contracting and had completed plans to open his

own consulting firm, debarrment would have effectively ended his career.

22
560

I appealed the Department ofthe Army's decision to the Department ofthe Army

OfSce ofThe Judge Advocate General. We received a favorable decision from the

hearing officer Because ofthe nature ofthe decision, the Army did not appeal.

Under the terms ofthe order, Mr Erickson was not excluded from participating in

government contracts, working on behalf of government contractors, or otherwise

being involved in government contracting aaivities.

3) KaySnyderv. The Bank ofMarion.

In this case, the Plaintiff, Kay Snyder, was a secretary/administrative assistant for

one ofthe officers ofthe Marion Bank. She contacted me to handle her case,

although she had some trepidation about our accepting her representation because

she was under the impression that our law firm represented companies and not

individuals. I took her representation because Ms. Snyder had what I believed to

be a legitimate sexual harassment claim and, although she did not have the

resources to prosecute the claim, we undertook the representation because ofthe

personal appeal that she made

At the time that I took the case, I was an associate at Voiys and enlisted the

support of another colleague ofmine who also was an associate. We negotiated

with the Bank's counsel and, afler several weeks of negotiations, were able to

reach an amicable resolution without having to file suit. Mrs. Snyder was

compensated, the Bank took the appropriate action with respect to its officer, and

opposing counsel left that encounter with renewed respect for me.

4) Minority Legal Education ResourcesInc. ("MLER")

MLER is a not-for-profit corporation located in Chicago, Illinois, which began as

an organization which assisted minority applicants in preparing for the Illinois Bar

exam. I was first a participant in MLER then an instructor for several years. I

later became a Board Member, and then President ofthe Board. The program was

B supplement to the Bar Review course that was offered by various companies

such as BAR/BRI. We met once a week and taught bar taking techniques with an

emphasis on taking multiple choice exanunations and writing I taught in both

sections

This was one ofthe most rewarding undertakings that I have been involved in as a

lawyer Many ofthe students we helped were individuals who had never taken the

bar exam We were able to impart not only our technical knowledge, but also

insights to give first-time takers the confidence that they needed to pass the bar

exam However, a small percentage ofpeople, from 10 to 20 percent in the

summer program, and the majority ofindividuals who took our program in the

winter, were persons who had failed the bar. It was a particular challenge to

restore their sense of confidence and self esteem, while at the same time prepare

them to prevail on the upcoming bar examination. It was most rewarding to share

B
561

with them the success of passing the bar after they had initially failed. As an

organization, we had a second time pass rate that was higher than the national

average.

5) Teaching at the Capital University Law School.

In the fall semester of 1995,1 was an adjunct professor ofTrial Advocacy at

Capital University (I have enjoyed teaching, as I taught criminal law and

procedure on the undergraduate level at Northeastern Illinois University from 1985

through I9S6). Very few activities in which I have engaged have been more

rewarding than teaching young lawyers to become skilled advocates.

6) The National Institutefor TrialAdvocacy.

My pedagogical bent has led me to accept invitations to teach at the National

Institute for Trial Advocacy ("NITA") from 1987 to the present. I have taught

both the full trial courses as well as the deposition courses. My teaching has been

at the Midwest Course held at Northwestern University, and Nova University Law

School in Fort Lauderdale, Florida. I have been invited to teach at Temple

University, at the NITA program in Dallas and at Case Western Reserve

University. In the NITA sessions, I have performed cross examination

demonstrations for the entire student population, as well as direct examination

demonstrations I have been a team leader, the highest teaching rank, as well as

section leader. As a team leader, 1 taught the course for approximately ten days,

from beginning to end As seaion leader, I was a part of a team and taught for a

five day period.

7) In connection with my teaching responsibilities, I also have given demonstrations

for the Ohio State Bar Association, as well as the Committee on Regional

Training, which was responsible for teaching trial advocacy to lawyers in the Legal

Aid Societies for the states ofOhio and Michigan.

24
562

FINANCIAL DATA AND CONFLICT OF INTEREST

1. List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits

which you expect to derive from previous business relationships, professional

services, firm memberships, former employers, clients, or customers Please

describe the arrangements you have made to be compensated in the Ajture for any

financial or business interest

I have no deferred income arrangements, stock, options, uncompleted contracts, or

future benefits which I expect to derive from previous business relationships,

professional services, firm membership, former employers, clients or customers.

When I resign as a partner in my law firm, I will receive my capital contribution to

the partnership, which includes a buyout of my percentage ownership ofthe law

firm. As of June, 1997, that amount (determined at the end ofthe quarter ending

December 1996) is approximately $52,000.00 and would be paid to me upon my

resignation fVom the partnership. The disbursement would include no fiiture

income ofthe law firm, and, I am advised, would be made wittun a month

following my last month with the firm

I also have an account established pursuant to Section 401 (k) ofthe Internal

Revenue Code. There is approximately S36,000.00 in that account, ofwhich I

have fiill ownership. Upon resignation from the partnership, I would in all

likelihood put that account imo an individual retirement account in an institution

unafiRliated with the law firm.

2. Explain how you will resolve any potential conflict ofinterest, including the

procedure you will follow in determining areas of concern. Identify the categories

oflitigation and financial arrangements that are likely to present potential conflictsof-interest during your initial service in the position to which you have been

nominated

Through my law firm, I will identify all matters which are pending in the Southeni

District ofOhio in which any lawyer in the firm is the counsel of record. I will

then identify to the Chief Judge for the Southeni District ofOhio any and all

matters which may present actual potential conflicts ofinterests. I will be guided

by the rules embodied in the Code of Judicial Conduct and any other governing

ethical and/or disciplinary rules.

2S
563

I do not anticipate any categories of litigation and financial arrangements that are

likely to present potential conflicts ofinterest during my initial service on the

Federal District Court Bench. I do. however, have several matters pending before

the United States District Court for the Southern District of Ohio and I will

identify those specific matters to the Chief Judge. Any other categories of

litigation which would present potential conflicts, of course, would involve cases

that are pending with the court in which my firrn is counsel of record.

3. Do you have any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during your service with the court? If

so, explain.

As a United States District Court Judge for the Southern District ofOhio, I intend

to continue teaching in the National Institute for Trial Advocacy for which I would

receive my per diem expenses if I am a group leader and a small stipend ifI am a

team leader. I also intend to continue to teach in both the trial practice and

deposition courses, schedule permitting. That commitment does not exceed two

weeks annually.

It is possible that I will leach again at Capital University Law School. That will

depend, however, upon my caseload at the Court. I have no other specific plans,

commitments or agreements to pursue outside employment while a Judge on the

United States District Court for the Southern District of Ohio.

4. List sources and amounts of all income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding SSOO. (If you prefer to do so, copies ofthe financial disclosure report,

required by the Ethics in Government Act of 1978, may be substituted here.)

See attached AO-IO Form (pages 31a - 31d).

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

schedules as called for.)

See attached financial statement (page 31 e).

26
564

Have you ever held a position or played a role in a political campaign? Ifso,

please identify the particulars ofthe campaign, including the candidate, dates ofthe

campaign, your title and responsibilities.

Yes I had a role in the 1993 re-election campaign ofThe Honorable Janet

Jackson, then a Judge on the Municipal Court of Franklin County, Ohio. I worked

with my then law partner. The Honorable R Guy Cole, Jr. and Pat Logsdon, Judge

Jackson's campaign manager, in raising money in the African American

community My involvement spanned the period from January 1993 through

Judge Jackson's election in November 1993.

m. GENERAL

An ethical consideration under Canon 2 ofthe American Bar Association's Code

ofProfessional Responsibility calls for "every lawyer, regardless ofprofessional

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 oftime devoted to each.

Big Brothers/Big Sisters Association.

Serving as Secretary and Counsel to the Board ofBig Brothers/Big Sisters

Association ofFranklin County.

In my capacity as counsel to the Board ofBig Brothers/Big Sisters Association of

Franklin County ("BB/BS"), a mentoring organization which matches aduhs with

children ofthe same sex from single-parent homes, I had the responsibility of

serving as BB/BS's counsel on a variety oflegal matters. There was one maner

which comes to mind which was ofvital importance to the organization and whose

resolution was essential to the continued well being ofthe organization both

financially and from a public relations vantage point That situation involved a

threatened suit by the Stonewall Union, a gay and lesbian group, who contended

that BB/BS did not allow matches between homosexual mentors and children. As

BB/BS' lawyer, I was charged with the responsibility of avoiding this lawsuit and

the attendant negative publicity which could have resulted. Through negotiations

with counsel for the Stonewall Union, we were able to reach an agreement which

avoided litigation and was satisfactory to both sides

27
565

Salesian Boys and Girls Club

1 have served on the Board ofDirectors ofThe Salesian Boys and Girls Club for

the past seven years During that time. 1 have provided pro bono legal services to

the Board on various legal matters that have arisen Those matters have included,

but have not been limited to, counseling on employment matters, revising the ByLaws, counseling relating to the property issues as well as to insurance issues The

population served by the Boys and Girls Club is almost exclusively minority innercity youth, who are economically disadvantaged.

State V. Carllon Gary

For the past three years I have assisted one ofmy law partners, James A. Wilson,

in the habeas corpus proceedings involving Carlton Gary. Mr. Wilson was

assigned the Carlton Gary matter by the American Bar Association Death Penalty

Project. Though I am not a member ofthe Death Penalty Project, nor a direct

volunteer in it, I have assisted Mr Wilson in providing services for Mr. Gary.

Those services have included conducting a habeas corpus proceeding in the State

of Georgia and helping to prepare various pleadings, motions and memoranda

related to Mr Gary's habeas corpus proceeding

United Negro Collejze Fund. Fund Raiser

For the past four years, I have been a fund-raiser for the United Negro College

Fund ("UNCF") The UNCF helps economically disadvantaged students by

providing financial assistance to historically African American colleges and

universities. The iiinds that 1 assisted in raising are used primarily to provide

scholarship funds for disadvantaged youth to attend college.

Innerbelt Chair for the United Way Campaifai

In 1995,1 served as the Innerbelt Chairman for the Franklin County United Way

Campaign My responsibility was primarily raising flinds from the downtown

Columbus business community for a projected 36 1 million dollar campaign for the

United Way. The United Way assists local agencies in providing services to the

disadvamaged.

The American Bar Association's Commentary to its Code ofJudicial Conduct

states that it is inappropriate for a judge to hold membership in any organization

that invidiously discriminates on the basis ofrace, sex, or religion. Do you

currently belong, or have you belonged, to any organization which discriminates -

through either formal membership requirements or the practical implementation of

membership policies? Ifso, list, with dates ofmembership. What you have done

to try to change these policies?

45-964 98-19
566

No, except thai I am a member ofthe Omega Psi Phi Fraternity. Inc. which admits

only men This is a college fraternity, which 1 joined as a graduate The fraternity

was founded in 1911 and is comprised primarily of African American males,

although there are no racial restrictions and there are some white male members.

Most persons join during their college years and remain lifetime members. The

members ofOmega Psi Phi include a variety of men of diverse backgrounds.

The Jefferson Golf and Country Club has no restriction on membership based on

either gender or race Nor does it have restrictions on tee times. There is a men's

only grill which most ofthe time is limited to the male members and their guests.

That Grill Room, however, is occasionally open for mixed dining when the dining

room itself is closed.

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? Ifso, did it recommend your nomination?

Please describe your experience in the entire judicial seleaion process, from

beginning to end (including the circumstances which led to your nomination and

interviews in which you participated).

Yes, the selection commission is the Ohio Judicial Review Commission. It

recommended me for this nomination. The Commission is a five person bipartisan

commission composed exclusively oflawyers from the Southern District ofOhio.

It was chaired by Anthony J Celebreeze (Columbus), a partner at Dinsmore &

Shohl LLP, and included Ralph K. Frasier (Columbus), General Counsel for The

Huntington National Bank; Michael Barrett (Cincinnati), a partner at Barrett &

Weber; Beth Schaeffer (Dayton), a partner at Pickrel Schaefifer & Ebeling, and

Gary Smith (Woodsfield), a partner at Sheny, Smith & Coury.

The candidates were required to complete an application which is similar in many

respects to the Senate Judiciary Committee's application for District Court Judges.

The application had to be submitted along with any letters of reference that the

candidates chose to include After all applications were submitted, the

Commission chose approximately ten candidates to be interviewed. The

Commission conducted thirty-minute interviews ofthe candidates. Based on the

interviews and the applications submitted, the Commission chose me as the

candidate to be recommended to Senator Glenn.

Senator Glenn then recommended me to President Clinton. 1 have since been

investigated by the Federal Bureau ofInvestigation, the American Bar Association,

and the Justice Department.

29
567

Has anyone involved in the process ofselecting you as a judicial nominee

discussed with you any specific case, legaJ issue or question in a manner that could

reasonably be interpreted as asking how you would rule on such case, issue, or

question'' Ifso, please explain flilly

No.

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

The role ofthe Federal judiciary within the Federal govenunent, and within society

generally, has become the subjea ofincreasing controversy in recent years It has

become the target of both popular and academic criticism that alleges that the

judicial branch has usurped many ofthe prerogatives of other branches and levels

of government.

Some ofthe characteristics ofthis "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 ofindividuals;

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 numner of an administrator with continuing oversight

responsibilities.

Resolution ofspecific disputes is the function constitutionally delegated to

our adversarial system ofjustice The pretnise ofthe adversary system is that

parties have a strong incentive to develop and present persuasively the facts that

bear upon their individual dispute. Traditional doctrines such as standing and

ripeness, among other things, help assure that the parties presenting a case have

the necessary incentive to develop and present these facts. The responsibility of a

judge, particularly a trial court judge, is to focus the trial or other resolution ofa

case upon the specific facts presented by the parties in that particular dispute.

Most ofthe time, the challenge facing a trial judge is not creating or finding new

law — it is assuring that the law is effectively applied to the case that the parties

present.

Generally, the courts are not well-equipped to resolve issues beyond the

scope ofthe particular controversy before them. Parties normally do not have

adequate incentive to develop and present facts that do not bear upon their

30
568

individual disputes Moreover, remedies broader than necessary to resolve the

panicuiar dispute before a court will inevitably afTea the rights ofindividuals and

institutions that had no opportunity to be heard in the litigation. This type of

judicial activism is inconsistent with our adversarial system ofjustice and the

limited constitutional delegation of power to the judiciary.

On the other hand, our society and the executive and legislative branches

have much broader expectations ofthe judiciary than has historically been the case.

The Courts are now required to review more administrative agency decisions, to

interpret statutes containing remedies unknown at common law, and fashion class

action relief Because of all of these circumstances, particularly in light ofthe

favor with which the courts have treated class action relief under the Federal Rules

ofCivil Procedure, it is inevitable that judicial decisions in this context may often

appear to be the result ofjudicial activism.

A judge must cany out the responsibilities and jurisdiction the Constitution

and Congress has legitimately given to him or her. However, these responsibilities

must be carried out in recognition ofthe fact that we still work within an

adversarial system ofjustice. The role ofthe courts, particulariy the trial courts,

remains to ensure that parties to a particular dispute before the court have a fair

and efficient opportunity to present their controversy, and to order reliefthat is

broad enough to resolve that dispute between the parties, and no broader.

31
569

FINANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAR 19 96

Rvlot* tat o) !«•%. rut L No.

Hartley, Alqenor, i..

United States District Court

For Southern District of Ohio

» Dat* o( avpott

8/2 /97

t»n.j! a:»-^ H«3.»: i«;r" jua^-' inj. j:-

U. £. District Judoe - Nominee 1 ' J'96 7'1 ' 97

Vorys, S«ter, Seymour and Pease

52 East Gay Street

ColuBbus. Ohio 4J215

t Or ;n» b«aia of th- in(or«aiion car.-«in»d in thta lt«part and

IMPORTANT NOTES The instructioos accompanytng Itiis fonn musl be followed Complcic o/l part*,

checking the NONE box for each sectioo where you have DO rcponable informatioe Sign oo Ust p«ge.

L POSITIONS. (Reponing individual only; wc pp 9-13 of iBstructioas.)

D

POSITION

NONE (No rcportablc posHions)

NAME OF ORGANIZATION/ENTITY

Salcsians Boys and Girls Club

Big Brothers/Big Sisters Association of Franklin Count>

U. AGREEMENTS. (ReparttBgiiidmdualoaly-.seepp 14-17o(|nttruaion&)

&&!£ PARTIES AND TERMS

• NONE (No reponable agrecmcaU)

There is no written partnership agreement between myself and my lav finn,

Vorys, Sater, Seymour and Pease. Upon resigning from the partnership.

I will receive the balance of my capital account in the approximate amount

of $52,000.00.

m. NON-INVESTMENT INCOME. (Reporting individual and &pouse: we pp. 18-23 ofInsiniaioiu.)

DATE

•

SOURCE AND TYPE

NONE (No reponable noo-investacnl isfoic)

6 Vorysf Sater, Seymour and Pease

State of Ohio (S)

,^iS$^S.r4MS^

S 13<.<12

S

Vorvfl, Satar, Sgynour and l*ea««

State of Ohio IS)

S 119,358

S

S
SID

PnONCIAL DISCLOSURE KEPORT

Algenon L. HArbley S / I / 97

IV. REIMBURSEMENTS and GIFTS •itiriponjiioii. lodpnf, food. cMcrtainmciit

(Includes ihow 10 ipoiisc Mnti dependent children, UM; ihc pArcnlhehcals "(S)" 2nd '(DC)" lo indicate reportiMc

reimbursements and gilts leceiMtd bs- spouse and dependent children, respectively Sec pp. 26-29 of liwriictioa&.)

SOURCE PE?CR?PTI9f n NONE (No such rcpondllc rcuiiburteinciU» or ^U)

Exempt

V. OTHER GIFTS. (Includes those to spouse &nd dependent chUdren. use the parcnthciicab *(S}' and '(DC)' lo

ixulicate other ^is received by spouse and dependent children, rcspeaivcly. Sec pp. 30-33 of InilriictkMtt.)

SOURCE DESCRIPTION V&US D NONE (No iucfa reportaMe gifts)

Exempt S_

VI. LIABILITIES. (Includes those of spouse and dependeot childrco, indicaie where applicable, perKMi retpoasible

for li^Mlity by using the parenthetical '(S)' (or ieparalc liability at the spouse, *(J)* for joint liability of

reporting individual and spouse, and '(DC)' for liatnlity of a dependent child. Sec pp. 34-36 of lastructioos.)

CREDITOR DESCRIPTION VALVE CTB^ D NONE (No reportabU liabilities)

rifth Third Bank

•ValM Coda*. J-|ti,DOO or l«ai

o>issb.Oi -fi.

.001

000,000 ri-ti,UHV.v>

ISO. OOP. OOP M«iS». 000. (
571

raOkNCIAI. DISCLOSURE REPORT

IMA« o( PmT*an Paperi inq

Al9«non L. Harblay ) / 2 / 97

VII. Page I IWESTMENTS and TRUSTS •income, value, cr.niaclions (ItKludcUhtwc of spouse

and dcpiinittni children St:L-pp .I"?-M of InMruclions.)

D»s.-ript ifjn or An-t>

lAiiratr wttar* ^ppli-Jtlw, p<ir\»i f-f

Ihe •••*< ty uatnq stw parmtttv:;.-«!

-ij * loi ]»iQt »an«rsMp ot t»por;

ii»9 inJivtAu*: and •powsc. - IS'' :;i

••pAr^i* OHTwrariir '''i spoua*, -iK''

Place "H • aJlt:; aacb aSH*.

vaaap-. fio* pi icr diactn<.;rr

c

Ofsaa valua-. «•J r,:

prikod

T:«r\Mc'.ionB daiinq ffntmnq p«ttod

An: 1

11

it.'.-

'I'

valua.

Code

valua

Mcthodl

-Jodie tt- '*d**pK not vxeaip-. fro* diacloaur* |

111

£<ata

CaaOainl

A-HJ

Idcnttty or

buyar/aillPT

lit private

transact lOr:

NONE (Ko rcpoTCab.*

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FINANCIAL DISCLOSTJSE REPORT (COnC'd)

9 /9 /97

Vni. ADDITIONAL INFORMATION OR EXPLANATIONS andfcate part of Repon.)

DC. CERTIFICATION.

ID compliance wiih the provUions of 28 U.S.C. § 455 and of Advijory Opinion No. 57 of (he Advisory Committee oo Judkul

Activities, aod to the best of cny knowledge ai the time after reasooable inquiry. I did act perform any adjudicatory fuocooa in aoy litissjoa

during tbe period covered by thii report in wbich I. my ipouse, or my mioor or depeodeu children bad a finaocia] inierest, as deftced m

Canon 3C(3)(c). in the outcome of such liugattoo.

I certify chat ail information given above (including informadoa pertaining lo my spouse and minor or depeodeiu children, if any) u

accurate, true, and complete to the best of my knowledge and belief, and that any informacioa oot reported was withheld because a nta

applicable statutory provisions permitting ooo-disclosure.

t funher certify thai eamed income from outside employment and honoraria and the acceptance of gifts which have been reported m

incompUaoce with the provisioas of S U.S.C.A. app. 4. § SOI et. seq.. S U.S.C. § 7353 and Judicial Coofereoce regulati(»u.

Sigoanire l^nt^ <r{( p^-^"^-^^ ?-?-_2:;^

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE

SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (3 U.S.C. App. 4, § 104.)

' ii<SK:.t* V¥^ -Tf^SW" JT' 'sV-S'r :f^:l^(?i^-^-: -^•r'r

FILING INSTRUCTIONS: ^1 _

Mill igncd Dngmal ind y additionil coj its to; ComnucTce on Financiai Dtfcloiure .

Administrative Office of the

United Sutei Couru

Suite 2-30L • V'". •••-T-V-'

One Columbus Circle. N.Ei X^i -

•Mcr: V^MI^i' :.,Wisting:too. B.C. 20544 --'y
597

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar Association's Code of

Professional Responsibility calls for "every lawyer, regardless of professional prominence

or professional workload, to fmd some lime to participate in serving the disadvantaged."

Describe what you have done to fulfill these responsibilities, listing specific instances and

the amount of time devoted to each.

From 1980-1989 I managed the law firm's pro bono legal activities and did some of the

work myself. I do not know how much time I spent. I have also done considerable

work for penniless friends and relatives over the years. I would guess it involved 500

hours worth of work. I also recently supervised pro bono litigation in our office for a

convicted murderer in an effort to require the State of Utah to reimburse lawyers in

capital cases.

I have engaged in the following civic service:

Master of Bench, American Inns of Court 1994-present; Former member, Utah Federal

District Court Mediation/Arbitration Panels 1993-96; Former Member Alta View

Hospital Board of Governors 1978-90; Former Member, Jordan Education Foundation

Board 1989-95; Former Member Board of J. Reuben Clark Law Society 1991-93;

Pioneer Theater Company Board 1980-90; 1992-present; University of Utah Law Alumni

Board 1988-90.

The American Bar Association's Commentary to its Code of Judicial Conduct states that

it is inappropriate for a Judge to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do you currently belong, or have

you belonged, to any organization which discriminates - through either formal

membership requirements or the practical implementation of membership policies? If so,

list, with dates of membership. What you have done to try to change these policies?

I do not belong to any such organizations.

Is there a selection commission in your Jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire Judicial selection process, from begiiming to end

(including the circumstances which led to your nomination and interviews in which you

participated).

No. I spoke with Senator Orrin Hatch, Senior Senator from the State of Utah about my

interest in becoming a United States District Judge. I believe we had two conversations.

I have had several conversations with personnel at the Department of Justice. In

addition, I was interviewed by an FBI agent. Further, I was interviewed by a

representative of the American Bar Association.

-19-

45-964 98-20
Has anyone involved in the process of selecting you as a judicial nominee discussed with

you any specific case, legal issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case, issue, or question? If so, please

explain fully.

No.

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

The role of the Federal judiciary within the Federal government, and within society

generally, has become the subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism that alleges that the judicial

branch has usurped many of the prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have been said to include:

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

grievance-resolution;

b. A tendency by the judiciary to employ the individual plaintiff as a vehicle

for the imposition of far-reaching orders extending to broad classes of

individuals;

c. A tendency by the judiciary to impose broad, affirmative duties upon

governments and society;

d. A tendency by the judiciary toward loosening jurisdictional requirements

such as standing and ripeness; and

e. A tendency by the judiciary to impose itself upon other instimtions in the

maimer of an administrator with continuing oversight responsibilities.

Judges are required to honor the philosophy embraced in our system of government:

namely, there are three branches of government with a separation of powers. The

judiciary should not improperly intrude into the fiinctions of the executive or legislative

branches of government. Further, courts are bound to follow the principle of stare

decisis. The developed doctrines of standing and ripeness also control and shape which

appropriate issues and parties come before the judicial branch of govenunent.

-20-
599

I. BIOGRAPHICAL INFOHMATION (Puiiic)

Full name (include any former names used.)

Judge James S. Cwin

Address: (List current place of residence and office addresses).

Office:

Stark County Court of Common Pleas

Stark County Courthouse

115 Central Plaza South

Canton, Ohio 44702

Residence:

Canton, Ohio 44718

Date and place birth.

August 10, 1954

Canton, Ohio

4 Marital Status (include maiden name of wife or husband) and spouse's occupation,

employer's name and business address.

I am married to Bonnie Wetterer Cwin, married November 16, 1985.

She is Senior Location Manager and Business Unit Executive, Travel and Transport

Industry, I.B.M. Corporation.

Suite 400, Main Place,

121 South Main Street

Akron, OH 44308

Education: List each college and law school you have attef>ded, including dates of

attendance, degrees received, and dates degrees were granted.

Kenyon College

Cambier, Ohio

1972-76

A.B., cum laude, granted May 22, 1976

The University of Akron School of Law

Akron, Ohio

1976-1979 (Completed in 2V4 years)

1
600

J.D., earned December 1978, conferred May 1979

Employment Record List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and organizationt,

nonprofit or otherwise, including firms, with which you were connected as an officer,

director, partner, proprietor, or employee -since graduation from college.

Judge, Court of Common Pleas

Stark County, Ohio

1989-present

Gutierrez, Mackcy & Cwin, L.P.A.

1985-1989

Partner, shareholder

Wise & Gutierrez

1979-1985

Associate

Urbanistics, Inc.

Canton, Ohio

January 1979-May 1979

Research Associate

Blakemore, Rosen & Norris, L.P.A.

Akron, Ohio

1976-1979

Law Cleri(

Doctors Hospital of Stark County

Massillon, Ohio

1993-94

Former Board of Trustees Member, unpaid

North Central Ohio Juvenile Diabetes Foundation

Canton, Ohio

1991-94

Former Board of Trustees Member, unpaid

Central Stark County Mental Health Center

Canton, Ohio

1990-1994

Former Board of Trustees Member, unpaid

Canton Croup Home, Inc.

Canton, Ohio

Approximately 1980-1985

Former Board of Trustees Member, unpaid
Military Service: Have you had any military service? If lo, give particulars, including

the dates, branch of service, rank or rate, serial number and type of discharge

received.

None

Honors and Awards List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe would be of interest to the

Committee.

Kenyon College

cum laude

The University of Akron, School of Law

Akron Law Review

Bar Associations List all bar associations, legal or judicial related committees or

conferences of which you are or have been a member and give the titles and dates of

any offices which you have held in such groups.

Ohio Bar Association

Stark County Bar Association

Ohio Judicial Conference

Chair, Court Technology Subcommittee

Approximately 1995 to present

Ohio Judicial Conference

Member, Court Reform Committee

Ohio Judicial Conference

Member, Legislation Committee

Office of Criminal Justice Services

Member, Regional Working Croup

Ohio Judicial Conference

Former member. Jury Instructions Committee

Ohio Judicial College

Lecturer

Slate Justice Institute

Member, "State Courts and Toxic Torts" Advisory Board
Stark County Bar Committee

Grievance Committee, Technology Committee, Citizenship Committee

10 Other Memberships List all organizations to which you belong that are active in

lobbying before public bodies. Please list all other organizations to which you belong.

I do not belong to any organization that lobbies before public bodies

United Way of Central Stark County, committee member

Brookslde Country Club

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.

Ohio Supreme Court, May 7, 1979

U.S. District Court for the Northern District of Ohio, September 4, 1980

U.S. Court of Appeals, Sixth Circuit, August 27, 1986

U.S. Supreme Court, August 12, 1988

My membership has not lapsed in any of these.

12 Published Writings List the titles, publishers, and dates of publication of papers,

articles, reports, or other published material you have written or edited. Please

supply one copy of all published material not readily available to the committee.

Also, please supply a copy of all speeches by you on issues involving constitutional law

or legal policy. If there were press reports about the speech, and they are readily

available to you, please supply them.

I have spoken on legal Issues and legal procedures often. These were given to various

judicial education groups and attorney groups. I have spoken on Ohio's criminal

sentencing provisions, on evidence, on the use of technology, on effective writing, and

on opening statements, among others. I did not keep the notes used for these speeches

or talks.

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

examination.

Good, last physical examination |une 9, 1997
eos

14 Judicial Office: State (chronologically) any judicial office held, whether such position

was elected or appointed, and a description of the jurisdiction of each such

court.

Starit County Court of Common Pleas, appointed April 1, 1989, elected November 4,

1990. In 1996, I was reelected without opposition. General jurisdiction (Felony and

civil)

My peers elected me Administrative Judge in 1990, 1993 and 1997. In 1995, my peers

elected me Presiding judge.

1S Citations: If you are or have been a judge, provide:

(1) citations for the ten most significant opinions you have written; (If any of the

opinions listed were not officially reported, please provide copies of the opinions.

Roseman v. Firemen's and Policemen's Death Benefit Fund, 579 N.E.2d 560 (1991.)

This decision was affirmed by the Ohio Supreme Court in Roseman v. Firemen &

Policemen's Death Benefit Fund. 66 Ohio Sl.3d 443 (1993)

Carrols Corporation v. lacobs Visconsi, 1990 Ohio Misc. LEXIS four (Enclosed)

Moore v. Consolidated Rail Corp., Stark County Case No. 1995 CV 01185, (Enclosed)

State v. Tewell, Stark County Case No. 1996CV01944, (Enclosed)

Bradley v. Time Warner, Stark County Case No. 1996CV1103, (Enclosed]

State v. Fry, Stark County Case No. 1994CR0176, (Enclosed)

Mohr V. Banc One. Akron Stark County Case No. 1992CV304, (Enclosed)

Barr v. Ohio Edison. Summit County Case No. 91-12-4661, (Enclosed)

In Re Annexation of 369.781 Acres. 1990 Ohio Misc. LEXIS 8, (Enclosed)

State V. Williams. Stark County Case No. CV93-02113 (Enclosed)

None of these decisions have been reversed.

2) a short summary of and citations for all appellate opinions where your

decisions were reversed or where your judgment was affirmed with significant

criticism of your substantive or procedural rulings; and If any of the opinions listed

were not officially reported, please provide copies of the opinions.

I have been reversed twenty eight times. I enclose copies of these reversals. To give

perspective, I have presided over more than 426 jury trials in the last eight years.
604

including more than 230 felony cases. I have presided over more than 6,730 toul case

terminations.

State V. Allen Wendling (August 7, 1995), Stark App. No. 95 CA 0044, unreported. In

this case the Court of Appeals of Ohio, Fifth District, Stark County ruled that I erred in

sentencing the defendant. The state charged the defendant with felonious assault, he

was found not guilty of the charged offense of felonious assault, but guilty of the lessor

included offense of aggravated assault with a physical harm specification. The Court of

Appeals ruled that the defendant could not be sentenced to an indeterminate period of

incarceration of two to five years because the indictment had not included a physical

harm specification. The defendant was returned and resentenced.

State V. Bowersock (Oaober 21, 1996), Stark App. No. 1995CA00418, 1996 WL

608464, unreported. The State charged the Defendant with gross sexual imposition.

The State alleged that Bowersock fondled a seven year old girl in the vaginal area and

performed cunnilingus on the child. During trial, the child witness had testified that she

had drawn a picture of the area involved in pretrial interviews. I ruled that the drawings

would be hearsay and not admissible. The Court of Appeals ruled that the drawings

were discoverable under Criminal Rule 16 as a statement of a witness.

State V Stanley, Oan. 17, 1995), Stark App. No. 1994CA00025, unreported. In a

criminal case the defendant had pled not guilty by reason of insanity. At trial the State

had sought to introduce evidence that the Defendant remained silent after being given

Miranda warnings. The State argued that this silence suggested that the defendant was

not delusional. I allowed the evidence. The Court of Appeals ruled that the use of postMiranda silence to prove sanity was not permitted. The Defendant was returned and

pled guilty.

In Estate of Baxter v Grange MM. Cas. Co., 73 Ohio App.3d 512 (5th Dist. 1992) the

plaintiff brought a declaratory judgment action against insurer for bad faith in

investigation and denial of insurance coverage. The Court of Appeals affirmed all the

major decisions I made in the case. The Court, however, ruled that I erred in awarding

prejudgmeni interest before the amount of damage had been arbitrated and confirmed.

Cole V. Motorist Mutual Insurance Company (October 16, 1995), Stark App.

1995CA00066, 1995 WL 617610, unreported. In Co/e, the Plaintiff sued their

uninsured motorist provider for bad faith when the insurer refused to pay a wrongful

death claim. After trial, I granted a motion for a new trial on the issue of damages. The

Court of Appeals ruled that I had erred in refusing to grant a new trial on the issue of

punitive damages as well.

In Sherlin v. Palace Theater, (April 20, 1992), Stark App. No. CA-8476, the plaintiff was

a welfare worker assigned to do clean up at a not-for-profit theater. The plaintiff was

injured in a fall. The Court of Appeals found that I erred in not giving judgment to the

Defendant. The Court of Appeals found that the theater employed the injured party

under a borrowed employee theory. The Court of Appeals found the theater enjoyed

immunity under Ohio's Workers Compensation Law, R.C. 4123.7-t.

lewis V. Pizza Rack, Inc., (5th Dist. 1992) 1992 WL 71512 In this case, the Court of
605

Appeals reversed my grant of a new trial. After a ten-day trial on a contract case and

verdict for a franchisor, the franchisees moved for a new trial. They alleged that the

foreman of the jury was heard saying: "It doesn't matter. They signed the contract and

they should have to honor it." I found this was the central issue in the case and the

foreman had disregarded my instruction. The Court of Appeals found that the

franchisees failed to show the jury's verdict was adversely affected or prejudiced by the

foreman's remarks.

In Klapcbar v. Dunbanon Properties, tfd,(5th Dist. 1991) 1991 WL 249432, I gave

summary judgment on a fraud claim involving real estate. I granted summary judgment

after the plaintiff testified that noone purposely deceived him and that the transaction

was done 'in good faith by everyone.' The Court of Appeals reversed and found

sufficient evidence remained to require a jury trial on the fraud claim.

Wayne Muwal lr)surar)ce Company v. Burdge, (July 10, 1995), Stark App. No.

95CA0011, 1995 WL 617655, unreported. In this declaratory judgment involving

uninsured benefits, I ruled that the insurance company that had paid uninsured benefits

was required to pay medical benefits for the same accident to the father of the injured

parties. The Court of Appeals, with a dissent, ruled that the insurance company could

set off amounts received under the medical pay provisions of the policy.

In Spatz Wholesale Floral. Inc. v. Midwestern Indent. Co., (5th Dist. 1992) 1992 WL

12804, the Court of Appeals found error in the introduction into evidence of an offer to

compromise.

In Davis v. Lichtenwalter, (5th Dist. 1994) 1994 WL 75615, I gave summary judgment

on Plaintiff's false arrest and malicious prosecution claims. I found that the Plaintiff

failed to file his claim within one year of his arrest and within Ohio's statute of

limitations. The Court of Appeals found I had erred, saying that a false arrest claim does

not accrue at the time of the arrest.

Ross v. Burns (March 10, 1997), Stark App. No. 1996CA00284, 1997 WL 116941,

unreported. In Ross, the plaintiff attorney sued his former client for legal fees. The jury

awarded the plaintiff attorney damages. I ruled the plaintiff was not entitled to

pre-judgment interest under Ohio R.C. 1343.03 because the amount due under the

contract was not reasonably ascertainable. The Court of Appeals ruled that the plaintiff

should have received prejudgment interest.

Capadona v. Scott Oanuary 10, 1994), Stark App. No. CA 9271, 1994 WL 22849,

unreported. At trial of a personal injury lawsuit, the defense attorney said:" So I just

ask you to use your collective perspective and return a fair verdict for both Mr. Scott

who has to pay this out of his fjocket • • •" In fact, the defendant had insurance. I

sustained an objection and directed the jury to disregard the statement and reminded

the jury that the counsel's statements were not evidence. The Court of Appeals held

that I should have granted a new trial because of the defense attorney's misconduct.

State V. Patterson (March 14, 1994), Stark App. No. CA 9435, 1994 WL 115952,

unreported. The State charged the defendant with aggravated robbery. The State

alleged that the defendant took cash from a convenience store while armed with a knife.
606

The defendant said the knife involved was not a deadly weapon but instead a produce

knife. I denied a motion to dismiss the aggravated robbefy charge. The Court of

Appeals reversed and said insufficient evidence showed that the knife was a deadly

weapon.

MDS Development v. Professional Services Industries Oune 1997), Stark App. No.

1996CA00353, unreported. The Plaintiff developer sued the defendant soil testing

company for negligence in performing soil tests in an area intended for housing

development. I ruled that a $50,000.00 limit on damages contained in the parties

contract was valid. As a result, I reduced the jury's verdict of $137,375.61 to

$50,000.00. The Court of Appeals found that the contractual limitation on damages was

not enforceable as to the tests conducted.

State V. Luttrell (August 30, 1993), Stark App. No. CA-9207, 1993 WL 370651,

unreported. The State charged the defendant with felonious sexual penetration and

gross sexual imposition, alleging the defendant sexually abused an eleven year old

child. At trial, the victim objected to a single lime of abuse. The defendant objected

that the victim's testimony was not consistent in time with the bill of particulars,

because the bill of particulars alleged a continuous course of conduct. I denied a

motion for a mistrial, finding that there was insufficient showing of prejudice. The Court

of Appeals reversed and ruled that I should have granted a mistrial.

5fate V. Wncem Hill (October 27, 1994), Stark App. No. 94 CA 0142, unreported. Hill

was convicted of carrying a concealed weapon. At trial, the verdict form did not state

the enhancing factor that the weapon involved was loaded or that ammunition was

ready at hand. The Court of Appeals held that Hill should have been sentenced to a first

degree misdemeanor rather than a felony of the third degree because the verdict form

did not have the enhancing factors.

In State v. Zer6e, (5th Dist. 1991), 1991 WL 302418, the State indicted the defendant

for sexual battery. After getting more specific information from the victim, the State

moved to dismiss the charges. The State then indicted the defendant for sexual

imposition. I denied the defendant's motion to dismiss the charges on speedy trial

grounds. The Court of Appeals reversed and found that the sexual imposition charge

was sufficiently related to the sexual battery charge as to cause the speedy trial

requirements to run from the time of the first indiament.

In American Seav/ay Foods, Inc. v. Belden South Associates Ltd. Partnership, (5th Dist.

1994) the parties disputed a complicated commercial lease and security arrangment. In

a replevin action, I ruled that the Defendant real estate developer had right to replevin

equipment taken by the Plaintiff. The Court of Appeals found the real estate developer

was entitled to elect between a return of the equipment or a judgment in the amount of

the value of the equipment. ,

In Shearson Lehman Hutton, Inc. v. Cook, (1991) 1991 WL57131,lal lowed a debtor to

present evidence tending to show that the amount of judgment did not reflect payments.

The Court of Appeals found that the judgment could not be challenged absent a motion

to vacate.
In Morris v. Wilsort, (5 Dist. 1991), 1991 WL 241990,1 granted summary judgment in a

personal injury claim. The Court of Appeals reversed and found material issues existed

that should be submitted to a jury. In this case, parents made claim against a neighbor

for injuries to their son. The son had gone to a neighbor's house and been injured

when he had tried to to pound down a nail with his tennis shoes. The nail entered the

boy's foot. I ruled insufficient evidence showed that the neighbor was aware of the

dangerous condition or of the son's conduct. The Court of Appeals found sufficient

material facts so as to require a trial.

In Ungar v. lea, (1991), 1991 WL 123840, the Court of Appeals found I erred in

allowing the jury to give damages to a building owner where the claim had been

brought only by his insurer.

In Shaw v. Mather\y, {Ohio App. 1991) 1991 Wl 87136,1 presided over a case

involving real estate. The Court of Appeals found that I erred in falling to find that the

Plaintiff's breached a deed covenant of quiet enjoyment.

In Withelm v. Peoples Federal Oanuary 22, 1991), Stark App. No. CA-8181, I allowed

the plaintiff to present evidence that a savings association wrongly allowed the plaintiffs

mentally Impaired son to pledge a joint savings account, resulting in loss to his mother.

The Court of Appeals found I had erred and the savings association was statutorily

immune.

In Ream v. Civil Service Com'n of City of Canton, (1990), 1990 WL 187076, the

Plaintiff contested a civil service establishment of an eligibility list for the position of

police captain. He said the civil service commission violated Ohio's Sunshine Law,

R.C. 121.22, by failing to give proper notice of a meeting. I ruled that the Civil Service

Commission violated this provision. The Court of Appeals reversed. The Court of

Appeals ruled that the Commission was not required to give the Plaintiff notice because

he had failed to place his name on the pertinent "subscribers mailing list."

In Met/ieny v. Spitzer Chevrolet Co., (1990) 1990 WL 93932, I ruled the Ohio Civil

Rights Act gave the Ohio Civil Rights Commission exclusive authority to process the

plaintiff's pregnancy discrimination claim. The Civil Rights Act gave that Civil Rights

Commission power to investigate discrimination and gave plaintiffs the right to appeal

the Civil Rights Commission's determination. The Court of Appeals ruled that a private

cause of action remained. In a later case, EIek v. l-luntington Natl. Bank, (1991) 60

Ohio St.3d 135, the Ohio Supreme Court ruled an employee could institute

independent civil action to seek redress for discrimination on basis of physical

disability.

In State v. Allen (March 24, 1997), Stark App. No. 96CA044, the Court of Appeals ruled

that I had given the defense insufficient time to prepare for the trial of an aggravated

robbery.

In State v. Nieb (May 27, 1997), Stark App. No. 96CA256, unreported, the Court of

appeals reversed because I had not instructed the jury on what "deadly force' is. In the

case, the defendant male punched his girlfriend in the face, breaking her sinuses,

shattering her teeth and breaking her nose. During instructions, the defense attorney

9
never requested an inslruction dePming 'deadly force.' Ohio has panem jury

instructions. Ohio's pattern instruaions do not suggest that trial courts give an

instruction on 'deadly force.'

(3) citations for significant opinions on federal or state corfstitutional issues,

together with the citation to appellate court rulings on such opinions. If any of the

opinions listed were not officially reported, please provide copies of the opinions.

Roseman v. Firemen's and Policemen's Death Benefit Fund, 579 N.E.2d 560 (1991)

This decision was affirmed by the Ohio Supreme Court in Roseman v. Firemen &

Policemen's Death Benefit Fund. 66 Ohio St.3d 443 (1993)

State V. Fry, Stork County Case No. 1994CR0176, (Enclosed)

5ute V. Ma//ett, Stark County Case No. 1993CR3154 (Enclosed)

16 Public Office: State (chronologically) any public offices you held other than judicial

offices, including the terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful candidacies for elective public

office.

I was an unsuccessful candidate for the U.S. Congress in 1984. I served as an appointed

board member of the Canton Fair Housing Commission from approximately 1982 to

1986. I was an unsuccessful candidate for the Ohio State Senate in 1986.

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:

I have never served as a judicial law clerk.

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

I have never practiced law alone.

3. The dates, names and addresses of law firms or offices, companies or

governmental agencies with which you have been connected, and the nature of

your connection with each.

In December 1978, I completed law school after two and one half years. I took the

Ohio Bar Examination In February 1979 and was admitted in May 1979.

In June 1979, I accepted a position as an associate with Wise & Gutierrez, Suite 610,

10
609

Bliss Tower, Canton, Ohio 44702. Wise & Gutierrez was a Martindale Hubbcll 'av*

rated firm. In this position I worked with Earle E. Wise until he took a position as Judge

of the Ohio Court of Appeals, Fifth Appellate District. He is now retired and lives at

11242 Marlboro Avenue, N.E., Alliance, OH 44601, 330/935-2156. I also worked with

Roy Gutierrez. He keeps his office at 610 Bliss Tower, Canton, OH 44702, 330/452-

6567.

In 1985, Judge Wise went to the position as Judge. I became a partner with Roy

Gutierrez and John Mackey in the firm of Gutierrez, Mackey 4 Cwin. John Mackey

keeps his office at 610 Bliss Tower, Canton, OH 44702, 330/452-6567. I continued in

this partnership until I was appointed Stark County Common Pleas Judge on April 1,

1989.

1. What was the general character of your practice, before you became a judge,

dividing K into periods with dates if its character changed over the years.

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

you specialized.

I engaged in a general practice of law. My practice was generally civil although I

represented some defendants in appeals of criminal convictions. My practice was

approximately 90 percent related to litigation. The litigation included personal injury,

labor law and commercial law.

Over time, I increased my emphasis upon litigation in federal court with special

emphasis upon labor law and on equal employment litigation. I became District

Counsel to the United Sleelworkers of America and took responsibility for litigation in

many counties. I also served as counsel to United Food & Commercial Workers,

Intemational Brotherhood of Boilermakers, Graphic Arts International Union, Fraternal

Order of Police, Oil, Chemical and Atomic Workers. I successfully represented these

bodies in complex litigation involving complicated labor, pension, and commercial

matters.

I represented the Sleelworkers in complex, large dollar cases. These included a

bankruptcy litigation case involving more than 500 workers and more than $15 million

in claims. Alone, 1 successfully represented the Steelworkers before the NLRB including

many trials with more than five days of testimony. Alone, I also successfully

represented the Boilermakers in major federal litigation involving more than $500,000

in benefits owing in a plant shutdown.

I represented Stark Technical College as an Assistant Ohio Attorney General acting as

General Counsel. In that position I represented the College in a significant amount of

EEO litigation in federal courts.

I have personally appeared before the Ohio Supreme Court and before the U.S. Court of

Appeals for the Sixth Circuit.

11
610

As an anomey, I appeared in court on civil litigation. While the wide majority of my

work was litigation, the amount of time I appeared in Court varied In the final year of

my practice I acted as sole counsel in a trial that lasted eleven trial days and created a

record of more than 2915 pages. In the same year, I acted as sole counsel in a trial that

toolt eight trial days and created a record of more than 241S pages.

Since becoming a common pleas judge, I have presided over more than 420 jury tnals

including more than 220 felony jury trials.

2. What percentage of these appearances was in:

a. Federal courts.

b. State courts of record.

c. Other courts.

In the early years of my praaice. I appeared in State Courts approximately 80% of my

litigation. In these years, I appeared before Federal Courts, including bankruptcy courts,

approximately 20% of my litigation. In later years, I appeared in Federal Courts

approximately 40% of my litigation and before Federal agencies and bankruptcy courts

approximately 40%-

3 What percentage of your litigation was:

a. civil

b. Criminal.

My litigation was approximately 95% civil and 5% criminal appeals.

4. State the number of cases you tried to verdict or judgment (rather than settled)

in courts of record, indicating whether you were sole counsel, chief counsel, or

associate counsel.

I believe I tried approximately three cases to verdict in jury trials as chief counsel.

S. What percentage of these trials was:

a. Jury

b. Non-jury.

I believe I participated as associate counsel in approximately three additional cases tried

to verdict in jury trials. I tried at least three cases to verdict in nonjury trials as sole

counsel.

18 Litigation: Describe the ten most significant litigated matters which you personally

handled. Cive the citations, if the cases were reported, and the docket number and

date if unreported. Cive 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

1?
611

each case:

a. the date of repr«entation;

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 cixounsel

and of principal counsel for each of the other parties.

I have handled a large amount of litigation as an attorney and more as a judge. These

cases have included:

International Brotherhood of Boilermaken v. Transue & Williams, 879 F. 2d 1388 {6th

Cir. 1989). As sole counsel, I represented the Boilermakers. After negotiations, the

employer and union believed they had reached accord on a new collective bargaining

agreement. The parties then became unable to agree on language for their agreement.

During the pendency of the effort to journalize their agreement, the Company shut

down the plant employing more than two hundred bargaining unit members. The

Company refused to pay severance, insurance and other t>enefits and refused to arbitrate

the dispute. I sued for the Union in the United States District Court for the Northern

District of Ohio. The case was assigned to Judge David Dowd. Upon motion for

summary judgment, the District Court ordered the Company to arbitrate. The Company

appealed. The Sixth Circuit Court of Appeals completely adopted my argument. I

represented the Union in the arbitration. I tried and prepared the case without cocounsel. Mr. Timothy Wood of Schwartz, Einhart, Wood 4 Szuter represented the

opposing side. Mr. Wood is currently at 1400 Bank One Center, Cleveland, Ohio

44114, 216/363-1400

M. K. MorseCo. and United Steelworkers, 302 NLRB No. 147; 138 L.R.R.M. 1245

(1991). As sole counsel, I represented the United Steelworkers in support of charges

made to the NLRB. The case involved claimed violations of the National Labor

Relations Act. The trial of the case took eleven trial days between January 11,1988, to

February 11,1988, and created a record of more than 2915 pages. I was successful in

having Administrative Law Judge Harold Bernard find that the Company had violated all

except one of more than fifty claimed violations. I was successful in having the

Administrative Law judge issue a bargaining order though the Steelworkers had lost the

representation election. These decisions were subsequently upheld by the Board after I

had taken the bench. I tried the case and prepared the brief to the Board without cocounsel. Opposing counsel was Terence Ryan. Mr. Ryan is currently at The Arcade,

Suite 332, 401 Euclid Avenue, Cleveland, Ohio 44114, 216/241-7220.

Summitville Tiles, Inc. and United Steelworkers ofAmerica, 300 NLRB No. 9, 136

L.R.R.M. 1180 (1990). As sole counsel, I represented the United Steelworkers in

support of charges made to the NLRB. The case involved claimed violations of the

National Labor Relations Act. The trial of the case took eight trial days November 3,

1987, and December 3, 1987, before Administrative Law Judge Honorable Karl H.

Buschmann, and created a reco/d of more than 2415 pages. I was successful in having

the Administrative Law Judge Karl Buschmann find that the Company had violated all

except one of seven claimed violations, I tried the case without assistance. Opposing

counsel was Theodore Mann, Jr. Mr, Mann is currently at 644 Huntington Building,

925 Euclid Avenue, Cleveland, Ohio 44115-1493, 216,'621-6147

13
612

In Re. Bnduro Stainless, Inc. United State Bankruptcy Court for the Northern District of

Ohio at Canton. I represented the United Steelworl^ers when a Company employing

more than 500 employees petitioned for bankruptcy and shut down the plant. After

major negotiations and litigation I was successful in having a trustee appointed. At trial

before U.S. Bankruptcy Judge James Williams, I established that the former owners had

siphoned assets of the company at a time when they owed obligations to Steelworkers

and others. The information I developed later led to criminal charges and convictions

against the Company owners. The Trustee sold the Company to a Company that

reopened the plant and again employed more than 500. Mr. Richard Seltzer of Cohen,

Weiss & Simon, 330 West 42nd Street New York, New York 10036-6976, 212/563-

4100 was co<ounsel. Other attorneys involved included Alan Kopit, 3300 BP America

Building, 200 Public Square, Cleveland, Ohio 44114-2301, 216/621-0150 representing

the creditors committee and Howard Levy, 2300 BP America Building, 200 Public

Square, Cleveland, Ohio 44114-2378, 216/363-4500, representing the debtor.

In Re Union Metal, 842 F.2d 879 (6th Cir. 1988). I represented the United

Steelworkers when a Company employing more than 200 went bankrupt. The DebtorCompany sought to stop payments of retiree health and life insurance benefits. First, the

Debtor sought to reject the collective bargaining agreement, 11 U.S.C. § 1113. After

trial before U.S. Bankruptcy Judge James Williams, the Judge denied the Company's

request to reject the collective bargaining agreement. The Company then sought to stop

the payments, claiming they were not administrative expenses. The Bankruptcy Judge

ruled that payments should not be made. I appealed for the Steelworkers. The District

Court affirmed the Bankruptcy Court's order denying payment. The Union appealed to

the Sixth Circuit. The Sixth Circuit reversed. The Sixth Circuit held that the Debtor was

required to pay retiree benefits until the Debtor succeeded in rejecting the collective

bargaining agreement. As a result, the Company remained obligated to honor

commitments to provide retiree health and welfare benefits. The Union members

subsequently received distributions when the Company submitted a plan of

reorganization. I served as ccKounsel with Paul Whitehead, United Steelworkers of

America, 5 Gateway Center, Pittsburgh, Pennsylvania 15222, 412/562-254. Mr. Alan

Kopit, 3300 BP America Building, 200 Public Square, Cleveland, Ohio 44114-2301,

216/621-0150 and Eric Fingerhut, 200 Public Square, Cleveland, Ohio represented the

Debtor.

Louise Weber v. Stark Technical College. U.S. District Court for the Northem District of

Ohio, Case No. 84-3535A. In this case, I represented Defendant Stark Technical

College in an age and sex discrimination case. U.S. District Court Judge David Dowd

presided over the case. The Plaintiff alleged that a decision not to renew her faculty

contract was motivated by sex and/or age. At the time of her separation, the Plaintiff

had been earning in excess of $40,000.00 per year. As sole counsel, I represented Stark

Technical College through a large amount of discovery and trial preparation. The case

was settled in December 1984, after the first day of trial. The case was settled for

$6,000.00. This was far less than the Plaintiff's original settlement demand of more than

$200,000.00. The plaintiff was represented by Ralph Cosiano, 11707 Terminal Tower,

Cleveland, OH 44113, 216/687-1400. (This is his former address. The Ohio Supreme

Court does not have any current registration. I believe he may now be deceased.)

Diana Smith, Guardian ofCeoftrey Dean v. Shane Steel, U.S. District Court for the

14
6U

Northern District of Ohio, Case No. C88-1598. In this case, I represented the Plaintiff

who brought claim for violation of constitutional rights by the Carroll County Sheriff's

Department and its employees. The Plaintiff received massive brain injuries after being

stopped for a traffic violation. We alleged that this resulted from an assault by the

deputy sheriff. We alleged a pattern of similar activities by this Sheriff's Department

that manifested a policy. The case was assigned to U.S. District Court Judge Alice

Batchelder. I represented the Plaintiff through most of the discovery. I assisted in

preparing a response to the Defendants' motions for summary judgment. This case went

to trial after I had taken a seat on the common pleas bench. After I took the bench, the

case was prosecuted by John Mackey, Robert Swan (now deceased) and Kathleen

TaUrsky, all at Suite 610 Bliss Tower, Canton, Ohio, 44702, 330/452-6567. The case

was settled during trial for approximately $250,000.00. The Carroll County Sheriff was

represented by Chris Nolan, 300 Courtyard Square, 80 South Summit Street Akron,

Ohio 44308-1719, 330/253-S4S4.

Helen L lacquez v. Stark Technical College, U.S. District Court for the Northern District

of Ohio, Case No. C84-1673. In this case, I represented Defendant Stark Technical

College in an age and sex discrimination case. U.S. District Court Judge Sam Bell

presided over the case. The Plaintiff alleged that a decision not to renew her faculty

contract was motivated by sex and/or age. The Plaintiff also alleged intentional

infliction of emotional distress. The Plaintiff was represented by Roy Battista, 4808

Munson Street, N.W., Canton, OH, 499-0900. At the time of her separation, the

Plaintiff had been earning in excess of $35,000.00 per year. I represented Stark

Technical College with John Childs, 50 South Main Street, Akron Centre Plaza, P.O.

Box 1500, Akron, Ohio 44309-1500, 330/376-5300; I represented Stark Technical

College through a large amount of discovery and trial preparation. The case was settled

in April 1985. The case was settled for $15,000.00.

Diane Davis v. Allen Tulgan, ff a/., Stark County Common Pleas Case No. 80-1123. I

represented the Plaintiff as an associate of the principal counsel, Earle Wise, 11242

Marlboro Avenue, N.E., Alliance, OH 44601, 330/935-2156. The Plaintiff claimed the

defendant neurological surgeon had failed to properly stage a brain tumor. The Plaintiff

claimed that the Defendant did not surgically remove a benign brain tumor and wrongly

used radiation, chemotherapy and high cortisone therapy. As an associate, I prepared

discovery and all the pleadings. After the Court denied the Defendants' motion for

summary judgment, the case was settled. I believe the case was settled for near

$200,000.00. The principle defendant was Allen Tulgan, M.D. Dr. Tulgan was

represented by David Hilkert, 50 South Main Street, Akron Centre Plaza, P.O. Box

1500, Akron, Ohio 44309-1500, 330/376-5300.

Thomas Butchko v. Starts Technical College, Stark Common Pleas Case No. 84-1992. I

represented Stark Technical College. The Plaintiff alleged that Stark Technical College

had wrongfully failed to renew the Plaintiff's faculty contract. After conducting

significant discovery, the case was settled for $6,000.00. Mr. Butchko was represented

by Ronald Macala, 4150 Belden Village St., Canton, Ohio 44718, 330/493-1570.

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

15
614

not involve liti(ition. Dncribc the nature of your participation in this question,

please omit any information protected by the attorney^iient privilege (unless the

privilete hat been waived.)

I have been active in a number of judicial and legal organizations. Since about 1995, i

have served as Chair of the Ohio Judicial Conference Subcommittee on Court

Technology. This committee facilitates the use of technology by Ohio Judges. I serve

as a member of the Ohio Judicial Conference Committee on Court Reform and

Legislative Committee. This committee does long range review of issues affecting Ohio

Courts. I have served on the Stark County Bar Association Grievance Committee. I

have lectured a number of Judicial education programs including programs on Ohio's

new criminal sentencing law, on technology, on evidence, and on effective writing.
615

II. FINANCIAL DATA AND CONFUCT OF INTIREST (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 nude to be compensated in the future for any financial or

business Interest.

I have certain rights under the Ohio Public Employee Retiree System. I believe these

entitle me to receive approximately 2% times my years of service of my average best

three years salary. I have no other deferred benefit arrangements excepting tax deferred

savings that were wholly contributed by me.

Explain how you will resolve any potential conflict of interest, including the procedure

you will follow In determining these areas of concern. Identify the categories of

litigation and financial arrangements that are likely to present potential conflicts^finterest during your initial service in the position to which you have been nominated.

I.B.M. Corporation employs my wife as Senior Location Manager and Business Unit

Executive, Travel and Transport Industry. We own I.B.M. common stock. My wife has

certain pension rights with I.B.M. I would have a potential conflia of interest in

litigation involving I.B.M. Corporation. I anticipate I would recuse myself from any

litigation involving I.B.M. I would follow the Code of Judicial Conduct in making that

determination and other determinations.

Do you have any plans, commitments, or agreements to pursue outside employment,

with or without compensation, during your service with the court? If so, explain.

I have no plans to pursue any outside employment with or without compensation. I

have no agreements to receive any income from anyone.

List sources and amounts of all income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding $500 or more (if you prefer to do so, copies of the financial disclosure

report, required by the Ethics in Government Act of 1978, may be substituted here.)

See Financial disclosure report.

Please complete the attached financial net worth statement in detail (Add schedules as

called for.)

See attached. The attached schedule reflects both my and my wife's assets.

17
616

Have you ever htid < position or played a role In a political campaign? If to, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

In 1990, I was a candidate for my current seat on the Starli County Common Pleas

Court. John Boggins (now Judge John Boggins) opposed me. I won with 63% of the

vote. In 1996. I was unopposed for reelection.

I was a candidate for the 29th Ohio Senate District in 1986. I lost a close election to tfie

incumbent.

I was a candidate for the U.S. House of Representatives, 26th District in 19S4. I lost the

election by a wide margin against the incumbent. I have helped on other campaigns

without holding a formal position
••O-MM I

617

FINANCIAL DISCLOSURE REPORT

Nomhufton Rtpoct JW'JM. AbnatnJaiW

OUSCApf 4,SK. lOI-lth

l.ftnMllflfM^ (UvMw./bKi^MrMlMO

GWIN. JAMES S

I LCMnorO

' U.S. DISTRICT COURT. N.D. OHIO 08mi/19S7 I

' 01/01/1996

07/31/1997

i

JM-or ptn-aim)

U.S. DISTRICT JUDGE - ACTIVE

' S. lafM T>p> (ckKk ITTM

X NQUnuion, Dut / /

f iBidd AmMl FMJ

T.n I wo<

j STARK COUMTY COURTHOUSE

CAhfTON. OH 44702

a. OB tk bati if IW ta/anMUM CMtateid

••dOndMipHtaiataf cfan««. Kit!• nr

IB lUi lUpMt iBd Mr

c*<c*»f rt/MgWr>ai>f wrt uavtm*»itnjemti^Mmrtpemtiiw^mtmim Sir'm*e lagp^t

L POSITIONS »fl«»om««»<-i«rf>. »»» »-/J<r«uiiva»«

POSmoN NAME OF ORGANIZATION / EVITTY

n. AGREEMENTS (]t(pcinM|M*M^«^.Mf«pj4-/7^>umai«wf

DATE PABTTES AND TERMS

NOdS (No nponaMt

STATE OF OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM

m. NON-INVESTMENT INCOME

DATE PARTIES AND TERMS

.•«WE (NoK^nnitk nnv-ifprcioiicn nconK I

11/1/96

STATE OF OHIO. JUDCIARY

INTERNATIONAL BUSINESS MACHINES. INC. (S)

GROSS INCOME

tymn. BM voini'i}

$ 175.565.50
618

• !«••• of KrMtt IUpan4

nNANOAL DISCIOSUU REKST ! QVVIN. JAMES S. 08ning>7

IV. REIMBUKSEMENTS uid GIFTS

n

EXEMPT

SOURCE

NONE (Mactn

DESCKimON

V. OTHER GIFTS

savfLCt

'. (N» MKli iiimiuliti irfb)

DESCRimON VUJUB

EXEMPT

VI. UABIUTIES

flffi^ft tteu tfspnat and 4ipm*ti eM4t>n. mactt* ^fw ^ftiewM*. ptnm mponaUtfor hoMiry ^<t MUKI At pmrwmlutiemi 'CP'JhriiyBfaw

BaUuiefikrtfamM. 'U)'pffmu U^tttr} ^frponnt litdixid^ mtd tpoust. md 'ICO' fet liaMm tf• dtpit^tm duid- Sitfp J«-J6 tfhuirmcnma.i

CREDrrOR

X r«ONE (No ttpontbk InMnn)

DESCRimON VALUE coor

-VALCOOESJ-Sl5.0U0af ku IC-Sl5.O0l-SS».a0O L-SM.OOI loSiaO.OOO M-StOO.UOl-lXV-000 K-S!9O0Ol-S5a0L000

0-VK)O.OOI>Sl.OOOOOO Pi*$L000 001 U.OOO.OOO P:>S3 000.001-1:5.000.000 n-CS.OOOODI'SSOOOOOOO P4-S».OOO.aot OTaMN
•19

FINANCIAL DISCLOSURE REPORT ' GHIN, JAMES S. 08/01/1997

Vn. Pi(e J INVESTMENTS and TRUSTS dtpndm OiiUrtfL Sftff I7-S4ifbumtaiom I

Dacrvooa of Astra

[ 'Ui'f"J»M vmtrOifi of ft

' *CD * 4*cr tmdt mtft

I OnwivtliK

luadof

|(1) |0) > tl)

, VlJw VthH T)rpi

1(1} I (2)

[Ant Tjipf

;{A- I ««Mn«. .U-P}'Cadt i hiy. MH.

|H) I M«r I |(Q-W} I'

C«d( Mrtwd (•••

(2) 1(3) |<4)

DHt: 'vtfiH OUl

Moi^ Co* iCo*

Dqr j(l-F» |(A-H)

NONE (DorepMnUca

1 ! 1

1 1 JUH UmWATXCMU. OROHTM rUMD A

1

lOlvldMtd J T •xstrr

•D Dlvtdwd L T ixstn

. 1 tm COMtOB SHUtCfl 1 01VItend M T CXWPT

« mxct 0ALL ccKTjunr runo c Oividcnd L T EXDtPT

A OividMd J EXSHPT 1

1 mOUU. LTKX {OtOWTH nMD

i

D Otvldmd K T IXIKFT

1 TlkCKC VKICI NIB CAP mC .A Dlvl^nd J T

• lOMUU. LYHCH CUM KMtMEItnr

ACCOcnrT

A Dlvidard J T cxDirr

t nnCO OTFQKTWITT noD C Dividend

1 IK C«fi dod«' A-Sl'J>00 w'icij

(Cot 8I-&*) F-SJO.OOI-$1(».0«i C-S1W.001-SI.000.000

c-s:.5oi-$5,o6u

HI-SI.000.O0I-S5.00O.0OO H>S5.000.001 or mort

TWTiaS Ml!<.66lJo(lm

iCol Cl.OJ) O-S500.001-S1.000000

k-ll5-0Ol-SM.O6O L-S50.OOI-SI00 0O0 M-SlOO.OOl-t:J0 006 \-S;50 001-5500 006

ri-S1.000,001-$5.000.000 P:-S5«MOOI.S2<.000.000 P3-S:J.OOO'XII-$50.000.000 Pi-SM.OOOOOIotifwre

3 Vil Vhlt Codes 0-Appraiu1

(Col C2) L -8ook Vil«f

K*Coti (ml niw onl>)

V-Oho

S-Aummeiu

W-EsURUKd

T-C«ih MaA«
680

FINANCIAL DISCLOSURE REPORT OHIN, JAMES S. OS/Ol/lSn

vm. ADDITIONAL INFORMATION OR EXPLANATION'S. (ii>ioi>i»n<>(t<pi>Tt)

a NONE (Wo •dditkwil Utonamea ot t^pliwnom.)

I luiv« righti under the Ohio Public Employees Recirement Systen to recdv* p«nsioo b«n«£lta. I

have right to receive 2.1% times the number of years of Ohio public en^loyment tines Che

•vcrsge of my highest three years salary.

L
621

I NancarPnMalUpM^

FINANCIAL nSCLOSURE REPORT I Qy^,^ JAMES S

DutofRcpon

08/01/1997

K. CERTmCATION

In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of ihc Advisory Comminee on

Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry. I did not perform any adjudicatory

fimction in any litigation during the period covered by this report in which I. my spouse, or my minor or dependent children

bad a rmanctal interest, as defined in Canon 3C(3Kc). in the outcome of such litigation.

I certify thai all the information given above (inchiding information perutning b) my ^>ouse and minor or dependent

diildren, if any) is accurate, true, and con^lele to the best of my knowledge and belief, and that any information im reported

was withheld because it met applicable statutory provisioiu permitting non-discl<»ure.

I further certify that earned income from outside employment aitd honoraria and the acceptance of gifts which have been

RpOTted are in compliance with (be provisions of S U.S.C. app. 4. section 501 et. seq., 5 U.S.C. 7353 and Judicial Conference

rqulatioas.

Signature, ^^^^^C^ 0.. V/M

Note: Any individiul who knowingly and wilfully filsifles or fails lo file this lepon my be subject u civil

and criminal sanctions (3 U.S.C. App 4. Section 104).

FILING INSTRUCnONS

Mail original ami Ibrcc addltioaal copits lo;

ComRiiltrc on Financial Disclosure

Administrative OtTicc of the United Stales Courts

One Columbus Circle, N.E.

Suite 3-301

Washington, DC. 20544
Rnancial Statement

Net Worth

AcsM* UabHitics

Notes payable to bank, secured 1 32.161.29

Cuh on hand *nd in bankt 24.007.89

1 Notes payable to bank, unsecured |

U.S. Gavornmani sscuritiM, add

ictwdul*

'" Notes peyaUe to relativee (

Lisnd Mcuriiws (403.779.07 Accounts and bills due > 377 72

Untiled ncurhin 1 . Unpaid income ta« 1

.

Account! and notm rtcatvabia Other unpaid tav and interest i .

Du« from ralatiwat and Iriands

Real estete mortgages payable, add

schedule (to Keycorp Mortgage Corp.l - i 1SS34908

Ou# from oihars •

Chanel mongages and other liens

payable

Doubtful Other debts, itemiie

Raal astate ownad. add schadulc (290,000.00 Total liabllillai 1 187.888.09

Raal aitata mortgagas raccivabli

60.000.00

Net worth t 601.154S2

Autot and olhar paraonal property Total liabilities and net worth i 789.042.61

Caah valua. Itfa inauranca n.2SB.6S

Olhar asaais, itamiza 0*n«ral Information

Total aa>at> (789.042.61

Are any assets pledged? (Add

Bchadulel No

Are you a defendant m any suiu or

legal actions? Yes

Contingent Liabilities Have you ever taken bankruptcy? No

As andoriar. comakar or gurantor

On laaias or contracts

Legal Claims

Prouislons tor Federal Income Tax

Other special debt
623

gWHAl immaMW Acca

S«cur1ly

MMAX

CSTQX

BW

auTaDi«v

Lcn

SCIX

MDOfa

Mm* Lynch Greann

T. RsMPrm

TOTAL knMtnMot*

Portfolio Value Report

(Includes unnalized gains)

'Estimalad Pnces P«g«1

Cost Basis Galn/Loaa Balanc*

snsm 18.740 10.000.00 1.030.03 11.030i)3

Jjai577 30J10 70.058.49 18.005 95 87.052.44

1J37 601 105 3/4 eOTUM 81,185.97 141.451J5

2.)M3U 18800' 34.2»5.4« 5J90.62 39.586.08

723J87 29J30 15.448.88 S.712.5S 21.158J1

1.775^98 27.380 42.198.86 8.415.31 48.572.17

291.238 30.510 74882 8.138 75 8.885.67

1.1*1 JOOO 28.180 28.660.01 3.902J7 33.582J8

452.804 27J20 10MO.0O 2J87.e0 12J67.60

112.140 1.000 112.14 OOO 112.14

272.r61J2 1J1.017.15 403.r7«.«r
624

III CENEXAI (PUBUO

An ethical consideration under Canon 2 of the American Bar Association's Code of

Professional Responsibility calls for "every lawyer, regardless of professional

prominence or professional workload, to find some time to participate in serving the

disadvantaged. Describe what you have done to fulfill these responsibilities, listing

specific instances and the amount of time devoted to each.

I have given much lime to programs benefittlng less advantaged persons. I served for

more than six years on the Board of Trustees of Canton Croup Home, Inc. (Pathway),

which operates group homes and referral services for children involved in abuse or

criminal situations. This responsibility involved monthly meetings to track the

governance of the program together with time spent on activities needed for fund

raising.

I served more than five years on the Canton Fair IHousing Commission. This

commission sought fair housing for all citizens. This responsibility required monthly

meetings and special meetings to review Fair Housing Enforcement.

I served for more than five years as a member of Central Mental Health Agency, Stark

County's largest provider of mental health services. Central Mental Health provides

most of these services to the poor. This responsibility involved monthly meetings and

committee meetings to monitor the program.

I was a founding trustee of the Urban Family Life Institute. It gives advice, food, and

other services to disadvantaged families. The Urban Family Life Institute tries to change

destructive patterns of behavior.

For more than six years, I have served as a member of the United Way Community

Planning Committee, which reviews and makes grant of seed monies to community

programs for the disadvantaged. This responsibility requires monthly meetings and

other reviews of applicants for funding.

The American Bar Association's Commentary to its Code of judicial Conduct states

that it is inappropriate for a judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or religion. Do you currently

belong, or have you belonged, to any organization which discriminates -through

either formal membership requirements or the practical implementation of

membership policies? If no, list, with dates of membership. What you have done to

try to change these policies?

I do not currently belong nor have I ever belonged to any organization that

discriminates on the basis of race, sex, or religion.

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to

19
and (including the circumstances which led to your nomination and interviews in

which you participated).

U.S. Senator John Glenn has used a selection commission to screen applicants for

appointment to the federal courts and to make recommendations concerning the same.

The Committee has two Democrats, two Republicans and is headed by former Ohio

Attorney General Anthony Celebrezze, Jr.

This Commission solicited applications from all persons who had expressed an interest

in appointment to the district court in recent years. The press reported about this

selection process. The Commission then received a large number of its long application

form. The Commission also solicited comments concerning applicants. After this, the

Commission narrowed the field to between 12 to 15 applicants. The Commission then

interviewed these persons. After interviewing these applicants, the Commission me first

for this position on the U.S. District Court. I am told that this Commission unanimously

selected me for this position.

Near May 15, 1997, Ohio Senator John Glenn adopted this Commissions

recommendation and sent a letter supporting me for appointment. Subsequently, I have

been interviewed by representatives of the Department of Justice, the F.B.I, and the

American Bar Association.

Has anyone involved in the process of selecting you as a judicial nominee discussed

with you any specific case, legal issue or question in a manner that could reasonably

be interpreted as asking how you would rule on such case, issue, or question? If so,

please explain fully.

I have not discussed any pending case, legal issue, or question with anyone involved

with the selection process in a way that could reasonably be interpreted as asking how I

would rule on such case.

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

The role of the Federal Judiciary within the Federal government, and within society

generally, has become the subject of increasing controversy in recent years, it has

become the target of both popular and academic criticism that alleges that the judicial

branch has usurped many of the prerogatives of other branches and levels of

government.

Some of the characteristics of this "judicial activism* have been said to include:

a. a tendency by the judiciary toward problem solution rather than

grievance resolution;

b. a tendency by the Judiciary to employ the individual plaintiff as a

vehicle for the imposition of far-reaching orders extending to broad

classes of individuals;

c. a tendency by the judiciary to impose broad affirmative duties upon

governments and society;

20
d. a IcndciKy by the judiciary toward lomening jurisdictional requircincnb

iuch as standing and ripeness; and

e. a tendency by the judiciary to impose itself upon other institutions in the

manner of an administrator with continuing overnight responsibilKies.

Article III, Section 2 of the U.S. Constitution gives judges power over 'Cases, in Law

and Equity * * *' With this grant, the Constitution says Courts should decide real

disputes between parties with real interest. Judges should decide the issues at hand and

the case at hand.

Courts function best when judges make narrow decisions on the facts and law of

irxlividual cases. Litigants have real interests that should not be subsumed to some

agenda of the judge. They need to feel that their case was decided upon the law and

facts of their case. Parties should not feel that outside influence or Issues decided their

case.

Judges should maintain the quality of Impartiality. They lose the perception of fairness

If litigants or the public believe that they decided the case on matters other than the

merits of the parties' case and on the law. Also, Judges lose the perception of fairness If

the parties or the public sees judges as deciding cases on a whim.

Stare declsis is the preferred course because It promotes the evenhanded, predictable,

and consistent development of legal principles. It fosters reliance on judicial decisions,

and contributes to the actual and perceived Integrity of the judicial process. Stare

declsis Is specially Important In cases Involving property and contract rights, where

reliance Interests are Involved.

Judges should use care in the exercise of their authority.

21
627

I. BIOGRAPHICAL INFORMATION (PUBLIC)

1. Pull name (include any formar names used.)

Richard Conway Casey

2. Address: List current place of residence and office

address(es).

Office: Brown & Hood

One World Trade Center

New York, New York 10048

Residence: New York, New York 10022

3. Date and place of birth:

January 19, 1933; Ithaca, New 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.

5. Education: List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

College of The Holy Cross, September 1951 to June 1955.

Received a B.S. Degree on June 8, 1955.

Georgetown University Law Center, September 1955 to

January 1958. Received LL.B. Degree on February 1,

1958.

6. Employmant Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and organizations,

nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or

employee since graduation from college.

Answer: During my law school career, I accelerated my

academic program and attended school year-round. The only

employment that I had during law school was when I worked

during two Christmas seasons as a clerk at The Georgetown

Men's Shop.

From April 1958 through approximately June 1958, I

served as a legal investigator for the District Attorney's

Office, New York County.
628

From June 1958 through December 1958, I served in the

United States Amy.

From June 1959 to September 1963, I served as Assistant:

United States Attorney, Southern District of New York.

From September 1963 until June 1964, I served as

Counsel to Special Commission of the State of New York.

From July 1964 to the present, I have been associated

with, and a partner of, the law firm of Brown & Wood, New

York City, New York (the firm had different names during

this period). I was hired as an associate in 1964, and was

made a partner on January 1, 1970. I became Of Counsel to

the firm in 1984.

I am a member of the Board of Directors of Guiding Eyes

for the Blind, catholic Guild for the Blind and Ski for

Light.

7. Military Service: Have you had any military service? If

so, give particulars, including the dates, branch of

service, rank or rate, serial number and type of discharge

received.

Answer: I served in the United States Army from June

1958 to December 1958. I was released from active duty as a

PFC, and remained in the reserve affiliated with the

National Guard of New York. From October 1, 1961, to August

1962, I returned to active duty during the Berlin Crisis,

and held the rank of Specialist 4th Class (E-4) while

serving at Fort Knox, Kentucky. I was honorably discharged

in the summer of 1963. My serial number was NG 21-992-946.

8. Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Georgetown University Law Center

1956: Beaudry Cup Winner (best Hoot Court argument.

Freshman Class).

1957-1958: Finalist, National Moot Court Competition.

College of the Holy Cross:

Freshman Class President, Varsity Football Letter

and Purple Key Honor Society.

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are

or have been a member and give the titles and dates of any

offices which you have held in such groups.

Member, American Bar Association
629

Member, Association of the Bar of the City of New York

Member, The Special Comnisslon for Discovery Abuse in

the Eastern District of New York, 1979-1980, appointed by

Chief Judge Jack B. Heinstein.

Member, The Special Committee on Discovery Abuse,

1975-1979, appointed at the request of Chief Justice Warren

Burger.

Chairman, Forum on Securities Litigation of the Bar

Association for the State of Colorado, 1976.

Chairman, American Bar Association Committee on

Securities Litigation, 1975-1977.

Panelist, American Bar Association Litigation

Section Panel on Discovery Abuse, 1975.

Member, Southern District of New York Trial and

Appellate Panel established under Federal Criminal Justice

Act, 1964-1984.

10. Other Membgrshlps: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

I do not belong to any organizations that are active in

lobbying before public bodies.

The other organizations to which I belong are:

Member, Board of Directors, Guiding Eyes for the Blind.

Member, Board of Directors, Catholic Guild for the Blind.

Member, Holy Cross Alumni of New York.

Member, American Association of the Sovereign Military Order

of Malta (Knights of Malta).

Member, Board of Directors, Ski for Light.

Member, Friendly Sons of St. Patrick.

11. Court Admission: List all courts in which you have been

admitted to practice, with dates of admission and 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 the State of Mew York, Second

Department, on July 1, 1959

Admitted to the Bar of the United States Court of

Appeals for the Second Circuit in May, 1960

Admitted to the Bar of the United States District Court

for the Southern District of New York on June 11,

1963

Admitted to the Bar of the United States Court of

Appeals for the Fifth Circuit in March, 1973

Admitted to the Bar of the United States District Court

for the Eastern District of New York on November 9,

1989

45-964 98-21
630

Admitted before the Supreme Court of the United States

of America on May 26, 1992.

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues

Involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily

available to you, please supply them.

None.

13. HsAltb: What is the present state of your health? List the

date of your last physical examination.

Excellent (but I am blind); December, 1996.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

None.

15. Citations: If you are or have been a judge, provide:

(1) citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional

issues, together with the citation to appellate court

rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the

opinions.

Not applicable.

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

Assistant United States Attorney, appointed by William P.

Rogers and subsequently by Robert F. Kennedy (deceased);

Counsel to a Special Commission of the State of New York

appointed by Chairman Herman Stitchman (deceased).
631

17 . Legal Career;

a. Describe chronologically your law practice and

experience after graduation from law school

including:

1. whether you served as clerk to a judge, and

if so, the name of the judge, the court, and'

the dates of the period you were a clerk;

No

2. whether you practiced alone, and if so, the

addressees and dates;

No

3. the dates, names and addresses of law firms

or offices, companies or governmental

agencies with which you have been connected,

and the nature of your connection with each;

Answer: From June 1959 to September 1963, I served as

Assistant United States Attorney, Southern District of New

York (currently located at 1 St. Andrew's Plaza, New York,

New York 10007).

From September 1963 until June 1964, I served as

Counsel to a Special Commission of the State of New York

(Moreland Act Commission) to investigate public corruption.

From July 1964 to the present, I have been associated

with and a partner of the law firm of Brown & Wood, New York

City, New York (the firm had different names during this

period). I was hired as an associate in 1964 and was made a

partner on January 1, 1970. I became Of Counsel to the firm

in 1984.

b. 1. What has been the general character of your

law practice, dividing it into periods with

dates if its chzuracter has changed over the

years?

Answer; From 1959 to 1963, as Assistant United States

Attorney in the Criminal Division, my practice involved

prosecuting Federal crimes.

From September 1963 to June 1964, as Counsel to Special

Commission of the State of New York, I investigated public

corruption.
632

From July 1964 to the present, my practice has

consisted of securities, corporate and criminal litigation.

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

Answer: In private practice, my typical clients have

included numerous investment banking firms, corporations and

individuals employed in the financial services and other

industries. I have specialized in securities, corporate and

criminal litigation.

c. 1. Did you appear in court frequently,

occasionally, or not at all? If the

frequency of your appearances in court

varied, describe each such variance, giving

dates.

Answer: My practice from 1959 through 1963 was

exclusively criminal, and the nature of the practice as

Assistant United States Attorney required that I be in court

on almost a daily basis. After I entered private practice,

my practice was predominantly civil in nature and as a

result, the appearances in court were less frequent.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

Answer: Over my entire professional career, my

appearance in courts has been predominantly (approximately

90%) in Federal courts.

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

Angwar: Since leaving the United States Attorney's

Office, my practice has been approximately 90* civil and 10%

criminal litigation.

4. State the number of cases in courts of record

you tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Answer: Approximately 40 as chief counsel and/or sole

counsel and I was co-counsel or associate counsel on an

additional 5 cases.
633

5. Nbat percentage of thsse trials was:

(a) jury;

(b) non-jury.

Answer: 95% of the trials were by jury, and 5% were

non-jury.

18. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the citations,

if the cases were reported, and the docket number and date

if unreported. Give a capsule summary of the substance of

each case. Identify the party or parties whom you

represented; describe in detail the nature of your

participation in the litigation and the final disposition of

the case. Also state as to each case:

(a) the date of representation;

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

judges before whom the case was litigated; and

(c) The individual name, addressees, and telephone

numbers of co-counsel and of principal counsel for

each of the other parties.

Criminal Litigation

My tenvire at the United States Attorney's office

in New York City included, among various other

prosecutions, my prosecution of three Russian spy

cases listed below.

1. United states v. Sohlen. 60 CR 996 (1961)

(U.S.D.C.-S.D.N.Y.) (sentencing opinion written by

Judge Herlands appears in United States v. Soblen,

199 F. Supp. 11 (1961)).

a) Dates of Action/Decisions: The trial

lasted approximately one month in or about

June, 1961. After trial by jury before the

Honorable Judge Herlands, the defendant was

found guilty of espionage. The conviction

was affirmed on appeal and certlorarl was

denied by the Supreme Court of the United

States.

b) Court and Judge: The case was tried before

the United States District Court for the

Southern District of New York, the Honorable

William Herlands, District Judge, presiding.

c) Parties to the Litigation: Dr. Soblen,

along with 18 unindicted co-conspirators, was

charged with espionage.
684

d) Summary of Case/Significance: As Assistant

United States Attorney and lead counsel, I

prosecuted Dr. Soblen for espionage. The

case disclosed a network of Soviet spy

activity In the United States that was, as

Judge Herlands noted In his sentencing

opinion, "conceived by the Secret Police of

Soviet Russia" and "executed through the

active connivance and financial support of at

least two high-ranking Soviet diplomats." 199

F. Supp. at 13.

e) Co-Counsel/Opposing Counsel: Hy co-counsel

was David R. Hyde (currently a retired

partner with the law flnn of Cahlll Gordon &

Relndel, 80 Pine Street, New York City, New

York 10005 (tei. (212) 701-3000)). The

defendant was represented by Mr. Joseph

Brill, a sole practitioner formerly residing

at 66 Pinebrook Boulevard, New Rochelle, New

York, and by Mr. Jacob W. Friedman, a sole

practitioner formerly residing at 295 St.

John's Place, Brooklyn, New York. Neither

Mr. Brill nor Mr. Friedman is currently

listed in the Martlndale-Hubbell Law

Directory. I do not know the current

whereabouts of these gentlemen, or whether

they are still alive.

2. United States v. Zborowski, CR 156-113 (1962)

(U.S.D.C.-S.D.N.Y.)

a) Dates of Action/necisions: The trial was

conducted during the autumn of 1962. After

trial by jury before the Honorable Judge

Richard Levet, the defendant was found guilty

of perjury.

b) Court and Judge: The case was tried before

the United States District Court for the

Southern District of New York, the Honorable

Richard Levet presiding.

c) Parties to the Litigation: The defendant

was Mark Zborowski, a Soviet espionage agent

who was charged with perjury.

d) Summary of Case/Significance: As Assistant

United States Attorney and lead counsel, I

prosecuted retrial of the defendant for

perjury. The defendant was a Soviet spy who

had perjured himself before a grand jury by
635

denying that he Icnew iuiother Soviet spy. The

second spy ultimately testified against Mr.

Zborowski at trial. The case was retried

after his original conviction had been set

aside by the Court of Appeals for the Second

Circuit.

e) Co-Counaal/Opposing Counsel; Counsel for

the defendant was Frederick S. Nathan

(currently with the law fira of Kelley, Dry*

t Warren, 101 Park Avenue, New York City, New

Vork 10178 (£B1. (212) 808-7800)).

3. United States v. DT-iiimiinnrt - 62 CR 910 (1963)

(U.S.D.C.-S.D.N.y.) (no reported opinion).

a) Dates of Actlon/Dacislons! The trial

lasted approximately one month in or about

July, 1963.

b) Court and Judge: The case was tried before

the United states District Court for the

Southern District of New York, the Honorable

Thomas Murphy, District Judge, presiding.

c) Parties to the Litigation; The defendant

was Mr. Nelson Drummond, a Chief Petty

Officer in the United States Navy.

d) SummarY of Case/Significance: As Assistant

United States Attorney, I, along with my cocounsel, prosecuted the defendant for

espionage for attempting to deliver military

secrets to agents of the former Soviet Union.

The first trial of the defendant occurred in

or about May, 1963, and resulted in a

mistrial due to the inability of the jury to

reach a verdict. The case was re-trled in

July 1963 and the defendant was found guilty

of conspiracy to commit espionage.

e) Co-Counsel/Opposing Counsel: My co-counsel

were Vincent L. Broderick (now deceased), and

John S. Martin (currently, a United States

District Court Judge In the Southern District

of New York, U.S. Courthouse, 500 Pearl

Street, New York City, New York 10007 (tfil-

(212) 805-0228)). Defending Mr. Drummond was

Mr. William Chance (deceased).

10
civil Llttyatlon

My civil litigation experience has been prioarily

in the areas of securities and commodities fraud

cases brought by customers of brokerage and

investment banking firms, including, among others,

Merrill Lynch, Pierce, Fenner & Smith Incorporated

("Merrill Lynch"). The seven cases set forth

below are a fair representation of my private

practice.

4. Sinva, Inc. v. Merrill Lynch, 65 Civ. 1566

(U.S.D.C.-S.D.N.y.) (a reported decision, with

respect to defendant's motion to dismiss the

complaint or stay the action pending arbitration,

appears at 253 F. Supp. 359 (1966)).

a) Dates of Action/Deciaiona; The case,

through the initial complaint and subsequent

trial, extended from 1965 through 1969.

b) Court and .Tudga: The case waa tried before

the United States District Court, Southern

District of New York, the Honorable Dudley

Bonsai, District Judge, presiding, and was

retried before the Honorable Lloyd McKahon,

presiding.

c) Partlea to the Litigation! The plaintiff

to the civil suit was Sinva, Inc., a

Panamanian corporation with its headquarters

in Berne, Switzerland, and Merrill Lynch.

d) Surnmary of Caaa/SignifIcancai I was the

lead counsel for the defendant, Merrill Lynch

in a commodities fraud action brought by a

Merrill Lynch customer in connection with

losses suffered by the ctistoaer in sugar

futures contracts. The first trial ended in

a mistrial, due to the inability of the jury

to reach a verdict. The second trial

resulted in a verdict for the defendant

Merrill Lynch. The significance of the case

lies in the fact that it was a successful

defense of a complex commodities futures

contracts case before a jury.

e) Co-Counael/QppQalng Counsel: My CO-COUnsal

was Robert A. Foy, currently located at 90

South Bedford Road, Mt. Kisco, Hew York 10549

(£fil. (914) 666-7393). Counsel for the

plaintiff Sinva, Inc. were Lawrence P.

11
637

HcGauley, (current address unknovm) and John

G. Lipsett (currently with the law firm of

Forsythe, Holbrook, Seward & Bovone, 420

Lexington Avenue, New York, New York 10170

(t£l. (212) 867-8280)).

5. Dunn v. Merrill T.ynch, 64 Civ. 1285 (The only

reported decision in the case, relating to the

recovery by Merrill Lynch of the actual expenses

for flying in witnesses subpoenaed by the

plaintiff, appears at 279 F. Supp. 937 (1968)).

a) Dates of Actlon/Decisions: The complaint

against Merrill Lynch was filed in 1964, and

the case ultimately decided in February,

1968.

b) Court and Judge: The case was tried before

the United States District Court for the

Southern District of New York, the Honorable

Milton Pollack, District Judge, presiding.

c) Parties to the Mtigatlon; The plaintiff

was Burton D. Dunn, an investor residing in

France, who employed Merrill Lynch as his

broker during the early 19eos.

d) S\iiiiin»i-Y of Case/fiiiynificance: As counsel,

I represented Merrill Lynch in an action

brought by a customer who sustained losses

through his investment in the common stock of

Syntex Corporation. Mr. Dunn sued Merrill

Lynch under a theory of common law securities

fraud and negligence under the Securities

Exchange Act of 1934, which was tried before

a jury and ultimately resolved in favor of

the defendant Merrill Lynch. The case

presented an original attack on the

reasonableness of investment recommendations

provided by a broker and involved the

explanation of both "technical" and

"fundamental" factors supporting such

research to a jury.

e) Co-Counsel/Opposing Counsel: Assisting me

from Brown & Wood, One World Trade Center,

New York City, New York 10048 was Henry F.

Hinnerop (tfil. (212) 839-5555). Counsel for

the plaintiff was John F. McNeill, of the law

firm of stone, Halone, Driver & McNeill,

formerly at 120 Broadway, New York City, New

York. The firm has disbanded, and there is

12
638

currently no listing for Mr. McNeill in the

Martlndale-Hubbell Law Directory.

6. Simon v. Merrill Lynch, Civ. Mo. 34094

(Michigan)/ Misc. 675, Civ. Action No. CA 3-4273

(Texas).

a) Dates of Action/Decisions: The suit was

initiated on December 16, 1969, and was

conducted through August, 1972. The sole

reported decision in this case denying class

action status and upholding the judgment in

favor of defendant, Merrill Lynch, was

affirmed by the United States Court of

Appeals for the Fifth Circuit reported at 482

F.2d 880 (1973).

b) Court and Judge: The case was first tried

before the United States District Court for

the Eastern District of Michigan, Southern

Division, and was subsequently transferred to

the United States District Court for the

Northern District of Texas, Dallas Division.

The case was tried without a jury to the

Honorable Ernest J. Guinn, District Judge,

who rendered a judgment in favor of the

defendant, Merrill Lynch.

c) Parties to the Litigation: Plaintiffs

James Simon and The Bank of the Commonwealth

were two representatives of a purported class

(of approximately 6,000 individuals)

allegedly injured by the advice of defendant

Merrill Lynch with respect to the stock of

Scientific Control Corporation

("Scientific").

d) Summary of Case/Significance: This case

was one of three cases in which I was lead

counsel to Merrill Lynch and one of its

employees that arose out of allegedly

improper and misleading investment advice

provided by employees of Merrill Lynch with

respect to the stock of Scientific, a Dallas

corporation which filed for bankruptcy after

having been favorably described in research

reports of Merrill Lynch. In the slmon case,

the plaintiffs attempted to certify their

claims as those of a class of plaintiffs.

The Simon case (as well as the other related

Scientific cases) was notable both for the

allegations of pervasive and substantial

13
639

fraud by Merrill Lynch's sales

representatives, as well as the novel attacks

by both private plaintiffs and the United

States Securities and Exchange Comnission

alleging that Merrill Lynch's "inadequate"

securities research was a violation of the

Securities Exchange Act of 1934. •

e) Co-Counsel/Opposing Counsel: Merrill

Lynch's local counsel of record in Michigan

were Erwln S. Simon and Douglas G. Graheun, of

the law firm of Butzel, Levin, Winston &

Quint (now Butzel & Long), Suite 900, 150

West Jefferson, Detroit, Michigan 48226 (Ifil.

(313) 225-7000). Merrill Lynch's local

counsel of record in Texas was Frank Finn, of

the law firm of Thompson, Knight, Simmons &

Bullion (now Thompson & Knight), 330 First

City Center, 1700 Pacific Avenue, Dallas,

Texas 75201 (tfil. (214) 969-1700). William

H. Merrill (current address unknown) and

Robert R. Bradshaw, currently of the law firm

of Babb & Bradshaw, P.C., 905 Congress

Avenue, Austin, Texas 787«7 (tel- (512) 457-

0188) were counsel for the plaintiffs.

7. SantilH v. Merrill Lynch^ Civ. No. 4469

(U.S.D.C.-D.R.I.) (No reported decisions.)

a) Dates of Action/Decisions: The action was

Instituted on December 4, 1970. A verdict in

favor of the defendant Merrill Lynch was

issued on February 29, 1972.

b) Court and Judge; The case was tried before

a jury in the United States District Court

for the District of Rhode Island, the

Honorable Edward W. Day, District Judge,

presiding.

c) Parties to the T.ttigation: Plaintiff

Anthony Santllli was an individual investor

who employed Merrill Lynch as his brokerdealer.

d) Siinimary of Case/Sl<piif icance: As lead

counsel in the santini case, I defended

Merrill Lynch against charges that the sale

of Scientific stock to the plaintiff was by

fraudulent and negligent representations as

to the value and safety of such stock by one

of Merrill Lynch's employees.

14
640

e) Co-Counsel/Opposing Counsel: Assisting me

from Brown S Wood, One World Trade Center,

New York, New York 10048 was Henry F.

Minnerop (tel. (212) 839-5555). Local

counsel of record for Merrill Lynch in Rhode

Island was Richard M. Borod, of the law firm

of Edwards & Angell, 2700 Hospital Trust

Tower, Providence, Rhode Island 02903 (£sl.

(401) 274-9200). Counsel for the plaintiff

was John P. Bourcier (a sole practitioner),

with his offices formerly located at 1000

Smith Street, Providence, Rhode Island. There

is currently no listing for Mr. Bourcier in

the Martindale-Hubbell Law Directory.

8. In the Matter of Merrill Lynch. Pierce. Fenner

tr .Smith, Tnc. , Administrative Proceeding File No.

3-4329 before the United States Securities and

Exchange Commission (the "SEC") (reported in SEC

Release No. 34-14149 (1977)).

a) Dates of Action/Decisions: The SEC issued

an order on June 10, 1970, directing a

private investigation of Merrill Lynch to

examine allegations of alleged fraud in

trading the stock of Scientific. On June 22,

1973, the SEC issued an order for a public

proceeding against Merrill Lynch and 49

individuals (either current or former

employees of Merrill Lynch). The proceeding

commenced in March 1974 and, after hearings

lasting over a two-year period, resulted in a

settlement with the SEC effective November 9,

1977.

b) Court and Judge: The proceeding was tried

before Sidney Ullman, an Administrative Law

Judge of the SEC. The trial was completed on

November 2, 1977.

c) Parties to the Lltlsratlon; SEC, Merrill

Lynch and 49 individuals (either current or

former employees of Merrill Lynch).

d) Summary of Case/Significance: The SEC

Order charged Merrill Lynch and its employees

with fraud in the solicitation and trading of

the stock of Scientific, and inadequate

research on behalf of its research department

in recommending the purchase of Scientific

stock. I was lead counsel for Merrill Lynch

and several of its employees during the

15
641

proceedings. At the time the proceeding was

brought, I believe that It was the largest

(with several hundred witnesses) and DOSt

extensive administrative proceeding ever

brought against any broker-dealer by the SEC.

It was also the first time that the SEC had

charged that inadequate research in

reconmending the purchase of a security was a

violation of the Securities Exchange Act of

1934.

e) Co-Counsel/Opposing Counsel: I was the

lead counsel on behalf of Merrill Lynch and

oost of the individual respondents, with the

exception of David Phelps (who was

represented by Otto G. Obermaier (currently

with Weil, Gotshal & Manges, LLP., 767 Fifth

Avenue, New York City, New York 10153 (tfil^.

(212) 310-8843)) and Robert Morvillo,

(currently with the law firm of Morvillo,

Abramowitz, Grand, lason & Silberberg, 565

Fifth Avenue, 10th Floor, New York City, New

York 10017 (tBl. (212) 856-9600))); Richard

J. Murphy (who was represented by Arthur F.

Mathews of the law firm of Hilmer, Cutler &

Pickering, 2445 M Street, N.W., Washington,

D.C. 20037 (t£l. (202) 663-6000), and Mary A.

McReynolds (current address unknown) and John

J. Ruzicka (who was represented by Mahlon H.

Frankhauser, currently with the law firm of

Kirkpatrick & Lockhart, 1800 Massachusetts

Avenue, N.W., Suite 200, Washington, D.C.

20036-1800 (t£l. (202) 778-9000). The SEC

was represented by, among other individuals,

John F.X. Peloso (currently with Morgan,

Lewis & Bockius, 101 Park Avenue, New York

City, New York 10178 (tel. (212) 309-6000)),

Michael T. Gregg (currently Senior Vice

President, Law Department, Dean Witter

Reynolds, Inc., 2 World Trade Center, 4th

Floor, New York City, New York 10048 (tfil.

(212) 392-2222)), Steven J. Glusband

(currently with Carter, Ledyard & Milburn, 2

Wall Street, New York City, New York 10005

itaX- (212) 732-3200)) and Thomas F. Egan

(currently with the brokerage firm of Langdon

P. Cook, 100 Park Avenue, New York City, New

York 10017 (t£l. (212) 682-7074)).

9. Loeb v. Merrill Lynch, 79 Civ. 0788 (U.S.D.C.-

D.N.J.) (no reported decision).

1<
642

a) Dates of Action/Decisions: The action was

commenced on March 20, 1979 and was concluded

on December 31, 1980, with a judgment

rendered in favor of my client, the defendant

Merrill Lynch.

b) Court and Judge: The case was tried before

the United States District Court for the

District of New Jersey, the Honorable

Frederick B. Lacey, District Judge,

presiding.

c) Parties to the Litigation: The plaintiff

in the action was Mrs. Else Julie Loeb, an

investor, against Merrill Lynch.

d) Summary of Case/Significance: I was lead

counsel for defendant Merrill Lynch in a suit

brought by a private investor alleging

misrepresentation, securities fraud and

allegations of unauthorized securities

trading by defendant. The plaintiff sought

compensatory damages in excess of $5 million.

The case was decided in favor of the

defendant with costs assessed against the

plaintiff. The significance of the case was

in the difficulty of trying, before a jury, a

complex case involving a knowledgeable, but

sympathetic plaintiff.

e) Co-Counsel/Opposing Counsel: Assisting me

from Brown & Wood, One World Trade Center,

New York City, New York 10048 were A. Robert

Pietrzak (jt£l. (212) 839-5537) , Judith Welcom

(tfiJL. (212) 839-5362) and Kent E. Daiber

(current address unknown). The local counsel

of record for defendant Merrill Lynch was

John L. Moore (deceased). Counsel to the

plaintiff was John J. LaFianza of the law

firm of LaFianza & Auriginma (deceased), and

Harry L. Garman (current address unknown).

10. Schwarz v. Dean Witter Reynolds. Inc.,

82 Civ. 0452 (U.S.D.C.-S.D.N.Y.)(no reported

decision).

al Dates of Action/Decisions: The action

commenced on April 13, 1982. No decision was

rendered, since the case was settled on the

eve of trial during the summer of 1983.

17
«4S

b) Court and Judya: The case was before the

United States District Court for the Southern

District of New York, the Honorable Robert

Carter, District Judge, presiding.

c) Parties to the Litigation; The plaintiff,

Mr. Fred Schwarz, was a client of Dean

Witter; the defendants were Dean Hitter

Reynolds, Inc., a brokerage flm ("Dean

Hitter") and Paloaba Heingarten, the

individual broker who serviced Mr. Schwarz's

account.

d) amiwii-rY of Case/SignifIniinna: I was lead

counsel for the defendant Dean Hitter in a

case brought by a customer of the defendant

under Section 10(b) of the Securities and

Exchange Act of 1934, alleging securities

fraud and misrepresentation.

The significance of the action Is that the

case involved extremely complex option

trading as well as alleged unauthorized

trading and misrepresentations.

e) Co-Counsel/Opposing Counsel: Counsel for

the co-defendant Palomba Heingarten was Debra

Brown Steinberg, currently with the law firm

of Cadwalader, Hickersham t Taft, 100 Maiden

Lane, New York City, New York 10038 (tal.

(212) 504-6000). Counsel for plaintiff was

Richard Kraver (deceased).

See Attachment A for list of Professional References.

19- Legal ActivltlgK; Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal matters

that did not involve litigation. Describe the nature of

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

Answer: some of the most significant litigation that I

handled, apart from the cases discussed in question 17

above, include representation of Merrill Lynch in private

civil suits (which were settled) and in administrative

proceedings before the U.S. Securities and Exchange

Commission entitled In re nouqilas Aircraft. They were one

of the first significant insider trading cases. In

addition, I was counsel in the New York City Municipal

Securities litigation, representing Merrill Lynch i Co. as

defendant. The case involving my client was ultimately

18
644

settled. I tried numerous arbitration and adninistrative

proceedings, which include administrative proceedings before

the U.S. Securities and Exchange Commission, and

arbitrations before securities self-regulatory bodies such

as the National Association of Securities Dealers, Inc., the

American Stock Exchange, and the New York Stock Exchange.

19
645

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

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 aurrangements you

have made to be compensated in the future for any financial

or business Interest.

As disclosed on the financial forms below, I have vested

Interests in two Brown & Hood retirement plans (the Brown &

Nood Profit Sharing Retirement Plem and the Brown & Wood

Defined Benefit Plan), as well as an IRA. I receive a salary

from Brown ( Hood that will terminate upon my accepting any

other position. I currently receive tax-free income from a

disability Insurance arrangement in an amount equal to

$50,829.24 per annum, which will continue until age 65.

Other than these arrangements, I do not anticipate any other

benefits from my current professional relationship.

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 confllcts-of-lnterest during your initial

service in the position to which you have been nominated.

I do not believe that there will be any potential conflicts

of interest arising out of my professional and charitable

obligations. However, if there are, in an exercise of

caution, I would follow the Code of Judicial Conduct and

recuse myself from any matter that could pose a potential

conflict.

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 incqme received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so,

copies of the financial disclosure report, required by the

Ethics in Government Act of 1978, may be substituted here.)

See Attachment B.

20
646

5. Please complete the attached financial net worth statenent

in detail (Add schedules as called for).

See Attachment C.

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

political campaign? If so, please identify the particulars

of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

No.

21
647

III. GENERAL (PUBLIC)

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.

Answer: I served on the Federal Criminal Justice Act

Indigent Panel for the Southern District of New York and for

the Second Circuit for Trial and Appeals from the mid-1960's

to late 1970's.

I served again during the early 1980's on the Federal

Criminal Justice Act Indigent Panel for the Southern

District Court of New York.

During the late 19e0'8 and early 1970's, I served on

the Assigned Counsel Panel for Indigent Defendants in

criminal cases in Nassau County, New York.

I have handled numerous trials and appeals, on a pro

bono basis, {including U.S. v. McBryde, U.S. v. Tucker^ U.S.

v. Coppin and U.S. v. Stransky), before the federal courts.

From 1983 to 1991, I served as Assigned Counsel on a civil

case under the Civil Rights Act in the United States

District Court for the Eastern District of New York.

I am responsible for Brown Wood representing the U.S.

Blind Golfers Association in connection with their

application for 501-C3 status as a not-for-profit

organization.

I am a membar of the Board of Directors of Guiding Eyes

for the Blind.

I am a member of the Board of Directors of Ski for

Light.

2. The American Bar Association Commentary to its Code of

Judicial Conduct states that it is inappropriate for a judge

to hold membership in any organization that Invidiously

discriminates on the basis of race, sex, or religion. Do

you currently belong, or have you belonged, to any

organization which discriminates — through either formal

membership requirements or the practical implementation of

membership policies? If so, list, with dates of membership.

What you have done to try to change these policies?

22
648

Answer: To the best of my knowledge, the only

organizations that I have been a member of that could

possibly be viewed as discriminatory (if the organizations

listed below are, in fact considered to be discriminatory)

are the following:

Boy Scouts of America (terminated my association in the

1940s)

Knights of Columbus (terminated my association in the

1950s)

The Friendly Sons of St. Patric)c (current member)

In addition, I was a member of a private country club

(the Cree)c Club, Locust Valley, New York) from 1974 to

1985. I do not believe that the membership policies of

the Creek Club during that time, nor currently, are

discriminatory.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which led

to your nomination and interviews in which you

participated).

Answer; senator D'Amato has a Committee to recommend

judicial nominees. I submitted an application to that

Committee and was interviewed by them on Harch 26, 1997.

This committee recommended my candidacy to Senator D'Amato.

Senator D'Amato subsequently designated me for a vacancy on

the U.S. District Court for the Southern District of New

York. I also appeared before Senator Moynihan's Committee

on March 6, 1997. I do not know the recommendation of the

Committee, but I do know that Senator Moynihan has endorsed

my candidacy.

Between May and July, 1997, I was interviewed by the

Department of Justice, the Federal Bureau of Investigation

and the American Bar Association. Based on information and

belief, I received a favorable recommendation by all three

entities.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case,

issue, or question? If so, please explain fully.

No.

23
649

Please discuss your views on the following criticism

involving "judicial activism."

The role of the Federal judiciary within the Federal

government, and within society generally, has become the

subject of increasing controversy in recent years. It has

become the target of both popular and academic criticism

that alleges that the judicial branch has usurped many of

the prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have

been said to include:

a. A tendency by the judiciary toward

problem-solution rather than grievance-resolution;

b. A tendency by the judiciary to employ the

individual plaintiff is a vehicle for the

imposition of far-reaching orders extending to

broad classes of Individuals;

c. A tendency by the judiciary to impose broad,

affirmative duties upon governments and society;

d. A tendency by the judiciary toward loosening

jurisdictlonal requirements such as standing and

ripeness; and

e. A tendency by the judiciary to impose itself upon

other institutions in the manner of an

administrator with continuing oversight

responsibilities.

Answer: Judging is inherently a reactive, not a

proactive, process. Federal judges are bound, in the words

of Article III of the United States Constitution, to resolve

"cases" and "controversies" properly appearing before them,

not to foment disputes or mandate policies that individual

judges find personally compelling. Federal judges have the

duty, while deciding the merits of a case properly before

them, to resolve the competing claims of litigants in a

manner consistent with precedent and with the terms of the

applicable statutes and the Constitution. Judges must

render decisions, and provide remedies, that are both lawful

and equitable for the individual parties, and do not usurp

the allocation of power among the executive, legislative and

judicial branches of the federal government. However, a

judge may not shirk a controversy that is properly before

his or her court, regardless of the identity of the parties.

The rights of the citizenry are ill-served if the courts

sacrifice their obligation to judge fairly between the

claims of competing parties, because one party is unpopular

24
6S0

or because a party may be an agency of federal or state

authority. Within the limited breadth of the judiciary's

authority, the courts have the obligation to interpret the

law, and to resolve the grievances of the parties to the

full extent that the law provides a remedy.

25
651

Attachment "A'

Thomaa McC. Southar, Esq. (212) 839-5846

Brown & Wood LLP

One World Trade Canter

Hew York, New York 10048

A. Robert Pletrzak, Esq. (212) 839-5537

Brown & Wood LLP

One World Trade Center

New York, New York 10048

Laurel J. Southworth, Esq. (212) 839-5559

Brown & Wood LLP

One World Trade Center

New York, New York 10048

Joseph W. Armbrust, Jr., Esq. (212 839-5390

Brown & Wood LLP

One World Trade Center

New York, New York 10048

Janes D. Zlrln, Esq. (212) 839-6576

Brown & Wood LLP

One World Trade Center

New York, New York 10048

Andrew J. Malonay, Esq. (212) 839-5825

Brown & Wood LLF

One World Trade Center

New York, New York 10048

Roger J. Hawke, Esq. (212) 839-5544

Brown & Wood LLP

One World Trade Center

New York, New York 10048

Kenneth J. Komblau, Esq. (212) 839-5529

Brown & Wood LLP

One World Trade Center

New York, New York 10048
652

John J. Kilkenny, Esq. (212) 449-9513

Vice President and Senior Counsel

Merrill Lynch

World Financial Center, North Tower

250 Veaey Street - 12th Floor

New York, New York 10281-1312

Daniel Dolan, Esq. (2121 449-1260

Vice President and Assistant General Counsel

Merrill Lynch

World Financial Center, North Tower

250 Vesey Street - 12th Floor

New York, New York 10281-1312
653

FINANCIAL DISCLOSURE REPORT

niiiiihirtvr• Rnwrt

Attachment B

101-194. Hnnnttr 30. IM9

Caiay, Ricturd C.

lCi«»o t II llll

D.S. District Ct.(8.D.N.Y.) 07/1S/1997

01/01/1»9<

IB

12/31/1996

cnh lumnmittimu

judicial Bomiziae

%Bzo<m t Hood

1 Morld Trad* Cantar

•aw York, Haw Tork 1004t

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•

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NAME OF ORGANIZATION/Brnmr

I Of Couaaal

inaabar. •oard of Olractora

iMaatbar, •oard of Olractora

Brown t Hood, 1 Norld Trada Cantar, NY MY 10041

Ouldlng lyaa for tha Blind

Catholic Guild for the Blind

n. AGUEMDiTS i

DM!

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aPABTOSAND-nXMS

Brotm & Mood Profit Sharing Ratirenent Plan

Brown t Hood Defined Benefit Plan

DL NON-INVtnMEyr INCOME

MIX PAKTIES AND TERMS

MHB OkiipmHiBslMiBKlnM.)

199( Brown k Hood leompenaatlcn)

GROSS INCOME

i.Hi9««a'fl

Ung Tan Disability Policy Ho. 0041S01 S0,>29.2
654

IINANCIAL nSCLmtm •DOKT

Nia>aCh

Casey« Richard C. 07/l(/l»f "U IV. BBMBUSSEMENTS imi GDTS - i w t. >•». ••.•^M

r f. • — I " » Mum »-»^*wii <—j

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aoncE OBscaimcN

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V. OTHER GIFTS

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H' CREDITOR DESCRIPTION VALUE COOP

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Dine Savings Bank Cooperative Loan

VALOOI]aj-SI5.0D0oika K-SMiOOl-niMO L-SSOAIetlOlun U-nCOAI'SBMIIII N-B3DjOOI-SaUM I

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656

mUNCIAL DISCLOSURE REFOBT C«say, Uclurd C. 07/16/1997

vn. 2 INVESTMENTS ud TSUSTS

II arotA i aootf 0«llB«d taMClt Plw

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6ff7

nNANClAL DISCLOSURE REPORT

NuDC of KfMM RepoftiBf

Casey, Richard C. 07/16/1997 1

Vm. ADDITIONAL INFORMATION OR EXPLANATIONS.

[ ~j HOm (Moi.

OadkMi put of npon.)

RE: Schedule VII- Investments and Trusts:

RE: Item 18- Brown t Hood Defined Benefit Plan

The Plan is being terminated effective as of March 31, 1997 and once a determination letter has

been received from the Internal Revenue Service a distribution will be made to all participants

of their accrued, benefit.

FINANCIAL DISCLOSURE REPCNtT Casey, Richard C. j 07/16/1997

SECTION HEADING. (Miau put of Rfm

8BCTI0N 1. POSITIONS (cont'd.)

JA.. Position

A M«nber, Board oC Dir*ctora

Name of Organlsation/Entity

Ski for Light
658

RNANCIAL DISCLOSURE UTOBT Casay, Rlcbard C. 07/16/1997

K. CERTinCATION

IncompUincewid>theproviiioiiiaf28U.S.C. 4SSuidof AdviMiyOpimoaNo. S7of the Advimy ConmiBeeaa

Jndiciil ActJvWet, ind to IIB bes of nsf knowledge al die dme ifter leesonble iniiiiiy, I did not perionn uiy adjndkauiy

functtoo in any litiguion during die period covered by dds report in wtiicli 1, my spouse, or my minor or dqimlntf ctuldzen

Ind t finaociil inlBieil, IS defined in CanoD 3C(3Xc), in die outcome ofsuch litigstinn

I eestidr tlut sU die infonnalioii gives ebovs (inctiiding informslioD penaining to my spouse and ninn or drpmdrrs

diSdren. if any) is accutite, true, and ccoiplcte to the best of my Icnowledge and belief, and (hat any infixmatioii not reported

was willilieid because it met applicable statutory provisioos pennitting noiHlisclosure.

I Anther certify dial earned income &om outside employment and honoraria and die acceptance of gifts which have been

reported are in compliance widi die provisioos of 5 U.S.C. app. 4, section SOI et. seq., 5 U.S.C. 73£3 and Judicial Conference

legulations.

Signature _

H-Ji^t^i-y^

Da, 0-i/X>lq-l

Note: Any faalividual who knowingly and wilfiilly blslOes or fails to Tile this report may be subject to civO

and criminal sanctions (S U.S.C. App. 4, Secdon 104).

nuNG iNsniucnoNs

MeU origlaal aad Uret addMlraal copla U:

Ce«»i»ti OB naaadal Dbcloran

Adalaiilntln Oflln otibc Ueil«l Statas Cents

One ColMbu drck. NX

SaMelOOl

W«M•C•ei^O.C}(H44
659

rotANOAL STATEMEKT

NET WORTH

Ri(:hard Conway CMoy

ftovide teoiopkiCtGaixntffiBiodtlBBvciA

ill issiB OncIudlB{ btsk ifiEeunts, nal sate, SCOBUM, Boa

baldia|<} lU UafaOida (|acbidln( ^bo, aoofipt, lent, a

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Jia

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.JiOfik

• Sc« •ttach^d Statement

•• «5i •^*'** "' 4lS/5i Ownen Coop &r« pled?ed fts collatsral for cooo loan aad* by rns Djjaa £avi„-i9» BanX.
660

RICHARD CONWAY

CASEY 1

I. Cash on hand and

in banks:

1. Chase BcUik

New York, New York

Checking account

No. 001-287923

(balance as of

7/16/97)

$ 2,515.21

2. Merrill Lynch

New York, New York

CMA Account No.

840-99K26 (balance

as of 7/16/97)

$ 891.56

TOTAL: S 3.406.77

II. secvirities:

1. Equity Income

Fund 1st Exchange

Series (unit

investment trust

formed from

interests in AT&T

and Bell affiliates

by Merrill Lynch

upon AT&T

divestiture)

75 shares (value as

of 7/16/97)

$ 7,040.00

2. Exxon Corp.

Common

260 shares (value

as of 7/16/97)

$ 16,315.00

3. Fleet Financial

Group Inc. Common

200 shares (value

as of 7/16/97)

$ 13,012.00

4. General

Electric Corp.

Common

264 shares (value

as of 7/16/97)

$ 19,536.00

5. Bell South

Telecom Notes 6.5*

due 2/1/00

$50,000 face amount

(value as of

7/16/97)

$ 50,312.00

6. AT&T

Corporation Notes

7.125% due 1/15/02

$25,000 face amount

(value as of

7/16/97)

$ 25,718.00

7. Merrill Lynch

CMA Money Market

Account 840-99K26

(value as of

7/16/97)

$ 12,771.00

TOTAL LISTED

SECURITIES

$144,704.00
661

8. 415/52 Owners

Corp.

851 shares

(cooperative

apartment)

$260,000.00'

TOTAL UNLISTED

SECURITIES

$260,000.00

III. Qttieir tanqil?;?.

personal prQpejrty

Furniture,

furnishings and

personal effects

$ 20,000.00'

IV. Cash value of

life insurance

P<?li,?i,?s

$500,000 life

insurance policy

provided by Brown &

Wood to former

partners

No cash surrender

value

$ 0.00

V. Other

misc^llsneQU?

assets

1. Merrill Lynch

IRA, consisting of:

Account No.

84093784 (value as

of 7/17/97)

$ 33,991.57

a. Retirement

Reserves/Cash

(value as of

7/17/97)

$ 382.57

b. Select Ten 96B

Dow Equity Income

Fund

20,348 shares

(value as of

7/17/97)

S 20,750.00

c. Equity Income

Fund Tele-Global

Trust Defined Asset

Funds

(value as of

7/17/97)

$ 12,859.00

' Value of the apartment shares as of July 17, 1997 is an

informal estimate provided by the managing agent, without the

benefit of a formal appraisal. Further documentation will be

provided as available. Acquisition cost (1982) $130,000.

' Estimated value of apartment furnishings and clothes; Mr. Casey

does not have an itemized insurance list of his possessions.

8WNYZ/.l/f999(V0a004/l7U Inly II. 1997 4:l3piB 2

45-964 98-22
2. Interest in

Brown & Wood Profit

Sharing Retirement

Plan: Consisting of

the following

Fidelity mutual

funds)

(value as of

7/17/97)

$376,429.02

a. Magellan (value as of

7/17/97)

$109,344.84

b. Equity Income (value as of

7/17/97)

$107,729.92

c. Investment

Grade Bond

(value as of

7/17/97)

$ 29,540.80

d. Overseas (value as of

7/17/97)

$ 39,604.18

e. Retirement

Money Market

(value as of

7/17/97)

$ 9,301.59

f. Contrafund (value as of

7/17/97)

$ 80,907.69

3. Interest in

Brown «• Wood

Defined Benefit

Plan

(value as of

3/31/97)

$ 2,915.75^

TOTAL

MISCKLLANEOnS

ASSETS

$413,336.34

TOTAL ASSETS $841,447.11

LIABILITIES $ 19,008.89

I. hQan§ 3nd

Indebtedness

' The Plan is being terminated effective as of March 31, 1997,

and once a determination letter has been received from the

Internal Revenue Service, a distribution will be made to all

participants of their accrued benefits.

aWNY2/.l/9999<Vn«XM/I7>5 My It, I997 4:l3pai
663

1. Dime Savings

Bank

Mortgage on

Cooperative

Apartment located

at 415 East 52nd

Street, New York,

New York (value as

of 7/16/97)

$ 19,008.89

2. Credit card,

short term debt

(more than 31 days

duration)

$ 0.00

3. Other $ 0.00

TOTAL LIABILITIES $ 19,008.89

BWNY2/. 1/9999000004/1783 July IS. 1997 4:13pm

NOMINATIONS OF STANLEY MARCUS (U.S.

CIRCUIT JUDGE); RODNEY W. SIPPEL, NORMAN K. MOON, ANN L. AIKEN, AND JEROME

B. FRIEDMAN (U.S. DISTRICT JUDGES)

TUESDAY, OCTOBER 28, 1997

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:32 a.m., in room

SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Grassley, Ashcroft, and Durbin.

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

ON THE JUDICIARY

The CHAIRMAN. If we could begin, I would appreciate it. We have

a number of very important judgeships to be filled and a number

of excellent candidates and nominees here today.

Today, we will move first with Stanley Marcus, of Florida, to be

U.S. circuit judge for the eleventh circuit. I am very familiar with

Mr. Marcus and I have a very high opinion of him, and I look forward to going through a few questions with him.

Then on the district court level, we will go in alphabetical order.

We will start with Ann L. Aiken, of Oregon, to be U.S. district

judge for the District of Oregon; then Jerome B. Friedman, of Virginia, to be U.S. district judge for the Eastern District of Virginia;

Norman K. Moon, of Virginia, to be U.S. district judge for the

Western District of Virginia; Rodney W. Sippel, of Missouri, to be

U.S. district judge for the Eastern and Western Districts of Missouri. So we will have a total of five nominees today.

Do we have our Senators here from Florida?

[No response.]

The CHAIRMAN. I think what we will do is, move in the order of

these judges, but we will also have the Senators that are here

today give their testimony for and on behalf of their nominees, and

we will wait until they get here.

Let us move ahead, then, with Ann Aiken, of Oregon. I see both

Senators are here. Would you gentlemen care to make some remarks about Ms. Aiken?

Senator Wyden, we will go with you first.

(665)
666

STATEMENT OF HON. RON WYDEN, A U.S. SENATOR FROM THE

STATE OF OREGON

Senator WYDEN. Thank you, Mr. Chairman. Mr. Chairman, let

me begin by expressing a special thanks and my gratitude to you

for placing Judge Ann Aiken on the committee's schedule today. I

know of no committee or no chairman who holds a heftier workload

than you do, and I just want you to know that I am very grateful

for all of your assistance, and particularly the good counsel that

you have given me in the consideration of Oregon's judges.

The CHAIRMAN. Well, thank you, Senator Wyden. I am very

pleased with the support of you Oregon Senators for Ann Aiken,

and I think it weighs really heavily in her behalf

Senator WYDEN. Mr. Chairman, before presenting the name of

Judge Ann Aiken to the committee, I would also like to publicly

thank my colleague. Senator Smith, for his extensive efforts on behalf of this nominee. He has joined me earlier this year in requesting that President Clinton re-nominate Judge Aiken, after her

nomination did not reach the Senate floor in October 1996.

He has spoken with many of our Senate colleagues about the

judge's qualifications, and I just want the committee to know that

Senator Smith has been vociferous in his support of the judge every

step of the way and it has been a pleasure to work with him.

Mr. Chairman, I will be brief this morning, but it is a great

honor to present to the committee the name of Judge Ann Aiken

to be a U.S. district judge for the State of Oregon. Her journey to

be before the committee today has been long, and not just in terms

of the 3,000 miles she has traveled, but through a nomination process that began in 1993 with the bipartisan support of the entire

Oregon congressional delegation.

And it is fair to say, Mr. Chairman, that the judge's support for

this position literally spans the entire political spectrum. For example, all living former presidents of our State bar association, eight

Democrats and eight Republicans, are on record supporting the

judge's candidacy.

Her dedication, intelligence, and integrity has won her broad

support from Oregon's law enforcement community, including

many district attorneys in our State, the Oregon State Police Officers Association, and our attorney general. And it is my view that

these many endorsements that she has received are pouring in because of the hard work and thoroughness that has meu-ked her career to date.

Judge Aiken is an individual who somehow manages to squeeze

hours out of minutes. Not only does she maintain a rigorous judicial schedule, but the list of task forces she has chaired and boards

she has served on numbers in the dozens. She has been particularly active and innovative in the cause of juvenile justice. And on

top of all of this extensive work, she has still found time to raise

five sons.

I am particularly pleased to recommend her because of her expertise on family law issues, from how the law and communities

can work together to prevent the breakup of families to dealing

with the rising caseloads of abused youngsters and requiring accountability from youthful offenders.
667

Of special note is her leadership in the founding of the Relief

Nursery. This program has brought together in Lane County, in

our State, the entire community—Republicans, Democrats, business leaders, lawyers, doctors—to provide a service for families

that are finding it very difficult to stay together. The successes of

the Relief Nursery were profiled by Peter Jennings on "World News

Tonight," and I can tell you I have been to this program and what

they are accomplishing with youngsters in crisis is just extraordinary.

In conclusion, Mr. Chairman, I think that Judge Aiken will bring

to the Federal bench the same energy, drive, and integrity that she

has brought to her work as a State judge and as a specialist in

family law. So I want to thank you again, Mr. Chairman, for moving us to this point in the process. Your patience and your aid has

been particularly helpful to me, and I very much hope that now the

committee will complete the nomination process and move Judge

Aiken's name to the floor before the Congress adjourns this year.

[The prepared statement of Senator Ron Wyden follows:]

PREPARED STATEMENT OF SENATOR RON WYDEN

Mr. CHAIRMAN: Let me begin by expressing a special thanks and my gratitude to

you for placing Judge Ann Aiken on the Committee's schedule today as the session

draws to a close. I know of no Committee or Chairman who carries a heftier workload than you, and I'm very grateful for both the immense amount of time and good

counsel you have given me in the consideration of Oregon's needs on the Federal

bench.

Before presenting Judge Aiken to the Committee, I would also like to publicly

thank my colleague. Senator Gordon Smith for his extensive efforts on behalf of this

nominee. He joined me earlier this year in requesting that President Clinton renominate Judge Aiken after her nomination did not reach the Senate floor in October of 1996. He has spoken with our colleagues and vociferously supported Judge

Aiken every step of the way, and it is a pleasure to be working with him.

Mr. Chairman, it is a great honor to present to this Committee the name of Judge

Ann Aiken to be a United States District Judge for the District of Oregon. Her journey to be before the Committee today has been long—not just in terms of the 3,000

miles she's traveled from Oregon, but also in terms of a nomination process that

began in 1993 with the strong oipartisan support of the Oregon Congressional delegation.

Judge Ann Aiken's supporters for this position span the poUtical spectrum. All living former presidents of our state Bar Association, eight Democrats and eight Republicans £ire on record supporting her candidacy. Her dedication, intelligence, and

integrity has won her broad support from Oregon's law enforcement community including many district attorneys throughout our state, the Oregon State Police Officers' Association and our state Attorney General.

It is my view that the many endorsements are pouring in because of the hard

work and thoroughness that has marked her career to date.

It is certain that Ann Aiken is a woman who knows how to sauee2e hours out

of a minute. Not only does she maintain a rigorous judicial schedule, but the list

of task forces she has chaired and Boards she has served on in the past couple years

number in the dozens. She has chaired a Subcommittee of the Governor's Task

Force on Juvenile Justice and served on the Steering Committee and the Board of

Directors of the Court Appointed Special Advocates (CASA) Program. On top of all

this, somehow she still finds time to raise five sons.

When Judge Aiken began her legal career, she made family law her area of expertise. Today, she is known throughout the State as one of the leading figures on family law issues—from how law and communities can work together to prevent the

break up of families, to how to deal with the rising case loads of abused children,

to requiring accountability from young offenders.

Of particular note is her leadership in the founding the "Relief Nursery." With

this project she brought together the entire community—business leaders, lawyers,

doctors, even Republicans and Democrats—to provide a service for families that

were about to crack apart. Recently in fact, the successes of the Relief Nursery in

keeping families together were profiled by Peter Jennings in "World News Tonight."
668

I am certain that Judge Aiken will bring to the federal bench the same intensity,

drive and integrity that she has brought to her work as a State Judge and as a specialist in family law. I want to again thank the Chairman for moving us to this

point in the process, and I urge the committee to complete the nomination process

and move Judge Aiken's name to the floor before Congress adjourns this year.

The CHAIRMAN. Well, thank you. Senator Wyden. Your support

means a great deal to this committee and we appreciate the cooperation you have given to the committee.

Senator Smith.

STATEMENT OF HON. GORDON SMITH, A U.S. SENATOR FROM

THE STATE OF OREGON

Senator SMITH. Senator Hatch and members of the committee, I

ask unanimous consent that my statement be entered in the

record.

The CHAIRMAN. Without objection, we will put it in the record.

Senator SMITH. I would like to speak from the heart and from

my experience with Ann Aiken. Under your counseling. Senator

Hatch, I have visited with every member of the Republican membership of this committee to discuss Ann Aiken, how I know her

personally, and why I believe she is qualified to be a U.S. district

court judge.

I first met Ann Aiken in 1993. We served together on the Governor's juvenile justice task force. Out of that task force came some

of the toughest juvenile crime laws in the United States of America. On that committee, Ann Aiken was a star. I came to respect

her opinion and to value her as a person.

While there are some cases that cause concern for some of you,

I believe if you review the totality of her record, you will see a

tough, fair judge and someone who would do credit to the U.S. district court. I invite and encourage you to ask all the tough questions you can of this woman.

Finally, I would like to present a qualification that some may

view as irrelevant, or even politically incorrect. Ann Aiken is the

mother of five sons. I want you to know that any woman who can

raise five sons, with a busy professional schedule, in my view, will

have the requisite amount of fairness and firmness to be an excellent judge. Ann Aiken can be my judge any day.

The CHAIRMAN. Those sons look pretty good to me.

[Laughter.]

Senator SMITH. I don't want that fact to be overlooked in your

decision as to how you will vote, and I ask that you be tough in

your questions of her, and I ask for your support.

I thank you, Mr. Chairman, and each member of this committee.

The CHAIRMAN. Thank you. Senator.

[The prepared statement of Senator Smith follows:]

PREPARED STATEMENT OF SENATOR GORDON H. SMITH

Mr. Chairman, and Members of the Judiciary Committee, 1 thank you for this opEortunity to introduce Judge Ann L. Aiken of Eugene, Oregon, nominee for the U.S.

•istrict Court. I commend Senator Hatch for his leadership in moving Judge Aiken's

nomination forward, and for his continued commitment to filling the vacancies on

the federal bench.

I would also like to recognize Judge Aiken's family who are here today. Her husband, James Klonoski and five boys—Jake, Nick, Zach, Sam and Chris. It's a pleas-
WKf

ure to have you all here today, and to join my colleagues Senator Wyden and Congressman DeFazio in support of this nomination.

Judge Aiken's service as a District Court and Circuit Court Judge for the State

of Oregon reflects her strong commitment to her community and to her State. In

1993,1 served with Ann on the Governor's Task Force on Juvenile Justice. Together,

we worked to redefine the way Oregon addresses juvenile crime by focusing on

intervention and prevention programs to deter criminal behavior.

Judge Aiken has been nothing less than forthright throughout this process, and

has indicated her willingness to answer any questions the members of the Committee may have with respect to her record. I have found her honest and compelling

which is why I stand beside her today.

Mr. Chairman, it has been said that Judge Aiken represents the people and the

personality of Oregon. A dedicated wife and mother of five young boys. A role-model

in her professional life and in her community. To put it simply, she's forthright,

she's faithful, and a fine nominee for the federal court. I am proud to stand in support of her nomination, and encourage my colleagues to report it favorably to the

floor of the United States Senate.

Thank you Mr. Chairman, and members of the Committee for your consideration.

The CHAIRMAN. Judge Aiken, this is certainly a tribute to you to

have two distinguished Senators both energetically acting on your

behalf, and I personally appreciate both of them and we will look

forward to aslang you some questions.

Thank you both for coming. We really appreciate you coming.

We will now turn to Senator Mack, of Florida. Do you know if

Senator Graham is coming?

Senator MACK. Yes, he is.

The CHAIRMAN. We will accommodate him when he gets here.

Senator MACK. The subway is down again, so I hope he is not

caught on it.

llie CHAIRMAN. OK. Well, we are glad to have you here and we

look forward to hearing your testimony on Judge Marcus.

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

THE STATE OF FLORIDA

Senator MACK. Thank you, Mr. Chairman and members of the

committee. I want to thank you for this opportunity to introduce

Judge Stanley Marcus to the committee and thank you once again

for your overall responsiveness to the needs of Florida's judiciary.

Florida's judicial nominees have enjoyed swift passage from nomination to confirmation this year, and the committee is to be commended for its fine work. And, Mr. Chairman, we do appreciate

that efTort. It has meant a great deal to the State of Florida.

I have to say at the outset that I have never been more enthusiastic in my support for a circuit court nominee than I am for

Judge Marcus. This is a nominee which the Senate can be proud

to confirm, and I am confident that, if confirmed, Judge Marcus

will leave the appellate bench someday with a proud legacy ofjudicial precedent which maintains the integrity of our legaJ system

and provides justice for those who come before him.

Judge Marcus was first appointed to the Federal bench at the

district court level by President Reagan in 1985 after being recommended by Senator Paula Hawkins. He has done an excellent

job presiding in the Southern District of Florida since that time.

Back in 1989, when faced with an earlier vacancy on the eleventh circuit Court of Appeals, I recommended Judge Marcus for

that position. Although I was disappointed at the time that Judge
670

Marcus was not nominated, I am truly thrilled that he is being considered for this position today.

Judge Marcus can be described as one of those judges who is

genuinely loved and respected by attorneys of all sides of the issues

in the south Florida legal community. He possesses a superior intellect and a wonderful disposition, a priceless combination. I know

from previous confirmation hearings that courtesy is a characteristic highly valued by this committee. Judge Marcus possesses this

in abundance. He is friendly, well-liked, and easily approachable.

Even though there is widespread happiness and support for

Judge Marcus because of his nomination, it is mixed with a real

sadness by those who will miss his presence on the Southern District bench. The Miami Herald called Judge Marcus an exemplar

of the law.

Judge Marcus would also bring to the appellate bench a reputation for being tough on crime, something that is imperative to the

future well-being of our State. Prior to his service on the bench.

Judge Marcus was the chief of the Detroit strike force in the Organized Crime and Racketeering Section of the Department of Justice. His excellent service in that position further adds to the

weight of evidence in support of Judge Marcus' fitness for the appellate bench.

I am so pleased to be here today to have the opportunity to introduce Judge Marcus. It has been a joy to interact with him throughout the years, and I expect to continue to hear great things about

the legal career of Judge Stanley Marcus.

I urge the committee's and the Senate's swift coniirmation of

Judge Marcus, and I thank you, Mr. Chairman.

The CHAIRMAN. Well, thank you. Senator Mack.

Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM

THE STATE OF FLORffiA

Senator GRAHAM. Mr. Chairman and members of the committee,

thank you for this opportunity for Senator Mack and I to introduce

not only an outstanding jurist, but also a man that we have both

come to know as a friend and as a pillar of the civic and legal community of our State.

I would like to join Senator Mack in expressing my appreciation

to this committee for the attention and consideration that you have

given to the nominees from Florida. We had a long period in which

there had been vacancies, particularly at our district court level.

Senator Mack and I are pleased to say that today every position

in Florida's district courts is filled, with the exception of two judges

who have recently announced for senior status. So we will be before

you again.

The CHAIRMAN. If I might interrupt you, I think that is largely

because of the efforts of you two.

Senator MACK. Thank you.

The CHAIRMAN. Both of you have worked very hard to nominate

really qualified, good people and the comnfiittee has appreciated

that very much.

Senator GRAHAM. Well, Senator Mack and I appreciate your kind

remarks, but I also realize that it is the recognition of yourself, Mr.
671

Chairman, and your committee members of the circumstances in

our rapidly growing State, with some of its special Federal judicial

concerns, including, unfortunately, the high level of criminal cases

generated by drug-related activities which are now being served by

the full Federal bench. So today's hearing relatively shortly after

the nomination of Judge Marcus is another example of your attention to the needs in this case of the eleventh circuit.

I have a full statement that I would like to file for the record,

but just to supplement some of the comments that Senator Mack

has already so effectively made, Judge Marcus' career combines a

number of elements, from his birthplace in New York City, where

he served in such disparate positions as on the city's Bureau of

Budget and Housing Maintenance and as a caseworker in the State

Department of Social Services and as a legal clerk and assistant

U.S. attorney.

He has brought that broad experience, first, to the U.S. attorney's office in Michigan, where he initially served on and later led

in the Detroit strike force that was established to fight organized

crime in Michigan. His steady rise through the Department of Justice soon led him to Miami where, in 1982, President Reagan appointed Judge Marcus as the U.S. attorney for Florida's Southern

District. This commenced 15 years of service which continues today

to the people of our State through the Federal judiciary.

Judge Marcus' record of judicial service began in 1985 when he

was nominated on the recommendation of Senator Hawkins and

confirmed as Federal district judge for Florida's Southern District.

As Senator Mack has said, since that time he has consistently been

recognized as a fair, dedicated jurist who brings out the best in the

lawyers who appear before him and in the other judges with whom

he serves in a collegial relationship.

He has continued his interest in academic law, serving as professor of trial advocacy at the Brooklyn Law School this year. He has

had a positive influence on the guidance of a number of young attorneys who have worked with him or been influenced by his judicial actions. Judge Marcus has consistently received the highest

recognition of members of the bar who have appeared before him.

He has received in various forms the appreciation of the citizens

of New York State, Michigan, and Florida for his three decades of

service to the people.

I join Senator Mack in urging the speedy consideration and confirmation of the next judge to the U.S. Court of Appeals for the

Eleventh Circuit, Judge Stanley Marcus.

The CHAIRMAN. Thank you. Senator.

[The prepared statement of Senator Graham follows:]

PREPARED STATEMENT OF SENATOR BOB GRAHAM

Good morning. Chairman Hatch, Senator Leahy, members of the Senate Judiciary

Committee, it is an enormous honor to introduce Judge Stanley Marcus for your

consideration as the next member of the U.S. Court of Appeals for the Eleventh Circuit.

Before I extol Judge Marcus' outstanding qualifications and virtues, I want to

thank the Chairman and the Ranking Member for their prompt and thorough review of nominations affecting my home state of Florida.

In the last ten months, the Senate Judiciary Committee has interviewed—and the

full Senate has confirmed—two judges to fill vacancies in Florida's Southern Judicial District, a new United States Attorney for the Southern District, and most re-
672

cently, a federal judge for Florida's increasingly crowded Middle Judicial District

For the first time in several years, Florida has no pending federal district court

nominations, a turn of events that is a testament to your leadership and welcome

news for members of the Florida federal judicial community.

All of the Florida nominees that you have examined and approved this year have

exhibited certain traits that are critical to quality judicial performance. They have

been outstanding legal professionals whose service has earned them the respect and

admiration of their peers. Their qualifications have demonstrated a wide range of

legal, professional, and academic interests and experiences. They have been dedicated public servants and community leaders. And they have appeared before this

committee with the bipartisan support of Senator Mack, myself, and Floridians of

every political background.

In Stanley Marcus, President Clinton has nominated someone who may be at the

top of this impressive class of highly regarded Florida judicial nominees. For more

than three decades. Judge Marcus has done more than just perform quality legal

and judicial service. He has virtually redefined the standard for what it means to

be a highly skilled federal prosecutor and an outstanding judge.

Stanley Marcus' public service roots lie in his birthplace of New York City. Between 1967 and 1978, he served the people of New York almost continuously—in

the city's Bureaus of the Budget and Housing Maintenance, as a Caseworker in the

state Department of Social Services, and as a legal clerk and Assistant U.S. Attorney in the Eastern Judicial District. His only hiatus from this service were the

years he spent at Harvard University Law School, in the United States Army, and

gaining valuable private sector experience at a New York law firm.

At the U.S. Attorney's Office, Stanley Marcus quickly gained a reputation as a

highly effective prosecutor. In 1978, he was assigned to the U.S. District Attorney's

Office in Detroit as part of the "Detroit Strike Force" that had been established to

fight organized crime in Michigan. Two years later, he had been elevated to Chief

Prosecutor on that Strike Force.

His steady rise through the ranks of the Justice Department soon led him to

Miami. In 1982, President Reagan appointed Judge Marcus as the United States Attorney for Florida's Southern District, launching his more than fifteen years of service to the people of South Florida.

Stanley Marcus' record of judicial service began in 1985, when he was nominated

and confirmed as a federal district judge in Florida's Southern Judicial District

Since then, he has been consistently recognized as a fair, dedicated jurist who

brings out the best in both the lawyers who appear before him and the other judges

who work with him.

And since Judge Marcus was appointed a Professor of Trial Advocacy at Brooklyn

Law School in 1997, his positive influence and guidance is now being applied to the

next generation of legal professionals.

Mr. Chairman, throughout his career, Stanley Marcus has impressed his peers

with his legal and prosecutorial skills, won plaudits from lawryers and fellow judges

alike as a fair and highly intelligent jurist, and received the appreciation of citizens

from New York to Michigan to Florida for his nearly three decades of service to city,

state, and country. I urge his speedy approval as the next judge in the U.S. Court

of Appeals for the Eleventh Circuit.

The CHAIRMAN. I think, Judge Marcus, it certainly weighs very

heavily in your behalf to have these two excellent Senators here

speaking for you, and I have no doubt you will have an easy confirmation, as far as I am concerned.

Thank you both for being here. We appreciate you both being

here. It is high praise for Judge Marcus.

We will now turn to our two Virginia Senators. Both of them are

here and have two judicial nominees on the agenda, so we will be

happy to hear first from the senior Senator, Senator Warner, and

then we will turn to you. Senator Robb.

Senator WARNER. Thank you, Mr. Chairman and members of the

committee. I think that while protocol says the senior Senator goes

first, my distinguished friend and colleague was the moving person

in bringing these nominations to the attention of the President and

therefore I would like to defer and let you speak first and then I

will follow.
673

The CHAIRMAN. That will be fine with the committee.

STATEMENT OF HON. CHARLES S. ROBB, A U.S. SENATOR

FROM THE STATE OF VIRGINIA

Senator RoBB. Thank you, Mr. Chairman, and I thank my distinguished senior colleague. I might add at the outset that he and I

have worked together on these nominations, as we have on many

other things, and I very much appreciate the relationship that we

have had and continue to have between our two offices.

I would also, Mr. Chairman, like to thank you and the members

of the committee for scheduling this particular hearing. I know

that there aire many demands on your schedule, and your expeditious inclusion of particularly Judge Moon, who was nominated

more recently, at this time so that we have an opportunity to get

these nominees confirmed before we adjourn is very, very much appreciated.

I should suggest at the outset that I was assisted initially, and

my senior colleague ultimately, in the selection of both of the nominees for the Eastern and Western Districts of Virginia, respectively, by panels of jurists and lawyers in their respective jurisdictions.

I am going to ask unanimous consent, if I might, to have a longer

statement included in the record that more fully describes the distinguished careers of both of these fine judges.

The CHAIRMAN. Without objection, we will put all statements in

the record.

Senator ROBB. I might add that in each case they have a long

and distinguished career on the bench, and in each case they have

been selected at each level by their other circuit court judges or

their other panel, in the case of the court of appeals, to be the chief

judge at each level in which they have participated, which, it seems

to me, is a very important testimony, at least, to the collective

judgment of the peers with whom they have served.

Very briefly, the President has nominated Judge Jerry Friedman

to be U.S. district judge for the Eastern District of Virginia. He is

currently the chief judge of the Virginia Beach Circuit Court. He

has served on that court since 1991, as chief judge since 1994. He

was previously a judge on the Virginia Beach Juvenile and Domestic Relations Court. He served from 1985 to 1991, and he was chief

judge of that particular court for four years.

He received his law degree from Wake Forest in 1969 and his undergraduate degree from ODU in 1965. His wife, Sandra, is with

him. I hope that at the appropriate time, Mr. Chairman, you would

recognize his wife, as well as the wife of Judge Moon, Barbara, who

is also here.

I will also describe, if I may, very briefly Judge Moon's background. He is on the Virginia Court of Appeals, which incidentally

was created during the time that I had the privilege to serve as

Governor. He has been on there from the beginning. He has been

chief judge since 1993. He has a particular record in eliminating

case and publication backlog that had troubled the court before he

became chiefjudge.

He is a visiting lecturer in trial advocacy at the University of

Virginia Law School since 1975 and was the recipient of the Wil-
674

liam J. Brennan, Jr. Award for dedication to teaching triiil advocacy. Prior to that, he was chief judge of the Lynchburg Circuit

Court from 1974 to 1985, and chief judge from 1982 to 1984. He

has three degrees from the University of Virginia, a master of laws

in 1988, a J.D. in 1962, and a bachelor of arts in 1959. As I say,

he is accompanied by his wife, Barbara, and has a son, Norman,

Jr.

Mr. Chairman and members of the committee, I am enthusiastic

in recommending both of these distinguished jurists for your consideration, and I am very grateful to my friend and senior colleague. Senator Warner, for his assistance in making this recommendation from the Virginia delegation unanimous.

I would now yield to my distinguished senior colleague.

[The prepared statement of Senator Robb follows:]

PREPARED STATEMENT OF SENATOR CHARLES S. ROBB

Mr. Chairman, it gives me a great deal of pleasure to present for confirmation

two nominees for the federal bench from Virginia, Judge Jerry Friedman to fill the

vacancy in the Eastern District and Judge Norman Moon to fill the vacancy in the

Western District.

Before I do so, however, Mr. Chairman, I'd Uke to thank you for scheduling both

of these nominees for today's hearing. It eliminates a substantial uncertainty in

their lives, and will help us fill two vacancies in Virginia where the work is piling

up.

Jerry Friedman and Norman Moon did not know each other personally prior to

each being nominated to the federal bench. However, they have been in close contact

since their nominations, and have become fast friends. So when this process is concluded, we will have two new federal judges and one new set of friends. Not a bad

outcome.

And it is easy to understand how they've grown close, because they are similar

in many respects. Both have dedicated themselves to serving the public, Judge

Friedman for 12 years as a trial judge and Judge Moon for more than ten years

as a trial judge and 12 years on Vireinia's Court of Appeals. Both have earned the

admiration of their colleagues who chose them to be Chief Judge of their respective

courts, a position demanding increased responsibility and commitment. And both

are well respected in the legal community, which views them both as thoughtful,

intelligent and fair.

Judge Friedman currently serves as Chief Judge of the Circuit Court of Virginia

Beach. His peers on the bench have elected him twice to be Chief Judge, which

highlights the faith they have in his abilities. Prior to his work on the Circuit Court,

Judge Friedman distinguished himself in one of the toughest assignments in the

Virginia judicial system as a judge in the Juvenile and Domestic Relations court,

where he was also selected to be Chief Judge. He graduated from Old Dominion

University in 1965 and received his law degree from Wake Forest University in

1969. He is here with his wife, Sandra, who also serves the public as a school teacher in Southeastern Virginia. Judge Friedman has earned a reputation as a hardworking, evenhanded and courteous judge whose deliberative approach creates confidence that justice will be served in his court. Judge Friedman was selected from

a group of highly-respected candidates who were interviewed by a committee headed

by former U.S. Senator Bill Spong, who passed away three weeks ago. In my view.

Bill Spong represented the best a public servant has to offer, he was honorable,

made the tough decisions, and did what he thought was right despite the consequences. I expect Judge Friedman will stand as a living testament to those fine

qualities of public service embodied by Senator Spong.

Judge Moon has similarly had a distinguished career in public service. He has

served on the Virginia Court of Appeals since 1985, when it was first created. In

1993 he was selected Chief Judge, and during his tenure the court has eliminated

its case backlog despite the increase in filings, and its publications, which had been

eight months behind, were brought current. Prior to being elevated to the appellate

court, he served more than ten years as a trial judge, where he also served as Chief

Judge. During his illustrious career, he has touched many in the judicial system,

both as a judge and as a visiting professor teaching trial advocacy at the University

of Virginia School of Law, where he has received three degrees. Judge Moon earned

a Master of Laws degree in 1988, which he added to the Bachelor of Laws he re-
675

ceived from the University in 1962 and the undergraduate degree he received in

1959. He has been teaching the course in trial advocacy at the University since

1975, and this year he received the William J. Brennan, Jr. Award for his dedication

and contributions to the teaching of trial advocacy. His wife, Barbara, is also here

today. The judicious decisions he has rendered, the students he has taught, and the

courts he has run are all a testament to his wisdom and his dedication to justice.

Judge Moon is one of the most widely respected jurists in the Commonwealth, and

I have no doubt that the federal judiciary will benefit by adding him to their ranks.

Thank you, Mr. Chairman, and I look forward to swift confirmation of both of

these fine candidates.

The CHAIRMAN. Senator Warner.

STATEMENT OF HON. JOHN W. WARNER, A U.S. SENATOR

FROM THE STATE OF VIRGINIA

Senator WARNER. Mr. Chairman, first, we want to thank you, the

ranking member and other members of the committee for listening

to the petitions of my colleague and myself to bring up these two

outstanding jurists.

We, the two of us, and I am sure other Senators likewise, spend

a great deal of time on the question ofjudicial nominations. I think

that function of a U.S. Senator in the constitutional advise and

consent process has certainly no higher calling, that duty, and we

spend a great deal of time on it.

I could summarize Judge Moon by simply saying a decade ago,

Mr. Chairman, I recommended him for the Federal bench. And

time didn't permit to get him on at that point, so here he is recycled again 10 years later. So I don't know that I need to add much

more about Judge Moon, except the legislature of the month in our

general assembly, the senior man, was a college classmate of mine.

He has known Judge Moon all his life, and I just wanted to read

a very brief quote from Lacey Putney, a delegate in the Virginia

General Assembly.

He said, "Judge Moon's excellent judicial temperament and his

keen intellect have contributed greatly to the outstanding reputation he has earned for intellectual honesty, fairness, and equity."

I don't know of a higher tribute to be paid to a jurist.

Likewise, Judge Friedman—there was a fierce competition for

this particular slot, and I know my colleague and I weighed very

carefully the viewpoints of a diversity of citizenship and jurists and

others in our State. And I think it is to Judge Friedman's credit

that he came out in the minds of many as the best qualified person

at this time, because he is known for his fairness and his compassion and mastery of the law. As one person said, he is tough, he

is analytical.

So we bring before the U.S. Senate and this committee two outstanding Virginia public servants to take on the very important responsibility of the Federal bench.

I thank the committee.

The CHAIRMAN. Thank you, Senator.

Senator ROBB. Mr. Chairman, could I just add one word?

The CHAIRMAN. Sure.

Senator RoBB. I made reference to the fact that we had been assisted by judicial selection panels in considering all of the nominees, or all of those who were interested or had been nominated by

various bar associations and others. The first panel that I had
676

asked to assist us was led by our late colleague. Senator William

Spong.

Bill Spong was kind enough to head that group up. As many of

our colleagues know, he passed away about 3 weeks ago, but this

was his final contribution to the public service that these two

judges both exemplify. Many of the superlatives and adjectives that

I did not use in describing them are included in the formal statement that I have submitted.

With that, Mr. Chairman, I thank you again for holding this

hearing and I wholeheartedly recommend, with my senior colleague, both Judge Friedman and Judge Moon for your consideration and confirmation.

Senator WARNER. I will put my statement in the record.

The CHAIRMAN. Without objection.

[The prepared statement of Senator Warner follows:]

PREPARED STATEMENT OF SENATOR JOHN WARNER

Mr. Chairman, members of the Committee. It is a distinct privilege for me to be

here this morning before you to introduce two of Virginia's most distinguished jurists.

Both Judge Norman K. Moon and Judge Jerome B. Friedman are men of uncommon integrity and talent. Both are held in the highest esteem among their colleagues and citizens of our Commonwealth.

I will be brief this morning, but I do want to say a few words about each.

With respect to Judge Moon, some on the committee may recall my long-standing

support for his appointment to the Federal bench. Some 16 years ago, I recommended Judge Moon as one supremely qualified for the vacancy on the U.S. District Court for the Western District of Virginia.

Today, I am just as convinced as I was then, that Judge Moon is one this committee should approve for elevation to the Federal bench without qualification.

I want to snare with the committee words written by a long-time friend and college roommate, Lacey Putney, in behalf of Judge Moon. His words go a long way

to summing up the way many of us in Virginia feel about Judge Moon.

"Judge Moon's excellent judicial temperament and his keen intellect have contributed greatly to the outstanding reputation he has earned for intellectual honesty,

fairness and equity * * '."

Since 1985, Judge Moon has served on the Court of Appeals of Virginia, and since

1993 he has served as that court's chief judge. His court has handled a record level

of filings and eliminated a substantial case backlog.

From 1974 to 1985, Judge Moon served on the 24th Judicial Circuit of Virginia,

including service as chiefjudge from 1982 to 1984.

The bottom line is that Judge Moon brings nearly a quarter century of bench experience. He is seasoned and talented. He has built a remarkable career that would

make him a tremendous credit to the Federal judiciary.

I won't bore members of the committee with a detailed accounting of Judge

Moon's resume, I simply will say that he is accomplished as a jurist, a teacher, a

family man, and as a tremendous contributor to his community. Without question,

if approved by this committee and the Senate, Judge Moon will serve with uncommon distinction and dedication.

And those words, "uncommon distinction and dedication" bring me to my thoughts

about Judge Friedman, who appears today before you as the candidate for the vacancy on the U.S. District Court for the Eastern District of Virginia.

Like Judge Moon, Judge Friedman's record as a jurist is impeccable.

Respect for Judge Friedman runs deep in Virginia's Eastern District because he

is a superior legal intellect with a keen, straightforward judicial temperament.

Judge Friedman has over 12 years as a trial judge, and like Judge Moon, he has

received tremendous support from his colleagues who know him best, in addition to

strong endorsements from the Virginia Bar Association and the Virginia State Bar.

Judge Friedman is known for his fairness, compassion, and mastery of the law.

He is tough and analytical.

In 1991 he was elected to the Virginia Beach Circuit Court, and since 1994 he

has served as that bench's chiefjudge. From 1985 to 1991 he served as judge of the

Virginia Beach Juvenile and Domestic Relations District Court.
677

Judge Friedman will make an excellent addition to the Federtd judiciary and

should be approved by the committee and confirmed by the Senate. His talents and

reputation speak for themselves.

Mr. Chairman, I thank you for scheduling today's hearings and for the opportunity to address you and the committee. These gentlemen are deserving of the committee's approval.

The CHAIRMAN. We appreciate both of you being here, and I

think it is great praise for both of these judicial nominees and we

appreciate it.

We will conclude with the two Senators from Missouri, who are

both here. We will turn first to the senior Senator, Senator Bond,

and then Senator Ashcroft.

STATEMENT OF HON. CHRISTOPHER S. BOND, A U.S. SENATOR

FROM THE STATE OF MISSOURI

Senator BOND. Thank you very much, Mr. Chairman. I appreciate very much your scheduling the hearing and giving Mr. Rodney Sippel the opportunity to appear before you today.

I advise that Congressman Gephardt wanted to be here today

and join in presenting Mr. Sippel, but other commitments out of

Washington prevent him from being with us.

One of the honors, of course, of serving as the senior Senator

from Missouri is to present to my colleagues outstanding candidates for service on the Federal bench, and I believe Rodney

Sippel is such a candidate. He has an exceptional public record,

and many Missourians have told me of his ability and the fact that

they think he will serve the Federal judiciary with distinction and

honor.

Mr. Sippel is a native Missourian, born in Jefferson City, raised

in St. Louis; received high academic honors at the University of

Tulsa and at Washington University, where he gained his legal degree. He currently is with the firm of Husch and Eppenberger in

St. Louis, and briefly served as an administrative assistant for

Congressman Gephardt during the 103d and 104th Congress. He

also served on the staff of my predecessor, Senator Eagleton.

Mr. Chairman, I commend you and the committee for the fine job

of screening rigorously the candidates for the Federal judiciary to

ensure that only exceptional individuals with a healthy view of the

role of the Federal judiciary are confirmed. And I believe that you

are doing that well and I think that we need to look for candidates

who will serve in the courtroom and show a mastery of the issues

over which they preside.

Mr. Sippel has the experience necessary. He started as a litigator

trying lawsuits on behalf of the Bi-State Development Agency,

sometimes having 30 to 40 cases pending at one time. Over the

years, as his legal practice evolved, he has litigated extensively in

the Federal district court and handled a variety of criminal, civil

and antitrust issues. In addition to his private practice, he has

worked to improve the Missouri Legal Services Program and assisted the victims of the flood of 1993.

I believe Mr. Sippel is a respected and experienced member of

the Missouri legal community, with a healthy respect for the role

of the judiciary, and I think he has the broad experience necessary

to serve on the Federal court. We very much appreciate your con-
678

sidering him today and hope that after hearing him that you will

be able to move his confirmation promptly.

Thank you very much for your attention.

The CHAIRMAN. Well, thank you, Senator Bond.

[The prepared statement of Senator Bond follows:]

PREPARED STATEMENT OF SENATOR CHRISTOPHER S. BOND

Mr. Chairman, I thank the Committee for scheduling this hearing and giving Mr.

Sippel the opportunity to appear before you today. Before I proceed, I advise that

Congressman Gephardt wanted to be here today to join me in introducing Rodney

Sippel to the Committee but had another commitment out of Washington and will

be unable to join us.

One of the honors of serving as senior Senator from Missouri is to introduce my

colleagues on the Judiciary Committee to outstanding candidates for service on the

Federal Bench in Missouri. In Rodney Sippel, I believe I am introducing such a candidate today. Mr. Sippel has amassed an exceptional record as a public servant and

an attorney and I have heard from several Missourians that Mr. Sippel is a very

gifted attorney who will serve the federal judiciary with distinction and honor.

As a few words of introduction, Mr. Sippel is a native Missourian. He was bom

in Jefferson City and raised in the St. Louis area. He earned an undergraduate degree in political science and economics from the University of Tulsa and a legal degree from Washington University in St. Louis, graduating with impressive records

from both institutions. After graduating from law school. Rod Sippel joined the St.

Louis firm of Husch & Eppenberger, where he is currently a partner. Mr. Sippel

briefly left private law practice to serve as Administrative Assistant for Congressman Gephardt during the 103d and 104th Congress. He also served on the staff of

my predecessor, the Honorable Thomas Eagleton.

The honor of introducing candidates for the judiciary is proceeded by the responsibility of ensuring that only the fittest of candidates are elevated to this position.

I believe the Chairman of this Committee has done a fine job in rigorously screening

candidates to ensure that only exceptional individuals with a heeJthy view of the

role of the federal judiciary in our system of government are confirmed to sit on the

federal bench. I also believe that when we review qualifications of candidates to

serve on the federal district court, we should be looking for candidates who have

distinguished themselves in the courtroom and have achieved a mastery of the

issues over which they will preside. Such judges are essential to managing the difficult federal dockets in a productive and professional manner.

As I said moments ago, distinguished members of the Missouri legal community

have made it known that Mr. Sippel is a smart and talented lawyer, he has earned

the respect of his colleagues and there is consensus in the legal community that he

will make an exceptional jurist.

As a young attorney, Mr. Sippel cut his teeth as a litigator. He litigated civil suits

on behalf of the Bi-State Development Agency, the locsd transit authority, at times

having upwards of thirty to forty cases pending on the docket of the Circuit Court

for the City of St. Louis. One must become a master at procedural, jurisdictional

and evidentiary issues with tremendous courtroom skills to succeed in this environment. By all accounts Mr. Sippel is a successfiil litigator.

Over the years, his legal practice has evolved. Mr. Sippel has litigated extensively

in federal district court. He has handled a variety of criminal, civil and antitrust

issues and represented some of the most respected members of the St. Louis community. In addition to his private practice, Mr. Sippel has given an admirable amount

of his time to his community; he has worked to improve the Missouri Legal Services

program and he assisted the victims of the great flood of 1993 navigate the various

federal programs for flood victim assistance. Mr. Sippel is also a husband and a father.

In summation, I have concluded that Mr. Sippel is a respected and experienced

member of the Missouri legal community. Throughout his career, he has displayed

a commitment to excellence and professionalism. During this process he has displayed a healthy respect for the role of the judiciary in our system of government

He has broad experience in federal court, accumulating experience that will make

him a credit to the bench.

I am appreciative of the Chairman for considering this nomination today.

The CHAIRMAN. Senator Ashcroft.
679

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

THE STATE OF MISSOURI

Senator ASHCROFT. Mr. Chairman, thank you very much for calling upon me to support the nomination of the senior Senator and

to echo his remarks about what a pleasure it is to introduce Mr.

Rodney Sippel, of Kirkwood, MO, to the committee.

As you can tell from his resume—and, of course, the committee

has a great deal of information about him—Mr. Sippel is a distinguished and accomplished attorney with extensive experience litigating in the Federal court system. He is an honors graduate of the

University of Tulsa and of the Washington University School of

Law in St. Louis. He has put together a distinguished career in private practice, but has been willing to take time out from his private practice to serve the public.

He is uniquely qualified as a result of his awareness both of the

private law community and of the need to have an understanding

of what happens in the Congress and in the development of law by

the representatives of the people. Most recently, he served in the

St. Louis office of Congressman Gephardt.

I have been particularly impressed by the high esteem in which

Mr. Sippel is held by members of both the plaintiff and defense

bars, and by people on both sides of the political aisle. He has a

well-deserved reputation for integrity and one for maintaining his

composure, for being calm even during intense times of litigation.

Judicial temperament, in my judgment, is so important to the successful operation of our court system.

Mr. Sippel is a civic-minded individual dedicated to the ideal of

public service. He has served the public both by working with the

people's elected representatives, as I have indicated, but also by

dedicating himself to pro bono activities. The President has recognized these qualities through this nomination and has given Mr.

Sippel another opportunity to serve the public, which 1 believe is

appropriate.

I believe that Mr. Sippel understands the proper role of a Federal judge. He is an excellent lawyer. He also has an appreciation

for both the awesome power and the limited jurisdiction of a Federal judge. In an important international business dispute that he

litigated in the Federal court in St. Louis involving Lloyd's of London, Mr. Sippel convinced the Federal court to restrain itself from

issuing a temporary restraining order against a letter of credit.

That sounds like an esoteric concern, but there are times when

the judiciary needs to restrain itself, to be restrained, and to understand the limits of its authority. And I am sure that Mr. Sippel will

exercise that same restraint as a judge that he urged upon the

court as a litigator. A number of people for whom I have great respect have endorsed Mr. Sippel and they confirmed to me that he

has the temperament and the restraint and modesty to be an effective legal representative of the people as a member of the Federal

bench.

I support Mr. Sippel's nomination and I look forward to today's

hearing which will provide the rest of the committee a better sense

of the quality that Mr. Sippel would bring and his dedication to the

rule of law for which he has stood.

I thank the chairman for this opportunity.
680

The CHAIRMAN. Thank you both. This has been an excellent

hearing so far because we have unanimity among Senators in these

respective States. So, that makes our job a little bit easier. We appreciate both of you and it is great praise for Mr. Sippel to have

your support.

Senator Ashcroft, I am going to ask you to chair the rest of this

hearing. I have to go to a chairmen's meeting and I will turn over

the gavel to Senator Ashcroft. I am counting on him to ask some

tough questions and we will move on from there.

Senator ASHCROFT [presiding]. I thank the chairman for his conduct of the hearing up until this point. It will now be our pleasure

to hear from nominees and we will first start with the nominee for

the Eleventh Circuit Court of Appeals, Stanley Marcus, a judge

from the Southern District of Florida.

Judge Marcus, if you would come forward, please? Judge Marcus,

would you please raise your right hand?

Do you swear that the testimony you shall give in this hearing

shall be the truth, the whole truth and nothing but the truth, so

help you God?

Judge MARCUS. I do.

Senator ASHCROFT. Thank you. Judge. You may be seated.

Judge, we would be very pleased to have you make some initial

remarks, including an introduction of members of your family who

have accompanied you to this hearing today.

TESTIMONY OF STANLEY MARCUS, OF FLORIDA, TO BE U.S.

CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

Judge MARCUS. Mr. Chairman and Senator Durbin, I am deeply

honored to be a nominee for this position, for the Court of Appeals

for the Eleventh Circuit. I really have no statement, would be

happy to answer your questions, but would like to introduce my

wife, Judith Marcus, if I could, to you.

Thank you.

QUESTIONING BY SENATOR ASHCROFT

Senator ASHCROFT. Thank you, Ms. Marcus. Thank you very

much for coming.

Judge Marcus, a couple of weeks ago in California, in the Ninth

Circuit Court of Appeals, the court set aside the law of the State

of California relating to term limits for members of the General Assembly of California and other elected officials there based on, according to the opinion of the court, the sense of the court or idea

or thought of the court that the voters had inadequate information

when they enacted their term limits rules for California.

In your judgment, is the thought that a court would arrive at,

thinking that the people of a State were not adequately or appropriately informed or were ignorant about the issues—would that be

an appropriate judicial basis for overturning an initiative enacted

by the people of the State?

Judge MARCUS. It seems to me, Mr. Chairman, that a Federal

judge would step down the road of setting aside an initiative of the

people with extreme caution and great care. We put our faith in

the people. The people are sovereign. The Federal courts are surely

the least representative branch of Government, and so we must act
681

with great care, caution and discretion when we address issues of

that kind.

Senator ASHCROFT. Well, would the ignorance of the people be

appropriate grounds upon which to set aside the will of the people

which had been expressed through their votes in an initiative process?

Judge MARCUS. I put my faith in the people to understand fully

what they do, Senator.

Senator AsHCROFT. Less than 2 weeks, a Federal appellate judge

urged President Clinton to admit his mistake of judgment and renounce the military "don't ask, don't tell" policy. He also commented that the policy's constitutionality is highly suspect. These

remarks were made at a ceremony.

Do you think it is appropriate for a Federal judge to advise the

F*resident in such settings, in ofF-the-bench remarks?

Judge MARCUS. I think not. My own view is that when we take

the oath as a Federal judge, it is extremely important that we are

careful to remain within the confines of the judiciary, as embodied

in article III of the Constitution, and ought to speak with great

care and discretion, particularly about matters of public controversy and debate.

Senator ASHCROFT. For the last quarter century, there has been

a series of cases relating to the rights of States and to the residual

capacity of States to enact laws and the deliberating or otherwise

calling into question the efficacy, power, or the limited scope or nature of the 10th amendment to the Constitution.

Do you believe that there are any areas in which the Constitution reserves exclusive jurisdiction to States, or is it your view that

any time the Congress acts it automatically preempts the States'

capacity?

Judge MARCUS. It seems to me that the Constitution is a document, a brilliant document of limited government. It provides for

limited and explicit powers for the executive, legislative and judicial branches of Government. And beyond that, it leaves to the

States and the people the power to decide.

Senator AsHCROFT. Judge, are there any rights that you think

exist for Americans protected by the courts which do not appear in

the Constitution of the United States that should be protected by

the Federal courts?

Judge MARCUS. I think the Constitution is a brilliant document,

perhaps the most brilliant document crafted in the name of government. It enumerates rights and powers with deliberation and care,

and I think it pretty much got it right.

Senator ASHCROFT. So you don't believe there are rights that you

would need to find or create in the Constitution that aren't explicitly meant there?

Judge MARCUS. I do not.

Senator ASHCROFT. DO you believe that the Constitution is a living document that is growing and that there will be rights that will

suddenly appear in the Constitution or will arise in the Constitution as a result of enlightened members of the judiciary and the

public in the future, or do you believe that the rights that are expressed therein in the words of the Constitution are the limits of

the rights that should be expressed?
682

Judge MARCUS. I think the language and text is clear and it is

explicit and we are bound by what it says.

Senator ASHCROFT. In the event there were to be rights which

the culture felt should be added to those rights enjoyed by the

members of the society, would it be appropriate for the judiciary to

add those rights in judicial decisions?

Judge MARCUS. I think not. I think that there is, of course, the

power to amend the Constitution if the people and their representative officials believe that that is appropriate. I do not believe that

it is the role of the judge or the court, however, to substitute its

judgment for the judgment of the legislative body.

Senator ASHCROFT. So it is your view that judges cannot amend

the Constitution, except through their elected representatives?

Judge MARCUS. Yes, sir.

Senator ASHCROFT. Thank you.

Senator Durbin.

QUESTIONING BY SENATOR DURBIN

Senator DURBIN. Thank you. Senator Ashcroft.

Judge, thank you for joining us today. I am a relatively new

member of this panel. I have been here a year and I have the highest respect for my colleague from Missouri. We disagree on a number of political issues. I am afraid that if I would take his line of

questioning and engage in a debate on those issues, it wouldn't be

in the best interests of your confirmation or moving this issue

along today, and so I won't.

I will ask one question, though. The Constitution never mentions

the word "privacy," and yet when it comes to so many areas of interpretation, the courts have said Americans have a right to be left

alone, have a right not to be harassed by their government, and

have a right to make individual decisions.

So absent that word "privacy," if you are going to take a strict

construction of the Constitution, where do you find refuge for the

conclusion that we should be left alone?

Judge MARCUS. I think the Supreme Court has spoken, and spoken clearly on the subject, and has repeatedly spoken about the

issue of privacy and I think that its pronouncements bind us all.

I think they have found a right to privacy in a variety of amendments to tne U.S. Constitution and have spoken in a variety of

fields, including marriage and procreation, the right to raise your

children and educate them as you see fit. And I think that these

principles have been clearly enunciated and repeatedly upheld by

the Supreme Court of the United States.

Senator DURBIN. At the risk of getting us both in trouble with

the majority on the committee, I will move on to another question.

Let me ask you about the Federal Sentencing Guidelines.

Judge MARCUS. Yes, sir.

Senator DuRBlN. As a district court judge, you have dealt with

those quite a bit. What is your opinion of the Sentencing Guidelines?

Judge MARCUS. We have had an experience for the last 8 or 9

years and have sentenced many thousands of defendants under it

in the Southern District of Florida. My own experience is that the

Sentencing Guidelines have worked well. I think they have accom-
683

plished three things that they were really designed to do; first, to

compress disparity in sentence; second, to build in greater predictability and certainty in the sentencing process; and, third, to require district judges to give the reasons or explicate the rationale

for its rulings and to take into account a wide variety of circumstances that the Congress and Sentencing Commission thought

ought properly to be taken into account—relevant conduct, role in

the offense, prior criminal record, and so on. My own experience is

that the Sentencing Guidelines have worked well.

Senator DURBIN. If you are confirmed as an appellate judge, at

some point you may be faced with applying a Supreme Court precedent which you do not personally agree with. Would you consider

yourself bound by the precedent or your conscience, and how would

you make that call?

Judge MARCUS. I believe that when you take the oath as a judge,

you are bound to support, uphold, and defend the Constitution and

laws, and you are bound to follow the precedent of the Supreme

Court of the United States.

Senator DURBIN. Thank you, judge.

Judge MARCUS. Thank you.

Senator DURBIN. Thank you, Mr. Chairman.

Senator ASHCROFT. I want to thank you very much for appearing

before the committee and for coming, and we look forward to an opportunity to act on your nomination in the Senate as a whole.

Judge MARCUS. Thank you very much, Mr. Chairman. Thank

you, Senator Durbin.

Senator ASHCROFT. The committee will proceed now by asking

the other nominees to come forward together, if you would, please,

and so would you please all approach the witness table—Ann Louise Aiken, Rodney W. Sippel, Jerome B. Friedman, and Norman K.

Moon.

Senator DuRBIN. Mr. Chairman, I have a statement from Senator

Leahy in support of Ann Aiken which I would ask permission to

be entered into the record.

Senator ASHCROFT. Without objection, it is so ordered.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

I commend the Chairman for holding this confirmation hearing for judicial nominees this morning and for noticing a second session for tomorrow. If we are able

to proceed with these 13 nominees the Committee will make some progress toward

reducing the backlog of judicial nominees pending before the Committee and awaiting their hearings.

I am particular delighted to see Ann L. Aiken included this morning. She is nominated to fill a judicial emergency vacancy and was first nominated in November

1995, almost two years ago. She had a confirmation hearing in September 1996. I

hope that the Committee will now proceed without delay to consider her nomination

as well as the nominations of Clarence Sundram and Judge Sonia Sotomayor and

the other nominees participating today. We should be moving promptly to fill the

vacancies plaguing the federal courts.

While I am encouraged that the Committee is today proceeding with a hearing

on these five nominees, there remains no excuse for the Committee's delay in considering the nominations of such outstanding individuals as Professor William A.

Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret

McKeown, and Ms. Susan Oki Mollway, to name just a few of the outstanding nominees who have all been pending £dl year without so much as a hearing. Professor

Fletcher and Ms. Mollway had both been favorably reported last year. Judge Paez

had a hearing last year but has been passed over so far this year.
6d4

After this hearing, the Committee will still have pending before it almost 40 nominees in need of a hearing from among the 73 nominations sent to the Senate by

the President during this Congress. From the first day of this session of Congress,

this Committee has never had pending before it fewer than 20 judicial nominees for

hearings. The Committee's backlog had doubled to more than 40.

Many of these nominations, including that of Ms. Aiken for the District Court in

Oregon, were before us last Congress, during the election year slowdown, and have

had to be renominated by the President. The vacancies ror which they are nominated have not been filled but persist for periods now reaching years. The Committee stiU has pending before it 10 nominees who were first nominated during the last

Congress, including Ms. Aiken and four others, who had been pending since 1995.

Thus, while I am dehghted that we are moving more promptly with respect to some

of the nominees being considered today, I remain concerned about the other vacancies and other nominees.

At the snail's pace that the Committee and the Senate are proceeding with judicial nominations, we are not even keeping up with attrition. When we adjourned

last Congress there were 64 vacancies on the federal bench. After the confirmation

of 22 judges in 10 months, there has been a net increase of 28 vacancies, an increase

of almost 50 percent in the number of federal judicial vacancies. Thus, vacancies

have been increasing not decreasing over the course of this year and the vacancy

crises remains. The Chief Justice of the United States Supreme Court has called

the rising number of vacancies "the most immediate problem we face in the federal

judiciary."

I commend Senator Hatch's effort to hold two days of hearings this week and to

accelerate the pace at which nominations are moved through the Committee. Unfortunately, this is only the seventh confirmation hearing for judicial nominees that

the Committee has convened all year. By this time two years ago, the Committee

had held 10 confirmation hearings involving 46 judicial nominees. And, unfortunately, no regular Executive Business Meeting of the Committee has been noticed

for this week. Accordingly, the Committee will not have an opportunity to report

any judicisil nominees or the nomination of Bill Lee to be Assistant Attorney General for the Civil Rights Division.

I have urged those who have been stalling the consideration of these fine women

and men to reconsider their action and work with us to have the Committee and

the Senate fulfil its constitutional responsibility. Those who delay or prevent the filling of these vacancies must understand that they are delaying or preventing the administration ofjustice. Courts cannot try cases, incarcerate the guilty or resolve civil

disputes without judges. The mounting backlogs of civil and criminal cases in the

dozens of emergency districts, in particular, are growing more critical by the day.

Senator ASHCROFT. Would you nominees please raise your right

hands? Do you swear that the testimony you shall give in this

hearing shall be the truth, the whole truth, and nothing but the

truth, so help you God?

Mr. SiPPEL. I do.

Judge MOON. I do.

Judge AIKEN. I do.

Judge FRIEDMAN. I do.

Senator ASHCROFT. Thank you very much. You may be seated.

Senator Durbin, I will turn to you to begin the questioning here.

QUESTIONING BY SENATOR DURBIN

Senator DURBIN. Let me say at the outset, Mr. Chairman, that

Mr. Sippel is a personal friend and acquaintance from the St. Louis

area, where I was born, and I am happy to see him before this committee today and am happy to support his nomination.

I will start with you, Mr. Sippel, for the record.

TESTIMONY OF RODNEY W. SIPPEL, OF MISSOURI, TO BE U.S.

DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI

Mr. SIPPEL. I am sure everyone else appreciates that. [Laughter.]
685

Senator DuRBiN. You have kind of taken the short straw in

terms of alphabetical preference here.

Your biography indicates you have been admitted to practice in

the Missouri and Illinois U.S. district courts and U.S. court of appeals. In your personal opinion, what have been the major differences in your practice between the State and Federal courts?

Mr. SiPPEL. The Federal courts—certainly, the Eastern District

of Missouri—have been much more aggressive in alternative dispute resolution, early intervention in a case in order to manage the

case, often to a more successful and early settlement to the benefit

of the parties and saving a lot of expense. And I think that is a

very worthy and good result in terms of the difference between the

State and the Federal benches in Missouri.

Senator DURBIN. One other thing I note in your background is

an extensive civil experience, civil litigation experience, which has

been noted by Senators Bond and Ashcroft. As a Federal district

judge, though, you will be faced with many criminal cases and I

would like to ask you what steps you will be taking to familiarize

yourself with the criminal practice.

Mr. SiPPEL. When I was first nominated, I met with the chief

judge of the eastern district and several of the other sitting judges

and actually raised this issue with them and have hopefully alerted

them to that need that, as with any profession, I need to learn and

grow. And they were very supportive and felt that in pretty short

order that the nature of not being familiar with the criminal side

of the practice would be something, if I devoted myself to, I would

be able to accomplish.

Senator DURBIN. We are finding in many areas of Illinois, and

I don't know if it is the case in Missouri, that because of some—

how do I put this—because of vacancies on the bench, we have seen

some of our judges who have had to focus more on the criminal side

because of these deadlines that they face in considering motions

and moving cases along. I don't know if that is the case in Missouri.

Do you happen to know what the backlog is and what the usual

time is between filing and taking a case, for example, to civil trial?

Mr. SiPPEL. It is still less than—the eastern district sort of tracks

cases. When you first file it, you have to notify the court as to what

track you are on—12, 18, or 24 months. It is unusual now for a

case to still be pending more than 2 years and it is common for a

case to be tried within a year, year-and-a-half. So, that backlog—

and I think in large part due to the effective use of magistrate

judges—has not been an issue in the Eastern District of Missouri.

Senator DURBIN. You were involved in setting up a pro bono

practice at your law firm and I would like to ask you if you could

relate to the committee what your experience was in organizing

that practice.

Mr. SiPPEL. It was a voluntary pro bono program, but it was well

received by the attorneys in the firm. There was a great need locally for pro bono assistance by attorneys, especially for women in

abusive marriages who could not afford an attorney and needed

help getting through the system. And it has been very worthwhile

both for attorneys and those who received the benefit of those services.
686

Senator DURBIN. Thanks, Mr. Sippel.

Judge Moon, I note that you are a professor, in addition to a

number of other things on the professional level that you have

done, and teach a trial advocacy course. Is that correct?

TESTIMO>fY OF NORMAN K. MOON, OF VIRGINIA, TO BE U.S.

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA

Judge MOON. Yes.

Senator DURBIN. How long have you done that?

Judge MOON. Twenty-one years.

Senator DURBIN. Can you give me your impression of law students today and their preparation for practice and your experience

with these same students once members of the bar as trial advocates?

Judge MOON. Well, I think it is much better today because the

law schools have put greater emphasis on practice courses. When

I was in law school, there was only one trial advocacy class for the

whole law school student body. Today, there are probably six or

more each semester, so that most all students have am opportunity

to go through these courses. I think there is much more emphasis

in the CLE programs on trial advocacy than there was, say, 20

years ago.

This was spurred on mostly by Chief Justice Burger's comment

that 50 percent of the lawyers who practiced were incompetent,

and I think that caused a great impetus for trial advocacy being

taught in the law schools and the bar getting involved.

Senator DURBIN. Your service has been at the State court level.

What do you perceive to be the real difference between the State

bench and the Federal bench, to which you are seeking appointment?

Judge MOON. Well, relative to the fact—the major difference, I

think, that would take place in Virginia—and Virginia may be

unique—the use of summary judgment in the Federal court is

much more extensive than in the State court. In Virginia, it is very

hard to get summary judgment on any issue, the statutes eind rules

that prohibit the use of depositions and affidavits for summairy

judgment. So I anticipate, other than the jurisdiction and some of

the substantive issues such as bankruptcy, that type of thing—but

I think that the actual practice—the major difference will be the

use of summary judgment.

Senator DURBIN. My last question of you in this round, and then

I will defer to Senator Ashcroft and ask the other two nominees in

the second round, can you describe for the committee the substance

of your work on the Commission on Family Violence Prevention?

Judge MOON. Well, I have been on that commission for several

years now, and basically we have met very frequently and considered—the committee was more or less started by the chief justice

of our court, of our supreme court, who took a special interest in

this subject. The legislature subsequently turned it into a legislative commission and reappointed all the members the chief justice—most of those members.

We have met for about 2 years. We have studied legislation. We

have tried to get a handle on how much domestic violence there

was. A great deal of legislation heis come out of that committee. I
687

can't say that I can take any credit for any particular item that is

coming out, but at this point I am Chair of a committee that is trying to come up with a way to allow persons who are being stalked

to establish a residence so that they—not like the witness protection program, but at least they will be able to have addresses, be

able to vote, have their mail sent to a location so that the stalker

hopefully will not be able to locate them.

Senator DURBIN. Judge, in the interest of avoiding family tension, my staff reminds me that I should ask you to introduce your

family and friends who are present here today.

Judge MOON. OK. Well, sir, thank you. My wife, Barbara, is with

me and I would like to present her.

Senator DURBIN. Glad to have you here. Thank you very much.

Mr. Sippel.

Mr. SIPPEL. My wife, Mary, is here, and good friends Spencer and

Carol Dickerson. Thank you for the opportunity to introduce them.

Senator DURBIN. Thanks, and I am sure Senator Ashcroft will afford the same opportunity to the other nominees.

Senator ASHCROFT. I certainly will, and it was my neglect—my

staff had also prompted me—that I forgot to allow the nominees to

do so. So we will not ask you to do it twice, and I would invite

Judge Aiken to introduce her family that is here and then Mr.

Friedman to do the same, please.

TESTIMONY OF ANN L. AffiEN, OF OREGON, TO BE U.S.

DISTRICT JUDGE FOR THE DISTRICT OF OREGON

Judge AlKEN. Thank you. I would like to introduce my husband,

James Klonoski; my oldest son, Jake, who is holding my youngest

son, Christopher. Samuel Klonoski is seated over there, raising his

hand; Nicholas, my No. 2 son; and my No. 3 son, Zachary, behind

my husband. And I have a number of friends, and I won't take the

committee's time to introduce them, who are also here.

Senator ASHCROFT. Well, thank you very much for coming.

Jerome Friedman, please introduce those who are with you.

TESTIMONY OF JEROME B. FRIEDMAN, OF VIRGINIA, TO BE

U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA

Judge FRIEDMAN. Thank you, Mr. Chairman. I would like to introduce my wife, Sandra; edmost 29 years and if I made a mistake,

I am in big trouble. She is a history—a government teacher teaching 12th grade advanced placement government students, and I

know it is a thrill for her to be here personally, but also professionally.

Thank you very much, Mr. Chairman.

QUESTIONING BY SENATOR ASHCROFT

Senator ASHCROFT. Thank you very much.

I would begin by asking a question of Judge Aiken, from Oregon.

Judge, how do you feel the role of a Federal judge would differ from

that of a State judge, a responsibility which you now hold?

Judge AlKEN. Mr. Chairman, I have appreciated the role as a

State court judge. Federal courts have different issues, more complex issues, resources available to it to decide cases early, to make
688

a difference with alternative dispute resolution. We have had in

our Federal court a very active use of magistrates, and Judge

Hogan, who is our presiding judge, has been tremendously responsible for keeping the docket moving with enormous use of settlement conferences. So I look forward to using all those tools that are

ready and available in Oregon in our district court.

Senator ASHCROFT. In responding to a questionnaire of the committee, you indicated that crime often, quote, "stems from cycles of

abuse and neglect, drug and alcohol use, and poor education." How

would these conclusions which you reach affect your approach to

criminal statutes and sentencing decisions?

Judge AlKEN. Well, Mr. Chair, the sentencing guidelines and the

requisites for imposing sentences are set out by statute and I follow

those. Oregon has sentencing guidelines within the State and I follow those guidelines and understand that that is a determination

made by the legislative body.

In taking a look at what are the roots of crime, those issues are

addressed in sentencing guidelines, as well as with treatment programs that are adjunct to the guidelines once individuals are in

sentenced positions. I can't help but notice those are the issues that

I see as individuals come before me, but guidelines dictate what

the sentences will be.

Senator AsHCROFT. Has your experience as the chief clerk of the

State legislature given you any insights concerning the value of

legislative history in interpreting statutes?

Judge AlKEN. It was a privilege to hold that job. It was a nonpartisan position where I had an opportunity to see the inside of

the legislature in Oregon. I believe legislative history is an important tool in looking at, as you go through the analysis of a statute

or a constitutional issue, to make a determination. It certainly isn't

the first thing you look at, but, if necessary, I feel well-equipped

to be able to read and understand legislative history and to, to the

best of my ability, use that legislative history in guiding me in

making a decision within the confines of a case.

Senator AsHCROFT. In interpreting a law, if the legislative history conflicts with the words expressed in the law, which should

prevail?

Judge AlKEN. The law.

Senator ASHCROFT. Do you feel that there are any rights that do

not exist in the Constitution which ought to be—that exist independent of the Constitution?

Judge AlKEN. No, sir. The Constitution is one of the most elegantly written documents. The words of the Constitution are clear.

It expresses the rights that are given. I find no need to look beyond

those express words and the document itself

Senator ASHCROFT. Mr. Friedman, I asked earlier a question of

Judge Marcus about initiatives enacted by voters in various areas.

I don't know whether Virginia has such a potential. Do you know

if that is the case in Virginia, whether the voters exercise the right

to bring into existence statutes by initiative?

Judge FRIEDMAN. Not as they do in California, no, Mr. Chairman.

Senator ASHCROFT. The 10th amendment to the Constitution reserves to States certain powers, all powers not enumerated to the
689

Federal Government. Do you view the 10th amendment as being a

viable part of the Constitution, and do you respect the right of

States to have exclusive jurisdiction in some areas?

Judge FRIEDMAN. I, certainly, do feel it is a viable part of the

Constitution and there are certain areas, obviously, that the States

have to get involved with and I have no problem with that concept,

in very limited areas.

Senator ASHCROFT. Are there any issues, such as capital punishment, on which you find yourself in substantial disagreement with

the laws of the United States so that it would be difficult for you

to apply the law in an impartial manner?

Judge FRIEDMAN. Absolutely not. The Supreme Court has decided capital punishment issues and I have absolutely no problem

in adhering to those decisions and upholding the death penalty.

Senator ASHCROFT. In the event that you were to have a personal

disagreement with the kind of sentence that the guidelines required, be it capital punishment or otherwise, what would your response—how should you conduct yourself?

Judge FRIEDMAN. Well, the guidelines were established by the

legislative body. It is my opinion that the judges, and certainly I,

if confirmed, would adhere to the guidelines and follow the guidelines. There are some discretionary areas of the guidelines and in

those areas the court would exercise its—and I would exercise my

discretion.

But as Judge Marcus eloquently put it earlier, the guidelines are

there for very good reasons, and certainly I would have no problem

in exercising my sentences in accordance with the guidelines.

Senator ASHCROFT. Thank you very much. I see my time is expired.

It is time for your second round. Senator Durbin.

QUESTIONING BY SENATOR DURBIN

Senator DURBIN. Thank you very much.

Well, Judge Aiken, I am impressed that anyone from Oregon

might know where Somonauk, IL, is. I note here that you

Judge AlKEN. I have been there.

Senator DURBIN. You have some family connection there?

Judge AlKEN. Yes, sir.

Senator DURBIN. Yes. Let me ask, if I might, you have served on

a juvenile justice commission, have you not?

Judge AlKEN. Yes, sir.

Senator DURBIN. And how long a period of time did you serve on

that?

Judge AlKEN. It was approximately 2 years and it concluded with

legislation that created new juvenile beds in our State and created

a new Oregon Youth Authority that essentially brought juvenile

justice into its own, taking it out of child protection services and

making its own entity, and that commission now is complete.

Senator DURBIN. Was it a good experience?

Judge AlKEN. It was a tremendous experience.

Senator DURBIN. What did you learn serving on that commission

that was new to you that you didn't know going in or might have

surprised you?
690

Judge AlKEN. It was an opportunity to look across the State and

see what issues were facing rural and urban parts of the communities. It gave us a chance to come together and try to balance how

resources could be better allocated for youth and to come across

with consistency on how we would address issues ofjuvenile crime.

I think what is interesting is, as a commission, there was great

unanimity about a need to address this issue, and to address it

firmly auid to get on with it and make the task force not only just

a report, but a reality. And we were very successful in not only creating juvenile beds, but boot camps and regional academies.

Senator DURBIN. Did you have a chance as a member of that

commission to meet face to face with young men or women who

had been accused ofjuvenile crime?

Judge AlKEN. Absolutely. We were in the institutions. We traveled across the State in programs that came before the committee.

We worked both in urban areas, rural areas. I think we were all

incredibly impressed with what the young people who were housed

in the training schools had to tell us, what would have been helpful

to stop their ending up in that program. It was a tremendous experience.

Senator DURBIN. Did it change your viewpoint as a judge in

terms of how to handle cases involving juvenile justice?

Judge AlKEN. It reminded me that we need iust as parents to be

consistent and we need to be swift in discipline, and in this instance responding when a crime is committed. In my community,

we aren't able to file juvenile cases unless a felony has been committed, so we will have offenders who have had multiple misdemeanors and no action taken. And I think that is not the message we need to be giving to the young people.

Senator E JRBIN. Thank you.

Mr. Friedman, your background, of course, is serving as a judge

on a circuit court in Virginia Beach. You are not embarking on an

effort to enter the Federal structure of justice in this country. How

do you see that as a different challenge, or is it a different challenge?

Judge FRIEDMAN. It is a different challenge, certainly, because

some of the decisions that Federal judges msike affect so many people. On the State court level, the decisions we make in many cases,

and in most cases, I would say, affect the individuals before you.

But in Federal cases, a decision could have wide ramifications for

numerous classes of people or people. So I think that is one of the

major differences.

Senator DURBIN. Senator, I would like to close this, if I might,

by asking each of the nominees a question I always ask nominees

in Illinois when they would like to ascend to the Federal bench and

it is one that they usually are surprised at, but now that I am asking it for the first time, I think every nominee before us will anticipate it.

But what is the last book that you read. Judge Aiken?

Judge AlKEN. The last book that I read? I am in the middle of

about three different books.

Senator DURBIN. You sound like me.

Judge AlKEN. The last book I completed was actually the most

recent Grisham book that came out, very frankly.
691

Senator DURBIN. It figures.

Judge AlKEN. Yes.

Senator DURBIN. Judge Friedman.

Judge FRIEDMAN. "The Tenth Justice."

Senator DURBIN. Very good.

Judge Moon.

Judge MOON. The last one I read was on a plane, "Donnie

Brasco," the FBI agent who infiltrated the Mafia.

Senator DURBIN. Great.

Mr. Sippel.

Mr. SIPPEL. Reagan's speechwriter, Peggy Noonan's book, "Life,

Liberty and the Pursuit of Happiness."

Senator DURBIN. You can see his political background that he

would be preparing himself, Senator, for this.

Thank you very much.

Senator ASHCROFT. Thank you very much.

Judge Moon, are there any rights not enumerated in the Constitution that you believe should be added to the Constitution?

Judge MooN. No, sir. I know of none.

Senator AsHCROFT. Do you believe that the Constitution is a living document which expands and grows to meet new circumstances, or that if it is to be amended, it has to be amended

by the terms of the Constitution through one of the amendment

techniques?

Judge MOON. I believe it must be amended through the normal

procedure set forth in the Constitution.

Senator ASHCROFT. Are there any issues, such as capital punishment, that you might be required to be involved with as a judge

which as a matter of conscience you could not be involved with?

Judge MOON. NO, sir, there are no issues.

Senator ASHCROFT. Mr. Sippel, are there any issues with which

you might be required to deal as a Federal judge on which you

have such a substantial disagreement with the law of the United

States that it would make it difficult for you to operate as a judge?

Mr. SIPPEL. Mr. Chairman, the answer to that is no.

Senator ASHCROFT. Are there any rights that you think it would

be necessary for you to develop in the Constitution which do not

exist as part of the Constitution now?

Mr. SIPPEL. NO, Mr. Chairman.

Senator ASHCROFT. Mr. Sippel, you will be working in a jurisdiction that has a substantial heritage of initiative efforts and you

have worked with them in prior cases. Have you read the Ninth

Circuit Court of Appeals decision regarding the term limits in the

State of California?

Mr. SIPPEL. I have not read that decision, Mr. Chairman. As you

know, in Missouri we did have initiative adoption of term limits for

State representatives and State senators which is in force.

Senator ASHCROFT. DO you think it would be appropriate for judicial officers to, from the perspective of the bench, sort of try to figure out whether or not people had made an informed decision and

sustain an initiative, or whether they weren't adequately informed

and as a result to set aside a decision based on the fact that the

voters were ignorant?
692

Mr. SiPPEL. I am at a loss to be able to defend that analysis. I

think in any initiative petition, you start out not with just a presumption that it is valid, but an overwhelming presumption that

is enforceable because the people have spoken, and it is not for a

Federal judge to substitute their judgment for that of the will of

the people.

Senator ASHCROFT. On what grounds could an initiative statute

be set aside?

Mr. SiPPEL. I can't think of any. In Missouri State law, there are

occasions where the language has been a cause, but that is a State

court issue. I can't think of any Federal grounds under which that

would happen.

Senator ASHCROFT. I should have said any grounds other than

constitutional grounds.

Mr. SiPPEL. Well, absolutely. I can't think of any, Mr. Chairman.

Senator ASHCROFT. If there were an initiative, though, to deprive

Missouri citizens of their right to speak freely?

Mr. SiPPEL. Well, certainly, then, contrary to the express language of the Constitution, it would be the court's obligation to uphold the Constitution.

Senator ASHCROFT. Judge Moon, the 10th amendment has been

the subject of substantial debate. Do you think the 10th amendment is viable or are you among the scholars who believe that the

10th amendment has sort of suffered so much from attrition that

atrophy is about to pronounce its final demise?

Judge MOON. I think it is very viable.

Senator ASHCROFT. So you think there are areas in which the

State does have the exclusive right to govern?

Judge MOON. Yes, sir, Mr. Chairman, I do.

Senator ASHCROFT. Let me thank each of you for coming today.

I appreciate the fact that you are here and that you have brought

members of your families with you and other individuals who express their support for you. You are all to be commended for having

members of the U.S. Senate ardent in your behalf.

There are committee members who are absent today whose interest could be expressed by way of written questions for you. I would

urge you, in the event that you are the recipient of additional interrogatories in writing, that you would respond to them as quickly

as possible. I believe there is going to be an additional effort to

move individuals through the process before the end of our deliberations during this calendar year and that could be just in the

next several weeks. So I offer that suggestion of your prompt attention to those items because the sooner those kinds of responses

could be received, in the event there are written questions, the

more likely it is that your situation can be acted on by the Senate

as a whole.

Senator Durbin, anything further?

Senator DURBIN. NO, Mr. Chairman.

Senator ASHCROFT. Without further proceedings, then, I would

thank each of you for your appearance here and look forward for

an opportunity to act on your measures before the U.S. Senate.

Thank you.

[Whereupon, at 11:44 a.m., the committee was adjourned.]

[Submissions for the record follow:]
695

Judge Stanley Marcus

United States District Judge

Southern District of Florida

1982-

1985

United States Attorney's Office

Southern District of Florida

1985- United States District Court

Present Southern District of Fla.

1997 Broolclyn Law school, N.Y.

United States

Attorney

United States

District Judge

Professor of

Trial Advocacy

Military Service: Have you had any military service? If so,

give particulars, including the dates, branch of service,

rank or rate, serial number and type of discharge received.

Yes.

U.S. Army

Active Duty: March 8, 1969 - July 12, 1969

Reserve Duty: October 28, 1968 - October 27, 1974

Rank E4

Serial No. ER12779852

Honorably Discharged: July 12, 1969

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Phi Beta Kappa

Maqna Cum Laude. Queens College, City University of New York

A. Joseph Geist Law Scholarship, Queens College,

City University of New York

Member and President of Pi Sigma Alpha, National Political

Science Honor Society, Queens College,

City University of New York

Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are

or have been a member and give the titles and dates of any

offices which you have held in such groups.

Federal Bar Association - Florida Chapter, 1982-present;

Member of the Executive Committee of the Federal Bar

Association's local chapter, 1982-1985.
696

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Association of the Bar of the City of New York, 1974

The Florida Bar, 1985

.TiiHirial Cnnfgrence of thp United States

Federal-State Jurisdiction Committee Member (1988-1992) and

Chair (May, 1992 - September, 1995)

Ad Hoc Committee on Violence Against Women (Chair), 1992-

1994

National Conference on State-Federal Judicial Relationships

(1991-1992)

Southern District of Florida

Executive Committee (1994-Present)

Magistrate's Committee (Chair) (1986-1992)

Security Committee (1995-Present)

Civil Justice Advisory Committee (1991-1996)

Budget Committee (1996-present)

Rules Committee (1989-1995)

Judicial Council of the Eleventh Circuit

Education Committee (1997)

Committee on Pattern Jury Instructions of the District

Judges Association of the Eleventh Circuit

(1996-Present)

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 organization active in lobbying before public

bodies. I am a member of Temple Zion, Miami, Florida.

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.

CQUXX Date of Admission
697

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Appellate Division of the

Supreme Court of State of New York May 1972 Tern

United States Court of Appeals for

the Second Circuit November 7, 1974

United States District Court for the

Southern District of New York May 14, 1974

United States District Court for the

Eastern District of New York May 14, 1974

United states Court of Appeals for

the Eleventh Circuit February 3, 1983

Supreme Court of Florida January 8, 1985

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily

available to you, please supply them.

1) Speech to Citizens Crime Watch Luncheon, May 10, 1982.

2) A. MesserSchmidt, "Dade, U.S. Team Up to Prosecute

Aliens," The Miami Herald, June 3, 1982, p. 1-B.

3) Speech to Cuban American Bar Association,

June 22, 1982.

4) Speech to Sigma Delta Chi, June 23, 1982.

5) Speech to Tower Forum, June 24, 1982.

6) Speech to Corporate Counsel Association of Dade County,

August 20, 1982.

7) Speech to Federal Bar of Broward County,

February 18, 1983.

8) P. Slevin, 'Murders by Aliens Targeted," The Miami

Herald, April 8, 1983, p. 1-B.
698

Judge Stanley Marcus

United States District Judge

Southern District of Florida

9) Speech for Law Day U.S.A., April 29, 1983.

10) Statement of Stanley Marcus, United States Attorney,

Southern District of Florida, Before the ll.s. Sgnate

Drug Enforcement Caucus: Stibcommlttee on Security and

Terrorism Committee on thp .Tudiniary: and the

Subcommittee on Western Hemisphere Affairs. Committee

on Forei9n Relations. UnitPd States Senate.

April 30, 1983, and transcript of remarks to the

Committee.

11) J. McGee, "Castro Backs Drug Traffic, U.S. Claims,'

The Miami Herald, May 1, 1983, p. 1-A.

12) Speech to The Miami Citizens Against Crime,

June 7, 1983.

13) H. Silva, "U.S. Crackdown Costing Smugglers Cash and

Assets," The Miami Herald, June 8, 1983, p. 3-B.

14) International Society of Barristers. Vol. 18, No. 3,

July 1983, "The War Against South Florida Crime,"

by Stanley Marcus.

15) Speech to Tiger Bay Club, August 18, 1983.

16) Statement of Stanley Marcus, United States Attorney,

Southern District of Florida, Before the Select

Committee on Narcotics Abuse and Control. House of

Representatives. October 12, 1983.

17) Statement of Stanley Marcus, United States Attorney,

Southern District of Florida, Before the Subcommittee

on Crime. Committee on the Judiciary House of

Representatives. October 14, 1983.

18) Speech to The Miami Citizens Against Crime,

October 26, 1983.

19) Speech to Dade County Outstanding Citizens Award

Luncheon, October 27, 1983.

20) Speech to Financial Institutions Security Association,

March 15, 1984.
699

Judge Stanley Marcus

United States District Judge

Southern District of Florida

21) Statement of Stanley Marcus, United States Attorney,

Southern District of Florida, Before the Sanata

Permanent Subcommittee on Investiaations.

March 21, 1984.

22) Statement of Stanley Marcus, United States Attorney,

Southern District of Florida, Before the senate

Subcommittee on AlcoholisB and Drug Abuse.

May 10, 1984.

23) S. Marcus, 'How Drug Money Can Corrupt Us,' The Miami

Herald, May 20, 1984, p. 1-E.

24) Speech to the FDIC, May 30, 1984.

25) Speech at Second Annual commercial Maritime Seminar,

June 8, 1984.

26) Speech to International Association of Journalists &

Editors, June 9, 1984.

27) Testimony Before the Governor's Commission on Drug and

Alcohol Concerns, September 12, 1984.

28) Speech to Grand Jury Association of Florida,

November 1, 1984.

29) Speech Before the Coral Gables Bar Association,

November 21, 1984.

30) Speech to Leadership Florida Conference,

January 18, 1985.

31) Speech to National Association of Former United States

Attorneys, Scottsdale, Arizona, March 30, 1985.

32) Speech to Miami Beach Bar Association, June 11, 1985.

33) International Society of Barristers. Vol. 21, No. 2,

April 1986, 'Public Confidence in Criminal Justice,*

by Stanley Marcus.

34) Federal Sentencing Reporter. Vol. 6, No. 1, July/August

1993, 'Substantial Assistance Motions: What is Really

Happening?", by Judge Stanley Marcus, United States

District Court, Southern District of Florida.
700

Judge Stanley Marcus

United States District Judge

Southern District of Florida

35) fitate-Pederal Judicial Observer. No. 4, December 1993,

"Obiter Dictum - Erosion of Public Confidence in

Criminal Justice System Is Source of Increased

Federalization of Crime," by Judge Stanley Marcus,

United States District Court, Southern District of

Florida.

36) Statement of the Honorable Stanley Marcus, Chairaan,

Judicial Conference Committee on Federal-State

Jurisdiction, Before the United States House of

Representatives, Subcommittee on IntelIcctual Property

and Judicial Administration. Committee on the

Judiciary. May 26, 1994.

37) Eleventh Circuit Pattern Jury Instructions (Criminal

Cases) 1997; edited, revised and updated by Judges

Hodges (Chair), Marcus, Hancock, Butler, Vinson,

Edenfield and Carnes (Committee on Pattern Jury

Instructions of the District Judges Association of the

Eleventh Circuit).

13. Health: What is the present state of your health? List the

date of your last physical examination.

I am in excellent health; August 1997.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

I am a United States District Judge for the Southern

District of Florida. I was appointed by the President and

began serving on August 16, 1985.

The district courts have jurisdiction of civil and criminal

actions arising under the Constitution, laws or treaties of

the United States.

15. citations: If you arc or have been a judge, provide: (1)

citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional

Issues, together with the citation to appellate court

8
701

Judge Stanley Marcus

United States District Judge

Southern District of Florida

rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the

opinions.

(1) Citations for ten most significant opinions:

1. Telectron. Inc. v. Overhead Door Corp.• 116 F.R.D. 107

(S.D. Fla. 1987).

2. White V. Wainwrl<;iht. 632 F.Supp. 1140 (S.D. Fla. 1986),

afild, 809 F.2d 1478 (11th Cir.), cert, denied. 483

U.S. 1044 (1987).

3. Conaol. Gas Co. of Fla. v. City Gas Co. of Fla.. 665 F.

Supp. 1493 (S.D. Fla. 1987), alild, 880 F.2d 297 (11th

dr.), reh'g granted and opinion vacated bv 889 F.2d

264 (11th Cir. 1989), opinion i-pinstatfid on reh'o en

banc by 912 F.2d 1262 (11th Cir. 1990), judgment

vacated by 499 U.S. 915 (1991).

4. U.S. V. Benefield. 874 F.2d 1503 (11th Cir.

1989)(double jeopardy), Marcus, J., sitting by

designation, writing for the panel.

5. Carnival Cruise Lines. Inc. v. Oy Wartsila AB. 159 B.R.

984 (S.D. Fla. 1993).

6. Bennett v. United States. 102 F.3d 486 (11th Cir.

1996), Marcus, J., sitting by designation, writing for

the panel.

7. Austin V. Blue Cross and Blue Shipld of Alabama. 903

F.2d 1385 (11th Cir. 1990), Marcus, J., sitting by

designation, writing for the panel.

8. U.S. V. Camacho. 739 F. Supp. 1504 (S.D. Fla. 1990).

9. Doe V. State of Fla. Judicial Qualifications

Commission. 748 F. Supp. 1520 (S.D. Fla. 1990).

10. Costa Crociere. S.p.A. v. Rose. 939 F. Supp. 1538 (S.D.

Fla. 1996).

(2); Summary of and citations for all appellate opinions

where district court decisions were reversed or

affirmed with significant criticism:
702

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Samlnole Trihe of Florida v. State of Florida. 801 F.

Supp. 655 (S.D. Fla. 1992), reVd by 11 F.3d 1016 (11th

Cir. 1994), aff'd. 116 S.Ct. 1114 (1996).

An Indian tribe sued the State of Florida in

federal district court under the Indian Gaming

Regulatory Act ("IGRA") seeking to require the state to

negotiate in good faith to enter into a Tribal-State

Compact governing conduct of gaming activities on

tribal lands within the state. The state sought

dismissal of the action under the Eleventh Amendment,

contending that the provision of IGRA which granted

district courts jurisdiction over any cause of action

arising from the failure of a state to negotiate in

good faith under the terms of the statute was beyond

the power of Congress to mandate.

Based upon the Supreme Court's binding decision in

Pennsylvania v. Union Gas Co.• 490 U.S. 1 (1989), which

held that Congress had the power and authority under

Article I to regulate commerce and thus could override

a state's Eleventh Amendment sovereign Immunity, the

district court denied the motion to dismiss the action,

noting that congressional power over Indian affairs is

plenary and that the Indian Commerce Clause and the

Interstate Commerce Clause are both in Article I, $ 8,

cl. 3. (The district court later ruled on the merits

that Florida had fulfilled its obligation to negotiate

in good faith. 116 S.Ct. at 1122 n.6.)

On appeal, the Eleventh Circuit reversed and

remanded the case to the district court with

instructions to dismiss the action. In an opinion in

which the court forecast the future invalidity of the

Union Gas decision and, finding that the passage of

IGRA had not created an entitlement for the tribe, the

court ruled that IGRA had been based only on the Indian

Commerce Clause, not the Interstate Commerce Clause,

and held that to be an insufficient basis on which to

abrogate the state's sovereign immunity under the

Eleventh Amendment.

On review, the Supreme Court noted that its Union

Gas decision allowed no principled distinction in favor

of the states to be drawn between the Indian Commerce

Clause and the Interstate Commerce Clause and that the

decision had created confusion and was essentially out

10
708

Judge Stanlay Marcus

United States District Judge

Southern District of Florida

of line with its earlier precedents. The Court

therefore reconsidered Union Gas, concluded that it had

been wrongly decided and overruled its own prior

precedent on which the district court had relied.

Consequently, the Court affirmed the finding that

Congress had not possessed the power to abrogate the

state's Eleventh Amendment protection.

2. Llnder v. Calero Portocarrero. 747 F. Supp. 1452 (S.D.

Fla. 1990), aff d in part and rev'd in part. 963 F.2d

332 (11th Cir. 1992) .

Survivors of an American citizen who was alleged

to have been tortured and killed in Nicaragua by antigovernment forces in the midst of a civil war in

Nicaragua brought civil action in federal court in

Miami against anti-government organizations and

leaders, charging the defendants with civil conspiracy

and wrongful death, battery, intentional infliction of

emotional distress, violation of Geneva Conventions,

international law and other treaties. The district

court granted defendants' motion to dismiss the

complaint, finding that the plaintiffs' claims were

non-justiciable due to operation of the political

question doctrine and that neither customary

international law nor the Geneva Conventions provided a

private right of action. The court noted the intimate

link between the activities of the contras and the

political branches' policy toward Nicaragua — 'an

inquiry which would surely involve efforts to uncover

the nature of the relationship between United States

policy and the actions of the contras" — and found

that the 'actions of the contras should be called into

question, if at all, by the political branches of

government to whom the conduct of foreign affairs is

trusted."

On appeal, the Eleventh Circuit reversed one

narrow portion of the district court's ruling, while

affirming other parts of the order of dismissal. The

court pointed out that the plaintiffs were raising on

appeal a much more focused issue than those raised in

the broad-based, 33-page complaint adjudicated by the

district court, and concluded that the amended

complaint contained within its allegations a narrow

issue of Florida tort liability upon which relief night

be granted.

11
704

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Von Stein v. Brescher. 696 F. Supp. 606 (S.D. Fla.

1988), rev'd. 904 F.2d 572 (11th Cir. 1990).

The managing agent of a shopping center brought a

civil rights action against a county sheriff and three

deputies, alleging that the publicized arrest of the

agent for leasing premises with knowledge that they

would be used for prostitution was without probable

cause and that the press conference by the sheriff had

been staged to provide favorable publicity for a reelection campaign and had caused injury to the agent's

reputation and business. The district court held that

the sheriff and deputies were not entitled to qualified

immunity as a matter of law in connection with the

agent's arrest and allowed the case to be presented to

a jury, which found for the plaintiff.

On appeal the Eleventh Circuit reversed the jury's

award for the plaintiff/managing agent. The Court

reasoned that, even though the charges against the

plaintiff had not been prosecuted by the State

Attorney, the arrest based upon those charges, for a

violation of a Florida misdemeanor, was grounded on

"arguable" probable cause. The Court discounted the

facts that the managing agent originally had brought to

the attention of the sheriff the suspected prostitution

activities, had then cooperated in the investigation

and had been seelcing legal advice about his right to

evict the tenants at the time the sheriff arrested him

for honoring a lease after learning that the leased

premises were being used for prostitution. Thus, the

Court found that the defendants were entitled to

qualified immunity with respect to the Illegal arrest

claim.

U.S. V. Boole. 689 F. Supp. 1121 (S.D. Fla. 1988) (en

banc), vacated in light of Mistretta v. United States.

488 U.S. 361 (1989).

After the Sentencing Guidelines ('SG') ,

promulgated by the United States Sentencing Connission

("Commission") pursuant to the passage of the

Sentencing Reform Act ("SRA") , were Implemented and

became effective November 1, 1987, a number of

defendants challenged the SRA and SG as

unconstitutional on a variety of grounds. The district

judges in the Southern District of Florida decided to

12
705

Judge Stanley Marcus

United States District Judge

Southern District of Florida

consolidate those challenges and hear the Issue en

battc. Following extended oral argument and conference,

a Majority (13 judges) of the court voted to hold the

SG unconstitutional and Judge Marcus was selected to

write the opinion for the majority. In that opinion,

•the en banc court determined that the method by which

the SG had been developed and implemented through a

Commission, whose membership by statutory command

Included Article III judges, violated the separation of

powers doctrine, which prohibits judges from making the

laws they are then called upon to adjudicate. The

court found that the SG were substantive and not

procedural laws, and that the SRA reposed legislative

and executive functions within the judicial branch,

thus conferring rule-making authority upon the

judiciary.

The government appealed the decision and although

there is no published order or table noting its

reversal, the order was reversed by the Eleventh

Circuit because the Impact of the district court's en

banc order was overruled by the subsequent decision of

the Supreme Court in Mistretta, in which the Court

found that the Sentencing Guidelines were

constitutional and that the SRA did not violate either

the prohibition against excessive delegation or the

separation of powers doctrine.

Jones V. City of Key West. Fla.. 679 F. Supp. 1547

(S.D. Fla. 1988), rev'd, 888 F.2d 1328 (11th Cir.

1989).

A citizen and resident of Key West filed a civil

rights action against the city and its mayor,

contending that his First and Fourteenth Amendment

rights were violated when he was silenced, arrested and

removed from a city commission meeting during his

scheduled presentation at a public meeting. Following

a bench trial the district court held that the mayor's

action in interrupting the citizen's presentation,

chastising him for his "outbursts," and having him

forcibly removed from the chamber and arrested were not

authorized by city ordinance and that the mayor was not

entitled to qualified immunity for silencing the

speaker based upon the content of his speech.

13
706

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Both the city and the mayor appealed, but the city

dismissed its appeal before the case was considered by

the Eleventh Circuit. The court reversed the judgment

against the mayor on the basis that his actions in

attempting to confine the speaker to the agenda item at

the city commission meeting and having the citizen

removed from the chamber when he became disruptive

constituted a judgment call by the mayor and was a

reasonable time, place and manner regulation of speech

which did not violate citizen's First Amendment rights.

6. U.S. Philips Corp. v. Windmere Corp.• 680 F. Supp. 361

(S.D. Fla.), rev'd. 861 F.2d 695 (Fed. Cir. 1989).

A razor manufacturer holding a patent for a rotary

electric shaver brought a trademark infringement action

against a competitor, who filed a counterclaim for

unfair competition and monopoly in the rotary razormarket in violation of the Sherman Act. The district

court granted a directed verdict for the manufacturer

on the antitrust claim, finding that the competitor had

not presented sufficient evidence of acquisition by the

manufacturer of monopoly power via predatory pricing

and certified the issue for appeal under Rule 54(b) and

28 U.S.C. S 1292(b).

Because of the existence of the patent issue in

the case, the appeal was heard by the Federal Circuit,

even though the patent issue was not contested on the

appeal. The Federal Circuit reversed and remanded the

matter for trial on the antitrust counterclaim, finding

that the facts presented a close case which should have

been presented to a jury.

(Following re-trial on remand and a second appeal,

the parties entered into a settlement, the appeal was

remanded and the second verdict vacated. See 971 F.2d

728 (Fed. Cir. 1992), cert, dismissed as improvidentlv

granted. 510 U.S. 27 (1994).)

7. U.S. V. Fuentes. (Hay 26, 1993), aff d in part and

vacated and remanded in part. 991 F.2d 700 (11th Cir.

1993).

Three defendants were charged with credit card

offenses and entered pleas of guilty to various counts.

All three appealed their subsequent sentences and

14
707

Judge Stanley Marcus

United States District Judge

Southern District of Florida

raised various grounds. The court of appeals affirmed

the sentence as to one, vacated a portion of a

restitution order and affirmed the sentence as to a .

second, and vacated the sentence of the third and

remanded for resentencing. One issue argued on appeal

challenged the interpretation of a Sentencing Guideline

('SG') not previously discussed in the case law of the

Circuit, based upon an amendment to the SG. The court

held that a defendant who admitted to joining a

conspiracy to deal in stolen credit cards could not be

held responsible for losses to victims from a codefendant's use of stolen credit cards (acts committed

in furtherance of the conspiracy) which the court found

were acts not reasonably foreseeable by the particular

defendant. With regard to the second defendant, as to

whom a portion of the order requiring forfeiture was

vacated by the court, the government admitted that the

presentence report contained a miscalculation which had

not been flagged for the district court.

Merrill I.ynch. Pierce. Fenner t. Smith. Inc. v. Cohen.

1993 WL 593998 (S.D. Fla. Sept. 24, 1993), (NO. 93-

0915-CIV-MARCUS), rev'd. 62 F.3d 381 (11th Cir. 1995).

Plaintiff stock brokerage firm sued for

declaratory and injunctive relief, seeking to enjoin

arbitration action which had been filed by investors

with the National Association of Securities Dealers

pursuant to an arbitration clause in their contract.

Defendant investors filed a motion to compel

arbitration and to stay the district court action

pending arbitration. The motion was assigned to a

magistrate judge who recommended that it be granted.

The factual question which had to be resolved

centered around whether the statute of limitation under

the arbitration agreement had been tolled by the

alleged fraudulent concealment of the facts giving rise

to the dispute between the parties. Relying upon

authority from the Eleventh Circuit, the district court

determined that the matter was one which should be

resolved by the arbitrator, adopted the recommendation

of the magistrate judge, and denied the plaintiff's

motion for a temporary injunction and discovery, and

dismissed the case.

15
TQB

Judge Stanley Harcus

United States District Judge

Southern District of Florida

On appeal the Eleventh Circuit reversed and

remanded the matter for further proceedings, holding

that the question of whether the investors' claims were

time barred was for the district court to resolve in

order to determine whether arbitration was called for.

In so ruling the appeals court distinguished its own

precedent on which the district court had relied.

9. U.S. v. Huppert. affd in part and rev'd in cart. 917

F.2d 507 (11th Cir. 1990).

A defendant was charged with and convicted of two

counts of obstruction of a grand jury in connection

with its investigation into allegations of money

laundering by this defendant. Defendant had engaged in

cash for check transactions with coin and precious

metal dealers. When two of the dealers were subpoenaed

to appear before the grand jury, defendant tried to

convince them to identify a third man as the person

with whom they had dealt in the scheme. The sentencing

guideline applicable to the offense level for

obstruction of justice contained a cross-reference to a

guideline for the offense of accessory after the fact,

which cross-reference the district court applied in

setting defendant's sentence.

On appeal, the Eleventh Circuit rejected several

challenges to the convictions, but reversed the

sentence and remanded the case for resentencing. The

Court based its reasoning upon the fact that defendant

had been attempting to aid himself and not another, and

thus the court determined that the accessory after the

fact guideline could not be used logically in this

situation. {The particular guideline provision

subsequently was amended to nullify the effect of this

decision.)

10. IM Health Care Ltd. v. Grant. Efiyld, 908 F.2d 918 (11th

Cir. 1990).

A transshipper of pharmaceutical products through

the foreign trade zone at Port Everglades, Florida,

brought suit against the state of Florida and others,

seeking declaratory and injunctive relief from

compliance with Florida's Drug and Cosmetic Act with

regard to plaintiff's warehousing activities in the

foreign trade zone. The district court granted summitry

16
709

Judge Stanley Marcus

United States District Judge

Southern District of Florida

judgment to the defendants, finding that the Florida

act was a valid exercise of its police power which was

not preempted by federal law.

On appeal, the Eleventh Circuit reversed and

remanded the case for the entry of summary judgment in

favor of the plaintiff. The Court held that the

federal Foreign Trade Zone Act, 19 U.S.C. SS 81a, et

seg., was intended to facilitate the use of U.S. ports

for transshipment of foreign goods in foreign commerce.

Thus, the Court held that the Federal Act preempted the

Florida Drug and Cosmetic Act, Fla. Stat. S 499.001, et

seq., and that the State Act required unnecessary

regulation of goods in which the state had no interest,

as applied to the warehousing of pharmaceuticals being

transshipped to Latin America through the Port

Everglades Foreign Trade Zone.

11. U.S. V. Ramos, remanded. 45 F.3d 1519 (11th Cir. 1995).

Defendant was tried and convicted of possessing

cocaine with intent to distribute. Prior to trial

defendant sought an order from a magistrate judge that

he be permitted under Federal Rule of Criminal

Procedure 15 to take a deposition in Medellin,

Colombia, of a potential witness who was alleged to be

in a position to provide exculpatory testimony. The

magistrate judge granted the motion, but reconsidered

and denied it upon the government's motion for

reconsideration which pointed out that defendant could

only locate the witness through an unknown third party

and that the Assistant United States Attorney would be

in danger if she had to travel to Colombia under such

circumstances. The defendant was then tried and

convicted without the testimony of the potential

witness who had been deported before the defendant

filed his first motion and who refused to return to

give testimony at trial.

Noting that the defense had never proffered to the

district court the substance of the testimony it deemed

material to its defense, the appeals court remanded the

matter to the district court to hear the defense

proffer, evaluate whether it would be exculpatory and

if so to allow the deposition to go forward, after

which the district court would be in a position to

determine whether to grant a new trial.

17
710

Judge Stanley Marcus

United States District Judge

Southern District of Florida

12. Floretti v. Minssachiisgtts General Life Ins. Co.. 892 F.

Supp. 1492 (S.D. Fla. Sept. 24, 1993), (NO. 90-6530-

CIV-MARCUS) , aff d. 53 F.3d 1228 (11th Cir. 1995),

r-grt. denied. 116 S. Ct. 708 (1996).

A beneficiary of a life insurance policy sued the

Insurer after his claim for benefits had been denied on

the ground that the policy had been procured by fraud.

The district court held that the Imposter exception

applied to defeat the general rule that an

incontestability clause in a policy prohibits the

defense of fraud in the inducement, in this case fraud

by the insured who had arranged for an imposter to

submit to a blood test to conceal the insured"s chronic

Illness. In reaching its decision about whether the

incontestability clause or relevant state law statutes

would bar the insurer's pleading of fraud in the

inducement under the 'imposter exception,' the district

court was faced with a conflict of laws question and

had to determine which state law to apply. After

surveying the possible applicable laws of the states of

Florida, New York and New Jersey, the court determined

that it did not need to resolve the choice of laws

problem because the laws of all three states would not

bar proof of the use of an imposter despite the

incontestability clause, and thus entered judgment for

the insurer.

On appeal the Eleventh Circuit affirmed the

judgment, but criticized the district court for failing

to decide which law applied, and determined that the

applicable law was that of Florida, which would have

applied New Jersey law, which in turn would have

allowed the insurer to rescind the policy under the

facts of the case.

(3): Significant opinions on federal or state constitutional

issues:

1. U.S. v. Benefield. 874 F.2d 1503 (11th Cir.

1989)(double jeopardy), Marcus, J., sitting by

designation, writing for the panel.

2. IIS, v. Falcon. 930 F. Supp. 1510 {S.D. Fla. 1996).

3. U.S. V. Falcon. 930 F. Supp. 1518 (S.D. Fla. 1996).

18
711

Judge Stanley Marcus

United States District Judge

Southern District of Florida

4. U.S. V. Falcon. 957 F. Supp. 1572 (S.D. Fla. 1996).

5. U.S. V. Peraltar 930 F. Supp. 1523 (S.D. Fla. 1996).

6. Reyea-Vasquez v. United States. 865 F. Supp. 1539 (S.D.

Fla. 1994).

7. U.S. V. Kowalik. 809 F. Supp. 1571 (S.D. Fla. 1992),

afXld, 12 F.3d 218 (llth Cir. 1993).

8. Seminole Tribe of Florida, v. State of Florida. 801 F.

Supp. 655 (S.D. Fla. 1992), rev'd. 11 F.3d 1016 (llth

Cir. 1994), a££Jja, 116 S. Ct. 1114 (1996).

9. In Re Grand Jury .Subpoena Dated Nov. 12. 1991. 792 F.

Supp. 1423 (S.D. Fla. 1992).

10. In Re Grand Jury Subpoena Dated Nov. 12. 1991. 792 F.

Supp. 1431 (S.D. Fla. 1992).

11. U.S. V. Reyes. 782 F. Supp. 609 (S.D. Fla. 1992).

12. Telesat Cablevision. Inc. v. City of Riviera Beach. 773

F. Supp. 383 (S.D. Fla. 1991).

13. Doe V. State of Florida Judicial Qualification Coimn. •

748 F. Supp. 1520 (S.D. Fla. 1990).

14. Under v. Calero Portocarrero. 747 F. Supp. 1452 (S.D.

Fla. 1990), aff d in part and rev'd in part. 963 F.2d

332 (llth Cir. 1992) .

15. U.S. V. Ortiz. 738 F. Supp. 1394 (S.D. Fla. 1990).

16. U.S. V. Camacho. 739 F. Supp. 1504 (S.D. Fla. 1990).

17. Doe V. Supreme Court of Florida. 734 F. Supp. 981 (S.D.

Fla. 1990).

18. Cash Inn of Dade. Inc. v. Hetropolitan Dade County. 706

F. Supp. 844 (S.D. Fla. 1989) .

19. U.S. V. Sokoloff. 696 F. Supp. 1451 (S.D. Fla. 1988).

20. U.S. V. Bogle. 689 F. Supp. 1121 (S.D. Fla. 1988) (en

banc) vacated in light of Mistretta v. United States.

488 U.S. 361 (1989) .

19
712

Judge Stanley Marcus

United States District Judge

Southern District of Florida

21. CBS Tne. v. Smith. 681 F. Supp. 794 (S.D. Fla. 1988).

22. Jones V. City of Key Wpst. Fla.. 679 F. Supp. 1547

(S.D. Fla. 1988), rev'd. 888 F.2d 1328 (11th Cir.

1989).

23. Cikora v. Wainwriqht. 661 F. Supp. 813 (S.D. Fla.

1987), aff d. 840 F.2d 893 (11th Cir. 1988).

24. ll.iS. V. Pulieae. 671 F. Supp. 1353 (S.D. Fla. 1987).

25. Hernandez v. Wainwriaht. 634 F. Supp. 241 (S.D. Fla.

1986), afUjl, 813 F.2d 409 (11th Cir. 1987).

26. White V. Wainwriaht. 632 F. Supp. 1140 (S.D. Fla.

1986), atm, 809 F.2d 1478 (11th Cir.), cert, denied.

483 U.S. 1044 (1987).

27. McLaughlin v. Metropolitan Dade County. Case No. 96-

074 5-Civ-Marcus (S.D. Fla., Oct. 23, 1996)(Unpublished

Order Granting Defendant Summary Judgment)(opinion

attached as Exhibit A).

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected or

appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

None.

None.

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school including:

1. whether you served as cler)c to a judge, and

if so, the name of the judge, the court, and

the dates of the period you were a cleric;

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

30
713

Judge Stanley Marcus

United States District Judge

Southern District of Florida

agencies with which you have been connected,

and the nature of your connection with each;

IncluaivB Dates

9/71 - 10/73

4/74 - 6/75

6/75 - 1/78

2/78 - 3/82

Names of Employers,

Aasof^iat.gH. etc.

Hon. John R. Bartels

(deceased 1997)

U.S. District Judge

Eastern District of N.V.

U.S. Courthouse

225 Cadman Plaza East

Brooklyn, NY 11201

Botein, Hayes, Sklar &

Herzberg (since disbanded)

200 Park Avenue

New York, NY 10166

Asst. U.S. Attorney

Eastern District of N.Y.

225 Cadman Plaza East

Brooklyn, NY 11201

(David G. Trager,

then-U.S. Attorney -

1974-1978;

now U.S. District Judge

Eastern District of N.Y.

225 Cadman Plaza East

Brooklyn, NY 11201;

718-260-2510)

Special Attorney and

Deputy Chief (Promoted to

Chief in 1980)

Detroit Strike Force

U.S. Organized Crime &

Racketeering Section

231 Lafayette, Room 940

Federal Building

Detroit HI 48226

(David Margolis,

then-Chief, U.S. Dept. of

Justice, Organized Crime &

Racketeering Section;

Name of Practice

Law Clerk to

U.S. District Judge

Law Firm Associate

(approx. 75 attys)

Dept. of Justice

Trial Prosecutor

(Major Crimes Unit,

Political Corruption

Unit)

Dept. of Justice

(Eastern District of

Michigan &

Western District

of Michigan) Supervised staff of 10

lawyers & agents

from a variety of

federal and state

law enforcement

agencies.

21
714

Judge Stanley Marcus

United States District Judge

Southern District of Florida

3/82 - 8/85

now Associate Deputy

Attorney General,

950 Pennsylvania Ave., NW

Washington, DC 20530;

202-514-4945)

(than-U.S. Attorney - Janes

K. Robinson - Eastern Dist.

of Michigan; now Dean at

Hayne State Law School,

468 W. Ferry, Detroit, MI 48202;

(313-577-3933); subsequent

U.S. Attorney Richard Rossman -

Eastern District of Michigan,

now in practice at the firm of

Pepper, Hamilton & Scheetz,

100 Renaissance Center,

Detroit, MI 48243;

313-259-7110)

United States Attorney

Southern District of

Florida

155 S. Miami Avenue

Room 700

Miami, FL 33130

299 E. Broward Blvd.

Room 202B

Ft. Lauderdale, FL 33301

701 Clematis Street

West Palm Beach, FL 33401

Dept. of Justice

Presidential Appt.

as Chief Law

Enforcement Officer

in So. Dist. of Fla.

including directly

supervising a staff

of more than 100

lawyers (4 major

divisions —

Criminal, Civil,

Appellate and Landsplus Organized Crime

Strike Force) with

offices established

in Miami, Ft.

Lauderdale and West

Palm Beach, FL, and

total staff in

excess of 200.

8/85 - Present U.S. District Judge

Southern District of Florida

301 N. Miami Avenue

Miami, FL 33128

32
715

Judge Stanley Marcus

United States District Judge

Southern District of Florida

1. What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

2. Describe your typical former clients, and mention

the area, if any, in which you have specialized.

From 1975 until I became a U.S. District Judge in 1985,

I represented the people of the United States as a

prosecutor for the Department of Justice in New York,

Michigan and Florida. The major part of my practice as

an attorney was as a federal prosecutor, following a

stint in private practice in New York City, where my

work as an associate in a large commercial law firm was

in general civil practice, more particularly in

commercial litigation.

My clients included a variety of federal investigative

and regulatory agencies, such as the Federal Bureau of

Investigation, the Drug Enforcement Administration, the

Immigration and Naturalization Service, the Internal

Revenue Service, the United States Coast Guard, the

United States Army, the United states Department of

Treasury, the United States Secret Service, the United

states Customs Service, the Federal Deposit Insurance

Corporation, and a variety of other agencies and

departments of the federal government.

Since August of 1985, I have served as United States

District Judge in the Southern District of Florida.

1. Did you appear in court frequently, occasionally,

or not at all? If the frequency of your

appearances in court varied, describe each such

variance, giving dates.

In New York and Michigan, I appeared in the various

federal courts regularly. In Florida, I appeared in

court regularly, but not as frequently as in New York

and Michigan.

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

23
716

Judge Stanley Marcus

United States District Judge

Southern District of Florida

The overwhelining bulk of my court appearances had been

in Federal Court in the district courts in New York,

Detroit, Grand Rapids and Southern Florida, as well as

in the respective Circuit Courts of Appeal. I also

appeared in the State Courts of New York while an

associate at the law firm of Botein, Hays, Sklar and

Herzberg in 1974-75.

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

A v«ry large percentage of my personal in-court

appearances had been in criminal matters and

prosecutions, except in that described in question

number 17.c.2. above. In addition, I supervised a

staff of approximately 20 Assistants in the Civil

Division and Lands Division, United States Attorney's

Office, who appeared regularly on civil and land

condemnation matters on my behalf.

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

I tried many criminal cases in the federal courts in

New York, Michigan and Florida as chief counsel and as

co-counsel. The trials included a wide variety of

natters such as conspiracy, tax fraud, bank fraud,

embezzlement, mail fraud, wire fraud, extortion,

bribery, narcotics violations, and racketeering.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

The bulk of these trials were to a jury.

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:

34
T17

Judge Stanley Harcus

United States District Judge

Southern District of Florida

(a) the date of representation;

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

judges before whom the case was litigated; and

(c) The individual name, addresses, and telephone numbers

of co-counsel and of principal counsel for each of the

other parties.

(1) 1982-1983. U.S. v. Great American Bank of Dade

County. Case No. 82-720-Cr-EPS (United States District Judge

Eugene P. Spellman, U.S. District Court, Southern District of

Florida, now deceased), the bank corporation and three of its

employees were charged with a conspiracy to defraud the United

States, more particularly with numerous felony counts involving

the failure to file required Currency Transaction Reports with

the Treasury Department concerning cash transactions totaling

almost $100 million. In addition, the bank was charged as an

unindicted co-conspirator in three interrelated indictments, li^Sj.

V. Kattan. et al.• Case No. 82-721-Cr-JAG; U.S. v. Tnterfil.

XnSL.., Case No. 82-723-Cr-JCP; and U.S. v. Piedrahita. Case No.

82-722-Cr-JE, which collectively charged twelve other defendants

with crimes related to those against the bank and its employees.

I personally supervised the investigation and

prosecution of the Bank as corporate defendant, including making

the decision to seek an indictment after reviewing all the facts

in the case, drafting a large portion of, and signing the

charging instrument. I supervised the pre-trial proceedings and

helped draft the Government's brief on a major suppression issue.

Finally, I personally conducted as lead counsel for the United

States the extensive negotiations which resulted in the entry of

pleas of guilty by the defendant. Great American Bank of Dade

County (through its subsequently-acquired owner, the Barnett

Bank) to multiple felony charges of failure to file the required

currency reports involving cash deposits of $673,450, $837,530,

$685,500 and a series of transactions totaling $34,413,789.26.

The corporate defendant bank was fined by the Honorable Eugene P.

Spellman, a total of $500,000, with the fine suspended as to

$125,000 on one count. I also argued various matters before the

District Court relating to the bank, along with my co-counsel,

then-Assistant United States Attorney Gregory Baldwin. (Various

bank employees also entered pleas of guilty to various counts and

a number of defendants in the related cases entered pleas of

guilty to certain counts.)

This case was significant in contributing to the

prosecution of narcotics smuggling and the ancillary problen of

massive money laundering of narcotics dollars through

25
718

Judge Stanley Marcus

United States District Judge

Southern District of Florida

institutions of finance and connerce in this region. This

prosecution and other noney-laundering investigations in the

Southern District of Florida served to highlight the Importance

of compliance with the reporting requirements of the currency

laws.

Counsel for the bank were:

Earl Hadlow, Esq. (now deceased)

Mahoney, Hadlow t Adams

P.O. Box 4099, Jacksonville, FL 32201

(904) 354-1100

Michael Hadigan, P.C.

Suite 400

133 3 New Hampshire Avenue, HW

Washington, DC 20036

(202) 887-4017

Co-counsel for the United States were:

Gregory A. Baldwin

(then) Assistant United States Attorney

(now) Holland and Knight

701 Brlckell Avenue, Suite 3000

Miami, FL 33131

(305) 374-8500

Linda Collins Hertz

Assistant United States Attorney

99 N.E. 4th Street

Miami, FL 33132

(305) 536-3011

(305) 446-0977

Carol Wilkinson

Assistant United States Attorney

505 South Second Street, Suite 200

Ft. Pierce, FL 34950

(561) 466-0899

(2) 1983-1984. In In re Grand Jury Proceedings, the

Bank of Nova Scotia. Case No. 83-1 (WPB) GJ-JCP (United States

District Judge James C. Paine, Southern District of Florida), a

federal grand jury in the Southern District of Florida was

conducting a combined tax-narcotics investigation and had

received Information sufficient to cause It to Inquire into and

26
719

Judge Stanley Marcus

United States District Judge

Southern District of Florida

compel the production of off-shore bank records from a foreign

bank, the Bank of Nova Scotia, doing business within the Southern

District of Florida.

A Federal Grand Jury sitting in the Southern District

of Florida issued a subpoena to the Miami agency of the Bank of

Nova Scotia, seeking the production of financial records located

in its Cayman Islands and Bahamas branches. The bank objected,

claiming that the Bank Secrecy Acts in those island nations

prohibited it from complying with the subpoena authorized by the

United States Court.

The U.S. Attorney's Office sought to have the court

compel compliance. After giving the bank opportunity to respond,

the United States District Court for the Southern District of

Florida, held the bank in contempt and imposed a coercive fine of

$25,000 for each day that the bank failed to produce these

documents.

In the United States Court of Appeals for the Eleventh

Circuit, various entities, including the governments of Canada,

Great Britain and the Cayman Islands, filed amici curiae briefs

on the side of the bank. After initial review, the appeals court

remanded the matter for further consideration by the district

court, including allowing the amici to participate and state

their views. Tn re Grand Jury Proceedings, the Bank of Nova

SCfltia, 722 F.2d 657 (11th Cir. 1983).

I personally directed and participated in all aspects

of the remand, including interviewing witnesses from the

Departments of Justice and State, planning strategy, supervising

all written responses and drafting substantial portions of the

briefs. My involvement also included personally coordinating all

of the Government's responses with both the Department of State

and the Department of Justice and making all major litigation

decisions. After the Honorable James C. Paine granted the

Government's motion to impose a cumulative fine of $1,825,000,

additional briefing before the United States Court of Appeals for

Eleventh Circuit was required. I wrote and edited substantial

portions of the brief filed by the Government in the Eleventh

Circuit.

The Government's position was adopted on appeal. In ra

Grand Jury Proceedings, the Bank of Nova Scotia. 740 F.2d 817

(11th Cir. 1984), and the Supreme Court denied certiorari review

on January 8, 1985, 469 U.S. 1106 (1985).

27
710

Judge Stanley Marcus

United States Oistrlct Judge

Southern Dietrict of Florida

Opposing counsel were:

Parker Thomson, Esq.

(counsel for the Governments of the Cayman Islands

and the United Kingdom)

Thomson Muraro, et al.

1 SE Third Avenue, Suite 1700

Miami, FL 33131

(305) 350-7200

Oanforth K. Newcomb, Esq.

(counsel for the Bank of Nova Scotia)

Shearman 6 Sterling

153 East 53rd Street

New York, NY 10022

(212) 848-4184

William Sadowski, Esq. (now deceased)

(counsel for the Bank of Nova Scotia)

Akerman, Senterfitt t Eidson

Suite 405, 1401 Brickell Avenue

Miami, FL 33131

(305) 372-1364

Andreas F. Lowenfeld, Esq.

(counsel for the Government of Canada)

40 Washington Square South

New York, NY 10012

(212) 598-2321

Herschal Sparks, Esq.

(counsel for Canadian Bankers' Association)

Hughes Hubbard & Reed

201 S. Biscayne Blvd., Suite 2500

Miami, FL 33131

(305) 358-1666

Co-counsel with me were:

Linda Collins Hertz

Assistant United States Attorney

99 N.E. 4th Street

Miami, FL 33132

(305) 536-3011

(305) 446-0977

28
721

Judge Stanley Marcus

United States District Judge

Southern District of Florida

Andrea Simonton

Assistant United States Attorney

500 East Broward Boulvard, 7th Floor

Ft. Lauderdale, FL 33301

(954) 356-7255

Thomas Blalr

(then) Assistant United States Attorney

1322 S.W. Seahawk Hay

Palffl City, FL 34990

(561) 220-7899

I^awrence H. Sharf

(then) Assistant United States Attorney

111 Hicks Street, #2IE

Brooklyn, NY

(718) 852-0345

(3) 1982-1983. In U.S. v. Guillot-Lara. et al.. Case

No. 82-e43-Cr-JE (United States District Judge Joe Eaton,

Southern District of Florida), the 14 named defendants were

charged with various counts of drug importation and conspiracies

and attempts to import both methaqualone and marijuana. The

gravamen of the charges were that the defendants would smuggle

large quantities of narcotics from South America to the United

States using Cuba as a source of protection and resupply for the

movement of narcotics from South America to the United States.

The indictment charged that this illegal activity was made

possible because of the direct involvement of several highranking Cuban officials who were indicted in Miami as part of the

plot. Included as defendants were: Fernando Ravelo-Renedo, the

Cuban Plenipotentiary Ambassador to Colombia at the time of the

crime; Gonzalo Bassols-Suarez, Minister-Counselor of the Cuban

Embassy in Colombia; Aldo Santamaria-Cuadrado, a member of the

Central Committee of the Communist Party of Cuba and Vice-Admiral

in the Cuban Navy; and Rene Rodriguez-Cruz, a member of the

Central Committee of the Communist Party of Cuba and President of

the Cuban Institute of Friendship with the People (I.e.A.P.), a

Cuban government agency which oversees the activity of foreign

visitors in Cuba.

I personally and directly supervised the conduct of

this Investigation because of its extreme sensitivity to law

enforcement and issues of diplomacy and the ramifications which

emerged from the case. My involvement included complete review

of all facts, assessment of the case, drafting the indictment,

making the decision to file American criminal charges against

29
722

Judge Stanley Marcus

United States District Judge

Southern District of Florida

foreign government officials, and coordination of federal efforts

with the Departments of Justice and State. The Cuban officials

were not apprehended; a number of other defendants also charged

in the case were prosecuted by my co-counsel:

Richard Gregorie

Assistant United States Attorney

99 N.E. 4th Street

Hiami, FL 33132

(305) 536-5435

before the Honorable Joe Eaton, United States District Court Cor

the Southern District of Florida.

This case was also the subject of extensive testimony

which I gave on April 30, 1983, before the U.S. Senate Drug

Enforcement Caucus: the Subcommittee on Security and Terrorism Of

the Senate Judiciary Committee: and the SubCQBUnJttee On Western

Hemisphere Affairs of the Senate Foreign Relations Committee.

(4) 1982-1983. In U.S. v. Carlos Cruz. Case No. 82-

733-Cr-WMH (United States District Judge William M. Hoeveler,

Southern District of Florida), the United States Marshal for the

Southern District of Florida was charged with conspiracy to

defraud the United States and to bribe the Federal Warden of the

Metropolitan Correctional Center in Miami and five counts of

bribery of a public official, the Federal Warden. In U-S. v.

Carlos Cruz. Case No. 83-47-Cr-WMH, the Marshal was also charged

with five counts of perjury before the federal grand jury which

was investigating the bribery matter. The facts uncovered in

this case revealed an extensive pattern of corruption involving

the office of the United States Marshal.

I supervised personally and directly as Chief Counsel,

the entire investigation and prosecution and conducted the

significant pre-trial litigation which resulted in the indictment

and conviction of: Carlos Cruz, the United States Marshal for the

Southern District of Florida; Seymour Klosky, co-conspirator and

state official with the Florida Department of £tate; and Merle

Gottlieb, also a co-conspirator and the father of the

incarcerated defendant who was the object of the bribe plot.

Klosky and Gottlieb each entered pleas of guilty to one felony

count of bribing a federal official. I also personally conducted

the trial of Mr. Cruz before the Honorable William M. Hoeveler,

and a jury in April 1983, along with my co-counsel, thenAssistant United States Attorney Kevin March. Toward the

completion of the Government's case, the defendant entered pleas

30
728

Judge Stanley Harcus

United States District Judge

Southern District of Florida

of guilty to the conspiracy to bribe count and to one count of

bribery of a federal official. The United States Marshal was

sentenced to a term of imprisonment for one year and one day.

Before he was to report to begin serving his sentence,

the defendant moved to vacate his plea, alleging that he had not

been 'of sound mind' and had received ineffective assistance of

counsel from his lawyer. Elaborate post-trial hearings were held

by the Court and I testified in that connection on September 6,

198 3, concerning my observations of and conversations with the

defendant on the day of the plea. The court subsequently denied

the defendant's motion and he served his sentence. No appeal was

taken by Mr. Cruz.

The defendant, Carlos Cruz, was represented at trial

Jon W. Burke, Esq.

616 S.W. 12th Avenue

Miami, FL 33134

(305) 858-6000

and subsequently at the post-sentencing hearing by:

Theodore Sakowitz

(then) Federal Public Defender

301 N. Miami Avenue

Miami, FL 33128

(305) 350-6900

My co-counsel were:

Kevin March

Assistant United States Attorney

Middle District of Florida

500 Zack Street, #400

Tampa, FL 33602

(813) 274-6000

Linda Collins Hertz

Assistant United States Attorney

99 N.E. 4th Street

Miami, FL 33132

(305) 536-3011

(305) 446-0977

31
724

Judge Stanley Marcus

United States District Judge

Southern District of Florida

The Marshal's co-defendant, Seymour Klosky, was

represented by:

Edward Shohat, Esq.

800 Brickell Avenue, Penthouse 2

Miami, FL 33131

(305) 358-7000

and Merle Alan Gottlieb was represented by:

Paul Lazarus, Esq.

2455 East Sunrise Boulevard, Suite 805

Ft. Lauderdale, FL 33304

(954) 940-7190

(5) and (6) 1979. U.S. V. Ouasarano and Vitale. Case

No. Cr. 79-80644, involved an extensive organized crime

investigation, which I directed and supervised over a period of

some two and one-half years, involving tax fraud, racketeering

and extortion, arising out of the illegal take-over of a series

of interconnected cheese manufacturing companies in the Midwest

and Michigan, by among others, defendants Raffaele Quasarano

("Jimmy Q') and Peter Vitale, who were the hidden beneficial

owners of the manufacturing facilities. Following a lengthy

trial which I conducted as chief counsel for the United States

before the Honorable Robert E. DeMascio, United States District

Court for the Eastern District of Michigan, the case ended in a

mistrial because of a hung jury. Subsequently both defendants

entered pleas of guilty to the central racketeering charges

before Judge DeMascio and each was sentenced to incarceration for

four years and fined a substantial sum of money.

Subsequently, in a related case arising out of the sane

investigation into the ownership and control of a number of

legitimate business enterprises in the Midwest in the area of

manufacturing facilities, trash hauling and banking, in U.S. v.

Barbara, et al., Case No. Cr. 79-80655, Peter Vitale, Paul Vitale

and Joseph Barbara, Jr., were charged with conspiracy to defraud

the United States by making false, fictitious and fraudulent

statements to the Internal Revenue Service in connection with a

plot to conceal the true ownership of a large Detroit-based

trash-hauling company subsequently purchased by a publicly-traded

national waste treatment company. Following extensive pre-trial

pleadings and litigation, Paul Vitale and Barbara each entered

pleas of guilty to the second indictment before the Honorable

Thomas P. Thornton, United States District Court, Eastern

District of Michigan. Peter Vitale and Quasarano each entered

32
725

Judge Stanley Marcus

United States District Judge

Southern District of Florida

pleas of guilty before Judge DeMascio to the aforementioned

racketeering charge and to the conspiracy to defraud the Internal

Revenue Service charge as set out in the former indictment.

Opposing counsel were;

N.D. Deday LaRene, Esq.

(for Raffaele Quasarano)

2000 City National Bank Building

Detroit, MI 48226

(313) 962-3500

Albert J. Kreiger, Esq.

(for Peter Vitale)

1899 S. Bayshore Drive

Miami, FL 33133

(305) 854-0050

Peter J. Bellanca, Esq.

(for Peter and Paul Vitale)

20480 Vernier Road

Harper Hoods, MI 48225

(313) 882-1100

Neal Bush, Esq.

(for Joseph Barbara, Jr.)

719 Griswald

Detroit, MI 48226

(313) 962-1177

My co-counsel was:

Keith E. Corbett

(then) Special Attorney

Detroit Strike Force

940 Federal Building

Detroit, MI 48226

(313) 226-7252

(7) 1979. Also arising out of the same lengthy

inquiry was the case of U.S. v. state Bank of Eraser. Case No.

79-80442, where the corporate entity, the bank itself, was

charged in three felony counts with wilfully filing false bank

entries, reports and transactions with intent to deceive the

Federal Deposit Insurance Corporation. In the companion case of

U.S. V• Beck• Case No. 79-80463, Edgar Beck, the State Bank of

Fraser's President, Chief Executive Officer and principal

33

45-964 98-24
726

Judge Stanley Marcus

United States District Judge

Southern District of Florida

shareholder, was charged with knowingly filing fraudulent and

false statements in connection with the bank's corporate income

tax return, his own individual tax returns, along with

embezzlement and misapplication of bank funds, and with knowingly

making false bank entries, reports and transactions with the

F.D.I.C. The bank entered pleas of guilty and was convicted of

the criminal charges in September 1979 before the Honorable

Robert E. DeMascio, United States District Court for the Eastern

District of Michigan, and was fined by the Court. Bank President

Beck entered guilty pleas to four felony counts before the

Honorable Ralph B. Guy, Jr., then-United States District Court,

Eastern District of Michigan (now Circuit Judge, U.S. Court of

Appeals for the Sixth Circuit), in April 1980, was sentenced to

incarceration for two years and was fined a substantial sum of

money.

Opposing counsel were:

F. Lee Bailey, Esq.

(for Edgar Beck)

1400 CentrePark Blvd., Suite 909

West Palm Beach, FL 33401

(561) 687-3700

James A. Smith, Esq.

(for the State Bank of Fraser)

Bodman, Longley & Dahling

34th Floor, 100 Renaissance Center

Detroit, MI 48243

(313) 259-7777

I was chief counsel for the Department of Justice on all of these

related prosecutions.

(8) 1975. In U.S. V. Crlstenfeld. Case No. 75-Cr-896.

Marvin Crlstenfeld was Chairman of the Nassau County New York

Democratic Committee and then-Commissioner of the Nassau County

Board of Elections. He was charged with and convicted of Hobbs

Act violations of extortion by the wrongful use of fear of

economic loss and under color of official right, bribery and

Travel Act violations, conspiracies to defraud the United States

and the filing of false and fraudulent tax returns in connection

with a massive corruption inquiry into the operations of the

Chairman of the Nassau County Democratic Party. On June 24,

1976, he was convicted on all counts after jury trial before the

Honorable Orin Judd (now deceased). United States District Judge,

Eastern District of New York, who sentenced hin to concurrent

34
727

Judge Stanley Marcus

United States District Judge

Southern District of Florida

terms of incarceration of six months and fined him $2,000. I

tried this case as co-counsel along with:

Kenneth Kaplan

(then) Assistant United States Attorney

Eastern District of New York

(now) Kaplan i Katzberg

767 Third Avenue, 26th Floor

New York, NY 10017

(212) 750-3100

The defendant Marvin Cristenfeld appealed his

conviction to the United States Court of Appeals for the Second

Circuit (Case No. 76-1312), raising serious issues about the

scope of the federal bribery and extortion statutes involving

political party officials. I wrote the brief and argued the case

for the Government before the Court of Appeals for the Second

Circuit. The convictions were affirmed csr curlam in an

unpublished opinion.

Counsel for the defendant were:

Raymond Bernhard Gruenwald, Esq. and

Michael Gillen, Esq.

Gruenwald, Turk, Gillen & Caliendo

then at 233 Broadway

New York, NY 10007

(no current listing for names, address or

telephone number)

Mr. Gruenwald argued the appeal for the defendant; Mr. Gillen

tried the case for the defendant. My co-counsel on the brief

filed with the Court of Appeals were:

Edward R. Korman

(then) Assistant United States Attorney

(now) United States District Judge

Eastern District of New York

225 Cadman Plaza East

Brooklyn, NY 11201

(718) 260-2470

Kenneth Kaplan

(then) Assistant United States Attorney

Eastern District of New York

(now) Kaplan t Katzberg

767 Third Avenue, 26th Floor
728

Judge Stanley Marcus

United States District Judg*

Southern District of Florida

New York, NY 10017

(212) 750-3100

Robert Katzberg

(then) Assistant United States Attorney

(now) Kaplan & Katzberg

767 Third Avenue, 26th Floor

New York, NY 10017

(212) 750-3100

David G. Trager

(then) United States Attorney

(now) United States District Judge

Eastern District of New York

225 Cadman Plaza East

Brooklyn, NY 11201

(718) 260-2510

(9) In U.S. V. McGrath. 558 F.2d 1102 (2d Cir. 1977),

cart, denied. 434 U.S. 1064 (1978), the case was tried before the

Honorable Henry Bramwell, United States District Court for the

Eastern District of New York, by other Assistant United States

Attorneys in Brooklyn, New York. The defendant, John McGrath,

then the Park Maintenance Supervisor of the Long Island State

Park Commission of New York, was convicted of extorting illegal

payments from two truck operators in return for parkway towing

contracts, in violation of the extortion and bribery provisions

under the Federal Hobbs Act, tax evasion and filing false tax

returns. I wrote and prepared the appellate brief filed with the

United States Court of Appeals for the Second Circuit on behalf

of the Government; co-counsel on the brief was:

Stanley A. Teitler

(then) Assistant United States Attorney

(now) 299 Broadway

New York, NY

(212) 233-8031

Opposing counsel were:

Leonard Meiselman, Esq.

John J. Reilley, Esq.

Meiselman, Boland, Reilley & Pittoni

54 Willis Avenue

Mineola, NY 11501

(516) 248-2400
729

Judge Stanley Harcus

United States District Judge

Southern District of Florida

(10) -Totnt Federal/State Homicide Task Force. 1982.

In order to address the serious problem of violent crime in the

Southern District of Florida, I, along with Janet Reno, thenState Attorney for the Eleventh Judicial Circuit of Florida,

created, organized, implemented and supervised a Joint

Federal/State Homicide Task Force here in Dade County in 1982.

By the creation of this Joint Task Force, some 100 defendants

charged with homicide in state court were prosecuted by federal

prosecutors and Assistant State Attorneys in Dade County Circuit

Court. In each phase of the Homicide Task Force, certain

homicide cases and defendants residing in Dade County who were

illegal or otherwise undocumented aliens were designated to be

tried in State Court by a team of State prosecutors and Assistant

United States Attorneys. The federal prosecutors were "cross

designated' as State Assistants to permit then to appear in State

Court.

In Phases I and II of this Task Force, a total of 73

defendants were targeted, of which 61 were found guilty, five

were found not guilty, two were adjudged insane, one was

dismissed, and two were nolle pressed. In Phase III of the Joint

Task Force, the Task Force prosecuted some 4 0 additional

defendants in homicide cases.

The creation and implementation of this Joint

Federal/State Homicide Task Force by Ms. Reno and the United

States Attorney represented a joint effort to combine federal and

state law enforcement resources in a novel way.

Ms. Reno is now Attorney General.

In addition, the following members of the legal

community have had recent contact with me:

1) Roberto Martinez

Colson Hicks Eidson, et al.

200 South Biscayne Boulevard, Suite 4700

Miami, FL 33131

(305) 373-5400

2) Martin Steinberg •

Holland t Knight

701 Brickell Avenue, Suite 3000

Miami, FL 33131

(305) 374-8500

a?
Judge Stanley Marcus

United States District Judge

Southern District of Florida

3) Daniel Pearson

Holland i Knight

701 Brickell Avenue, Suite 3000

Miami, FL 33131

(305) 374-8500

4) Thomas E. Scott

United States Attorney

Southern District of Florida

99 N.E. 4th Street, 8th Floor

Miami, FL 33132

(305) 536-5401

5) Karen Amlong

Amlong t Amlong

500 N.E. 4th Street, 2nd Floor

Ft. Lauderdale, FL 33301

(954) 462-1983

6) Elizabeth Du Fresne

Steel, Hector & Davis

200 South Biscayne Boulevard, #4000

Miami, FL 33131

(305) 577-2855

7) Charles E. Senatore

Securities k Exchange Commission

1401 Brickell Avenue, Suite 200

Miami, FL 33131

(305) 982-6332

8) Leon B. Kellner

3053 "Q" street, NM

Washington, DC 20006

(202) 785-9700

9) James Joseph Kenny

Kenny Nachwalter, et al.

1100 Miami Center

201 South Biscayne Boulevard

Miami, FL 33131

(305) 373-1000

10) Rudolph F. Aragon

Aragon Martin, et al.

2699 South Bayshore Drive, Penthouse

Miami, FL 33133

(305) 858-2900

38
731

Judge Stanley Marcus

United States District Judge

Southern District of Florida

11) Chesterfield Smith

Holland t Knight

701 Brickell Avenue, Suite 3000

Klani, FL 33131

(305) 374-8500

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal matters

that did not involve litigation. Describe the nature of

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

In 1988, I was chosen by Chief Justice Rehnqulst to serve as

a member of the Federal-State Jurisdiction Committee of the

Judicial Conference of the United States. In May 1992, the

Chief Justice appointed me to serve as Chair of the

Committee, a position I filled until my tenure expired in

September 1995. In that capacity, I had the opportunity to

represent the Judicial Conference in connection with pending

legislation that affected the federal judiciary and involved

the intersection between federal and state jurisdiction.

During this time the Committee was composed of federal

judges and the Chief Justices of the Supreme Courts of

Texas, California, Virginia and Ohio. My position as Chair

also required ne to meet regularly with and attend the

formal meetings of the State Conference of Chief Justices

and to work with them in areas of interest common to both

the state and federal courts. As an outgrowth of my work on

behalf of the Federal-State Jurisdiction Committee, Chief

Justice Rehnqulst also appointed me to serve as Chair of the

Ad Hoc Committee on Violence Against Women, 1992-1994.

On a number of occasions I served at the request of then

Chief Judge Gerald Bard Tjoflat in planning the education

programs for the Annual Eleventh Circuit Judicial

Conferences. I am also a member of the Committee on Pattern

Jury Instructions of the District Judges Association of the

Eleventh Circuit Court of Appeals, which was asked by Judge

Tjoflat to edit, revise and update the pattern jury

instructions for use throughout the Circuit.

Finally, Chief Judge Hatchett has appointed me to serve as a

member of the Education Committee of the Judicial Council of

the Eleventh Circuit.

39
TS2

Judge Stanley Marcus

United States District Judge

Southern District of Florida

FroB the sumer of 1994 to the present, I have served the

district court as a nenber of a four-judge executive

connittee whose responsibility it is to Bake decisions about

the administration of the Court. I have also been selected

by the Chief Judge to serve as a Bember of the District

Court's Security, Budget and Rules CoDBlttees, the Civil

Justice Advisory CoBoittee, and, for six years, I chaired

the Court's Magistrate's Coaaittee.

40
733

Judge Stanley Marcus

United states District Judge

Southern District of Florida

II. riNAMCIAL DATA AKD CONFLICT OF INTEREST (PnBl.IC)

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 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 am unaware of any areas of financial concern that would

represent any potential conflict of interest. However, I am

mindful of the provisions of Title 28, U.S.C. SS 455 and

144, and the Canons of Judicial Ethics.

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 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.)

See attached Financial Disclosure Report for 1997.

See attached Financial Disclosure Report for 1996.

5. Please complete the attached financial net worth statement

in detail (Add schedules as called for).

See attached form.

41
734

HNANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAR 1996

Iteloni Act ol !*•(. h* i. a

191-lM. ItooMter M. iMt

1 Person ll«p«rttn( ILaat ii«a«. ttcK. BIMI*

MARCUS, STANLEY

I Court at 0i9«Ri(«tion

U.S. COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT 9 /23 /97

, « Tit.1* lArticls lit judwi indtc«tc •CTt<r« oi

U.S. CIRCUIT COURT NOMINEE

•fpoic. Type ichcch Approprtat* MT*'

1 a'97 9/23 9:

301 North Miami Avenue

5th Floor

Miami, Florida 33128

• On tttm b*li* ot tha infoivat ion contained in thtt R«p»n j

any aodit icatlon* p«rtalnlna ch«r«(0, l( li, in vy ^tnio in CCT^llanC* with applicabl* la>>a and irqwlattona

IMPORTANT NOTES The insiructions accompanying this form mu&t be followed Complete all paiU.

checking rhe NONE box for each scciion where you have no rcportable infornution. Sign on lasl page

POSITIONS. (Reporting todividuai only, icc pp. 9-U of lostrudioiu.)

POSITION NAME OF ORGANIZATION/ENTITY

I X 1 NONE (No reponablc posiiiotuj

I. AGREEMENTS. (Reporting indnidual only, see pp 14-17 of Insiructions )

DATE PARTIES AND TERMS

0 NONE (No rcpofUMe tgnemMii)

III. NON-INVESTMENT INCOME. (Rtpomng individu.! «IKI ipouse. sec pp 18 25 o( InanKtioos)

PATE SOURCE AND TYPE ,ff,9^L 'J£S^

D

1991

-1937

NONE (No rcportable Don-triveumcDt income)

Professor-Trial Advocacy Course-Brooklyn Law School

(May-July 1997) ' " ~ ' Willjams-Sonoma. Inc. ISI

Temple Beth Am (S)
7»

FIKANCIAL DISCLOSURE REPORT

•• of Pci>on H«fM>rt inq

HIUICUS, STANLEY 5A2/97

E

REIMBURSEMENTS and GIFTS - traiuportacion, lodging, rood.cnicnainmcm.

(Includes Ihosc lo spouse »od dependent children; use ihe parcnihcticali '(S)* and "(DC)' to indicate rcporlablc

reiinburM:menl& and gifts rcceix-cd by spouse and dependent children, rcspccltvcly Sec pp 2t>- 2^ of Insiruaioni.)

SOURCE DESCRIPTION

NONE (No such fcportablc reimbursements or gifts)

Q

OTHER GIFTS. (Includes those to ^wuse and dependent children; use the parcnlhedcals '(S)' and '(DC)' to

indicate other gifts received by spouse and dependent children, respectively. See pp 30-33 of Insiruclions.)

SOURCE DESCRIPTION

NONE (No iucb reportabic ^fu)

VALUE

V\. LIABILITIES. (Includes (hoK of spouse and dependent children; lodicate where applicable, person responsible

for liability by using Ihe parenihcttcal'(S)* for separate liability of the spouse, *(J)' for joint habtlity of

tepofliag individual and spouse, and '(DC)' foe liabilily of a dependeal child. See ^. 34-36 o( Inslruaions.)

CREDITOR DESCRIPTION VALUE CODE*

QX I NONE (No rcporlable liabilities)

I Codcaif J-S1S,0(IO or less

O-SSOO,DOl t1.000.000 Pi'Sas.ooo.floi-iso.ooo.ooo fl'Sl.i
786

FXNANCIAI, DISCLOSURE REPORT

tl*M Of r^ttaiy Report ina

STANLEY MARCUS

Oato of Kawn

9/23/97

VII. Page 1 INVESTMENTS ahdTRUSTS-KiconK. valuclranuctiom (Indudulhoicolipoiiic

snd dependent children. See pp. 37-S4 of [nyrudions )

DaacTipiion o( A»»eta

llncludinq tr\i»i ••••til

Indtcat* «h«r« applicabl*. owwr of

tha ••••t by uaing tru &«r*nlhatic«l

•IJI- tor loiAc ovnaraMp of raoortIM indlvtdwal and apouae. -(Sl^ tor

tor o>m«[>fiVf> by dapandonc <:ftil<i

Pl«c« •(«)• aftat vach aaMi

••••PC (loa prior dtacloour*

dCT?II5 rvpotttng

c

Croat valu«

at *nd o(

0

Tranooniona dwrinf /aportinf p«,ioO

111

tat 1

Cod*

lA-H)

111

rant or

int I

111

valuo

Coda

IJ-P1

11)

valoa

lO-wi

111

TWO

^' J.U.

If noi cBv^t fro* dkoclowro |

NOMhday

111

VattMJ

coda

(J-P»

Ml

Qalnl

Coda

(•I

I4«nCltV 0<

llf privato

tTUlMCflOnI

NONE (Ho ropotCAbla

tranaacitonal

^ First Union

A Int ,7 T, •

,T. Rowe Price Sinall-Cai

'value Mutual Fund - IR > Div J T

.. aaitiraore. nu^„„

,Vanguard Index 500,

Mutual Fund - IRA. A Div J T

.Fiimn i?f^8ftprSrowl lift Div ,7

Fidelity SoftWCoro Mutui

* Fund-IRA, Cin., OH

I

A Div J T

U.S. Treasury Note

*99 NV 30 B Int K T

Coca Cola Common Stock

'Stanley Marcus, Cust. A Div J T

,Young Stovall & Co. A Div J T

^Dell Computer Common S

Jonathan (son) & Juditt A Div J T Buv 8/1 J

j^arcus (spouse)

'•

17

|]

••

l\

l«

1»

!•

'^'?*'S"'" «• ^'ii.OCO ot laaa B>tl.001-S1.490 C>S2.Ml-SS.000 0-$l.001-114,000 E-tlS.001 -»&.BOO

ICol SI.Ml r-SSO.OOl HOOOOO C.SlO0.0«l-»1.000,(K»O Kl.tl.000.001 tS.000,000 irj.SS.OOO.OOl fir -nr*

^ «al Oda J-tli.OOe or !••• K.f IS. 001-tiO. 090 b<(M. 001 1100. 000 H-ttO*. 001-tlSO, 000 It-tlM. 001-l^M. •»•

-a., c.oj. ?;nSS:SSi:SSi'n6Too.o.. K:U6»S:o'SSi'lr'^i«- «.».oo..ooi.«v.oo.o.o

!c2t' sr ^ siKsi'tati. ::gx;"*' """• *""" surrtsra r^-w^r^^
741

rXKMtCIAI. DZSCLOSTTKC REPOKT (cont'd) MARCUS, STANLEY

ti«t* of K»p«>l

5/12/97

VIU. ADDITIONAL INFORMATION OR EXPLANATIONS OMlkMe pmn of Rcpon.)

1) Chase Federal, Hiami., PL Bank was acquired by nations Bank

Savings (son)

Hiaal, PL,

Savings Account transferred to Nations Bank;

5CT Seu. YH (t7).

DL CERTinCATION.

In compliance with ihc provisions of 28 U S C { 4SS «nd of Advisory Opiniaa No. 57 of die Advisory Conunldee oo Judicial

Aannues. and lo die best of my biowkdce ai die ume after reasooaHe inquiry. I did not pcrfarai any adjudicaiory functioo m any lib^MioB

durvig ibe period covered by (ha repor in which I. ray spouie. or my mmor or dependeai duMren had a rnaocial inaercil. as defuied m

Canon 3C0Xc). m die outcome of nich liiifation

I ccni^ dui all inforroauoa |tven above (inctuding infonnaiioa pertanuDt *•> "ly tpouie and minor or dqiendcw chiklren, if any) ii

accurae, true, and conf4ett lo dK best of ay knowledge and belief, and diat any infannatioo not icporied was wiihbeid becauM it ma

ifipUcabk Kauory provisiom permjotnt oon^jckmut

I funber oenify dui earned ncome fron omidc cmfiioymeni and hoooram aod ibc KCftpmcf of gifts whicti have been reported arc

in comfduoce widi die provisioos of 5 U.S.C.A. app. 4. §501 el seq.. S U S.C | 73S3 and hidicial Conference refutauott

^^AAMM^ N^.'^,f^l

NOTE: AMY INDTVIDUAL WHO KNOWINGLY AND WfLFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE

SUBIECT TO CIVIL AND CRIMINAL SANCTIONS (5 US C App. 4. | 104.)

FIUNO INSTKUCnONS:

cOffiuordK

UndHd Softs Coons

S<aK2-Kl

OKriilMtiii Ckde. N.E.,

WoAi^foa, D.C. 20144
742

RKANOAL STATEMEKT

NETWORIB

Provide a conipkte, cmieM fiaiiidil act wonb imemem which tanizei in deail

IH Misea (iadudinf bank •ceouna, real csote, !"—'<«'»« mats, invexDneoa, and oiber «n.iwi,i

hoUinfs) all Uabiliocs frwhwiiwy d^bSt inantifea, loans* and odier ^^""iiT ofalicaxiaiu) of

younelf, yom spoasc and other imnediaie mnnhrn of your honirtinld.

Cut » kiad lad B k«b %^ Ho '*»

Jn

».8 1W Wo

ni«p« »•>•><»• I Hi Af/ if

ISt) oto DX> QMM^mmttagmmAtAtiliamfa^

J MUM manctfca neovibk

Ci AiMDi wtd o(b«i pmoflri pnipVTy ;L« I2C eo fi>rfcfn<fa>,J*.f^rti\ <7« ^0

C*tt -iliM Bfr 0

Othd uaxa-iuisize

r/t.ri/<. Bit.R(,Br./^^<r P^^ftr^ 21

AIL OY/

2/

x«t ry.

3Sr 5?l ^1 JiT f7l

OONnNCENT UABILmtt OINEBAL WFaOUTION

UA UtS,

Proviuaa tar Fadcnl laoona

r Btaa kKknpcyT a/O
743

ach«dul»« to >l.i»n«5i»l at«tM«nt

Ka: Staalay Narcua

SSH/ 112-34-2417

U.S. Government Securities

Nations Securities

7.75% Treasury Bond - Due 11/99 $ 27.OQo.nn

Listed Securities

50.398 shares - Coca Cola C. 3,014.30

In name of Stanley Marcus, Custodian for

Jonathan Marcus, Son

IS shares - Dell Computers C. 1,477.50

In name of Jonathan and Judith Marcus

I.R.A. Accounts

Fidelity Select Software 4,132.36

Fidelity Blue Chip Growth 8,625.40

T. Rowe Price Small Cap Fund 4,847.80

Vanguard Index Trust 500 6.851.04

$ 28.948.40

Real Estate Owned

Residence: Miami, Florida

Current estimated value $250,000.00

Mortgaged: See below

Real Estate Mortgages Payable

First Mortgage on Residence:

GE Mortgage Services $126,436.67

Home Equity Line:

NationsBank 21,854:77

Perkins (Student Loan) fEHy.abeth Marcusl 750.00

S149.041.44
744

Judge Stanley Marcus

United States District Judge

Southern District of Florida

fi. 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.

Ho.

42
T45

Judge Stanley Marcus

United States District Judge

Southern District of Florida

III. OENERAL (PUBLIC)

An ethical consideration under Canon 2 of the TUierican Bar

Association's Code of Professional Responsibility calls for

'every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances

and the amount of time devoted to each.

As a district judge I have not engaged in any pro bono

activity, but as a member of our Court's Civil Justice

Advisory Committee, I worked with District Judge Lenore C.

Nesbitt, the Committee, and the Court, in establishing a

Voluntary Lawyers' Project to provide legal support for

indigent litigants in non-Criminal Justice Act cases, which

include, for example, a variety of claims arising under

Title VII, Age Discrimination Act, Americans With

Disabilities Act, claims of ownership in civil forfeiture,

non-prisoner S 1983 civil rights litigation, and Freedom of

Information Act cases. The project has received the

voluntary services of lawyers in this district and appears

to be a real and working solution to an old and vexing

problem.

I also expended substantial time over a seven-year period in

service of the Judicial Conference of the United States. I

served from 1988-1992 as a member of the Federal-State

Jurisdiction Committee of the Judicial Conference. In 1992,

Chief Justice Rehnquist appointed me to serve as Chair of

that same committee, a position I held until the term

expired in September of 1995. In this capacity I

represented the Judicial Conference in connection with

legislation that affected the federal judiciary and involved

the intersection between federal and state jurisdiction. As

an outgrowth of this work, the Chief Justice also appointed

me to serve from 1992 to 1994 as Chair of the Ad Hoc

Committee on Violence Against Women, which also required

extensive time commitments.

I have further served the judiciary as a member of a number

of other committees. I was appointed to committees to plan

the education programs for the Eleventh Circuit's Annual

Judicial Conference. I served on the Committee on Pattern

Jury Instructions, appointed to edit, revise and update the

standard instructions used throughout the Circuit. For the

past three years, I have served the district court as a

43
746

Judge Stanley Marcus

United States District Judge

Southern District of Florida

nenber of a four-judge executive comnittea, which neets

weekly to make decisions about the administration of the

court. I have also served the district court as a member of

its Security, Budget, and Rules Committees, the Civil

Justice Advisory Committee, and I chaired the Magistrate's

Committee for six years.

2. The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is inappropriate for a judge

to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do

you currently belong, or have you belonged, to any

organization which discriminates — through either formal

membership requirements or the practical implementation of

membership policies? If so, list, with dates of membership,

vmat you have done to try to change these policies?

No.

3. Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which led

to your nomination and interviews in which you

participated).

I am unaware of the involvement of any selection commission

in connection with this nomination. I was recently asked by

the Office of Counsel to the President to fill out a

judicial questionnaire, and was invited to an interview by

representatives of the Department of Justice and the

Counsel's Office in July 1997. I also had occasion to be

interviewed by representatives of the FBI and the ABA.

4. Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case,

issue, or question? If so, please explain fully.

No.

5. Please discuss your views on the following criticism

involving 'judicial activism.'

44
747

Judge Stanley Marcus

United states District Judge

Southern District of Florida

The role of the Federal judiciary within the Federal

governnent, 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 judicial branch by Its very nature, armed with neither

sword nor purse, derives its power entirely from its legitimacy

with the people, from the widespread belief that it does not more

nor less than apply the known and established law to real and

actual controversies. If the people come to believe that the

courts are overreaching the boundaries of the law and in

circumstances that may not justify judicial Intervention of any

kind, the people will withdraw their support from the judicial

process exposing the nation to the great danger of lawlessness.

In a democracy, the judicial branch — the one branch that does

not directly derive its power from the democratic process —

must, to preserve its effectiveness under the Constitution,

scrupulously limit the exercise of Its power to real cases ripe

for decision. Moreover, its remedies must be calculated to pose

the minimum feasible judicial interference that will still

achieve a fair resolution. This is not to say that broad

judicial remedies are always wrong, but they certainly can be
748

Judge Stanley Marcus

United States District Judge

Southern District of Florida

wrong often. Where such remedies are clearly necessary to the *

vindication of fundamental constitutional rights, they may be

unavoidable. Where, as in most situations, broad remedies are

not indispensable, resort to such remedies will tend inevitably

to detract from the democratic character of our society and the

proper role of the courts. The brilliance of our constitutional

system is that the simple, narrow and precise case-by-case

enforcement of the rights and obligations it has spawned will in

itself tend to the creation of a just society.

46
749

Judge Stanley Marcus

United States District Judge

Southern District of Florida

EXHIBIT A

ATTACHMENT TO QUESTION IS (3) 27.
750

ROBERT A. MCLAUGHLIN,

et al.,

Plaintiffs,

METROPOLITAN DADE

COUNTY,

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 96-0745-CIV-MARCUS

Q&BEB

Defendant.

TOIS CAUSE comes before the Court upon the Defendant's Motion

for Summary Judgment, filed August 26, 1996, and the Plaintiffs'

Cross-Motion for Summary Judgment on Liability, filed September 10,

1996. Both of these motions are ripe for resolution, and the Court

took brief argument on them at the pre-trial conference on October

22, 1996. After a thorough review of the record and pleadings, and

being otherwise advised in the premises, the Defendant's motion

must be and is GRANTED. The Plaintiffs' cross-motion is DENIED.

I.

This litigation concerns the enforcement of a Florida statute

that, among other things, prohibits any use of a public street in

a manner that creates a hazard to motorists or pedestrians. This

statute, codified at Fla. Stat. $337,406(1), provides in pertinent

part:

It is unlawful to make any use of the rightof-way of any state transportation facility,

including appendages thereto ... in any

manner that interferes with the safe and

efficient movement of people and property from
761

place to place on the transportation facility.

Failure to prohibit the use of right-of-way in

this isanner will endanger the health, safety

and general welfare of the public by causing

distractions to motorists, unsafe pedestrian

movement within travel lanes, sudden stoppage

or slowdown of traffic, rapid lane changing

and other dangerous traffic movement,

increased vehicular accidents, and motorist

injuries and fatalities. Such prohibited uses

include, but are not limited to, the free

distribution or sale of any merchandise,

goods, property or services; the solicitation

for charitable purposes, the servicing or

repairing of any vehicle, except the rendering

of emergency service; the storage of vehicles

being serviced or repaired on abutting

property or elsewhere; and the display of

advertising of any sort ....

(emphasis added). Fla. Stat. $334.03(22) defines "right-of-way" as

"land in which the state, the department, a county, or a

municipality owns the fee or has an easement devoted to or required

for use as a transportation facility." Fla. Stat. $334.03(31)

defines "transportation facility" as "any means for the

transportation of people and property from place to place which is

constructed, operated, or maintained in whole or in part from

public funds." A violation of the statute constitutes a

misdemeanor of the second degree. Fla. Stat. $337,406(4).

Jk.

The facts giving rise to this lawsuit were set out during an

evidentiary hearing conducted on May 2, 1996 in conjunction with

the Plaintiffs' motion for preliminary injunction.' Testimony at

'The parties agree that the record developed during the Hay

2nd evidentiary hearing may be considered in resolving the

pending summary judgment motions. Relatively little has been

added to the record since that time, and neither party has
752

the May 2ncl hearing established the following: Plaintiffs Michael

Vance, Eric Seralnick and Robert A. McLaughlin sell flowers and

other floral products within the boundaries of Metropolitan Dade

County. Vance sells flowers in northeast Dade County, typically at

the intersection of Ives Dairy Road and Biscayne Boulevard, both of

which are state roads. When selling flowers on the street, Vance

waits until the traffic light turns red and the stopped vehicles

back up six car lengths. At that point he walks between the lanes

of traffic, displaying arrangeaents of flowers to drivers and

passengers who are seated in the vehicles, and carrying change in

his pocket or hands. Vance testified that he could not recall ever

walking in front of a moving vehicle, and could not recall ever

seeing an accident involving a flower vendor.

On Thanksgiving Day, 1995, Vance was taken aside by Lieutencmt

Joseph McGillivray, an officer with the Intracoastal District of

the Metro-Dade Police Department. McGillivray advised Vance tbat

he could not sell flowers on a state road. At the time McGillivray

approached Vance, Vance was standing on the sidewalk. Several

weeks later, McGillivray again approached Vance while Vance was on

the sidewalk, and warned him that he could not sell flowers on a

state road. At some point in late February or early March of 1996,

McGillivray confronted Vance while he was sitting on a bucket of

flowers on private property. McGillivray advised him that if he

continued to sell flowers on the street in violation of section

introduced evidence to contradict or rebut testimony presented at

the hearing.
768

337.406, he would be arrested and not permitted to secure his

release on bond. McGillivray testified at the Hay 2nd hearing

that, on this and other occasions, he had observed Vance in the

roadway after the light turned green, delaying traffic and causing

notorists to honk their horns in frustration.

Seralnick, like Vance, sells flowers to motorists at the

intersection of Blscayne Boulevard and Ives Dairy Road as well as

other locations in northeastern Dade County. He has sold flowers

on the street for the past two years. His practice is to stand at

the start of the median while waiting for a red light. Once the

light turns red, he walks between lanes of traffic at the beginning

of the line of stopped cars. As soon as the light turns green, he

moves back to the median, walks to the head of the intersection and

waits for the next red light. Seralnick testified that he has

never walked in front of a moving vehicle, and has never seen an

accident involving a flower vendor. He added that each transaction

takes no more than a couple of seconds, and that if he is unable to

complete a transaction before the light turns green, h« will walk

away from the sale.

On or about January 26, 1996, Seralnick was arrested and given

a notice to appear for an alleged violation of section 337.406.

Margaret Romero, a Metro-Dade police officer assigned to the

Intracoastal district, made the arrest. At the May 2nd hearing,

Romero testified that, when she arrested Seralnick, he was making

use of a state road in a manner that interfered with the safe and

efficient movement of people and property. She had observed
784

Seralnick selling flowers on the street, walking lunong cars stopped

in the two westbound left-turn lanes of northbound Biscayne

Boulevard at the intersection with Ives Dairy Road. According to

Romero, when the traffic light for the left-turn lanes turned

green, Seralnick was still in the road, which delayed the progress

of cars through the turn and forced a number of vehicles that

ordinarily would have made it through the light to wait for the

next green. Romero explained that, once Seralnick saw her, he

stepped onto the median, at which time she effected the arrest.

Romero explained that she was not monitoring the Intersection for

the purpose of arresting flower vendors or any other vendors, but

rather as part of her normal routine during "down time" when she

was not responding to a call elsewhere.

McLaughlin supplies the flowers that are sold by Vance and

Seralnick. He drops off bunches of flowers at various street

corners, where they are picked up by flower vendors. He returns to

these comers at the end of the day, and picks up whatever flowers

have not been sold. McLaughlin testified that he has cautioned

Vance and Seralnick not to interfere with moving traffic, and that

he has never observed one of his vendors obstruct a vehicle. He is

not aware of an accident involving a vendor or an instance where a

car had to swerve to avoid a vendor. McLaughlin added that he has

observed Vance and Seralnick walk away from sales when it appeared

that the transaction could not be completed before the light turned

green. According to McLaughlin, the practice of soliciting in the

middle of streets in Dade County has been going on as long as he
755

can remember.

Lieutenant McGillivray testified that he has seen Seralnldc,

Vance and others selling flowers at the intersection of Ives Dairy

Road and Biscayne Boulevard, both of which he described as heavily

traveled roads. McGillivray has warned individuals about

violations of Fla. Stat. $337,406 on many occasions, based on

activities at that intersection and at other locations in his

district. McGillivray said he has never given a warning unless he

felt the individual was Interfering with the safe and efficient

movement of people and property by wandering between lanes of

traffic and causing a delay. When questioned on cross-examination,

McGillivray stated unequivocally that he would not arrest someone

under section 337.406 unless he believed that the individual was

obstructing traffic.

McGillivray noted that the activities of the Plaintiffs and

others have generated complaints from neighborhood citizen groups.

According to McGillivray, when vendors are in the street after the

light turns green, drivers are forced to decrease their speed,

change lanes or swerve to avoid hitting them. The delays caused by

the presence of vendors also agitates drivers in cars further back

In the line, who start to yell or honk their horns. McGillivray

said he has observed accidents, near-accidents and traffic tie-ups

result from the activities of on-street vendors and solicitors who

walk between lanes of traffic at busy Intersections. He said that

he recalls incidents where drivers have jammed on their brakes and

honked their horns in order to avoid collisions with vendors,
756

because of uncertainty as to whether the vendors would walk to the

left or the right in order to avoid the rush of traffic. He has

observed cars forced to wait at green lights to allow vendors

additional time to reach the sidewalk or nedlan. HcGillivray >

explained that the presence of vendors and other solicitors in the

street causes anxiety to the nany elderly drivers in the area who

become frightened or unsettled when unfamiliar persons approach

their cars. The anxieties of these elderly drivers exacerbate the

multiple safety and traffic flow problems that already exist on

Biscayne Boulevard and Ives Dairy Road.

Like HcGillivray, Officer Romero testified that she has

observed accidents, near-accidents and traffic jams as a result of

the activities of vendors who sell their goods in the street in

violation of Fla. Stat. $3 37,4 06. She stated that she has made

arrests under the statute at the intersection of Ives Dairy Road

and Biscayne Boulevard, as well as at other locations in Dade

County. Romero explained that she has never made an arrest or

issued a warning under this statute unless she saw a dangerous

condition or a disruption to traffic (except in instances involving

older pedestrians). According to Romero, when she observes an

apparent violation of section 337.406, she gives the violator a

warning, and advises hln that he will be arrested if he continues

to obstruct traffic.

Vance, Seralnick and HcLaughlin testified that they have seen

vendors for the Miami Herald, as well as panhandlers and

representatives of charitable groups and political organizations.
757

engage in solicitation on state roads in the vicinity of Ives Dairy

Road and Biscayne Boulevard. Nevertheless, according to the

Plaintiffs, they have never seen Metro-Dade police officers arrest

or warn these individuals for violating the law. Officer Romero

testified, without contradiction, that she has warned and arrested

individuals other than flower vendors for violations of Fla. Stat.

$3 37,406. Lieutenant HcGillivray added that although he has not

arrested or warned individuals other than flower sellers, officers

under his conmand have done so. HcGillivray explained that nost of

the vendors who used to sell their wares on the street no longer do

so, as a result of Metro-Dade's enforcement of section 337.406. He

explained that charitable groups sometimes attempt to solicit

contributions while standing in the roadway, but that these groups

either leave the area or move to the sidewalk after being advised

of the applicable laws and regulations.

Both HcGillivray and Romero acknowledged that they have not

enforced section 337.406 against vendors of the Hiani Herald or

other newspapers. According to HcGillivray, the officers in his

district have refrained from enforcing the statute against Herald

vendors because of a bulletin from the Police Department's legal

staff, which expressed concern about the constitutionality of

applying a former version of section 337.406 to newspaper sales.

HcGillivray and Romero testified that Metro-Dade officers do not

arrest flower vendors on the basis of the content of their message

or their race, religion or political beliefs. Indeed, both

HcGillivray and Romero testified that they are not aware of the

45-964 98-25
758

race, religion or political beliefs of the Plaintiffs, and have

never overheard the substance of Plaintiffs' renarks to motorists

while selling their goods.

B.

Plaintiffs filed their complaint on March 18, 1996, along with

a notion for prelininary injunction pursuant to Rule 65 of the

Federal Rules of Civil Procedure.' The complaint arises under 42

U.S.C. S1983, and seeks a declaration that Fla. Stat. $337,406 is

overbroad and unconstitutional as applied or selectively enforced

in violation of the First and Fourteen Amendments to the United

States Constitution. Plaintiffs request an injunction prohibiting

enforcement of the statute, damages and other relief.

The Plaintiffs moved for a hearing on their request for an

injunction in an emergency motion dated April 4, 1995. The parties

appeared for a status conference on April 15, 1996, at which time

the Court scheduled the parties for an evidentiary hearing. At the

hearing on May 2nd, the Court took testimony from five witnesses

and listened to oral argument on the outstanding notions. In a

lengthy Order dated Hay 6, 1996, the Court denied Plaintiffs'

notion for preliminary injunctive relief, finding no likelihood of

success on the merits. First, the Court held that section 337.406

is not facially unconstitutional, because it is narrowly tailored

to serve the Stats of Florida's significant interest in

'The complaint initially named the State of Florida as a coDefendant. In the May 6th Order, however, we dismissed the

claims against the State on Eleventh Amendment grounds.
759

facilitating traffic flow and ensuring the safety of notorlsts and

pedestrians. Second, the Court held that section 337.406 was not

unconstitutional as applied to the Plaintiffs and their customary

method of selling flowers, because Plaintiffs had failed to show

that their practice could never violate the statute or give rise to

the concerns that led to its enactment. Third, the Court found no

persuasive evidence that Fla. Stat. $337,406 was being selectively

enforced against flower vendors.

II.

The standard to be applied in reviewing summary judgment

Botions is stated unambiguously in Rule 56 (c) of the Federal Rules

of Civil Procedure:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories and admissions on

file, together with the affidavits, if any,

show that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judgment as a matter of law.

It nay be entered only where there is no genuine issue of material

fact. Moreover, the moving party has the burden of meeting this

exacting standard. Adickes v. S.H. Kress & Co. . 398 U.S. 144, 157

(1970). As the Eleventh Circuit has explained:

In assessing whether the movant has met this

burden, the courts should view the evidence

and all factual inferences therefrom in the

light most favorable to the party opposing the

motion. Adickes, 398 U.S. at 157, 90 S. Ct.

at 1608; Marsh, 651 F.2d at 991. All

reasonable doubts about the facts should be

resolved in favor of the non-movant. Casey

Enterprises v. Am. Hardware Mutual Ins. Co. •

655 F.2d 598, 602 (5th Cir. 1981). If the

record presents factual issues, the court must

10
760

not decide them; it must deny the notion and

proceed to trial. Marsh. 651 F.2d at 991;

Lighting Fixture & EifiCj SllEBlX CO^ JtContinental Ins. Co.• 420 F.2d 1211, 1213 (5th

Cir. 1969). Summary judgment may be

inappropriate even where the parties agree on

the basic facts, but disagree about the

inferences that should be drawn from these

facts. Liyhtiny Fixture t. Flee. Supply Co..

420 F.2d at 1213. If reasonable minds might

differ on the inferences arising from

undisputed facts, then the court should deny

summary judgment. Impossible Electronics. 669

F.2d at 1031; Croley v. Matson Navigation Co. •

434 F.2d 73, 75 (5th Cir. 1970).

Moreover, the party opposing a motion for

summary judgment need not respond to it with

any affidavits or other evidence unless and

until the movant has properly supported the

motion with sufficient evidence. Adlckesf1.

398 U.S. at 160 . . .; HatSil, 651 F.2d at 991.

The moving party must demonstrate that the

facts underlying all the relevant legal

questions raised by the pleadings or otherwise

are not in dispute, or else summary judgment

will be denied notwithstanding that the

non-moving party has introduced no evidence

whatsoever. Brunswick Corp. v. Vineberg. 370

F.2d 605, 611-12 (5th Cir. 1967). Sfifi Daliifi

V. Upiohn Co.• 555 F.2d 245, 248-49 (9th Cir.

1977).

demons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.

1982); aes SLISQ Amey. Inc. v. Gulf Abstract & Title. Inc.. 758 F.2d

1486, 1502 (llth Cir. 1985), sexX- dfiOifid, 475 U.S. 1107 (1986).

The United States Supreme Court has provided significant

additional guidance as to the evidentiary standard which trial

courts should apply in ruling on a motion for summary judgment:

(The summary judgment] standard mirrors the

standard for a directed verdict under Federal

Rule of Civil Procedure 50(a), which is that

the trial judge must direct a verdict if,

under the governing law, there can be but one

reasonable conclusion as to the verdict.

II
761

Brady v. Southern R. Co.. 320 U.S. 476,

479-80, 64 S. Ct. 232, 234, 88 L. Ed. 239

(1943).

Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 250 (1986). The

Court in Anderson further acknowledged that "[t]he aere existence

of a Bcintllla of evidence in support of the position will be

insufficient; there must be evidence on which the jury could

reasonably find for the [non-movantj.' Id. at 252 (emphasis

added). In determining whether this evidentiary threshold has been

net, the trial court "must view the evidence presented through the

prism of the substantive evidentiary burden" applicable to the

particular cause of action before it. Id- at 254. If the

non-movant in a summary judgment action fails to adduce evidence

trtiich would be sufficient, %riien viewed in a light most favorable to

the non-movant, to support a jury finding in his favor, summary

judgment may be granted. Id. at 254-55.

In a companion case, the Supreme Court declared that a

non-moving party's failure to prove an essential element of his

claim renders all factual disputes as to that claim immaterial and

requires the granting of summary judgment:

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment .. .

against a party who fails to make a showing

sufficient to establish the existence of an

element essential to that party's case, and on

which that party will ijear the burden of proof

at trial. In such a situation, there can be

"no genuine issue as to any material fact,"

since a complete failure of proof concerning

an essential element of the nonmoving party's

case necessarily renders all other facts

immaterial. The moving party is "entitled to

judgment as a matter of law" because the

12
762

noniaoving party has failed to make a

sufficient showing on an essential element of

her case with respect to which she has the

burden of proof.

Celotex Corp. v. Catrett. 477 U.S. 317, 322-23 (1986) (emphasis

added). We measure the parties' cross-motions for summary judgnent

against these standards.

III.

Plaintiffs now concede that section 337.406, properly

interpreted, is constitutional on its face. P'tiff. Resp., at 8.

Nevertheless, they renew their argument that the statute is

unconstitutional as applied to them and their customary method of

selling flowers. In our Hay 6th Order, we rejected the Plaintiffs'

argument on this point in the following terms:

The Plaintiffs' next argument concerns whether

Fla. Stat. S337.406 is unconstitutional as

applied to the Plaintiffs' conduct in selling

flowers on streets in North Dade. The issue

here is not whether, in any specific instance,

one of the Plaintiffs did or did not violate

the statute. Rather, the issue is whether

selling flowers in the manner that the

Plaintiffs do metkes application of the statute

to them — as opposed to others —

unconstitutional, because (1) their speech

warrants special protection or (2) the manner

in which the Plaintiffs sell their flowers is

such that enforcing the statute against them

could never serve the significant state

interests that give rise to the section

337.406.

The Plaintiffs do not — and cannot —

argue that the speech element of selling

flowers is somehow entitled to a higher

measure of constitutional protection than the

speech associated with selling sandwiches or

sunglasses or engaging in other commercial

transactions. Moreover, the evidence

establishes that the practice of mixing

13
763

pedestrian flower-sellers with tenporarily

stopped motor vehicles will, in some if not

all instances, "pose a safety hazard [and]

cause delays and disruptions to traffic as

vehicles become detained at traffic lights

while drivers fumble for money and vendors

provide change." [News t Sun Sentinel Co. v.

Cox, 7B2 F. Supp. 891, 900 (S.D. Fla. 1988)].

In the case at bar, Lieutenant McGilllvray and

Officer Romero testified to the various

hazards actually created by vendors who peddle

their wares while walking between lanes of

traffic at red lights. These hazards include

drivers swerving to avoid accidents, drivers

slamming on their brakes to avoid collisions

with vendors or other cars, and drivers who

become agitated at the presence of strangers

near their car window or at vendors' apparent

nonchalance in stepping off the road once the

light turns green.

Vance and Seralnick testified that they

have never been involved in an accident as a

result of their flower selling, and that they

try to conduct their business in a manner that

is not dangerous and does not delay traffic.

This evidence is not compelling, however. As

the Eight Circuit noted under similar

circumstances in [Acorn v. St. Louis County.

930 F.2d 591, 596 (8th Cir. 1991)]:

The fact that there was no evidence

of Acorn's solicitors being hurt is

of no probative value. The

government need not wait for

accidents to justify safety

regulations. Nor is it sufficient

for Acorn to show that its

particular practices are safe if the

practice of in-the-roadway

solicitation generally is dangerous.

It is the regulation's relationship

"to the overall problem that the

government seeks to correct," not

its necessity in Acorn's particular

case, that determines its validity.

The evidence does not establish that the

Plaintiffs' practice of selling flowers by

weaving between lanes of traffic while cars

are stopped at red lights — and stepping off

14
764

to the sidewalk or median once the light turns

green — is at all tines compatible with the

State's need to ensure traffic safety and

prevent unreasonable delay to motorists. It

is inevitable that this practice will, on

occasion, be unsafe or disruptive, no matter

how cautious or considerate the Plaintiffs

might be. Indeed, on this limited record, the

evidence establishes that Vance and Seralnick

do not always conduct their business in the

innocuous manner that they suggest. Officer

Romero testified that, when she arrested

Seralnick, he had been lingering in the leftturn lanes after the traffic light turned

green, causing a delay that limited the number

of cars able to complete the turn before the

light turned red again. Lieutenant

McGillivray testified that he has observed

Vance remaining on the street after the light

turned green, disrupting traffic and causing

cars to honk their horns. Under these facts

and circumstances, the Plaintiffs have not met

their burden of showing that the enforcement

of section 337.406 against them could never

serve the State of Florida's Interest in

preventing Interference with the movement of

people and property on state roads.

Order, at 23-26 (citations to factual findings omitted).

The principal basis for the Plaintiffs' opposition to summary

judgment is their supposition that, as far as the County !•

concerned, the Plaintiffs' customary method of selling flowers can

never be carried out in a manner that does not violate the statute.

According to the Plaintiffs, the County is prepared to arrest

flower vendors without regard to whether their conduct in any

particular instance "interferes with the safe and efficient

movement of people and property." Thus, they seek "protection from

this [CJourt to prevent officers of Dade County from enforcing a

new policy of the County to make arrests of flower vendors,

regardless of whether plaintiffs obstruct traffic or otherwise

IS
765

interfere in the free flow of traffic." P'tiff. Resp., at 1.

This argument is unconvincing. To begin with, the record does

not support the Plaintiffs' belief that Metro-Dade police are

arresting flower vendors under Fla. Stat. S337.406 without regard

to the limitations of the statute. The Defendant acknowledges for

purposes of its motion that "some arrests occurred although the

accused was able to return to the median island or the shoulder

before the light turned green and traffic began to move." Def.

Mot., at 2. There is no evidence, however, that these arrests were

made without a sufficient basis for the arresting officer to

believe that the accused was "interfer[ing] with the safe and

efficient movement of people and property." During the May 2nd

evidentiary hearing. Officers McGillivray and Romero stated

unequivocally that they would not cite an individual for a

violation of the statute unless they felt that the individual was

obstructing the flow of traffic or pedestrians. Sss Order of Hay

6, 1996, at 6-8. Plaintiffs have come forward with no record

evidence to suggest that Metro Dade officers regularly are abusing

the statute, or have a policy of making arrests under section

337.406 without probable cause to believe that an infraction has

occurred.

The Plaintiffs call our attention to what appears to be a Dade

County arrest form dated January 2, 1996. SSS P'tiff. Resp., at

exh. 6. The arrest form, executed by an Officer Ankney, charges

Plaintiff Seralnick with violations of two Florida statutes:

section 337.406, and a separate provision for "doing business

16
766

without a license." The narrative portion of the report explains

that Seralnick was observed "walking along the roadway for the

purpose of selling merchandise."' Plaintiffs seem to suggest that

this police report, standing alone, is sufficient to create a

triable issue of fact on the question of whether the County has a

policy of enforcing Fla. Stat. $337,406 without regard to whether

a violation of the statute has taken place. We disagree. Absent

meaningful details about the circumstances leading to the arrest,

it is Impossible for us to ascertain whether the arresting officer

had cause to believe Seralnick was "Interfering with the safe and

efficient movement of people and property" at the time of his

arrest. Moreover, even affording this police report the weight

that Plaintiffs suggest, the record falls short of establishing a

policy or pattern of making arrests pursuant to Fla. Stat. $337,406

without regard to the statute's limitations.

The heart of the Plaintiffs' argument is their opposition to

the County's assumption that there can be an Interference "with the

safe and efficient movement of people and property" even in

situations where vendors are able to leap onto the median or

sidewalk before the light turns green. Plaintiffs once again

'Although Plaintiffs refer in passing to deposition

testimony concerning this arrest, no testimony is cited in the

briefs, and the deposition transcript is not in the record.

Thus, Plaintiffs' statement that "[i]n his deposition testimony

officer Ankney stated that he was unaware that this statute had

been declared unconstitutional . . .."is not competent evidence.

P'tiff. Resp., at 3. We note, however, that the version of

section 337.406 on the books in January, 1996 had not been

declared unconstitutional by any Court.

17
767

Insivt that they sell their goods in a Banner that does not create

a hazard to vehicles or pedestrians. They also stress that MetroDade Police cannot recount a single instance where an accident

resulted from their conduct. But as this Court suggested in its

May 6th Order, no reasonable trier of fact could find that the

Plaintiffs' customary practice of weaving between lanes of traffic

while cars are stopped at red lights — and attempting to step off

to the sidewalk or nedian once the light turns green — could never

"interfere with the safe and efficient movement of people and

property." Sfis Order, at 25-26. Even in situations where the

Plaintiffs managed to step off to the median or sidewalk before the

light turned green, an officer could conclude that, under the

circumstances, the Plaintiffs' presence in the roadway had

threatened to undermine the safe and efficient movement of people

and property. SBSi Def. Hot., at 4 (noting that individuals who

engage in on-the-roadway solicitation "distract drivers from . . .

watching the intersection and being alert to move when the light

changes, and thereby create probable cause to believe that traffic

is thereby impeded"). As the Eighth Circuit observed in Acorn v.

City of Phoenix, 798 F.2d 1260 (9th Cir. 1986):

Unlike oral advocacy of ideas, or even the

distribution of literature, successful

solicitation requires the individual to

respond by searching for currency and passing

it along to the solicitor. Even after the

solicitor has departed, the driver must secure

any change returned, replace a wallet or close

a purse, and then return proper attention to

the full responsibilities of a motor vehicle

driver. The direct personal solicitation from

drivers distracts them from their primary duty

18
768

to watch the traffic and potential hazards in

the road, observe all traffic control signals

or warnings, and prepare to move through the

intersection.

789 F.2(l at 1269; Sfifi fllsfl City of Baton Rouge 876 F.2d at 498

(quoting this language). In City of Phoenix, as in City of Baton

Rouge. the Court of Appeals applied these principles to uphold

against First Amendment challenge municipal ordinances that

effectively banned all roadway solicitations, whether or not they

"interfered with the safe and efficient movement of people and

property." These cases reflect the courts' ambivalence with the

notion that no obstruction of pedestrian or vehicular traffic

exists so long as the individual making the solicitation is able to

step off the roadway when the light turns red. This Court shares

that ambivalence, and is unpersuaded by Plaintiffs' suggestion that

Fla. Stat. S337.406 cannot constitutionally be applied in

situations where they are not found in the roadway at the precise

moment vehicular traffic resumes.

To reiterate, the question for purposes of determining whether

a statute is unconstitutional as applied is not whether it has been

applied properly in any particular instance; rather, we must ask if

the statute could ever be applied constitutionally to the

Plaintiffs' customary practice. Sfifi, S.^S^, County of St. Louis.

930 F.2d at 596. The answer to this question is clear. Even

assuming that the Plaintiffs invariably are able to leap onto the

median or sidewalk before the light turns green (a factual

predicate not supported by the record), no reasonable trier of fact

A
769

could disagree that their presence in the roadway at certain points

while the light is red may create a risk of undermining the safe

and efficient novenent of people and property on the road, within

Uie Beanlng of Fla. Stat. $337,406. No genuine issue remains,

therefore, as to whether the statute is unconstitutional as applied

to the Plaintiffs" customary method of selling flowers. Metro-Dade

police are entitled to enforce the statute on a case-by-case basis;

and to the extent that one of the Plaintiffs believes that, in a

particular instance, he has been arrested without probable cause,

section 1983 provides an altogether satisfactory vehicle for relief

froB that incident.

Vance and Seralnick next reprise their argument that Fla.

Stat. S337.40e is being selectively enforced against them. As

support for this contention. Plaintiffs once again highlight the

County's practice of enforcing Fla. Stat. 5337.406 against flower

sellers, but not against vendors of the Miami Herald. As noted in

the May 6th Order, however, this fact does not establish selective

enforcement:

In order to establish a claim for selective

enforcement, a plaintiff must show (1) he has

been singled out for prosecution among others

similarly situated who commit the same offense

and (2) the singling out was invidious or done

in bad faith. S££ Geaneas v. Willets. 911

F.2d 579, 587 (11th Cir. 1990), cert, denied

•-" sub, nom, 499 U.S. 955 (1991); Fillingim v.

Bflane, 835 F.2d 1389, 1399 (11th Cir. 1988);

United States v. Lichenstein, 610 F.2d 1272,

1281 (5th Cir. 1980) (listing racial and

religious discrimination as examples of

impermissible considerations). The burden of

proof in making a prima facie showing of

selective prosecution has been characterized

20
770

as "heavy." Fillingim. 835 F.2d at 1399

(citing United StateB v. .Tohnson. 577 F.2d

1304, 1308 (5th Cir. 1978)). These cases

reflect the principle that even the conscious

exercise of some selectivity in enforcement of

a statute is not in and of itself a

constitutional violation. OyJer v. Boles. 368

U.S. 488, 450 (1962); Owen v. Wainwright. 806

F.2d 1519 (11th Cir. 1986), cert, denied sub.

naSU^ 481 U.S. 1071 (1987).

The Plaintiffs allege that the section 337.406

has been applied selectively by Dade County.

Sfifi Conpl. at 117 (asserting that "while

plaintiffs and others selling flowers to

motorists have been arrested and threatened

with arrest by officers of the Dade County

Police Department other vendors, and

specifically vendors of the Miami Herald, a

local newspaper, have not been so harassed or

threatened with arrest, and have been

specifically permitted to sell newspapers at

the same locations where plaintiffs have been

deprived of the right to sell their

products"). All three of the Plaintiffs

testified that they were not aware of anyone

other than a flower vendor being arrested for

a violation of Fla. Stat. §337.406.

McGillivray and Romero, however, stated

unequivocally that Metro-Dade officers have

arrested or warned others for apparent

violations of the statute. Moreover,

McGillivray and Romero made plain that they

would not majce an arrest under the statute

unless they genuinely believed that the

individual, whatever his activity, was causing

a delay or creating a safety hazard. Although

the evidence establishes that officers do not

arrest newspaper vendors, McGillivray

explained that this policy is based not a

desire to limit all speech other than that

contained in newspapers, but rather a good

faith belief that such arrests or citations

would be incompatible with the First

Amendment.

These facts make clear that the

Plaintiffs have not been singled out for

enforcement and that flower vendors are not

targeted on the basis of the content of their

speech. We stress that the pertinent question

21
771

is whether the Plaintiffs — and flower sellers

in general — were the subject of selective

enforcement, and whether the decision to

target these vendors (as opposed to others

violating the statute) was done in bad faith

or for an invidious motive. Thus, the mere

fact that Metro Dade Police officers did not

arrest or warn Miami Herald vendors does not,

in and of itself, establish that the officers

selected the flower vendors for impermissible

reasons or on the basis of their message. At

all events, the record evidence plainly does

not support the Plaintiffs' contention that

Fla. Stat. $337,406 was enforced solely

against flower vendors. The Plaintiffs' Equal

Protection claim is, therefore, without

foundation.

Order, at 26-28 (emphasis added) (citations to factual findings

oaitted).* Plaintiffs have introduced no persuasive new evidence

or case law to support their selective enforcement claim, which

continues to rest on the mistaken assumption that the County's

reluctance to enforce Fla. Stat. $337,406 against newspaper vendors

establishes the selectivity of its enforcement of the statute

against all other offenders.

testimony at the May 2nd hearing established that the

County's concern about enforcing section 337.406 against

newspaper vendors stems from the Judge Hastings' decision in CoxIn £QX, the court held that the former version of section 337.406

was unconstitutional, in the context of a case brought by the

publisher of various newspapers who argued that the statute

abridged First Amendment free press rights. Shortly after SaX,

in a memorandum dated June 8, 1989, the Police Legal Bureau

advised officers that enforcement of the statute was to be

immediately discontinued. SB& P'tiff. Resp., at exh. 1.

Subsequent to the date of this memorandum, the language of

section 337.406 was revised and narrowed in an effort to avoid

any perceived constitutional infirmities. Sfifi Order of May 6,

1996, at 18 n.6. The issue of whether section 337.406, in its

present form, may be constitutionally enforced against newspaper

vendors is not before this Court, and Plaintiffs' argument that

newspaper vendors create every bit as much of a safety risk as

other roadside vendors is of no moment here.

22
Til

Plaintiffs do cite a February 12, 1996 DeDorandun fron Robert

Diers, a Lieutenant with the Special Operations Unit, to certain

police personnel. The Bemorandum states the following:

We have received numerous complaints reference

illegal flower vendors in the area of Ives

Dairy Road and Biscayne Boulevard, and Hiami

Gardens Drive and Biscayne Boulevard.

As well as being illegal, these vendors take

customers away from legitimate business owners

who pay rent and taxes in order to operate

their businesses. They also present a traffic

hazard to motorists who have to stop because

another motorist is obstructing traffic to

make a purchase from the vendor. It should

also be noted that many of these vendors have

outstanding bench warrants for failing to

appear in court for previous vending arrests.

Please assign a unit from your squad to

investigate these vendors and take the

appropriate enforcement action. Attached is a

copy of Legal Bulletin 95-4, which lists the

County Ordinances and Florida State statutes

that are applicable to these situations.

P'tiff. Resp., at exh. 5.

Plaintiffs highlight this Demorandun as evidence that the

County is arresting flower vendors not because they threaten

motorist and pedestrian safety, but rather because they are drawing

business fron local merchants. The record plainly does not support

this accusation, nor the concomitant assumption that arrests are

being made even if the Plaintiffs are not obstructing pedestrian or

vehicular traffic. Moreover, a claim of selective enforcement

requires proof that "the selection was deliberately based upon an

unjustifiable standard such as race, religion or other arbitrary

classification." Qyler, 368 U.S. at 456; c£. United States v.

23
773

Armstrong, — U.S. —, 116 S. Ct. 1480, 1486-87 (1996) (holding that,

to establish a claim of selective prosecution based on race, the

defendant must meet a "demanding standard" and produce "clear

evidence" that similarly situated individuals of a different race

were not prosecuted). The Diers memorandum does not constitute

significant proof of the kind of invidious,motive that gives rise

to a constitutional violation, and Plaintiffs cite no case law to

the contrary. Indeed, Plaintiffs concede that "(i)n this case,

flower vendors are [not] a 'suspect class.'" P'tiff. Resp., at 10.

For all of the foregoing reasons, no reasonable trier of fact

could conclude that Fla. Stat. $337,406 is being applied in an

unconstitutionally restrictive or selective manner. The Plaintiffs

ask us to rule that they "are entitled as a matter of law to sell

flowers to motorists stopped in the street, so long as they do not

obstruct traffic." P'tiff. Resp., at 6. But what Plaintiffs seek

is nothing more or less than what the statute permits now. The

essence of Plaintiffs' objection is their belief that their

customary sales practice does not obstruct traffic, and can never

give rise to the safety and efficiency concerns that led to the

statute's enactment. But absent some persuasive indication that

their method of selling flowers can never create a safety hazard or

interfere with the smooth passage of vehicles or pedestrians, or

that Metro-Dade officers have a policy of regularly arresting

individuals even if they have no probable cause to believe that an

offense has occurred, it is not for us to enjoin the County from

enforcing an otherwise constitutional law. The Plaintiffs remain

24
774

free to sell flowers on stata roads; they siaply say not do so in

a manner that violates a state statute.

Accordingly, it is hereby

ORDERED AND ADJXnxSED that the Defendant's BOtion for siumary

judgment is GRANTED, and the Plaintiffs' cross-notion is DENIED.

All other pending notions are DENIED AS MOOT. The Defendant shall

submit a proposed Order of Final Judgnent within ten (10) days of

the date of this Order.

STANLEY HARCVS

UNITED STATES DISTRICT JUDGE

copies to:

counsel of record

as
775

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Rodney W. Slpp«l

2. Address: List current place of residence and office

address(es).

Bom*: Kirkwood, Missouri

Offica: Husch t Eppanbargar

100 North Broadway, Suite 1300

St. Louia, Missouri 63102

3. Date and place of birth.

July 26, 1956; Jafferson City, Missouri

4. Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married;

Mary (Manning) Sippel

Nurse

Cardinal Glennon Children's Hospital

1465 South Grand Boulevard

St. Louis, Missouri 63104

5. Education: List each college and law school you have

attended, including dates of attendance, degrees

received, and dates degrees were granted.

Kashington University School of lAV

St. Louis, Missouri

Dates Attended: August, 1978 through December, 1981

Degree: J.D., December, 1981

University of Tulsa

Tulsa, Oklahoma

Dates Attended: August, 1974 through June, 1976

Degree: B.S., with Honors, June, 1978

6. Employment Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and

STL-5Mi*2.10
776

organizations, nonprofit or otherwise, including firms,

with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from

college.

1978 Enployaa, National Musaum of Transport

to 3015 Barrett Station Road

Juna, 1979 St. Louis, Missouri 63122

Juna, 1979 Staff Assistant

to Offlea of U. S. Sanator

May, 19B0 Thomas F. Eaglaton

1520 Markat

St. Louis, Missouri 63102

May, 1980

to

Novanibar, 1980

Fiald Diractor

Eaglaton Campaign Conmittaa

7701 Clayton Road

St. Louis, Missouri 63105

Hovambar, 1980

to

March, 1982

Staff Assistant

Offica of U.S. Sanator

Thdnas F. Eaglaton

1520 Markat

St. Louis, Missouri 63102

March, 1982

to

Dacanbar, 1988

Assoclata

Husch & Eppanbargar

100 North Broadway, Sulta 1300

St. Louis, Missouri 63102

January, 1989 Partnar

to Husch I Eppanbargar

April 1993 100 North Broadway, Suita 1300

St. Louis, Missouri 63102

May, 1993 Administratlva Assistant

to Congrassional Offica of U.S. Congraasman

Octobar, 1995 Richard A. Gaphardt

11140 South Towna Squara <201

St. Louis, Missouri 63104

Octobar, 1995 Partnar

to Vioa-Chairman Litigation Dapartmant

Prasant Husch t Eppanbargar

100 North Broadway, Suita 1300

St. Louis, Missouri 63102

STL-53e5H.10
777

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.

Mo.

e. Honors and Awards; List any scholarships, fellowships,

honorary degrees, and honorary society memberships that

you believe would be of interest to the Committee.

Eagla Scout

Univralty of Tul»»

Phi Eta Sigma (Freshman Honorary Sociaty)

Omlcron Dalta Kappa (Leadership Honorary Society)

Mortar Board (Scholarship/Leadership Honorary

Society)

K.V. Holloway Prize in Political Science

Outstanding Senior Award, 1978

Rhodes Scholar Nominee

Washington University School of Ijw

Order of the Barristers

Moot Court National Competition Team

International Law Moot Court National Competition Team:

• National Semi-Finalist

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 Association of Metropolitan St. Louis

Missouri Bar Association

American Bar Association

ID. Other Memberships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

Lobbying: None

- 3

STL-53eSI2.ia
778

other:

St. Louis Zoo Frianda: sinca approx. 1992

St. Louis Art Musaum: sinca approx. 1992

University of Tulsa Alumni Association: sine* 1978

• served as St. Louis Coordinator

• served on National Board of Directors

KETC/Channel 9 (Public Television Station):

currently a matnber and have been a meinber

in other years.

11. Court Admission: List all courts in which you have been

admitted to practice, with dates of admission and lapses

if any such memberships lapsed. Please explain the

reason for any lapse of membership. Give the same

information for administrative bodies which require

special admission to practice.

Missouri Supreme Court, 19B2

United States District Court

for the Eastern District of Missouri, 1982

United States District Court

for the Southern District of Illinois, 1987

United States Court of Appeals

for the Eighth Circuit, 1984

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material

you have written or edited. Please supply one copy of all

published material not readily available to the Committee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there

were press reports about the speech, and they are readily

available to you, please supply them.

As part of a CL£ publication "For the Defense: Limiting

Damages in Missouri', I wrote a chapter "Discovery

Techniques for the Defense."

I have also written an outline on Noncompetition Agrewnenta

under Missouri Law, which has been distributed at CLE's as

a hand-out.

- 4 -

STL-S385>2.10
779

13. . Health! What is the present state of your health? List

the date of your last physical examination.

Excellent. May, 1996.

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected

or appointed, and a description of the jurisdiction of

each such court.

Don*

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.

M/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

n. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school

including:

I." whether you served as clerJc to a judge,

and if so, the name of the judge, the

court, and the dates of the period you

were a clerJc:

I did not sarva as a dark.

- 5

»Tl.-i36i92.10
780

whether you practiced alone, and if so,

the addresses and dates;

I hava navar practiced alona.

the dates, names and addresses of law *

firms or offices, companies or

governmental agencies with which you have

been connected, and the nature of your

connection with each.

March, 1962 to Oacambar, 1988

Aasociata

Husch t Eppanbargar

100 North Broadway, Suita 1300

St. Louis, Mlsaourl 63102

January, 19B9 to April, 1993

Partnar

Husch t Eppanbargar

100 North Broadway, Suita 1300

St. Louis, Missouri 63102

• 1988-1991 - Chairman

Hiring Comtiittaa

• 1989-1993 - Coordinator

Voluntaar Lawyar Program

May, 1993 to Oetobar, 1995

Adminlstrativa Assistant

Congrassional Offlca of

U.S. Congressman Richard A. Gephardt

11140 South Towna Square #201

St. Louis, Missouri 63104

October, 1995 to Present

Partner

Husch t Eppenberger

100 North Broadway, Suite 1300

St. Louis, Missouri 63102

• Vice Chairman - Litigation

Department

• Compensation Coomittea

Nhat has been the general character of

your law practice, dividing it Into

- 6 -

S7l-59liU.10
781

periods with dates if its character has

changed over the years.

I hava handled hundreds of litigation

natters ranging from personal injury

claims to RICO and antitrust cases.

My practioa has evolved from defense of

personal injury cases to coinplex

ccninercial litigation during the past 15

years.

Upon graduation from law school, I joined

the St. Louis law fim of Buseh £

Eppenberger. My Initial focus was

defense of personal injury cases. The

primary client in these natters was the

Bi-State Development Agency (the local

public transportation authority). From

1985 through 1988, I was the supervising

attorney for Bi-State cases assigned to

Rusch t Eppenberger. At any given time,

I handled a docket of at least 30 to 40

personal injury cases pending in the

Circuit Court of the City of St. Louis.

The nature of the personal injury cases

ranged from 'soft tissue* injuries to

wrongful death cases. The volume of

personal injury cases I was handling

dictated that I was on the trial docket

on almost a weekly basis.

Evan while I was managing a substantial

personal injury caseload, I always

handled a few conniercial cases for

lending institutions. As the number and

complexity of the ooamercial cases grew,

my practice shifted over time toward a

eoonercial litigation practice. This

transition also shifted the focus of siy

practice from the state courts to the

federal courts. For example, my personal

injury docket of 30 to 40 cases was

typically pending in the Circuit Court

for the City of St. Louis. Today, I do

not have a single case pending in the

City Circuit Court. Rather, the

comnerclal cases I am currently handling

- 7 -

STL-53e>92.10
782

ara almost axclusivaly pandlng In tha

Unltad Statas District Court for tha

Eastam District of Missouri or othar

fadaral courts.

2. Describe your typical former clients, and

mention the areas, if any, in which you

have specialized.

My currant conmarcial litigation praetiea

includas casas involving fadaral

antitrust law, tiia Uniform Conmarcial

Coda, landar liability, non-eooq^ta

sgraamants and Lanhan Act claims

(primarily disputes ovar countarfait

•narchandisa) . During tha past yaar, ny

cliants hava primarily baan tha Ganaral

Elactric Capital Corporation and Lloyd's

of London in conmarcial mattars, and tha

St. Louis Convantion and Visitors

Comnission in its antitrust casa against

tha National Football Laagua.

1. Did you appear in court frequently,

occasionally, or not at all? It the

frequency of your appearances in court

varied, describe each such variance, giving

dates.

During tha first savan yaars of my

practlca, I was in court on a waakly basis.

As my practice avolvsd from personal injury

dafensa (primarily state court casas) to

complex commercial dafansa (primarily

fadaral court casas) my court appaarancas

bacama lass frequent.

2. trhat percentage of these appearances was in:

(a) federal courts: 60%

(b) state courts of record; 35%

(c) other courts. 5%

3. What percentage of your litigation was:

(a) civil; 99%

(b) criminal. 1%

STL-51«5»:.10
4. State the number of cases in courts of

record you tried to verdict or judgment

(rather than settled), indicating whether

you were sole counsel, chief counsel, or

associate counsel.

I hava handled at l*ast 15 caaas to

verdict or judgmant. Six of these cases

were jury trials. I waa sola counsel in

four jury trials and six bench trials.

The remaining cases were tried as an

associate or co-counsel.

5. What percentage of these trials was:

(a) jury; 40%

(b) non-jury. 60%

18. Litigation: Describe the ten most significant litigated

matters which you personally handled. Give the

citations, if the cases were reported, and the docket

number and date if unreported. Give a capsule summary of

the substance of each case. Identify the party or

parties whom you represented; describe in detail the

nature of your participation in the litigation and the

final disposition of the case. Also state as to each

case:

a. the date of representation;

b. the name of the court and the name of the judge

or judges before whom the case was litigated; and

G. the individual name, addresses and telephone

numbers of co-counsel and of principal counsel

for each of the other parties.

Hardin v. Lloyd's of London, 4:96CV022S2GFG,

United States District Court for the Eastern

District of Missouri. The Honorable Judge George

F. Gunn, Jr.

I was co-counsel for the defendant Lloyd's of

London.

SUMMARY: Plaintiffs "Names' sought to enjoin

payment of letters of credit issued to Lloyd's of

- 9 -

«n.-ssis*2.i«
784

London as ••curity for insuranc* undarwrltlng

rlska mada by tha plaintiff oNamaa" at Lloyd's of

London,

Tha casa prasantad Issuas ralatlng to: 1) tha

llmitad clrcumstancas undar which a lattar of

eradit nay ba anjoinad; ii) anforcanant of vanua

salactlon provisions; and ill) collataral

astoppal.

Tha original patition was fllad in stata court. I

ramovad tha action to tha Unitad Statas District

Court for tha Eastam District of Missouri.

Briafs wara filad and oral argumants haard on tha

raquest for a Tanporary Rastraining Ordar on

Kovanbar 15, 1996.

RESULT: Plaintiffs' raquast for a TRO was daniad

and Lloyd's was parmittad to collact tha noney dua

pursuant to tha tarms of tha lattars of eradit.

OTHER COUNSEL:

Mr. Staphan H. Rovak

Sonnenschein, Nath £ Rosenthal

Ona Metropolitan Squara

Suita 3000

St. Louis, Missouri 63102

Talephona: (314) 241-1800

Counsal for Plaintlffa

CO-COUNSEL:

Mr. Max Bartlatt

Husch t Eppanbargar

235 East High Straat

Jaffarson City, Missouri (65101

Talaphona: (573) 635-9118

Co-Counsal for Lloyd's

E. Bruca Nangla, at al. v. Mark Twain Bank. Adv.

No. B7-0029-BKC-JJB, Unitad States Bankruptcy

Court for tha Eastern District of Missouri. This

casa is still active although it has bean pending

since 1987.

I serve as sole counsel for the defendant Mark

Twain Bank.

- 10 -

STI.-S3tS92.10
786

SUMMARY: Plaintiffs claim that Mark Twain Bank

violated tha Unlfozm Fiduclarias Law in making

cartaln loans to a Missouri limltad partnarshlp,

Crossroads USA Limited II, causing Injury to tha

plaintiffs who war* limited partners in the

partnership.

The substantive issue in this case was whether and

under what circumstances the Bank owed a fiduciary

duty under the Uniform Fiduciaries Law to limited

partners in making a loan to a limited

partnership. Additionally, this was a case of

first impression regarding the applicable statute

of limitations for claims arising under the

Uniform Fiduciary l«w.

RESULT: Sunmary Judgment was entered for Mark

Twain Bank. See, In re Lauer, 97 Bkty. I^tr. 544

(Bkty. E.D.Mo. 19B9). The judgment was upheld by

the District Court. The United States Court of

Appeals for the Eighth Circuit recently remanded

the case for further proceedings.

OTHER COUNSEL:

Mr. Steve Hamburg

Summers, Compton, Wells t Hamburg, P.C.

8909 Ladue Road

St. Louis, Missouri 63124

Telephone: (314) 991-4999

Counsel for Defendant Lauer;

Mr. Michael D. Stokes

1215 Pine Street

St. Louis, Missouri 63103

Telephone: (314) 621-3743

Counsel for Plaintiffs

Calvin Klein Jeanswear Company v. Venture Stores,

Inc., Cause No. 4:96CV01263, United States

District Court. The Honorable Judge C. Richard

Robber.

I was co-counsel for plaintiff, Calvin Klein

Jeanswear Company.

11

CTL-UtSi2.10
786

SXX4ARY: Calvin Klain filed a Con(>l«lnt for

tradamark infringamant aaaking injunctiva raliaf

arising out of tha allagad sala of countarfait or

'aaconds/irragular* taa shirts by Vantura Storas

as first quality Calvin Xlain marchandisa.

Tha primary issua in this case was whathar Vantura

Storas Mas sailing countarfait or "sacond*

marchandisa as first quality Calvin Klain

marchandisa. TRO haaring was coninanced in May,

1996. Sattlaonant discussions pradudad tha

subfnission of tha claim to tha court for judgnant.

RESULT: A consant agraamant was nagotiatad and it*

iirplsmentation is tha subjact of ongoing

discussions.

COUNSEL:

Mr. Loal Saital

Law Officas Marc F. Dasidario

45 Birch Straat

Englawood Cliffs, Naw Jarsay 07632

Talaphona: (201) 566-3003

Co-Counsal for Plaintiff

Mr. Alan Namas

Kalish ( Gilster

500 North Broadway, Suita 1200

St. Louis, Missouri 63102

Talaphona: (314) 436-1331

Counsal for Vantura

4. Thara-Kinaties, Inc. v. Dan Meeklanbarg., Causa

No. 4:95CV22e3JCH, Unitad Statas District Court

for tha Eastarn District of Missouri. Tha

Honorabla Jaan C. Hamilton.

I was sola counsal for dafandant formar anployaa

Dan Macklanbarg.

SUMMARY: Con^laint fllad by fomar amployar sought

raliaf for braaeh of contract, trada aacrats and a

non-compata agraamant.

Tha primary issuas in this casa focusad on

traditional non-compata issuas ralating to tha

axistanca of an anployar's "protactabla intarast*

- 12 -

STL-S3e>92.10
wr

in th« goodwill of ita cuatooars balancad agalnat

an anployaa'a right to »»»k naw amploymant. Tha

caaa alao involvad ohoioa of law iaauaa and

traditional unfair ocnf>atition iaauaa.

RESin.T: Caaa waa aatUad in May of 1996.

OTHER COUNSEL:

Mr. Harry V. Wallford, Jr.

Thonpaon Cobum

1 Marcantila Centar

St. Loula, Mlaaouri 63101

Talaphona: (314) 552-6000

Counael for Plaintiff.

5. Stewart, at al. v. Fry, at al.. Cause No. 84-4325,

United States District Court for the Southern

District of Illinois. The Honorable Judge Jamas

L. Foreman.

I waa aole counsel for former Bank Officers and

Directors, including former Bank President Thomas

E. Fry, Jr.

SUMMARY: Plaintiff purchaaed "control" of the Ina

State Bank through a stock purchase. The Bank

failed shortly after the purchase. Plaintiff sued

the sellers and tha Bank's former Board of

Directors for securities fraud and conmon law

fraud. Discovery in this case and the coiipanion

cases proceeded almost full time for approximately

one year.

The primary issue was the nature and extent of the

duty to diadoae and whether the former Board of

Directors failed to fully disclose the financial

condition of the Bank during plaintiff a due

diligence examination of the Bank. Diseovary and

depositions of Bank officera, auditors,

accountanta and FDIC peraonnel continued virtually

full-time for more than one year spanning a period

of time from 1984 through 1985.

RESULT: Case resulted in a favorable settlement

for defendants when the companion case against the

policy carrier was settled.

- 13 -

STL-S38»2.10
OTHER ' "—Mfi*

Mr. John A. Klobasa

Kohn, SbanOa, tXbmrt., Glaaoulakia K dljaa

1 Mareanti.1* C«ntT

St. toatm, Misaaazi 63101 •

Talaphona: (314) 241-3963

CooDS^ for Plaintiff

Mr. Tarrane* J. 6ead

Lashly & B>«r

714 locDSt

St. Lools, Mlsaoori 63101

Talaphona: (314) 621-2939

Counaal for Co-Dafandant Accoonting FXZK

Ka. Snaan Bannatt Graan, Law Clark

Tha Bonorabla John R. Cibaon

B37 O.S. Court Booaa

eil Grand

Kanaaa City, Kiaaoori 64102

Talaphona: (816) 426-3169

Counsel for Co-Dafandant Bank Diraetors

Mr. Kant KnickoMyar

Thoopson Cobum

1 Marcantila Cantar

St. Louis, Missouri 63101

Talaphona: (314) 552-6000

Counaal for Co-Dafandant Bank Diraetor.

COMPANION CASES: FDIC V. Withars, at al., Cauaa

No. 65-4070, Unitad Statas District Court fox tha

Southam District of Illinois; F t D Company of

Maryland v. Fry, at al., Cauaa No. B9-3070, Unitad

Statas District Court for tha Southam District of

Illinois.

C.I.T. V. Duncan Grading t Construction, Inc., Causa

No. 62-0305(2), Unitad Statas District Court for tha

Eastam District of Missouri. Tha Honorabla Chiaf

Maglstrata Judga David D. Nooa.

I was co-counsal for C.I.T. at trial and briafad and

arguad tha api>aal in tha Unitad Statas Court of Appaali

for tha Eighth Circuit.

14

tn-iMin.io
«T1.-S3«»»2.10

789

StMIARy: C.I.T., a conmarcial lander, sought paymant

dua on a promiaaory nota and aaeurlty agraamant

Including attomays' faas and costs of rapossassing the

pladgad aquipniant. Despite defendants' refusal to pay

the amounts dua under the promissory note and hiding

the collateral, defendant claimed that the conduct of

the repossession and the sala of repossessed equipment

was not "comnarcially reasonable* under the Uniform

Conmercial Coda.

The fundamental iasue in this case was whether CIT's

sale of the collateral was coramarcially reasonable

under Article 9, Section 504, of the Uniform Comnarclal

Code.

Thia case was tried to verdict in a one day trial in

December, 19B2.

RESULT: Trial court determined that C.I.T. complied

with the requirements of Article 9 of the Uniform

Comnarcial Code and entered judgment for the balance

due to C.I.T. The United States Court of Appeals for

the Eighth Circuit upheld the trial verdict. See

C.I.T. Corporation v. Duncan Grading t Construction,

Inc., 739 F.2d 359 (B" Cir. 1984).

OTHER COUNSEL:

Mr. David Lander

Thon^aon Coburn

1 Mercantile Center

St. Louis, Missouri 63101

Telephone: (314) 552-6000

Trial Co-Counaal;

Mr. Sidney Rubin

230 South Baraiston

St. Louis, Missouri 63105

Telephone: (314) 862-6000

Counaal for the Defendant.

Horseshoe Entertainment, a Louisiana Limited

Partnership, and Robinson Property Group Limited

Partnership, Causa No. 4:9ecv0069S, United Statea

District Court for the Eastern District of

Missouri. The Honorable Charles A. Shaw.

15 -

45-964 98-26
790

I was l*ad oounsal for 0«n«r«l Elvctrlc Capital

Corporation.

SUMMARY: Horaashoa Entartalnmant aought to

racovar a prapaymant pramium pravlously paid to GE

Capital. Horaashoa claimad that a loan officar at

GE Capital had orally agraad to waiva any

prapaymant pramium undar oartain condltiona. CE

Capital daniad any auch agraamant and rallad on

Mlaaourl'a nawly anactad statuta of frauds

govarnlng eradlt agraamants (S432.045 R.S.Mo.

(1994)) wharaby cradit agraamants nay not ba

amandad axcapt in writing upon conplianca with tha

•tatuta.

This was a casa of first Imprassion undar

Missouri's statuta of frauds govaming cradit

agraamants.

Tha Court dataminad that tha statuta of frauds

govarning cradit agraamants precludad any action,

including promissory astoppal and fraud, arising

out of an oral amandmant to a cradit agraamant.

RESULT: Summary judgmant for SE Capital was

grantad on Fabruary 21, 1997.

OTHER COUNSEL:

Mitchall A. Margo, Esq.

Graan, Schaaf t Margo, P.C.

7733 Forsyth Boulavard

Sulta 800

St. Louis, Missouri 63105

Talaphona: (314) 662-6600

Facsimila: (314) 662-1606

Counsal for Plaintiff Horaashoa Entartalnmant

Pohlmann v. Bll-Jax, Inc., Causa No. 932-6665, Circuit

Court for tha City of St. Loula, Missouri. Trial

Judga: Tha Honorabla Circuit Judga Jamas Edwarda.

I was co-counsal at trial for dafandant Bll-Jax. I

handlad axpart and damagas tastlmony at tha trial. Tha

jury trial lastad ona waak during April of 1996.

- 16 -

•TL-SStStZ.lO
791

StBMMnr: Plaintiff Pohlnann suff*r*d • crushed left

lag and ankla in a fall frooi a scaffold allagadly

nanufacturad by dafandant. Tha plaintiff allagad that

tha scaffold vas unraasonably dangarous as dasigned.

Tha axtant of plaintiff's injurias and resulting

damagas wara disputed.

The primary nedical issues presented by this case

relatad to the causation of plaintiff a alleged

pemanent injuries and future aiedical exj^nses.

RESULT: Jury verdict for plaintiff Pohlmann. The

trial court ordered a ramittitur of damages or re-trial

en tha issue of damages only. The case is presently on

appeal to the Missouri Court of Appeals.

OTHER COUNSEL:

Matthew D. Menghini

Husch t Eppenberger

100 North Broadway, Suite 1300

St. Louis, Missouri 63102

Telephone: (314) 421-4800

Co-Counsel for Defendant

Mr. John J. Allan

8000 Maryland Avenue, Suite 1000

Clayton, Missouri 63105

Telephone: (314) 725-4545

Counsel for Plaintiff

Wilson, at al. v. Purdy, at al.. Causa No. 914-

00135, Circuit Court for the City of St. Louis,

Miasourl. The Honorable Judge Edward M. Peek.

X was sole counsel for newly elected members of

the City of St. Louis School Board.

8UM4ART: This case was a challenge to tha

election results in City of St. Louis School Board

election in April, 1991. Despite losing the City

wide election by more than 8,000 votes, the

unsuccessful candidates claimed that sufficient

irregularities existed in election results to

ifarrant new election.

- 17 -

nx-S3tst2.io
792

RESULT: Aa provldad for under Missouri's •lactlon

law statutas, dafandants damandad and racalvad an

inmadiata trial. Aftar a ona day haaring,

judgmant was antarad for dafandants and tha

alaction results ware upheld.

OTHER COUHSEL:

Mr. Edward R. Joyce

HOB Olive Street

St. Louis, Missouri 63101

Telephone: (314) 241-2317

Counsel for Plaintiffs;

Mr. Lao V. Garvin

Anderson £ Gilbert

7800 Forsyth Boulevard, 6*" Floor

P. O. Box 50210

St. Louis, Missouri 63105

Telephone:(314) 721-2777

Counsel for City Election Board.

10. Trigg, et al. v. Leader Motors, Inc., at al.,

Cause No. 892-01066, Circuit Court for the City of

St. Louis, Missouri. Tha Honorable Circuit Judge

Jaclc L. Koahr.

I was sole counsel for tha defendant automobile

dealer. Leader Motors in the trial court during

the class action certification hearings.

SIMMARY: Plaintiff sought to certify a class

action against defendant car dealer. Leader

Motors, Inc., and tha Ford Motor Ccnqpany for

alleged oral misrepresentations by different

salesmen in the sale of used rental cars as

"program" or 'executive driven' cars.

Tha primary issue In the case was tdiather

different oral misrepresentations by different

salesmen to different parties at different times

could be certified as a class action under

Missouri law.

The class certification issues were argued at a

series of hearings held on February 6, 1991 and

March 20, 1991, and on January 27, 1992.

- 18 -

STL-53B592.10
A Writ of Prohibition was filad in th* Missouri

Court of Appeals on January 30, 1992. Th*

Missouri Supraina Court accaptad transfar on

Saptanibar 22, 1992.

RESULT: Trial court eartifiad tha class action.

Tha Missouri Court of Appaals raversad tha trial

court. Tha Missouri Suprania Court ravarsad tha

Court of Appaals and uphald tha original trial

court ruling.

OTHER COUNSEL:

Mr. Jim Virtal

Armstrong Taasdala Schlafly fi Davis

Ona Metropolitan Square

St. liOuis, Missouri 63102

Telephone: (314) 621-5070

Counsel for Ford Motor Conpany;

Mr, Jeff Lowe

Gray £ Ritter

701 Market Street

St. Louis, Missouri 63101

Telephone: (314) 241-5620

Counsel for Plaintiff.

In addition to the lawyers identified in the cases

above, the following lawyers have had recent

contact with ma:

Mr. Mike Reid

Missouri Ethics Coirtnlssion

P. O. Box 1254

Jefferson City, Missouri 65102

Telephone: (573) 721-2020

Toll Free: (BOO) 392-6660

Mr. Rodney D. Brown

Region Counsel

General Electric Capital Corporation

Commercial Equipment Financing

44 Old Ridgebury Road

Danbury, Connecticut 06810

Telephone: (203) 796-1064

- 19

ST1.-53(S92.10
794

Mr. Mika Wolff

Profassor of Law

St. Louis Univarsity Law School

3700 Lindell Boulavard

St. Louis, Missouri 63108

Talaphona: (314) 977-2774

Mr. Richard E. Uafarkanp

Rogars, Howall £ Hafarkamp, L.C.

7733 Forsyth, #1400

Clayton, Missouri 63105

Talaphona: (314) 727-5168

Mr. Prank J. Elpars

Elpars & Innian, P.C.

601 Market Streat

P. 0. Box 404

Sta. Ganaviava, Missouri 63670

Talaphona: (573) 883-5000

Mr. Bradlay A. Rintara

Thompson Coburn

Ona Marcantila Cantar

St. Louis, Missouri 63101

Talaphona: (314) 552-6000

Mr. Richard A. Riazinan

Riezman ( Blitz, P.C.

120 South Central Avanua

Clayton, Missouri 63105

Talaphona: (314) 727-0101

Tha Honorable Edward L. Filippina

319 U.S. Court £ Custom House

1114 Market Street

St. Louis, Missouri 63101

Telephone: (314) 539-3623

The Honorable Catharine D. Perry

U. S. Court £ Custom House

1114 Market Street

St. Louis, Missouri 63101

Telephone: (314) 539-6192

- 20 -

STL-53eS92.10
795

Mr. Richard P. Magumo

S«nlor Vic* Prasldant and Ganaral Counaal

Trana World Alrlinaa, Inc.

On* City Cwitra; 515 Horth 6th Straat

St. Louia, Mlaaouri 10549

Talaphona: (314) 589-3000

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant litigation

which did not progress to trial or legal 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.).

I hav* had tha opportunity to handla a nunb«r of nattars which

I baliava aarvad to anhanca the St. Louia Metropolitan

Comnunity.

I handled tha legal aspacts of ballot proposition campaigns

which sought to enhance tha economic stability of St. Louis'

Forest Park (Proposition P in 1992) and a bond iaau* to ai^and

Lambert St. Louis Airport (Propoaition L in 1991).

I was intimataly involvad in the nagotiatlona between tha City

of St. Louis and Trans World Airlines which allowad THA to

•merge from banlcruptcy protection (tha first time) in 1993.

Tha result of thosa nagotiatlona also gave tha City of St.

Louis more control over the future of the airport.

I am also proud of tha role that I have played in mentoring and

training a large number of assoclataa at Husch C Eppanberger.

In addition to the abova, there la no other "legal activity"

that compares to my experienoa in the adoption of our aon. An

adcq;>tion is obviously an intensely personal experience. But aa

a lawyer, I axperiancad the legal system frora a different point

of view. To lawyers, the courthouse and tha courtroom become

familiar plaeaa. Ilka old frlands. Aa a party to a legal

proceeding, even an adoption, tha courthouse becomes an

intimidating place where your future hangs in the balance.

Even in our adoption proceadings, where the result waa never

really in doubt, the uncertainty was unsettling.

While the experience did not change tha substantive "practice

of law" for me, I know I am a better lawyer as a result of my

experience as a "party" to my son's adoption.

- 21 -

•n.-S3«912.10
TM

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

1. List sources, amounts and dates of all anticipated

receipts from deferred income arrangements, stock,

options, uncompleted contracts and other future benefits

which you expect to derive from previous business

relationships, professional services, firm memberships,

former employers, clients, or customers. Please describe

the arrangements you have made to be compensated in the

future for any financial or business interest.

By reason of my prior and present association with Huach

£ Eppanbargar, I participate In the Husch ( Eppenberger

Profit Sharing Plan and Trust of which all my 401(k)

monies are currently Invested with the American Bar

Association Members Retirement Program. My Interest In

the plan Is fully vested and any future earnings or

payments I would receive are governed by federal law.

By reason of ny prior enployment by the United States

Congress, I am a participant in the United States

Government Thrift Savlnga Plan. My Interest in the plan

is fully vested and any future earnings or payment* are

governed by federal law.

I do not qualify for any retirement benefits fron the

Federal Enployees Retirement System.

2. Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas of concern. Identify the

categories of litigation and financial arrangements that

are likely to present potential conflicts-of-interest

during your initial service in the position to which you

have been nominated.

My affiliation a* a partner at Husch t Eppanbargar and

confidential knowledge of specific pending cases will

present conflict issues at least until those specific

cases are resolved.

I will engage In a case by case analysis of each ease

that might come before me to determine if

disqualification under 28 USC S455 is appropriate. I

will follow the Code of Judicial Conduct in reviewing any

case for potential conflicts of interest.

- 22 -

>T1.-SM>I2.10
797

3. Do you have any plans, commltinents, 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, copies of the financial disclosure

report, required by the Ethics in Government Act of 1978,

may be substituted here.)

S*a attachad Financial Diadosura Report

5. Please complete the attached financial net worth

statement in detail (Add schedules as called for).

Saa attachad Nat Worth Statamant

Have you ever held a position or played a role in a

political campaign? If so, please identify the particulars

of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

In 1980, I was a Fiald Diractor In Thomas F. Eaglaton's

ra-elaction canpaign to tha Unitad States Sanata. I was

rasponsibla for general campaign activity in portions of

tha St. I,ouis area and Southeast Missouri.

In 1992, I was involved in Robert L. Holdan's campaign for

Missouri Stata Treasurer as a general unpaid advisor.

I have not otharwisa been personally involved or anployad

fay or served in an official capacity in any other political

campaigns. I have served as paid legal counsel for aavaral

campaign connittaas, primarily related to athlea issues.

I have served as paid legal counsel for the following

campaign comvittaes relating to ballot propositions:

1. Proposition O (ballot proposition for tha

construction of facilities for the

Olympic Festival in St. Louis) in 1992

23

ST1.-S2CSK.J0
798

Proposition P (ballot proposition to fund

support for Forast Park) in 1992

Proposition L (ballot proi>osition for a bond

issua for axpanslon of Lanbart Airport)

in 1991

Proposition A (rafarandum ralatlng to tha

•xpanslon of St. Louis Art Musaum) in 1992

- 24 -
799

nNANQAL DISCLOSURE REPORT

FOR CALENDAR YEAR *»/»» int !?'.-,'fV •"•*•» "iltt

I. IvtMA Rapanlna rUM MM. fiin, alddl* InlcUlt

bditad St«t«B OictTict CourC

for Che batcm DUtrict oi Miscourl

1. D>c« •! K«p*rt

» /I* / f7

Uaitma $taf» Wstrlct Judg* - tkmi.n»t

JL li-i«tl«.. D.t. i /\V9J

__ Inttlkl AMMMl ___ rtflal

«. ftapnrclnt fMidd .

1 n /t6-U/31/»

«t. Louii no 63102

1. «i CJM b«*la a( th* wifot^atlon ««fiiai»«tf in ihl* tepMrE and

R«*l>«liM etflnr n...

cbcckias ihe NONE boR for ucfa seoion where you hive DO rcporUbU iofonniiion Sigo OD Usi page.

I- POSITIONS- (RcportiDg individual only; KC pp. 9-13 oMosiniclioai.)

EggJTIgy NAME OF ORGAMIZATIQN/ENTITY • NOKC (No reporuble pouuoos]

Huech 4 twribTMr

IL. AGREEMENTS. (Reportinf individusl only, »cc pp 14-17 of Instrudioiu.)

PME PARTIES AND TERMS

I I van (No reporttbU acrccnenu)

Huacb i Ipp«nberier rfleycc Profit Sharlnj Plan & Iruat (currently lnv«(t«d

in tiM ABA KatirMMnk FresrM)

llu^e^ k EpfMnbcTfcr p*ttn«Tihlp IncoM and rctfcaptl m o( partnership

interest «3 (3cCBn>ln«d by partnership isrtBacnt upon lenalnstion

111. NON-INVESTMENT INCOME. (Reponing individual ud spouse; see pp. 18-ZS of liutruciiou.)

BMB SOURCE AND TYPE ,^^^L 18^

I I MONK (No rcportable oeo-bveitmeiii IDOOOW)

199* 4 19T7

in« & 1997

CrJlrml ClcnfiOft ChildT<fi'» Bcspltal

Ihisch k Cpp«nb«Ttcr (IneoBc)

$ w

SIS' 000 (•imL

s

s

s
800

FZNAKCXAL DISCLOSUKE REPORT Slppel, Kotfncy u. s /I* A'

VII. Page IIWESTMENTS and TRUSTS-• Income, value, transactions (Includes iboMofspoae

aod dependcat childrco. See pp. T7-S4 of tnstractioas.)

;-:eM-Mi«c:-l>V.u»If.5 (h- p*icr.tl.«fiio*l* ....';PJ.- lOr'JDlrit Wvr<r»>U,p^c.I report--'

-j^"'". fi*e* .'•(XJ' »re<v'>ach'•ai»'ft-"

,v-.-\r;p»i3oa_.,--.

'-iii,':. •'.-'lajL-" • . ui: '. lii/".

•rjnt ,vr. ass tAMlI

t n —

CofMacciofwl OE X E H T)

^ ABA (.OKk) H

' (Unnitii S«Tvlc*i Stock (S) D Div. K

1 Zxxon CoOKin Scock (J) A Div.

« loom Iclcphoni«sCennon Stock (J) A Dlv.

> AT&T CoMon Stock (J) A Div.

St. Louia TeactMrs

• Credit Union (s) A Int.

_ (tark lualn Unk

St. U«i», K) (J) A Int.

•

t

le

11

u

1)

t«

——^ 1

IS

'

1<

t1

SI

. X inoemm/titli^ Oo*am: lw-Jl,Befl. 6r !••• ' "^ ».»1(«6» t» 11,-fM " C-ji/»Bl toJS.Ofto *•**-*".*?-n*i.5t*«— •

' V.lrtS^'^,'-*- KSEfini. !-4,°Ki"" •""•""'" !:K:t=K5 • T-».I^».^
801

nuAirciAL DxscLosntx UEPORT B«t« of fta^i

3 /!• /

IV. REIMBURSEMI>TSudCtn^-uiiupo«>iic>ii.b<j|aw.li>D<lei«<iai>io>ei>i.

(iDduda tboK to spouc ud tkpcodcal cUldrai, mc Ibc |>uailkcljcali •<$)* ud '(JX)' lo iadicuc npoiuble

mabuncaeati wd giAi recemd by tpouac kad dcpcodcal cLJIdrca. respcaiwely. Sec pv- 26-39 of Itutrudioia }

• SSS&a DESCRIPTION

Mom (NosnchraporubknaBbvicacatterittls)

•

OTHER GIFTS. (Indudet tbotc to spouse and dcpendou childrcD: use the pvciulwriuU '(S)' uxd '(pCy lo

a(ficiie ocber gibs received by spouse ud depcadcai duldrcB, icspectiwe)y. See pp. 30-33 of iBftlroctioas.)

££UK££ DESCRIPTION VALUE

VOKX. (No tuck rcporublc gifu)

VL LIABILITIES. (l^^u^Iu those of spouse and dcpcndeal children; iodicstc where ippUcab^ pcison rcspouible

for liitnlity by using the pvealbetjcal '(S)* tor sepmie Uatnlity of ihe spouse, '(J)' for )OID( habtlity of

repovtiBf individiul lod spouse, and *(DC)' 'or UkbUily of• dcpcitdcot child Sec pp. 34-36 of InainiCliooi.)

E CREDITOR DESCRIPTION Vft'^^UE CPPE*

HOKB (No reporuble babOiriM)

r • SIS.M* M- IM* « • IIS.ML - «S«.M« V - sse.Mi - |lM,Me ' IIBB.MI ta Sa»«,M«
802

FHOMCIAL DISdOSORE REPCttT

im at »«r—» faforttwg

sn*/ »7

Vm. ADI»rna<(AL INPCHUV1AT10N or EXPLANATIONS. (tnd«tc pin of Report)

DC CEKnnCAllQN.

In cornpliince with the provisions of 2S USC { 435 md of Adviiory Opinion Na 57 of^ Advisory CommitiK en Judkaal /

•)d 10 the best of my knowledge tf the time after nasantie inqiiry, 1 d^ not perfonn viy idjudiatory function in ny Irtipiion divine AB

priod eavaai by th^ report in which I, my tpouic, or my minor or dependerV chitdrcn hid t finmcia) intersi, as deRned in Onon JQfJXcX

in the outcome of such liti^on.

1 cenify thai all infomiaion given abovt (inc)uding informitian peruining to my spouse and minor or dependat chilAcr^ if any) b •

true, and corr^ete to the best of my knowledge and belief, and thtt any infomwion not raponed WK withheld becauic ii met i^iuMe

sntuory provisions penniainc non-disdosue.

I ftfther certify ths earned inceme from outside cmploymeni aid honoraria and the acceptance of pfb %»hich haw been Rponad are m

compltance wthtfoy^ pfyislCTTS islais 01of 5 U.S.CA. US.C wo. mp. 7. $ 501 ei seq., 5 U.SCSC i( 7353 and Judiaal Judicial ConfcnnDr Confcnnoe regiisians regu

J.WHO

199?-

NOTE A^^lr^^rav^xJALVWlOK^OM^KXYA^©^ML^JaYFALS^^ES0RFAlLSTO^l£^wsR£P0RT^^

TO avn. AND CRIMINAL SANCnONS (S U.S.CA AFP. 6, i 104.)

.

.V-;.''.C- « •^ ..s-'^iift >>-. ^'

•-'' •• ' •'•••• "-•'';

FiuNQ iNsnoxmors: ^ .

;. -I.?-' ^•-m^fir •i. i' r-i

Mil sieKd oriend aid] •ddiiiaaJeB^latf.' OMillilOBe on Fhandil Dildaiuc

AdiiMsnliiK OflSa of Ihe

•• •>'.. -"/ - ;'i»*-;.^M^. n. Uilod Sum Cotra

One Colimlu! Ordc, KE, Suitt 2-301

WMhirpon, DC 2054*
A ONE-PAGE FINANCIAL STATEMENT - KET NORTH DOCUMENT IS

AFTER PARAGRAPH 5 AND BEFORE SECTION 111.

- 25

Sn.-SMSM.10
nKANClAL STATEMENT

NET WORTH

Provide I eomplett, cuncni finwciil nei »onh suumeni which itcmiits in deua

all UKU (including binl iccounu, jeil ejuie. lecuribei, truju, invcianenu, ind other fuijiKiil

boldiniO tU li»bilioei findudini dtbu, mon|i|et. fcanj, and otfcer flnanciil obU|iDofl>) of

yourielf, youi tpouie, and other immediate mcmhcn of your houiehold.

Aism 1 UAiumt 1

Cult •« KtM aM fa) bMkf 23 000 2 2t7

VS. OnUMtH ncuiUm-tdi KM riy>bk u kMb-aweint

21. 140 KMU pir*kW k> nluini

52 «» N»U4 payi^ti » OOMH

AccMiul •><< bail 4M 4 OOO

U«p«4 iKaiM ui *> (/XS/«7 13 500

Du<b«ii«h«i O^te Wipu4 lu ind ifittiwt

DMbtfUl %ui uuk Mnauf1 ^lysMt-aM

•ct»4ato 223 900

Xul out twfi—U KkadaU 310 000 ClMa4 aiMiallw ana VOOT KM* ^'

•Ma

kat} MIAU BClR|t|ft tfluWlfeU Olta*bla-tanaa:

3a soo Advanca CarT»t 4 200

Cok nlia-lifi ionriMi 4 307

MS •

U.S. Covamnnt Ihrirc Savlms Pur 7 100

TaulIikiStaa 2*7 867

NaWM Ml H3

TaMAMtH 601 152 TMlliUS<aaa«<MMr* iS2- SiiCONTINGCNT LUlIUniS ClhTILa VCtdtMATICn

/>! i»l«n«. witif w rmw

0 ikii

OibiwiaMinn 0

aa^Mat

Ho

LaidCMM 0 lb

rranno ra> Ftdtnl IBMM TK 0

Oll>liruUM< 0 ^

1 Pltdtt of Mitoaobll* U rt(l«cc«d in MotM Payable to lank • Sacurcd
RODNEY and MARY SiPPEL

ACCOUNT VALUATION*

NO. OF MARKET

SHRS. SECURITY ' VALUE*

100 AT&T $ 3.375

100 ARAKIS ENERGY CORP. $ 365

200 EXXON CORP. $11,700

9a LUCENT TECHNOLOGIES, INC. $ 2,000

800 ZOOM TELEPHONICS, INC. $ 6,700

$24,140

'As et eloaa ot boMlnmam 3/f/97; mubjmet to aazJtat flnenatian.
806

"Unlisted Securities;

Manning Services, Inc. $ 20,000

Husch ( Eppenberger partnership interest $ 32,400

Real Estate Ofcrned;

Kirkwood, Hlssouri 63122 $ 310,000

Real Estate Mortgages Payable:

Countrywide Homes Loans (on residence) $ 223,900

P. 0. Box 67009

Dallas, Texas 75267-0009
807

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls

for "every lawyer, regardless of professional prominence

or professional workload, to find some time to participate

in serving the disadvantaged." Describe what you have

done to fulfill these responsibilities, listing specific

instances and the amount of time devoted to each.

Legal Servicas for Eastern Misaouri Volunteer Program:

In response to a request by Legal Services of Eastern

Missouri and Husch t Eppenberger's managing partner, X

started and organized a program by which the firm began

accepting "^referrals" on a pro bono basis from Legal

Servicas. From 1990 through 1993, I supervised the firm's

pro bono programs. Specifically, I supervised and handled

at least 33 domestic matters for Indigent individuals In

abusive marriages. My work Included drafting motions and

petitions for protection, and court appearances as needed.

Flood of 1993:

During the Flood of 1993, I coordinated community outreach

efforts as part of my job responsibilities with

Congressman Gephardt. This outreach Included Involving

and coordinating efforts with the Legal Servicas of

Eastern Missouri. I also dealt with a large number of

regulatory issues presented by FEMA and HUD, and other

federal agencies, during the disaster and the subsequent

recovery efforts.

Campaign to enhance the public perception of Missouri's

Judges:

Circuit Court Judges in Missouri's metropolitan areas as

well as all Missouri Court of J4>peals and Supreme Court

Judges are selected pursuant to what is known to as the

"Missouri Plan". Under the Missouri Plan judges are

selected by a non-partisan court commission and then

appointed by the Governor. A judge continues to serve

subject to a "retention" vote of the people. Judges stand

for retention on a separate judicial ballot, without party

designation. The Issue submitted to the electorate Is

whether the particular judge should be retained In office

by a vote of yes or no.

- 26 -

STL-S]aS92.10
In 1992 I assisted in an aducatlonal canpaign sponsorad by

tha Missouri Bar to adueata tha public about tha Missouri

Plan and tha judiciary in ganaral. No individual judge's

ratantion was advocated. Tha goal was to enhance tha

overall public perception of Missouri's judicial branch of

govaminent.

Missouri Valley Athletic Conference:

I served as a volunteer during the past seven seasons at

the annual Missouri Valley Conference Basketball

Tournament held in St. Louis.

The American Bar Association's Conunentary to its Code of

Judicial Conduct states that it is inappropriate for a

judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or

religion. Do you currently belong, or have you belonged,

to any organization which discriminates - through either

formal membership requirements or the practical

implementation of membership policies? If so, list, with

dates of membership. What you have done to try to change

these policies?

Ho

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which

led to your nomination and Interviews in which you

participated).

No. I provided materials to Congressman Richard A.

Gephardt similar to materials provided to the ABA and tha

Senate Judiciary Committee. I was then interviewed by

Congressman Richard A. Gephardt. Congressman Gephardt

forwarded the background materials which I provided to him

to Senator Christopher Bond and Senator John Ashcroft. On

February 6, 1997, I met with staff members for Senator Bond

and Senator Ashcroft. Since that time, I have provided

materials to and met with representatives of the United

States Department of Justice, the Federal Bureau of

Investigation, and the American Bar Association.

- 27 -
809

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.

Mo

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 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

jurisdictlonal 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.

Thar* is no rel* for 'judicial activism' in tha Fadaral

judiciary. 'Judicial activism" undarminas tha

appropriata balanca of authority among tha thraa branches

of our Fadaral govarninant.

- 28 -

STL-S98M2.ia
810

It is important to ramambar that tha fundanantal lagal

doctrine of atara deciala controls tha dacislons of tha

District Court. Tha parsonal opinion of a District Court

Judga of what tha law should ba must ba sat asida and tha

previous holdings of appallata courts must ba followed.

As a result, the proper scope of the District Court's

authority is to apply the law to the facts of tha cases

which are properly before the court.

Further, while the District Court has an obligation to

protect individual rights and liberties, the Court should

not do so lay sitting as a "super legislature," or by

substituting the Court's judgment for that of the

I,egislative and/or Executive branches.

Additionally, each case must be initially reviewed to

determine whether Federal jurisdiction exists. Cases

which properly belong in state courts should be dismissed

or remanded as the procedure dictates. This Initial

analysis is inportant because it allows the District

Court to not only preserve the appropriate balance of

power among the branches of the Federal government, but

also preserve the appropriate jurisdictional authority

among the state, local and Federal governments.

In order to avoid unnecessary and far reaching opinions,

it is also important for the District Court to determine

whether the parties have standing to bring the claims

presented and whether such claims are ripe for

adjudication.

- 29

(Tl-tMStl.ie
811

OOESTIOimAIRE FOR JUDICIAL H0MIMBE8

I. BIOCRAPBICAI. INFORMATION (PUBLIC)

Poll nMmm (iaclud* «ny form«r nanai us*d).

•ormaa Kanoatb Moon

kddrasst Liit currant placa of raaidanca and offica addraaaCaa).

Raaidanca t

Lynchbur^, Virginia

Offlea I

Court of Appaal* of Virginia

Cmtral Pidallty Bank Building

IBth Pioor

•lath and Main Straata

Lrnehburg, Virginia 24S04

Offica Mailing Addraai:

Court of Appaala of Virginia

Poat Offica Box «S7

Lynchburg, Virginia 2«S0S

Data aad placa of birth.

ar «, 193t

Lynchburg, Virginia

4. Marital statua (includa uidan naaa of wifa, or husband's naaa). List

spousaa occupation, aaployar's naaa and buainass addrass(as).

Barbara Wooldridgo Moea

•Ot asployad outsida our hoaa.

5. Mucationi Ust aach collaga and law school you hava attandad, including

dataa of attandanca, dagraas racaivad, and datas dagraas wara grantad.

OalTaraity of Virginia School of Law

Mastar of Laua (Judicial), 19a& - 1988; Dagroai May 32, 19(S

Oalvaralty of Virginia School of Law

Bachalor of Laws, 1959 - 19«2; Dagraa: Juno 3, 1962

Oaivarslty of Virginia

Bachalor of Arts, 199S - 19S9; Dagraa: Juna 2, 19S9

4- BamlQTaant Racord: Uat (by yaar) all businasa or profaaaional

corporations, coapanias, firas or othar antarprisas, partnarshlpa.

Institutions and organisations, nonprofit or otbarwisa, including firMa,

with Mhich you wara connactad as an officar, diractor, partnar,

propriator, or aaployaa alnca graduatioa froa collaga.
812

Court of Appaals o< Virginia: Judga, January 1, IftS - pr*««a«; Chiaf

Jodga, May 1, 1993 - praiant. (I was ra-alactad to aarra a aacond tazs as

Chiaf Judga, baglnaing May 1, 1997).

Twanty-fourth Judicial Circuit of Virqisia; Judga, April 15, 1»7« -

Dacaabar 31, 1984; Ctiiaf Judga, July 1, 1983 - Daeaabar 31, 1984.

Milliaaa, Robartaon, Sackatt, Baldwin t Oravaa: Partnar, January

1, 1970 - April 15, 1974.

Air Pollution Control Board of tha City of Lynchburg: Chairman, July 1,

1*72 - April IS, 1974. I was appointad to tha Board by tha city of

Lynchburg City Council and alactad by tha othar board aaabara as chairaaa

for this unpaid position.

Hilliaaa, Robartson t Sackatt: Associata, Juna 4, 19«2 - Dacaabar 31, 19«t

<axcapt during ailitary sarvica); Partnar, January 1, 19fi7 - Dacaabar 31,

19(9.

nnitad Stataa Army, 1st Battalion, 3Sth Artillaryi First Liautaaaat,

rabruary 17, 1963 - January 28, 19«5.

Btata Para Mutual Autoaoblla Insuranca Coapany: Claims adjustar, Juna 1 -

August 3, 1961.

Nooldridgs Motor Coapany: Car salasaan, Juna 1 - August 15, 19(0.

Moco Oil Coapany: Sarvica station attandant, Juna 1 - August 15, 1959.

Military Sarvica; Bava you had any ailitary sarvica? If so, giva

particulars, including tha datas, branch of sarvica, rank or rata, sarlal

nuabar and typa of discharga racaivad.

Taa, I aarrad in tha ailitary.

Datai rabruary 17, 19(3 - January 38, 19(5

Branch of aarvica: U.S. Aray (Artillary)

>aak> lat Liautaaaat

Barial Hoi 05307(42

Praaant Status: Ratirad

Discharga: Bonorabla

Bonors and Awards; List any scholarships, fallowships, honorary dagiaaa,

and honorary sociaty aaabarships that you baliava would ba of iatarast to

tha rnaaittaa.

Nilliaa J. Brannan, Jr. Award, awardad by Univarsity of Virginia Bctaool of

Law for axcallanca in taaching trial advocacy, 1997.

Wllliaa Polkas Scholarship, Univarsity of Virginia, 1955-59.

latataaillata Honors, Univarsity of Virginia, 1957.

Morau K. llaea
OS

(avaa Soclaty, 19S8.

Oalcron Dalta Kappa, 1958.

*• »ar >»»ociation«i Ll«t all bar aaaoclatlona, lagal or judicial-ralatad

coaalttMa or confarancaa of which you ara or hava baan a aaabar and giva

tha tltlaa and datai of any offlcaa which you hava bald ia luch groups.

•ational Council of Chiaf Judgas, Exacutiva Coaalttaa: Traaaurar 1996 -

praaaat, Saeratary 1995-9«, aaabar 1993 - praaant.

Virginia Bar Aaaociation, Judicial Saction: Vica Chairman 1997, aaabar

IMS - praaant.

Judicial Council of Virginia: 1993 - praaant.

Stata-radaral Judicial Council for Virginia: 1993 - praaant.

Boyd-<3ravaa Confaranca, Staaring Coaaittaat 1986 - praaant.

Judicial Confaranca, Judicial Adainiatration Coamittaai Chairaan 1985-87.

Modal Jury Inatructions Coaaittaa: Cbairaan 1983-86, aaabar 1981-86.

Ca—Ittaa to Draft tha Rulas for tha Court of Appaala of Virginia: 1983-

•4.

Virginia Stata Ban 1962 - praaant.

Etklea rn—Ittaa, Siatli Olatrieti Chairaan 1972-74, aairiiar 1971-74.

Virginia Bar Aaaociation.

Judiciary Coamittaa: 1972-74.

Inauranca Coaaittaa: 1969-74.

Touag Lawyara (action: Soutbaida Ragional Vloa-Praaidant 1968-49,

•aabar 1963-73.

Aaarlcaa Bar Aaaociation: 1972 - praaant.

•ational Xnatltuta of Trial Advocacy: 1996 - praaant.

•••rlcan Jodlcatura Sociaty: 1974 - praaant.

laatltuta of Judicial Adainiatration: 1985 - praaant.

10. Otbar Maabarahina: Liat all organliations to which you balong that ara

actlva la lobbying bafora public bodiaa. Plaaaa liat all othar

organlsatlona to which you balong.

Lobbying Oroupat

rn—laalon oa Faally Violaaca Pravantioa (pravloualy Coaaliiion Agalaat

Horaaa K. Moon
tu

••tic Violraca)! 1993 - pr*«aat.

Virginia B«r A««oelationi 1962 - pracant.

taarlcan Bar Aaaoelatlon: 1972 - prasant.

Othar Naabarships:

•atloaal Council of Chrlitians t Jawii Board Manbar 19«9-9«.

Paakland Baptiat Churchi Pinanca Coaalttaa 1992-93, BicacutlTa OaiMlktaa

Chalxaan 19S9-90, Board of Daacona 1971-73, 19«7-«9.

Xkirtaaa Clubi Movaabar 20, 1974 - prasant (no bylaws).

John Lynch Sociatyt 1967 - praaant (no bylaws).

11. Court Bdnissioa: List all courts in which you hava baaa adaittad to

practica, with datas of admission and lapsas if any such aaabarship

lapsad. Plaasa axplain tha raason for any lapsa of naabarsbip. oiva tha

saaa infonation for adninistrativa bodias which raquira spacial adBlasioa

to practica.

Supraaa Court of Virginia - Juna 4, 1962

Onitad atataa District Court for tha Hastam District of Virginia - Juna

7, 1963

Onitad Statas Court of Appasls for tha Fourth Circuit - Oetobar 7, 1972

Onitad Statas Supraaa Court - May 29, 1967

12. Publishad Writings! List tha titlas, publishars, and datas of books,

articlas, raports, or othar published material you hava written or aditad.

Plaasa supply one copy of all published material not readily available to

tha Coaaittaa. Also, please supply a copy of all speeches by you on

issues involving constitutional law or legal policy. If thara ware press

raports about tha speech, end they are readily available to you, plaasa

supply them.

VIROiaiA MODEL JUKT IHSTKUCTIONS (Michie 19^6) (four volumes, updated

annually) (contributed to the 1961-86 volumes).

A tropoBMl to slaplity Virginia Burdana of Proota, 12 Ooorgo Haaoa Vm

Kaviaw 1 (1989).

Virginia Bar Association, Continuing Legal Education: Tipm tor Gmtting tte

Jadg» to rry Tour Cmaa and tlot Tou (July 18, 1997) (handout).

Z hava aado some informal talks that touched on constitutional law and

lagal policy. I spoke from notes.

Saa Attachaant A ("Publications-) for a copy of the article, tha CLS

handout, and speech notes.

13. Eealthi Nhat is the present state of your health? List the date of your

last physical exanination.

•oraan K. Nooa
816

X aa la •xeallant hsaith. I bad ay last physical •xaainatioa oa July 3,

1»97.

Jwaicisl Offioi stata {chronologically) any judicial officas you hava

hald, whatber such positioa was alacted or appointad, and a dascription of

tha jurisdiction of sacb such court.

Court of Appeals of Virginia, Chief Judge, 1993 - present. Judge, 19BS -

present. (Z was re-elected by the aeabers of the Court to serve a second

tera as Chief Judge, beginning Nay 1, 1997). I was elected to the Court

by the General Assembly of Virginia. The Court of Appeals of Virginia is

an intermediate court of appeal with jurisdiction over appeals froa

criainal cases in which capital punishment was not imposed, domestic

relations cases, worker's compensation cases, and administrative agency

appeala that were first appealed to a circuit court.

Twenty-fourth Judicial Circuit of Virginia, Chief Judge, 1983-84, Judge,

1974-85. I was elected to the Court by the General Assembly of Virginia

and was elected Chief Judge by the other judges in the circuit. Th«

Circuit Courts of Virginia are trial courts of general jurisdiction.

Citationst If you are or have been judge, provide: (1) citations for the

ten most significant opinions you have written; (2) a short summary of and

citation for all appellate opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism of your

substantive or procedural rulings; and (3) citations for significant

opinions on federal or state constitutional issues, together with the

citation to appellate court rulings on such opinions. If any of the

opinions listed were not officially reported, please provide copies of the

opinions.

(1) The ten owst significant opinions I have written.

Williaas V. Williams. 24 Va. App. 778, 485 S.E.d 651 (1997).

Walton V. Commonwealth. 24 Va. App. 757, 485 S.E.2d 641 (1997).

Mills V. Coaaonwealth. 24 Va. App. 95, 480 S.E.2d 746 (1997).

Horen v. Coaaonwealth. 23 Va. App. 735, 479 S.E.2d 553 (1997).

Tench V. Commonwealth. 21 Va. App. 200, 462 S.E.2d 922 (1995).

Barfield v. Commonwealth. 20 Va. App. 447, 457 S.E.2d 786 (1995).

Hughes v. Commonwealth. 18 Va. App. 510, 446 S.E.2d 451 (1994).

Broadv v. Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993).

raraer v. Coaaonwealth. 12 Va. App. 337, 404 8.B.2d 371 (1991).

Jonaa v. Colonial Williamaburq foundation, 10 Va. App. 521, 392 8.B.2d BM

(1990).

<2) A Short suaaary of and citation for all appellate opiniona where ay

Boraaa K. Mooa
816

daclsions H«r* reversed or Mh«r« ay judgaant was affiraad with significant

criticisa ot my subttantiva or procadural rulings.

Caaas X dacidad as a circuit court judga in Virginia's 24tb Judicial

Circuit (none of which wara written decisions) which were reversed by tha

Supreae Court of Virginia:

1) Alls T. Alls. Circuit Court of Canpbell County <June 15, H75)

reversed by Alls v. Alls. 216 Va. 13, 216 8.E.2d 16 <1975).

As trial judge in a divorce proceeding, I awarded a buaband a

divorce on the ground of desertion and awarded hia custody of the couple's

child. Tha Supreme Court reversed, holding I erred in finding that a

wife's departure froa the family home one day after her suit for divorce

alleging cruelty was filed, constituted desertion on the wife's part, for

one spouse is not guilty of legal desertion in separating froa tha other

after the institution of a suit for divorce or during its pendency. The

Supreme Court also ordered that the custody determination be reconsiderad.

2) larlv Settlers Ins. Co. v. Jordan, Circuit Court of Nelson County

(June 13, 1975) reversed by Early Settlers Ins. Co. v. Jordan. 217 Va.

462, 229 S.E.3d 871 <1976).

Plaintiff was injured by his contact with his car which he was

driving whan tha car struck a tree. His father's insurance policy

provided aedlcal coverage if plaintiff was struck by an autoaobile. X

held that bis injury was covered. The Supreae Court reversed.

3) Watson v. Sheoard. Circuit Court of Caapbell County (Mov. 34, 1976)

reversed by Watson v. Sheoard. 217 Va. 538, 229 3.B.2d 897 (1976).

Aa a trial judge, I denied a petition by the natural aother to

regain custody because she was unfit. I allowed adoption by tha

"psychological parents" who had custody of the child and their own child,

who looked upon the adoptive child as its sibling. Tha Supraae Court

reversed, holding that it was error to approve adoption by a couple whlla

they were divorcing. The Court held that the irrevocable step of

terainatlng the natural parent's rights, even though no question waa

raised about the adoptive parents' fitness as parents, should not be taken

at a time when the adoptive parents were separated and their marital

problaas were unsettled.

4) Cole V. Wyyneaboro. Circuit Court of the City of Haynesboro (July M,

1976) reversed by Cole v. Wavnesboro. 218 Va. 827, 241 S.E.2d 765 (197S).

Landowner challenged a grant of a special use perait to allow

construction of a ten-story apartaent building for elderly and handicapped

residents In a block zoned for general business and residential use. Aa

t.rial judge, I entered judgaent against the landotniers, upholding tha

granting of the perait because the evidence did not show that the city

clearly abuaad its power In exercising its legislative power. The Supreme

Court had previously held this to be the standard. Bvrua y. Board of

Supervisors. 217 Va. 37, 225 S.B.2d 369 (1976).

Kaveraing ay decision, the Supreae Court held that not withatanding

Noraan K. Mooa
817

thm iasuanc* of a cp«cial pemit a legitlativ* action Must comport Mith

good soaliig practicas or the purpose of the city ordinancas.

5) Bakar v. Coamonwealth. Circuit Court of Caapball County (July 25,

1J7S) ravarsad by Baker v. Commonwealth. No. 781335 (Va. Apr. 13, 1979).

Bakar, a prisoner, was convicted of ascapa. On appeal, it Mas

dataralnad that be was prosecuted under the wrong escape statute because

ba was technically a prisoner in a jail not a part of the Departaant of

Corractions.

•) Woodson T. Lvnchburq Div. of Social Servs.. circuit Court of the City

of Lynchburg (Sept. 23, 1980) reversed by Woodson v • Lvnchburo Div. of

Social Servs.. 223 Va. 23S, 288 S.E.2d 410 (1982).

Aa a trial judge, I terainated the residual parental rights to the

lliagitiiData child of a biological father and authorised the social

aarviea agency to place the child for adoption. The father, who had not

supported the child or had any meaningful contact, bad numerous other

illagitiaate children whom he was not supporting. The father intervened

in the proceeding after the natural mother was found unfit and was about

to bava bar parental rights terminated. I believed his intention was to

delay adoption and to leave the child in the custody of the unfit aother.

The Supreme Court reversed, holding that: (1) the statute

paraitting termination of parental rights of a parent or parents who,

without good cause, have bean unwilling or unable within a reasonable

period to remedy substantially the conditions which led to the child's

foster care placement eliminated the necessity for specific finding of

parental unfitnass in termination proceedings between parents and social

•arvica agencies; (2) finding that the factors listed in the statute exist

la tantamount to a finding of parental unfitnass; and (3) where an

unaarriad father was not offered services of a rehabilitative agency prior

to the termination of his parental rights, order would be reversed and

father would be given the opportunity to show what progress he could make

Mith the assistance of rehabilitative agencies toward establishing, within

a reasonable period, a suitable home for the child subject to the

t.araiBation order.

7) Kam v. Freed Co.. Circuit Court of Nelson County (Jan. 8, 1980)

ravarsad by Kern v. Freed Co.. 224 Va. 678, 299 S.E.2d 363 (1983).

A» trial court judge, I held that a homeowner was indebted to the

aaller on the sale of household appliances and entered judgment

accordingly. The Supreme Court reversed, holding that a principal is not

bound whan an agent acts beyond its authority and that no unjust

aarlchaant was shown in an iaplied contract to pay for goods.

•) ychool Board v. Burley. Circuit Court of Aadiarst County (Apr. 29,

1»83) reversed by School Board v. Burlev. 225 Va. 376, 302 S.E.2d 53

(1983).

Vandors brought suit against school board for specific performaaca

for sala of real estate. As trial judge, I held that under the facts and

circuastaaces of the case, the school board was estopped froa interposing

aa A dafaasa that the contract was not in writing and was therefore

Noraan K. Noon
818

nn«nforcsabla. Z ordarad tpacific parformanca. Tha Supraaa Court

raTarsad, holding that an oral contract for tha purchaaa of land hj a

achool board undar formar Coda Sac. 22-150 (now suparaadad by Coda Sac.

23.1-128) i« ultra viras and void and that thara was no astoppal against

tha Board to raisa dafansa of lack of writing.

9) Piarca v. Martin. Circuit Court of Caapball County (Oct. 34, 1980)

ravarsad by Piarca v. Martin. 230 Va. 94, 334 S.B.2d 576 (1985).

Truck drivar suad car drivar for contribution to racovar ona-balf of

aaoimts paid by tha truck drivar to tha car passangars in sattlaaant of

tha Injury clains. I antarad judgsMnt for truck drivar. Tha Supraaa

Court ravarsad in part and affirmad in part, holding that soaa, but not

all, of tha injurad partias wara prohibitad by thair own tastiaony froa

racovaring against tha dafandant.

Casas dacidad by a thraa-judga panal of tha Court of Jlppaals of Virginia

In which Z wrota tha dacision for tha panal and tha dacision was ravarsad

by aithar tha Court of Appaals sitting an banc or tha Supraaa Court of

Virginiai

I) national Linao Sarvica v. McGuinn, 3 Va. App. 73, 343 B.C.3d 43 (198«)

ravarsad by National Linen Servica v. McGuinn. 5 Va. App. 365, 362 8.E.3d

187 (1987) (an banc).

Tha Court of Appaals en banc affiraad tha dacision of tha Horkars'

Coapanaation Coaaission and raveraad ay panel decision. The Court held

that tha coaaission correctly deterained that because of the eaployar's

failure to execute and file a aaaorandua of agraeaant, its payaant of

coapansation to the eaployee for a period of thirteen aontha, and its

failure to contest the ooapansability of tha injury, the aaployer could

not be placed in a batter position than it would have bean in had it

coapliad with the provisions of Code Sec. 65.1-93. The Court further held

that there was cradibla evidence to support the coaaission's finding that

tha eaployee reasonably believed that be ttas entitled to coapansation

because the eaployer paid benefits for thirteen aonths without executing

a aasK>randua of agreaaent.

3) Clinebell v. Coaaonwealth. 3 Va. App. 362, 349 S.E.3d 676 (198«)

reversed in part by Clioeball v. Coaaonwealth. 235 Va. 319, 368 S.B.3d 3C3

(1988) .

Ma held that certain hearsay stataaants of a child victia undar

Virginxa law were inadaissibla to iapeach the child's testiaony. Tba

Supraaa Court adopted a new exception to the hearsay rule and ravarsad.

3) Hill Citv Trucking v. Christian. 7 Va. App. 78, 371 S.B.3d 572 (1988)

reversed by Hill Citv Trucking v. Christian. 238 Va. 735. 385 S.8.3d 377

(1989).

This waa a trorkar's coapansation claia in which Christian, a long*

diatanca truck drivar, was shot by robbara who, pretending to be police

officers, stopped his truck at 3tOO A.M. on a deserted road. We bald that

tha injury arose out of a risk of Christian's a^loyaent and waa

Moraaa K. Nooa
819

c(nip«ns«bl«. Tha Supr«a« Court reversed, holding that the risk of being

robbed and shot «t 3:00 A.H. on s highway was not proven to be greater for

a truck driver than the ordinary citisan, and thus the injury did not

arise out of a risk of his anployaient.

4) Jiaenes T. CoMwnwealth. 10 Va. App. 277, 392 S.B.2d 822 (1990)

roversed by Jiiseoet v. CQmmoowealth. 241 Va. 244, 402 S.E.2d 678 (1991). •

Jiaenes was charged and tried for the statutory offense of

defrauding a person under a construction contract. One of the eleaents of

the charged offense was that the victin had nada denand for repayaent in

writing. The Coeaonwealth failed to prove a written demand. On appeal,

we held that because Jimenez did not object to the finding instruction and

the evidence was sufficient to prove the crime of obtaining money by false

pretenses, of which he was found guilty, he was barred on appeal fr«i

raising as an issue the Coaukonwealtb's failure to prove that a letter was

sent by the victim demanding repayment. The Supreme Court reversed,

holding that Jimenes had been convicted of an offense that was not a

crime.

5) Campbell v. Commonwealth. 13 Va. App 33, 409 S.E.2d 21 (1991) reversed

by Campbell v. Commonwealth. 14 Va. App. 988, 421 S.E.2d 652 (1992) (en

banc).

Defendant was convicted of forging a public record. On appeal he

argued that the trial court erred in instructing the jury. The panel

decision held that be could not raise the issue because be had not

objected to the instruction. Reversing my panel decision, the Court of

J^peals an banc held that the trial court erred, and that the ends of

justice exception to Rule 5A:18 allowed the Court to consider the issue on

appeal.

ft) Commonwealth v. Woodward. 17 Va. App. 526, 438 S.E.2d 77 (1993)

ravorsed by Commonwealth v. Woodward. 249 Va. 21. 452 S.E.2d 656 (1995).

We held that an injured prisoner, who bad signed a contract of

aa^ployaant with the Virginia Departaent of Highways, was covered by

worker's compensation. The Supreae Court reversed, holding that a

prisoner was legally incoapetent to contract; therefore, he was not

alloyed under a contract of hire and was ineligible for coapensation.

7) Cea Fahrettin Curmak v. Commonwealth of Virginia, No. 0037-94-2 (Va.

Ct. App. Har. 14, 1995) (memorandum opinion) reversed by Cea Fahrettin

Curaak v. Coaaonwealth. No. 9S097S (Va. Feb. 16, 1996) (per curium).

We affirmed the circuit court decision refusing to order a bil'l of

particulars. The Supreme Court reversed.

•) Braithwaite v. Commonwealth. No. 0790-94-2 (Va. Ct. App. Aug. IS,

1995) reversed by No. 0790-94-2 (Va. Ct. App. Apr. 23, 1996) (en banc)

(ordar).

Paaal held that lying on a pillow with a large revolver and drugs

banaath it was sufficient circuastantial evidence to support conviction of

Noraaa K. Noea
820

10

poBS«>sion of a firaani and drugs. Th« Court of Appeals an banc adoptad

thm panal diasant, holding that avidanca was insufficiant to support

conviction.

Casas dacidad by a throa-judga panal of tha Court of Appeals of Virginia

in Mhich I TOtad Mith the majority of the panal but did not write tha

dacisioa and tha decision was overturned by either the Court of Appeals

aitting en banc or the Supreaa Court of Virginia:

1) Lambert v. Coamopwealth. No. 0438-B6-3 <Va. Ct. App. Apr. 9« 1987)

reversed by Lambert v. Commonwealth, No. 870469 (Va. Mar. 18, 1988).

Tha Supreme Court reversed our determination that Lambert had not

timely filed his notice of appeal in the trial court.

2) Johnson v. Chesterfield. 5 Va. App. 15, 359 S.E.2d 833 <1987) raveraed

by Johnson v. Chesterfield. 237 Va. 180, 376 S.E.2d 73 (1989).

Na affirmed the Industrial Commission and held that the injury

snatained by a claimant who fell down steps while turning was compensabla

under the Workers' Compensation Act. Tha Supreme Court reversed, holding

that traversing steps was not a risk of employment and was not, therefore,

coa^ensabla.

3) Llamera v. Commonwealth. Mo. 0322-90-4 (Va. Ct. App. June 4, 1»»1)

(memorandum opinion) reversed by ^lamara v. Coi|MBf»nw^p;i^^). 243 Va. 262, 414

I.E.2d 597 (1992).

Me affirmed the trial court order which found the defendant guilty

of poaseasion with intent to distribute cocaine. The Supreme Court

raveraed, holding that prejudicial error occurred when a police officer

was allotted to testify over objection that in his opinion, the quantity of

cocaine "would suggest" that the otraer of the cocaine was a person who

sold cocaine and that such quantity was inconsistent with personal use,

thereby expressing an opinion on the ultimate issue in the case.

4) Stevenson v. Citv of Falls Church, Mo. 1956-89-4 (Va. App. Apr. 23,

1991) (memorandum opinion) reversed by Stevenson v. Citv of Falls Church,

243 Va. 434, 416 S.E.2d 435 (1992).

A police officer found the defendant asleep inside a motor vehiclm,

behind the steering wheel, with the key in the ignition. When tha officor

«Mka the defendant, it was apparent to her that the defendant wms

intoxicated. Defendant was charged and convicted with drunk driving under

the city'a drunk driving ordinance. On appeal ««e affirmed, holding thmt

the defendant was tha "operator" of his car within the meaning of thm

relevant atatute, because he was in actual physical control of tha motor

vehicle.

The Supreme Court reversed, holding that for the purpoaea of the

city ordinance, which invokad statutory definitions from tha Virginia

Code, an "operator" of a vehicle does not include an intoxicated occupant

of a car who is merely seated behind its steering wheel with the key in

the ignition switch.

Moraaa K. Noom
821

11

S) Raid •. Raid. 14 Va. App. SOS, 419 S.B.2d. 398 (1992) nvftrsad by Raid

y. Raid. 245 Va. 409, 429 S.E.2d. 208 <1993)

W* hald that husband could saak restitution of spousal support paid

pursuant to an ordar that had ba«n ravarsad. Tha Supraaa Court hald tbat

trial court did not hava statutory or inharant authority to ordar

raatitutioB of spousal support alraady paid.

*) Henrico County School Board v. Bohla. 14 Va. App. 801, 421 S.B.2d 8

(1992) ravarsad by Bohle v. Henrico County School. 246 VA. 30, 431 S.B.2d

36 (1993).

Wa reverted a decision of the Workers' Coapensation CoMiission

suspending an employee's benefits until such tiaa as the employee had

incurred a specified sun of coapensation benefits and expenses conputed

based upon tha amount of the net third-party recovery. He held that under

the circxuistances, tha coaaission errad in datemining both the aaouut at

which further benefits would accrue and the method by which further

baaefits would be calculated.

Tha Supraaa Court reversed, holding that the Court of Appeals

applied the wrong method for apportioning attorney's fees and expenses

whan payment of compensation benefits had been suspended following a

•attlaaant between the employee and the third-party tortfeasor.

7) In re Baskins. 16 Va. App 241, 430 S.E.2d 555 (1993) reversed by

Jy^^yt^v y. Baskins. 247 Va. 506, 442 S.B.2d 636 (1994).

A juvenile filed application for a writ of prohibition to prevent

tha circuit court from trying hia as an adult on felony charges. We held

tbati (1) date of "receipt" of a case from the juvenile court, as

contaaplatad by statute providing that circuit court should, within 21

days after receipt of case from juvenile court, enter an order either

rwinding the case to the juvenile court or advising the attorney for the

Coaaonwaalth that he may seek an indictment, was tha date the circuit

court takes physical possession and control of the file froa the juvanila

court, and (2) the statute was mandatory.

The Supreme Court reversed, holding that: (1) compliance with tha

21-day tiae period provided in the statute setting the procedure for

transfer of the juvenile to the circuit court for trial as an adult was

directory and procedural rather than aandatory and jurisdictional, and (2)

tha juvenile did not suffer any prejudice as a result of the thraa-day

dalay in tha circuit court's assuaption of jurisdiction over his felony

charges.

8) KalleT v. Kallev. 17 Va. App. 93, 435 S.B.2d 421 (1993) (an banc)

ravarsad by Kellev v. Kallev. 248 Va. 295, 449 S.B.2d 55 (1994).

Husband appealed the decision of the circuit court that invalidated

a portion of a property sattlaaent agreement that previously bad been

incorporated into the divorce decree. We held en banc that upon passage

of twanty-ona days from tha entry of the final decree, the trial court

lackad jurisdiction to modify the terms of the decree.

Tha Supreme Court reversed, holding that because the property

sattlaaent agraeaent involved the rights of children to support, and such

rights canoot be impinged by contract, tha dacrea was void and could ba

•ttackad and vacated in any court at any tiaa, directly or collaterally.

45-964 98-27
822

12

9) Bottoaa v. Botto«», le Va. App. 481, 444 S.B.3d 27« (1994) r«v«rs«d bf

aottcwa T. Botto«». 249 Va. 410, 457 S.E.2d 102 (199S).

M« held tbat the evidence was insufficient to support a trial

judge's decision that a lesbian aother was an unfit parent and his award

of custody of her biological child to her aother. The Supreae Court held

that the evidence was sufficient to support the trial court's finding of

unfitness, reversed the Court of Appeals, and reinstated the trial court

daciaion.

10) Barrett v. Co««>nwealth. 18 Va. App. 773, 447 S.E.2d 243 (1»94)

reversed by Barrett v. Coegonwealth. 250 Va. 243, 462 S.E.2d. 109 (1995).

He held that a police officer, who observed Barrett's truck stopped,

tuned around and went to inquire if help was needed and then saw the

truck slowly moving with its wheels partially on the shoulder of the road

and partially in the road, bad the right to stop the truck in the exercise

of the 'coaaunity caretaker function* articulated in Cady v. Doabrowski,

413 U.S 433 (1973). The Supreae Court reversed, holding that the

circuaatances did not justify the stop.

11) Stenrich Group v. Jeaaott. No. 1910-94-2 (Va. Ct, App. April 4, 1995)

(aesnranduB opinion) reversed by Stenrich v. Jeswott. 251 Va. 184, 447

S.B.2d 795, 17 O.S.B. Cas. (BNA) 1573 (1996).

Me held that credible evidence supported a finding that Jeaaott'•

carpal tunnel syndroae was a condition characterised as a "disease." Ttia

Supreae Court reversed, holding that job-related iapairaents resulting

froa cuaulative trauma caused by repetitive aotion, however labeled or

however defined, are, as a matter of law, not coapensable under the

present provisions of the Workers' Coapensation Act.

12) Donald v. Fairfax County Deot. of Bum. Dev., 20 Va. App. 155, €55

S.B.2d 740 (1995) (en banc) reversed by Fairfax County Deot. of Hua. Pev.

•. Donald, 251 Va. 227, 467 S.B.2d 803 (1996).

In child abuse/neglect proceeding, sitting en banc, we reversed the

trial court'a denial of attorney fees and reaanded for determination of

reaaonable attorney fees. Holding that the appeal froa the trial court

was untiaely, the Supreae Court reversed, holding that attorney fees could

only be awarded in aatters "properly before" the court, and that when an

appeal was not taken within ten days of the trial court's final order, the

aatter was not "properly before" the circuit court and therefore fees

could not be awarded.

13) Allen v. Coaaonwealth. 20 Va. App. 630, 460 S.B.2d 248 (1995)

reversed by Allen v. Coaaonwealth. 252 Va. 105, 472 S.E.2d 277 (1996).

We affirmed the decision of the trial court, holding that thm

appellant had waived his double jeopardy objections.

On grant of liaited review, the Supreae Court reversed.

14) qriswold v. Coaaonwealth. 21 Va. App. 22, 461 S.E.2d 411 (1995) (en

banc) reversed by Qriswold v. Coaaonwealth. 252 Va. 113, 472 S.E.2d 789

Noraan K. Noon
823

13

Dafandant was eonvictad in tba trial court of driTtng undar tha

iaflaanca of alcohol aftar having praviously baan eonvictad of a lika

effanaa. On appaal, aitting an banc, wa affiraad tba trial court. Zha

•upraaa Court ravariad, holding that (1) tba dafandant's prior -f —'Tiannr

ODI conviction waa invalid bacauaa dafandant had not baan proparly

rapraaantad bj counsal; (2) allowing tha jury to convict tha dafandant

baaad on a prior invalid conviction waa ravarsibla arror; but <3)

dafandant'a otbar unrapraaantad Biadaaaanor coaviction for wbicb dafandant

apant no tiaa in Jail was valid.

<3) Citationa for aigaifieant opiniona on fadaral or stata coaatltutional

iaauaat

Willia»a V. Williaas. 24 Va. App. 778, 485 S.S.d 6S1 (1>»7).

Walton V. COMOnwaalth. 24 Va. App. 7S7, 48S 8.B.2d t41 (l»fT).

Horan v. Co—onwaalth. 23 Va. App. 735, 47* S.E.2d 553 (1997).

Tanch V. COMOnwaalth. 21 Va. App. 200, 4(2 S.B.2d 922 (1995).

Hall V. CosMonwaalth. 12 Va. App. 972, 404 S.B.2d 674 (1991).

14. Pnblic Offica; Stata (chronologically) any public officaa you hava hald,

otbar than judicial officas, including tha tarma of sarvica and wbatbar

auch positiona wara alactad or appointad. Stata (chronologically) any

unauceassful candidaciaa for alactiva public offica.

X tfaa Chairman of tha Air Pollution Control Board of tha City of X4yncbburg

froa ita incaption on July 1, 1972 until April 15, 1974. I was appointad

ts tba Board by tba City of Lynchburg City Council and alactad by tha

o^har board aaahars as chairman.

17. Laaal Caraari

a. Daacribm chronologically your law practica and axparianca aftar

graduation froa law school including:

1. whathar you sarvad as Clark to a judga, and if so, tba nsaa of

tba judga, tha court, and tha datas of tha pariod you wara a

Clark;

Z did not aarra aa a dark.

2. whathar you practicad aloaa, and If so, tha addraaaad and

datas;

1 did not practica alona.

1. tha datas, naaas and addrassaa of law firas or officaa,

coapanias or govamaantal agancias with which you hava baan

connactad, and tha natura of your connaction with aach;
824

14

Jun* 4, 1962 to Dcc«ab«r 31, 19C9 - Willi««s, Robertson £ 8ack«tt,

709 Kris* Building, Lyachburg, Virginia 24503 (froa January 1 to

9*c*Bb«r 31, 1969, tha address was 816 Main Straat, Lynchburg,

Virginia 24503). X was ao associate with the fim except during the

two years spent in the Amy. I became a partner on January 1, 1967.

On January 1, 1970, the fim of Williams, Robertson 4 Sackett merged

and became Edmunds, Williams, Robertson, Sackett, Baldwin & Graves,

of which I was a partner until April IS, 1974, when X became a judge

for the 24th Judicial Circuit.

1. What has been the general character of your law practice,

dividing it into period with dates if its character haa

changed over the years?

The majority of my practice involved tort litigation in which I

primarily represented defendants. During the last three years of my

practice, I was also involved in employment discrimination cases and

frequently consulted with business clients regarding their

compliance with federal employment law. I practiced before both

state and federal courts.

On April IS, 1974, X became a judge for the 24th Judicial Circuit of

Virginia. I was elected Chief Judge by the other judges in the

circuit on July 1, 1983 and served in that capacity until my

•election to the Court of Appeals of Virginia on January 1, 1985.

On Nay 1, 1993, I was elected by the other members of the court to

serve as Chief Judge, and I continue to serve in that capacity.

2. Describe your typical former clients, and mention the areas,

if any, in which you have specialised.

A typical client was the insured of a liability insurance company.

With my partners, Z regularly represented State Farm Mutual

Automobile Insurance Company, Allstate Insurance Company, The

Travelers Insurance Company, Luabermens Mutual Insurance Company,

and Royal Globe Insurance Company. We also represented the Southern

Railway Company, the C & O Railroad Company, and the Lynchburg

Transit Company. Prom 1962 to 1963, before my military service, I

defended mostly property damage claims, did some real estate work,

and defended indigent persons charged with crimes.

Proa 1965 to 1969, I specialized in representing defendants im

personal injury litigation. After 1970, in addition to the other

Insurance companies, I represented several major employers in labor

matters, principally discrimination claims. Among my clients were

Babcock K Wilcox Company, General Electric Company, Gould National

Battery Company, Limitorque Corporation, and the City of Lynchburg.

1. Did you appear in court frequently, occasionally, or not at

all7 If the frequency of your appearances in court veried,

describe each such variance, giving dates.

Tea. Prom the beginning of my practice I appeared in court

frequently.

3. What percentage of these appearances was iat

Voraaa K. Noon
825

X5

<«) Padsral court*: ApproxlBAtaly twenty percent of mj tlae

in court was in federal courts, but less than twenty percent

of ay cases ware federal cases.

(b) State courts of record: Seventy-five percent.

<c) Other courts: Five percent.

3. What percentage of your litigation wasi

(a) civil: Ninety percent.

{b} erininal: Five percent.

<c) other: Five percent.

4. State the nuaber of cases in courts of record you tried to

verdict or judgment (rather than settled), indicating whether

you were sole counsel, chief counsel, or associate counsel.

I tried approximately two hundred cases to verdict or judgment. In

seventy-five percent of them, Z was sole counsel. In fifteen

percent, I was chief counsel, and in ten percent, I was associate

counsel.

5. Hhat percentage of these trials werei

(a) jury: Sixty percent.

(b) non-jnry: Forty percent.

It. Litigationi 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

nmmm of the judge of judges before whom the case was litigated; and (c)

^e individual name, addresses, and telephone numbers of co-counsel and of

principal counsel for each of the other parties.

X. Cox V. Babcock k Wilcox Co.. 471 F.2d 13 (4th Cir. 1972).

Suaaary of substance of case:

Calvin A. Cox brought a class action against Babcock t Wilcox

Company, claiming that be personally had been discriminated against

on accotint of his race in both hia hiring and firing. Ho also

claimed that he was a proper person to represent the class

consisting of others similarly discriminated against.

Significance of caset

•orman K. Hooa
16

Th« caa«, Although not uniquely, staads for th« propositioa that

although th«ra aay b« an ovarall pattam of discruunatioa, all

parsona within tha discriainatad class ara not aotitlad to racorary

unlass tbar wara parsonally discriainatad against. It Mas tha first

significant aaploymant discrimination casa in tha araa.

rartr Z raprasantadi

tabeock & Wilcox Coapaay.

•atnra of ay participation:

On bahalf of Babcock t Wilcox I conductad all of tha discovary,

praparad for trial, and triad tha casa in bifurcated proceadinga.

Z was assisted by ftabcock & wilcox's corporate counsel in discovery

and trial preparationa.

Trial Decision:

An advisory jury found in favor of Babcock fi Wilcox. The trial

court entered judgaeot for the defendant which was appaalad to thm

Fourth Circuit.

Appellate Decision:

The Fourth Circuit affirmed the trial court but provided that some

person, other than Cox, appropriate to represent the class could

intervene to represent tha class.

a) Dates of Trial: November 9, 1971 - November 10, 1971;

December 13, 1971 - December 14, 1971.

b) Kama of Court and Judge:

United States District Court for the Western District of Virginia,

Lynchburg Division, before tha Honorable B. Emory Hidenar.

c) 1) Names, address, snd phone number of co-counsel:

John R. Lewis

Assistant General Counsel, Babcock & Wilcox Tachnologiaa, Inc.

Route 736, Mt. Athos

Lynchburg, Virginia 24S06

(t04) 522-5021

2) Hamas, address, and phone number of counaal for other partlms:

Trial:

Charles M.L. Mangum

3058 Oarfield Street

Lynchburg, Virginia 24S0L

(604) 845-3431

Henry B. Binton

RD2360

Morchaster, Vermont 05683

(802) 828-3168

Horman K. Noon
Sfl

17

Nilliaa L. Koblnion

Saaa, DnlTanity of Diitrict of Coluabia

4250 Connacticut Avanua

4tk Floor, Maablngton D.C. 2000t •

(203) 274-7400

>• andaraon r. Dannr. ]«5 P. Supp. 1254 (M.O. Va. 1*73).

•uHaary of aubataaca of caaai

Dannr diraetad tba plaintiffa, Mr*. Kndaraon and Mra. long, to

vaeata ttaalr apartaanti. Both wara aarvad oith ualavful datalnar

•arranta.

Tha ault challangad tha conatltutionally of Virginia'a avietiaa

procaadinga.

Slgnifieanca of caaai

Virginia arietlon proeaduraa hald to ba eonatltutional.

Party I rapraaantadt

L. John Danny.

•atiura of ay participation!

I aarvad aa chlaf countal and handlad all of tha fadaral court

procaadinga.

Xrial Daciaion:

Judgaant for tha dafandant.

Appallata Daciaion:

tha caaa Maa not appaalad.

a) Data of Trial: August 7, 1973.

b) Haaa of Court and Judgat

Tha caaa t>aa triad In tha Unltad stataa District Court,

Charlottaavilla Dlvisloa, bafora tha Honorabla Jaaas C. Turk.

c) 1) Naaas, addraas, and phona nuabars of co*counaal:

John A. Dasio

414 •. Jaffaraon Straat

Charlottaavilla, Virginia 22902

<804) 2»S-413«

Daalo handlad oollataral stata court procaadinga.

2) Maaaa, addraaa, and phona nuabar of counial for othar partlaai

•oraaa K. Noon
828

IS

Uammia B. TMMI

•>ita JOO, too Osmrt Sqiur*

Ck*rloCt««Tilla, Tlrglnxa 22M3-024I

(M4) »77-33*0

S. Biwll T. Ka Wiaual. Bo. T1-C-4S-L (•••. «a. aapt. 11, 1*71).

••^•ary of •obstaac* of ca««:

•oMOll, • fnaat ia Saa Hlgnal'a car, aaataiaad a kaad ialary akas

•aa HifiMl loat eoo^rol of bis car aad it ovartaraad.

•Igaifleaaea of casa:

n« District Coart aphald tha coastitatioaalitr of Tirjiaia'a frosa

aagligaaea statnta applicabla to gaasts Mho saad tkair koat drlTara.

Par^f t raprosaatad:

Patar Fraak (aa Mignal.

•atara of ay partielpatioat

X raprasaatad tka dafaadaat duriag discoTary, krlafiag af tte

eeaatitatioaal issaa, aad trial.

Crtal Oacisioai

Jmrj vardlet for tka dafaadaat.

•ppoUata Baeialoai

Ika caaa aa* aot appaalad.

a) Bata of Trial i

•aptaabar 17, 1«T1

k) Baaa of Court aad Judgai

V. 1. District Court, Naatara District of Vir«iaiJi, Vrutttbmxf

Di*laioa, bafora tha Boaorabla Jaaas C. Xurk.

e) 1) Maaas, sddrass, aad pboaa auabar of co-coaaaalt

2) Baaas, addross, aad phoaa aartbar of eoaaaal for othar partfi

•arl C. Dudlar, Jr.

Williaas, Coaaollf t Callfaae

1000 Eill Iwildia*

Naakiagtoa, D.C. 2000*

•DM at OaiTorsitr of Virgiaia School of La«
829

i»

SaO Haisl* «oad

Clurlottasvilla, VA 22903

(104) 924-8813

•• Mrt- Oile» County Kitch«n. Igc. v. lt«tion»l Bi.cuit Co.. Mo. 68-C386-L (M.D. V«. Apr. 7, 1971).

Muammrj of substaac* of case:

Mrs. Olios County Kitchon, Inc., « processor of salads and sandwich

sprsads, purchasad fron National Biscuit Coapany pinantos whlcb war*

usod In production of pinanto chaasa. Aftar custoaars coaplainad of

glass In thair piaanto chaasa, Mrs. Oilas racallad and destroyed all

of the plnanto cheese In stock and on the shelves of its

distributors. The suit alleged that the glass was in the plaentos

and thus Mabisco breached its warranty and was negligent in tb*

processing of Its piaentos.

Slgnlfieanca of easet

The questions in the case %«ere whether the glass caae froa Nabisee

piaentos, whether Nabisco was negligent in its processing, the

reasonableness of Mrs. Giles in destroying all of the piaentos in

stock and on the store shelves, and the aeaaure of daaages.

Party I represented:

Matlonal Biscuit Coapany.

Mature of ay participation:

I conducted aost of the discovery and shared in the trial with Henry

M. Sackett, Jr.

Trial Daciaioa:

Share was a verdict for the plaintiff in the sua of $17,27T.<0.

appallata Decision:

The case waa not appealed.

a) Data of Trial t

JIVril t-1, 1971.

b) aaaa of Court and Judge:

Oalted States District Court for the Western District of Vlrgiata,

Lyachburg Division, before the Honorable B. Baory Widener, Jr.

e) 1) Maae, address, and phone nuaber of co-counselt

Hanry M. lackett, Jr. (deceased).

2) Maae, address, and phone nuaber of counsel for other parties!

S.J. Thoapson, Jr. (deceased).

•oraan K. Mooa
830

30

S. Ooifd STvlceB AutOBoblle Asa'n v. Bpoenon. Ho. «a-C-27-L (W.D.

V*. JuD« 2, 1969) .

Iii—ifT of luhttanca of castti

In a daclaratory jud9a*nt action, USAA sought a datamlnation of

Mhatbar it aust provide covarag* to Robart H. Bpparson, Jr. ^ a

fora«r insurad, who was inaligibla to ba raxnsurad but bad

raprasantad biasalf to a USAA agant as being an insured and tbua

obtained a confirmation of insurance coverage. When USAA discovered

that Epperson was not entitled to be reinsured, its agent by

telephone notified bia that his coverage was not in force. Mitbln

twenty-four hours, Epperson was involved in an autoaobila accident

seriously injuring a number of persons. Epperson denied that ha was

notified that he had no coverage.

•igniflcance of casei

The case established that an insurer is not required to provide

coverage to one who obtained coverage knowing that he was not

entitled to be insured, where the insurer, upon discovery of its

mistake, forthwith notified the person that he was not covered.

Party Z representedi

United Service Autoaoblle Assoeiatioa.

Mature of ay participation!

I was sole counsel in the case. I conducted the discovery, daposed

the witnesses, helped negotiate settlement of the collateral state

court personal injury cases, and represented USAA at the final

hearing.

Trial Decision:

There was a determination that USAA did not provide coveragm to

Robert H. Epperson, Jr.

J^pellata Decisioni

The case was not appealed.

a) Date of Triali

June 2, 19«9.

b) Haae of Court and Judgei

united States District Court for the Western District of Virginia,

Lynchburg Division. (Final bearing of case was in the United States

District Court at Richmond, Virginia, before the Bonorable John

HacKensie).

c) 1) Namm, address, and phone nvmbmr of co-counseli

None.

•orman K. Moon
881

21

2) H*mm, sddrass, and pbon* nuabar of couasal for othor partlosi

For Rob«rt H. Epparson, Jr.i

raul H. Coffay, Ztl

ccx Titla

1134 Thomas Jaffarsoo Itoad

rorast, Virginia 24551

(804) 525-0041

For Virginia Farm Buraau Xaauraaca Companyi

8.J. Thompson, Jr. (dacaasad)

For Aatna Casualty C Suraty Company and Bdward Bouston Noormi

Nilliam Rosanbargar, Jr.

1915 Quarry Road

Lynchburg, Virginia 24503

(804) 384-3681

For tba Injurad Fartiasi

For Clyda Masbington Pinchaa, Sr., Admlaiatrator, Fbllllp

Kugana Karr, and Oaorga Wastlay Karr:

W.H. Ovarbay, Jr.

Courtbousa Squara

•ustburg, Virginia 24588

(804) 332-5155

For Carlton G. Naador, Administrator, Branda X. Naador, and

X»inda Fay Maador:

Thosuis L. Phillips

Xrongata At Spring Bill

Kustburg, Virginia 24588

(804) 821-5022

X*acay B. Putnay

305 Otay Straat

Badford, Virginia 24523

(540) 586-0080

Batata of John 0. Bamilton. Jr. •. Staplaton. Bo. 70-C-45-L (W.D,

Va. Apr. 13, 1971).

ry of substanca of casai

This mas a wrongful daath action arising out of an autoaobila

accidont. John O. Bamilton, Jr. %fas a rasidant of Patrick Banry

Boys Plantation and had substantially baan abandonad by his mothar

who would hava banafitad from a plaintiff's rordict.

Bignificanco of easa:

Tlia quastions wara whathar staplaton was driving, wbathar ha was

guilty of groaa nagliganca, and whathar any part of a racovary
22

should ba awarded to his aotbar.

Party Z raprasantadi

Oaor^a Harran Staplaton (th« drivar).

•atura of ay participationt

Z Mas sole counsel for tbo defendant. Z conducted the discovery and

tried the case.

Trial Decision:

There was a verdict for the plaintiff in the sua of $15,500.

Appellate Decision:

Xh* ease was not appealed.

a) Date of Trial:

April 12, 1971.

b) Name of Court and Judgei

United States District Court for the Western District of Virginia,

Lynchburg Division, before the Honorable Ted Dalton (deceased).

c) 1) Naae, address, and phone nuaber of co-counsel:

Nona.

2) Naae, address, and phone nuaber of counael for other partji

W.a. Overbey, Jr. j.

Courthouse Square

Sustburg, Virginia 24588

<S04) 332-5155

7. Travelers Indeanitv Co. v. Hichioan Mutual Liability Co.. 359 P.

Supp. 606 (W.D. Vs. 1966).

Ill—ii j of substance of case:

She issue was whether Michigan Mutual, which had issued a float

policy to a Virginia insurer specifically covering an autoaobila

driven by the Virginia insurer's eaployee, was subject to Virginia's

uninsured aotorist provisions.

•igaificaace of case;

It established that a fleet lasurar aust provida prlaary uninsurad

aotorist coverage for the driver of its insured vehicles and that

the insurer of the driver's personal vehicle only aust provida

excess coverage in accordance with the teras of the policy.

Party Z rapraaaatad:

Moraan K. Noon
23

Travalars Zodaanity Coapmay.

•ator* of ay participation:

Z •ololr r«pr«««ntad Tb* Travalars Indaanlty Coapany, conducted tba

diseovary, filad a aaaorandua of law, triad, and arguad tba casa.

Trial Oaciaion:

Dociaion in favor of Travalars Indaanity Coapany and Pidality and

Caaualty Coapany of Haw York.

Afpallata Daciaioni

Iba caaa was not appaalad.

a) Data of Trial) July 29, 19«6.

b) Maaa of Court and Judga:

Onitad Stata* District Court for tha Hastam District of Virginia,

Lyachburg Division, bafora tha Bonorabla A.O. Barksdala (dacoaaad).

c) 1) Naaas, addrass, and phona nuabar of co-counsal:

2) Maaas, addrass, and phona nusUBar of coansal for othar partiasi

For Travelers Indaanity Coapany:

S.J. Thoapson, Jr. dacassad

Por Nichigan Mutual Liability Coapany:

a.M. Duling

•00 B. Marshall Street

Sicbaond, Virginia 23219

(•04) 780-6511

Por Kobart F. Z.«wbome, Clarence Qeorge, Jr., aad State Farm Natval

Antoaobile Insurance Coapany:

Shuler A. Kiser (deceased)

Nilliaa T. Robey, HI

131 M. 21st Street

Baeaa Vista, Virginia 24416

(540) 261-2S7S

S. Snn Oil Co. v. Lawrence. 213 Va. 596, 194 S.B.2d CS7 (1973).

•oaaary of substance of case;

Dale Lynn I.awrence, an aaployee of an independent service station

dealer that sold Sua Oil products, sustained an injury during the

course of his eaployaent. Bis direct ai^loyer had no worker's

coapensation insurance. Lawrence filed a claia in the Industrial

Noraan E. Noon
834

24

ission of Virginia (now Worker's Coapaosation ^Mmisaion)

claiming that ha was a statutory aaployaa of Sun Oil bacausa Sun Oil

oparatad four sarvica station* in Virginia tthich had as^loyaaa doing

tba saaa typa of work that ba did.

Significanca of caaat

Distributorsf who also had ainiaal rataillng oparationa, trara hald

not tbaraby to ba a statutory anployar liabla for workar's

coapansation claisis froa tba aaployaas of all tha indap^adaat

daalars who purchased and sold tha distributors' products.

Party I raprasantad:

Sun Oil Coapany.

•atura of ay participation:

Z raprasantad Sun Oil befora tha Deputy Coaaissionar« and latar

bafora tha Pull Coaaission. I appealed tha case to tha Supraaa

Court, wrote tba brief, and argued tba case.

Trial Daciaion:

The Industrial Coaaission found in favor of Lawrence and assassad

attorney's fees against Sun Oil for defending tba procaadings

"without reasonable grounds."

Appellate Dacisioni

The Supreae Court of Virginia reversed the decision aad diaaissad

the claia.

a) Data of Triali March 5. 1973.

b) Haaa of Court and Judge:

The Industrial Coaaission of Virginia, by the Bonorable H,Z Bvaaa,

Coaaiaaioner, and later by the Pull Industrial Coaaission.

Tha case was appealed to the Supreae Court of Virginia.

o) 1) Names, address, and phone ouaber of co-counsel:

2) llamas, address, and phone number of counsel for otbar partlaai

For tawrence:

Kobart L. Dolbeare

700 Sast Main Street

Kicbmond, Virginia 23319

<804) 780-2900

FDr tba employer)

Naraball Prost (deceased)

•ormaa K. Mooa
29

9. TonnaT T. Appalachian Powr Co.. 214 Va. (63, 303 8.S.3d •«(

(1»74).

•maary of rabstanca of casoi

Thoro %*ara four plaintiff• ia tlia caaa, all Insarod hj ttato Fara

Mutual Atttoaobilo lasuraaco Coapany, Mhoao autoaobilaa at diffar«a%

tiaas strucli and daaagad woodan alactric liaa polas ownod by

Appalachian Powar Coapany. Appalachian Powar Coapany contandad that

ita polaa did not dapraciata, and tharafora, no dapraciation should

bo rocofniiad in ita racovary for daaagaa. Ha trara abla to

daaonstrata tbat tha poXas did hava a cartain Ufa axpactaocy that

J^^alachiaa POMOT Coapany had adaittad to uador othor circuaatancoa.

Sigaificaaeo of caaot

Xha caaa aatabliahad that Virginia trial courta ahould rocogaiaa

that poMor lina polaa dapraciata. Tha caaa aot a foraula for

dotarminiag dapraciation and otbar daaagaa to alactric powor and

talaphona coapaniaa whosa proparty was daaagad aa tha raault of

nagliganca.

Fnrty X ropraaantad:

All four dafandants.

•atnxa of ay participation:

X had tha caaaa, which wrn panding in varioua circuit courts,

coasolidatad and triad in tha Circuit Court for tha City of

X^r^ohburg. I was tha sola attomay in tha caaa. Aftar a vardict

for Appalachian, I appoalad tha caaa to tha Supraaa Court, wrota tha

briaf for tha appallants, and arguad tha caaa bafora tha Supraaa

Court.

Trial Dociaioni

Xhora was a vardict for tha plaintiffs.

J^pallata Dociaioni

Sho Supraaa Court ravaraad tha trial court and raaandod for a now

trial.

a) Data of Trial i

Docoabar 13, 1973.

b) Waaa of Court and Judgai

Circuit Court for tha City of Lyncbburg, bafora tha Sonorabla

Williaa W. Swoanay.

e) 1) Haaas, Addraas, and Phono No of Co-Counsali

2) Haaas, addross, and phono nuabor of counsal for othar partiosi

•oraan K. Moon
836

26

For Appalaehlxn PoM«r Coapaafi

Mllliaa Kommnhmrqmtt Jr.

Ills Quarry Road

Lrnchburg, Virginia 24S03

(S0«> IS«-3<S1

10. WoodT Y. COMonwalth. 21« Va. 2»(, 1«> >.B.3d S2> <1»11).

•uaaary of aubatanc* of caaai

Woody oaa chargad Kith burglary aa aa acosaaory bafera tha tae«.

Slgaiflcaaca of caaat

Xt aatabliahad that a juvanila wltnasa la aubjact to tha aaaa acopa

of croaa-axaaination aa any othar Mitnaaa aad that pnblieatioa

prohlbitiona ralating to juvaaila racorda aay not ovarrida tha

cooatitutioaal right to croaa-axaaination.

Party Z rapraaantadi

Charlaa P. Woody.

aatara of ay partlcipatioat

Z Maa aola counaal in tha eaaa. I Inraatigatad aad triad it aad

appaalad it to tha Supraaa Court of Virginia.

Trial Oaciaioat

Thara tna a *ardict for tha rnaanniiaalth.

•ppallata Daciaioai

Rararaad aad raaaodad.

a) Dataa af Criaii

•aptaatiar •, 1«72.

b) Maaa of Court aad Judgai

Circuit Court for tha City of Lynehburg, bafora tha loaorabla O.

•ayaoad Cuadif f (dacaaaad) .

e) 1) Haaaa, addraaa, and phona nuabar of co-couaaolt

2) Haaaa, addraaa, and phona nuabar of couaaaX for othar partiaai

Xriali

•ayataa Jaatar, Jr. (dacaaaad)

Appaali
887

27

UaMOod T. Wall!, Jr.

ftMlataat Attoraay Oaoaral

101 Borth eighth Straat

•Ichaond, Virginia 2321>

(•04) 78«-4t«3

••eauaa tha Bajority of tha eaaa* ara aora than flva yaara old, hara ara

tba aaaaa, addrasaaa and pboaa numbars for tHolva aaabari of tha lagal

rii—unity <4lo h»v» bad racant contact with aai

John K. Alford

330* Atharholt Koad

Post Offica Box 6360

Lyschburg, Virginia 24505

(•04) 844-2731

Mary V. Bamay

715 Court Straat

Poat Offica Box 73*

Lyaehburg, Virginia 24505

(104) S2S-0411

•dHia >. Bumatta, Jr.

•ulta 400, (00 Main Straat

Poat Offica Box «St

Lyaehburg, Virginia 24505

(a04) (46-9000

Judga Saja W. Colaaan, III

10* North Sth Straat

•IclMond, Virginia 23215-2305

(•04) 371-245*

John B. Palcona

•01 Main Straat

Poat Offica Box *57

Lyaehburg, Virginia 24505

(•04) 52^-105«

JMdga Jehaaaa L. Pitxpatrick

•aita 200, 10201 Main Straat

Pairfax, Virginia 22030-2403

(703) 3S»-115S

h. Oa*id Baitkins

Oourthousa Squara

Post Offica Box 3«

•astbarg, Virginia 245««

(•04) 332-5195

Juatica Barbara Milaao Kaanan

•iU.ta 501, 2101 Parks kva.

Virginia Baaeh, Virginia 33451

(757) 4*1-5472

tealla •. Langhoma

3700 Langhoma Road

Poat Offica Box 3453
28

Lysehburg, Vlrgini* 24sai

(•04) S2(-15«0

Daaial J. Maador, Profaimor of t^ii Caarltu*

OnlTarslty of Virginia School of I^M

5tO lUsala Road

CharlsttaaTllla, Virgiaia 22*03-1789

(•04) 924-3947

Kmt Sinclair

Sulta 104, 192S Krlington Blvd.

roat Offica Box S104

Ctaarlottaavilla, Virginia 23903

(•04) 924-46S9

••aawth S tfhita

Salta 400, SOO Main Straat

roat Offica Boa 9S<

Lyttchburg, Virginia 24505

(•04) 144-9000

1*. Laaal JtctiTitiaa; Daacrlba tha aoat aignifleant lagal activltlaa yon hava

pnrauod. Including algnificant litigation Hhlcb did not prograaa to trial

or lagal aattara that did not involra litigation. Daacriba tha natura of

your participation in this quastion, plaaaa oait any inforaation protactad

by tha attomay-cliant privllaga (unlaas privilaga has baan waivad) .

•oyd-^lravaa Confaranca, Staaring Coaaittaai 1986 - praaant.

Xha Boyd Oravaa Confaranca atudias issuaa ralating to Virginia civil

procadura. It aakas racoaaandations to tha Oanaral Aasaably for atatutory

changaa and aakaa racoB«andations to tha Virginia Supraaa Court for rula

changaa that would affact civil procadura.

Judicial Confaranca, Judicial Mainlatration Coaaittaa: Chairman, 19S5-t7.

Xha Judicial Maioiatration Coaaittaa atudiea iaauaa affacting tha

adainlatration of juatica in tha Coaaon>iaalth of Virginia. It atudiaa

lagialation ponding bafora tha Oanaral Aaaanbly that Mould affact tha

adainlatration of juatica and racoaaands to tha Judicial Confaranca

lAathar tha Confaranca ahould aak tha Judicial Council to aupport or

oppoaa tha lagialation.

Modal Jury Inatructiona Coaaittaa; Chairman, 1983-8C; Maabar, 1981-tS.

Tha Nodal Jury Inatruction Coaaittaa draftad aodel jury inatructiona to ba

uaad in Virginia criainal and civil casaa. Tha coaaittaa la a atanding

coaaittaa that raviaws statutory changaa and judicial dacisiona that

raquira aaandaant of tha inatructiona. Tha coaaittaa praparaa annual

aupplaaanta raflacting changaa in tha instructions.

Coaaittaa to Draft tha Rulas for tha Court of Appaala of Virginia: 1*S3-

•4.

Xha coaaittaa draftad propoaad rulaa of court that vara approvad by tha

Judicial Council and tha Supraaa Court of Virginia to ba uaad in tha Court

of kppaala of Virginia Mhich startad oparation January 1, 1985.

Hovmaa X. Mooa
839

29

Virginia Stata Bar: 1962 - prasant.

nia Virginia Stato Bar is the governing body of tha lagal profassion in

Virginia. Every practicing latiryers is required to belong and judges are

ax officio aembers. The Virginia State Bar conducts continuing legal

education programs. I have lectured or have been a panel member at its

programs.

Bthica Committee, Sixth District: Chairman, 1972-74; MeaJ»er, 1971-74.

Tha Cmsmittee investigates charges of professional misconduct and made

recommend ationa to the Supreme Court of Virginia concerning whether

diaciplinary action should be taken against accused lawyers.

Virginia Bar Association: 1968 - present.

The Virginia Bar Association is a voluntary organixation of Virginia

lawyers and judges who serve as ex officio members. The Bar Association

conducts continuing legal education programs. I have lectured or have

been a panel member at its programs.

Toung Lawyers Saction, Southsida Area: Vica-Preaident, 1968-69; Mmabar

1963-73.

Tha Toung LA%«yars Section prepared and distributed handbooks for young

lawyara and presented programs in the public schools. The committee also

initiated a program for presenting Liberty Bell Awards to non-lawyara who

had made a substantial contribution to the respect for and maintenance of

t^he rule of law. During my tenure as Piedmont Regional Vica-Preaidant, I

directed the Liberty Bell Award program and the high school educational

programs.

Hormaa K. Moon
840

30

XX. FXMANCIAL DATA AND COMTLICT OP INTERSST (PUBLIC)

U,st sottrc«s« maounts and dataa of all anticipatad racaipts froa dafarrad

incoaa arraogaaants, stock, options, uncoaplatad contracts and otbar

futura banafita Mhich you axpact to dariva froa pravious businasa

ralatlonships, cliants, or custoaars. Plaasa dascriba tha arrangaaanta

you hava aada to ba coapansatad in tha futura for any financial or

buainass iatarast.

X haTa a 401(k) Plan, its Talua baing 9100,826. I aa aligibla to

tfitbdraw tha aaount without penalty. Tha sourca of tha funds X

contributad to this 401 (K) was froa ay aaployaant with tha law fira of

Bdaunds, Williaas, Robartson, Sackatt, Baldwin t Oravas, which aaployaant

taraiaatad April 1S« 1974. Tha Kaogh Plan which tha law fira had was

invaatad with Cantral Pidality Bank. I rollad ovar into a 401(K) with

tinitad Sarvicas Autoaobila Association, Comarstona Stratagy Fund.

X hava a vastad intarast in tha Virginia Supplaaantal Ratiraaant

Systaa by virtua of ay aaployaant as a judga in tha Stata of Virginia

Judiciary Systaa. Tha vastad aaount in tha plan today is $ 9119,114.

Should X ratira froa tha Virginia Judiciary Systaa, X aa aligibla to

racaiva banafits of up to savanty-fiva parcant of tha avaraga of ay las^

thraa yaara salary which would ba 81,936 annually.

Bxplaia how you will rasolva any potantial conflict of Intarast, including

tha prooadura you will follow in dataraining thasa araa of concam.

Xdantify tha catagorias of litigation and financial arrangaaants that ara

likaly to prasant potantial conflicts-of-intarast during your initial

sarrica in tha position to which you havo baan noainatad.

X vamld follow tha Coda of Judicial Conduct. If X parcaiva any intarast*

raal or apparant, in any aattar bafora tha court, X will racusa aysalf.

Tha only potantial conflict I can iaagina occurring during ay initial

sarrica wc»uld coaa froa an appellant filing a writ of habeas corpus in tha

district court who previously had an appeal reviewed by tha Court of

Appaals when I was a judge. I would recusa aysalf fora consideration of

tha writ of habeas corpus.

Do you have any plans, coaaitaants, or agraaaants to pursue outaida

aaployaant, with or without coapansation, during your sanrica aith tlM

court? If so, explain.

X aa coaaittad to teach trial advocacy at the University of Virginia taw

School at tha Pall 1997 session and Spring 1998 session. Coapansation Is

at $4,000 for each session. Should I be appointed and confiraad for this

positionf and there are no legal prohibitions or conflicta with mcf

judicial duties, I would anticipate keeping ay coaaitswnt.

XJ.at Bourcaa and aaounts of all incoaa racaivad during that calaodar yaar

preceding your noaination and for tha currant calendar yaar, including all

salariea, fees, dividends, interest, gifts, rants, royaltiaa, pataata,

hoDoraria, and other itaas exceeding $500.00 or aore. <If you prefer to

do ao, copiaa of tha financial disclosure report required by tha Bthica la

OoTaniaaat Act of 1978, aay ba substituted hare.)

Maasa saa Attachaent B ('Financial Discloaura Report').

Mo rasa X. Nooa
841

31

Pl*«s« coBplata tlw attachad financial n^t wortb atataaant in datail (Add

schadolaa aa callad for).

Plaaaa aaa AttachsMut C ("Financial Statamantt Mat Worth")

•ava 70U avar hald a poaition or playad a rola in a political c«Bpai9n7

If ao, plaaaa idantify the particulars of tba caapaign, including tha

candidata* datas of the canpaign^ your title and responsibilitiee.

FroB 1965 to 1974, I Mas involved in alaost every political election in

Ljnchburg, frequently as a campaign nanager for one of the candidates.

For Bost of that tine, I was a member of the City Democratic Comaittaa.

X managed both Lynchburg senatorial campaigns for William B. Spong, Jr.,

in 1966 and 1972. In 1966, I served as Co-Chairman of tha Byrd-Spong

ticket. Z managed William Battle's 1969 Lynchburg campaign for Oovamor,

as well as Andrew Miller's 1973 campaign for Attorney General.

Noraan K. Noon
842

32

QUESTIONNAIRE rOR JUDICIM. WOMIIfEES

III. OKNERAI. (PUBLIC)

An athical consicUration undvr Canon 2 of th« A»*rlc«a Bar Aa«oci«tioa*•

Cod* of Profssaional Raiponsibility calli for '•••ry lawyar, r*9ardl*«a of

profaaaional proainanca or profassioaal workload, to find SOB* tiaa to

participat* in aarving tba disadvaatagad." Dascrlba what you hav* doo* to

fulfill thasa raaponsibilitias, listing spacific ioataocaa and th* aaouat

of tiaa daTotad to aach.

X coaply with th* canona of judicial athics which prohibit any anch

participation or solicitation.

Tha Anarican Bar Association's CosuMntary to its Coda of Judicial Conduct

Btatos that it is inappropriata for a judga to hold aaabarship in any

organisation that Invidiously discriainatas on tha basis of raca, sax or

raligioD. Do you currantly baloag, or bava you balongad to any

organisation which discriminatas — through cithar formal nasbarship

raquiraaanta or tha practical iaplaaantation of •*nb*rship policios? If

no, list, with datas of aaabttrship. What you hava dona to try to chang*

thasa policiaa7

X do not own •anbarship in any organisation that discriainatas on tha

baaic of raca, sax, or roligion. I balongad to fkwnsboro County Club froa

196t to 199C. I baliava that tha club discrininatad into tha 1970s. In

1984 following an incldant calling into quastion tha Club's policy, a

foraal r*solution of non-discriaination was adoptad. To th* b*st of ay

knowlodga a claar policy of noa-discriaination has *xist*d sine* th*n.

During th* *ntir* tiaa I was a aeabar of tha club, I advocatad to a*ab*rs

of tha board that tha club pursu* a policy of non-discriaination. I was

oaa of tha parsons who sponsorad tha first African-Aaarican for aaabarahip

and was instruaantal in parsuading hia to join.

Is thara a salactlon coaaission in your jurisdiction to

caadidatas for noaination to tha fadaral courts? If so, did it racoaaand

your noaination? Plaas* d*scrib* your axp*ri*nc* in th* antira judicial

••laction procass, froa b*ginning to and (including th* circuastancas

which lad to your noaination and intarvlaws in which you participatad) .

tanator Kobb appointad a coaaission to raviaw noainations. Zt is ay

undarstanding that tha coaaission racoaaandad aa. Whan Judga Jackson Kisar

announcad that ha was taking sanior status, I contactad savaral aaabars of

tha bar and askad thaa to sound out oth*rs a*ab*rs of th* bar to d*t*rmin*

if ay candidacy iMuld ba farorably lookad upon by tha lawyars who

practicad bafora aa as a trial judga bafora I want on tha Court of

Appoals. Thay raportad that tha bar was ganarally antbusiastic. Tbasa

bar aaabars also approacbad foraar Stata Sanator Elliott Schawal and

foraar Congrasaaan Watkins N. Abbitt to dataxaina if thay could support ay

candidacy. Whan thay raportad thay could, I dacidad to spply for tha

position. As a candldata, I hava also baan raviawad by tha D«partB*at of

Jnstica, th* P*d*ral Buraau of Invastigations, and tha Aaarican Bar

Association.

Has anyona involvad in th* procass of salacting you as a judicial

discussad with you any spacific casa, lagal issua or quastion la a aanaar
848

33

that could reasonably b« intarpr*t*d as asking how you would rula on such

eaao, isaua, or quostiona7 If so, plaasa explain fully.

Please discuss your Tiews on the following criticisa involving "judicial

activisa.-

The role of the Federal Judiciary within the Federal governnent, and

within society generally, has becoae the subject of increasing controversy

in recent years. It has become the target of both popular and academic

criticisa that alleges that the judicial branch has usurped aany of the

prerogatives of other branches and levels of govemaent.

of the characteristics of this 'judicial activisa* have been said to

include;

a. A tendency by the judiciary toward problea-solution rather

than grievance-resolution;

b. A tendency by the judiciary to eaploy 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, affirsMtive

duties upon governments and society;

d. A tendency by the judiciary toward loosening jurisdictional

requirements such as standing and ripeness; and

e. A tendency by the judiciary to impose itself upon other

institutions in the manner of an administrator with continuing

oversight responsibilities.

Judicial activism is an sttack upon the prerogatives of the

legislative and executive branches. Courts should grant full legal relief

to litigants, but when courts become unduly creative in their reaedies

they upset the balance of power between the branches of the government.

Purtheraore, the law is always best created by the legislative branch.

The legislature has the ability to Investigate and develop laws which are

aost compatible with society's needs and beliefs. Ideally, the law ahould

be so clear that if the parties can agree upon the facts, then a good

lawyer, with reasonable certainty, can predict the outcoae of a dispute

without going to trial. The law, as enacted by the legislature, carries

with it a presuaption of regularity. When a judge fails to follow

precedent or unduly expands the law, he not only does an injustice to one

iaaediate party, but encourages litigation that Mould not have been

brought had the judge coaplied with stare decisis.
844

39

ATTACHMENT B

Financial Disclosure Report

n. FINANCIAL DATA AND CONFLICT OF

INTEREST (PUBLIC)

Question 4.
845

iilNANCIAL DISCLOSURE REPORT

NominiUon Report lCl-194. f^wm^tr JO. /Mf

(3 V.S.C Af^.4.St. lOI-im

\ Moon, NoTVAD K. Mastcrn District of Virginia

S.CMi«rRipM«

10/03/1997

D.a. Diat. court Ju49« llonin**

S. luvMt TVp* lEkMk m*)

/ /

01/01/1996

H

/ /

Po« Oftlc* lox 6S7

t-rtuMoarg, Virginia 24S0S

• rosmoN

i«)»«(ii.iii.«iii I >[i..)

» ' Chl«t J<K9» court of Appuls ot Virginia

NAME OF ORGANIZATION / EmiTV

Unlvoralty of Virginia School of Law

dm^m,^l*-n^t>

rAKTIES AND TERMS

[ [wlW* (M.. I III I II

Virginia (upplaaantal Katlfnt fyataa (no oontrol)

m. NOTHNVBIMENTINCOMB

DATE rABTIES AND TERMS GROSS INCOME

I !"«»w. UnaMiiiili III

1 1»»7 court of Afvaala ot Virginia, Mlary nt> 1 (S,4S(.4<

j 1»»7 OVA Mhool of Lax, Trial Ad Laeturar, Hlary m i t.lll.lC

, im« Court of knaala of Virginia, aalary 1 112,110.M

4 !•*• OVA Idteol of Lav, Trial Ad Laeturar, salary i a.ooo.oc

i 199S Court of Appaala of Virginia, salary 1 107,151.OC
MB

nrUNCIAL DBCLOSUKE •ETOKT Moon, lonun K. io/o]/m7

IV. SdMBimSEMENTS and GIFTS

D'

• i>iw M. ii^piiBiiij. rii» Tr TT i/iiwi i<i IIj

SOURCE DescumaN

ME ffh-dli |r"'li"*»-»«i»«'^^

V. OTHER GIFTS

II III ill *<i*in>—irfJi^iiiiiKiM*—.- wtayfgfciMiirt •0)'m^yOQ'muatmn^^tl/bfwcwhtitm I if iiii ii I*II*IBI.

SOURCE DESCRimCN VALUE DNONE Qlcmtk | ill taw

VI. UABIUTIES

D

CSEDTTOR DCSCRIPnON VALUE COOP

E (Non

1 rirat rwtecal Sav. fc Loan (J) Mortgaga on paraonal raaldanca L

I CrCBtar Bank Paraonal ILna of cradlt K

3 luwrican Bicprsa* Charga Card J

0-U00,00t-Sl.000.000 PI-tl.OOO,001-U.OOO,000

L-S».(»l to SI0O.O0O M-S100.001-SIM.OOO

F2-».00O.OO|.»25.0O0,000 W-tU,0OO^MSO.0OO.OO0

H-«2M.0OI-«100.000
Mr

I NsHMof PnvoNlUpatlMt

HNANOAL DBCLOSUBE REPORT Moon, Norman K. 10/03/1997

Vn. Page I INVESTMENTS ind TRUSTS d»p«n4gmi etuUm. St* pf. 57-S4 ^butr^upmtj

A.

Dm riih.rfAli

*«•>»•>»«« ff>mmkip afrrpomtt

B.

laraoM

Mag

•aportiat

patrnt

C.

OreaavakM

ataadof

)apo(t«e

rariDd

O

0)

AIM.

CM

(A-

(•4..

Anted.

KM or

ioMM)

(1)

VUua

Coda

y-ri

0)

VakM

Mdtiod

Coda

(Q.W)

(1)

«.g..

huT.aaU.

arfftr.

fada«ptkM)

ir aoi aMap* fro* dttckMwa

0)

DaM:

MoADar

3)

Vahta

Coda

(4>

Oak

Coda

(A4f)

(!)

biiiiiiiiD

1 USAA 401 (Ki Account - CorB«r»toM C Dlvidand L T IXSHrt

2 USAA Account - Corn«r«ton« Hutu*l

Fund

C Dlvldand J T CXCMPT

1 LynchUurg property. Lot Nona K T EXEMPT

tCrMitcr Bank Cfc«ekif»4 Account <1 Hona J T EXEMPT

^»Cr«it«f a*nk Chaeklnq Account 12

IJI

Nona J T EXEMPT

1

« Cr«n.ar Bank Honay Market Account A Intarast J T EXEMPT

"I C«ncr«l navUty B«nK Honay

Hacfcvt Account (5)

A Intaraat K T EXEMPT

Ac

cat Federal StL Honay Harkat

:ount (S)

B Intaraat K T EXDfPT

9 On>a Vallay Bank CD ISI 0 Intaraat L T EXEMPT

3.0 W«tlon» Bank CD tSI 0 Intaraat L T EXEMPT

llCMittal ridality Bank CD (S) C Intaraat L T EXEMPT

IZCnatar Bank CO 11 IS) c Intaraat L T CXEHPT

lJCr«atar Sank CO 12 B Intaraat K T EXEMPT

l« rirat FMvral tank Corp. Coanctn

Stock (Si '

Dlvldand I. T EXEMPT

IS&v* Valiay Bank CoMBwn Stock isi B Dlvldand K T CXr^PT

tfi Brlrtol Mywra Squibb CoMwn Stock

tsi

A Dividend K T CXSHPT

liHotoil Oil CoMnon Stock tSI A Dividend J T EXEMPT j

1 brnfOtrnfMrn: A-t\jmmUm B-SI.OOI-n Vm

(ClBl.W) F-SM,001^100.000 OS100^141.000.000

C-CMl-SJ.OOO O-UJWIJIiJOO E-IIJ.0OI^S0.00O

HI-11.000.001.S3.000.DOO m-«.000.001 <rma

(CalCl.D3) O-$300.001-Sli>00.000 Pt-11.000.00 l-SS.OOO.000

(.-SSO.0OM 100.000 M-l 100.00142M.000 N-S2»M|.t5OO.O0O

»]-aSi)0O.OOI-S33Jt0O.OO0 n-S33.000,001.U0JMO.OOO N-t50.a00.Q0 lor MM

(CilCZ) U-ftai*VahM V-Ote W-raiwrf
MB

FINANCIAL DBCLOSUSE KE1>ORT Mooni Norman K. 10/03/1997 I

Vn. P^c 2 INVESTMENTS wid TRUSTS aMd/m. Sttfp i7S4eflntneiiam.i

'ff) 'MJ<*^ "•«""»*» efftptf*^

*j( ip^iM. '{DC}'

by*

$-00'

(••i..

VatM

Co4*

o-n

0)

V*hM

CiMto

(Q-W)

(I)

Typ.

(•-!•.

0)

VdM

Co«t

0-P>

!• Coca Cell CoMton Stock ISt

11 County property, iZ.S

>cr«s (5)

20 Aaftvrat County Parcel 11 ISI

SlAnttcrst County Paccal 12 iSI

J2Not«, crMltor Barbara H. Moon,

debtor Donald P. Brooke IS)

23 Great Da»ea inveatM Club <S) K

24 Virginia Sx^pplevental Ketlrenent

Syet«M

1 IKIOMM Ceriv A-SI.M» at ^

(CalBl.[><) F-S3(U)01-S1M.OOO

B-SIMI-S2J00 OS1.50I-S5.000 D-SSJMt-St 5.000

O^IOOJMI-S1.000.000 HI>SI.OOOJ»I-S3J)00.000 H2-S5.000J»I mm

E-tlLOOI-SSOOOO

IValCa^K >-tl3.000«lM K-SISj00l-$3O.O00 L-S3O.00I-S100.0OO U-SlOOJ)Ol-S230lD0O N-tZSajMl-SMOkOOl

(Orf.Cl.BS) 0-1500.001-11,0004100 Pl<>SI.O00.00l-S3J)0aoOO F3-S5.000.D01-S15.OOO.D0O D-125.000,001430.0001000 P4-S)0.000,00l vam

1 ValMfcOBJM T Ijiiii I

(OrfC3)

k^aM <rMl HMi ealy)

V-OMw

T-0«UaAai
849

HNANCUL DBCLOSCSE REPORT

Nuv Of nnov luportifly

Moon, Norman K. 10/03/1997

Vm. ADDITIONAL INFORMATION OR EXPLANATIONS.

NONE (?(o iddiboMi MfcnMkM or <iplUMCMw.»

VII-A

Ca]^>b«ll County property, 52.64 acr«s, assessed value is $24,483.00

Amberst County property, Parcels 41 and #2 are assessed together at $1,200.
reUNOAL OISCLOSVBE •E70RT Hocn. Nonun X.

SECTION HEADING. (Mk« H" «' -r^)

•tCTIOM 3. NOH-mVUTKniT IKCOKZ (cont'd.)

Li. Data ?«rti«0 and Taras Oroaa Incooa

t 19«S DVK Scbooi of La>t, Trial Ad lacturar. aalary
861

FINANCIAL DISCXOSURE REPORT Moon, Honun K. 10/03/1997

DC. CERTinCATION

In compliaoce with the provisions of 28 U.S.C. 4SS and of Advisory Optoioo No. 57 of the Advisory Commlnee on

Judicial Aaivtties, and lo the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory

function in any litigation during the period covered by this r^wrt in which 1, my spouse, or my mioor or dq>«fld«ai cfaildreo

had B financial interest, as deTined in Canon 3C(3Kc). in the outcome of sudi litigation.

1 certify that all the information given alaove (including information pertaining to ray spouse and minor or dependent

children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reponed

was withheld because it met applic^le statutory provisions permitting non-disclosure.

I further certi^ that earned income from outside employment and honoraria and the acceptance of gifts which have beereported are in compliance with the provisions of 5 U.S.C. app. 4, section SOt et. seq., S U.S.C. 73S3 and Judicial

Conference r^ulalions.

Signature _ 2^ X">-7<. Date /':/7/f7

Note: Any individual wlx> luwwingly and wilfully falsifies or bilt lo fUe this npon nay be subjed ID civD

and criminal unaions (5 U.S.C. App. 4, Seaion 104).

FILING msTKUcnorfs

Mali originat and three iddJtloaaJ copiei to:

Cooiniincc on Financial DiKloiurc

Adoiiniitratin Office of the United Stales Coam

One Columbui Circle. N.E.

S«ilc 2-MI

WaiUaiUik D.C 20544
39

ATTACHMENT C

Financial Statement

Net Worth

n. FINANCIAL DATA AND CONFLICT OF

INTEREST (PUBLIC)

Question 5.
853

F1NANCUL STATEMENT

NET WORTH

40

1 ASSETS 1 LIABILITIES ==^ II

Cnlioa hud and in bulks 73 600 Nules puyubic tu banks - secured

sdKdule

1 000 Notes payable lo banks -

unsecured

Liatod xcurilics - add schedule 137 34« Notes payable to rdativca '

Ualisud securitia - idd schedule 16 220 Notes payable to others

Arrounft lad mMcs rccciTable 0 Accounts and bills due soo

Due rnm rchuifcs md friends » Unpaid income lax

Due rram olhesi 3 OOO Other unpaid tax and interest

Doubtful g Real estate mortgages payable -

add schedule

13 400

Ral suit owned • >dd schedule 4M 6i3 Chattel murtxages and other

liens payable

0

Real estxic morttaies receinble 64 500 Other debts - itemize:

AMM and odicr psnonel 155 000 Creslar Bank crvdil line 17 000

1 OOO American Express

Nations Bank Ciedil Card

6

3

000

600

Other lata • Uaniie: Creslar Bonk Credit Card 5 000

USAAMIOQ Accaxm.

Cernetstooe Stnlei; Fund

lOO «26 USAA Sayings Bank Credit

Card

5 000

Virfiaia Supp. Rit. System ll» 114 Total liabilities 124 500

USAA AccoiBit, Omiantone

Sintttj F\nd

7 722 Net worth 1 337 on

CertilicMasafDeiMrit 310 000 Total liabilities and net worth 1 4S7 511

Tool AIMS 1 457 511

COfmNGENT LIABILITIES GENERAL INFORMATION

As cadoniT. cnnkir or • Are any assets pledges? (Add

schedule)

No

On hHe or oontnds •

or leyal actions?

No

Lcfalilnima 0 Have you ever taken

bankruptcy?

No

45-964 98-28
854

41

PrOTtekMt for Fcdml InconK

Tu

0

Other ipcciaJ debt 0

QUBSTIOHHAIRg TOR JUDICIAL HOMIOTES

FIMAMCIAL STATEMEWT - MET WOMM

ggHEOPfcBg

U.S. OoT«nia«Bt ••curitlvst

- (lft««n f200 S«rias SB savinga bondi. valua SlOO aacb, total valua *1,S00

Llstsd a«curitiaai

- Coca Cola Cn—no Stock, 1< aharaa, valua $983

- Mobil Oil Co—on Stock, 300 iharaa, valua 114,913

- Srlatol Hrara Squibb CoaMon Stock, 300 sbaraa, vain* $17,217

- OB« Vallay Baok ComMJo Stock, 1047 iharaa, valuo $3S,31S

- rirat Fodoral Eaok Corporation Coanoa Stock, 2000 Sbaraa, valua t«4,000

Uoliatad ••curitiasi

- Oroat Daaaa Invaataant Club, 1/19 iataraat in proaant portfolio val«« of

•343,303.72 conaiatiog ofr

AHX. 358.513 sharaa

Abbott l.aba, 303.301 aharaa

Kioaat, 100 aharaa

Briatol Myars Squibb, 231.77C1 aharoa

Ciaco Syataat, 300 aharaa

Coco Cola, 273.919 aharaa

Dlabold lac, 250 aharaa

DuTont, 341.6838 aharaa

liuon, 317.349 aharaa

PFVA Piaancial Corp., 100 sbaraa

OB, 31S.2374 aharaa

Olllatta Co., 100 aharaa

B.J. Bains, 191.0033 aharoa

Lucant Tachnologiaa, 117.4194 sharos

MeOooalda, 100 abaroa

Microaoft, 300 aharaa

Phillip Norria, 338.303 aharaa

Hotorolla Inc., 100 aharaa

Sara Laa Corp., 1S1.4SS3 ab^raa

Haahlagton oaa ft Light, 113.3778 abaroa

B«al oatata ewnadt

- Poraooal raaidanca, Lyochburg, Virgiaia, valuo $39S,0OO

- Lot adjacont to parsonal rasidanca, valua $40,000

- Caapball Couaty proparty, 53.44 acraa, Caspball County, Virfimin*

aaaaaaod valua of $24,483.00

- Aaharat couaty proparty, two parcala, 1.5 acroa, aaaaaaod tofttor a%

valua of $1,200
42

awiTioidiAiM rat JuniciXL iwtiiiim

riMMClAL ST»TII<EHT - UTT HORCT

SCHEDULES - P>G8 TWO

Luaxi-iTin

teal aBtafc* aortgagas payablai

- Paraoaal raaidaaea, origiaal aor^gaga 9100,000, IS yaar tan, (.79%

lataraat rata, «S1,*SS.0( prasantly OMad

Itoiau K. Maoa
856

pnESTIOMHAIRE FOR jnPICTM. MQMIMBEB

1. Full Name: Ann Louise Alken

2. Address: Residence: 2510 Highland Drive, Eugene, OR 97403

Office: Lane County Courthouse, 125 East 8th

Avenue, Eugene, OR 97401

3. Date and place of birth.

December 29, 1951 in Salem, Oregon

4. Martial Status: List spouse's occupation, employer's name

and business address.

Married to James Richard Klonoski, Professor Emeritus of

Political Science, University of Oregon, Eugene, Oregon.

Retired from tenured position December 15, 1994.

5. Educations List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

a. Juris Doctor, 1976-1979

University of Oregon School of Law

Eugene, Oregon

Degree Received: May 19, 1979

b. Master of Arts, Political Science, 1975-1976

Rutgers University

New Brunswick, New Jersey

Degree Received: October 1, 1976

c. Bachelor of Science, Political Science, 1970-1974

University of Oregon

Eugene, Oregon

Degree Received: August 1974

d. School of Nursing, Summer of 1972

Oregon Health Sciences University,

Portland, Oregon

6. Employment Record: List (by year) all business or

professional corporations, companies, firms, or other

enterprises, partnerships, institutions and organizations,

nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or

employee since graduation from college.
857

a. Circuit Court Judge February 1993-Present

b. District Court Judge July 198e-January 1993

c. Attorney October 1983-July 1988

Thorp, Dennett, Purdy, Golden t Jewett PC

Chief Clerk December 1982-August 1983

House of Representatives

Fundraiser/Field Staff August 1982-November 1982

Kulongoski for Governor

Attorney August 1980-August 1982

Sahlstrom & Dugdale PC

g. Law Clerk August 1979-August 1980

Hon. Edwin E. Allen

h. Law Clerk (part time) 1978 - 1979

Public Defender Services, Inc.

Law Clerk (part time and concurrent to above)

May 1978 - January 1979

Legal Counsel to the Governor

j. Office Clerk/Lobbyist February 1977 - July 1977

Democratic Party of Oregon

k. Researcher July 1977 - September 1977

University of Oregon School of Law

Organizer July 1977 - September 1977

Jarl Associates

Office Clerk 1976 - 1977

Democratic Party of Oregon

Researcher One week December 1976

Office of Congressman James Weaver

Staff July 1976 - November 1976

Weaver For Congress Committee

Administrative Assistant May 1976 - July 1976

Office of Congressman James Weaver

Administrative Assistant December 1974 - July 1975

Speaker Pro Tern Albert Densmore

Salesclerk January 1975 - December 1974

Jas-Ko-Skiing & Sport, Inc. ** Out of Business

Field Staff August 1974 - November 1974

Betty Roberts for U.S. Senate

(2)
858

Military Service: Have you had any military service? If

so, give particulars, including the dates, branch of

service, rank or rate, serial number and type of discharge

received.

None

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that

you believe would be of interest to the Committee.

Eagleton Fellowship at Rutgers University, 1975-76

Health, Education t Welfare (H.E.W.) Public Service

Education Fellowship, Rutgers University, 1975-76

Outstanding Young Oregonian for Lane County, 1989

Outstanding Young Oregonian, 1989

Outstanding Service Award as a Lane County District

Judge, 1993 - Awarded by the Chair of the Lane County

Board of Commissioners

Recipient of the Woman of Achievement Award, 1993

Presented by the State of Oregon Commission for Women

Certificate of Appreciation, April, 1994 - Presented by

the United States Department of Justice, Office of

Justice Programs for outstanding dedication and service

on behalf of crime victims

The White Rose, Woman of Achievement Award, 1995

Presented by the March of Dimes, Lewis & Clark Chapter

Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you

are a member and give the titles and dates

of any offices which you have held in such groups.

Judicial Branch (Appointments by Chief Justice Wallace

Carson):

a) Member, State Court Study Advisory Committee, appointed

August 1994. (Authorized by OBRA 1993 to study how

courts handle proceedings related to foster care and

adoption.)

b) Member, Advisory Committee on Budget Hatters for the

Judicial Department, chaired by the Hon. Greg Foote,

1991-94

— Member, Subcommittee on Legislative Matters, 1991-94

-- Member, Subcommittee on Staffing, 1991-94

— Member, Subcommittee on Retirement, 1991-94

(3)
859

c) Member, Judicial Conference Committee on Retirement,

1991-Present

d) Member, Judicial Conference Committee on Family and

Juvenile Law, 1991-Present

e) Member, Oregon State Bar Association, 1980-Present

— Member, Judicial Administration Committee, 1982-85

f) Member, Lane County Bar Association

— Lobbyist on behalf of the Lane County Bar

Association, 1981

— Member, Judicial Administration Committee,

1989-Present

— Member, Lane County Board of Directors, 1981-83

— Chair, Judicial Administration Committee, 1990-92

— Member, Pro Bono Committee, 1991-92

— Member, Law Day Committee, 1987-88; 1991-92

— Member, Juvenile Law Committee, 1992-94

— Member, Family Law Committee, 1992-94

— Member, Nominating Committee, 1990-94

— Member, Alternative Dispute Resolution

Committee, 1995-present

— Member, Federal Court Committee, 1995-present

— Member, Family and Juvenile Law, 1995-present

Member, Steering Committee

g) Team Leader, Roland K. Rodman Inn of Court, Eugene

Chapter, 1990-Present

h) Member, Governor's Task Force on Juvenile Justice,

1994-Present

— Co-chair, Sub Committee III (Dependency

jurisdiction/Juvenile court authority and

function/Substantive law and procedures for delinquent

youth 13 years old and under)

1) Vice Chair, State of Oregon Juvenile Justice

Advisory Committee, 1989-91

j) Charter Member, Oregon Women Lawyers, 1990-Present

— Director, Board of Oregon Women Lawyers, 1990-91

k) Secretary, Circuit Judges' Association, 1993-94

1) Treasurer, Circuit Judges' Association, 1994-95

m) Member, Steering Committee for Court Appointed Special

Advocate Program (CASA), 1993

n) Member, CASA Board of Directors, 1994-96

(4)
800

o) Member, Lane County Domestic Violence Council,

1993-94

— Member, Subcommittee on Criminal Justice,

1993-94

— Member, Subcommittee on Civil Justice, 1993-94

p) Member, Lane County Bar Association Committee on

Racial/Ethnic Issues in Judicial System, 1994-present

q) Member, Governor's Commission on Pregnant Substance

Abusers, 1990-91

r) Member, The National Council of Juvenile and Family

Court Judges, 1994-Present

10. Other Memberships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

I belong to the following organizations that are active in

lobbying:

a) Oregon Circuit Court Judges' Association

b) Oregon Judicial Conference

c) The Relief Nursery

d) State Court Study Advisory Committee

I belong to the following other organizations:

a) YMCA—family membership

b) Advisory Board to the Junior League of Eugene

c) Roland K. Rodman Inn of Court

d) International Women's Forum

e) American Leadership Forum

f) Oregon Women Lawyers Association

g) Lane County Women Lawyers Association

h) Parent Teacher Organization for Fox Hollow French

Immersion School

i) Parent Teacher Organization for Roosevelt Middle School

j) Parent Teacher Organization for International High

School at South Eugene High School

11. Court Admission: List all courts in which you have been

admitted to practice, with dates of admission and lapses if

any such memberships lapsed. Please explain the reason for

any lapse of membership. Give the same information for

administrative bodies which require special admission to

practice.

Supreme Court of Oregon, 1980

United States Federal Court, 1981

(S)
861

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the committee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily

available to you, please supply them.

Report of the Governor's commission on School Funding Reform

entitled "Small Steps to a Distant Goal." Chaired by Robert

Ridgley.

Report of the Governor's Commission on Pregnant Substance

Abusers. Chaired by the Honorable Betty Roberts.

A subcommittee report entitled "Effective Advocacy for

Dependent Children: A Systems Approach" prepared by

Subcommittee 3 of the Governor's Task Force on Juvenila

Justice. Chaired by Attorney General Theodore R.

Kulongoski.

Report of Governor's Task Force on Juvenile Justice.

Chaired by Attorney General Theodore R. Kulongoski.

13. Health: What is the present state of your health? List the

date of your last physical examination.

Excellent. February 27, 1995.

14. Judicial Office; State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

Lane County Circuit Court Judge, 1993 to present. Appointed

by Governor Barbara Roberts, February, 1993, and sworn in

March 15, 1992. Elected to the Lane County Circuit Court

May 1994, to serve a six year term commencing January 1,

1995. This Is the general jurisdiction trial court in

Oregon.

Lane County District Court Judge, 1988 to 1992. Appointed

by Governor Neil Goldschmidt, May 1988, and sworn in July 7,

1988. Reappointed to fill a term beginning January 1, 1989.

Elected to the District Court May 1990, to serve a six year

term beginning January 1991. The District Court is a court

of limited jurisdiction consisting of civil claims not

exceeding $10,000.00, misdemeanor criminal matters, traffic

violations and small claims.

(6)
862

15. Citations: If you are or have been a judge, provide:

(1) citations for the ten nost significant opinions you have

written. If any of the opinions listed were not officially

reported, please provide copies of the opinions.

In the Oregon district and circuit courts, the standard

practice is for judges to make findings of fact and

conclusions of law on the record rather than prepare written

opinions in the event of an appeal. The appellate courts

use a transcript of the trial and the briefs submitted by

the parties to decide the issues on appeal. Therefore, with

the exception of an opinion letter I wrote in City of Eugene

V. David Henry Miller, case no. 90-50053, ^llli, 114 Or.

App. 271, 835 P.2d 144 (1992), I do not have any written

opinions.

(2) a short summary of and citations for all appellate

opinions where your decisions were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings;

State of Oregon v. David Allen Gilbertson, Case

No. 89-20630, conviction affirmed; judgment vacated and

case remanded to reconsider probation conditions 4a and

4b, 101 Or. App. 241, 789 P.2d 19 (1990) (per curiam

opinion). Defendant was convicted on a charge of

telephonic harassment. I suspended imposition of

sentence and placed Defendant on probation. I informed

Defendant of the conditions of probation, including

restrictions on drug and alcohol use. The Court of

Appeals concluded that condition 4a, which required

Defendant to abstain from the use of intoxicants, was

inconsistent with condition 4b, which prohibited

Defendant from "using intoxicants to excess." The

Court of Appeals held that there was a basis for

imposing the restrictions, but remanded for

clarification of the inconsistent terms of probation.

State of Oregon v. Gary Warren Johnson, Case No.

88-20829, aff'd in part; vacated in part, 96 Or. App.

641, 773 P.2d 812 (1989) (per curiam). While on

probation. Defendant committed criminal mischief in the

third degree and disorderly conduct. I revoked

Defendant's probation, imposed a fine, and sentenced

him to a period of incarceration. Additionally, I

ordered "Defendant shall be rereferred to Lane County

Mental Health for evaluation and treatment." On

appeal, the state argued that the court should treat

the mental health rereferral as a "sentencing judge's

nonbinding recommendation that Defendant submit to

mental health treatment." The Court of Appeals held

that the mental health rereferral exceeded the maximum

sentence allowed. ORS 138.500. The court upheld the

case in all other respects.

(7)
state of Oregon v. Hehran Montazer, Case No. 10-93-

07185, conviction affirmed; remanded for resentencing,

133 Or. App. 271, 891 P.2d 662 (1995). Defendant was

convicted of sexual abuse in the first degree. I

sentenced Defendant as an 8-1, using Oregon's

sentencing guidelines, which has a presumptive sentence

of 16 to 18 months. I stated that Defendant's term of

imprisonment was "not to exceed eighteen months."

Defendant argued that the trial court erred in

admitting certain evidence and in not sentencing him to

a definite term of imprisonment. The Court of Appeals

held that a range is not a presumptive sentence and

that the trial court did not err in admitting the

evidence. Therefore, the court upheld the conviction

but remanded so that the trial court could sentence the

defendant to a definite term of incarceration. On

remand, the defendant was sentenced to 18 months in

prison.

State of Oregon v. Sindy Lynn Lyman, Case No. 10-93-

02538, judgment vacated and case remanded after

reconsidering its earlier decision, 133 Or. App. 600,

891 P.2d 24 (1995), affirming without opinion a

conviction for possession of a controlled substance.

The Court of Appeals ordered the trial court to make

further findings regarding the tenants' authority to

enter defendant's upstairs/front room, accompanied by

law enforcement, without defendant's permission. 134

Or. App. 212, 894 P.2d 1219 (1995). The appellate

court also ordered the trial court to make a ruling on

defendant's motion to suppress consistent with those

findings. On remand, the defendant advised the court

that the tenants did not have authority to enter the

defendant's private premises without her permission,

and the state did not oppose. Therefore, the state

moved to dismiss the indictment and judgment, and the

court granted the motion.

State of Oregon v. Morton/Evans, reversed and remanded

on charges against defendant Morton, but otherwise

affirmed, 137 Or. App. 228, 904 P.2d 631 (1995) (en

banc). These cases were consolidated for appeal

because the state raised the same legal issue in both

cases. Both defendants moved to suppress evidence

seized from an arrest made pursuant to an allegedly

unauthorized warrant. The warrant was based on

Morton's failure to appear on a citation for a traffic

infraction. While the police were arresting Morton on

the warrant, a plastic container fell from her jacket.

She denied ownership and knowledge of the container.

The detective found a controlled substance and drug

paraphernalia in the container. The officer then

arrested Evans, who was with Morton, and searched him.

(•)
864

The trial court granted Morton's motion to suppress

because the statute cited as the basis for the warrant

only authorizes warrants for failure to appear on

traffic criBfia, not traffic infractions. The trial

court also found the arrest of Evans was unlawful

because there was no testimony showing that the state

had probable cause to arrest Evans.

The Court of Appeals found that the warrant was void

because the statute only authorized warrants in cases

involving traffic crimes; nonetheless, because Morton

had disclaimed any and all interest in the container,

she had no legal standing to challenge its seizure.

Id. at 234, 231-32. Thus, the court reversed and

remanded on charges against Morton.

As for Evans, the appellate court held the warrant for

Morton's arrest was unlawful; the state failed to argue

at trial that Evans lacked standing to contest the

seizure of the container; and a lack of standing

argument against Morton does not preserve the same

argument against Evans. Xfl. at 237. Therefore, the

trial court did not err in granting Evans' motion to

suppress.

(3) citations for significant opinions on federal and state

constitutional issues, together with the citation to

appellate court rulings on such opinions.

City of Eugene v. David Henry Miller, case no. 90-

50053, aitld, 114 Or. App. 271, 835 P.2d 144 (1992.

Defendant demurred on first amendment and equal

protection grounds.

The following is a list of attorneys who have appeared

before me in either circuit or district court:

1. Jan T. Baisch, Paulson & Baisch Trial Lawyers PC, 1000

SW Broadway, Suite 1660, Portland, OR 97205.

Telephone 503-226-6361.

2. Larry A. Brown, Brown, Roseta, Long & McConville, 210

Northbank Building, 44 Club Road, Eugene, OR 97401.

Telephone 503-686-1883.

3. Win Calkins, Calkins & Calkins, 1163 Olive Street,

Eugene, OR 97401. Telephone 503-345-0371.

4. Don E. Corson, Johnson, Clifton, Larson, & Corson, PC,

975 Oak Street, Suite 800, Eugene, OR 97401.

Telephone 503-484-2434.

5. Robert Eraser, Luvaas, Cobb, Richards £ Eraser, PC,

#300 Forum Building, 777 High Street, Eugene, OR

97401. Telephone 503-484-9292.

(9)
865

6. David L. Jensen, Jensen, Fadeley & Elnore, PC, 1399

Franklin Blvd., Suite 220, Eugene, OR 97403.

Telephone 503-342-1141.

7. Shaun McCrea, McCrea, PC, 1147 High Street, Eugene, OR

97401. Telephone 503-485-1182.

8. Terri Hood, 804 Pearl Street, Eugene, OR 97401.

Telephone 503-484-4171.

9. Bruce E. Smith, Cleaves, Swearingen, Larsen, Potter,

Scott i Snith, 975 Oak Street, Suite 800, Eugene, OR

97401. Telephone 503-686-8833.

10. William G. Hheatley, Jaqua t Hheatley, PC, 825 E. Park

Street, Eugene, OR 97401. Telephone 503-686-8485.

16. Public Office: State (chronologically) any public offices

you have held, other than judicial offices, including the

terms of service and whether such positions were elected

or appointed. State (chronologically) any unsuccessful

candidacies for elective public office.

Democratic Party Precinct Person, 1984

Delegate to the 1984 Democratic Convention in San Francisco,

California

Appointed and elected Chief Clerk, House of Representatives,

State Capital, Salem, Oregon, December 1982 to August 1983

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school including:

1. whether you served as clerk to a judge, and if so,

the name of the judge, the court, and the dates of

period you were a clerk;

Law Clerk, 1979-1980

Honorable Edwin E. Allen, Presiding Judge, Lane County

Circuit Court, 125 E. 8th Avenue, Eugene, OR 97401

2. whether you practiced alone, and if so, the

addresses and dates ,-

No, 1 did not practice as a sole practitioner.

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of

your connection with each;

(10)
866

Associate Attorney, 1980-1982

Sahlstrom 6 Dugdale, PC, 915 Oak Street, Suite 300,

Eugene, OR 97401

Fundraiser/Field Staff, Kulongosjci for Governor

August to November 1982

Chief Clerk, House of Representatives, 1983

Oregon State Capitol

Salem, OR 97310

Associate Attorney, 1983-1988

Thorp, Dennett, Purdy, Golden t Jewett PC,

644 North "A" Street, Springfield, OR 97477

District Court Judge, Lane County, 1988-93

Lane County Courthouse

12 5 E. 8th Avenue

Eugene, OR 97401

Circuit Court Judge, Lane County, 1993-Present

Lane County Courthouse

125 E. 8th Avenue

Eugene, OR 97401

1. What has been the general character of your law

practice, dividing it into periods with dates if

its character has changed over the years?

My practice with the firm of Sahlstrom and Dugdale, PC,

in 1981-82 consisted primarily of family law matters.

I tried dozens of cases for the firm in the two years I

worked there. In addition, I tried and assisted in

some personal injury matters and several criminal

cases. Predominantly, my cases involved custody and

visitation issues. Occasionally, I handled a matter in

juvenile court for a long-standing client and an

adoption.

In the late summer of 1982, I took a leave from the

practice of law to serve as a fundraiser and field

staff person on gubernatorial candidate Ted

Kulongoski's campaign staff. After the campaign ended,

I was nominated by the Speaker and elected by the full

membership of the House of Representatives of the

Oregon Legislature to serve as Chief Clerk. My

responsibilities included overseeing the clerk's staff,

publication of daily schedules and calendar,

maintaining the journal of all proceedings, and serving

as the body's parliamentarian.

Following the end of the 1983 legislative session, I

was hired by Thorp, Dennett, Purdy, Golden t Jewett,

PC, to take over the firm's Domestic Law practice.

(11)
867

During the years at the flm, I handled a range of

domestic matters from simple dissolutions to complex

domestic matters that included substantial amounts of

property and assets. In addition, I assisted several

of the partners in general litigation preparation. I

co-counseled work in a variety of areas including

criminal law, municipal law, and general civil

litigation.

In 1988 Governor Neil Goldschmidt appointed me to fill

a vacancy on the Lane County District Court bench. A

year later, upon the recommendation of the Oregon

Supreme Court's chief justice, I served as presiding

judge for the district court. As such, I managed

thousands of cases and worked closely with

constituencies of the court to ensure timely and

economical resolution of pending cases. I also shared

responsibility for arraignments and sentencing. I

continued in that capacity until my appointment to the

Lane County Circuit Court in 1993.

As a circuit court judge, I hear a variety of civil and

criminal matters. Additionally, in my first year on

the circuit court bench, I presided over out of custody

circuit court arraignments and served as a primary

sentencing judge. Most recently, 1 am serving as the

managing show cause judge and back-up juvenile judge.

Describe your typical former clients, and mention

the areas, if any, in which you have specialized.

My specialty was complex domestic matters and child

custody cases. My former clients included men and

women from every economic condition, state criminal

defendants, private individuals, and municipalities.

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

or not at all? If the frequency of your

appearances in court varied, describe each such

variance, giving dates.

I tried cases on a fairly regular basis. I was

generally scheduled to try 4-5 cases per month with the

expectation most would settle. In addition, I

generally had court hearings on the show cause docket

weekly to resolve pendente lite orders. In the

practice of family law, the majority of cases

are resolved through settlement negotiations, which

was the result with most of my cases.

2. What percentage of these appearances was in

(a) Federal courts — 0%

(b) State courts of record — 99%

(c) Other courts — 1%

(12)
868

3. What percentage of your litigation was

(a) Civil — 90*

(b) Criminal — 10*

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than

settled),indicating whether you were sole counsel,

chief counsel, or associate counsel.

I cannot tell you the number of cases I tried to

verdict or judgment, however, 1 would estimate that

I tried 2 or 3 per month in the seven years I was in

private practice.

5. What percentage of these trials was

(a) Jury — 2%

(b) Non-jury — 98*

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.

I was in private practice for seven years before coming

on the bench. From 1980-82 I worked for Sahlstrom &

Dugdale in Eugene, Oregon. From 1983-88 I worked for

Thorp, Dennett, Purdy, Golden t Jewett, P.C. in

Springfield, Oregon. At both firms, my area of

practice was family law. In family law cases, the goal

is to reach a reasonable resolution, preferably out of

court, so most of my cases settled prior to trial.

From those cases that did not settle, I have picked ten

that I believe are fairly representative of the kinds

of family law matters I routinely handled. I tried all

of these cases in Lane County Circuit Court as the

attorney of record. Child custody, child and spousal

support, insurance, income tax exemptions for dependent

children, and property distribution were the issues in

all of these cases.

(13)
869

In Sharon I. Callahan v. Daniel Callahan. 15-81-00196,

tried on October 21, 1981 before the Honorable Edwin E.

Allen, I represented the Petitioner Sharon I. Callahan.

Opposing counsel was David West, whose address and

telephone number are Suite 215, 500 H. 8th St.,

Vancouver, WA 98660; (206) 737-0415. Callahan is

significant because it was the first case tried In Lane

County under the child support guidelines set out in

Smith V. Smith, 290 Or. 675, 626 P.2d 342 (1981). The

Smith court stated that child support should be figured

by a ratio of the non-custodial parent's income to th4

income of the custodial parent. I won custody for the

Petitioner and spousal and child support from the

Respondent.

In Josephina E. Pereyra v. Gregorto P. Pereyra. 15-85-

04876, tried from February 5-12, 1986 and on February

17, 1986 before the Honorable F. Gordon Cottrell, I

represented the Respondent Gregorio P. Pereyra.

Opposing counsel was James M. O'Kief of Morris &

O'Kief, whose address and telephone number are Suite

350, 400 Country Club Road, Eugene, OR 97401; 503-344-

4010. This was a complex child custody matter with

allegations of abuse. Despite an explicit statutory

provision prohibiting the court from giving weight to

the mother for the very reason she is the mother, in

1986 it was still difficult for a father to prevail.

The young age of the little girl in this case made an

award of custody to my client, the father, even more

doubtful. Nearly fifty witnesses testified in a week

long trial. At the conclusion of the trial the judge

took the case under advisement for almost six wee)cs.

Ultimately, the judge awarded custody to my client.

In Sharon Lavelle Willis v. Larry Dean Willis. 15-85-

08624, tried on April 4, 1986 and between April 8-11,

1986 before the Honorable Maurice Merten, I represented

the Respondent Larry Dean Willis. Opposing counsel was

E. B. Sahlstron, whose address and phone number are

P.O. Box 10427, Eugene, Oregon 97440; (503) 687-1718.

This was a complex custody case involving two young

boys close in age, one of whom was adopted and had

learning disabilities. The wife was diagnosed with

bipolar disorder (manic depression). The parties owned

an ultralight airplane business, which the wife

ransac)ced and destroyed. Due to the mother's potential

to cause harm, obtaining custody for the father was

essential to the well-being of the boys. The day after

my client was awarded custody, he died in a mysterious

ultralight plane crash. A guardian was named for the

boys and many of the issues from the dissolution

proceeding were revisited.

(14)
870

In Donald D. St:aplet:on v. Sharon Ann St«pl»tWl, 15-85-

03273, tri«d on D«c«iiber 11, 1985, Decenbar 13, 1985,

and between December 17-20, 1985 befor* the Honorable

Maurice Kertcn, I representwl tba Kasponden-t Sbaron Ann

Stapla-ton. Opposing Counsel vas Linda Wilson, wtiosa

address and phone number are 1397 Hillame-tta St.,

Eugene, OR 97401; (503) 343-1242. This case was

complex because the parties had substantial assets

Including interest in a timber operation. I brought in

an accountant to "audit' the business records and

provide an expert opinion on the value o£ the parties'

interest. I then presented a sixty-page trial

BejBorandiim outlining all of the assets and interests.

Petitioner's counsel claimed the assets were so

encumbered that the value was substantially lower than

our expert's opinion. Judge Herten ruled in favor-oC

ay client.

In Geoffrev S. Simmons v. {><->'l'«w Ti S<•IIOTI». 15-83-

04151, tried botwoan March 20-22, 1984, before the

Honorable George Woodrich, I represented the

Petitioner. Opposing counsel tras Doug McCool, whose

address and phone number are 400 Country Club Road,

Suite 210, P.O. Box 7372, Eugene, OR 97401; (503) 485-

8114. Doug Dennett, Dennett « rredericlcs, P.C. , 199 E.

5th Avenue, Eugene, OR 97401; (503) 345-4704, and I

were co—counsel in an action to modify a dissolution

decree. By applying the analysis set out in two cases

that I had argued before the Oregon Court of Appeals,

Carter v. Carter, 54 Or. App. 86, 634 P.2d 265 (1981)

and Schaffer v. Schaffer, 57 Or. App. 43, 643 P.2d 1300

(1982), I was able to convince the court that the

support was not property, bat alimony. Had the court

found that the support was property, then the award

would have been inalterable, but because the court held

that the support was alimony, the court was able to

consider the wife's present standztrd of living.

Respondent had remarried and was living at a higher

standard of living than she tnis when she was living

with our client. Consequently, Petitioner's spousal

support obligation terminated by order of the court.

Our client estiaated that we saved him approximately

$100,000.

In finndn. mnas<Bn stenlus V. Ranier Konrad Stenius.

15-83-08690, tried between March 26-28, 1985 before the

Honorable William Beckett, I represented the Petitioner

Sandra Minasian Stenius. Opposing counsel was Uiura

Parrish of Eutchinson, Anderson, Cox S Teising, P.C,

whose address and phone number are P.O.Box 3219,

Eugene, OR 97403; 503-485-6162. Petitioner was the

primary parent, maintained the home, and contributed

financially. Respondent had a long history of alcohol

abuse and unemployment. Consequently, Petitioner was

(15)
871

able to overcone a rebuttable presumption under Oregon

law that both parties equally contributed to the

marriage, which is a difficult presumption to overcome.

In Sarah Lynn Wing v. Leonard David Wing. Jr.. 77-5638,

tried on January 14, 1986 before the Honorable Greg

Foote, I represented the Respondent Leonard David Wing,

Jr. Opposing counsel were Jim Palmer and Denise

Fjordbeck, whose addresses and phone numbers are Suite

403, 44 W. Broadway, Eugene, OR 97401; 503-343-8281;

Department of Justice, 450 Justice Building, Salem, OR

97310; 503-378-6313. This was another complex custody

modification proceeding. Petitioner, the custodial

parent, remarried and agreed to move herself and her

two daughters to Kew York with her new husband without

giving notice to the Respondent. On behalf of

Respondent, I moved for a change of custody and an

order restraining Petitioner from removing the children

from the state before a hearing could be held. Judge

Foote granted custody to my client due to a substantial

change in circumstances. In a later proceeding before

the Honorable William Beckett on November 27, 1987, the

court found that Ms. Wing's changed status from

unemployed to employed coupled with my client's

increased need to receive support amounted to a

substantial change in circumstances. Again, my client

prevailed, this time overcoming the presumption that a

mere increase in income does not satisfy the test of a

substantial change in circumstances.

In Emma E. Boiler v. John J. Boiler. 87 Or. App. 550

(1987), tried between March 5-10, 1986 before the

Honorable George Woodrich, I represented the Petitioner

Emma E. Boiler. Opposing counsel was Russell D.

Bevans, whose address and phone number are Suite C 175,

895 Country Club Road, Eugene, Oregon 97401; (503)

484-0332. This case represents the many cases

involving substance abuse and domestic violence.

Respondent had a history of drug and alcohol abuse and,

on occasion, he physically and emotionally abused my

client and the two children. Ultimately, Respondent

abandoned Petitioner and his two children on a rural

piece of property with no means of support. The court

agreed that my client should receive the greater share

of the assets in lieu of spousal support because

Respondent had not made any temporary support payments,

even though the court had ordered him to do so.

Respondent appealed. I briefed and argued Petitioner's

case before the Court of Appeals. The court issued a

per curiam opinion affirming the trial court decision

as modified. The court modified one provision of the

decree regarding a china cabinet to "further the

disentanglement of the parties."

(16)
872

In Christian Peter Stehr v. Gisela Hildeoard Stehr. 15-

79-00192 tried on July 2, 1981 before the Honorable

Maurice Herten, I represented the Petitioner. Opposing

counsel was Doug McCool, whose address and phone are

400 Country Club Road, Suite 210, P.O. Box 7372,

Eugene, Oregon 97402; (503) 485-8114. The case was

highly charged, the client was difficult to handle, and

the financial natters were complex. Opposing counsel

was an extremely experienced attorney. Mr. McCool and

I negotiated at length. Finally, we reached a

resolution and put the settlement on the record.

Rather than sign the decree prepared in accordance with

the settlement put on the record, Respondent moved to

set the settlement aside. After a hearing on the

notion. Judge Merten concluded that we had negotiated

the agreement in good faith. Consequently, he signed

ny proposed decree.

In Pamela P. Dellcer v. Thomas W. Delker. No. 15-84-

07223, tried on October 17 and 18, 1985 before the

Honorable George Woodrich, I represented the Petitioner

Pamela D. Delker. Opposing counsel was Marc Perrin,

whose address and phone number are 777 High Street,

Suite 110, Eugene, OR 97401; 503-345-0003. The wife

worked part-time at an unskilled position, took care of

the young children and managed the household. The

husband worked full time with greater opportunity for

career advancement because his duties at home were less

on account of the wife bearing the majority of those

responsibilities. Respondent contested Petitioner's

need for and right to the spousal and child support

that would enable her to provide adequately for their

minor children. Despite lengthy settlement

discussions, the case went to trial and my client

prevailed. My client received enough support to

complete the Forestry program at a local community

college so that she could become self-sufficient while

continuing to raise the children.

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal matters

that did not involve litigation. Describe the nature of

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

From the time I graduated from law school, I have given

great attention to ways in which the law can and should

improve the lives of children and protect the well-being of

families. I developed a strong understanding of the needs

of children and families while practicing as a domestic
873

relations attorney. Vfhen I was appointed to the bench, I

noted early on that criminal activity was often a

consequence of problems stemming from cycles of abuse and

neglect, drug and alcohol use, and poor education. I also

realized that there was a lack of resources for defendants

to use to address drug and alcohol abuse, child abuse and

neglect, lack of parenting skills and lack of education.

Governor Neil Goldschmidt and Governor Barbara Roberts

recognized my commitment to finding solutions to these

problems. They were aware, as well, of my role in bringing

competing governmental entities and constituencies together.

For example, as presiding judge of the district court, I

developed a jail arraignment process and model plea

negotiation system that saved countless dollars and time.

Consequently, they appointed me to implement a system that

would address the increase in drug and alcohol affected

babies; to create a profile for children at risk of abuse

and neglect and develop a system for effectively intervening

in the families by studying the factors that led to the

deaths of thirty-two children in Oregon in 1992; to serve as

vice-chair of the Oregon Juvenile Justice Advisory

Committee; and to participate in the Governor's Task Force

on Juvenile Justice.

Most recently, the Chief Justice of the Oregon Supreme Court

has appointed me to the State Court Advisory Committee

authorized under OBRA 1993 to study how courts handle

proceedings related to foster care and adoptions.

Additionally, I co-chaired a subcommittee mandated to report

to the 1995 Oregon Legislature on what Oregon should do to

meet the American Bar Association guidelines for effective

representation of children in dependency cases. I enjoyed a

strong working relationship with William Wheatley, immediate

past president of the Oregon State Bar, who served as a

member of the committee.

On a local level, I am a former member of the Commission on

Children and Families for Lane County charged with devising

a long-term strategic plan for the healthy development of

children and families. Over the last eight years, I have

served in various capacities on the Board of the liane County

Relief Nursery, which is dedicated to finding and

implementing effective methods for intervening in the lives

of high risk families.

(18)
874

II. riHAHCIAL DATA AMD COMTLICT OF IBTKRBST (PUBLIC)

List sources, aaounts and dates of all anticipated receipts

from deferred income arrangenents, stock, options,

uncompleted contracts and other future benefits which yoa

expect to derive from previous business relationships,

professional services, fir« memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

or business interest.

I am a member of the Public Employees Retirement System.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas on concern. Identify the

categories of litigation and financial arrangements that

are likely to present potential conflicts-of-interest during

your initial service in the position to which you have been

nominated

I will fully comply with 28 U.S.C. S <55. I will recuse

myself from any proceeding in which I have an actual or

apparent conflict. I do not foresee any categories of

litigation or financial arrangements that will

present a potential conflict of interest.

Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during

your service with the coiirt?

4. List sources and amounts of all income received during the

calendar year preceding your nomination and for the current

calendar year, including all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or more. (If you prefer to do

so, copies of the financial disclosure report, required by

the Ethics in Government Act of 1978, may be substituted

here.)

See attached Financial Disclosure Form AO-10 incorporated by

reference herein.

5. Please complete the attached financial net worth statement

in detail (add schedules as called for).

See attached forms.

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.

(19)
875

1. Betty Roberts for Governor, 1973-1974

I served as the University of Oregon campus coordinator for

the Lane County campaign and at some point in the Fall of

1993, I was naned co-chair of the Lane County Campaign. My

responsibilities included organizing and supervising all the

canvassing, lawn signs, local fundraising events, staffing

the headquarters and local advance work. The campaign

manager was Leonard Bergsteln and I ran Lane County as a

volunteer.

2. Betty Roberts for U.S. Senate, 1974

Senator Wayne Horse died in the summer of 1974 and Betty

Roberts was selected by the State Central Committee to

replace the Senator. The campaign hired me to assist with

the field organization. I lived and worked out of Portland.

Later in the campaign, 1 was reassigned as the candidate's

driver and personal staff. I worked from August, 1994

through the general election on the first Tuesday in

Kovember, 1974.

3. Kulongoski for U.S. Senate, 1980

I was a volunteer in the campaign in Lane County. I stuffed

envelopes and performed general office work for the campaign

with my new baby, Jake, over a six week period before the

November 1980 election. Linda Lynch was the County

Coordinator.

4. Kulongoski for Governor, 1982

In December 1981, Ted Kulongoski decided to run for Governor

and came to tell me in my hospital room where I had just

given birth to my second son. I performed volunteer work

under Linda Lynch, County Organizer, throughout the primary

and during the summer. In the late sumner, the campaign

needed staff and asked me to consider the job. I commuted

to Portland initially to do scheduling, but was reassigned

to fundraising and field work.

5. Neil Goldschmidt for Governor, 1986

In 1986, Neil Goldschmidt called a group together to decide

whether he should run for Governor. My husband and I were

included in the discussion. I worked as a volunteer

throughout the primary and was named one of three Lane

County co-chairs for the general election. My

responsibilities included grassroots organization, staffing

the office, advance, lawn signs, and participation in the

local fundraising activities. The other co-chairs were

Dorothy Chase and Maury Jacobs (now deceased).

6. Hans Linda for the Supreme Court, 1984

Justice Linde was challenged in his re-election to the

Oregon Supreme Court. As a former student, he asked for my

help. I was a volunteer coordinator of the local lawn sign

effort.

(20)
876

7. Debra Ehman for City Council, 1984

I served on the steering cODnittee for Debra Ehman's

successful city council race. I volunteered to canvas,

helped with lawn signs, mailings and did some fundraising.

8. Jim Heaver for Congress, 1976

I served as a field organizer for Mr. Weaver's congressional

campaign. My responsibilities included managing volunteers,

advancing the candidate, coordinating lawn signs and

canvassing.

9. As a precinct committee person and part time office

staff to the Democratic party, I did volunteer work for

dozens of legislative, local and statewide races. I would

canvass a precinct, stuff envelopes or help with campaign

strategy.

(21)
877

III. OEHERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances

and the amount of time devoted to each.

Guest Lecturer, Interdisciplinary Doctoral Program Seminar,

College of Education Division for Special Education and

Rehabilitation, Professor Dan Close. (Lectured yearly

since 1988).

Guest Lecturer, Foundations of Disability (Master's

Program), College of Education Division for Special

Education and Rehabilitation, Professor Dan Close.

Guest Lecturer, Psychology of Exceptional Children (Master's

Program), College of Education Division for Special

Education and Rehabilitation, Professor Dan Close.

(Lectured twice yearly from 1988 to 1993).

Guest Lecturer, Supreme Court and Civil Rights and Civil

Liberties, Department of Political Science, University of

Oregon, Professor James Klonoskl.

Courthouse Tours/Mock Trials. Since 1988, I have

presided over the Thurston High School mock trial

sponsored by the Honor Society. The event is a popular

school activity that requires hundreds of volunteer hours on

the part of local lawyers and teachers. The mock trial is

featured in an all school performance and has expanded to

two trials.

In addition, I have coordinated literally hundreds of

school tours for elementary through secondary school

students. During my term on the Law Day Committee, we

conducted a four hour in service day for middle and high

school social science teachers. This Informal arrangement

has been extremely popular.

As a member of the Lane County Bar Association Pro Bono

Committee, I recommended the creation of the Andrew Clement

Pro Bono Award. The award was named after my colleague

following his death after serving two months on the Lane

County District Court. The award is given annually to an

individual for exceptional pro bono service to person of

limited means.

I have been involved in the Relief Nursery, which is an

effective family-centered program aimed at ending the

devastating cycle of child abuse and neglect. The

(23)
878

therapeutic preschool and family services have been a

lifeline to so many people in Lane County. The therapeutic

preschool serves 170 children a week and many more families

through outreach and the drug and alcohol programs.

Families with children at risk of serious abuse and neglect

are served by highly trained staff and teachers who are

literally changing the lives of families daily. (The Relief

Nursery has been replicated in Portland, Klanath Falls,

Cottage Grove and we are in the beginning stages of

negotiations with Deschutes and Marlon counties).

In July of 1993, the Relief Nursery consolidated the four

classrooms located in donated church space around town and a

fifth site which housed the administrative staff into a new

13,000 square foot, 1.9 million dollar building designed

specifically to meet the needs of our families. The

building has been described as the "finest children's

facility in Oregon".

I serve on the steering committee of the Court Appointed

Special Advocates (CASA) program. Starting In January 1994,

we created the program, hired two staff directors, wrote

three grants (received funding for two), recruited 140

applicants, and screened and trained our first class of

volunteers. This program means children and families will

have a true public advocate to ensure they receive

appropriate services and court intervention to arrive at a

permanent family placement. Most recently Gwyneth Hamacker,

Program Coordinator, has requested that I serve on the CASA

of Lane County Foundation Board to ensure the smooth gro*rt;h

of the program.

I have supervised, as well, a cadre of young people who have

given volunteer time for the Courts under my supervision

each year. Since 1988, I have had 4 to 6 students from

various high schools participate in a structured yet

flexible community service project. Four of the students

were so experienced and talented that they have been paid

judicial employees between semesters at college and over the

summer. The split is approximately about half women and

half men. I maintain contact with each student and have

appreciated all they have given the judicial system as

volunteers.

I also serve as a mentor for students at the University of

Oregon School of Law and Roosevelt Middle School. I have

been involved In these programs since my appointment to the

bench.

The American Bar Association's Commentary to its Code of

Judicial Conduct states that it is Inappropriate for a judge

to hold membership in any organization that invidiously

discriminates on the basis of race, sex, or religion. Do

(23)
879

you currently belong, or have you belonged, to any

organization which discrininates — though either formal

nembership requirements or the practical implementation

of membership 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).

A Judicial Selection Advisory Committee appointed by members

of Oregon's congressional delegation and Governor Barbara

Roberts was convened to conduct interviews and recommend

candidates for nomination. The committee was comprised of

twelve lawyers and two state court judges. The committee

included members of racial minorities. There were three

past presidents of the Oregon State Bar.

The committee reviewed the written applications of all

applicants and selected 13 finalists to be interviewed.

Background checks were done by committee members on the

finalists prior to interviews. On October 21, 1994, and

October 22, 1994, interviews of the finalists were

conducted. Following the interviews the committee

recommended four names to Oregon's Congressional delegation

for nomination.

Congressman Ron Hyden and Governor Barbara Roberts conducted

a second round of interviews. Thereafter, Congressman Wyden

consulted with all members of the Oregon Congressional

delegation and Governor Roberts and prepared the letter to

President Clinton recommending my name. In addition, I have

been interviewed by a panel of attorneys at the Department

of Justice, the Federal Bureau of Investigation, and a

representative of the American Bar Association.

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case,

issue, or question?

No

Please discuss your views on the following criticism

involving "judicial activism".

(24)
S80

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.

The role of the judiciary in American government is to

decide justiciable cases and controversies. Congress

decides the limits of a federal court's jurisdiction. The

judiciary's primary task is to apply the law created by

Congress. In doing so, the judiciary should always abide by

the constitutional requirements for standing, invoke the

prudential doctrines of mootness and ripeness, and rely on

case law precedents.

Always the judiciary should consider whether the issue

before the court is a political question better left to the

other branches of government for resolution. When applying

these doctrines of justiciability, a federal district court

judge should limit her ruling to the grounds necessary for

resolving the controversy.

To make the ruling, a federal district court judge in Oregon

should first consider the relevant legal precedent of the

Ninth Circuit Court of Appeals and the United States Supreme

Court. Second, a federal district court judge should

fashion a resolution that takes into account the

preferability of legislative and executive solutions and the

constitutional guarantees of individual freedom, limited

government, private property, and the Bill of Rights.

(25)
881

nNANCIAL DISCLOSURE REPORT ^ ii'iTrK'^'.jri!" "

FOR CALENDAR YEAR I9'is//f96

Aiken,. Ann L.

] CtMiif or Orv«Aiuti«H>

U.S. District Court*, Oregon

1 Oaia ol lapart

12^17^96

• Tiil« i*i(>ct> 111 \vi*f* tndicst* acliv« or

(•11 at i>*rl li-«l

Article III Judge (Active)

« Mpvrttng Pcrto«

1 /1/96-12/1696

Lane County Courthouse

125 E. 8th Avenue,. Eugene/, OR 97401

• on t»M b*»i« o( t*» \nlarm»ixor^ co»ii*tn«<l n» thi« K*pon and

•ny •«>d>f IC«t ton* pcrtaintnf clwrKO. tc ta. in ar opinion.

IMPORTANT NOTES The inslruciioiu sccompinying ihii form must be followed Coniplele all p*m.

checking (he NONE box fof each wclion where you hive no rcporiable inform>tion Sign on last page

I. POSITIONS. (RcponingindivktualooV.Kepp 913oflnilroctio<ii)

POSITION NAMR OF ORGANIZATION/ENTITY

NONE (No tcporuble poiiltons)

nirxtcoc n.li.f Mnr^i-y fMftn-prnfirl IVx.rH nf nirarfnri

II. ACRF-EMF\TS. (Rcporling individual only, see pp 14-17 of Insliuctioni )

DATE PART1E.S AND TERMS

D NONE (Noreporlabkagreenienls)

l'»yi-9fe Kihlir RtTilr.yoc« p.M r.m»n^ ^;y.^Pm fP.P.B.-i.l fnr rhp .SruM- nf nraniVl

III. NONIN\T,STMENT INCOME. (Reporting individual and spouse, lecpp 18 25 of Instructioni)

DATE

D

SOURCE AND TYPE

NONE (No rcporiabic non-invcslmcnl income)

State Board of Higher Education-State of Oregon

109^-1996 <=.tAtf> nf nrt>9f>n-.li.Hi^>Al RrAnrh

1995-1996 Public Pnployees Retirement System (P.E.R.S.)

,^R^

S (S)

Sjil?, J0J.1)

$. .

S_
882

FZKAIfCZAL DISCLOSURE REPORT Ailcen<, Ann L.

S*t« •( -III .1

12/17/96

IV. REIMBURSEMENTS and GIFTS - irunponuioo. lodgiiig. rood.cxcniuiaKiu

(iBcludci fbow: 10 ipousc ud dcpeodcnl chjjdren. luc [be paruilhelKab *(S)* «iid *(DC)* to indKate reponaUc

retmburKiiKoli and ptu received by spoiuc and dcpcadeu fhiMrrn. rcapeaivcly Sec pp 26-29 of losuuctiaat.)

SQUB£E DESCRIPTION •

HONE (No tucfa reponable rcimbuncoicoti or gifU)

•

OTHER GIFTS. (Includci iKose (o ipousc ind dependent children, use ihc parcnlhcncah '(S)' and '(OC)' lo

tndicaie olbergiflirecctved by ^wusctnd dependent children, rcspeclrvtiy See pp 30 33or Insiroaioiu)

SOURCE DESCRIPTION

NOKB (No Mieh reponable gifu)

VALUE

VI. LIABILITIES. (includes those of spouse and dcpeodem children, indicate where applicable, person tc\pctt%JtM

for liability by using ihe parenlhciical '(S)' for separate liability of the spouse, *(J)* for |oini Itabililyof

reporlieig individual and spouse, and'(DC)* for liabtUlyof a dependent child See pp >4-36 of Instruciions )

CREDITOR DESCRIPTION VALVE CPPE'

Q NONE (No reponable liabilities)

' VAUK ccau , %Ht .". I
FINANCIAL DISCLOSUKE REPORT

Hue «( r«ra(M) lt«portlnt

Aikenf, Ann L. 12 A7 /96

VII. Page 1 INVESTMENTS and TRUSTS - income, value, (ransaclions (Includes ihose of jpoujc

and depcndeol childrea. Sec pp 37-54 of Iiutrudioiu.)

A.

Oaacrlpti«n of *•••£•

tlncludlns trust kjiata)

lrrillcat« •h.r. .pplIc-bU. o.*n«r •(

th« aasat W ualng th« p&r«nth«tlcal

•IJI* t»r i«lnt ownarahlp of reportlAf Individual and *pouae, •<Si^ toi

Fl»e« '[X)* »tc«r tach ataat

•••<ipi titm prior dtictMun.

c

C(«*f valuo

•t OMS Ol

roponlng

D.

Tioniiaetlent Out >ng coportinf porloo

11) 13)

TWO

iti';-

111 13)

QKl«

(0-M)

U) IC not B>ia«pt fro* dtaclovufa 1

11)

Datai

-"Si?

(11

Ik-H

(«1 tdancity at

bwvac/atllcf

UI privata

NONE (Ho rcperiabl*

Lneomm. «••«(«, 0(

traiuoctlonal

U-Lane-0 Credit Union

'Savings (DC) A INT J T

U-Une-0 Credit Union

'savings (DC) A INT J T

U-Une-0 Credit Union

'savings (DC) A INT J T

U-Lane-0 Credit Union

"Savings (DC) A INT J T

U-Lane-O Credit Union

'savings (DC) A INT J T

Teachers Insurance Annuity

'Association (TIAA (S) D DIV K E

oppenheitner Funds

' Investment Account C DI» L T

U-Lane-0 Credit Union

•(J) A INT K T

fComoon Stock-State Bank Saunemin< niinois A NONE J U

r.R.A. iJackson National

'life) c DIV K T

^p.R.E.F. (Equity Account) F DIV K T

i>

11

••

li

IC

IT

11

1 InCOM/Calf. Co*M' *"(>.'2S *' '••• t.|l,oai to U.iOO C-J7 101 to IJ.009 O-SJ.OOl lO i'*i2S''n««

t&a« cor Bl t WJ t.Jli.OOl to ItO.ftOA F-iiOOOt to tlOO.ftOS O.ilOO.OOl to tl.BOO.9*0 U.»att iNan il.000.000

' rarc£r*5, . o,. i!:fil6!'?gi''U'!!So.ooo S:iU6''gii*?on?S§S «., fc-iS?.''?iLS%!'2§6**2S, •"•"""' ^^ "" ""

» ^.lirc:!^'??,^'^" 8:£SJ'i:!i. 5:§?K*'"'••""-''• 5:{:t't=;s T.c..^/H.r..t
884

PZKKNCZAL DXSCIJOSORE RSPORT Aitcen* Ann L. 12/17/96

vm. ADDITIONAL INFORMATION or EXPLANATIONS (Indkair pan of Rcpofi.)

1. Pursuant to my mother'a will/. I hold the atock but nv father receives the divjdcnrta

from the stock until hia death.

DC CERTIFICATION.

In compliance wiih the provmons of 28 U S C $ 455 ind or Advisory Opinion No 57 of (he Advuory Commnee on Juboaf Aaiv«a,

and 10 itK best of my knowled^ « the (ime aAo reasonable inquiry, I did not perform any adjudicaiory funa»on tn any Imgaiion dunnc ihe

pcrKxJ covered by this report in Mitvch I, my spouse, or my mnor or dependent children hid a linarxial interesi. as defined m Canon X^3KcL

in the outcome o( such litigation

I ceni^ ihM alt informaiion gjven above (induding informalton pertaining to rny spotee and minar or dependent childrcr^ tfany) a

tnr, and complae to the best of my knowledge and belief, and thai any infonration not reported M«S withheld becatae it mei afiplt

tUfulary provisiorv permtciing norvdisckKire.

I fiitber oenify th« earned income from ouside cmptoymert and hononrii and the accepunce oT gifts %which have been rcponed i

orrpliance with the provisKxv of 5 U S C A app 7. $ SOI cl set), 5 USC ( 7353 md Judicial Conference regulations

SifflMUt _ UCUA. (Llii4^

NCTTE ANYINaVIDUALWHOKNOWTNGLYANDWILaiaYFALSinESORFAJLST

TO aviL AND CRIMINAL SANCTIONS (5 USCA APP 6.5 104)

^^2^

ILE THIS REPORT MAY BE SUBJECT

RUNG INSTRUCTIONS:

Mil sipad criginl vd ] •ddkional cops ID CanvTvnee on Financial Oadosur

Admjnjoraljvt Officr of the

United StausCouls

One Qjliaiibus Gndt. N E. SuiK ?»l

Washinglon. DC 20S44
885

FIKANCIAL STATENtENT

NET WORTH

Provide a complete, cuncol fuianciiJ net worth sutemeni which itemizes in detail

all aisets Ccluding bank accounts, real estate, securities, tnists, investments, and other financial

holdings) all liabilities C>nclixling debts, mortgages, loans, and other financial obligaoons) of

yourself, your spouse, and other immediate members of your household.

ASSETS UABILITia

Cua aa tud •»< in fcub 8 500 00 NoUl payabU to bankj-aacurad 7 000 00

VS. Gowtnaxat •<o]ria«s~«dd N«ai rayikia to l>aala-a>naacatad 4 500 00

Hoiai paya^ 10 ivlaiivaa

Nou parabk u oOian

Aeooaitt an^ nates rutivaUa: Aaaounu and tnUt dua

DM fawi fcUlivcJ and faianai Unpaid iMonM tax

Da. torn alkan CXhar afraid tai and ialcRSt

DaabM Raal auau mtn^ttcs payafala-^add 244 873 00

Itaal aslau mut—U idKdal< 332 280 00 Cbaaxl mo(iji<ca and ethar Caoa pajr*

alila

kaaj nala aiontifa rcuivabU Oihat daVu-iKaiza:

50 opp w Credit Cairds 6 750 00

13 000 00

O0«T assati-iunuza:

cppenheimec Punda Investment 75 oool 00

TIAA/CREF 65 OW w

PtHS (Jim-approximately) 191 000 00 Toul tibilioo 263 123 00

63 000 00 NalWonh 564 657 00

TaulAwu (See attached also) 827 780 00 Tcul S-fJmt and nai amh 827 780 00

ComViCtKT UABOrrJES CD.-ERAJ. INTORMATION

AJ andoficf. eomiktr or KUifanur None Afa urf aiiati plodfed? (Add aehad.

01.)

No

OB kaiat et csnnfU None

An >og dafodant is any atiiti or Ufal

acoor4* No

UfllCUni None Hava ym r>ca laUa banknjpcj^ No

Pro'Turan fsi Folcnl Inaama Tax Sone

Othu ipea;.! {.h, None

, , ,=_

45-964 98-29
886

•OTHER ASSETS CONTINVED

IRA (Ann-approximately) S 28,000 00

Shares: State Bank ofSaunemin, Illinois (Family Owned Bank) S 2,000.00

Public Employees Retirement System (PERS) My husband retired

December IS, 1994 He began drawing a monthly defined benefit of

$3,200 00 in January 1995. (Life annuity with 100% survivorship).

• 'REAL ESTA TE OWNED

2510 Highland Drive, Eugene, OR (Residence) $332,280 00
887

OlIESTIONNAIRF. FOR JUDICIAL NO^^I^fKF•S

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Jerome Barry Friedman

"Jerry"

2. Address: List current place of residence and ofHce addre$s(es).

Raidence;

Virginia Beach, VA 23456

Office;

Circuit Court Judges' Office

230S Judicial Blvd.

Building 10, Fourth Floor

Virginia Beach, VA 234S6

3. Date and place of birth.

February 19,1943

Newark, New Jersey

4. Marital Status (include maiden name ofwife, or husband's name). List spouses

occupation, employer's name and business address(es).

Sandra Katz Friedman

Teacher

Kempsville High School

5194 Chief Trail

Virginia Beach, VA

Jerome B. Friedman
Education: List each college and law school you have attended, including dates

of attendance, degrees received, and dates degrees were granted.

9/6S to 6/69 - Wake Forest School of Law - Degree J.D. 6/69

**P1ease note that I had to leave school for one year due to illness of my father in

order to help my parents. I was supposed to graduate in 1968 and most

correspondence from law school indicates that I was in the Class of 1968,

although I graduated in 1969.

9/61 to 6/65 - Old Dominion University - Degree B.S. in Finance 6/65

Employment Record: List (by year) all business or professional corporations,

companies, firms or other enterprises, partnerships, institutions and

organizations, nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or employee since

graduation from college.

Summer 6/65 - 8/6S - Shoe Salesman

Hofheimer Shoe Company

Norfolk, VA

Summer 7/66 to 9/66 - Taxi Driver

Norfolk Taxi Company

Norfolk, VA

Summer 1967 - Woriced in Winston-Salem, North Carolina for Attorney Walter

Holton, who is now deceased.

1/68 to 5/68 - Manaeement

Astro TV (My father's busineu)

Norfolk, VA

5/68 to 1/69 - Trust Administrator

First Union National Bank

Gremsboro, NC

Est. 6/69 to 9/70 - Assistant Trust Officer

First Union National Bank

Greensboro, NC

Jerome B. Friedman
889

9/70 to 1/71 - AMOciate in Law Firm

Steingoid & Steingold

Norfollt, VA

1/71 to 5/71 - AMOciate in Law Firm

Shapero, Levine & Abraliam

Norfollt, VA

5/71 to 12/71 - AMOciate in Law Firm

Shapero & Levine

Norfollt, VA

1/72 to 1/74 - Partner in Law Firm

Shapero, Levine A Friedman

Norfolk, VA

1/74 to 12/82 - Partner in Law Firm

Levine & Friedman

Virginia Beach, VA

1/83 to 6/85 - Partner Jn Law Firm

Pender & Coward

Virginia Beach, VA

6/85 to 1/91 -Judge. Juvenile & Domestic Reiationg District Court

Juvenile & Domestic Relations District Court

Virginia Beach, VA

1/91 to Present - Circuit Court Judge

Circuit Court Judges' Office

Virginia Beach, VA

Military Service: Have you had any military service? If so, give particulars,

including the dates, branch of service, rank or rate, serial number and type of

discharge received.

No.

Jerome B. Friedman
890

8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe would be of interest to the

Committee.

During my senior year at Old Dominion University I was elected first runner up

as Mr. Troubadour for general achievements. At Wake Forest I was elected

District President of Phi Alpha Delta Law Fraternity.

9. Bar Associations: List all bar associations, legal or judicial-related committees

or conferences of which you are or have been a member and give the titles and

dates of any offices which you have held in such groups.

I was a member of the Virginia Beach Bar Association, Norfolk and Portsmouth

Bar Association, Virginia State Bar, Virginia Bar Association, Virginia Trial

Lawyers Association and the American Bar Association while I practiced law.

I now hold judicial memberships in some of the above groups. I also previously

held a judicial membership in the ranson-Hoffman American Inns of Court I

am a member of the Judicial Conference of Virginia.

Prior to becoming a judge, I was a member of the 2nd District Grievance

Committee of the Virginia State Bar from 1983 to 1985.

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public bodies. Please list all other organizations to which you

belong.

At this time I do not belong to any organization. Some of the bar groups listed in

question number 9 may, on a small scale, lobby in the Virginia General Assembly.

11. Court Admission: List all courts in which you have been admitted to practice,

with dates of admission and lapses if any such membership lapsed. Please explain

the reason for any lapse of membership. Give the same information for

administrative bodies which require special admission to practice.

Upon passing the bar exam in 1969,1 was admitted to practice in all state courts

in Virginia. I was also admitted to practice before the United States District

Court for the Eastern District of Virginia on March 22,1971, and United States

Court of Appeals, 4th Circuit, on August IS, 197S.

Jerome B. Friedman
891

12. Published Writingr. 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. Ifthere were press reports about the speech, and they are readily

available to you, please supply them.

I have not written any articles to the best of my knowledge. I have made speeches

to Bar groups, civic groups, high school and college classes; however, I do not

have copies of the speeches and did not retain my notes.

13. HfiAlthi What is the present state of your health? Lbt the date of your last

physical examination.

My health is fme. My last complete physical examination was about one year ago.

I had a partial examination on March 24,1997.

14. Judicial Office: State (chronologically) any judicial offices you have held, whether

such position was elected or appointed, and a description of the jurisdiction of

each such court

July 1985 to January 1991

Judge - Virginia Beach Juvenile and Domestic Relations District Court

I was elected by the Virginia General Assembly for a full six year term. This

court hears all cases involving juveniles, either as defendants or victims to

conclusion. In some cases this court determines probable cause for felonies.

Abuse and neglect cases are heard including termination of parental rights. The

court determines support and custody matters not associated with a divorce.

January 1991 to Present

Judge - Virginia Beach Circuit Court.

I was appointed for an interim statutory term to this court by Governor L.

Douglas Wilder until the next session ofthe General Assembly. At that session

the General Assembly elected me for a full eight year term. The Circuit Court

is Virginia's court of general jurisdiction and is a court of record.

15. Citations: If you are or have been judge, provide: (1) the following are the ten

most significant opinions I have written. The opinions are attached. (2) a short

summary of and citation for all appellate opinions where your decisions were

Jerome B. Friedman
892

reversed or where your judgment was afFirmed with significant criticism of your

substantive or procedural rulings; (3) citations for significant opinions on federal

or state constitutional issues, together with the citation to appellate court rulings

on such opinions. If any of the opinions listed were not officially reported, please

provide copies of the opinions.

(1) the following are the ten most significant opinions I have written. The

opinions are attached.

Wilshire Credit Corporation v. H. Webster Brown

Docket No.! CL96-2103

Johnny E. White v. James L. Miller and Gary Samuel White

Docket No.: CH96-3S5S

Robert L. Johnson. Executor, etc.. et al v. George S. Walsh and A. Jackson

MuQO

Docket No.: CL96-2077

Russell H. Carter v. Food Lion. Inc.

Docket No.: CL95-1048

Pamela M. Veit. Administratrix of the Estate of Andre Maurice Veit v. Lakeside

Construction Corporation, et al

Docket No.: CL94-3087

Robert E. Hudson v. First Union National Bank of Virginia

Docket No.: CH96-1380

Charles W. Austin. Jr. v. Norris & St. Clair, P.C.

Docket No.! CH95-632

Kiera Inman Redd, et al v. Commonwealth of Virginia

Docket No.: CL95-3248

Arlene M. McCord. Administratrix v. John C. Gribble, d/b/a/ G&G Cycle

Worka. et al

Docket No.: CL94-900

Jerome B. Friedman
893

Frances C. Hayea v. Hamid Hambaz

Docket No.: CL94-1367

(2) a short summary of and citation for all appellate opinions where your

decisions were reversed or where your judgment was affirmed with significant

criticism of your substantive or procedural rulings;

Although I have been affirmed many times by the Supreme Court of Virginia and

the Court of Appeals of Virginia in published and unpublished opinions, the

following Is a brief description of all reversals by these courts:

Cohn-Phillips. lAd. v. Marina Shores. Ltd.. Marina Shores. Ltd. v. Cohn-Philips.

Ltd.. 246 Va. 222,435 S.E. 2d 136 (1993). This case involved a breach of a lease,

tortious interference and civil conspiracy. The Supreme Court ruled that I

should have granted the possession to Marina Shores, Ltd. because the lease was

breached by Cohn-Phillips, Ltd. for not paying rent on time. I ruled that CohnPhillips, Ltd. did not breach the terms of the lease when rent was tendered by

them late.

Curtis A. Brandon v. Commonwealth of Virginia. 22 Va. App. 82,467 S.E. 2d 859

(1996). When this robbery case was first tried, during the cross-examination of

a prosecution witness, the Commonwealth's Attorney strongly objected to a

question about the witness' alleged conviction of rape in the Juvenile and

Domestic Relations District Court. The Commonwealth's Attorney indicated to

me that this witness was very important to the Commonwealth and since the

question had been asked improperly, he asked me to declare a mistrial. After

some thought, I did. Prior to the next trial, the defendant's attorney moved that

this matter be dumissed on double jeopardy grounds. I denied the motion and the

defendant was tried and convicted. The Court of Appeals reversed stating that

I should have allowed the cross-examination in order to show bias. The Court

ruled that the record did not support the Commonwealth's claim of manifest

necessity for a mistrial to be declared.

David A. Parker Enterprises v. Templeton. 251 Va. 235, 467 S.E. 2nd 488 (1996).

The Supreme Court, in a 5 to 2 opinion, ruled that I should not have allowed two

doctors to testify that in their opinion a motor boat propeller was rotating when

the plaintiff was injured.

Jerome B. Friedman
894

Dan L. Harris v. City of Vireinia Beach. 19 Va. App. 214,450 S.E. 2d 401 (1994).

The defendant was driving a motor vehicle and was involved in two accidents

about a mile apart. One police officer charged the defendant with recldess

driving and another charged the defendant with driving under the influence. The

defendant was found guilty in another court of reckless driving. I found the

defendant guilty of the DUI. The Court of Appeals reversed my conviction in

accordance with Virginia Code Section 19.2-294.1, stating that both offenses grew

out of the same continuous, uninterrupted course of operation of the motor

vehicle.

E. Hawley Broolts v. Carolyn M. Rogers. 18 Va. App. 585, 445 S.E. 2d 725

(1994). The Court of Appeals aflirmed most of my rulings in this cause. They

reversed my decision to impute some extra income to Mr. Broolu and remanded

the cause for redetermination of child support.

Monette Hoffman v. Joseph A. Love, 245 Va. 311, 427 S.E. 2nd 357 (1993). In

this 4 to 3, decision the Supreme Court ruled that although liability was admitted,

I should have allowed the jury to decide whether the plaintiff was entitled to

punitive damages based on the defendant's intoxication.

Christopher Associates. L.P. v. J.C. Sessions. Jr.. et al.. 245 Va. 18, 425 S.E. 2nd

795 (1993). The Supreme Court ruled that I wrongly construed a certain term

of a real estate contract.

Mary Ellen Guilfoyle v. Joseph Charles Guilfoyle, 95 Vap. Unp 0561941 (1995).

The Court of Appeals affirmed many rulings, but reversed my lump sum spousal

award in favor of periodic spousal support. They also said there should be a

division of a certain certificate of deposit.

Walter Lee Cherry. Jr. v. Commonwealth of Virginia, 21 Va. App. 132, 462 S.E.

2nd 574 (1995). The Court of Appeals affirmed this case. One judge dissented

stating that he believed the search of the defendant's house exceeded the scope of

the anticipatory search warrant and was unreasonable under the Fourth

Amendment.

Jerome B. Friedman
895

(3) citations for significant opinions on federal or state constitutional issues,

together with the citation to appellate court rulings on such opinions. If any of

the opinions listed were not officially reported, please provide copies of the

opinions.

Curtia A. Brandon v. Commonwealth of Vireinia, 22 Va. App. 82,467 S.E. 2d.

859 (1996).

16. Public OflRce: State (chronologically) any public ofTices you have held, other than

judicial offices, including the terms of service and whether such positions were

elected or appointed. State (chronologically) any unsuccessful candidacies for

elective public office.

None.

17. Legal Career:

a. Describe chronologically your law practice and experience after

graduation from law school including:

1. whether you served as clerk to a judge, and if so, the name of the

judge, the court, and the dates of the period you were a clerk;

Na.

2. whether you practiced alone, and ifso, the addressed and dates;

No.

3. the dates, names and addresses of law firms or offices, companies or

governmental agencies with which you have been connected, and the

nature of your connection with each;

9/70 to 1/71 - Associate in Law Firm

Steingold & Steingold

Norfolk, VA

Jerome B. Friedman
896

1/71 to S/71 - AMOciate in Law Firm

Shapero, Levine & Abraham

Norfolk, VA

S/71 to 12/71 - Aaiociate in Law Firm

Shapero & Leviae

Norfolk, VA

1/72 to 1/74 - Partner In Law Firm

Shapero, Levine & Friedman

Norfolk, VA

1/74 to 12/82 - Partner in Law Firm

Levine & Friedman

Virginia Beach, VA

1/83 to 6/85 - Partner in Law Firm

Pender & Coward

Virginia Beach, VA

6/85 to 1/91 - Judge. Juvenile & Domeatic Relationa Di«trict Court

Juvenile & Domestic Relations District Court

Virginia Beach, VA

1/91 to Present - Circuit Court Judge

Circuit Court Judges' Office

Virginia Beach, VA

What has been the general character of your law practice, dividing

it into period with dates if its character has changed over the years?

General practice with an emphasis in civil litigation (plaintiff and

defense), real estate, domestic relations, criminal, collections,

bankruptcy.

Jerome B. Friedman
Describe your typical former clients, and mention the areas, if any,

in wliich you liave specialized.

I represented some insurance companies sucli as Old Republic

Insurance Company and The Hartford and some small

corporations. Most clients were average people in the general

practice of 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.

Generally, I appeared in court two to three days a week.

What percentage of these appearances was in:

(a) federal courts;

Approximately 10%

(b) state courts of record;

Approximately 4S%

(c) other courts.

Approximately 45%

What percentage of your litigation was:

(a) civil;

80%

(b) criminal;

15%

Jerome B. Friedman
898

(c) other;

5%

4. State the number of cases in courts of record you tried to verdict or

judgment (rather than settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Since I have been a judge for 12 years this is difficult to answer.

My best recollection over the years is about 50 cases, mostly as chief

counsel.

5. What percentage of these trials were:

(a) jury;

(b) non-jary.

90%

18. Litigation: Describe the ten most significant litigated matters which you

personally handled. Give the citations, if the cases were reported, and the docket

number and date if unreported. Give a capsule summary of the substance of

each case. Identify the party or parties whom you represented; describe in detail

the nature of your participation in the litigation and the final disposition of the

case. Also state as to each case:

(a) the date of representation;

(b) the name of the court and the name of the judge of judges before

whom the case was litigated; and

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

Jerome B. Friedman
Herbert Cherry v. Paul Robinett and Portgrnouth General Hospital

Portsmouth Circuit Court

DfltkeLNfl.: L79-956 (1979)

Presiding Judge: Lester E. Schlitz

This was a serious and difTicult medical malpractice case. I filed

suit against a very prominent surgeon and the hospital. The

negligence alleged occurred during and after surgery to remove a

tumor from Mrs. Cherry's thyroid gland. There was a protracted

medical malpractice review panel hearing and we prevailed.

Shortly before trial this case was settled for $400,000.00. Mrs.

Cherry remained in a coma until she died several months after the

settlement I was lead counsel for the plaintiff and co-counsel was

Glenn McClanan, Esquire, Kempsville Professional Center, 425

South Witchduck Road, Virginia Beach, VA 23462, (7S7) 497-94S1.

Opposing counsel was Thomas J. Harlan, Jr., Esquire, 1200

Dominion Tower, 999 Waterside Drive, Norfolk, VA 23S10. His

phone number is (757) 625-8300.

Robert James Drury v. Catherine C. Drury

Virginia Beach Circuit Court

In Chancery No.: CH84-2198: EnilSjLft.: C2322-84 (1984)

Presiding Judge: Kenneth N. Whitehurst, Jr.

Commissioner in Chancery: Edward T. Caton, P. O. Box 6,

Virginia Beach, VA 23458, (757) 428-4681

This was an interesting and important divorce case because it was

probably the first equitable distribution case in Virginia Beach.

There were no legal precedents in Virginia at that time and I had

to rely mostly on New Jersey law. The court did not agree with my

argument concerning equitable distribution. My client, Mr. Drury,

did not want to appeal the ruling. Several years later the statute

was changed and with the change we would have prevailed. The

case was heard by the Commissioner in Chancery and the

exceptions which were filed to the Commissioner's Report were

heard by Judge Whitehurst Opposing counsel was Glenn R.

Croshaw, Esquire, One Columbus Center, Suite 1010, Virginia

Beach, VA 23466, (757) 628-5625. I was the only counsel for Mr.

Drury.

Jerome B. Friedman
900

Commonwealth v. Danny I^a

Norfolk Circuit Court

Docket No.: F77-1198 (1977)

Presiding Judge: Alfred W. Whitehurst

This was a high profile murder case. The defendant and some

others killed a man on a bridge and threw him into the water. After

several days of trial, the jury convicted the defendant of second

degree murder and not first degree murder. We were able to prove

that the defendant was intoxicated and not capable of

premeditation. I was sole counsel for Mr. Lea. He thought his

conviction for second degree murder was a victory. Representing

the Commonwealth of Virginia was Lawrence Lawless who is now

a General District Court Judge in Norfolk, 811 East City Hall

Avenue, Norfolk, Virginia 23S10, (757) 664-2583.

Mildred S. Bales, in her own right. Mildred S. Bales.

Administratrix of the Estate of Benny E. Bales v. Old Republic Life

Insurance Company

Hampton Circuit Court

Docket No.: 9500(1971)

Presiding Judge: Nelson T. Overton

This was an emotional trial involving litigation over the proceeds of

a group mortgage life insurance policy against my client. Old

Republic Life Insurance Company. The plaintiff was the wife of the

decedent We alleged that Mr. Bales, a police officer, falsely

answered questions of a material nature relating to his health. This

case was important because the Supreme Court of Virginia clarified

the issue of our proper burden of proof. We did not prevail at trial,

but the Supreme Court of Virginia reversed and remanded the case

because the judge improperly instructed the jury on the burden of

proof. My partner at the time, William Shapero, and I tried the

case. When we argued the case before the Virginia Supreme

Court, Mr. Shapero argued first and I made the rebuttal argument.

Mr. Shapero later became a judge in the Norfolk General District

Court and is now retired and lives in Florida. His address is 2701

N. Ocean Boulevard, Apt. E-406, Boca Raton, Florida 33431, and

his phone number is (561) 391-5435. Opposing counsel was

George C. Overman, Esquire, 739 Thimble Shoals Boulevard, Suite

Jerome B. Friedman
901

507, Newport News, VA 23606, (757) 873-1188. The Virginia

Supreme Court cite is. Old Republic Life Insurance Company v.

Mildred S. Bales, etc.. et al. 213 Va. 771 (1973).

James M. Walker. Lenore Walker. Pealage P. Walker. IV. v. Grace

Walker Schmucker

Norfolk Circuit Court

Docket No.: C80-1180: Ended #: C13S0-81 (1980)

Presiding Judge: Thomas R. McNamara

My client was the trustee of a testamentary trust created by her

mother. The remaindermen of the trust filed a bill for declaratory

judgment alleging the trust purposes had been accomplished and

asked that the trust be terminated and the trust property be

delivered to them. My client asserted that the trust should not be

terminated. A major issue in this case was whether this trust was

active or passive. We lost this case at trial but successfully appealed

and the Supreme Court of Virginia reversed the trial court and

entered final judgment for my client. I was the only counsel for my

client Opposing counsel was Stanley G. Bryan, Esquire, 801 S.

South George Washington Highway, Chesapeake, Virginia 23323.

The Virginia Supreme Court cite is, Grace Walker Schmucker v.

Pealage P. Walker. IV. et al. 226 Va. 582 (1984).

James E. & Janet Walker v. Chester & Gloria Gifford

United States District Court for the Eastern District of Virginia

Docket No.: C/A 78-344-N (1978)

Presiding Judge: J. Calvitt Clarke, Jr.

This was a case filed under Title 42 U.S.C. § 1982, Discrimination

under the Federal Fair Housing Law. My clients were black and

attempted to rent a house from the defendants who were well known

business people in the area. The evidence at trial was that once the

defendants determined that my clients were black, they declined to

rent their house to them. At one point, there was a third party

defendant, Woodard Realty Company, that was dismissed from the

case prior to trial. This case was a bench trial and the judge found

for plaintiff. The plaintiff was awarded compensatory damages in

the amount of S2,000.00, punitive damages in the amount of

$1,000.00, attorney's fees in the amount of $1,000.00, and all

taxable costs. Although this was not a large verdict, the issues were

Jerome B. Friedman
very significant. I was sole counsel for the plaintifb. Counsel for

the GiiTords was originally Robert G. Jones, Esquire, whose address

is 128 South Lynnhaven Road, Suite 100, Virginia Beach, Virginia

23452, and his phone number is (757) 486-0333. Mr. Jones

withdrew from the case and the GifTords were represented at trial

by Michael S. Weisberg, Enquire, whose address is 101 West Plume

Street, Suite 5, Norfolk, Virginia 23510 and his phone number is

(757) 622-7740.

John W. Gee v. City of Norfolk, a municipal corporation. H. L

Watkins. W.l. Moore. Dwight Minyard and Charles D. Grant.

Chief of Police

United States District Court for the Eastern District of Virginia

Docket No.: CA82-753 - N (1982)

Presiding Judge: Walter E. Hoffman

This was a police brutality suit filed under Title 42 U.S.C. § 1983.

The case was a two-day jury trial. The jury found in favor of the

defendants. Prior to trial on December 22,1982, defendants. City

of Norfolk and Charles D. Grant, Chief of Police, were dismissed

from the case by consent order. My client was hurt rather

seriously; however, liability was difTicult to prove. We felt it was

important that the judge allow the issues to go to the jury, but

unfortunately their verdict was for the defendant. I was sole

counsel for the plaintiff. Philip R. Trapani, Esquire, was the

attorney for all of the defendants. His address is OfTice of the City

Attorney, 908 City Hall Building, Norfolk, VA 23510, and his

telephone number is (757) 664-4529

Susan Adams v. United States of America

United States District Court of the Eastern District of Virginia

Docket No.: CA79-606-N (1979)

Presiding Judge: J. Calvitt Clarke, Jr.

This was a suit filed under Title 28 U.S.C. § 2671, the Federal Tort

Claims Act It was a personal injury suit which alleged negligence

during surgery. The case never went to trial. A stipulation for

compromise settlement was presented to the Court on February 26,

1980, and an order dismissing the case based on the stipulation was

entered on April 3,1980. I was sole counsel for the plaintiff in the

case. The U. S. Attorney, Justin W. Williams, and Assistant U. S.

Jerome B. Friedman
903

Attorney John F. Kane represented the defendant. The address for

the U. S. Attorney's Office is 101 West Main Street, World Trade

Center, Suite 8000, Norfollt, Virginia 23510, and the phone number

is (757) 441-6331. However, Justin W. Williams is now with the

U.S. Attorney's Office in Alexandria. Misaddress is2100 Jamieson

Avenue, Alexandria, Virginia 22314, and his phone number is (703)

299-3700.

William Charles Simpson, individually and trading as Simpson

Home Improvement Co. v. Clarence Love

Virginia Beach Circuit Court

Docl^et No.: 16932 EnilfijLNfl^ 20145 (1971)

Presiding Judge: George W. Vakos

This was a breach of contract case. The plaintiff was seeking as

damages the amount owed on the contract for home improvement

work performed at the defendant's residence. The defendant filed

a counterclaim claiming that plaintiff failed to complete such work

and sums of money were expended to correct defective work that

had been performed. The case was tried before a jury and the jury

found in favor of the defendant on the plaintifTs motion for

judgment, and found in favor of the plaintiff on the defendant's

counterclaim. Neither side received any monetary award. When

we tried to settle this case, Ms. Brydges and I recommended to our

clients exactly what the jury ultimately did. A significant issue

arose in this two-to-three day trial involving possible heart

problems incurred by the defendant because of the aggravation he

had during the time the parties were having their problems.

Originally, Aldine J. Coffman, Jr., Esquire, represented the

plaintiff. I was substituted as counsel and solely represented the

plaintiff at trial. Janet B. Brydges, Esquire, represented the

defendant Her address is 1369 Laskin Road, Virginia Beach, VA

23451, and her phone number is (757) 428-6021.

Robert M. Cole v. Hardeea Food Systems. Inc.

Virginia Beach Circuit Court

Docket No.: L-4479; End£lL!>lfl^ 23431 (1971)

Presiding Judge: George W. Vakos

Mr. Cole alleged that his supervisors at Hardees in South Carolina

defamed him when they fired him for taking money without their

Jerome B. Friedman
904

permission while he WM an employee. There was extensive

discovery. This case was very important to my client because ofthe

potential ramirications if they lost including adverse publicity. If I

recall correctly, this case was settled just prior to trial for a very

small sum for economic reasons. I was sole counsel for Hardees.

Glenn B. McClanan, Enquire, was counsel for plaintiff. His address

is 425 South Witchduck Road, Virginia Beach, Virginia 23462-3614.

His phone number is (7S7) 497-9451.

Please find listed below the names, addresses and phone numbers of 12 members

of the legal community who have had recent contact with me.

Mary M. Kellam, Esquire

Slipow, Robusto & Kellam, P.C.

2625 Princess Anne Road

P. O. Box 6304

Virginia Beach, VA 23456

(757) 427-5094

Glenn R. Croshaw, Esquire

Willcox & Savage, P.C.

One Columbus Center, Suite 1010

Virginia Beach, VA 23466-1888

(757) 628-5625

Moody E. Stallings, Jr., Esquire

Stallings & Richardson

2101 Parks Avenue

Suite 801, Pavilion Center

Virginia Beach, VA 23451

(757) 422-4700

Richard G. Brydges, Esquire

Brydges, Mahan & O'Brien, P.C.

1369 Laskin Road

Virginia Beach, VA 23451

(757) 428-6021

Jerome B. Friedman
905

John Franklin, III, Esquire

Taylor & Walker, P.C.

1300 First Virginia Tower

S5S Main Street

Norfolk, VA 23514

(757) 625-7300

Hunter W. Sims, Jr., Esquire

Kaufman & Canoles, P.C.

One Commercial Place

P. O. Box 3037

Norfolk, VA 23514

(757) 624-3272

Jerrauld C. Jones, Esquire

Jones & Carbon

Suite 300,125 St Paul's Blvd.

Norfolk, VA 23510-2708

(757) 627-6568

James O. Broccoletti, Esquire

Zoby & Broccoletti, P.C.

6663 Stoney Point South

Norfolk, VA 23502

(757) 466-0750

Robert J. Humphreys, Esquire

Commonwealth's Attorney

2305 Judicial Blvd., BIdg. lOB

Second Floor, Judicial Center

Virginia Beach, VA 23456

(757) 427-8978

Peter T. Legler, Esquire

Office of the Public Defender

Municipal Center

Virginia Beach, VA 23456

(757) 427-4657

Jerome B. Friedman
906

Fay F. Spence, Enquire

Spence & Whitlow

1630 Dominion Tower

999 Waterside Drive

Norfolk, VA 23510

(757) 624-9649

Charles R. Hofheimer, Esquire

Charles R. Hofheimer, P.C.

Ocean Plaza Corporate Center

303 34th Street, Suite 8

Virginia Beach, VA 23451

(757) 425-5200

19. l^al Artivities: Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters thai

did not involve litigation. Describe the nature of your participation in this

question, please omit any information protected by the attorney-client privilege

(unless privilege has been waived).

I handled some interesting social security appeals, one involving carpel tunnel

syndrome, and we prevailed. I have also handled over 100 real estate closings,

some of which were very unusual and time consuming. In addition, there were

many interesting and complicated divorce matters and most settled without

contested hearings. While in practice I served on the Virginia State Bar's Second

District grievance committee.

I was Chief Judge for four years in the Juvenile and Domestic Relations District

Court. While I was Chief Judge I implemented a CASA program, a driving

school for juveniles and their parents, and a street law program. I have been

Chief Judge of the Circuit Court since July I, 1994. The Chief Judge is

responsible for handling numerous administrative matters, dealing with local

governing bodies, budgets, assignments of cases and some personnel matters.

Jerome B. Friedman
907

QUESTIONNAIRE FOR JIJDiriAI. NOMINFKS

IL HNANCIAL DATA AND CONFLICT OF INTEREST (PUBLIQ

List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits

which you expect to derive from previous business relationships, clients, or

customers. Please describe the arrangements you have made to be compensated

in the future for any financial or business interest.

Under the JRS Retirement System, if I continued in my present position, it is

estimated that my retirement benefits on February 1, 1999 would be

approximately S4,8S0.0O per month. Early retirement benefits can be collected

beginning at age 55. At this time, if confirmed by the Senate, I do not know

whether I will request early benefits upon reaching age 55.

Explain how you will resolve any potential conflict of interest, including the

procedure you will follow in determining these area of concern. Identify the

categories of litigation and financial arrangements that are likely to present

potential conflicts-of-interest during your initial service in the position to which

you have been nominated.

As far as I know there should be no conflict of interest. I have always followed

the Code of Judicial Conduct and will continue to do so.

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 that calendar year

preceding your nomination and for the current calendar year, including all

salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500.00 or more. (If you prefer to do so, copies of the

financial disclosure report required by the Ethics in Government Act of 1978,

may be substituted here.)

Jerome B. Friedman
908

My income and my wife's income and any interest received Trom savings account

and bonds are the sources of all income received. See attached Financial

Disclosure Report.

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

schedules as called for).

See Attached Statement

6. Have you ever held a position or played a role in a political campaign? If so,

please identify the particulars of the campaign, including the candidate, dates of

the campaign, your title and responsibilities.

I worked at the polls for one or two local political candidates approximately IS

years ago. I have never been on anyone's campaign staff. Prior to becoming a

judge, I probably have not contributed more than S300.00 to all candidates I

supported. I have not been involved in politics at all since becoming a judge.

Jerome B. Friedman
909

OIIKSTIONNAIRF. FOR .niDiriAI. NOMINF.FS

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 fmd some time to participate in serving

the disadvantaged." Describe what you have done to fulfill these responsibilities,

listing specific instances and the amount of time devoted to each.

While practicing law 1 always was on various court appointed lists to represent

indigent defendants. I was a cub scout den leader for two years. I was a member

of the Rotary Club for several years. I served on the Board of Directors for

Temple Israel for many years and the Hebrew Academy of Tidewater as Vice

President. While a judge in Juvenile and Domestic Relations District Court, I

was a mentor in a program established by the school system for three years.

The American Bar Association's Commentary to its Code of Judicial Conduct

states that it is inappropriate for a judge to hold membership in any organization

that invidiously discriminates on the basis of race, sex or religion. Do you

currently belong, or have you belonged to any organization which discriminates —

through either formal membership requirements or the practical implementation

of membership policies? If so, list, with dates of membership. What you have

done to try to change these policies?

I have never belonged to any such organizations. For several years while I

practiced law and until approximately 1986,1 was a member of the Rotary Club.

At that time only males were allowed membership. Several years after I resigned

from the club, the Rotary Club began admitting females.

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination?

Please describe your experience in the entire judicial selection process, from

beginning to end (including the circumstances which led to your nomination and

interviews in which you participated).

Senator Robb selected a screening committee and I, along with others, appeared

before it in January, 1997. I was one of three recommended. The Senator

arrived at a list of five candidates and I was included. The Norfolk-Portsmouth

Jerome B. Friedman
910

Bar Association rated me and two others as "highly qualified." (Note: This bar

association has about 1500 members). I was recommended by the Virginia Bar

Association, the Virginia Trial Lawyers Association, and the Virginia Women's

Attorneys Association. The most important bar recommendation was from the

Virginia State Bar. The five candidates were interviewed by and entire

committee in February 1997. I, along with two others, were given their highest

endorsement On March 15,1997,1 had a very thorough interview with Senator

Robb in Washington before he recommended me. In addition, the Department

ofJustice, the Federal Bureau of Investigation and the American Bar Association

have completed their respective evaluations concerning my candidacy. On June

10,1997,1 had a meeting with Senator John W. Warner In Washington.

Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any specific case, legal Issue or question in a manner that

could reasonably be interpreted as asking how you would rule on such case, issue,

or questions? Ifso, please explain fully.

No.

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

The role of the Federal Judiciary within the Federal government, and within

society generally, has become the subject of Increasing controversy in recent

years. It has become the target of both popular and academic criticism that

alleges that the judicial branch has usurped many of the prerogatives of other

branches and levels of government

Some of the characteristics of this "judicial activism" have been said to include:

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

grievance-resolution;

b. A tendency by the judiciary to employ the individual plaintiff as a

vehicle for the imposition of far-reaching orders extending to broad

classes of individuals;

c A tendency by the judiciary to Impose broad, affirmative duties

upon governments and society;

Jerome B. Friedman
911

d. A tendency by the judiciary toward loosening jurisdictional

requirements such as standing and ripeness; and

e. A tendency by the judiciary to impose itself upon other institutions

in the manner of an administrator with continuing oversight

responsibilities.

A judge has to make many difficult decisions. It can be especially difficult when

the law, as applied to a particular state of facts, results in what appears to be a

harsh or unfair result. It is at those times the temptation can arise to "bend" or

"creatively interpret" the law in order to achieve a more palatable result. It is

my firmly held belief that when a judge gives into such a temptation, he crosses

the line from being a judge (whose job it is to apply the law) to becoming a

legislator (whose job it is to create the law).

After 12 years as a judge, I am well aware that sometimes it is difficult to

interpret what the law is or the meaning of the statutes. That is when the trial

court judge must rely on well-established rules ofstatutory construction and stare

dedsis, always with the goal of carrying out the intention of the legislature. It is

never proper for a judge to use a case before him to advance his own personal

social agenda.

Jerome B. Friedman
912

nNANOAL STATEMETfr

NET WORTH

Provide • complete, currcirt financud net worth itatcnent wUcfa itenizes in deuU ftU Bncts (inchidnig bank nco

Mcnritiet, tnuti, invcstmcnti, UK) other finuicijU hohHings) all titbUhies (inctudtnc debts, mortgaces, ioau.

financial obtisations) of yourielf, your •poiuc, and other iiDmediate memben of your houMhold.

Cuh OB kud ud fa bulu •soo 00 Notes payable to banlu - Mcurad 2M0 0*

•ck«lub.MiiclM<lak«A> ll^MO 00

Nolca payabk to baalu •

1

Lktcd nraitttea - add Kkadab Nolai pajabla to idaliva

Uilktnl acnrilin - add ickadde Notai payabk to oiken

AccounU ud Botc* n««ivabli ActouDts aad bOb doa 46^600 M

UapaidtaramaUi

Dmtnmatkm Other OBpald tai aad iBtenal

DMMftd Heal eeUto eaortiafai payabk -

add ichcdDk - lec ichadiik -E' ITUMM M

bid M>u nnHd - add idndiili •

•~Kk«l>b-l'- 2M;XI0 00

Chanel Duit|a|ea and other Ueni

payabk

Other debb-Hemlie:

M/NM 00 PbdiatoTespkUnid 4,000 0*

CMh valM • th Isniraaca -

S^OO oo MM M

OIkv aMli - Kamte: •« Kkadab

"C- 215,034 00

Balaocc due on aato aod hoae

laaaraMe 710 ••

SMKWdal>"D' PkdpdaeUaUedJcirlih

Federatioa SM M

Total KahaUka uiAta M

Nelinfth JM.I14 M

TaUIAiMti MI^SM 00 Total •ahOltka aad aoc worth MI334 M

CONT1NCENT UABIUnXS CINIRALINFOKMATION

(unnlor ^ arhedak) No

0« teSN or eaatractf Are you a dafeadaot la aay saHi

or k|al actloaa? No

La^dalM " No

OtWr ipKbl dd>t

Jerome B. Friedman
913

OIIFSTIONNAIRK FOR JTiniriAI. NOMINFFS

FINANCIAL STATFIVIF.NT - NET WORTH

smFmiiE A

U. S. Savings Bonds S3,000.00

U. S. Treasury Note - My wife just

purdiased at auction in May, 1997. SIO.OOO.OO

$13,000.00

Jerome B. Friedman
9U

ODKSTIONNAIRK FOR .niPiriAI. NOMINF.F.S

FINANCIAL STATEMENT - NFT WORTH

SCHKniJIK B

Personal residence owned with

my wife - approximate value $260,000.00

Jerome B. Friedmaa
•IS

QUESTIONNAIRE FOR JUDICIAL NOMINF.KS

FINANCIAL STATEMFNT - NFT WORTH

scHEniriKr

Checking Account jointly owned with

my mother (her funds)at Crestar Bank

Money Market account jointly owned with

my mother (her funds) at BB&T

Two Certificates of Deposit jointly owned with

my mother (her funds) at Life Savings

Checking Account jointly owned with my

mother-in-law, Cenit Bank

Money Market Account jointly owned with

my mother-in-law (her funds)

Judicial Checking Account at Signet Bank.

Only to be used for judicial purposes, not for

personal use.

Certificate of Deposit at Cenit Bank owned

jointly with my mother-in-law,

(her funds) and my wife.

Certificate of Deposit jointly owned by my

mother-in-law, (her funds) and

my wife.

Two Money Market Accounts at Cenit Bank

jointly owned by my wife and mother-in-law,

(her funds).

Money Market Account at Signet Bank jointly

owned by my wife and mother-in-law, her funds

ToUl

S4,800.00

$3,300.00

S4S,000.00

59,900.00

$19,000.00

$6,800.00

$39,265.00

$65,912.00

$3,170.00

$7,695.00

$10,192.00

$215,034.00

Jerome B. Friedman
916

QUESTIONNAIRE FOR JUDICIAL NOMINEES

FINANCIAL STATEMENT - NET WORTH

SCHEDULE D

Under the JRS Retirement System it is estimated tliat my retirement benefits on

February 1,1999 would be approximately S4,8S0.00 per month.

Jerome B. Friednun
917

QUESTIONNAIRE FOR JUDICIAL NOiVnNEES

FINANCIAI. STATEMENT - NET WORTH

srHKniirF. K

Mortgage on residence with

GE CapiUl Mortgage Services Approximately S172,000.00

Jerome B. Friedman

45-964 98-30

NOMINATIONS OF JAMES S. WARE (U.S. CIRCUIT JUDGE); LYNN S. ADELMAN, CHARLES

R BREYER, FRANK C. DAMRELL, JR., MARTIN J. JENKINS, MICHAEL P. McCUSKEY,

G. PATRICK MURPHY, AND FREDERICA

MASSIAH-JACKSON (U.S. DISTRICT JUDGES)

WEDNESDAY, OCTOBER 29, 1997

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 2:02 p.m., in room

SD-226, Dirksen Senate Office Building, Hon. Jon Kyi presiding.

Also present: Senators Specter, DeWine, Sessions, Kohl, Feinstein, Feingold, and Durbin.

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR

FROM THE STATE OF ARIZONA

Senator KYL. Good afternoon. This Senate Committee on the Judiciary judicial nominations hearing will now begin.

In order to expedite the process—we have a lot of candidates

today—we will follow a procedure which will divide our witnesses

into three panels. The first panel will be Members of the Senate

and House who will introduce candidates. Sometimes in the past,

we have had the candidates come forward at the same time. We

will not do that this afternoon. We will hear the Members of the

House and Senate first.

Then the second panel will be the bulk of the candidates who will

come forward and be seated at the table and I will administer the

oath at that time to all of the candidates and then proceed to ask

questions seriatim. In that second panel, we will begin with a

nominee for circuit court. The third panel will do the same with

nominees for the district court, and the fourth panel will consider

a district court nominee who was carried over from a hearing yesterday.

We will necessarily, because of the presence of certain Senators

and absence, take these nominees not necessarily in any particular

order but as the Members of the House and Senate appear.

I might also indicate to the people who are in the audience that

we might be able to use a little judicial help here on the Senate

floor. We are in a bit of a procedural snafu at the moment and I

do not expect that we will nave any votes, but there will be Sen-

(919)
920

ators missing as a result of what is occurring and there are also

some Senators who are occupied elsewhere.

Finally, in order to conclude our hearing today in an expedited

way, I would ask all witnesses to be very brief, if you would,

please. I learned very early on in my judicial career that when you

are ahead, the best thing to do is to keep it short and sit down.

I think all of these witnesses, by virtue of their qualifications, are

certainly ahead by virtue of their being here today and so I would

urge all the witnesses to be brief in their presentations.

We have Senators from some of the States who are present here,

and since both Senators from Wisconsin are here, let me call upon

Senator Kohl and Senator Feingold to make their introduction here

first.

Senator Kohl.

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM

THE STATE OF WISCONSIN

Senator KOHL. Senator Kyi, Mr. Chairman, let me thank you for

holding this hearing so promptly and let me take this opportunity

to tell you why Lynn Adelman, the President's nominee for the

U.S. District Court for the Eastern District of Wisconsin, is such

a fine choice to fill the vacancy created when Judge Curran took

senior status.

First, Lynn Adelman has a record of unquestioned skill and unequaled experience in his 30 years of practice. His dedication, his

hard work, and his intelligence have been displayed in both civil

and criminal cases before the Wisconsin Supreme Court and before

the Supreme Court of the United States.

Second, Lynn Adelman has spent a life devoted to public service.

He has dedicated a great deal of his professional time to disadvantaged clients, and rather than pursue his private practice full time,

he has simultaneously served in public office. As a State senator

for 20 years, much of the time serving as chairman of the Judiciary

Committee, Adelman has championed the causes of families, crime

victims, and government accountability.

Of course, a few have suggested that legislators generally should

not be trusted to serve as judges or that Mr. Adelman, who has always held strong opinions, will not be able to resist making law

from the bench. In fact, precisely the opposite is true. Like so many

former elected officials who have proved themselves worthy Federal

judges, people like Charles Evans Hughes, William Howard Taft,

and the current District Court Judges Bob Warren and John

Chabazz of Wisconsin, Lynn Adelman understands the distinction

between judges and legislators. The role of a judge is to enforce and

to interpret laws and not to make them.

Based on this outstanding record, Lynn Adelman received high

marks from the nonpartisan commission that Senator Feingold and

I established with the State bar and his nomination has bipeirtisan

support, including the endorsement of Wisconsin's Republican Governor Tommy Thompson. Although they have not always seen eye

to eye. Governor Thompson wrote that, "Lynn is thoughtful, fair,

and open minded, as well as someone who is sensitive to and has

respect for the principle of separation of powers." Adelman under-
921

stands the proper role of each branch of government. Mr. Chairman, I request that the Governor's letter be placed in the record.

Senator KYL. Without objection, so ordered.

[The letter of Governor Thompson follows:]

GOVERNOR, STATE OF WISCONSIN,

March 21, 1997.

Hon. HERBERT H. KOHL,

U.S. Senator, Hart Senate Office Building,

Washington, DC.

Hon. RUSSELL D. FEINGOLD,

U.S. Senator, Hart Senate Office Building,

Washington, DC.

DEAR SENATOR KOHL AND SENATOR FEINGOLD: I am writing to express my support

for the appointment of State Senator Lynn Adelman to fill the Judicial vacancy in

the Eastern District of Wisconsin.

I have worked with Lynn Adelman for many years both in my capacities as Governor and as State Representative. He is thoughtful, fair and open-minded. He is

also independent, and a very hard worker.

As a State Senator and a lawyer, Lynn Adelman has had a distinguished career.

For the past twenty years LjTin has led Wisconsin's efforts to combat drunk driving.

He authored the state's comprehensive drunk driving law which has saved many

lives.

Lynn Adelman has also been an effective advocate for crime victims. He authored

an amendment to the Wisconsin Constitution to protect the rights of crime victims.

He has also championed legislation aimed at compensating crime victims, ensuring

them access to the criminal justice system, and protecting them from reprisals.

For many years, Lynn Adelman has served as the Chair of the Senate Judiciary

Committee. In that capacity he has demonstrated that he is an able and skilled legislative craftsman. For example, recently Lynn crafted an anti-stelking law that satisfied both battered women concerned about their safety and pro-life activists worried that the law might limit their right to demonstrate peacefully.

While we do not always agree, I have worked with LsTin Adelman on many issues.

For example, we have worked together to enact a number of important anti-crime

measiu-es. During may first term as Governor, Lynn helped to enact what has come

to be known as the "Life Means Life" law. For many years a life sentence in Wisconsin was not really a life sentence because of the way in which the parole system

worked. I proposed permitting judges to set specific dates for parole eligibility so

that a life sentence would truly be a life sentence. Lynn served on the conference

committee which approved the final version of the bill, and he actively worked for

its passage. Since this law was enacted, hundreds of dangerous offenders have remained in prison, and, as a result, Wisconsin is a safer place.

Lynn Adelman and I also worked together in an effort to fight drug use in Wisconsin. In 1989, I called a special session of the legislature and proposed a sweeping

bill that increased penalties for possession of heroin, cocaine, and other drugs. My

bill also esteblished drug courts in Milwaukee County and contained numerous

other anti-crime and anti-drug provisions. Ljmn worked with me to ensure this bill

was enacted.

In 1993, I proposed an omnibus crime bill to address the problem of gang-related

crime and a number of other criminal justice problems. Lynn Adelman worked with

me to help pass this bill.

Lynn Adelman was the only Senate Democrat to vote for my 1995-97 state budget

because it provided property tax relief to Wisconsin residents. He was one of only

three Senate Democrats to support construction of a new stedium for the Milwaukee

Brewers because he believed it was essential to keep major league baseball in Wisconsin. He is one of only a handful of Democrats who has consistently supported

my welfare reform initiatives over the years, and he voted for W-2 because he believed it was an effective step toward eliminating dependency.

Lynn Adelman is sensitive to and has respect for the principle of the separation

of powers. He understends the proper role of each branch of government.

I am pleased to support Lynn Adelman for appointment to the federal bench. If

I can provide you with any additional information, please do not hesitate to contact

me.

Sincerely,

TOMMY G. THOMPSON, Governor.
922

Senator KOHL. Finally, let me conclude on a personal note. My

family has known the Adelman family for over 30 years and I have

known Lynn personally for more than 20. I know that he has the

capacity, integrity, and the skill that will make him a valuable addition to the bench. I look forward to his testimony and to his

speedy confirmation and I thank you for this opportunity, Mr.

Chairman.

Senator ASHCROFT. Thank you, Senator Kohl.

Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR

FROM THE STATE OF WISCONSIN

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

It is such a pleasure to hear the fine words of my senior colleague. Senator Kohl, on behalf of Lynn Adelman. I want to join

in those words.

I was extremely pleased to hear of President Clinton's choice of

Lynn Adelman from the various names that were submitted to

him. After Senator Kohl and I received the recommendations of the

committee, we asked to look at this issue. I believe that when the

members of this committee have an opportunity to hear Lynn

Adelman's record and to hear from him directly, you will reach the

same conclusion that Senator Kohl and President Clinton and people all across Wisconsin and I have reached, and that is that Lynn

Adelman will be £ui exemplary jurist for the citizens of Wisconsin

and for the country.

Ljmn Adelman was bom in Milwaukee and is a graduate of

Princeton University and Columbia Law School. He graduated with

honors from both of these excellent institutions. After a brief period

working in New York, he returned to Wisconsin and began what

to this day has been a career of dedicated public service to the people of our State.

Lynn worked in private practice in Wisconsin beginning in 1972

and continues to do so today as a partner in the Milwaukee law

firm of Adelman, Adelman, and Murray. His wife, Elizabeth, is also

a partner in this successful firm.

He was elected in 1977 to the Wisconsin State Senate for the

28th District. In the 20 years that Lynn has represented that district, he has been a leading voice in the Wisconsin legislature. I can

tell you this because I served with him myself for 10 of those years

as a member of the Wisconsin State Senate and as one of the members of the Wisconsin State Senate Judiciary Committee, which he

chaired.

Lynn's legislative record and commitment to the people of his

district emd the State of Wisconsin has earned him a great deal of

bipartisan praise. I just want to reiterate what Senator Kohl said.

He has been warmly and strongly endorsed by our very prominent

Republican Governor Tommy Thompson, who writing in support of

the nominee, again, I want to repeat, characterized L)mn Adelman

as thoughtful, fair, and open minded. The Gfovemor notes how he

and Lynn worked hand in hand to ensure the passage of important

legislation, ranging from anticrime and antidrug legislation to welfare reform. I think that is a significant bipartisan statement.
923

As I mentioned earlier, Lynn is also a very successful attorney.

During the 20 years he has served in the Wisconsin Senate, he has

continued to practice law. During his legal career, Lynn has appeared frequently in both criminal and civil cases in both State and

Federal courts and L)ntm's considerable skills also resulted in him

arguing a case before the U.S. Supreme Court in 1993. At the same

time, he has been very respected in the State legislature.

Mr. Chairman, in light of your admonition that our remarks

should not be too long if we are, indeed, ahead, which I believe we

are on this issue, let me ask that the remainder of my statement

be placed in the record.

Senator KYL. Without objection.

[The prepared statement of Senator Feingold follows:]

PREPARED STATEMENT OF SENATOR RUSSELL D. FEINGOLD

I am pleased today to join with my colleague, Senator Kohl, in recommending

Lynn Adelman to this Committee for confirmation to the federal judiciary. I was

pleased to see President Clinton choose Lynn Adelman's name from the three forwarded to him by the nominations committee that Senator Kohl and I have established to review potential nominees for Wisconsin's federal bench.

I believe that when the Members of this Committee have an opportunity to review

Lynn Adelman's record and to hear from him directly, you will reach the same conclusion that Senator Kohl, President Clinton, people all across Wisconsin and I have

reached. That being that Lynn Adelman will be an exemplary jurist for the citizens

of Wisconsin.

Lynn Adelman was bom in Milwaukee and is a graduate of Princeton University

and Columbia Law School. He graduated cum laude from both of these excellent institutions. After a brief period working in New York, Lynn returned to his native

Wisconsin and began what to this day has been a career of dedicated public service

to the people of our State. Lynn worked in private practice in Wisconsin beginning

in 1972 and continues to do so today as a partner in the Milwaukee law firm of

Adelman, Adelman and Murray. His wife Elizabeth is also a partner in this successful firm.

In 1977, Lynn was elected to the Wisconsin State Senate for the 28th District.

In the twenty years that Lynn has represented the 28th District, he has been a

leading voice in the Wisconsin Legislature. During his tenure in the Wisconsin Senate, Ljmn has served on the Judiciary Committee and chaired that important panel

on two separate occasions, first from 1979 through 1993, and then again from 1995

until today. 1 had the distinct honor of serving with Lynn for ten years while I was

a Wisconsin State Senator and worked with him on the Judiciary Committee.

Lynn's legislative record and commitment to the people of his district and the

State of Wisconsin has earned him bi-partisan praise. In fact. Republican Governor

Tommy Thompson, writing in support of this nominee, characterized Lynn Adelman

as ". . . thoughtful, fair and open-minded . . ." The Governor goes on to note how

he and Lynn worked hand in hand to ensure the passage of important legislation

ranging from anti-crime and anti-drug legislation to welfare reform. This bi-partisan

praise is a significant statement and illustrates what those of us who have known

and worked with Lynn all know. That being that during his career, he has always

placed the best interests of the people of Wisconsin above politics and partisanship.

Lynn's efforts have also garnered him recognition from many civic groups as well.

In 1995, for example, he received the Lifetime Achievement Award for Leadership

Against Drunk Driving from Mothers Against Drunk Driving. Lynn has also been

a tireless leader in the fight to set high standards of ethics in government. His hard

work has resulted in open records laws and ethical codes for elected officials. Lynn's

work in this important area has helped to preserve and ensure the integrity of representative government in the State of Wisconsin.

As I mentioned earlier, Lynn is also a successful attorney. During the twenty

years he has served in the Wisconsin Senate, he has continued to practice law. During his legal career, Lynn has appeared in both criminal and civil cases, in both

State and federal courts. Lynn's considerable skills also resulted in him arguing before the United States Supreme Court in 1993. At the same time he has been an

influential leader in the State senate, he has also been, and continues to be, a significant and well-respected voice in the Wisconsin legal community.
924

Mr. Chairman, there can be httle doubt that Lynn Adelman's career makes him

well suited to sit on the federal judiciary. He has served with distinction in the legislative branch and understands, first-hand, the constitutionally based principle of

separation of powers—a principle which is essential to preserving our democratic

form of government.

His considerable experiences in the courtroom will also be an asset to him on the

bench. He has a unique understanding of our legal svstem which will provide him

with the temperament necessary to treat everyone who comes before him with the

respect they deserve and should expect from all judges. In short, he has all the tools

necessary to serve the people of Wisconsin with distinction. As that is the standard

that has marked his illustrious career to date, I have no doubt it will continue to

do so following his confirmation.

I want to congratulate Lynn and Elizabeth and their family on this nomination.

The people of Wisconsin, in my view, deserve nothing less than the best when it

comes to those who sit on the federal bench in our State. I believe Lynn Adelman

meets this high standard. I give my strongest possible support for the nomination

of Lynn Adelman and I look forward to working with you and other Members of the

Committee as this nomination moves through the Committee and the full Senate.

Thank you.

Senator FEINGOLD. I would also like to ask that in addition to

the letter from Governor Thompson, which Senator Kohl had

placed in the record, I have a number of letters of support from

people all across our State, Democrats and Republicans alike, including Jim Doyle, our attorney general, and many of Lynn's Senate colleagues, such as Republican State Senator Michael Ellis. I

ask that these letters be placed in the record at this time.

Senator KYL. Without objection, so ordered.

[Senator Feingold submitted the following letters:]
MS

United States District Court COPY

) of Eastern District of WiscoosiD

John W. RejmoMi 296 U.S. Counhouse (4i4)297-3in

iK't' 517 E. Wiscomin Ave. FAX (414) 277-llfl

MUwuikec. Wiscotuia S3202-4SO

January 9,1997

WISCONSIN FEDERAL NOMINATING COMMISSION

Dear Commissioners:

I am pleased to be able to recommend and attest to the

qualifications of Lynn Adeiman (or the vacancy on this court. I have

known Lynn (or almost thirty years, during which time he has

practiced law in this court, devoted his life to public service as a

memt>er o( the State Senate, and he has been a good (riend. He is

a very capable and dedicated human being.

He would bring to the position not only the dedication and

commitment to justice, but a judicial temperament and a sensitivity

to the rights of human beings. And so. It is a pleasure for me to

recommend him for this position.

Sincerely yours.

.^^^"^'^-<3lJ~Y--/^

John W. Reynolds

Judge
STATE OF WISCONSIN

DEPARTME^r^ OF JUSTICE

JAKBaCDOYlX 114 EMC Scale Capital

ATTORNEY GENERAL P.O. Box TU7

•uracatta U Brian .._,

Deputy Altonier Ceacral

January 13, 1997

Wisconsin Federal Nominating Commission

Dear Committee Members:

I understand that Lynn Adelman has expressed an interest In

being appointed as a federal judge for the U.S. District Court,

Eastern District of Wisconsin. I have known Mr. Adelman for many

years, as a lawyer, a legislator and a friend.

As an attorney in private practice, I worked together with Mr.

Adelman on several matters. As Attorney General, I have been on

the opposite side from Mr. Adelman in a number of important issues.

Most notably, Mr. Adelman and I argued the opposing positions

before the United States Supreme Court in State v. Mitchell, the

challenge to Wisconsin's hate crimes statute.

Mr. Adelman is an attorney of great skill, creativity and

tenacity. His legal work, as a litigator, writer and legislator,

manifests his strong commitment to the Constitution. While a

strong litigator, he has always shown courtesy and respect for the

other side. He has an inquisitive mind with the ability to clearly

analyze a legal issue. I believe that he would be a fine judge.

Mr. Adelman's legislative career has also 8ho%m his devotion

Co the law. He has been the main architect of Wisconsin's statutes

designed to curb drunk driving; he has been the acknowledged

legislative leader in the area of open meetings and public records;

he has been committed to ensuring that Wisconsin courts are

accessible to the people of this state.

Thank you for your consideration. If I can provide any

further information, please let me know.

Sincerely,

JED:ja
927

January 17.1997

Wisconsin Federal Nominating Committee

Dear Members ofthe Committee:

It is my understanding that your office is currently in the process ofscreening candidates to

fill a vacancy on the United States District Court for the Eastern District ofWisconsin. I am writing

to strongly encourage the consideration of Wisconsin State Senator Lynn Adflman for an

appoin'menl to this Court.

The Wisconsin Coalition Against Domestic Violence has been involved in policy

development at the state legislative level for over fifteen years. We have promoted passage of

victims rights' laws as well as proposals to provide safety and protection for battered women and

their children. There have been occasions when our opinions as victims rights' advocates and those

of Senator Adelman have differed. However, Senator Adelman has been consistent in his

representation of the position that we will never gain rights for one segment ofsociety by taking

away the rights of another segment of socict). His reputation for being a friend ofthe Constitution

precedes him wherever he goes. Senator Adelman has always maintained integrity, regardless of

the power and influence of the opposing \ lew.

We have worked with (and sometimes in opposition of) Senator .\delman on a number of

occasions With each experience we ha\e lef^ with a greater appreciation and respect for the need

to balance the constitutional rights of all persons. This was evident as we worked on developing a

"stalking law" for Wisconsin. Afier intense negotiations with many powerfiil groups, it was Senator

Adelman's revision that gained our support and, in the end, passage. Regardless ofwhether or not

his stand was popular, it always reflected the need to acknowledge the rights of all participants in

our system ofjustice.

The Wisconsin Coalition Against Domestic Violence wholeheartedly endorses Senator

Adelman's consideration for a federal judgeship. If he is selected, our only regret will be our loss

of a fine statesman in the Wisconsin State Senate.

1«0 EAST WASHINGTON AVENUE ) SUITE 232 I MADISON. WISCONSIN 53703

<O8|2SS|0S39 I IAX:60e|25S|3S«0
928

UNIVERSITY OF

WISCONSIN

MADISON

February 25, 1997

Wisconsin Federal Nominating Conunlsslon

c/o George Brovn

State Bar of Wisconsin

402 W. Wilson St.

Hadison, wi 53703

Dear Members of the Comnisslon,

Wisconsin State Senator Lynn Adelman asked if I would %nrlte to

the Commission to describe my experience in working with him on

substantive legal issues. I am happy to do so.

Over the past five or ten years I have had several

opportunities to work closely with Sen. Adelman on criminal law

issues. He has taken a strong Interest in several questions of

substantial Importance, such as the revision of sexual assault

laws, modification of the so-called rape shield statute, and review

of the need for legislation relating to battered spouses. On each

occasion, Sen. Adelman's Interest and understanding of the

substantive issues has Impressed me very favorably. He has shown

a solid grasp of complex legal Issues and an ability to engage in

the often difficult work of translating policy judgments into

statutory language that will carry them out. This indicated to me

not only a high degree of Interest and commitment, but also the

ability of a first>rate lawyer to understand challenging problems

and to propose solutions for then. Of equal Importance, he showed

great fairness in attempting to balance the Interests of victims

and defendants.

My experience with Sen. Adelman has been limited to working

with him on criminal law issues like those mentioned above. With

respect to those issues. Sen. Adelman has demonstrated substantive

knowledge and legal ability that indicates he would be well

qfuallfied to address then as a federal district judge.

Sincerely,

David E. Schultz \j

Associate Dean

Professor of Law

Continuing Education and Outreach

law School

975 B«scom Mall. Room 234B M«di(oa WI S3706 1399 6OV262-3033 1-600-355-5573 FAX: 608/263-3472
929

Milwaukee -^^

POLICF

Association

Loe« Rl WPA-AFL-OO

OFFICE: 1S«aN.FARWCU. AVENUE (SUITE 4001 MUMAUKEE.WIS32n

PHOME: t414 Z7S-2StS

Wliiii P. W«rt

W»-Pi»«id«n*

PMrlckDoyl*.

S«cv«tvy/Tr«asurar

a«vJ. Brusal Jolm P. HWTlngtan Edwart HaWatnam Jamaa Niatawtct

Da>«dStallar WdmlJ.ZMcU

Datira SehiaMar Candy MaNar

MX: (414) 273-7X17

March n, 1997

Senator Herb Kohl

330 Hart Senate Office Building

Washington, tx: 20S10

Attention: Jon Liebowitz COPY

Senator Russell D. Feingold

502 Hart Senate Office Building

Washington, DC 20510

Attention: Susanne Martinez

Dear Messrs. Kohl and Feingold:

This is to let you know of our support for the

appointment of Lynn Adelman to the vacant judicial post in

the Eastern District of Wisconsin. Our organization knows

Lynn Adelman well both as a senator and as an attorney who

has frequently represented police officers.

Lynn Adelman would make an outstanding district court

judge. He is a street-smart, no-nonsense type of person.

He is tough on crime, and he would follow the law. You can

be sure the Lynn Adelman would not be a judicial ""activist."

He has great respect for the law and for the proper roles of

the different branches of government.

If I can provide any additional Information please do

not hesitate to call.

Sincerely*

MILWAUKEE POLICE ASSOCIATION

Bradley DeBraska

President

Local #21, lUPA, ATL-CIO,

BD/cnm

• AFL-CIO
930

Karen M. Ordinans

Milwaukee County

Chaimum

County Boari ofSufcrvisan

Mirch 25,1997

The Hononble Mr. Clinton

Pmideni ofthe United States ofAmerica

1600 Pennsylvania Avenue

Washington. DC. 20515

Dear President Clinton:

I am writing to express my support ofthe nomination of Wisconsin State Senator Lynn Adelman

to the United States District Court - Eastern District ofWisconsin.

I have known Senator Adelman for ten years and have always found him to be hard working,

honest and fair. The qualities that have made him an excellent lawmaker- aruUytical thinking,

balance, and a commitment to the common good-will serve him vrell in the Judiciary. The type

of unbiased, thoughtful deliberation that Lyiui has brought to the legislature will be an asset on

the Federal bench.

While the State of Wisconsin will miss his leadership and expertise, the United Stales of

America will gain a genuine public servant who values her Constitution and the rights and

responsibilities of her citizenry. 1 give Lynn Adelman my endorsement and respectfully request

that you give every consideration to his nomination.

Sincerely,

Karen M. Ordinans

Chairman

Milwaukee County Board of Supervisors

KMOswT
Ml

County ot Mitwaukee

Office of the Sheriff

IQI Wi-il Stale Strivl • Milwaukee, Wisainsin 532.11 • 414-27M76*

Shtntf

LevtnaF. BiMwin

March 26, 1997

The President

The White House

1600 Pennsylvania Avenue

Washington, D C 20500

Dear Mr President

I am writing in support of Senator Lynn Adelman's candidacy for appointmenl to a federal

judgeship in Milwaukee.

1 have personally known Lynn Adelman for many years and highly recommend him for this

position The Senator would bring honesty, integrity and compassion to the Federal Bench.

Any consideration you can give toward the Senator's appointment would be greatly appreciated

Respectfully yours,

Leverett F Baldwin, Sheriff

Milwaukee County, Wisconsin

LFB/jmk

cc: Senator Lynn Adelman

S0fvte» to the Community SInco 1035
932

I*

r (4N)?n4lt)

STATC OF WISCONSIN

FIRST JUDICIAL DISTRICT

MILWAUKEE COUNTY COURTHOUSE

901 NORTH NINTH STREET. ROOM 609

MUWAUKEE. WISCONSIN S32U.142S

MX (414) 223-t2C4

Much 27, 1997

Mr. Charles Rijf

Counsel lo the President

The While House

Washington, DC.

Dear Mr. RufT:

I have known Lynn Adelman for many years. At this time, I know he has been in

pnictice for 29 years; and 1 believe that 1 have had dealings with him during all those yean.

Lynn is an eicellent State Senator and an excellent atlomey. Lynn practices in all areas of law

and does an extremely creditable job.

Also, I have had opportunities to examine his briefs, and they are done in a scholarly

manner. I certainly believe that he would be an asset to any cxMirt.

In addition, his interest in the administration ofjustice is laudalocy. This is a prenquiiile

of a good jujye'^day.

free to call vptm me if you wish further information.

Voy truly ywrs,

--^Patrick T. Sheidy, /

Chief Judge

PTS:mm
933

ASSEMBLY SPEAKER

BEN BRANCEL

April 2. 1997

Mr Charles RuH

Ottice of White House Counsel

The While House

1600 Pennsylvania Avenue. N W

Washington. DC POSno

Dciir Mr. RuH

This letter sen/es to endorse the nomination of Senator I ynn Adclrnan to fill tin;

vacancy on the United Stales District Court in the Eastern Uislnct ol Wisconsin.

I have served m the Legislature with State Senator Lynn Adelman lor many

years. Allliuugh we differ on many issues. Senator Adelman would bring to the court

much experience lynn is a legislator and an attorney who not <inly docs his

homework, researching issues in depth, but is able to articulate tiis position well

The oxperifirrce he has gained serving on the Senate Judiciary (^ommilti-c .is well as in

his private law practice would be an asset to the court Lynn certainly has the

qualifications and credentials needed to be a federal judge.

Please know, thai if President Clinton decides to nominaii> I ynn Adelman to fill

the vacancy in the Eastern District, 1 will do whatever I can to insure his spoedy

confimuition.

Very truly yours,

Ben Brancel

Speaker

B8:lj

cc: US. Senator Russell I eingold

U S Senator Herbert Kohl

*Tr rn^iT'.iL • f>uu< UTFtcr •
Mi

33rd DbCrict Marg^g^^Af arrow state SOIMX

-ig^^

April 3.1997

Mr. Charles Ruff

Counsel lo the Presidcnl

The White House

1600 Pennsylvania Avenue

Washington. DC. 2OSO0

Dear Mr. Ruff:

As a leader in the Republican caucus of Wisconsin's Stale Senate and as a local ofTictal

prior to this role. I have known Lynn Adelman as an individual who is dedicated to the

law and its significance in the lives of our citizens. He has been a zealous defender of the

rights of people in the nuuiner in which law and government afTects their lives.

His Senate districl is contiguous to mine and we have worked together on a number of

issues in a true bipartisan manner.

I would encourage your serious consideration of him for an appointment to the Federal

Bench in this districL

Sinceiely.

Senior Margaret Farrow

Republican Caucus Chair

omcc; f D BOH rsao. htaAaoo. W] 53r07-r»a3 • 60«-J6»-9ir4 • ToU-rtcc. 1 -«OO-«fr3-0«83 • E-mafl- iiif aiiiJlllMr 1rT

UCISLATWI >KmJNe (toifrcr) I -tOKhStl^MiaC (WTaj
935

Wisconsin Scnalc Assistant Republican Leader

Senator Brian D. Rude

- Kfm^rnrr

Charles Ruff

Counsel to the President

The While House

Washington. DC 20S00

Dear Mr. Ruff:

I am writing to you today on behalf of State Senator Lynn Adelman, my colleague in the

Wisconsin State Senate. I support the nomination of Senator Adelman for the position of District

Court Judge in the Eastern District of the State of Wisconsin. I believe Senator Adelman would be an

excelleni choice for this position.

I am a Republican Stale Senator, while Senator Lynn Adelman is a Democrat. We differ on

many issues, and bring different philosophies to our work in the Legislature and to the political process

in general. Yet. I admire Senator Adelman for his tenacity, his honesty, his incredible level of energy

and hard work, and most of all for his willingness lo speak out for the issues he believes in. The

qualities I have seen in his legislative work arc qualities which I believe would translate into an

excellent background for the judiciary, specifically for the position of District Court Judge in the

Eastern District.

Senator Adelman has never been one to shy away from tough or controversial issues. He votes

his conscience, even when it is clear he is in a distinct minority There are times when his actions in

Legislature are very unpopular, and yet he always carries through with the causes, concerns and

philosophies he believes in. This dedication to principle, philosophy and values would serve Senator

Adelman well were he to become a judge.

Thank you for the opportunity to comment on this nomination I believe you would find

Senator Adelman to be a thoughtful and effective judge It would be a fitting tribute to his many years

of service to the people of Southeastern Wisconsin if he were lo continue that service by becoming a

judge. I think he would be a very strong appointment which would be universally praised on both sides

of the aisle and by the people of our state.

I would welcome the opportunity to personally discuss the appointment of Senator Lynn

Adelman to this distinguished post.

State Senator

BDR/mq

Officr PO Bos 7M2.Mjdison.WISJ707.7U2i (608) 366-S4«IIFM (606) 267.5173

nahaOinct 115 S(h Avenue South. 1414. LICIOSK. W1 54601-40IBI (60B) 784-4607

Ti* tree I (UOI 385-U851 E.nuil Un.ltude^ktisMUf wi ..<
- Executive Director

: Ian Steinbergs

WI»eon»ln TrBop«r»'A»»oc<«tlor>, Inc.

P O Box 769 • East Troy. Wl 53:20

1 800 2320 392

April 7. 1997

Charles Ruff Counsel lo the President

White House

1600 Pennsylvania Ave

Washington, DC 20510

Dear Mr. RufT,

I has come lo my attention that Wisconsin State Senator Lynn Adelman is under considention

for appointment to Ihe judicial vacancy in the Eastern District While I do not always agree »iO

Senator Adelman's position on various issues. I do know him lo be an individual of uncommon

dctcrminaiion, integrity, courage and hard work. His reputation as a fighter against all odds h^

me conclude that he is a person of powerful commitment. If the criteria for selection include ssn

of the above, Senator Lynn Adelman would be the choice.

Sincerely,

I'y Jan Steinbergs "^

NTC Proud Member of the NAIIOHAI Troopers Coalition
937

MICHAEL G. ELUS „.«„«-

SENATE REPUBUCAN LEADER '^WSJfflBHBflff> ^ '''• SENATE DISTRICT

JHiftconein ^tate ^rnatr

April 8. 1997

Charin Ruff

Counsel to the Presidcni

1600 Pennsylvania Avenue

Wtshingion. DC 20500

Dear Mr Ruff:

I am wruif^ lo offer my reconunendsiion and suppon for Wisconsin Siaie Senaior Lynn Adelman for ihc

appoinunenl to Dislrici Coun Judge in ihe Eastern Dislrict of Wisconsin

Lynn Adelmin and I have been colleagues in the Wisconsin Legislature for more than 20 years We

belong (o dirfcrcni poiiiical parties and we have not always seen eye lo eye on Ihe issues we have debated

over the years Whether ot not wc have agreed on a particular issue, however. I have always considered

Lynn lo be a highly principled, honest and miclligeni public servant

Lynn Adclman possesses an independent, but decidedly pnncipled. spirit that I believe makes him uniquely

qualified lo be a judge This has been demonstrated repeatedly as he. a good Democrat, has been elected

and reelected by a heavily Republican consiiluency

In the Legislature. Lynn Adclman always judges an issue on its merits before considering partisan matters.

He has been a Senate leader in such areas as demanding high ethical standards for government and

protecting free speech and other civil libenies.

I believe Lynn Adclman has all the qualiHcations and more to serve as a federal judge I am convinced he

is as deserving of this appointment as anyone else you may consider Lynn Adclman will make a fine judge

and I do not hesitate to offer my strong recommendation for such an appointment.

Thank you for your consideration If you have any further questions, please let me know.

ELLIS

Republican Leader

Wisconsin State Senate

MGE/mfb

The Honorable Senator Orin Hiich

The Honorable Senator Herbert H Kohl

The Honorable Senator Russell D Feingold

Horn Offlc*; 101 West Canal Street. Neenah. WI 54956 • 4I4-7M-4801

Capitol omc«: PO. Bon 7882. Madison. WI 53707-7882 • 608-266^18
938

Wiscon^h State Senator

April 8. 1997

Mr. Charles Ruff

Counsel to the Presidenl

White House

1600 Pennsylvania Avenue

Washington. D.C. 20500

Dcas Mr. Ruff:

[ ann a Republican State Senator representing the norlhern ponion of Milwaukee County

and parts of Waukesha, Washington and Ozaukee Counties. Lynn Adelman and I have

worked together in the state legislature for over six years. I have the highest regard for

his legal expertise and integrity Lynn would be an astute, conscientious and effective

judge on the United States District Court. Eastern District of Wisconsin.

During our time in the legislature together. Lynn and I have had our disagreements yet 1

respect his vast knowledge ofjudiciary and consumer matters. Lynn has been a

passionate and articulate advocate for consumers and open government. He is one of the

few practicing attorneys in the Senate and brings an applied knowledge to many laws

being debated.

In addition, the fact that he has been rc-elecicd five times to a conservative. Republican

majority district speaks highly of his respect from and ability to work with people from

all political persuasions.

Lynn Adclman is a consummate student and practitioner of good law and good

government I have every reason to believe that he will continue to uphold the highest

standards of law in a court. His unique perspective as a lawmaker and practicing attorney

nuke him an excellent candidate for the opening on the U.S. District Court

Sincerely,

Albena Darling 6

State Senator

8* Senate District

UuCAUon and FlMftclat kiMnwiions. ChMr PO Boa 7BB2 rO Boa 1I9U

'*"*'*^y MadUw. WkKonWt. SSIOT.ail Hlhnrtce. W1 SSI 749U

fhalnMS. CCOAMMC De^vlotHiwM Phone CaB.2fiU830 Phone 414-352.717?

and Urtufl AIIMri Fa tOt-n^TOM rm. 4l4JS2^ia

Suic a Fctfnal RCUUOM TotUnt 140040.1113

MM Cwnmtll** lor ihc Itovtt* of
939

R.EPB.ISENTATIVI

STEVEN

FOTI

AiSEMtLY

MAJORITY LEADER

April 8. 1997

Mr. Charies Ruff

Office of ihe While House Counsel

The While House

1600 Pennsylvania Avenue. N.W.

Washington. D.C. 20500

Dear Mr. Ruff:

This letter endorses the nomination of Stale Senator Lynn Adelman to fill

the vacancy on the United Stales District Court in the Eastern District of

Wisconsin.

Through his tenure in the Slate Lxgislaturc. I have had the opportunity to

work with Senator Adelman on several issues facing Wisconsin. I have

found Senator Adelman lo be a judicious legislator who is responsive to

his constituents. In addition, he has consistently demonstrated a zealous

allenlion to detail that serves him well as a legislator and as an attorney

His talents and strengths would match the requirements of a federal judge.

MAOISON OFFICE:

ILOOM 215 Wm

STATlCATITOt

Sincerely,

7-f-.

STEVE FOTI

Wisconsin State Representative

Assembly Majority Leader

ton OfiKi Boi I9S3

MAXMIOM. WiicoMStM S3708

16(») 2M-340I

f ML IUM> 26l-«9aS

LEClSLATIVt HOTUNE:

I (tOO) M3 «472

HOMt

1117 DicxiMi Own

coMOMOMDc Wl S30M

(414) M7-M34
Daniel M. Finley

County Execulrve

940

Waukesha

COUNTY

OFFICE OF COUNTY EXECUTIVE

April 8. 1997

Charles Ruff

Counsel lo Ihc President

The Whilehouse

Washington. DC.

Dear Mr. Ruff:

I am pleased lo ofTer my strong recommendations on behalf of Wisconsin State Senator

Lynn S. Adclman for appointment lo the position of District Coun Judge in the Eastern District

of Wisconsin. He will make an outstanding jurist.

Senator Adelman has lung been a champion of open govcmmenl and justice related

issues. Wisconsin state government reflects the many victories that Senator Adclman has won in

making us more open and responsive to the people and to the rights of individuals.

He has served Waukesha County well in the Wisconsin State Senate. He has, for the

better part of his time in public otTicc, been the only Democratic representative from this highly

Republican County. He has always persevered because of his strong record ofservice to his

constituents and thoughtful law making. As a Republican myself. I am proud to support his

nomination.

If I can offer any further help lo you in this selection process, please don't hesitate lo

contact me. Senator Adelman has been a great champion in his career for the cause of good and

open government and would make an excellent jurist for the Eastern District.

Sincerely.

Daniel M. Finley Jf

County F.xecutive (I

DMF:sh

1320 Pswaukee Road

Waukesha. Wisconsin 53t88

(414) 548-7902

Fn (414) 5487913

TOO (414) 548-7903
941

SCOTT KLUG COMMEKE COMMTTCE

(Congre£(£( of ttr JHniteli States

Hfouic o( iR(prt0(ntatib(8

Olaitiinilton. DC 20515-4902

KAITH ANOT(« (*4ViROMM[NT

ntlCOUMlMK&TlOMS AMO fmtMCf

April 9, 1997

Mr. Charles Ruff

Counsel to the President

The White House

1600 Pennsylvania Avenue, N.W.

Washington, D.C. 20500

Dear Mr. Ruff:

I am writing on behalf of State Senator Lynn s. Adelman.

Senator Adelman has been recommended to the President for

nomination to a federal district judgeship for Wisconsin's

eastern district.

Senator Adelman has served in the Wisconsin State

Legislature since 1976. During that time, he has been a member

of the Senate Judiciary Committee, where he has earned a

reputation as a strong, aggressive advocate of the judicial

system. He is widely recognized as someone who is hard working

and scholarly. He's willing to extend a cooperative hand to find

a balance in making public policy decisions and has the kind of

studious temperament that would make him an excellent judge.

Thank you for your time and consideration of my comments.

Sincerely,

/iCu^r^^

Pl^EASC "tSPONO TO

IWJJ rinrn-i OC miVMOl

MMMOM. WI uro3

|HBI«T-WOa

THIS STATKMCRV PftlNTEDON PAPER MADE Of RECVCLEO FIBERS
942

S

LEE SHERMAN DREYFUS

. G OVE RNO R

*** 1979 - 1983

,^'^/i«

^:-^«- -.,»*>^ ,^ .eit^ -A^^ . ;^ /^*^.*^6^/.^«.^^;^2/
943

'.^^

a.^*»c

y^-^iJ^ <U^^^<:>^^^'J^^^^t,,^^ .,-5e<f s^^

9/ z-^:^
944

THOMAS EPETn

CongreSK of tt)e IHniteti &t&tti

^ouet o( IKrpreetntatibes

SBaitimgton, BC 20515-4906

April 14. 1997

HMina-ttw

Charles Ruff

Counsel 10 ihc Presidcni

The While House

Dear Mr, Ruff.

I am writing to support the candidacy of Lynn Adelman for appoimment to ibe U.S.

Disirici Court for the Eastern District of Wisconsin, I have known Lynn for nearly twenty

years and have worked closely with him for three of those years.

While Lynn and I have our political differences, he has my respect

Lynn Adelman is honest, brighi and conscientious. 1 believe he has the breadth of

experience. Intellect and judgment to be a fine judge for the Eastern District.

1 strongly urge you to recommend his selection by the President.

nomas t. Pctri

Member of Congress
945

WISCONSINPROFESSIONAL POUCE ASSOCMHON

April 16.1997

The Hoaonble RuaeU D. Feiogold

United States Senate

S02 Hut Sdiale Office Building

Wutajngton. DC 20S1(M904

Dew ScoBor Pemgold:

OD bctialf of the 7000 membcn of \l^

tins oppoitunity to reoonnnaid Sonl^^

Appcaii Ktl tor the 7th Cimiil. ,, A^^

We hive ooifced with SaiantU

We have fbuod him to be a cocti^

divene points of view and rcac^^

Here in Wiaoooain, Soiator Ailefanan

01^ you to iehoualy oooaider him for the"

Toank you tot'your rnnmvialimL

" Smoerdy.

John E. Cha«wii2

Prcaitlenl. WPPA

recjep

fiSioiwtPolioe Aaaofiatioo, t want to take

'^rwi vacant United States Court of

to>MU)qaber of yean md as an advocaie.

tfmc uyiMxt with groupi ofpeople with

inanof wDoerity aid inlccrity. Wc

of Appeal! PositioiL

CcfMfal OpccaOoM: 7 N PInckMy SCnvt R20 • Madwm. WI S37(D • («•) 2S*~3M4 • l-aaO-aU-aOS

~ ts 9730 W WiMBWuftd Ibwd • 1^HI>^«». %VI SSOk • (414) 257-4000 • l-a00-236.4a0»
946

Professional Fire Fighters of Wisconsin, Inc.

7 North PifKkn«y SUMt • Suite 135 > Madison. Wl S3703-2840 • 608/251 5832

U«mb*r ol INTEHNATlONAl ASSOCIATION OF FIRE FIGHTERS 608/251-8707

MvmtMr ot WISCONSIN STATE A F ol L C I 0

Mark 0. Zelsr Mlchatl Ooblsh Rick Gala

Sr«t* Resident Sr«t» Vtcti PnuiO^iH Slat* S*c Ttmts

Mti i»i» imf itn— iMtArM^iawOH* Ma IK Wli •*>«> i<*m tBwl

MM PKWI KtM 4tl nM H«>R« rnont MI4) 111 ti» HMM PHMBH-M U>«»M

r»«nwH«i*i*i«HiiN *••»*.•« Mi«i nmn n i ri im mii WIMW

April 17. 1997

CHARLES RUFF

COUNSEL TO THE PRESIDENT

THE WHITE HOUSE

WASHINGTON DC

Dear Mr. Ruff:

It is with great enltiusiasm ttiat I write to express the recommendation of the

Professional Fire Fighters ot Wisconsin for State Senator Lynn Adelman tor the position

ol District Court Judge in the Eastern District of Wisconsin.

We have worked well with Senator Adelman throughout his long and distinguished

career in the Wisconsin State Legislature. He has been a tireless advocate for worlting

people, and has authored landmartt legislation in the fields of ethics, marital property

and open records.

His public service background alone would not be sufficient, however, to recommend

him lor a position as a District Court Judge. As an attorney. Senator Adelman has

demonstrated the courage and commitment to stand up for his progressrve principles.

His leaderstiip in such cases as the overturning of the 'gag rule' for publk; employes,

and the challenges to the bail and hate crime provisions of state law, establish his legal

credentials very well.

We are honored that you woukl consMer our opinkui on this matter, and we urge you to

strongly consider Senator Adelman for this position.

Sincerely,

Maik D. Zeier

State Presklant
947

pE(5(rf

R05ENZWEI(3

state Senator. 5th Senate District

April 28. 1997

Charles Ruff

Counsel lo the PresidrnI

The White House

1600 Pennsylvania Avenue

Washington, DC. 20500

Dear Mr. Ruff:

I heartily recommend Wisconsin State Senator Lynn Adelman for appointment to the

United Stales District Court's i".aslcrn District of Wisconsin judgeship.

Though Senaior Adelman and I MI on opposite sides of the partisan aisle, I have greatly

admired his independence .iiul vensc of fairness during my I.*! years in the Wisconsin

Legislature His ability (o consider all sides of an issue wiihoui preconceptions or

personal bias would Ix: a Hue assei on the federal Iwnch. He brings the demeanor of a

judge to each legislative session .ind hearing, and he commands the same measure of

respect No Wisconsin lawmaker kmiws more about the law,

Lynn Adelman's appointment would be applauded by conservatives and liberaLs,

Republicans and Democrats alike He merits your utmost consideration.

Sincerely, C75 V^

PEGGYI<<^NZWEIG '^ C7

State Senator - Wisconsin

Sih District

PR/IS

Slate Capilol PO Bo« /a«2. Madison Wl 5370? 'Ba2 8082662512

6236UDpet P,irk*n Mnrth Wauwatos^ Wl 53213 414 258*664
m

Fred Risser

yXi^ President

Wisconsin State Senate

May I. 1997

Charles Ruff

Counsel to ihc Presidcni

The While House

1600 Pennsylvania Avenue

Washinglon. D C 20500

Dear Mr. Ruff.

I am writing (o express my strong support for the appointment of Lynn Adelman lo the

judicial vacancy in the United Stales District Court in the Eastern District of Wisconsin.

I have served with Senator Adelman in the Wisconsin Senate since he was first elected in

1976. During most of thai lime. I have also served as President of the Senate While Lynn has

chaired the Judiciary Coinmillee, he has been an integral part of the Democrats' leadership te<>m

in the Senate and I have worked closely with him in developing our caucus' legislative agenda I

have always found Lynn to be a thoughtful and hard-working legislator deeply committed lo

Democratic principles, and I think that Lynn will make an excellent federal Judge.

Although Senator Adelman will be sorely missed in the legislature for his attention to

detail and ability to forge compromises on difficult issues, his talents and background certainly

qualify him to serve as a judge. I am pleased to provide any additional information about Senator

Adelman's qualifications for (he federal bench.

P.O. Box 78B2. Madison, WI S3707-7882 • (608)2661627 E-Mail: Sen.RisserSlegis.state.wi.us • Fax (608) Ze6-16»

PrinUd on r«Crcl«d ptptt
949

I

COUNTY EXECUTIVE

JEAN M JACOBSON

730 Wisconsin Avenue

Ri^MS!T9y«vnygs.c o >.-,«.r>r/

53403

PHONE 4I4.636-31H

Afcme.County Courlfiouse Toll Fret

laOO 242 4202

May 1, 1997

Charles Ruff

Counsel to the President •

White House . .

Washington, D.C.

Dear Mr. Ruff:

I am writing to endorse the appointment of Lynn Adelman to serve as a .

judge in the Eastern District of Wisconsin. State Senator Adelman is

thoughtful, hard-working and honest. He has served our district with

distinction in the State legislature, and he would serve with distinction as a

federal judge.

Thank you for your consideration of my recommendation.

Very truly yours,

Jean M. Jacobson

County Executive

Racine County Uses 100% Recycled Paper

45-964 98 31
950

• State of Wisconsin

Lieutenant Governor ScaKI McCmllnB

SUIeCa|M<;l.lloon22EuC • KOdiiao, Wucouis STXn

UlUltliUti PUK7 3STI

M^S. 1997

Chirtes Ruff, Counsel to the Preadenl

The White HouM

Wcjl Wing, 2"' Flooc

1600 Pennsylvania Avenue. N W

Waihington, D C 20400

Dear Mr RufT

I am writing lo recoirunend Slate Senator Lynn S Adelraan ftv appointment to the

United States l>istncl Court for the lUstem District ofWisconsin Senator Adelman's

background and expcnence make him eminently qualified for this judgcship

1 have known I.ynn Adelman siiK:c 1976 whcQ we both were dccted to the

Wisconsin State Senate Through the last sevcnl yean Senator Adelman has served as

chairman or ranking minority leader ofthe Senate comminees related lo the judiciary

Furthermore, he has long been aaive m revising aitd updating the laws of this stale

Currently, he is working toward the recodification ofWisoonsin's crimiiul laws Lynn

Addinan's intellect and abilKics are respected by his coDeagues on both sides ofthe aisle

Given his long and distinguished service to the State ofWisconsin and his

thorough knowledge ofthe law, I believe Lynn Adelman is an excellent and logical

candiilate for the fedeni bench Therefore, I urge the Clinton Administrahon to give

Senator Lynn S Addman icnous conaidentioa for appoinbnent to the II S District Coun

filr the Eastern Oistiict ofWisconsin

Thank you fix your attcntioo to lhi< matter

/^ncerely,

('"Scoit McCtUuoT ^

ijeutenani Governor
951

Senator KYL. The Chair will announce at this time that the

record will remain open for 3 days for submission of any material

that the members would like to submit.

On the assumption that these are the two introductions of Mr.

Adelman, Mr. Adelman, would you please stand so at least we can

all see who these nice words have been spoken about. We will call

you forward in a moment. I thank both of the Senators from Wisconsin for that introduction.

Since we have another member of the committee, and I see at

least one House Member, from the State of Illinois for the purpose

of making introductions of the Illinois nominees. Senator Durbin,

could I ask you to make the next introduction, please?

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR

FROM THE STATE OF ILLINOIS

Senator DURBIN. Mr. Chairman, can Congressman Evans join me

at this point?

Senator KYL. Yes; he certainly can. Representative Evans from

Illinois, as well.

Senator DURBIN. Thank you, Mr. Chairman and members of the

Judiciary Committee. It is my pleasure to introduce to you two

nominees for the Federal district courts in Illinois, Michael

McCuskey and Pat Murphy. Judge Michael McCuskey is the nominee for the central district and Pat Murphy is the nominee for the

southern district. Both men possess the necessary qualities to

make outstanding judges.

In an effort to abbreviate my remarks, to follow the chairman's

admonition, I would only add that Senator Carol Moseley-Braun

and I went through an extensive process, entertaining nominees

from across the State for the various vacancies, and after their

clearance by a commission, professional commission, we narrowed

it down to these two finalists in central and southern Illinois, I

think for good reason.

I think they bring more than legal ability to the job. Mike

McCuskey is well known throughout central Illinois and Peoria for

his work with children in local grade schools and reading projects

and also with senior citizens. Pat Murphy, we came to learn during

the course of our review of his background. He is not only a veteran

but really gives of himself unstintingly on behalf of veterans and

he has a policy in his office—^you do not make much money with

this policy, but he has given local veterans pro bono representation

whenever they walk through the door.

Indeed, if you hear their stories, you can understand why Senator Carol Moseley-Braun and I were so impressed. Pat Murphy

was bom and raised in Marion, IL. He enlisted in the Marine

Corps at the age of 17. He arrived in Vietnam to celebrate his 18th

birthday, where he served a tour of duty as an enlisted man in the

1st Marine Corps weapons platoon. When he returned to Illinois,

he earned his college degree and law degree with the help of the

G.I. bill, and after both his parents passed away, he helped to raise

his four younger siblings, although as he puts it, they all raised one

another.

Since beginning to practice law, Mr. Murphy has tried almost

100 cases before juries and another 200 before the bench. He has
952

represented banks, municipalities, school boards, insurers, and individuals in both civil and criminal matters. Mr. Murphy is married and has three children. I am sorry that they could not be here

with him today. Two are in school, one of them has to be at work,

and Mrs. Murphy is at home keeping an eye on the kids.

Mike McCuskeys story is no less impressive. For the last 9

years, he has served as a State court judge, for 2 years a circuit

judge in the 10th judicial district, and since 1990, been a justice

with the Third District Appellate Court. Bom in Peoria, before

going to law school, he worked for the local high school as a history

teacher and a baseball coach. During law school, he paid his bills

by working as a security guard. After graduating, he started his

own law firm.

Judge Mike McCuskey has an extraordinary reputation. I am

sure that Senator Carol Moseley-Braun was struck, as I was, by

the type of people who came forward to say, this man is fair, he

is firm, he has exactly the kind of temperament that we need on

the Federal bench. His family could not be with him today, but he

has a wife and two children and the children are in school and his

wife is home with them.

I am pleased to introduce these two individuals and to defer to

my colleague here. She will reiterate, I am sure, the need to fill

these vacancies as quickly as possible. In the Southern and Central

District, we have four judges edlocated for each and two vacancies

in each of the districts, so they have been declared judicial emergencies. I think it is very important that we move forward as

quickly as we can and I am pleased that we could bring two such

qualified nominees to the committee for consideration.

Senator KYL. Thank you very much. Senator Durbin.

We are now joined by Senator Moseley-Braun. Would you like to

make the next introduction?

Senator MOSELEY-BRAUN. I would, Mr. Chairman. However, Congressman Evans, who is here to speak on behalf of the nominees,

has a vote on the House side and I would just as soon let him go

forward.

Senator KYL. I would be happy to defer to Lane Evans.

STATEMENT OF HON. LANE EVANS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ILLINOIS

Mr. EVANS. Thank you. Senator. Thank you, Mr. Chairman.

I am very proud to be here to testify in support of the nomination

of Michael McCuskey for U.S. district judge for the Central District

of Illinois. I have known him for over 16 years as a former constituent, as a lawyer, and as a judge. I believe he possesses the skills

and background we seek in Federal judges.

The Peoria Journal Star called his performance as judge of the

10th Judicial Circuit of Illinois exceptional. He was recognized for

running a fast-paced courtroom. He has worked long hours to reduce the backlog of criminal cases. He dispensed tough sentences

and always considered the rights of victims. He insisted on courtroom order, but he was also known for his engaging personality.

These qualities are the reasons he received the highest score of

all attorneys in 21 Illinois counties in a poll of candidates for the

appellate and supreme court judge positions. On the appellate
953

bench, Judge McCuskey has continued to display great legal skill

and made important contributions to the administration of justice.

In 1991, the supreme court appointed Judge McCuskey to the administrative committee of the Illinois court. He also was selected

to serve as presiding judge of the third appellate district during

1993. His public speaking appearances, particularly in the area of

criminal law, demonstrate the high respect fellow judges and the

bar have for his skills and legal ability. A graduate of high school

with only a senior class of 16 students, he knows the value of hard

work. A former teacher and coach, he understands the importance

of rules and the impact law has on citizens and communities.

He is an excellent choice for the Federal bench. I salute my two

Senators for nominating him and I know he will be a great judge.

Thank you, Mr. Chairman.

Senator KYL. Thank you very much. Representative Evans.

Senator Moseley Braun.

STATEMENT OF HON. CAROL MOSELEY-BRAUN, A U.S.

SENATOR FROM THE STATE OF U^LINOIS

Senator MOSELEY-BRAUN. Thank you very much, Mr. Chairman.

I am very pleased to be here this afternoon as the Senate Judiciary Committee considers the nominations of G. Patrick Murphy

and Michael McCuskey, both nominees for the U.S. District Court

of Illinois. These two men represent the highest caliber of public

servants. They are here today because they possess the legal credentials, the experience, and temperament necessary to serve as

Federal judges. I believe that their broad legal backgrounds will

help them serve the litigants of Illinois, as well.

As you may know, Mr. Chairman, Senator Durbin and I established a judicial nominations commission to help us locate the most

qualified persons to fill vacancies on the Central, Southern, and

Northern District courts. The commission publicized the U.S. district court vacancies widely, thoroughly considered the questionnaires of all the applicants, extensively interviewed and investigated the candidates, and recommended three candidates to us

for each of the two vacancies. After this extensive process, our personal interviews, we personally interviewed the finalists for each

vacancy and we were pleased to forward to the President the

names of Mr. Murphy and Judge McCuskey.

As you have heard already, G. Patrick Murphy is a Vietnam veteran whose level head and sound moral judgment have shaped his

legal reputation. During his 19 years in private practice, Mr. Murphy has displayed outstanding legal expertise in both the Federal

and State courts. Colleagues, former adversaries, judges, and employees alike hold him in extremely high regard, both personally

and professionally. He has always shown a deep respect for the law

and an acute ability to make tough decisions.

As a judge in the Illinois court system since 1988, Michael

McCuskey has earned a reputation for being tough, but fair. He is

known statewide as being the first judge from Peoria to sentence

a criminal to Peoria's boot camp. Throughout his legal career.

Judge McCuskey has displayed the highest standards of personal

honesty and professional ethics. In the courtroom, his manner is el-
954

oquent, his opinions are well organized and well written, and he insists on moving his docket along.

While their backgrounds may differ, these men share a common

desire to give back to their communities. They are both well known

for their community outreach and their public service. In the

course of their nomination, I came to know Mr. Murphy as an avid

worker for the American Red Cross and someone who has a passion

for working with and for children. Judge McCuskey, in kind, is

known throughout central Illinois for his immense volunteer work

on veterans' issues.

The challenges that these two men will face are forTnidabl&

Every district in our State, in Illinois, is facing serious problems as

a result of not operating with a full bench and the Southern and

Central Districts are no exception. In the Southern District, the

Chief Judge has not been able to hold a civil trial for over a year,

and even as I speak to you, a major civil trial is being delayed in

the Central District, again, because of understaffing of the bencL

I am confident, however, that Judge McCuskey and Mr. Murphy

understand the challenges that they face and that they have the

qualifications, the temperament, and the compassion necessary to

meet those challenges.

I want to thank you, Mr. Chairman, sincerely for calling these

nominations forward. For all of what goes on around the nominations process, the fact is that the American people need to have

these positions filled so that the judiciary can do what it is supposed to do, which is to administer justice and recognizing the distinction between the legislative branch and the judicial one, recognizing that they are kind of two different orbits. The fact is that

this particular orbit really does touch the lives of Americans in a

particular way and the people of our State, of all the States that

are involved with this nominations process, deserve to have these

nominations acted upon expeditiously.

So I want to thank you, Mr. Chairman, for calling these nominations forward, for moving them forward. It is a step in the direction

of getting the Federal bench filled with competent, qualified, and

f'ood people who will see to it that the laws of this country are fairy administered and appropriately administered for all the people.

Thank you.

Senator KYL. Thank you. Senator Moseley-Braun. You have my

assurance, and I am sure I speak for the chairman of the full committee, that the purpose for this hearing today is to get this process

moving to the next step so that we can proceed to get the nominees

confirmed, at least voted on confirmation as quickly as possible.

Senator MOSELEY-BRAUN. Thank you.

Senator KYL. I should also mention that Congressman Ray

LaHood has been detained on the floor. His statement of introduction will be submitted for the record.

[The prepared statement of Mr. LaHood follows:]

PREPARED STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF ILLINOIS

Thank you, Mr. Chairman, for allowing me to be present here today for the nomination of Judee Michael McCuskey to the federal judiciary. I believe Judge

McCuskey will oe an outstanding addition to the ranks of the federal judidairy, and

it is truly an honor to be here to provide introductory remarks.
955

Judge McCuskey, who is a lifelong resident of Illinois, has tirelessly and selflessly

served his community well as a teacher, an advocate, lawyer and a judge. All of

these experiences will serve him well as a member of the federal judicial branch.

His legal background includes service as the Marshall County Public Defender, Circviit Judge of 5ie 10th Judicial Circuit, and his present position as a Judge of the

Third District Appellate Coiu°t. In 1991, in recognition of his hard work, he received

the Illinois Public Defender Association's Award of Excellence and Meritorious Service. His service as a felony court judge in Peoria, Illinois earned him a listing in

"Who's Who in Law Enforcement." In addition, he is the senior member of the Administrative Committee of the Illinois Appellate Court and was Chairman of the Appellate Court Executive Committee.

Judge McCuske/s public service has not been limited to the legal arena. From

1989 to 1995 he was a member of the Board of Directors of the Central Illinois

Chapter of the American Red Cross. He also serves as a member of the Peoria

League of Women Voters and the Peoria Rotary Club. And, before attending the law

school at Saint Louis University, he taught history and coached baseball at Ottawa

Township High School.

Mr. Chairman, I am proud to join my distinguished colleagues in the Senate, Senators Carol Moseley-Braun and Dick Durbin in introducing Judge McCuskey to your

committee. If Judge McCuskey's past service is any indication, and it should be, we

wll all benefit greatly from his confirmation to the federal bench. Thank you.

Senator KYL. Could I ask these two nominees now to stand? First

of all, Judge McCuskey, would you stand? Thank you very much.

We will hear from you more in just a moment. And Mr. Murphy,

Mr. Patrick Murphy? Great. Thank you for those fine statements

of introduction.

Now, since we have Senators from two other States, Senator

Feinstein being a member of the committee, I am going to ask her

for the first nomination and then we will see what other members

come forward at that time. Senator Dianne Feinstein. Senator

Boxer, please take one of those chairs. Thank you.

Senator Feinstein.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Senator Kyl and Senator DeWine, Senator Feingold. I want to begin by thanking Chairman Hatch for scheduling these hearings. I am very appreciative,

and I am honored and delighted to recommend to the committee

three district judges and one Federal appellate court nominee from

my home State, California.

Let me just begin adphabetically with the two that I nominated

to the President, the first being Charles Breyer, known as Chuck

Breyer. He has a broad range of experience in both criminal and

civil law. He is extremely well qualified for the appointment. He

served as a special prosecutor during Watergate. He has prosecuted

violent felons for 7 years as an assistant D.A. in San Francisco and

he has worked to reduce youth violence as the current chairmam of

the Juvenile Probation Commission of San Francisco. He is also experienced in civil trials and he is a partner of a top law firm.

He graduated cum laude from Harvard in 1963. He earned his

J.D. from Boalt Hall, the University of California, in 1966. He

clerked for Judge Oliver Carter in the district court in northern

California for a year following his graduation. From 1967 to 1972,

he was assistant district attorney for the city and county of San

Francisco, something my daughter has been, where he prosecuted

more than 50 felony trials, including numerous homicide cases. He
966

returned to the district attorney's office in 1979 to serve as the

chief assistant, where he supervised 90 attorneys.

He was appointed by Archibald Cox to serve as Assistant Special

Prosecutor on Watergate from 1973 to 1974. During his 2 years in

Washington, he also conducted grand jury proceedings into criminal allegations of abuse of power by White House employees. He

has served with his present law firm, Coblentz, Cahen, McCabe,

and Breyer, since 1975, except for a 1-year leave of absence for the

return to the D.A.'s office. His practice focuses primarily on complex litigation matters, both civil and criminal, in both the State

and Federal courts.

I mentioned he served as president of the Juvenile Probation

Commission. He was recommended to that spot by the San Francisco Superior Court.

His strong record as a prosecutor has earned him the respect of

many law enforcement officers. Of the finalists recommended to me

for this appointment, Charles Breyer was the No. 1 choice of the

California Narcotics Officers Association and he was also endorsed

by the San Francisco Police Officers for this position.

He is, quite simply, an outstanding man, a proven leader, suid a

person of high integrity. I am very proud to recommend him to this

committee.

I would also like to recommend Frank Damrell to the members

of the committee in hopes that he will be confirmed to serve on the

Federal District Court for the Eastern District of California. Mr.

Damrell is widely respected in the Central Valley and Sacramento

areas of our State. His 30-year career in the legal profession has

included both extensive experience in civil courts and several years

of criminal trial experience as a deputy district attorney and a deputy attorney general in California.

After graduating from Yale, he returned to California from 1965

to 1967, worked as a State deputy attorney general in the San

Francisco office. In only his second year in the office, he was the

first deputy assigned to the newly created consumer fraud unit. In

1966, he moved back to his home town of Modesto and became a

senior trial deputy in the Stanislaus County district attorney's office. He has handled numerous jury trials, including three murder

trials, during his time.

From 1968 to 1980, he opened his own law office, which is probably the largest law firm in the Central Valley. Over the years, the

Damrell firm has grown to become one of the most respected legal

firms in the State. The practice is primarily civil, with a broad

range of business litigation matters.

Since 1988, his legal practice has focused again on complex business litigation. His clients include publicly owned corporations,

closely held family corporations, public entities, and individuals.

Their businesses include farming, trucking, food processing,

wineries, construction, and manufacturing companies, distributorships, and professional corporations. He has also had specific experience in securities fraud and antitrust law.

Former Senator John Danforth wrote, smd I quote,

Frank has all the qualincations that are important for the bench. He is smart,

he is experienced, he is sensible, and he is dedicated to doing good. He has no trace
957 • ;•..

of what could become "federalitis", and he is not the kind of person who would use

his position to grind some personal or political ax.

Former Agriculture Secretary Dick Lyng wrote, "Frank Damrell

is exceptionally well qualified to serve in this post. * * * I believe

[he] will be an outstanding judge." And it goes on and on, Mr.

Chairman. Ann Veneman, the secretary of the California Department of Food and Agriculture, is a supporter, as are presiding

Judge Hugh Rose of the Stanislaus County Superior Court, Sheriif

Les Weidman of Stanislaus County^and I would like to submit for

the record a number of letters supporting his candidacy.

Senator KYL. Without objection, those letters will be considered

a part of the record.

[Senator Feinstein submitted the following letters:]

I I
958

ilAft Of CAIIK3CNW

DEPARTMENT OF FOOD AND AGRICULTURE

1220 N Street, Rm. 409

Sacramento, CA 958H

(916) 654-0433

January 17,1997

The Honorable Dianne Feinsfein

United State Senator

525 Market Street, Suite 3670

San Francisco, CA 94105

Dear Senator Feinstein:

It was nice to see you this week in Manteca during your visit with the

victims of our recent floods.

As you well know, an advisory coDunittee has submitted Frank Damrell's

name to your office for consideration of an appointment to the United States

District Court for the Eastern District of California. 1 believe, Frank would be an

extraordinary choice to fill this vacancy on the bendi.

I have pereonally and professionally known Frank Damrell for over

twenty years. I am routinely impressed by Frank's ethical nature, sound

judgment and professional ability.

Frank is exceptionally learned in the law. He began his career as a Deputy

Attorney General in San Frandsco and returned home to Modesto to work for

Stanislaus County as a Deputy District Attorney where he prosecuted numerous

felony jury trials.

In 1968, FrarJ< began a solo law practice that has grown to become one of

the premier law practices in the San ]oaquin Valley, with a current staff of 18

attorneys. Frank has practiced in federal courts and also has a strong knowledge

of public policy issues. Throughout each of his professional accomplishments,

Frank has demonstrated the highest level of ethics and persona] integrity.

Yet, there is no other accomplishment that Frank is more proud of than

his own commitment to his family and community. Fraj\k is a dedicated

husband, father and grandfather. He is also a leader of his community,

contributing both time and resounres to numerous Stanislaus County charitable

organizations and causes.

1 am reminded that since 1945, only two Stanislaus County residents have

been appointed to the federal bench. In fact, the last federal appointment to the

bench from Stanislaus County was over 17 years ago.

I have enclosed a recent Modesto Bee profile on Frank that I feel accurately

details his spirit and commitment. I believe Frank would serve the United States

District Court with distinction and honor. 1 would appreciate your consideration

on this matter.

Sincerely,

Enclosure
959

>ii- Mo-iijito Mvt- . Ik-wnit-T 1^. 1'-**•••

A Sream believer

Damrell

turns vision

into reality

Frank C Damrell Jr 's

favonie photographs Sil in

frames m his horiiff

ibrar>' Htrc is Frank Damrell

•nierlaminE Jiminy Carter in his

Tont yard on Wychffe Thore he

ts shaking hands vbith Joe

Montana. taJking to Muhammad

AJi. posing with Jerry Brov.Ti,

eaiing dinner with President

Clinton

The diplomas arc reserved for

his office u-alls Damreil, 56. is a

la\*'>'er, a graduate of YaJe Law

Sthool He has one of the largest

law prsciices in ihe Central

Valley TTie five-siory office

building he built three years ago

in downtown Modesto is named

after his father. Franlt C

Damrell Sr. who was a labor

law and tnal anomey and

Stanislaus County judge

Family portraits hang on

nearly ever> wall of his home

and his office TTierr's his greatgrandfaiher. who came west to

California in 1849. and

innumerable photos of Damrell's

UTfc, four children ru-o

grandchildren and dog Bo

Ask anyom- who knowi him

well, and they'll sav Frank

Damrell is a familv man and a

lawyer wiih (ncndi in high

places Moreover, he's a ihmker,

an unassuming man of nsion

and action which li something

that can'i be captured m a

picture frame

*To me. Frank is a

Renaissance man." says Ray

Simon, a cuunty superNisor who

has been a diend fur .IS \ean.

"I vo never knoviTi jnvonc *n1h

an mtoresi in so m.in* things

And for Frank ihere is nv such

thing as a casu;i! interrsi *

There s a stn-i <.i iLimrcirs

vision in ddwiiiiiwr Modt-siu — I

Street inpann.u:.i^ For Damrell.

1 .Street IS muir ii-.jn a p.in of

the onginal jl|it..>*i<t grid li i.s a

symbol for MIHJ- .I.- I

Frank C. Damrell Jr.'s Interests and loves are captured on the walls of his Modesto home

reviiali2aiion And it is more

After all Frank Damrell

started his life just off I Street

N^Tiitc Damrell was growing up

in old McHjesio during the postWorld War II years he would

stand at one end of the long,

tree lined I Siret'i ai dusk wiih

his sisTcf Mane and his dog.

Mickev Thc> would watch ihcif

fathrt make his sidewalk

commjTc Irom hi*; office at lOlh

and 1 lu ih( hou*-!- wuh the front

yard njp[.ulc or. Kimble Sircct

Fnf ih<- yiiunp Damrell, I

Strc'-i jnt.i Ihe smjll town hlncks

on eiltn'i side tonijined hi<

wli(,l( pf-rffft world There Wim

till- hcsjxijl wiherc he was bom.

the Mr(-ci', where he plaved tull

the m.i\(if s house where his

lather i.ilkt-d potiiies. the

S'c B-ick- Par}*; Vision

This IS another In an

occasional series protilir>g

people who make ihe

Name: Frank C DamteN

J>

Age 5.8

Job Anornev wtih

Ua-Ti'dt Nelson Scn"mp

Prtii'OS ana Ladme

Years in profession 31

Education. Graouj".' ci'

>,iie id*^ Scnoot Un'^e'siiy

fi* Caii'orma ai Borkpic., i\iia

M-oesio High School Ai^o

.inonrtea Sacipd Meai

Novitate seminary and Sant

Clara Unrvers'ty

Family W.le Ludy

Damrell. sons Frank Damretil and Jim DaTireii.

aaughiefs Ua DamreHMcKeon a"d Ar>rTc Damre>l

gi.inflcfiiWfen Cap and

Kathffine. sisier Mane

OailQ

Favorite book Cart

Sandburgs "Lmcoln '

Favorite music: Classic^'

espeoaify Moial

Favorite person Irom

history Ap'anam Lir^colrFavonte tusure activity

AnenO'ig SJI Franc.SCO

d9er games

PefSons he most'

admires Famer Gary Smii'

arK> Moi'K-r Teresa
MO

grammar school, the movie

theater and (he library

Fifty yeare since his first

vigilant watch over I Street.

Damrell takes in the view from

his fifth-floor luxury law office ai

16ih and 1 streets He can see the

rooftops of nearly every

downtown store and office

building, the pinnacle of the

McHenry Mansion — and I

Street, siill lined with trees.

"Growing up. ihis street was

the center of my universe.' he

says. "In my mind, it is still the

heart of old Modesto, but the

downtown has lost a lot of its

luster. Somehow, I feel an

obligation to preserve it. If we let

the downtown decay, our

identity as a community is at

risk, and that affecu the soul of

everyone.'

What an unexpected twist for

a man who spends his days

practicing civil taw and business

litigation to talk about a street

with such passion, to link It with

something as vast as a

'communal soul."

But in DamreU's world. I

Street is an icon — one that led

him out of town after high

school graduation and brought

him back again as an adult —

and more importaniJy. one that

has an impact on the entire

community,

Four years of sltenca

When Damrell left Modesto

after high school in 1955. he

went to Santa Clara University.

After a year, he changed his

coulee in a way that few people

do. He dropped out of school to

lead a secluded life at Sacred

Heart Noviiate. a Jesuit

seminary in Los Gatos. where he

studied to become a priest.

While there, he wasn't allowed

to go home, noi at Chnstmas or

Easter or even when his only

sister mamed Robert GalloThe seminary experience is

one he shares with Jerry Brown,

who had been his roommate at

Santa Clara.

"The seminary was an intense .

education, an experience shaped

by a certain era of Catholicism,

which IS largely faded from the

world today," Brown says. "We

lived a life of poverty, chastity,

obedience and spintual reading

It was a world apart, where

friendships were developed and

perspectives adapted.'

Damrell hears how Brown

descnt>es the expenence and

chuckles "We didn't just sii

around, meditating, reading and

speaking Latin We worked the

fields and harvested grapes."

Still, it was unlike anything he

had ever experienced in his

privileged upbringing

"Seminary life would be pretty

foreign for anyone, especially for

a fellow like me coming out of

Modesto m 1955."

After four yean. Brown and

Damrell realized they weren't

cut out for the cloistered life.

Both enrolled at the University

of California at Berkeley and

then went on to Yale Law

School.

Brown, of course, eventually

became goverrwr of California

and twice ran, unsuccessfully,

for president- Today he lives in

Oakland and does a radio talk

show called "We The People."

And Damrell? He. too. sought

a more worldly alternative to the

priesthood The theological

training led to law — lus father's

profession — which brought him

back to Modesto.

PolitlcSi taw and family

Like Brown, Brown's father

and his own father, Damrell was

drawn to politics, txith as a

lawmaker-lobbyist and as a

campaign activist.

During the John F. Kennedy

presidential campaign, he had a

chance to talk to Kennedy when

the candidate flew in to Moffett

Field with Brown's father, Pat.

who was governor.

The invitation to Kennedy's

inauguration that followed is one

of DamreU's greatest keepsakes,

but it wasn't his springboard to

the Democratic Party. He had

decided on his party allegiance

long before meeting Kennedy.

"I grew up thinking it was

perfectly logical to be a

Democrat," he says. "It was the

party of my father and of

Roosevelt and Truman and

Kennedy They cared for the

linle guy. the forgoften person,

the peoijle left behind '

Over the years, Damrell sUyed

behind the scenes in politics,

never running for office himself

Instead he walked precincts and

held fund-raisers in his home for

numerous E>emocratic

candidates, such as Brown and

his sister, Kathleen Brown. Vic

Fzzio. Tony Coelho and Dianne

Fcinstein. When former

President Jimmy Carter came to

Modesto in 1980. the Damrells

had a Fourth of July fundraiser

in their yard

Today, while partisan lines

have blurred. Damrell still is a

Democrat

"I suppose it's something

that's part of my life, part of my

family's life and part of the

tradition thai I carry out for my

father. I'm a Democrat and I

always will be a Democrat "

That doesn't mean he doesnl

have Republicans for fnendi

Has has many. Ann Verieman.

for one. says she and Damrell

call each other the day after

every election. She ts state

secretary of agriculture and

daughter of the late John

Veneman. assemblyman and

assistant secretary of health,

education and welfare

"We're from two different

parties, but we have a strong

bond when it com^ to lalkuig

about politics." Veneman says.

"Our tradition is to call each

other on the phone after every

election to hash out the details-*

Veneman was the first woman

attorney hired by DamreU's law

fuTO. She worked there for sever

years before she went to worfc a:

deputy secretary for the US.

Department of Agriculture

during the Bush presidency.

"Somehow. I became part of

the Damrell family while 1

worlted at the firm.' she says.

"I've been gone nine yean now.

and it's never changed."

As a colleague. Veneman saw

several sides of Damrell.

"Frank works very hanL When

he's engaged in B case, he works

night and day. He's a big-ptcrure

thinker, and he's very dedicated

to his work."

Law. after all, holds an even

greater interest to Damrell than

politics.

"In law. you're given a set of

facts that are new. you learn

about a business, devise

strategies, and it's kind of like a

mystery or a detective story." be

says. "There's a spini of

competition and an tniellectual

challenge of ideas, which

ultimately is what the law is

about — and from that,

hopefully, the truth emerges "

Certainly. DamreU's firm has

been successful, Wth 18

attorneys, it is one of the largest

firms m the Central Valley.

DamreU started the firm in 1968

when he moved back to Modesto

with his wife. Ludy Dykzeul. a

nurse u^ose family had

migrated to Oakdale after

worlcing with the Duicn

underground dunng World War

U. After DamreU Sr., known

even to his grandchildren as

The Judge.' retired from the

Stanislaus County Superior

Court ber>ch. he joined his son in

the firm

Mane Gallo, Damrdl's sister,

describes her brother as a chip
%1

off the old block Their father

died in 1988, rwo days after the

death of their mother. Honora

Mae Damre 11

"My father had a deep, true

love for his community, and my

brother loves this lown. too. He

cares about people deeply. At

the same time, there's a

whimsical kid in him."

Damreli. an early riser, reads

four papers every morning and

often attends Mass before he

goes to the office. He loves

books, travel, classical music,

the arts and the San Fruidsco

49crs. He went to the very first

49er game in 1946 when be was

8 years old.

Frank and Ludy raised four

children in their rambling home

on WycUffc Drive. Now they are

cmpty-nesters. Ludy DamrcU

keeps busy as a volunteer at the

Parent Resource Center, a

facility that worlts to prevent

child abuse. She also sings in the

choir and teaches children at St

Joseph's Catholic Church.

Their two older children live in

Modesto. Frank Damreli HI is a

stockbroker. He and his wife,

Gayie. have two children. Cap

and Katherine. lia DamreD*

McKeon is married to a c^tle

rancher. Alex McKcon. and is

the community resources

director for the Center for

Human Services. The two

youngest children art in college

— Anne at Sania Clara

University and Jim at Notre

Dame University Law School.

All four say their father

encouraged them to give

something back to their

communiiies

"Dad instilled in us the

responsibility we have to our

community." says Frank III. who

spent three months working in

an orphanage with Mother

Teresa in India "After I had

graduated from college, he

encouraged me to do some

spinruaJ mtrospection beyond

the annual retreats we took

together to a Benedictine

monastery That's when I

decided to go to India.'

Lia remembers her father's

taJics — life's lessons at the

dinner table, more serious

discussions in ibe library, and

now, conversaiions over coffee

at her farmhouse in OakdaJe

"He's constantly motivating

us." she says "He recently gave

me the book. The Road Less

Traveled * He lells us we can be

anything we want to be I think

he has a deep understanding of

what that is about."

Damrelt laments some of the

family trade-offs he made over

the years.

"When I was younger. I was

involved in more boards than I

could count," he says "1 was

heavily involved in politics and I

spent a good deal of my time in

Washington and Sacramento '

Says Ua. 'He tells us aU the

time about how he regrets not

being with us more while we

were teen-agers."

Maybe iha:^ why he hearkens

back to I Street It k-eps him

closer to home

Downtown rebirth

Damreli sees not just the

ghosts of his past along 1 Street,

but the future — a place where

there's a permanent farmers

market and an art gallery that

isn't relegated to the basement

of the McHenry Museum.

•We need a place for public

art. which is something we can

all enjoy. We need to make a

permanent home for the

Modesto Symphony. We need to

celebrate the talent we have in

our community."

He's woildng on these

projects, and if his friends are

nght. he'll find a way to make

them happen.

'Frank is a very persuasive

guy, and his heart is in the right

place," says the Rev Gary Smith,

a friend from Modesto High

School. Smith, a Jesuit pnest.

has a jail ministry and works

with the homeless in Portland

Ore

"He knows how to wheel and

deal with people, and I use thai

term in the best possible sense

He's dnven by the big picture,

and that's a pretty tough thing to

argue with.'

Consider the story of

McCIaichy S<iuarc Damreli saw

the quarter-acre comer with its

abandoned gas pumps as the last

open space on I Street, a place

where people could sit on park

benches in a public rose garden.

After a reception in 1991. he

stood on the front steps of

McHenry Mansion and talked to

the chairman of McClatchy

Newspapers about donating the

land, owned by The Modesto

Bee. for a dty park.

"I wasn't going to let that one

get away." Damreli says "I was

going to slay with it. no maner

what it took '

It took two years of

persuasion, but McClatchy

donated the property, and for

the next four years. Damreli. dry

officials and others worked to

raise the $135,000 to turn the lot

into a park.

Damreli takes Ultle credit

'One of my ha(^iest days was

taking this picture with the

construction workers who

donated their time to work on

the park. They are the heroes.

My vision without their sweat

wouWnt mean much"

There's more to be done

downtown, of course, and

Damreli believes the dty and

county need to get together to

rebuild the dty core. He is a

, public member of the City

County Facilities Comminee.

which had studied downtown

redevelopment proposals.

Meanwhile. OamreU is

working on another project, an

idea he spawned. It is a plaza to

honor rUmmaker George Lucas

at the Five Pomts intersection at

McHeniy Avenue. Construction

is expected to begin in the

spring. A focal point will be a

life-sire brome sculpture of two

teen-agers in early '60$ dothing

and a '57 Chevy, representative

of the era of cruise celebrated in

the Lucas fUm. 'American

Graffiti."

The George Lucas Plaza

projed shows how DamreU

operates when he gets an idea

says Mayor Dick Lang.

"Frank initiates the spark that

ignites the fire under us," the

mayor says "He has a vision that

few people share, and he will

take that on as a personal task

and challenge. He initiates

calling together parties that he

thinks will be interested m

participating and before you

know it. you've got a comminee

and they're off and runrung."

Thai's why, Lang says. "When

Frank calls, you listen,"

As usual. DamreU is modest

but articulate

"One thing leads to another '

he says "You fmd these

treasures in your community.

like George Lucas, who grew up

in Modesto, and you realize we

need to celebrate them because- •

that's what gives our community

identity Thai's a reflection of

our communal soul "

There it is again. Conuounity.

DamreU leans back in hts

leather chair and takes off his

glasses. He pauses for a

momem. ' "What it comes down (o is that

Pd like to do something that has

permanence, to leave a legacy. I

think I can do that in our

community. I think I can do that

on I Street — and beyond.*
E.frJ. GALLO WINERY • Modttic. ddxfonxt

OFFICE a/ii* CHAIRHAM

January 17, 1997

The Honorable Dianne Felnstein

525 Market Street, Suite 3670

San Francisco, CA 94105

Dear Dianne!

I have been advised that Prank Damrell, Jr.

is being considered for a possible appointment to the

United States District Court for the Eastern District

of California.

1 have known Hr. Damrell for many years. I

greatly value his abilities as an attorney and have

found his judgement and integrity to be of the highest

order.

I believe he would be an outstanding choice

for this most important office.

Alj/Uie b^st,

Ernest Gallo

EG: on
963

• JAN 2 7 1997

tonqjctii of ttft ^niteb S>tate£(

l^oust of IKeprrflentatibe^

ISaSljingtan. SC 20515

Jaiiiuiy2l, 1997

The Honorable Dianne Feinstein

525 Market Street

Suite 3670

San Francisco, California 94105 • - |

Dear Senator Feinstein,

We write to you on behalfofFrank C Damrell, Jr and urge your highest consideration for his

appointment to the United States District Court for the Eastern District ofCalifornia

Frank Damrell distinguished himself as a graduate of U.C. Berkeley and Yale Law School,'then

went on to become a prosecutor as the Deputy Attorney General in San Francisco and as a Senior

Deputy District Attorney for Stanislaw County.

His private law practice now consists of eighteen attorneys with offices in Modesto, Sacramento,

and Oakdale California He has admission to the United States Supreme Court and the U.S.

District Court ofCalifornia

Frank Damrell's depth of knowledge on the issues of agriculture, education, energy,

transportation, and business-related litigation is unsurpassed

He and his wife, Lidwiena, have raised four outstanding children while simultaneously committing

themselves to their community which is legendary in the Central Valley Frank Damrell's

affiliations and activities read like a "who's who" of citizen leadership We are enclosing a copy of

this honor roll ofservice for your perusal

Not since 1979 has any individual been appointed to serve from this region to the US District

Court for the Eastern District of California
964

The appointment of Frank Damrell would bring great distinction to the court, be a noble addition

to our nation's system ofjurispnidence. and would validate what we and people ofThe Valle)'

already know and deeply appreciate that Frank Damrell is an eictraordinary human being

and a man of great mtellect, integrity and accomplishment

We are very proud to support him

Smcerely

PCC5
965

United States Department of the Interior

OFFICE OF THE DEPUTY SECRETARY

Wajhinglon. DC 20240

ftB 12 1997

January 21, 1997

Honorable Dianne Feinstein

United States Senate

Washington, D.C. 20510

Dear Senator Feinstein:

Frank Damrell has been recommended for a judgeship in the Sacramento district. He is well

qualified, well known, and well suited for the appoinmient. Since we have both worked with

Frank for many years, I am sure you already kiiow that he would be a good, solid

confirmable appointee.

Please gjve Frank your full consideratioa

^^^^

I Garamendi

'Deputy Secretary
966

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Bank of America

Kathkcfl Brpwn

January 21, 1997 SMUW Vne Presidera 4

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Uana9«fTMnl SvrvicM Graup

The Honorable Dianne Fcinstcin

525 Market Street

Suite 3B70

San Francisco, CA 9410?

Dear njiJinjt/vfc/*^-^

I am writing to urge you to nominate Frank Damrell for an appointment to the United

Slates District Court for the Eastern District of California

I have known Frank since he and my brother, Jerry, joined the Sacred Heart Novitiate

over 40 years ago. Thus, I speak with acme authority about his character for the court

and his judicial temperament.

Frank is above all a man of integrity, intelligence and loyalty. He is a family man, a

thinker and a doer. He hAS devoted his life to the practice of law and to serving his

community. Unlike many who simply give their name, Frank gives his time, his

resources and his heart to the causes v^ch he supports.

Frank has deep roots in the l^astem District and a track record of serving the people in

Ihat community. He would represent the Court with honor and distinction and make

you proud that he was your nominee.

As recently noted in an article in the Modesto Bee, Frank Damitll is "an unassuming

man of vision and action, which is something that cannot be captured in a picture

frame." I enthusiastically urge your af&mahve consideration for his nomination.

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The Hon. Dianne Feinstein

United States Senate

SH-331 Hart Senate Office Building

Washington. DC 20510-0504

Dear Dianne:

RE: U.S. District Court - Eastern District

Frank Damrell. Jr.

Here is a candidate/applicant who Is willing to give up a most prominent, most

successful law practice in Central California to serve. And ftere is a most qualified lawyer who,

t>ar none, is a most wonderful, tfx>ughtful, decent, and lair human being. These are not fancy

adjectives; they are simple true statements.

Ol3viously Frank is a friend. During a recent chat he mentioned a possible

Judgeship and I volunteered to write to you. Please note UCB and Yale Law School, note the

broad expanse of his volunteer service and of course his very signifk:ant Party activities.

I krx>w you know Frank but for your files I enck}se a personal arxj legal

biography. His woukJ be a great appointment and a great addition to the Federal Bench in

California.

Respectfully yours,

William T. Bagley

WTB/hm

Enclosures

cc: San Francisco Office

Frank C. Damrell

SFwn»ioo4i
%8

VITA

FRANK C. DAMRKM. JB

PERSONAL: Wife;

Lidwiena }. Damrell

Childrco ind Spouses:

Frank C. Damrell m and his wife, Giyle

Alida Damrell MCKCOD and her husband. Ales

Anne Marie Dunrell

James Broctaoo Damrell. who is i bw nudent at Notre Dame

EDUCATION: Santa Clara University l9ii-56

Sacred Heart Novitiate, Los Gatos, Calif., a Roman Catholic seminary

for the Jesuit Order 1956-60

University of California. Berkeley 1961 B.A.

Yale Law School 1964 LX B.

PROFESSIONAL ADMISSIONS

AM) AFFILUTIONS:

Suic Bar of California

United Suies Suprnnc Court

U.S. District Couiu of California

American Bar Association

Sunislaus County Bar Association

Federal Bar Association

PROFESSIONAL

mSTORY:

Upon graduation &om law school, I spent four years as a prosecutor, first as a Deputy Attorney

General in San Francisco and then, upon my tttun to Modesto, as a Senior Deputy Distnct

Attonjey for Stanislaus County u4iexe 1 had numerous felony jury trials, including two murder trials

I commenced ray phvaic law practice as a sole practitioner in 1968, and our firm now consists of

18 attorneys with offices in Modesto, Sacramento, and Oakdale, California; My law practice has

been unusually multifaceied and covers a wide spectrum of clients and cases. The following is a

brief profile of the history of my practice

For approximately the first twelve years, my practice was devoted exclusively lo trial worlt. Ihis

included criminal defense, plainiifTs personal uijur>' and business-related litigation I also was

engaged in state and federal appellate court practice.

Between I97» and I9S8, in addition to my uiai practice, I spent substantial time in Washington.
969

DC, as an anomcy and lobbyist oo behalf or Califoraia public and educatiooal cubtiea. agiiculhinl

associations, and the energy and Cnnsporution industry. I appeared before both the House and

Seaale Agriculture Conuninees and the House Interior and Senate Energy Committees and worked

with several federal departments and agencies. Dunn{ this same period, I also represented corporate

clients before sute legislative conuninees and state agencies in Sacramento.

Since 1988.1 have devoted my practice to complex business litigation matters in both federal and

stale courts My clients include publicly owned corporations, closely held family corporations,

public entities and individuals. My business clients include various wineries, distributorships,

farming enterprises, trucking, food processing, construction and manufacturing companies.

The balance of my trial practice involves litigation relating to antitrust law and securities fraud 1

have been both lead coiwscl and co-lead counsel in class actions filed in federal and state courts.

My clients in these cases include private and public entities, such as Stanislaus County.

All of the above litigated matters involve an extensive law and motion practice, as well as

comprehensive pre-trial orders, discover}' plans, and ultimately arbiuation or court and jury trials

AFFILIATIONS AND ACTtVlTIES:

Santa Clara University Law School Board of Regents (1986-M)

Sanu Clara Universit)- Law School Board of Visitors (1983-94)

Chair of Stanislaus County International Friendship Committee with France and Portugal

(1990-97)

Chair of "I" Street Renaissance Comminet (City of Modesto) (1990-97)

Chair of McClaichy Square Citizens Committee (City of Modesto) )1994.9S)

Chair. George Lucas Plaza Project Committee (Citj- of Modesto) (1996-97)

Public Member. City-County Public Facilities Coirunittee (1996-97)

Member of Citizens Study Group (sponsored by Tht Modesto Btt) to study the "VjJIey of

the Poor" (1996)

Chair ofthe California State Consumer Advisor)' Council (1975-80)

Member ofthe California State Consumer Advisor) Council (1973-80)

President of the Consumer Federation of California (1973-76)

Delegate, Democratic Conventions (1976,1980)

Democratic National Comminee (1980)

Member of Board of Central Catholic High School foundation

Member of Board of Directors of Pacific Institute for Community Organizations

County Co-Chair of "Keep the Promise" campaign (University of Calif, Berkeley)

Member ofthe Board of Directors, California Fanner Consumer Information Committee

Chair of the Staruslaus County Consumer Protection Comminee

Chair of the City of Modesto Crime Study Comminee

Member of Citizens for Public Safety Comminee (Proposition 172)

Member ofthe Board of Directors, Stanislaus County Legal Assistance

Member ofthe Sickle Cell Anemia Foundation Board

Member ofBoard of Directors of Learning by Earning

President ofthe Sportsmen of Stanislaus

Chair of the March of Dimes, Stanislaus County

Treasurer of the Modesto City Schools Bond Campaign for Johansen High School

Member of the Board of Directors ofthe Modesto Symphony

Member of the Board of Directors of the Stanislaus Creative Arts Council

Vice President of the Big Brothers of Greater Modesto
910

CJOVERNOR'S OFFICE

January 23. 1997

Tlie Honorable Dianne Feinstein

525 Maricct Street, Suite 3670

San Francisco, CA 94105

Dear Senator Feinstein:

It has come to my attention that Frank Damrell, an attorney and lifelong resident of Modesto

has been nominated for appointment to the United States District Court for the Eastern District of

California. I have known Mr. Damrell for several years in many capacities - as a member of the

Community, as a wife of a Superior Coun Judge, and as the former Mayor of the Oty of Modesto.

He has exhibited all the qualities and experience which will qualify him to become a seasoned and

thoughtful District Court Judge, able to apply his perspective and understanding, as well as his

knowledge of the law to the cases and decisions which will come before him.

Frank Damrell has demonstrated a consistent commitment to the community and has often

used his knowledge of the law and government to serve it As a prosecutor in the Attorney General's

office, and as a Deputy District Attorney, Frank represented the people's interest in law etiforccmenL

He has represented a broad array of clients on a wide range of legal issues and has demonstrated a

record of success in legal representation of some very complicated cases. But tnore than that, Frank

Damrell has always bwn available to assist in community projects. He has worked quietly, often

behind the scenes to see that the often underrepresented members of the community received a voice

and assistance when needed.

While I served in elected office, and as Mayor of Modesto, Frank provided assistance in

government and legal issues, and supported the City whenever needed.

Though we are of different political parties, I know Frank Damrell to be balanced and fair,

concerned and compassionate, respectful and knowledgeable about the law, its intent and application.

I am sure there will be many qualified applicants for this position, I can think of none who

will bring more to the position and be a greater credit to you and to the Nation. You may certainly feel

bte to contact me if you need more information on this important decision.

Sincerely,

Carol G. Whiteside

Director

Iniergovemmental Affairs

GOVERNOR PETE WILSON • SACRAMENTO. CALIFORNIA 9S8I4 • (916)445-2841
971

BRYAN CAVE L.LP

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JmuiyU, 1997

The Honorable Dianse Feinnem

United Statei Saute

Wuhington, D.C. 20510

DevDiuine:

I undentand that you are considering Frank Oamrcll for nomination to the Federal

Diitrict Court for the Eaatem Dictrict of California. In my opinion he would be an excellent

choice.

Frank was one of my closest 6iendi at Yale Law School, and we have kept in touch lince

then. He it bright, and beyond hit obvious credentials, I can tell you that he is a good perton.

He has character and good values. Alto, he hat a great sense ofhumor and an abihty to laugh at

himtelC which is preventative medicine to that dread disease ofthe Federal bcoch, "Federalitis."

I am certain thai being a Federal judge would be a financial sacrifice for Frank. It would

alto be an opportunity for him to be ofservice to (he country and to people, which is consistent

with his motives.

It was good to see you at the faiewell party for departing Senaton. Best wishes to you in

your efTorts to rebuild the center ofthe Senate.

Sincerely,

^V-^
972

Congress of tijc Winittts ^tatti

"*~1Sriiw~. JKastinston, B€ 20515-0508

*»(k«.-o.nAv.« Januarv28 1997

COMMnTCE ON STANOMIOB

The Honorable Dianne Feinstein , l&oui'o-c—«^ o—

Office of Senator Dianne Feinstein <^ AT-IAKM WMP

525 t^arket Street ^

Suite 3670

San Francisco, CA 94105

Dear Ser^^iO^stein:

Frank C. Damrell. Jr. has expressed an interest in an appointment to the United State

District Court for the Eastern District of California. I understand that you will soon

recommend your nominee to President Clinton and I hope you will give Frank Damrell

serious consideration.

Frank Damrell is eminently qualified for this appointment. Prior to his private practice,

Frank served at a Deputy Attorney General in San Francisco and as a Senior Deputy

District Attorney for Stanislaus County. He l>egan his private law practice in 1968 as

sole practitioner and the firm currently has 18 attorneys and two offices.

Frank has experience In trial work including criminal defense, plaintiff's personal injury

and, recently, antitrust law and securities fraud. Frank has worked in Washington, D.C.

as an attorney and lobbyist and has appeared before the House and Senate Agriculture

Committees and the House Interior and Senate Energy Committees.

Frank Damrell is a well respected member of his field and of the community and would

be an asset to the U.S. District Court for the Eastern District of Califomla. I am pleased

to give his candidacy my highest recommendation.

Thank you for your consideration of Frank Damrell's qualifications.

Sinjerely, Singer

NANC;Y PELOS)

Member of Congress

NP:ljp

THIS STATIONERV PAmTCO ON PAPER MAH OF RECVCUO FIBERS
973

RtPLY TO

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1.0CAI. OOVCItNMCNT

N*TUW*L nCSOUMCCS

SENATOR

PATRICK JOHNSTON

January 28, 1997

The Honorable Diane Felnstein

United States Senate

525 Market Street

Suite 3670

Sein Francisco, Calif., 94105

Dear Senator Feinstein:

You have before you a number of applications from

individuals requesting your nomination to President Clinton

for an appointment to the United States District Court for

the Eastern District.

It is my understanding that Frank C. Damrell Jr. is one

of those who has submitted his name for consideration.

In my opinion Frank possesses all of stellar qualities

of a federal court judge, namely: legal scholarship, judicial

temperment, intellectual and personal integrity, a strong

work ethic, and an abiding commitment and loyalty to his

community and country.

His interest in the law was born from his early childhood

observations and admiration of his father's legal career. As

you may know, the senior Frank Damrell's history of legal and

judicial service to the citizens of the Central Valley of

California is highly regarded and chronicled in local and

statewide records. After many years in private practice

advocating the causes of labor, Frank's father spent years on

the Superior Court before leaving the bench to return to private

practice with Frank Jr.

Frank's education at Santa Clara, U.C. Berkeley, and Yale

Law School gave him a strong foundation upon which to build a

well deserved reputation as both legal scholar and a formidable

litigator.

For almost 30 years Frank has dedicated himself to all

facets of the law. He spent years as a criminal prosecutor.

In civil practice he earned a well deserved reputation as a

superb trial lawyer in complex business litigation cases in
974

both federal and state courts. Before state andl tederal

regulatory boards and commissions, as well as in a lobbying

capacity, he has earned the respect and admiration of those

he has appeared before. His hallmark is preparation and a

dogged determination to achieve results by finding consensus

through creative thinking.

Members of the local bench and bar associations attest

to Frank's outsteinding reputation for integrity and ethical

conduct in professional and personal dealings. It is a

reputation that is well deserved.

Most people who have accomplished as much as Frank has

during his career, would be content to retire or, at the

very least, reduce their work schedule considerably.

Frank's work in the law gives meaning to his life. Being a

federal court judge would bring additional meaning and, I

believe usher in a greater period of service, from Frank, to

his community.

If a judge should have both a knowledge of the law and

the community that he serves, Frank is eminently qualified.

Frank was bom and raised in the Central Valley. He and

his wife, Ludy, are recognized throughout the area for their

unflagging commitment to charitable and civic causes. The

depth and breadth of their volunteer efforts is unequaled.

The quality of the Eastern District bench will be richly

enheuiced by the addition of Frank Damrell Jr.

I mo,st strongly recommend his nomin^

of the Uni ted States for this appointmen

ion to the President

PJ:r
976

K^c^^ 2J^ >ea«Al^ V^lijjK^ J)o-rtNA^\

. t*jw\ Suck Q^ p^oAArvcc-^ scV \t>;»(r\ o-flaJct

—^ V'K C\aJiror\ • J

^~r^ J^^f,^«=^£^w3«<A ^ S^< vr» »-A^ Seen .
976

FEB10 1397

SANTA CLARA UNIVtRSITV

OffO O* TMt P«£SIDfNt

FcbniaryS. 1997

The Honorable Dianne Feinstein

525 Market Street. Suite 3670

San Francisco. CA 94105

Dear Senator Feinstein:

It is my understanding that Frank C. Damrell. Jr. is being considered for an appoinoneni to the

United Sutes District Coun for the Eastnn District of California. I am pleased to write in

suppon of his appointment

I have known Frank for many years and can speak of both his legal and personal qualibes. His

legal experience has beeji extensive and varied, from public prosecutor at the State and county

level to private practice involving criminal defense, personal injury and for the last nine years

complex business litigation in both Federal and State courts. His experience has given him both

a practical and thcorctjcal appreciation of the law and its complexities and be is highly regarded

by his peers in the legal profession.

For some ten years of his private practice he also spent time in Washington as an attorney and

lobbyist lor a number of public and educational entities, agricultural associations and the energy

and transporution industry. As a result he has appeared before a number of congressional

conunittees and dealt with various federal departments and agencies.

On the more personal level, Frank has been an active member of his community serving on

numerous civic and county commissions and being heavily involved in a variety of ways with

charity and not for (n'ofit groups in the Modesto area. He served for eight years as a member of

the University's Board of Regents, the chief advisory board to the Prestdeni. In that capacity he

made thoughtful observations and suggestions on almost any item under discussion and proved

himself one of the most valuable members of the Board. He is a person of principled judgement

and high moral character who has always looked to the common good of his community rather

than individual gam or personal advancement. His personal and professional standards are of the

highest caliber.

Frank has both the professional background and the penonal iniegniy to make an outstanding

federal judge 1 am pleased to recommend him with enthusiasm and without reservation for your

consideration.

Sincerely4

-djQ^^cJ^i

PaulLocaielli.SJ.

President

SANTACLAAA CAl(rO"Ni*9M»] OOOl |<Oei&%«-4tOD FAKtOtlbW 4
917

SAN FRANCISCO 49[eS

F£B 1 2 097

SUPEfi BOWl CHAMPIONS

xvi XIX. XXM. xxrv. xxix

CanrwA Mcy

Admmtntivt Office

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4»«9CcnttnnulBou)cvvil

SMa cm. CiWonM »(64 izn

Mtptione40&rMZ4M9

FB«W 727-4937

February 7. 1997

Senator Dianne Feinstein

United States Senate

331 Hart Senate Office Building

Washington. O.C. 20510

Dear Senator Feinstein,

Please accept this letter as an unequivocal endorsement of Attorney Frank C.

Oamrell, Jr. who is seeking your support for an appointment to ttie

U.S.District Court in the Northern Division of California. Frank is an

outstanding attorney, a phenomenal family man and a major contributor to the

well being of his diverse community. He and his wonderful wife have reared

four beautiful and successful children who are a credit to their parents,

themselves and the State of California.

You will be able to notice from the attached Vita Summary that Attorney

Damrell's professional and public commitments are the essence of his life.

This letter is not intended to be a vehicle for the delivery of voluminous detail.

I simply wanted to acquaint you with the fact that Frank is truly an

outstanding person who is worthy of your consideration and trust. I would

appreciate the opportunity to provide you with specific examples of why I feel

so strongly about this man and will therefore call your administrative assistant

and try to schedule a personal telephone conversation according to your

convenience.

Please let Gail and me know when you will be in the Bay Area so that we can

attempt to sequester a small portion of your precious time and enjoy your

company in the City. We truly appreciated being included in the Holiday

Reception at your home and we were able to rekindle contacts with people we

hadn't seen for a period of time. Thank you for always thinking of us and

being so gracious. We wish you a healthy and happy 1997 and many more

to come.

Very truly yours.

Llarmen A. Policy

President

CAP/f)d
978

OPnOf OFTHE

DISTRICT ATTORNEY

JAMES C. BRAZELTCM

14, I9»7

Senat.or Diaito F«inat.*ln

Dnltttd States S«nat«

331 B«rt Building

Washington VC 20S10

Dear Sanator Feinstein:

Frank C. DaMrell. Jr.

I have learned that Modeato attorney Frank C. Damrell, Jr.

has been mentioned aa a candidate for appointment to a Federal

judgeahip. I would enthuaiastically urge euch an a|^>ointsent.

Aa I aa sure you are aware, Mr. Danrell is a life'lonq

Modesto resident. Bis family has strong roots in the coassunity,

his father having been a judge on the Superior Court bench for

many years. Mr. Daarell and his wife have been very active in

conoRUDity affairs including a great deal of charitable endeavors.

Recently, Mr. Daarell was xnstrxinental in the devalopaent of a

beautiful park near the downtown area of Modesto.

Mr. Daarell and his associates are easily recognised as the

most prestigious law fira In Stanislaus County and perhaps the

entire San Joaquln Valley. AJthougb the Daarell firm handles

very little crininal law, I have had aany contacts with Mr.

Danrell and other attorneys in his office. I an highly impressed

with the character and professionalism of nr. Damrell and his

staff.

Mr. Daarell certainly possesses all of the qualities and

experience re<3uired of a Federal Judge. I aa confident that Mr.

Daarell would be a very valuable addition to the Federal bench.

JCB/ks
979

Sheriff^JS^^rtment

PO 9Umi IND-rSTKtT

MOOUTO UirOWA BUM _

iEu>>«imi»«M< STANISLAUS COUNTY

LES WEtDMAN

fcbn»ry 14, 1997

United Sutes Serulor Dianne Feinstein

1130 O Street, Ste. 2446

Fresno. CA 93721

Re: Frank DamreU. Jr.

Dcv Seiwtor Fctostcin:

I am writing to urge your £ivonble consideration for the ippointmeot ofFrank DvnrcU, Jr.

to ibc Federal Court Bench. 1 have kjiown Frank pcrKmally and professiooally for more than 20

years.

Frank is a highly respected lawyer and notable conununity leader tn the Central Valley. He has

earned this respect with honesty and integrity and has the judicial lempet-amcDt necessary fur this

distinguished position. He is immensely qualified to serve based on his prior experiences which

date back to very bumble beginnings as a young County criminal prosecutor.

Due to time constraints, I have taken the liberty of garnering the support from Stanislaus County

District Attorney Jim Brazelton. Merced County Sheriff Tom Sawyer, and San Joaquin County

Sberiff Baxter Dunn for the appointment of Frank Danurll. Jr. (o Federal Judgeship.

1 look forward to our professional relationship.

Sincerely.

LW:bib

oe: District Attorney Jim Brazelton

SherifT Baxter Dunn

Sheriff" Tcwn Sawyer

X<^JL

LES WEIDMAN. Sheriff-CoroDer

Stanislaus County

"KCCPING THE PEACE SINCE ISM"
4 t

'r.

OloKNI FimaTIIM

CAiKemiiA

tHnttel) &tatei

m Senate

WASHINGTON, 00 2aS10-O5O4 -

(302) 224-3(41

Febroiiy26,1997'

Thb Honorable Willism Jeffenao CUnton .

President ofthe United States '';. • >

The White House • . ' • • • .

1600 Petmsylvsnie Avenue •, . • i

Wajhington,DC. 2005.0 . . .

Dc«r Mr. President:

, I enthusiasticilly submit the name ofFrank Damrcll, }r. for noroioation to ^ Fedoa]

District Court for Ac Eaxtem District of California. It is my hope that you will forward his

name to the United Stales Senate for confamation in tiie very near fiiture.

Mr. DanuvU is widely respected in the Central Valley and Sacramento areas ofthe

Eastern District. His 30-year career in tha legal professional has included both extensive

c^erience in civil courts and several years of criminal trial experience as a Deputy District

Attorney and a Deputy Attomey General in California. After a carefiil and thorou^

interview process, I can say that Frank Damrell, Ir. is exceptionally well qualified for this

position and would be an outstanding addition to the federal court.

As a managing'pattner and president ofthe Modesto law firm of Damrell, Nelaon,

Schrimp, Pallios & Ladine, Frank Dunrell has personally litigated a wide range of civil cases

that will undoubtedly prepare him for issues confronting the Eastern District. In order to give

a complete description of his noteworthy legd career, I want to outline some ofhis specific

accomplishments:

4 ' After graduating from Yale Law School, Mr. Damrell returned to his native California

'and from 196S to 1967 worked as a State Deputy Attorney General in the San

Francisco OfBce. In only his second year in the office, be was the fiiat deputy

assigned to the newly-created Consumer Fraud Unit.

4 In 1966,hemovedbacktohishometownofModestoandbecameaseniartria]dq)uty

in the Stanislaus County District Attorney's office. He handled mwerous jury trials,

including three murder trials, during this time
981

• From 1968 to 1980, Mr. Dainiell opened his own law office. Over the years, the

Damrell fiim has grown to become one ofthe most respected legal firms in the State.

His firm's practice is piimarily civil, with a broad range ofbusiness litigaticai matters.

4 From 1980 to 1988, Mr. Damrell's legal practice expanded and he became involved

in a number of major public and private projects. He became counsel for projects

such as several pubUc power plants undertaken by local irrigation districts and public

utilities; the development and funding ofthe Superconducting Super Collider by the

University of California; and several large real estate developments.

4 Since 1988, Mr. Damrell's legal practice has focused again on complex business

litigation. His clients include publicly-owned corporations, closely held family

corporations, public entities, and individuals. Clients include wineries, farming

enterprises, trucking, food processing, construction, and manu&cturiog companies,

distributor ships and professional corporations. He has also had specific experience

in securities fraud and antitrust law.

Frank Damrell knows California. I have provided so many details about Mr.

Damrell's legal career, because I wanted to make sure you had a sense ofhis comprehensive

experience. It is also important to note that he is one ofthe most respected lawyers with high

ethical standards. He is a hands-on leader with proven courtroom experience. And his

additional experience in the area of criminal law makes him the perfect candidate for this

position. I hope you'll agree and appoint him in the near future,

Mr. Damrell's varied list of clients has also given him strong bi-partisan support

among California and national leaders. I have attached for your review letters I have

obtained as oftoday. Noteworthy letters of endorsements include those firom Former United

States Senator Jack Danforth, California Agriculture Secretary Ann Veneman, Stanislaus

County Sheriff Les Weidman, Modesto County District Attorney James Brazelfon,

University of California regent Bill Bagley, Ernest Gallo of E & J Gallo Winery, Deputy

Secretary ofInterior John Garamendi, San Francisco 49CTS' President Carmen Policy, State

Senator Patrick Johnston, former State Treasurer Kathleen Brown, and six members of

California's Congressional delegation.

Seldom does one Califomian generate such broad-based and bi-parlisan support. As

these letters indicate, Mr. Damrell also has extraordinary support among the law enforcement

community. He is their No. 1 choice for this position, according to verbal comments by

office received fi-om the major law enforcement organizations.

I hope you'll agree with this recommendation. You won't be disappointed. I am

certain Frank Damrell, Jr. will serve on the judiciary with great distinction. Please let me

know ifI can be of any further assistance.

4

«--^ly.

'fanne Feinstein

' United States Senator

45-964 98-32
982

Leon E. Panetta

P O Box 42 Carmel Valley. California 93924

April 15, 1997

The Honorable William Jefferson Clinton

President of the United States

The White House

1600 Pennsylvania Avenue

Washington, D.C. 20050

Dear Mr. President:

I wish to recommend the name of Frank Damrcll, Jr. for nomination to the Federal

District Court for the Eastern District of California.

Frank Damrell has a 30-year career in the legal profession which includes both

extensive experience in civil courts as well as several years of criminal trial experience as a

Deputy District Attorney and a Deputy Attorney General in California In 1968 he started

his law practice in Modesto and his firm has expanded since then lo 18 attorneys with

offices in Modesto, Sacramento and Oakdale, California, Mr. Damrell has spent a

substantial amount of time in Washington DC as a lobbyist on behalf of California public

and educational entities, agricultural associations, the energy and transportation industry

and worked with several federal depanments and agencies on behalf of these interests.

Mr. Damrell is known for being a Democrat who tries to find bipartisan

cooperation which is further evidenced by the broad-based and bi-partisan support for his

nomination to the Federal Court. With his solid record of community

involvement and a reputation for being a key player in helping those in need and the

community at large. I believe that Frank Damrell has the persona! qualities as well as the

legal experience needed to be an understanding but independent decision maker with any

issue thai would come before him as a Federal District Court Judge.

Thank you for your consideration of Frank Damrell, Jr. for this Federal District Court

position.

LEP: CO
983

JAMES R- DIGNAN, C.P.A.

2225 Plaza Partway C-3

Modesto, Caliroraia 9S3S0

(209) 544-2093

(209) 526-6109 Fax

April 17. 1997

Senator John Ashcroft

Conmlttee on the Judiciary

224 OirksenSenate Office Bldg

Washiogton.-'{DC 20510-6275

Dear Senat<«i»Ashcrofti ^

I am Vritip^to offer my personal reconuaendation in behalf of Mr. Frank Damrell

of MoSesto, palifornia to the Federal Court Bench.

• !•' )

I havja known.and worked with Frank both personally and professionally for the

last ,thirteen years and I can attest to his integrity, his professionalism,

and hl^ great concern for the entire community. »

Frank' is-a successful business person and has created one of the most prestigious law firms in the Central Valley of California. He is a solid Catholic

and an outstanding husband and father. T cannot recommend him highly enough

for such a special appointment.

With all the possibilities of other individuals being considered for Federal

judgeship, Frank is a conservative American, with strong moral roots and has

demonstrated the highest standards of honesty and integrity.

Thanking you for your attention to this possible nomination. I am confident

that Mr. Frank Damrell would be a very valuable appointment to the Federal

Court Bench.

Very truly yours.
984

/\MADOR VALLEY HIGH SCHOOL

A California Distinguished School

1155 SANTA RtTA ROAD* PL£ASA^TOK. CAUFOSNU 94566-6176

<5I0) 846-2818 • FAX (510)462-6333

Fun K.w«

•kri h u CTLMH

April 21, 1997

Diane Feinstein, United States Senator

331 Hart Senate Office Building

Washington, D.C. 20510

Dear Senator Feinstein:

I an writing in regard to your recent nomination of Frank

Damrell, Jr. to the Federal District Court in Northern

California. I have known Mr. Damrell on a personal basis for

forty years. Congratulations on an extremely wise choice.

I have taught Civics in California for the past thirty-three

years. Therefore, I am well avare of hov the system works. I

realize that Mr. Damrell's association with the Gallo family

and business could create an obstacle in this nomination. I

do not have any connection to the Gallo's. nor have I ever

had need for Mr. Damrell's professional services. I know

Frank only as a friend and as a person of impeccable

character.

1 would be more than happy to testify in Mr. Danrell's

behalf if it was felt that I could be of sone benefit.

Though coming to Washington would create a fev challenges as

I am in a v:heelchair, I would be more than willing to do so

at my own expense. I know of Frank's interest and concern

in a broad spectrum of social i ssues, and in the piight of

people less fortunate tnan hin. PJease hcve ycur office

contact me if I can be of any help in this matter.

Thank you.

Sincerely,

Everett J. (Skip) Mohatt

939 Kolln St.

Pleasanton, CA 94566

I S* iif** D«iiin
985

MA IC ^OCH^

(Cxmrt xxf ^Appsttl

«ON FVA*A • SOUTH

zaOHD aTKCTT. BUITI

I PNAMCISCO. C* •«

April 23.1997

MAMATMON PVA*A • SOi/TM TOwCH

S03 aCCOND aTDCTT. BUITC OOO

•AN mAMCISCO. CA AAIO?

The President

TTie White House

Washington, DC 20300

Re: rrrnVr T^rnrrW tr

Dear Mr. Pieadent

This letter is iotended as coiTobontlon ofthe soundness of Senator Dianne

Feinstein's nomination of Frank C. Damrell Tor ^jpointmcnt by you to the U.S. District

Court for the Eastern District of California.

I have known Frank and his family well for over forty years. It all began in 1953

when he checked into coUeise and I was assigned as his senior counselor. His work,

abilities, achievements and professionalism are all matters of which I have personal,

hands on, knowledge end profound edrairation. They don't make them any better in life

or in law dian Frank. In my judgment his appointment to the federal judiciary at any

level will greatly enhance the reputation, integrity and intelligence of our nation's courts.

Apparently, the only crilicism of Senator Feinstein'!i choice is that somehow

Frank's sister's husband's father will influence his judicial decisions. That curious

conclusion is bottomed solely on a letter of recommendation by which praised Frank's

judgment and integrity as being ofthe "highest order." As 1 know you are aware that is

also the reputation ofthe letter writer, Rmest Gallo. In my line ofwork we characterize

such appeals to prejudice as frivolous. 1 urge you to do the same.

Sincerely,

Marc 0 Poche

oc: Senator Dianne Feinslein

Jonathan Yorowsky, F.sq.

bcc: Frank C. Damrell, Jr.

TtJTM. P.ei
BOARD OF SUPERVISORS

UOOHSTREET MODESTO CALIFORNIA9S3&4 (709) 525-4*45

RAYMOND CLARK SIMON

District Four

April 24, 1997

The President

The White House

Washington, D C 20500 ~

Dear M/ President

I

I am writing to you on behalf of Frank Damrell who is Senator Feinstein's nominee to fill a vacant Federal

District Coun Judgeship in California

I, as a Republican official in local government have enthusiastically endorsed Mr Damrell's nommation to

this high position

I was, however, appalled to see an anicle in the Los Angeles Times inferring that his noinination might be

a conflict because of his familial relationship to the distinguished Gallo family

It is patently ridiculous to believe thai Mi Damrell would noi recuse himself if any conflict might arise over

any Gallo association

I have known Frank Damrell for 24 years and he is an individual of the highest integrity and morals His

standing in our community as a quality lawyer is unchallenged His contributions to the social, political and

economic welfare of our community are well known and respeaed He is truly a person who desires to seme

his community and his fellow man

I was also deeply offended about the inferences in that article that the Gallo family would orchestrate uiy

interference in judicial matters In the 24 years of my elected public service, the Gallo family has never

demanded of me preferential treatment in my conduct of affairs that may have effected them

I feh compelled to write this letter after reading the anicle in order to convey a viewpoint expressed to me

a number oftimes over the past weeks by individuals in our local community It seems strange that the Los

Angeles area would take such an interest in this issue by inieiviewing people known to have little or no

knowledge of the Gallo family and/or Mr Damrell as well as some individuals in the anicle who have had

their own personal difficulties with the vnnery business I can assure you that these people are in the

minority

I would sincerely hope thai you would look favorably upon his noinination because he is one individual who

vnll never embarrass his sapponers in this endeavor to serve

i Sincerely;\^

jy Simon

SupervjKjr, Fourth District

Stanislaus County

RS/gh

cc Jonathan Yarowsky - Special Associate Counsel ofthe President
987

^upriior Court of tl;r J^latc of CdBliforniB

COUNTY 0» STANISIAUS

»C oo» "t"

HuOH fiOSC III Aieoi TELEPHONC

(2I»I t2s«4;s

April 25.1997

The President

The White House

Wishington, DC 20500

re Nomination ofFrank Damreli to the vacancy at the U.S Diitnct Coun for the

Eastern Distria of CaliFomia

Dear Mr. President:

This letter is written in support ofMr Frank Damreli for the abo\'e-referenced position.

By way of background I am the presiding judge ofthe Stanislaus County Superior Coun

and have been on the bench for 21 years I have known Mr Damre!! since we were in the District

Atiomey's Office together in 1966 1 was his supervisor and had the pleasure of supervising his

handling of complex criminal and civil litigation. He has been a member of our local legal

community since then and I have, of course, observed him in and out ofthe counroom over these

ma>iy years

Mr Damreli Is a highly respected and valued member of our local bar association and our

community ai large He has outstanding experirnce as a trial lawyer His elhics arc above

reproach A recent article virith a Ix>s Angeles Times by-tine questioned his appointment as a

resuh ofthe marriage of his sister to Robert Gallo, president of the Gallo Winery Mr Damreli

indicates that he would recuse himself on any case involving the Gallos or any other case where

there would be even the appearance ofimpropriety. There is no question that he would so do and

to sutuiest otherwise is absurd He has even represented Fred Franzia ofthe Franzia Winery (a

Gallo competitor) in wine litigation

He has ideal judicial temperament He is even-handed and fair with moderate views With

his educational background, his experience at the California Attorney General's Office, our

District Attorney's Office, and his varied civil trial experience Mr Damreli is eminently qualified

to sit on the Federal bench and would be outstanding in that position I, without reservation, urge

his appointment.

Ifthere arc any questions I may answer 1 would be pleased to do so

Very truly yours.

TCH ROSE IIlTPresiding Judge

Stanislaus County Superior Court

HR/dd

cc: Jonathan Yarowsky, Esq

Fcank Damreli, Jr
988

kfiVTI •)«£««•

LAWOiTlCCS

SHUGHART

THOMSON

& KILROY

1W«lv« Wrwtdaa* PUw

110 VcM 12th SttMt

KMMU CUT. MJMouil MI05-192*

(aio «1.»SS

FAX («I6) STf-QSOV

n QMpontf V<M4. SUM IIOO

0*«rtnjPiA- KwMvAUID'IOII

t9IJ)4Sl»SJ

rWttUMlI'MI

April 2S. 1997

Ser alur Diane Fdnstcin

United Stales Senate

Ha>1 Senate. Room 331

WB-.hineton.DC 20510

Re Frank C Damrell, Jr

United Stales District Court Nominee

De-ir Senator Feinstein:

This is a completely unsolicited letter. I have just learned that you have nominated Frank C

Da.nrell, Jr. to fill a vacancy on the United Slates District Court in Sacramento, California

I have recently finished a lengthy trial defending my client, Rubbermaid Incorporated, in a

laviuit in which Mr. Damrell was the attorney for the plaintiffs. I must say that he is an absolutely

ou'^pnding candidate for the Federal bench I found Mr Damrell to be extremely bright; his legal

theories and legal work were outstanding He was a lawyer of total and unimpeachable integrity.

Al'hough we had never met before the case was filed (because I practice in Missouri and he practices

in California), I soon learned that his word was his bond, nothing duritvg the two years ofpre-trial

discovery nor the three weeks in the San Francisco courtroom ofthe Honorable William Orrick (m

a hard-fought jury trial) ever occurred which gave me the slightest concern about his honesty, his

micgrity or his character

I am certainly pleased to learn that he has been nominated for such an important positiotv and

would feel remiss in my duties as an officer of the Court if I didn't express my profoutul and

unqualified support for his iwnisiation. I lase favorable action by the Senate Judidaiy Commitiee

on bis nomination

/^ery truly yours.

GEORGE E LEONARD V.,.^

G»Xbl

cc. Senator Christopher Bond
989

CITY of MODESTO

Richard A. Lang, Mayor - 801 Uth Simi, P. O. Box 642, Modesto, CA 95333

(209) 577-5230 FAX (209) 571-5128 fTDD OW) Slt-nn Hcariin md Spctrt Imptire) onlyl

April 30, 1997

The President

The White House

Washington D.C. 20500

Dear Mr. President:

Those of us who reside in the Central Valley of California are a

very proud and hard-working group of people. We are very pleased

when "one of our own" is recognized for achievement in whatever

profession or field they choose. Such was the case when Frank

Damrell was nominated for a federal judgeshlp. Senator Feinstein

said it all when she suggested that Frank Damrell was "eminently

qualified" to sit on the federal bench. I can say with great

certainty that we totally agree.

Frank Damrell has distinguished himself in legal circles and has

all the necessary attributes to effectively serve on the federal

bench. People of all political persuasions are behind Frank

Damrell one hundred percent because of what he represents and the

level of professionalism that he has exhibited over these many

years.

Recently there was an article in the Los Angeles Times and the

Modesto Bee in which they inferred that his connection to the Gallo

family through marriage may in some way hinder his objectivity on

the bench. Nothing could be further from the truth. In fact,

Frank Damrell has been ultra-conscious when taking part in any

discussions regarding the Gallo family and their interests. As a

federal judge he would simply step down in all issues that were .

even remotely connected to the Gallo family or their business

interests.

The community of Modesto and the entire northern San Joaquin Valley

urge you to proceed with the nomination of Frank Damrell for the

federal judgeship. I assure you that America's interests will be

best served by such an appointment.

Mr. President, as you know, one of the most important legacies of

any President is the type and quality of people he appoints to the

federal bench, you have here a unique and special opportunity to

serve your administration and country well by the appointment of

Frank Damrell.

VeQr truly yours.

Richard A. Lang

Mayor

RAL:las

Jonathan Yarowsky, Esq.

Special Associate Counsel to the President

The White House

130 Old Executive Building

Washington, D.C. 20500
900

BUUNE WATTEftS COUKmr OF SONOMA

JUOOe HAU. OF JUSTICE

COUATROOM 11 too AOaiNISTRATlON DUIVE

(70T> t2r-2W4 SANTA BOSA. CALIFORNIA SMOS

FAX(707)6t7-1in

May 1, 1997

The President

The White House

Wathington, D.C 20500

Re: Appointment of Frank C Damrell to tiw U.S. Dtsola Coun, Eastern Dinrtet of

CaUfbmla

Dear Mr. Pretkiem:

THs letter Is written In stron; support of Frank C DamreD, an outstanding cstdldate for the

U.S. DIstrirt Court, Eastern DIsoia of Callfbmla. This letter is imsolicJted. Rather, when I

learned from a newspaper article of his nomination, I volunteered to support hb candidacy

soleiy out of a desire to see a highly qualified attorney appointed to the federal I^ench.

I am a Rfelong Demooav and ' 1992 Governor Pete WOsonqipointee to the Sonoma County

Superior Court. As a trial attorney, my backeround was excbBlvely in dvO Bdgation, mosdy

complex business <

Thus It was with great Interest that In July 1993 1 was assigned as crtal Judge to tiy a

muitbninion doliar, legally complex case between iarce wineries. Frank Daini«n represented

the Franzla family, owners of the ]FJ Bronco Winery, which after a lengthy )ury trial was

awarded $2.5 mUlion for die financial damajes It suffered when Gtei EDen Winery (now

owned by HeuUeln} terminated a six-year business relationship. It was not, however, a onesided victory for the Franzias. The fury also ordered die FranzSas to pay $ 1.5 miDion to the

BeraJger family, owners of Glen Ellen Winery, for finandal injuries indicted on Glen EOen when

the Franzias refused to deOver bulk wine after the breakup of dielr business relationship In

1991.

The point, of course. Is not who won (though It Is dear the Franzias came out on top) so

much as the exceDent lawyerfng I observed in Frank Damrell throughout tfie case. Despte

^presenting what might charitably be termed a 'difTicult' cOent, Frank was able to maintain

as much client control as possible under tite circumstances. Frank displayed a keen gnsp

of difTicult legal concepts, submitted well-wrftiEn, indsfve briefs and conducted himself whh

calm decorum, even when provoked by his opponents. . in short, I observed in Frank many

qualMes one needs as a judge: intelligence, good wrMng sidlls, folmess, patience, the ability to

comrmmlcate, dedshreness, open-mbidedness, dignity and honesty. He was also eoretneiy

well prepared.

Mr. President, I higher recommend Frank Damrell Ibr fudge on the U.S. District Cour^

Central Discria of CaOfomla. The resMents of diat district, wQI, I am sure, be fbnever gnteRil

for your appoinonem ofsomeone of his stature.

Very truly yours,

Elaine Watten

cc: Hon. Dianne Febutein

Jonathan Yarowsky, Esq.
991

31559 Lobo Canyon Rd.

Agoura, California 91376

Tel (818) 735-6640

June 11.1997

Senatoi Orhn Hatch

Committee on the Judiciarv

224 Dirksen Senate Office Building

Washington, D.C. 20510-6275

Dear Senator Hatch:

I am writing to express m> unqualified support for Frank Damrell's nomination to

the Federal Court Bench

I was able to mtness Mr. Damrell's legal skills first hand when he represented our

corporation in Northern California several years ago. He effectively mediated a

seemingl) "intracuble" dispute in a manner that satisfied all parties.

Prior to working with him, I knew him only by reputation; afterward 1 felt he

more than deserved plaudits he received from associates in the legal communit>'. He sized

up the case quickly and solved it much sooner than 1 had anticipated anyone could

Mr. Damrell's resume speaks for itself. His extensive community activities round

out an impressive professional profile. Ob^'iously, be has spent a great deal of time

getting to know the people in his diverse communit}'.Tfaat is just one reasons why I

believe he would make an excellent judge.

As you know, I am a lifelong Republican. Obviously, partisanship is not an issue

here. I support Frank Damrcll because he impresses me as being a roan who weighs

matters carefully. I also believe he wotild exercise judicial restraint in his rulings.

Again. I urge you to confirm Frank Damrell's nomination to the Federal Court Bench

Or

Patrick i. Frawley, Jr. I'

VOOK truly, v'
RD

RESOURCE

DEVELOPMENT

August 89. 1997

Senator Urrin Hatch

131 Russell Senate Office Bii i 1 d i ng

Wash 1ng ton, DC 2051O

Re: Pending appointment of Fran^ Uamrel1 to Federal Court

Dear Sena tor Ha tch:

I am a lifelong member nf the Republican Party, dating back to my

first EisenhoMer rally that I attended in the early I950's.

I am also a longtime (30 years) friend and associate of Mr. Frank

Damre1 1 whose Federa1 Cour t appo i ntment rests with your

commIt tee.

Fr ank is one of the mos t honor able gentlemen tha t I know. He

ranks at the very top of the attorney roster in our community, he

knows the law and he is a very fair businessman.

Frank has made major, consistent contributions to ou» community,

supporting each and every project which has enhanced our city of

Modesto.

Perhaps the only nega tive that I can share i s when he is

confirmed it will mean that Modesto has lost one of its finest

citizens to the city of Sacramento. We do not have enough Frank

Damrells in this town and we will miss him.

He has my very highest endorsement.

2020 STANOIFORO AVE . BLOG E-l

MODESTO. CA 95350

TEL (?09| 527-7466

FAX (?09| 527-7565
993

coMMvm on MMCULnmi

GARY A. CONDIT

O0M»«TT« ON le• DlSTWCT. CAUKMMA

•OtARMMVT WTOilM AM) OWOHlKT

(EongriBB pf tbt Inttt!) iMat(«

Jioust of ScpruntottncB

September 2,1997

Senator Onio O. Bitch

Senate iudiciiiy Committee Chairman

133 Runell Senate Office Building

Washington, DC 2051O-U02

Dear Senator Hatch:

We le^iectfUUjr request you coofirm the nomination of Frank Daoirdl, )r., to the Federal

District Court for the Eastern District of California.

As elected oSidals, both Democrat and Kepublican, r^nesenting CaHfomia') CoiDal Valley,

we can pcrsooally attest to Mr. Damrell's integrity, his commitment to the law, and his ability

to worlt with others. Frank will be the kind ofjudge of which all of us will be proud. He

shares our values and our history. Thai is why his nomination for this post has won universal

praise, including that of law enforcement.

We know Frank Damrell, and are ctinYlnwi he will establish a record as fialeral judge that

you, and the Judiciary Committee will find exceptional. His common sense, his hard work,

fais tense of (Umess, will serve well die people of the Valley, and the nation.

We urge you to act positively and swiftly on Mr. Damrell's nomination. All of us are

available to you and your staff should you have questions or desire anyJp£ai]l>ation.

Sinoerely,

OARY A. QSJrf

Member of Congress Stinislius County Board of Superviaon

D on nmi Hjwt Si a
994

Soutor Hatch

09/02/97

RJCHARD MONTEITH

California Stale Senator

DENNIS CARDOZA

CjilifbcnU State Aaaamblymna

LESWEIDMAN

Stanislaiu County Sheriff

TOM MAYFIELD. CHAIRMAN

Stanislaus County Supervisor

PAUL CARUSO

Stanislaus County Supervisor

JCHARDLANC

Mayor, City ofModesto '

IBRAZELTON

^Stanislaus County District Attorney

SLD.CroURMAN NICKBLOM

Stanislaus County Supervisor

PATPAUL

Stanislaus County Supervisor

GAOJm
995

Richard Lyng

September 15. 1997

Hon. Orrin G. Hatch

Chairman, Senate Judicial)' Committee

131 Russell Senate Office Building

Washington. D.C. 20510

Dear Mr. Chairman:

I am wriiing to you today as an old friend who wishes you to know ofmy

•strong support for the confirmation of Frank Damreil, Jr. to be U.S. District Court

Judge for the Eastern District of California.

»

Frank Damreil is exceptionally well qualified to sers'e in this important

^judicial post. As a life-lime resident of Modesto. California, who was privileged

|to serve in high le\'el positions at the United States Department of Agriculture

'(Secretar>, 1969-1972). 1 believe Frank Damreil will be an outstanding judge in

•one of the most significani courts in the United Slates

Best personal regards.

Richard Lyng

829 Brody Avenue • Modesto, California 95352
oati 9f9ll

Western Growers Association

StnMng Hn CotUomto ant Arttono fmh Product btdiairy

Tbc HqacnbU JcB Xyl

Unhid Siatu SaatM

HMI SCOMC Office BuUdiBg Faoimil* Tnoaninioa

Wukiogtoo, DC 203104304 (202) 22»-1239

DwSonMorKyl:

b U wtih • git« deal of picnurc 1h<t I an writing 10 itiongiT iccoBOsmd Itut yoD eonfinn (fa*

iW"iiiUu«Bt ofFtuk Dimnll, Jr. to (be Uattad Sum Dissia Court for dw Eaitcni Diftiict ef

CaU&oU.

ID lar vtew, Fnuik ZJmBtll bu levvil unique fialltiM that wiU fliikt Urn die poftct EMttn

Dlsotet Coon Judge. His cxBoilve legal pnetlee qaimini over 30 yesi hM uka blm bom

duba a a Califomia Deputy Anomy Owenl and Deputy Diiiriet Atiomty to a Wadnngtaa.

D. C. Bgricnhiaal loMyir, to (be head ofhis own law finn haadijuancrBd lo Modesto. Califomia.

He hat greatJudgmcm, eqjoys a judjciat demaaaor, aod ii eee of(be more ethical peopla I hawe

had the pteasore to know.

Not unlmponaot to mc or to Weston Oiowers Asaodation, Fnojc possesses great knowledgt

about CaUftmla agriculture. His firm lepresems many agricultunl esiophies asd has

RpRseated agricultural interests both In Sacnmcoto and in WtiKington, D C This Cuniiiaiiqr

with igiicuhun, combined with hli vioisd legal expciieacet, nukes him ideally suited for the

Eailmn District appointmant which handles munerout agricuhurtl mattns. Frank is also

community minded and bai geDCKUsty devoted much ofUi tima lo civic aod charitable

•etivitiea.

Frank Dminll tiuly dawrves your support for a well earned nomlnsiaB and ooofinnation

Please give Frank your atnuigcsi eoosidciition when he is before the Senate Judiciary Conuniiiae

for confitmalion.

DAVID L.MOOR£

pRsidattt

be I Thaaas OINart

MaUmit Mdnu: f.O. 8ru 71)0. Hrmpon Braiii. CA KtSt • S/nrr Adims-17620 Fltrh St.. Iniitt. CA 9}6U

(7141 aU-IOOO ' FAX: 1714) SblKlS > tntmirl AAktst. liiip:ll»y,-»Mita.i<m>

c'd Etoioie t«aiS>i u»i:ta /£• z^ tm
M

997

•y

"^••" • ModBlo, CA fMM Associates ^fz-js:

medical group. Inc r«» oss) snnM

To: Hon. Oirm O. Hatch

131 Russell Saoite OfBce Buildmg

Wuhington. O.C. 20S10

1(202)224-5251

Fn.: L. Stephen Endsley MJ).

Valley Heart Associates

Dear Senator Ortir Q Hatel^

1 am writsig this unsolicited letter to support the confirmation ofFrank C. Damrdl Jr. to be a

Federal Judge in the Eastern District ofCalifornia. I have known Frank Damrdl for ahout fifteen

years in his role as a leader in community and cfaaiitable causes.

rve discussed with him often about solving problems in our contmunity and his love ofthe law. I

have fbund him to be serious, honest, and hard working, dedicated to people and helping solve

their problems. I find him to be highly knowledgeable about the law, but wth a sensitive touch

•bout people and their issues I would strongly reconuoend him to the Federal Bench.

For your information I am not associated politically to him, or have no business or legal

lelationshipt with Fnnk Damrell.

Sincerely,

L. Stephen Endsley MD.
998

Senator FEINSTEIN. I thank you.

In addition to Chuck Breyer and Frank Damrell, Senator Kyi,

there are two other candidates, and I know my colleague will particularly speak on one. However, I do want to recommend to the

committee Judge James Ware, the administration's nominee for the

Ninth Circuit Court of Appeals. I am delighted that this is

calendered. As you know, over one-third of that bench is vacant. Its

cases have grown dramatically and there are real problems.

He is a fellow Stanford alumnus. He went to Stanford Law

School in 1972. He served as a member of the Stanford Board of

Trustees. He attended Compton College, earned his B.A. degree

from California Lutheran University in 1969, and has served in the

Army Reserve.

He has been a State and Federal judge. In 1990, he was appointed by President George Bush to the U.S. District Court for the

Northern District, a position which he currently holds. Prior to

that, he served for 2 years on the Superior Court for Santa Clara

County. Before his judicial appointment, Judge Ware had 15 years

of experience in private practice, including significant in-court experience.

I will leave to Senator Boxer her nominee. Judge Martin Jenkins,

but I just want to say that at the same time Senator Boxer's committee was screening him, mine was as well, and she beat us to

the punch. I can assure you that Martin Jenkins is also well qualified, and I will leave the specifics to my friend and colleague, Senator Boxer.

[Additional remarks of Senator Feinstein follows:]

ADDITIONAL REMARKS OF SENATOR DIANNE FEINSTEIN

I wish to note for the record that the statement given above predated public disclosure that Judge Ware fabricated a critical incident in his past. I would like to

file for the record an article that appeared in the Washington Post on November

7, 1997.

[From the Washington Post Nor. 7, 19971

U.S. JUDGE ADMITS LIE, WITHDRAWS AS NOMINEE

APPEALS COURT CHOICE CLAIMED HE WAS BROTHER OF YOUTH SLAIN IN 1963

(By Joan Biskupic)

A federal judge withdrew his name from consideration for a California-based appeals court seat yesterday after he admitted lying about being the brother of a black

youth shot to death after a 1963 church bombing in Birmingham.

U.S. District Judge James Ware, a 1990 trial court appointee of President George

Bush who had been nominated by President Clinton for a seat on the 9th U.S. Circuit Court of Appeals, said yesterday, "I regret my lack of honesty."

The Birmingham tale had become a signature of Ware, 51, as he rose through the

legal profession. In many public appearances, he claimed that he was the older

brother of Virgil Ware, 13, who was shot by two white teenagers in the aftermath

of the notorious Sixteenth Street Baptist Church bombing, in which four black girls

were killed.

"When I went through the death of my brother I came very close to becoming

someone who could hate with a passion," he said in a 1994 interview with the San

Jose Mercury News. "What happened to me was a deflning experience, a t\iming

point in my life." In a talk this year, he vividly recalled riding his bike to a footbaU

game with Virgil on the handlebars when the shots were fired: "The shots knocked

us off the side of the road, and he died there by the side of the road."

Ware's nomination, put forward by Clinton in June, had not run into any problems until this. White House counsel Charles F.C. Ruff said yesterday the adminis-
999

tration's overriding response to Ware's extraordinary admission was one of sadness.

"Anytime a man who has had a distinguished career is caught up in a situation like

this," Ruffsaid, "you can't help but feel sad." He said he did not know how the falsehood had remained undetected through background checks.

Ware did not return phone calls to his San Jose office late yesterday but acknowledged to the Associated Press earlier in the day that he had lied. In a letter to the

White House, he wrote, "I am deeply committed to the cause of civil rights and do

not wish to be seen, as is being suggested, as using the unfortunate tragedy which

befell Virgil Ware as trying to better myself at someone else's expense."

He first admitted the lie after the Brimingham News published a story yesterday

in which family members of the slain youth disputed the judge's claims.

The Birmingham News quoted Virgil Ware's real brother, also named James, as

saying, "I couldn't believe a judge would do something like that, being a man of the

law. I think it was wrong. He was trying to better himself off somebody else's grief"

According to the Birmingham News, James Ware, the brother of Virgil, has

worked for an Alabama coal mining company for 20 years.

The episode also was another peculiar twist for the 9th Circuit, which with its

liberal-leaning rulings, had been a constant target by conservatives on Capitol Hill

and the circuit most often reversed by the Supreme Court. Anyone nominated to the

court—covering nine western states—draws particular attention, but usually for his

or her legal decisions.

Ware's reputation appeared solid. A graduate of Stanford's law school, he was a

state judge in California from 1988 to 1990, when he was appointed to the trial

court for the northern district of California.

As word of his fabrication spread yesterday, senators from both parties urged him

to withdraw. Sen. Dianne Feinstein (D-Calif), who earlier had supported Ware's

nomination, called his admission "a very serious matter. This does not appear to be

a youthful indiscretion or misunderstanding about a tragic event that happened

many years ago."

Ware, who was bom in Birmingham, said he was in the city during the racial upheaval of 1993. He told the Associated Press, "My father had told me he had a son

about my age with another woman whose name was James. At one time he told me

she had another child named Virge. He told me that we were related to other Wares

in Birmingham. I did suffer the death of a sister by shooting at about this same

time. I used my tenuous connection with the Wares and my own feeling of loss as

a basis for making a speech about Virgil Ware's death.

"After a great deal of soul searching, I request that my nomination be withdrawn

from consideration for appointment to the Ninth Circuit Court of Appeals at this

time. I am sorry that my misstatements about my background have caused such unintended consequences."

Senator KYL. Thank you very much. Senator Feinstein.

I would note that Representative Gary Condit also planned to be

here. He, too, has been on the House floor, but he has submitted

a statement of introduction for Frank Damrell and that, of course,

will be included in the record.

[The prepared statement of Mr. Condit follows:]

PREPARED STATEMENT OF HON. GARY A. CONDIT, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CALIFORNIA

I want to thank you and the committee for the opportunity to appear before you

today.

I'm here to urge your confirmation of my friend, Frank Damrell, to the United

States Federal Court.

Mr. Damrell is well known to the people of California's central valley. He and his

family have established a long record of community service and commitment.

Mr. Damrell's nomination for this position is supported by all the California state

legislators representing our area—Democrats and Republicans alike.

In addition, our law enforcement and local government oftlcitds also urge Frank's

confirmation. For us in the valley, the nomination of Frank Damrell is not controversial. Rather, we view it as expected, and overdue. That is why his nomination

has such universal support.

Frank Damrell will bring fairness, common sense, and independence to the bench.

Frank Damrell will prove to be an exceptional jurist for California and the nation.
1000

It is also important, Mr. Chairman, that this nomination move swiftly through the

process. The federal court in Sacramento will soon be engaging in what is expected

to be a lengthy trial in the unibomber case.

The commitments of this trial will delay other federal court activity in the Eastem District. Moving this appointment swiftly is essential to addressing the judicial

backlog facing our district.

I respectftuly request your committee's positive consideration of Mr. Damrell's

nomination.

SENATOR KYL. Might I ask these three people who have been

mentioned right now to stand? Let me start with Mr. Breyer. Mr.

Breyer, would you please stand, and we will have you come forward in just a moment. Next, Mr. Frank Damrell. Thaink you, sir.

And finally, Judge James Ware. Judge, we will call you forward as

the next panel, all by yourself

But first, let me ask Senator Boxer now to make her statements

of introduction.

STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM

THE STATE OF CALIFORNIA

SENATOR BOXER. Thank you so much. Let me, before my colleague leaves, compliment her on her recommendations to the

President. I happen to know Frank Damrell and Chuck Breyer

quite well and they are fine human beings. They will make great

judges. I am very, very pleased that they are here today. I send

them my best wishes.

I also want to add my words on behalf of Judge Ware. I think

it is really crucial we move on that ninth circuit. We have a third

of those seats that are vacant. This is a great choice.

Mr. Chairman, I am so proud to be here today to introduce Judge

Martin Jenkins for the U.S. District Court in the Northern District

of California. Senator Feinstein alluded to him, and I know she is

going to the Senate floor because we have to be there to fight for

McClellan Air Force Base, so I will say goodbye to her and see her

on the floor.

I wanted to say that Judge Martin Jenkins, this was kind of a

race because Senator Feinstein's group thought he was a great

choice and my group did, as well, and we did come out first. I

would ask if he would stand at this point, and I think his dad is

with him. Would his dad stand, as well? We are so proud that you

could be here.

SENATOR KYL. Senator Boxer, you beat me to the punch. For

those who have not introduced families, I am going to give you all

that opportunity in just a moment, so do not think I forgot. But

thank you, Senator Boxer.

SENATOR BOXER. Good. I recommended Judge Jenkins to the

President on May 5, 1997, because I found him to be eminently

qualified for the position, as did my northern district judicial advisory committee. Judge Jenkins has a distinguished legal career.

Currently, he serves as a California State Superior Court judge in

Alameda County. He was appointed to that position by Republican

Governor Pete Wilson.

For years prior to his service on the State superior bench, he

served as an Alameda County Municipal Court judge, having been

appointed by Republican Governor George Deukmejian in 1989.

Judge Jenkins received his Juris Doctorate degree from the Univer-
1001

sity of San Francisco School of Law and his undergraduate degree

from the University of Santa Clara.

Early in his career, he was a deputy district attorney in Alameda

County and an attorney for the U.S. Department of Justice in the

Civil Rights Division for 2 years under President Reagan. Prior to

his service as Municipal Court judge, he was an attorney for Pacific

Bell.

For years. Judge Jenkins has been involved in numerous professional activities. He was appointed to the prestigious California

State Federal Judicial Council by Chief Justice Ronald George. Additionally, he is a member of the California Supreme Court's Advisory Committee on Judicial Ethics and has been active in a variety

of education activities for judges, lawyers, and law students.

Judge Jenkins has also been involved in numerous community

activities. He was appointed to the Board of Regents for the University of Santa Clara, as well as to the Board of Governors for the

University of San Francisco School of Law. He sits currently on the

Board of Directors for the University of San Francisco "Street Law

Project" and has been active in his church, working with young

adults.

Mr. Chairman, this is a mjin who has support from Republicans

and Democrats alike. I urge the members of this distinguished

committee to vote Judge Jenkins out of committee in hopes that

the full Senate may have the opportunity to act quickly on his

nomination. I think that his intelligence, his judicial temperament,

his broad experience in professional life and community service and

his deep commitment to justice qualify him to serve the people of

California and the people of this Nation with great distinction, and

I so appreciate this opportunity to introduce such a fine human

being to you. Thank you very much.

SENATOR KYL. Thaink you very much. Senator Boxer.

We have now a final panel from Pennsylvania. We will be calling

the judicial candidates forward after we have finished with our

Members of the House and Senate.

Senator Rick Santorum, Congressman Tom Foglietta, and Congressman Chaka Fattah, and I believe that Senator Specter may be

here later, so we will go forward with the panel. This is for the

nomination of Frederica Massiah-Jackson. Let me begin. Senator

Santorum, with your statement of introduction.

STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA

Senator SANTORUM. Thank you. Senator. I would say that Judge

Massiah-Jackson has an impressive lineup of a Senator, a Congressman, and an Ambassador all here.

Senator KYL. An Ambassador-in-waiting.

Senator SANTORUM. An ambassador-in-waiting, all here to introduce her to the committee. Let me say also that Senator Kyl mentioned that Senator Specter, I am sure, if he is not here in time

to introduce her before she is here, has certainly been very active

in supporting Judge Massiah-Jackson. Senator Specter and I have

been requesting, the committee to hold a hearing to consider her

nomination.
1002

Usually, I play second fiddle to Senator Specter, and so anticipating that, I do not have any of the judge's credentials in front of me,

because he usually goes through that. So I apologize in advance for

that.

But I do know she was raised in Philadelphia and attended college there and was elected to the Court of Common Pleas at Philadelphia in 1983, where she served initially in the criminal division

and then later about an equal amount of time in the civil division

in the Philadelphia courts.

As the committee knows, Senator Specter and I have set up a

nonpartisan, I believe, very much unbiased committee to review

nominees for all of the district courts in Pennsylvania. We now

have four vacancies in the eastern district and our committee met

and convened and recommended three recommendations for each of

the positions open.

Judge Massiah-Jackson was recommended as qualified by the

committee. We have, as I said, very rigorous committee qualifications and she met those qualifications, and as a result, I am glad

the committee has moved forward, given our recommendation from

our committee and Senator Specter's and my recommendation to

hold a hearing on Judge Jackson. I know there was some hold-up

on that, but I am glad that Senator Hatch and the committee has

decided to move forward and to give discussion.

I am going to be very candid, and I know the committee has

some concerns. Senator Specter and I have the very strong feeling

that the judge should be here to be able to hear those concerns and

respond to those concerns, and so I am very pleased that the committee decided to hold this hearing and give the judge the opportunity to be heard on her record and on her accomplishments.

I thank the committee for their consideration and recommend action. Thank you.

Senator KYL. Thank you very much. Senator Santorum.

Congressman Foglietta.

STATEMENT OF HON. THOMAS M. FOGLIETTA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. FOGLIETTA. Thaink you, Mr. Chairman. Let me say at the

outset that I am pleased to be here before a committee that you

are chairing, afl;er having served with you for so many years on the

Armed Services Committee over in the other body.

Second, let me say that although I have been nominated as the

Ambassador to Italy and confirmed by your honorable body, I am

happy, in a way, that I have not been sworn in yet because it gives

me the opportunity to be here before you to tell you that I am not

only pleased but I am honored to recommend to you Frederica

Massiah-Jackson, an eminent jurist for your confirmation as a

member of the U.S. District Court for Eastern Pennsylvania.

Judge Jackson has the qualities that I respect, the qualities that

I think that we need in jurists on our Federal bench. She is a person of great intellect. She has a keen commitment and a keen understanding of the law, and most importantly, justice and how justice is to be dispensed. She believes with every iota of energy and

soul in her body that she believes in equal justice for all persons.
1003

regardless of their race, regardless of their financial condition, and

regardless of their position in life.

She has served on the Philadelphia Court of Common Pleas since

1983, and during that time, she has certainly earned the respect

of her peers on the bench, members of the bar throughout Philadelphia, and most importantly, the citizens of Philadelphia during

those years. Her knowledge of the law and her very, very high ethical standards are evidenced by her service on the Board of Governors, the Pennsylvania Bar Association, and the hearing committee of the Disciplinary Board of the Supreme Court of Pennsylvania.

She has served on many, many other committees, working with

the community in the city of Philadelphia to try to alleviate the

suffering that so many of the citizens of our city have because of

their finamcial situation—training programs for young people, educational programs, so many of the things that I admire in an individual, but most importantly, admire in a judge who has so many

other responsibilities and time-consuming duties, that she gives of

her time and of herself for these wonderful, wonderful causes.

So I really deem it an honor to be able to join my good friends.

Senator Rick Santorum, Congressman Chaka Fattah, and I see just

arrived my very dear friend and colleague for many, many years.

Senator Arlen Specter, in their praise. I am happy to be able to join

them in their praise and their support to respectftilly urge that you

and your committee consider favorably Judge Massiah Jackson for

her confirmation to the district court.

Senator KYL. Thank you very much. Representative Foglietta.

Senator Specter, a distinguished member of the committee, has

arrived and if it is all right with you. Congressman, we will defer

to the senior Senator.

Mr. FATTAH. Absolutely.

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

THE STATE OF PENNSYLVANIA

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

We are having Governmental Affairs hearings right down the

corridor and I had intended to wait until Judge Massiah-Jackson

came, but when I heard that Senator Santorum and Congressman

Foglietta and Congressman Fattah were here, I came right over. I

did not want to be absent during this important part of the proceeding.

We had a hearing for Judge Frederica Massiah-Jackson in Philadelphia, attended by Senator Saintorum, Senator Biden, and myself,

and all the testimony at that time was very positive about her. The

key witness for Judge Massiah-Jackson, in my opinion, is Mayor

Rendell. He was the district attorney during the first 3 years of her

tenure and he has been the Mayor for the last 5 years of her tenure

and was in Philadelphia at the time and attests to her strong

quaUfications as a judge.

He pointed out that, of all of the matters taken under her sentencing issue, that only one was appealed, and on that, she was

sustained. I know that Mayor Rendell is tough on sentencing because I taught him. He was an assistant district attorney in Philadelphia. I gave Ed Rendell his first job, as an assistant district at-
1004

tomey, when he graduated from law school in 1967. He was a

tough prosecutor, was chief of the Homicide Division.

So I meike these remarks just briefly. I would like to have admitted into the record a letter which was sent to Senator Hatch on the

subject.

Senator KYL. Without objection.

[The letter of Senator Specter follows;]
1006

flnitnl States ^tnatc

OOMMrTTK ON T>C JUCMDARY

WAS»1NGT0N. DC 206KI-627S

Octcfcer 8, 1997

Tbe Hooorable Orrin Haccfa

Chairman, Senate Judiciary Ooiauttee

United States Senate

Mashlngton. DC 20S10

Dear Orrin:

On Friday, October i. Senator Biden. Senator Santorum and I conducted a hearing

which lasted a little over t**o hours in Philadelphia concerning the qualificatione of

Judge Frederica Massiah-Jactcson.

Ten witnesses appeared who voiced strong support tor Judge Massiah-Jackson.

Five of the witnesses were Coamcm Pleas Judges who know her work in detail- They

were: President Judge Alex Bonavitacola. ActaiiniscratIve Judge John Herron, Judge John

Young, Judge Richard Klein and Judge Victor DlNubile.

The testimony as to Judge Massiah-Jackson' s sentencing record was sumed up by

President Judge Bonavitacola wtw said that her comparisons with the statutory guideline

ranged froa 70% to 66% over the years trtien the statistics were maintained conpared to

a 72% to 82% rating for the other Philadelphia Coooon Pleas Judges

President Judge Bonavitacola characterized Judge Massiah-Jackson's record as

•excellent.•

The other five witnesses, including Clifford Haines, Chancellor of the

Philadelphia Bar Association, also testified in strong support of Judge Massiah-JackscMi.

While Mayor Rendell could not be present because of a prior coomitment in Salt

l*alce City, he had advised in advance of the hearing that he thought Judge MassiahJackson had an exeo^lary record on sentencing. He stated that he was District Attorney

during the first three years of her tenure,- that he was very concerned about sentencing

and that he was satisfied with her sentencing recordMayor Rendell further noted that Judge Massiah-Jackson had only had one appeal

taken from the District Attorney's office based on her sentencing and on that one, she

was affirmed.

With this letter, I an enclosing prepared statements from Mayor Rendell. Clifford

Haines, President Judge Alex Bonavitacola, Judge Richard Klein and Samuel Evans.

Chairman. AFHA National Education & Research Fund.

Police Conmissioner Richard Neal declined our invitation to testify saying that

he had nothing to say one way or another. District Attorney Lynne Abraham also declined

our invitation.

In advance of the hearing, we had invited people to come if they had anything

adverse or favorable to say.

There was no adverse witness.

I believe it is very important that we have a prompt hearing on Judge MasslahJackson so that Senators are in a position to make a decision on her nosdnation before

we adjourn in mid-November.

Tluinks very much for yoHx consideration of this request. ^ y .** * -»

Enclosures

HAND DELIVER dby A/emt /^^^^
1006

Senator SPECTER. I think a hearing is important. I have heard

comments about Judge Massiah-Jackson raising questions as to

sentencing, and that is inevitable when you have a person on the

bench for a long period of time. I have said that anybody who has

anything to say, let them come forward. Let us hear what they

have to say. Let us make an evaluation. Let us have a hearing.

The reason that Senator Santorum and Senator Biden and I

went to Philadelphia was to give people a chance to come in and

speak up, and they have a chance to have a hearing now. Let us

see what the facts are.

I am going to excuse myself now, Mr. Chairman, to go back to

Governmental Affairs. I will return when Judge Massiah-Jackson

is up for questioning.

Senator KYL. Thank you very much, Senator Specter.

Congressman Fattah.

STATEMENT OF HON. CHAKA FATTAH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. FATTAH. Thank you, and let me thank the two Senators from

the great State of Pennsylvania, Senator Specter and Senator

Santorum, for pursuing this nomination. It is a great honor for me

to be supportive of President Clinton's nominee for one of the vacancies in the Eastern District of Pennsylvania.

As Senator Santorum mentioned, there are a number of vacancies there, but a vacancy that has existed since the inception of the

court is that with this nomination, this would be the first time that

an African-American woman would serve in that capacity.

Now, Judge Jackson is extraordinarily qualified. I think you will

find through this hearing process that any concerns raised about

her record are being raised by people who are not informed. She

has handled thousands of cases, and as Senator Specter has just

indicated, there was only one appeal and that was sustained.

So I think that this hearing process will provide an opportunity

for light to be shone onto her record. It is one in which all who reside in our great State are extraordinarily proud and I want to just

join with my colleagues in urging this committee to favorably recommend to the full committee and to the—I used to serve in the

Senate in Pennsylvania and we called ourselves the "upper chamber" in comparison to the House. Here, it is only referred to as the

"other chamber."

So whatever the case may be, I am sure that the wisdom of the

Senate will be pointed out

Senator KYL. Flattery will get you everywhere. [Laughter.]

Mr. FATTAH [continuing]. In terms of this nomination and I do

appreciate the time and consideration that this committee is providing to my constituent for this hearing.

Senator KYL. Thank you very much for that. In fact, all of the

introductory statements, of course, have been very fine statements.

Judge Jackson, would you please stand so everybody here can see

you. We will be calling you forward after a bit, too. Thank you very

much. And thank you very much to the panel.

I hope that this process will, as I said, enable us to conclude this

hearing today. I apologize for not having each of the people who
1007

were introduced at the table when the introductions were being

made, but I think this will expedite the process.

Let me now call James J. Ware, Judge Ware of California, to

come forward and be the first panel. He is nominated for the U.S.

Circuit Court, the ninth circuit. Mr. Ware, will you please stand

and be sworn first?

Do you swear that the testimony you give in this hearing shall

be the truth, the whole truth, and nothing but the truth, so help

you God?

Judge WARE. I do.

Senator KYL. Thank you. Please be seated.

Judge, if you would like to make any kind of a statement, you

are welcome to do that. Otherwise, the committee will begin its

questioning. I see that my colleague has departed, so it may be me

asking you the questions, but you are welcome to make a statement if you would like, and I would also like you when you are

done to introduce the members of your family who might be here

or anyone else you would like to introduce.

TESTIMONY OF JAMES S. WARE, OF CALIFORNIA, TO BE VS.

CIRCUIT JUDGE FOR THE NINTH CIRCUIT

Judge WARE. Thank you, Mr. Chairman. I do not have a preEared statement, but I would wish to take this opportunity to acnowledge the absence of my wife, Susan, who would very much

wish to be here, and my son, Jeremy. They are home in Mountain

View, CA. But I £im fortunate that my daughter, Carlie, who is a

sophomore at Yale, was able to fly down from New Haven to be

with me here today.

Senator KYL. Welcome to the committee.

Judge WARE. I also would wish to acknowledge the presence of

Jan White, who is a local attorney here in Washington, a classmate

of mine from Stanford. We just had our reunion at Stanford and

she came, as well, to be supportive.

QUESTIONING BY SENATOR KYL

Senator KYL. Thank you for coming. We appreciate the attendance of all of the people in the audience, friends and family alike.

Judge, you come highly recommended. You have had some wonderful statements said about you and it is the intention of the committee, and I know I speak for the chairman in indicating it is our

intention to try to fill these positions. The ninth circuit is the circuit of my State, as well, and we understand how important it is

to fill these positions, so you certainly have our commitment to try

to move this along as quickly as possible.

Let me ask you a couple of questions. If other members arrive,

then, of course I will call upon them to do so.

In a recent article, you criticize the operation of mandatory minimum sentences as inconsistent with the sentencing guidelines

scheme. Specifically, you wrote, and I am quoting now, "The judicial branch, charged with imposing a sentence according to law, is

empowered to exercise its discretion to modify rigid rules if warranted by circumstances in a particular case." That was in the article, "A Clash of Sentencing Policies: Sentencing Guidelines Versus

Mandatory Minimums."
1008

Do you believe that if the sentencing guidelines would prescribe

a sentence below a mandatory minimum sentence, that you could

ignore the statutory minimum?

Judge WARE. No, Senator. I should say, it was not a recent article. It was an article written very soon after the guidelines had

been passed. It had an invitation to write a piece for a meeting of

the State Bar of California at one of the annual meetings. There

was going to be a discussion of the sentencing guidelines and I was

asked to write a piece to be submitted to provoke a discussion

about the guidelines and how the policies oi the guidelines compared with those of mandatory minimums.

Senator KYL. I appreciate the correction for the record. Could you

give us a rough time frame of when that was written, then?

Judge WARE. I believe it was around 1990. The guidelines came

into effect in the mid-1980's and this was an article that was submitted in approximately 1990.

Senator KYL. Could you explain, then, your view of what a judge

should do when the guidelines and the mandatory minimums

clash?

Judge WARE. Well, there is no clash, quite frankly. The mandatory minimum sentence, if it is required by law, is the one that a

court must impose. I would follow, and I have followed, the law in

that respect in the sentences that have been handed down by me

during my tenure as a district judge.

Senator KYL. And I gather it would be your intention to continue

to do so?

Judge WARE. Yes, sir.

Senator KYL. In the absence of controlling precedent, how would

you characterize your approach to interpreting the Constitution?

Judge WARE. Well, in the absence of precedents, I presume that

I would be involved in applying the Constitution to a statute of

some sort. It is my belief that statutes passed by Congress should

be presumed constitutional. If there are no cases upon which I

could rely construing that statute, I would do my best to find as

closely analogous a situation that would apply to the case. And in

any event, I would attempt to try to decide the case as I believe

the Supreme Court would decide it if the case were before it.

Senator KYL. For those who are not schooled in the law, that is

kind of a quick question, properly answered, because, of course, in

every case the lawyers argue that there is some precedent of some

kind or some statutory or other reference to which the judge can

make for a decision, and I appreciate that answer.

Can you think of cases that you think were—and I am talking

now in the area of constitutional law—where strictly as a matter

of first impression, do you think the U.S. Supreme Court improperly departed from the text or the meaning or history of the U.S.

Constitution?

Judge WARE. Well, it is difficult to think of a recent case. In our

history, I would bring to mind the case of Plessy v. Ferguson, which

is a case where the U.S. Supreme Court endorsed the separate but

equal doctrine. Quite frankly, I believe that the Supreme Court, in

making that decision, was attempting, in its own view, to interpret

the constitution. But since that case and over time, we have come

to a position where the Supreme Court has indicated that separate
1009

but equal is inherently unequal. That is now the law of the land

and that is the law which I apply.

Senator KYL. And, of course, as a member of the circuit court of

appeals, it is your obligation to apply the law as interpreted by the

Supreme Court.

Let me ask you a question about an issue that is becoming important in recent years and ask you to set forth your views on

whether, when there is no evidence of past acts of employment discrimination directed at either identifiable individuals or any particular minority groups, and no evidence that members of a particular minority group are underrepresented in an employer's work

force, whether an employee may, under the Equal Protection

Clause of the 14th amendment or title VII of the 1964 Civil Rights

Act, use race, national origin, or gender as the basis for employment decisions.

Judge WARE. You said whether an employee may. I presume you

meant employer.

Senator KYL. I misspoke. Employer, you are right.

Judge WARE. The case that I would bring to mind in response to

your question is the Adarand decision of the U.S. Supreme Court,

which, to my understanding, holds that in the absence of past acts

of discrimination, race may not be used, that it is a suspect classification and that it is subject to strict scrutiny, the highest constitutional standard available, and it must be measured against

whether there is a compelling governmental interest. But in the absence of a case of past discrimination, where race is being used to

remedy that, that race may not be used as a basis.

Senator KYL. And that is the standard that you would apply?

Judge WARE. That is the standard I would apply.

Senator KYL. There being no other Senators here, I will ignore

the red light and proceed. But what I would like to do is, instead

of asking you all the questions which have been prepared by members and staff of various members, perhaps ask one more, since

Senator Kohl is now here, and then submit a couple of questions

for the record for you to answer. Let me just ask you one more

question, and then if Senator Kohl has questions, I will call upon

him.

Please state your best independent legal judgment, irrespective

of existing U.S. precedent on the constitutionality of capital punishment.

Judge WARE. Capital punishment is constitutional, Mr. Chairman, and that is the law as enunciated to us by the Supreme Court

and I have no personal or philosophical beliefs that would in any

way interfere with my applying capital punishment. I would not rejoice at the prospect, but in a proper case, I would not hesitate to

oblige.

Senator KYL. Thank you very much.

Senator Kohl, do you have questions for the witness?

Senator KOHL. No.

Senator KYL. There are, as I said, a variety of other questions,

but frankly, based upon the answers to the questions that you have

provided thus far, all of which exhibit a very sound understanding

of the law as I understand it and a desire to apply the law as enunciated by the Supreme Court, which is the duty of a member of the
1010

circuit court, I would prefer simply to submit these other questions

for the record. They are not unlike the questions that I have just

been asking and that way we can move on to some of these other

nominees.

I want to tell the people in the audience

Judge WARE. Thank you very much.

Senator KYL. If I could, while you are just seated here. The effort

here, and you have heard reference to it by a couple of the Senators, to urge the Senate to hurry up and get some nominees approved, confirmed, so that these individuals can take their position

on the bench, is well taken and our effort here today is to try to

expedite that process.

I fear that our effort could be misinterpreted as a lack of interest

in each individual nominee £ind in rushing through, without adequately considering factors pertinent to their nomination or an unwillingness to listen to them and to hear them, I want to assure

all of the people in the audience that that is absolutely not the

case, that to the extent we proceed quickly through this hearing,

it is because of the qualifications of tne nominees, that they have

satisfied the preliminary tests that the administration and that the

Senate staff and that the members themselves have applied to the

nominations and that the lack of questions is really a testament to

their qualifications and to the probability that the committee will

act quickly on the nomination.

So please do not take our failure to hold the witnesses here for

1 hour and subject them to a long line of excruciating questions

here as a lack of interest but rather a confirmation of the significant qualifications that they bring, and certainly. Judge Ware, that

applies in your case.

Judge WARE. Thank you, Mr. Chairman.

Senator KYL. Senator Kohl, do you have anything else?

Senator KOHL. No.

Senator KYL. Thank you very much for your presence here and

we will look forward to seeing you again.

The next pamel is a large panel, and let me ask each of you to

please come to the table—Mr. Lynn Adelman, of Wisconsin, nominated to be U.S. district judge for the Eastern District of Wisconsin; Mr. Charles Breyer, of California, to be U.S. district judge for

the Northern District of California; Mr. Frank C. Damrell, Jr., of

California, to be U.S. district judge for the Eastern District of Ciilifomia; Judge Martin J. Jenkins, of California, to be U.S. district

judge for the Northern District of California; Judge Michael P.

McCuskey, of Illinois, to be U.S. district judge for the Central District of Illinois; and Mr. G. Patrick Murphy, of Illinois, to be U.S.

district judge for the Southern District oi Illinois. Please stand and

raise your right hand.

Do you swear the testimony you shall give in this hearing shall

be the truth, the whole truth, and nothing but the truth, so help

you God?

Mr. ADELMAN. I do.

Mr. BREYER. I do.

Mr. DAMRELL. I do.

Judge JENKINS. I do.

Judge McCuSKEY. I do.
1011

Mr. MURPHY. I do.

Senator KYL. Senator Kohl has asked, Mr. Adelman, that we

begin the questioning with you. I might say preliminarily that because of the size of the panel, when I ask you Questions, I may ask

it of one Jind then ask each of the members of the panel, in turn,

to respond to that same question. But there may be one or two

questions that are unique to individual nominees, and, therefore,

we can certainly handle it that way.

Mr. Adelmsm, let me begin with you and Senator Kohl can begin

the questioning.

QUESTIONING BY SENATOR KOHL

Senator KOHL. Thank you very much.

Mr. Adelman, would you give us some of the background in your

life, your family experience, some of your philosophy which leads

you here today to want to be a Federal judge and which makes you

feel that you would be a good Federal judge?

Senator KYL. May I interrupt for just a moment? I forgot to ask

each of these nominees to introduce friends and family who are

here, and since that is probably pertinent to that question you just

asked, let me ask Mr. Adelman, first of all, to introduce the members of his friends or family here who he would like to introduce,

and may I also, then, ask each of the other members of the panel

to do the same and then we will return to that question, Mr.

Adelman, if that is all right with you. Senator Kohl.

TESTIMONY OF LYNN S. ADELMAN, OF WISCONSIN, TO BE U.S.

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN

Mr. ADELMAN. Thank you, Mr. Chairman. First, I would like to

introduce my wife, Betty, Betty Adelman, who is also my law partner, and my mother, Edie Adelman, and my father, Ollie Adelman,

and my brother, Craig Adelman.

Senator KYL. Welcome to all of you. I gather you are the senior

partner in the firm. [Laughter.]

Thank you. Mr. Breyer.

TESTIMONY OF CHARLES R. BREYER, OF CALIFORNIA, TO BE

U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF

CALIFORNIA

Mr. BREYER. Thank you very much. I would like to introduce my

wife, Sydney Goldstein, and my son, Joseph Goldstein-Breyer, and

my daughter, Kate Goldstein-Breyer, and also my godson, Collin

Streck, who is here.

Senator KYL. Great. All of you, welcome.

TESTIMONY OF FRANK C. DAMRELL, JR., OF CALIFORNIA, TO

BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF

CALIFORNIA

Mr. DAMRELL. Mr. Chairman, let me introduce my wife,

Lidwiena, my son, Jim, who is a third-year law student at Notre

Dame, my daughter, Ann. Two children of ours could not make it,

Frank and Alida. They are in California. I have some friends here

in Washington who have also attended the hearing I would like to

introduce, as well.
1012

Senator KYL. Please.

Mr. DAMRELL. First, close family friend, Ann Veneman, who is

the Secretary of Agriculture for the State of California. Charlie

McBride, Cheryl Shelby, and Mel Herwitz.

Senator KYL. Welcome to all of you, and to Notre Dame, good

luck.

Judge Jenkins.

TESTIMONY OF MARTm J. JENKINS, OF CALIFORNIA, TO BE

U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF

CALIFORNIA

Judge JENKINS. Thank you, Mr. Chairman. I would like to introduce my father, James Jenkins, and a close family friend I have

known for about 25 years, Mr. Jim Gilyard, and right behind him,

I have some relatives from Philadelphia who have journeyed here

today. I have a cousin. Can you stand, JeffJunior, and JeffJunior's

father, Jeff Senior, and his wife, Angela, and their new child, Jerry,

who are right outside. Thank you.

Senator KYL. Great. Thank you very much and welcome to all of

you.

Judge McCuskey.

TESTIMONY OF MICHAEL P. McCUSKEY, OF ILLINOIS, TO BE

U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILUNOIS

Judge MCCUSKEY. Thank you, Mr. Chairman.

Unfortunately, as Senator Durbin mentioned, my wife, Brenda,

and my son, Ryan, who is a 3-ye£ir-old, cannot be here, and my

daughter, Melinda, has mid-terms at Southern Illinois University,

so I have no one from my family, but I do have some friends I

would like to introduce, if possible.

Senator KYL. Please.

Judge MCCUSKEY. Bill and Tilla Hancock, who live here in the

District. Bill is originally from my area of the State of Illinois, £ind

his wife are both lawyers and have resided here in the District for

many years.

Senator KYL. Welcome to both of you.

Judge MCCUSKEY. Could I ask, Mr. Chairman, if Congressman

LaHood was going to be here and also give introductions today, and

the last time I noticed, he was in the chair presiding over the

House of Representatives. Will he be afforded the opportunity in

the next 3 days to file remarks?

Senator KYL. Absolutely. In fact, I was handed a note that he

could not be here because of that. His statement and any other information that he would like to submit will, of course, be made a

part of the record.

Judge MCCUSKEY. Thank you very much. I appreciate the bipartis£m support.

Senator KYL. That is the way this process has to work.

Mr. Murphy.
1013

TESTIMONY OF G. PATRICK MURPHY, OF ILLINOIS, TO BE U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS

Mr. MURPHY. Good afternoon, Mr. Chairman. I am here alone,

but I trust my children are in school and diligently applying themselves and my wife is working. Thank you.

Senator KYL. Great. Thank you.

Now, Senator Kohl had asked Mr. Adelmam a question. Please

proceed.

Mr. ADELMAN. I practiced law for 30 years and served as a legislator. I see serving as a judge as a continuation of public service.

I think that the role of a judge would be much different than the

roles I have played in the past, but I think my experience as a

State legislator has made me very sensitive to the doctrine of separation of powers and to the limited role of a judicial officer.

Senator KOHL. One other question, Mr. Adelman. Many people

are concerned that there is too much confidentiality in litigation

today, and altogether too often secrecy agreements prevent real

dangers to public safety from being disclosed. For example, settlement agreements often require a plaintiff injured by a defective

product to take a vow of silence even though the product is still

being used by the public.

My question to you is before signing a protective order to confidentiality agreement regarding the public health or safety, would

you carefully scrutinize whether such secrecy is needed? How important do you think this issue is?

Mr. ADELMAN. I think it is very important. I would carefully

scrutinize whether a secrecy agreement was warranted and I would

apply the law as it existed in the Seventh Circuit and provided by

the Supreme Court.

Senator KOHL. Thank you, Mr. Adelman. Thank you, Mr. Chairman.

Senator KYL. Senator Feingold.

QUESTIONING BY SENATOR FEINGOLD

Senator FEINGOLD. Thank you, Mr. Chairman.

Mr. Adelman, in addition to your successful law practice, you

served with distinction in the Wisconsin State Senate for 20 years,

but obviously the role of the legislature is much different, but

equally important as that of the judiciary.

Would you please share with the committee your understanding

of the separation of powers and how your role will be different on

the bench than in the Wisconsin State Senate?

Mr. ADELMAN. It will be very different. As a legislator, one is a

policymaker. As a judge, one decides cases before them fairly based

only on the facts. Judges do not make policy, and the policymaking

is the province of the other branches and I am very sensitive to

that limitation.

Senator FEINGOLD. Thank you, Mr. Chairman.

Senator KYL. Thank you.

Senator Durbin.

QUESTIONING BY SENATOR DURBIN

Senator DuRBlN. Thank you, Mr. Chairman.

AS.QM 98 - IT
1014

Judge McCuskey, we often wrestle with the issue of sentencing

guidelines, and clearly those guidelines have been established at

the Federal level. You have probably dealt with the same phenomenon in State law. I would like to hear your experience and thoughts

on sentencing guidelines, what you feel about those in terms of

your practice on the bench.

Judge MCCUSKEY. Well, one of the things that strikes me is that

my entire law practice has been in a determinant sentence situation. When Governor Thompson came into office, Illinois moved to

determine its sentences. So we are not a parole State. We do not

have extremely large parameters in sentencing, maybe not as narrow as the Federal sentencing guidelines, but we have a statute in

Illinois that narrows the range of sentences for judges. And that is

what I grew up with as an attorney, as a circuit judge, and now

in reviewing sentences.

The Federal sentencing guidelines may contain a narrower range

for a Federal district judge, but I am certainly used to working

within guidelines and realize that the power of the judiciary is limited by statute and that we must look at the statute and apply the

appropriate sentence to the facts.

Senator DuRBIN. Mr. Murphy, your practice as an attorney has

been on the other side of the bench, and one of the issues that I

can recall from my own private practice of great interest was judicial temperament. We are looking for people who are firm and fair

and get about their business. I would like you to reflect on the

judges that you practiced before without naming names and talk

about the elements or qualities that you think are important if you

are successful in being confirmed to the Federal bench.

Mr. MURPHY. Senator Durbin, Mr. Chairman, in practicing in

front of many judges. Federal and State, all over the Midwest, I

have been in front ofjudges that were just extremely difficult. They

were difficult for the lawyers, they were difficult for the litigants,

and they were difficult for the people that worked around them.

On the other hand, I have been around judges who were gracious, courteous, professioneil, and moved the cases along. Some

people, it seems, have a personality such that, if given power, they

do not handle it well, and when they don't, it makes the litigation

Frocess much more difficult than it should be. It is very important,

think, for a judge to be firm, but courteous.

If there is one virtue that comes to me naturally, it is humility,

and if anyone knows anything about my background, you %would

know there are a hundred reasons why that is the case. I have

served with men in war. I believe I understand how to get along

with people and work with people and lead people, and I know that

I can be courteous and firm at the same time and I think that is

critical, particularly in the Federal courts.

Senator DURBIN. Judge McCuskey, since you have had this opportunity, without being self-critical, could you comment on this

element of a judge's performance?

Judge MCCUSKEY. I think that judicial temperament is the single

most defining quality of a judge. Congressman Evans paid me a

compliment and I had even forgotten about it. In 1990, 800 lawyers

rated my qualifications as a circuit judge in the 21 counties when

I ran for the appellate court and I received the highest score on
1015

legal ability. But what made me feel the best was I received the

highest score, an exceptionally qualified rating, on judicial temperament, which was my highest score.

I think that a judge in the decisionmaking qualities has to handle what I call the four F's. You have to be fast, you have to be

fair, you have to be firm, and a judge must be friendly. People do

not always enjoy litigating cases. Jurors certainly don't like lengthy

Federal district court jury duty, and we have to remember that the

people come before a court and look to the judge for an attitude.

And if that attitude is not fair and friendly, that is what they take

home, that is what they tell people about the system. And I think

it is my responsibility to make them have the best feeling about

the court experience and what happens in the courtroom.

Senator DURBIN. Mr. Chairman, I will add in closing that Mr.

Murphy here received a very kind and generous letter from Judge

Phil Gilbert, who is a Federal district court judge in the southern

district. Judge Gilbert was appointed under a Republican administration. I knew his father when his father was a Republican State

senator. It is a wonderful family.

And Judge Gilbert had the highest praise for Pat Murphy, who

practiced before him, for his knowledge of the law and his fairness,

too. And I don't want this to continue to sound like a cheering section, but both Senator Carol Moseley-Braun and I are very proud

to present these nominees.

"Thank you.

Senator KYL. Thank you. Senator Durbin.

In order to make this not appear to be too easy, let me ask Mr.

Adelman a question, if I could. In the October 1993 issue of Wisconsin Lawyer magazine, you authored an article titled "Wisconsin

Should Not Reverse 140 Years of History by Reinstating the Death

Penalty." In that article, you enumerated a list of arguments

against the death penalty, including that it disproportionately applied to racial minorities, it is arbitrarily imposed, it does not effectively deter future crimes, it is unduly expensive, and it reflects

badly on the United States vis-a-vis other Western democracies.

Given your forceful personal opposition to the death penalty, do

you believe you can effectively £uid fairly decide capital cases on the

Federal bench?

Mr. ADELMAN. Yes, Mr. Chairman, I do. In that article, I was

serving as an advocate of a legislative position which has actually

been the law in Wisconsin for many, many years. However, my job

as a judge would be very different and it would be—the Supreme

Court has found that the death penalty is constitutional. It would

be my job to uphold the law as a district court, and there is nothing

in my personal beliefs that would in any way impair me from following the law as decided by the Supreme Court and the seventh

circuit.

Senator KYL. So notwithstanding those personal views, you

would apply the law and, if necessary, in appropriate circumstances, be willing to apply the death penalty?

Mr. ADELMAN. That is correct.

Senator KYL. Thank you. May I just ask if any of the other members of the panel have a personal or moral position which would

not enable them to apply the death penalty, if warranted, in an ap-
1016

propriate case? And if you don't, then I will take your silence as

a statement that you would not have such a problem.

[No response.]

Senator KYL. Mr. Breyer, since I don't think anyone has picked

on you yet, in the absence of controlling precedent, how would you

characterize your approach to interpreting the Constitution?

Mr. BREYER. Well, again, let me say that I think that you would

take a look at the case in front of you. If it were a State statute

or an initiative, you would start with the fact that there is a presumption of constitutionality, that the State legislature or that the

public, the people and the voters, have enacted a constitutional enactment.

Second, I think you have to take a look at the plain meaning of

what it is that they are saying, and then, if necessary, if you have

to go for a further analysis, in those rare cases then I think you

could take a look at legislative intent.

Senator KYL. Let me ask if any of you on the panel feel constrained to add anything or whether that answer essentially expresses your view of how you would interpret cases as well. And

if you don't add anything, I will assume that your response would

be roughly along the same lines.

[No response.]

Senator KYL. All right. I asked a case before of Judge Ware and

let me—Mr. Damrell, I forgot whether you have been asked a question or not, but we will just go right down the line here. This had

to do with the affirmative action issue that I asked Judge Ware

and my question was where there is no evidence of past acts of employment discrimination directed at either identifiable individuals

or particular minority groups, and no evidence that members of a

particular minority group are underrepresented in an employer's

work force, then may the employer, under the equal protection

clause of the 14th amendment and title VII of the Civil Rights Act,

use race, national origin, or gender as the basis for employment decisions?

Mr. DAMRELL. Mr. Chairman, I could simply say I agree with

what Judge Ware said, but I think I could at least add to that my

own personal words, and that is that I would follow the Adarand

case. It would appear that based on that case, any race-based classification must be strictly construed, strictly scrutinized, and if

there is found to be a compelling interest, which there wouldn't appear to be in this factual context, then, of course, it would be very

narrowly construed. But I would think Adarand would control

under those circumstances.

Senator KYL. DO any of you have anything you would like to add

to that? And if you do not, I will assume that your answer would

be roughly the same as Judge Ware and Mr. Damrell.

[No response.]

Senator KYL. All right. Well, Judge Jenkins, let me ask you one

question, since I don't think you have been asked a question yet,

and then we will wrap this up. This has to do with fifth amendment takings under tne Constitution. Of course, the amendment

5>rovides that private property may not be taken by the government

or public use without payment of just compensation to the owner.
1017

Would you state for us your best independent legal judgment on

whether a property owner is entitled to just compensation when

the Government, through wetlands designation or through other

land use, environmental, or endangered species statues or regulations, for example, substantially limits or prohibits an owner's

other lawful use or development of his or her property?

Judge JENKINS. Mr. Chairman, my understanding of the U.S. Supreme Court precedent in that regard is that it certainly is possible

that that could be construed as a taking. There are several different standards. One is that if the limited use of the property in

question has substantially and materially impacted alternative

uses, then, in fact, that would be a public taking for which compensation would be due.

Senator KYL. DO any of you have a different understanding of the

law or would you like to add anjrthing to that answer?

[No response.]

Senator KYL. Senator Kohl, do you have any additional questions?

Senator KOHL. Just one request of you.

Senator KVL. Sure.

Senator KoHL. Senator Leahy has asked that his statement be

made part of the record and I recommend that it be done.

Senator KYL. Certainly. Without objection.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

I commend the Chairman for holding this confirmation hearing for judicial nominees this afternoon. This is the second hearing held for judicial nominees in two

days and if we are able to proceed with these 13 nominees, the Committee will

make some progress toward reducing the backlog of judicial nominees pending before the Committee and awaiting their hearings.

I want to apologize to Lynn Adelman, who I understand was told to fly to Washington Monday evening and to be available for a hearing on Tuesday morning at

Twhich he was not included.

I am delighted to see Judge Ware included at today's hearing. He is another of

the well-qualified nominees for a judicial emergency vacancy on the Ninth Circuit

Court of Appeals. That circuit is being forced to operate without 10 judges, which

are more than one-third of the Court. The Senate received Judge Ware's nomination

over four months ago. It was received before the nomination of Ronald Oilman and

three months before the nomination of Stanley Marcus, yet each of them has had

a hearing and Mr. Gilman was reported by the Committee on October 10.

While I am encovu-aged that the Committee is today proceeding with a hearing

on these eight nominees, there remains no excuse for the Committee's delay in considering the nominations of such outstanding individuals as Professor William A.

Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. MargEiret

McKeown, and Ms. Susan Oki Mollway, to name just a few of the outstanding nominees who have all been pending all year without so much as a hearing. Professor

Fletcher and Ms. Mollway had both been favorably reported last year. Judge Paez

had a hearing last year but has been passed over so far this year. Professor Fletcher, Judge Paez and Ms. McKeown are all nominees for judicial emergency vacancies

on the Ninth Circuit, as well.

After this hearing, the Committee will still have pending before it over 30 nominees in need of a hearing from among the 73 nominations sent to the Senate by

the President during this Congress. From the first day of this session of Congress,

this Committee has never had pending before it fewer than 20 judicial nominees for

hearings. The Committee's backlog had doubled to more than 40 and will dip below

40 with this week's hearings for 13 of those nominees.

The Committee still has pending before it 10 nominees who were first nominated

during the last congress, including five who have been pending since 1995. Thus,

while I am delighted that we are moving more promptly with respect to some of
1018

the nominees being considered today, I remain concerned about the other vacancies

and other nominees.

I hope that the Committee will now proceed without delay to consider these nominations as well as the nominations of Clarence Sundram and Judge Sonia

Sotomayor and the other nominees who participated in yesterday's hearing. We

should be moving promptly to fill the vacancies plaguing the federal courts. Twentytwo confirmations in a year in which we have witnessed 115 vacancies is not fulfilling the Senate's constitutional responsibility.

At the end of Senator Hatch's first year chairing the Committee, 1995, the Senate

adjourned having confirmed 58 judicial nominations and leaving only 49 vacancies.

This year the Senate has confirmed less than half of the number confirmed in 1995

but will adjourn leaving almost twice as many judgeships vacant.

At the snail's pace that the Committee and the Senate are proceeding with judicial nominations this year, we are not even keeping up with attrition. When Congress adjourned last year, there were 64 vacancies on the federal bench. In the last

10 months, another 50 vacancies have occurred. Thus, after the confirmation of 22

judges in 10 months, there has been a net increase of 28 vacancies, an increase of

almost 50 percent in the number of current federal judicial vacancies. Judicial vacancies have been increasing, not decreasing, over the course of this year and therein lies the vacancy crisis. The Chief Justice of the United States Supreme Court has

called the rising number of vacancies "the most immediate problem we face in the

federal judiciary."

I commend Senator Hatch's effort to hold two days of hearings this week and to

accelerate the pace at which nominations are moved through the Committee. Unfortunately, this is only the eighth confirmation hearing for judicial nominees that the

Committee has convened all year.

Since no regular Executive Business Meeting of the Committee was noticed for

this week and none has yet been noticed for next week, which may be our last before adjournment, the Committee may not have an opportunity to report any of the

13 fine judicial nominees who participated in hearings this week or the nomination

of Bill Lee to be Assistant Attorney General for the Civil Rights Division.

I have urged those who have been stalling the consideration of these fine women

and men to reconsider and to work with us to have the Committee and the Senate

fulfill its constitutional responsibility. Those who delay or prevent the filing of these

vacancies must understand that they are delaying or preventing the administration

of justice. Courts cannot try cases, incarcerate the guilty or resolve civil disputes

without judges. The mounting backlogs of civil and criminal cases in the dozens of

emergency districts, in particular, are growing more critical by the day.

Senator KYL. Senator Feingold.

Senator FEINGOLD. No, thank you, Mr. Chairman.

Senator KYL. Senator Durbin.

Senator DURBIN. I have no other questions.

Senator KYL. Well, again, they all passed the test, you see, and

I think it unnecessary for us to continue to ask questions. We may

want to submit some questions for the record. Other members who

can't be here may want to do that.

But in view of the distinction of these nominees and the qualifications that they have each brought to their nomination, I don't

think it necessary to continue the oral examination here. Therefore,

unless any other—Senator Sessions, I know you have just joined

us, but if you have no questions of—I know I am catching you off

guard—of this panel, we are pretty well through, I think.

Senator SESSIONS. Mr. Chairman, I don't think I have any questions at this time. I might want to submit a written question, but

I don't have anything now.

Senator KYL. Well, let me thank all of you again. You are distinguished nominees and we hope we can get through the confirmation process very quickly. Thank you very, very much.

Now, our final panelist is Judge Frederica Massiah-Jackson.

Would you please come forward? I will just leave you stfuiding as
1019

I administer the oath, if I could. We will wedt until it kind of clears

here a little bit.

Do you swear the testimony you shall give at this hearing shall

be the truth, the whole truth and nothing but the truth, so help

you God?

Judge MASSIAH-JACKSON. Yes, Senator, I do.

Senator KYL. Thank you. Please be seated.

I should by way of explanation note that Judge Jackson was to

be on the panel yesterday. We have carried her over to today. Senator Specter wanted to be here and we are hoping that he can come

back. And I must announce I have an appointment. I will have to

leave in approximately 7 minutes, so I would like, if I could, begin

questioning and then turn the gavel over to Senator Sessions or

whoever else might be here to continue the hearing to conclusion.

TESTIMONY OF FREDERICA A- MASSIAH-JACKSON, OF PENNSYLVANIA, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN

DISTRICT OF PENNSYLVANIA

Judge MASSIAH-JACKSON. Thank you, Mr. Chairman.

Senator KYL. Let me begin by asking you. Judge Jackson, to introduce members of your family or friends who might be here so

that we can see them.

Judge MASSIAH-JACKSON. Yes, Senator. My brother, Louis

Massisih, is here from Philadelphia today.

Senator KYL. Welcome.

Judge MASSIAH-JACKSON. And my husband was not able to be

here today, with the change in schedule. My daughter, who is a

freshman at Wesleyan University, is in the middle of mid-terms.

And my son, who is a freshman at Carver High School for Engineering and Science, is in the middle of mid-terms. So neither one

of them were able to join us today, but they all extend their greetings and thanks for you and the Senate giving me this opportunity

to be here. Thank you.

Senator KYL. Thank you. Now, if you would like to make any

kind of a statement, please do so. Otherwise, I will just begin some

questioning, if that would be acceptable.

Judge MASSIAH-JACKSON. Senator—Mr. Chairman, I do not have

a statement.

QUESTIONING BY SENATOR KYL

Senator KYL. All right. Let me ask you, you have heard the questions that I have asked other panelists specifically relating to discrimination cases, to capital punishment, to takings, and to deciding cases where there may be a lack of precedent or an unclear

precedent. You have heard the

Judge MASSIAH-JACKSON. Yes.

Senator KYL [continuing]. Answers that have been given by both

the circuit court and district court nominees. In order to save some

time, do you have any different answers or emything you would like

to add to any of those answers?

Judge MASSIAH-JACKSON. NO, Mr. Chairman. I listened carefully

to what Judge Ware, as well as the other panelists had to say and

I agree with what their position was.
1020

Senator KYL. All right. Let me ask you now some specific questions. In each case, as you know, we have some general questions

and then some specific questions that may in some respect represent criticism or writings or the like in your record.

Now, it is my understanding that copies of material relating to

cases that you submitted to the committee—^that this material was

reviewed by you, and among those materials was the transcript of

a case in which you used profanity in open court. Would you please

tell the committee whether you believe that conduct of that nature

is consistent with proper demeanor of a sitting judge and whether

there was any action, any ethics action taken or any sanction actions taken as a result of that comment?

Judge MASSIAH-JACKSON. Mr. Chairman and Senator Specter,

Senator Sessions, I made a mistake. It was my first or second year

on the bench and I did make an intemperate comment at a side

bar proceeding. While it was in open court, it was at a side bar

talking to counsel. I apologized profusely to that attorney, and I believe in her mind, in my mind, it has been resolved. We have

worked together since then. I was admonished by our judicial review board for using intemperate language at the side bar proceeding.

Senator KYL. NOW, my understanding is that that case was in

1985. Is that your recollection?

Judge MASSIAH-JACKSON. It was early—it was either 1984 or

1985, but, yes, Senator.

Senator KYL. And is that the only instance in which you have

used—^to your recollection, that you have used such language on

the bench?

Judge MASSIAH-JACKSON. I may have, you know, mumbled something to myself, but in open court, as far as I can recedl, to any particular individual, that would be the best of my recollection, yes.

Senator KYL. And in the particular case that I was speaking of,

I don't know the circumstances. Did you believe that the behavior

of the attorney to whom you spoke was disrespectful or incorrect?

Judge MASSIAH-JACKSON. There is never an occasion when the

behavior of an attorney would warrant the kind of language that

I used, Mr. Chairman.

Senator KYL. OK, themk you. In a case of Commonwealth v. Donald Powell, the Commonwealth's brief on appeal indicates that you

wrote letters to both the district attorney's office and to the appellate court in an effort to discourage or dismiss the government's appeal. Do you think it is appropriate for a judge to express such

strong opinions that he or she is viewing as acting as an advocate?

Judge MASSIAH-JACKSON. Mr. Chairman, my recollection of that

case was I had an interest in judicial economy. I had ordered a new

trial and it seemed to me that rather than waiting for 3 hours—

I am sorry—for 3 years on appeal, that a new trial could have been

ordered within a matter of weeks or within the next 30 days. I had

ordered a new trial, so I simply wanted to go forward with that.

Senator KYL. Well, what instances do you think it is appropriate

for a judge to attempt to discourage a party from exercising a right

to appeal?

Judge MASSIAH-JACKSON. Oh, it is not appropriate for a judge to

be an advocate under any circumstances. I simply wanted to try
1021

and move on with that case so that defendant could have another

trial.

Senator KYL. I am going to ask you one more question and then

I will have to excuse myself and turn the Chair over to Senator

Specter.

In a case of Commonwealth v. Jerome Gray, which involved a defendant who had beaten his girlfriend in 1989 so severely that she

had to be taken to a hospital where she was admitted for three

cracked ribs, a collapsed lung and ruptured spleen which had to be

removed, the police report shows that the defendant's record check

revealed that he had five prior arrests. You gave him 24 months'

reporting probation, presumably no jail time.

Could you explain the reasoning in that particular case?

Judge MASSIAH-JACKSON. What is that, 24 month, 2 years' probation?

Senator KYL. Yes, 24 months' probation.

Judge MASSIAH-JACKSON. Mr. Chairman, to the best of my recollection, the victim was not available to testify in court. I believe

that person had died some time between the time of the offense

and the time of the trial. I have to only assume that based on that

factor, I considered that as part of the sentence because I would

have sentenced within the guidelines, or certainly given explanations as to why I sentenced outside the guidelines. I simply don't

know that specific set of circumstances for that sentence.

[Pause.]

Senator KYL. I have explained to Senator Specter where we are

in the proceedings here. Please allow me to excuse myself. Again,

I want to thank all of the members of the family and friends who

are here. Judge Jackson, and I will turn the hearing now over to

Senator Specter.

Judge MASSIAH-JACKSON. Thank you, Mr. Chairman.

Senator SPECTER [presiding]. Judge Jackson, Senator Kyl is saying that because I am the senior Senator remaining, but I am going

to yield to Senator Sessions for two reasons. One is he was here

earlier and, second, he is not the Senator from your State. So I

think it might be a better line for Senator Sessions to question you

now.

Senator SESSIONS. Thank you. Senator Durbin maybe

Senator SPECTER. Senator Durbin, do you want to contest that

sequencing?

Senator DuRBiN. No. I think it is a good idea.

Senator SPECTER. Senator Sessions.

QUESTIONING BY SENATOR SESSIONS

Senator SESSIONS. On the matter of the Jerome Gray case, sometimes there are reasons, I know, that judges would rule the way

they did. But are you saying that the district attorney had agreed

to this lighter sentence because of a lack of being able to prove the

case, or did you impose this sentence over the objection of the prosecutor or with the prosecutor's consent?

Judge MASSIAH-JACKSON. Senator, I have no recollection of why

the sentence was imposed as it was imposed.

Senator SESSIONS. You just don't have a recollection?
1022

Judge MASSIAH-JACKSON. I accept the fact that it may have been

2 years of probation, but I don't know what the circumstances of

that particular incident or the background of the defendant which

would cause that sentence. I just don't know. My record on these

types of cases is very, very clear. I take these cases very seriously.

Senator SESSIONS. Would you say—were there sentencing guidelines in Pennsylvania and this would fall out of that guideline?

Judge MASSIAH-JACKSON. Senator, I don't know enough about the

background, but, yes, we do

Senator SESSIONS. He had four prior arrests or charges. That

would probably fall outside of the guideline, would it not?

Judge MASSIAH-JACKSON. Well, the sentencing guidelines take

into effect—take into account convictions. I don't know how many

convictions that person had. He may have been arrested a multitude of times, but I just don't know the number of convictions. I

really don't know.

Senator SESSIONS. I would like to follow up a little bit—I hate

to; I think we just need to

Judge MASSIAH-JACKSON. Sure.

Senator SESSIONS [continuing]. On the comments you made that

you have apologized for. I think that is a fact that I will consider,

and I know there was some disciplinary action t£iken for misbehavior by you in that regard.

Judge MASSIAH-JACKSON. Yes.

Senator SESSIONS. What troubled me a little bit about it—it

seemed to me it was a little more than that. Maybe it was at a side

bar, but you said to Ms. McDermott, referring to the prosecutor,

"Would you shut your blank mouth."

Judge MASSIAH-JACKSON. Yes, Senator.

Senator SESSIONS. And then when asked about it by the Philadelphia Inquirer, you said, quote, "Maybe I would suggest that it

offended Ms. MclDermott, but I can't imagine the defendant was offended." Do you recall saying that to the newspaper?

Judge MASSIAH-JACKSON. I have confidence in the Philadelphia

Inquirer.

Senator SESSIONS. Well, I guess my point is that suggests that

you weren't too contrite or apologetic about it, at least, at that

point.

Judge MASSIAH-JACKSON. Oh, I was very contrite and I did, in

fact, apologize to Ms. McDermott.

Senator SESSIONS. It was in the Burgos case, I believe, you responded to a prosecutor's motion with the following comment, "I

don't give a blank." Do you recall that?

Judge MASSIAH-JACKSON. I agree with what you are saying, but

I don't specifically recall it. Senator.

Senator SPECTER. Senator Sessions, is that a case in the memo?

I am trying to follow your questions.

Senator SESSIONS. Yes, sir. I have the title of the case Commonwealth V. Burgos, B-u-r-g-o-s.

Senator SPECTER. B-u-r-g-o-s?

Senator SESSIONS. Yes. I am not sure that

Senator SPECTER. Well, I will ask the staff if they can find that

for me.
1023

Senator SESSIONS. AS a prosecutor myself and having worked

with investigators and prosecuted cases, I know it is a tough job.

The defense lawyers earn their pay many times being very aggressive, but it is really frustrating if the judge takes sides against you,

too. And, to me, in a lifetime Federal appointment. Federal judiciary, we have to be sure that you will give the State a fair trial,

as well as the defendant a fair trial. It is particularly true, since

the government can't appeal. So they have no right of appeal, so

a judge—the prosecutors are at the mercy, for the most part, of a

Federal judge's ruling.

In Commonwealth v. Ruiz, you acquitted a man accused of possessing $400,000 worth of cocaine, it is reported to me, because you

did not believe the testimony of two undercover officers. In an earlier case, you pointed out those same undercover officers to a public

courtroom and told the onlookers to "take a good look at the undercover officers and watch yourself."

Do you recall that and do you have an explanation for that?

Judge MASSIAH-JACKSON. Senator, my recollection of the Ruiz

case—and I have submitted a written response to the committee

about that news article—is that there was a question about whether or not the defendant actually owned the house or lived in the

house where the drugs were found, and there was a question about

his actual possession of the drugs.

I have the highest regard for law enforcement officers. Over the

years when I was in criminal court—and as you know, it has been

over 6 years since I have sat in criminal court, but over those years

and the more than 4,000 cases that I handled involving criminal

matters, I have developed a tremendous respect for police, for the

prosecutors, and for law enforcement units.

Senator SESSIONS. If you are confirmed as a Federal judge, prosecutors are pretty much at the mercy of a Federal judge and the

judge cannot be removed or have their pay docked or anything like

that. And so I think it is important for us to feel comfortable that

they will get a fair trial.

With regard to that issue, I was troubled and thought it extraordinary that most of the cases you tried, the defendants waived a

jury trial and asked to be tried by you without a jury. In my experience, most defendants feel like they will have a better chance—

a jury has to be unanimous, all 12. There is always a chance on

any case that one of those three will say no and they won't be convicted. That would indicate to me that you have a reputation as not

being very tough on crime.

Judge MASSIAH-JACKSON. Well, I appreciate your concern. Senator. In Philadelphia, unlike any other part of Pennsylvania, actually, we have a special program called our criminal list or Felony

Waiver Program. The majority of our cases in Philadelphia—we are

so overwhelmed with our criminal calendar, the majority of our

cases are handled in this Felony Waiver Program where the defendants, with their attorneys, even before arraignment, I believe,

or some early stage of the proceeding many months or even years

before trial, they make a decision that they want to have their trial

without a jury.

And during my first 3 years on the bench, I would get a list.

There were 10 courtrooms of judges with a list of 10 to 15 cases
1024

each day and I would hear 10 to 15 cases each day either by trial

or by plea or—but the defendants were not permitted to have a

jury trial.

Senator SESSIONS. When they made that filing at that time

under the case processing procedure in the court, was it known

that you would be the judge?

Judge MASSIAH-JACKSON. Oh, no. All new judges go to felony

waiver unit.

Senator SESSIONS. I guess what I am saying is when a person

waived a jury trial, would they know whether it would be tried by

you or some other judge?

Judge MASSIAH^ACKSON. They would not know. They simply

elect to go to a specific program, and that program was csdled the

Felony Waiver Program and that is where I sat for the first 3

years.

Senator SESSIONS. My time is up, Mr. Chairman.

Senator SPECTER. Senator Sessions, if you want more time, why

don't you tsike some more?

Senator SESSIONS. I would ask a couple of more questions, I

think.

Search and seizure and rulings from the bench can be devastating to a prosecutor's case. This is what is reported, as I understand

the facts, in Commonwealth v. Jenkins. The police arrived at the

scene of an armed robbery within minutes. 'They were given detailed descriptions of the robbers and told the subjects had run

north on a particular street. The descriptions were broadcast over

the radio.

Soon thereafter, other police officers arrested a black male

matching the description IVi blocks from the crime. When approached by the police, the subject withdrew a roll of cash from his

pocket and threw it on the ground. When it came before you on a

motion, you ruled that probable cause to arrest did not exist and

suppressed the stolen cash. You also suppressed the in-court and

out-of-court identifications. In your findings of fact, you suggested

that the police stopped the subject simply because he was a black

male running on the streets in Philadelphia.

Would you like to comment on that and explain that case?

Judge MASSIAH-JACKSON. Yes, Senator. My recollection of that

case is that the only description that was given was black male,

black jacket, and there was a codefendant, black male, blue jacket.

That was my recollection.

Senator SESSIONS. Of course, he was IV'2 blocks away. He was

apparently running and a roll of cash fell out of his pocket. Would

that not give an officer a basis to make an investigatory stop?

Judge MASSIAH-JACKSON. Senator, the appellate court agreed

with you and I was reversed.

Senator SESSIONS. Another case that troubled me, because this

kind of thing can happen in any court—a defendant was charged

with robbery—and this case is Commonwealth v. Hicks, H-i-c-k-s—

involving theft and receiving stolen property, aggravated assault,

and simple assault. The defense made a motion for a continuance

because the police officer was not available to testify, apparently,

for the defense, even though he had been subpoenaed.
1025

You ruled that the officer was under the State's control and

forced the State to nol pros the case. When the prosecutor refused

to nol pros the case, you dismissed the charges against them, and

that ruling was reversed by the court of appeals. The appellate

court noted that the prosecution was ready to try the case and that

the only motion before the court was a defense request for a continuance.

You could have simply granted the defense motion to continue instead of dismissing the cases, it seemed to me, and apparently the

appellate court thought so. Do you have any comment or explanation on that situation?

Judge MASSIAH-JACKSON. NO, Senator, I don't. I overwhelmingly—of the 4,000 cases that I tried—and as you indicated, many

of them were bench trials. The defendants went to jail. There were

convictions and they are serving substantial time.

Senator SPECTER. Senator Sessions, that is the Hicks case?

Senator SESSIONS. The Hicks case, H-i-c-k-s.

Those were some cases that, to me—I am concerned not that—

I am concerned that it suggests a pattern of lack of sufficient respect for the prosecutor's responsibilities, burdens and problems as

much as it does the defendant's burdens and constitutional rights

and burdens.

As I say, so often the prosecution may never get a chance to appeal. If you keep certain evidence out and there is a jury verdict

of acquittal, there may be no appeal, or a ruling on an evidentiary

motion that can deny critical evidence and once a verdict has been

rendered and jeopardy is attached, the prosecutor has no right to

appeal.

So those are my concerns there and I wanted to ask you about

those. I think I agree with you that the kind of language we referred to here is not acceptable on the bench, and if you were to

be confirmed, I would hope that you would adhere to that. We simply have to maintain decorum and respect in a court of law.

Judge MASSIAH-JACKSON. I agree.

Senator SESSIONS. The judge has got to give a fair shake to both

the prosecutor and their problems, as well as the defendant.

Judge MASSIAH-JACKSON. Senator, I would like to reassure you

and the entire committee that I take this position very seriously.

This process has been a very humbling one and there is no question in my mind that I would not disappoint you.

I believe that I have a very—the track record indicates that of

the 60-some appeals that took place during the time I was in criminal court, 55 of those appeals were from defendants who thought

their sentence was too long or that they were wrongfully convicted.

And I don't believe that a close reading of my record would indicate

any pattern, but I do understand your concerns. Thank you.

Senator SESSIONS. I don't know if the prosecutor can appeal a life

sentence, can he?

Judge MASSIAH-JACKSON. Yes.

Senator SESSIONS. Or if they do, they are reluctant to do so in

a lot of instances. But defendants will certainly take their opportunity to appeal one they consider too heavy.

Judge MASSIAH-JACKSON. Thank you.
1026

Senator SESSIONS. I think, Mr. Chairman, that is what I would

like to ask about at this point.

Senator SPECTER. Well, thank you very much, Senator Sessions.

Judge MASSIAH-JACKSON. Thank you.

Senator SPECTER. Senator Durbin.

QUESTIONING BY SENATOR DURBIN

Senator DURBIN. Thank you very much. I appreciate your being

here today, and I would just like to ask three very brief questions.

I think there is an express concern, as I mentioned to the Illinois

nominees, about judicial temperament, and I am comfortable with

the responses that you have given to Senator Sessions about mistakes you have made.

Let me ask you, have you ever been disciplined by bar associations or others beyond this one reference that was made?

Judge MASSIAH-JACKSON. Oh, no. Senator, just that one time. I

learned my lesson.

Senator DURBIN. We all do make mistakes.

The second question relates to your reversal rate and I have been

trying—in reading the responses which you have given here, you

have said that you considered about 4,000 different cases in your

career as a judge.

Judge MASSIAH-JACKSON. Yes.

Senator DuRBlN. According to the information given to the committee, some 95 were appealed, but those were 95 civil cases, if I

am not mistaken.

Judge MASSIAH-JACKSON. No. That was criminal and civil.

Senator DURBIN. Criminal and civil?

Judge MASSIAH-JACKSON. Yes.

Senator DuRBiN. And of those, 14 were reversed in whole or in

part, is that correct?

Judge MASSIAH-JACKSON. That is correct, 14 overall, criminal

and civil.

Senator SPECTER. May interrupt just a minute, Senator Durbin?

I am going to make a couple of comments. Senator Sessions has

to leave. I just wanted to make a couple of comments before Senator Sessions left, and I am looking at all of these documents for

the first time. In the Jenkins case, which was a suppression matter, there was an appellate right in that case. If evidence is suppressed, under Pennsylvania procedure—and I think generally, but

know Pennsylvania procedure—^there is a right of appeal, so that

that order was taken up on appeal and Judge Massiah-Jackson was

reversed. So, that was an appellate issue.

Judge MASSIAH-JACKSON. That is right.

Senator SPECTER. And on the case—and I am just taking a look

at this case of Commonwealth v. Hicks, and I think we ought to

make this brief a matter of the record, and also the Hicks judgment.

[The brief and the judgment referred to follow:]
1027

CCMMOHWEALTH OF PENNSVLVAtJIA,

Appellant

V.

ROBERT HICKS,

Appalls*

IM THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2004 Philadelphia 1987

Appeal from the Order entered June 12, 1987, in

the Court of Conuaon Pleas at Philadelphia County,

Criminal, No. 86-10-180-182.

BEFORE: McEHEN, OLSZEWSKI, and CERCONE, JJ.

HEHORANOUM: nLED AUG -11968

The Coaaonwaalth appeals from an order dismissing charges

against appellant, asserting that the trial court abused its

discration in dlssissing tba charges. We agraa that the trial

court abused Its discration and, therefore, wa reverse the order

of the lower court and remand the case for further proceedings.

On September 13, 1986, appellant was arrested and charged

with robbery, theft, receiving stolen property, aggravated

assault and siaple assault as the result of an attack that took

place on September 6, 1986. Following a preliainary hearing on

October 2, 1986, appellant was bound for trial on all charges.

Saveral defense continuances and a crowded court docket delayed

the trial until June 12, 198^. On that date, counsel appeared

before the Honorable Fradarica Hassiah-Jackson and the following

dialogue ensued:

[BY THE COORTI: Robert Hicks, what's the status

of the Coaaonwaalth?
1028

MS. SUTTER (FOR THE COMKOrWEALTH]: Wa ara raady.

Judge.

THE COURT: Whac's Che status of the defense?

KR. CHEW tOEFENSE COUNSEL]: We need a

continuance. Your Honor.

THE COURT: I can't hear you.

HR. CHEW: Your Honor, wa need a continuance to

get the police officer in.

THE COURT: I thought the Comnonwealth subpoenaed

the police officer.

MR. CHEW: Wall, apparently he didn't receive ic

or there was soBe foul up somewhere.

THE COURT: Hs. Suttar.

MS. SUTTER: Z did subpoena the officer. Mr. ^

Chew as^ced ne to do so and yesterday our court

notices go over ac 2:30 in the aftamoon and aC

about 1:30 I put it in the batch that gats taken

over here to Conr: ACCendance. I put it in the

notice and apparently the officer is on his

regular day off.

N.T. 6/12/87 at 2-3. The court officer then inforaed tha judqa

that he had contacted the police officer's supervisor at tha 24th

District^ and was told that no court notice was received by

^ In the original notes of testimony the court officer stated

that he called the 24th Police District to verify receipt of tha

subpoena. N.T. 6/12/87 at 4. During the proceedings, the court

also referred to the officer's district as the ''24th." Id- At 8.

After tha charges were dismissed, the Comaonwealth noted in a

motion for reconsideration that tha police officer was assigned

to the 2Sth Police District, not the 24th District. According to

the record, the trial court then contacted the the court cleric.

Acting upon the court's request, tha cleric drafted a letter dated

July 9, 1987, and filed of record on July 13, 1987, in which ha

states that he had called tha 25th Police District. Also, in a

letter to the court stenographer dated July 9th, the judge noted

her own recollection that the court officer had telephoned the

2Sth Police District and requested that the scanographar review

(continued on next page)
1029

Uia^ office. The courr officer scaced that personnel ac Cour:

Accandance also infocned his chat no courr nocica was raceivad.

Id • ac 3-4. Thereafter, the court stated:

THE COURT: This case is going to be niarlced as a

Commonwealth request for continuance.

MS. SUTTER: Well, Judge, Cdefense] counsel asked

ne to subpoena him. I did it at counsel's

request.

THE COURT: No, no; according to ~ this is a

witness under the control of the Commonwealth,

solely and exclusively under the control of the

Commonwealth. There is no way for a police

officer to come to court unless the District

Attorney brings that person to court.

MS. SU'ri'LR: That is not correct. Judge. Defense

attorneys subpoena police officers all the time.'

THE COUltT: But under this particular

circumstance this witness is under control of the

Commonuealth because you have taken it upon

yourself to subpoena him.

This case is almost eight months old. It's

going to be a Commonwealth request and I assure

you, Ms. Sutter, you will lose on Rule XlOO

because the Commonwealth request to March of 1988

is way, way beyond 180 days.

(continued from previous page)

CAe notes of the proceeding. In response to the judge's letter,

die stenographer "corrected the error in the transcription" by

ctianging the references to the •'24th District" to the "2Sth

District." See Correction by court reporter datad 7/13/87.

He offer no comment on this sequence of events as the judge

later acknowledged the Commonwealth's documentation that a

subpoena had indeed been issued to thv police officer. See

Opinion denying the Commonwealth's motion for reconsideration

dated 1/4/88 at 12-13.
1030

Well, CopaonwaaltA, the defendanc Is in

custody as a result of this case and now you are

going to make hin wait until April of '88 rthe

next available trial date].

We can't let a man sic in custody until April

of 'SB when the Coaaonwealth didn't do what it

was supposed to do.

Well, we can nolle pros (the case]. . . .

And then if the comDonwealth gets the witness,

we'll give it a trial data. That's what we'll do

then. I can't let somebody sit in jail. We

don't know if he's guilty or not.

MS. SUTTEB: I'm ready to proceed. Judge.

THE COURT: But you didn't bring In the Defense

witness and he's under your control

Well, it can't be any plainer than that, Ks.

Sutter. Nolle pros, Robert Hicks.

MS. StmER: Judge, I will not make a motion to

the cotixt to nolle pros.

THE COURT: It's made on the Court's own motion.

MS. SUTTER: You mean then you. are discharging

the case. I think that's the difference.

I'D not going to nolle pros. I'JB ready for

trial. I'd like the record to reflect that.

THE COURT: You didn't bring in the witness.

That's the third case on today's list. Discharged

then. Fine. It's got to be discharged. I was

going to give you the opportunity for a nolle

pros, Ms. Sutter, and if you'd like to, you could

take it. I don't want to let you lose the

opportunity. Then once you get the Defense

witness and your Commonwealth witnesses together,

you could petition for a new trial data, but with

a discharge, you the Commonwealth won't have that

opportunity again. *
1031

[J. ac 5-12. Having discfiarqad the case. the trial Judge

-idioumed court. A notation on the docket sheet reflected that

the trial court disaissed the case because a Commonwealth witness

failed to appear.

On July 9, 1987, the ConuBonwealth filed a motion for

reconsideration, presenting docuaentacion that the Commonwealth

had indeed subpoenaed the police officer. The lower court

refused to hold a hearing on the matter but, in an opinion

denying the motion, stated that the charges had been dismissed

because the "Court simply did not believe that the Commonwealth's

attorney had subpoenaed the necessary police witness." Opinion

filed 1/4/88 at 9. The court refused, however, to reinstate the

charges, finding that the Commonwealth had "abandoned and Waived

its opportunity and responsibility to reinstate the charges" by

declining the court's invitation to nolle pros the charges. Jd.

at 13 (emphasis in original). This tlaely appeal by the

ComaonwealCh followed.^

Having carefully reviewed the record, we are unable to

determine the basis for the trial court's decision to discharge

Che defendant. Indeed, Che trial court was unable to justify its

decision by clcation to rule or law.3 According Co Che record,

2 Although the appeal was filed 31 days after Che order was

entered, the appeal is timely because the final day for filing

the appeal was a Sunday. SaS. Commonwealth v. Bevtai. Pa.

, , 532 A.2d 1, 10 (1987) (excluding weelcends and

holidays pursuant to 1 Pa.C.S. il908 when computing a time period

under the Rules of Criminal Procedure).

^ A court may not on its own motion enter a nolle pros pursuant

CO Pa.R.crim.P. 313; such a request is only made upon the motion

of the attorney for the Commonwealth. Comnonwealth v. Lord. 230

(continued on next page)
1032

howavar. :he only requesc presancad ts CAa courc vas ona bv Ua

di . . laa for a concinuanca. Pursuant to Pa.R.Crin.P. 301. such a

requast nay be heard and granted "in the interests o; justice*

i; "the reasons justifying the granting or denial of the

continuance" are contained in the record. Nothing in the record

evidences a ruling on the aerits of Che defense requesc for a

continuance in accordance with the provisions of Rule 301. When

the police officer failed to appear, the court should have either

ruled upon the defense motion or formally attempted to secure the

officer's attendance. The aua aoente dismissal of the charge,

however, was in error.

Further, we decline to accept Che conclusion thaC by

rejecting the courC's recommendaclon to nolla pros cha charges,

the Commonwealth "chose" to accept a discharge of the case. As

we noted above, the only motion before the court was a de£anae

request for a concinuanca. Contrary to the sCatemenC by cha

court, the Commonwealth had repeatedly assarted that it was r«ady

to try the ease that day; it never requested a dismissal of Cha

case. Consequently, the ComaonwealCh did noC "choose" to have

the charges dismissed.

We also reject the court's deceroinaCion Chac Che

Comnonwealch must accept Che consequences of dismissal of Che

(continued from previous page)

Pa.Super. 96, n. 3, 326 A.2d 455, 458 n. 3 (1974).

Similarly, pursuant to Pa.R.Crim.P. 315, the court may dismiss a

case "(u]pon motion" by defense counsel where Che CommonwealCh

has failed Co file an indiccaenc or «lnforaacion wichln a

reasonable time.
1033

ctiAC^es because it assumed en* responsibilicy iaz the w:.c.-.ess's

appearanca ac trial.^ In tAis regard, we again stress tftac

accarding to the record, the Coranonwaalth was prepared for trial

despice the officer's absence. Under the circumstances present

hare, disnissal of the charges was a drastic renedy given chat a

continuance could have been granted. £Lt. Coininonwealth v. Vij;;;

348 Pa.Super. 297, 502 A.2d 216 (1985) (dismissal of charges was

inappropriate remedy for discovery violation when a conti.nuance

would have been appropriate).

Further, we find irrelevant any implication that the due

diligence of the Commonwealth was being tasCad pursuant to tha

mandate of Pa.R.Crlm.P. lioo. Simply sCAtad, no request for Rule

1100 relief was before the court. See Commonwaalth v. Bulltnn.

331 Pa.Super. 84, , 480 X.Zd 254, 261 (1984) (Rule 1100

claim waived it no motion to dismiss is presented by the

dafense) .

In any event, we would reverse tha order dismissing tha

charges even if we accepted the lower court's erroneous theory

Uiat a discharge is warranted where tha Commonwealth fails to

subpoena a defense witness. The uncontrovartad evidence of

record shows that the Commonwealth did, in fact, subpoena the

defense witness but that the officer was on an extended vacation

* This is not to say, however, that tha Commonwealth may

purport to subpoena a witness for the dafense and than

deliberately fail to do so. Instantly, the record shows that the

Commonwealth agreed to issue a subpoena as a matter of

professional courtesy; the record also shews that such a subpoena

was, in fact, timely issued but the the officer was vacationing

at the time and failed to receive it.
1034

at the ti=e and failsd t; personally receive it. Hence, t.-.t

lower court's reasoning (or disnissing t.le case is understnec.

Indeed, the lower court acknowledged the Connonwealth's proc;

that the subpoena had been issued and admitted that t.le

"Comaonwealth could have easily met its burden" ac a Rule lioo

hearing. Opinion dated 1/4/88 at 15. ' . •

Finally, ue reject the trial court's suggestion that tne

order disnissing the charges could not be reconsidered and

reinstated because the Commonwealth had insisted on appealing the

order rather than accepting the court's recommendation to nolle

pros the case.' It is well-established Chat the Commonwealth

has the right to appeal from the dismissal of a charge. See.

e.g. • Commonwealth v. Revtai. Pa. , 532 A.2d 1 (1987):

Commonwealth v. Wlmberlv. 488 Pa. 169, 411 A.2d H93 (1979).

For the reasons stated above, the order dismissing the

charges is reversed, ttoa charges are reinatacad and the case is

remanded for further proceedings. Jurisdiction Is relinquished.

' The court expressed some concern that double jeopardy would

have attached. This concern is misplaced. The further

prosecution of a defendant is not barred by the double jeopardy

clause if a dismissal was granted on grounds unrelated to <

factual finding of guilt or innocence. Commonw^jlgh v. ^JIACS'

349 Pa.Super. 200, , S02 A.2d 1345, 1352 (1986).
1035

COHKONVEALTH OF PENNSVLVANIA.

Appellanc

ROBERT HICKS,

Appal!••

IM THE SUPERIOR COURT «r

PENNSYLVANIA

He. 2004 Philadalphia 1987

JUDGMENT

ON CoNsmouTioN Wiaszor, it is now here ordered and adjudged by this Court

that the judgment of the Court of Common Fleu of ' PFTT APFT PTTA " Cotmty

be, and die same is hereby TEE OROEK DISMISSIMC TSE CBASCES IS REVEaSES.

THE CHAIU:£S AXE XEINSTATES AND THE CASE IS UXAHDED FOR FOSIBEX FROCEZSINCS.

JDRISDICnOH RELIUqUISHB).

BT IHJL COOBT:

nat^- AUGUST 1. 1918
1036

Senator SPECTER. I am only looking at this for the first time, and

apparently Judge Jackson suggested a nol pros. The prosecutor refused to do so. Judge Jackson dismissed the case. There was an appeal taken and there was a reversal, which raises a question in my

mind as to whether there isn't double jeopardy here, but the court

ruled that on the totality of these facts, there was a legal issue

raised. So they reversed her there and the case went back for trial.

I don't need to get into the question of whether there had been

a trial on the merits. If you went to trial, then you couldn't have

an appeal, but they treated it as a legal error and she was reversed

and the case went back for trial, so that the Commonwealth had

its rights of appeal in both of these cases.

I just wanted to point that out.

Senator SESSIONS. You are a very knowledgeable prosecutor and

I think those are good points to make. And I didn't mean to suggest

that these could not have been appealed. I think it came in my

questioning that there had been reversals.

But, Mr. Chairman, what I am saying is that these are the ones

that have been in the record that we know about. They raise troubling questions about an approach to criminal law. My point is that

there are many rulings in the midst of a trial that we will never

see in the appeals books because they are not appealable by the

prosecutor. That is what is really dangerous. If you can get an appeal, an error by a judge can always be corrected. But as to the

prosecutor particularly, they are vulnerable to rulings for which

they may never have a right to appeal.

Senator SPECTER. Senator, you are absolutely right. Evidentiary

rulings are not appealable and acquittals are not appealable. It is

a relatively rare judicial ruling which is appealable, and when you

raise a question inquiring as to whether there is a pattern, I respect your line of inquiry on that. I just wanted before you left to

raise these two procedural issues because you and I are both lawyers and have had some experience in the field, you with a loftier

position. You were attorney general. I was just a prosecutor.

Senator SESSIONS. I am not sure which is more lofty. You handled a lot more cases that I did, I am sure.

Senator SPECTER. Well, you do if you are in Philadelphia.

Senator Durbin.

Senator DURBIN. Senator Specter, let me just say as a former defense attorney, it is great to hear two prosecutors at odds here.

Senator SPECTER. I noticed you kept quiet.

Senator DURBIN. My final question to you relates to an experience I had in Chicago recently when I spent a day with some Chicago policemen on some of the meanest streets in our town. And

I talked about drug arrests and the like, and they told me stories

about taking their arrests down to the State's attorney's office and

then to the court. And we talked a little bit and they said, of

course, there was one judge, who I won't name—they said it is just

hopeless when you go before that judge; you are never going to

prosecute a drug case in front of that judge, and every defense attorney knows it and does their best to get in that courtroom.

I want to make sure that the record is clear here if there was

any impression created that you were the forum where defense at-
1037

tomeys would race to because they felt that they would always get

a break or could be hopeful that they would get better treatment.

Can you shed some light on your experience in that regard dealing with drug prosecutions or any serious criminal prosecutions?

Judge MASSIAH-JACKSON. Well, over those 8 years when I have

sat in criminal court, a total of 4,000 cases—several hundred of

them were drug prosecutions and the majority of those prosecutions were convictions; the same with other violent offenses—robberies; burglaries; rapes; you know, aggravated assaults. And I

have already submitted to the committee my computer printouts,

the raw data of the numbers and statistics relating to sentencing,

as well as to the convictions. But there is no question, Senator, the

overwhelming majority—^you know, 85, 90 percent were convictions,

yes.

Senator DURBIN. Well, thank you for your testimony and I appreciate it. I note that you received high marks from former Senator

Wofford, as well as Senator Specter and Congressman Foglietta. I

have the highest respect for all three of those and I am glad you

came before our committee. Thank you.

Judge MASSIAH-JACKSON. Thank you.

QUESTIONING BY SENATOR SPECTER

Senator SPECTER. Judge Jackson, I am going to ask you a number of questions because this record is going to be reviewed, perhaps, by a number of people, so that I believe that there ought to

be as full a record as we can make on the relevant matters, although there are limitations. It is now 3:47 and I have a 4 o'clock

conference, which has just been put off for 30 minutes, and the

Governmental Affairs hearing I just left on campaign finance reform, and some appointments are waiting in the anteroom, which

is par for the course. But this is a matter which I think we ought

to develop the record on just a bit.

Senator Kyi told me that he had explored with you briefly judicial philosophy and I would like to go over a bit of that. I could

not be here at the very start.

Judge MASSIAH-JACKSON. Right, yes.

Senator SPECTER. There is a lot of concern about activist judges,

whether judges are going to make law as opposed to interpreting

the law. And, obviously, that is a subject that you know a lot about

on the philosophical, ideological level.

How would you characterize yourself as a judge with respect to

strict construction, broad construction? Do you believe a judge

should very narrowly interpret the law without a view to making

law?

Judge MASSIAH-JACKSON. Mr. Chairman, I believe that a judge

should be very narrow in constructing precedent, in constructing

the particular case that is in front of me. It is inappropriate, with

the separation of powers, for a judge to try and make the law.

Rather, our role is to apply the law that the legislature has enacted.

Senator SPECTER. All right. Now, could you specify anything in

your career which would support your action in support of those

principles?
1038

Judge MASSIAH-JACKSON. Well, Mr. Chairman, in following the

sentencing guidelines, that is legislation from our State legislature

which I follow. And imposing mandatory minimum sentences—^that

is legislation from our State legislature which I follow.

Senator SPECTER. Senator Kyi told me that he had asked you

about the death penalty, and there have been references in some

of the materials about some speeches you have made on the death

penalty. The death penalty is the law of Pennsylvania. As a judge,

have you enforced the law of Pennsylvania as written?

Judge MASSIAH-JACKSON. Yes, I have enforced the law. I have

not had the occasion up to this point to impose a death penalty because I have not sat in our homicide program in Philadelphia,

which certainly, as you know, is a separate subdivision of the

criminal division.

In the speeches, I was specifically asked by our State legislature

to give comments of the practical effects of the death penalty, and

I do so at their request. But I have nothing in my personal philosophy which would prevent me from imposing the death penalty if

called upon to do so.

Senator SPECTER. Would you amplify what you said by way of

personal philosophy on the death penalty?

Judge MASSIAH-JACKSON. The State legislature was considering

certain crime bills in Pennsylvania and invited several judges, as

well as other individuals, to come forward and present testimony.

And I simply quoted from one of—a former Supreme Court Justice

indicating his opinion on the death penalty and I specifically said

that we do not want to coddle criminals. I said that in the same

speech. I take a very strong view on law enforcement and keeping

crime off the streets.

Senator SPECTER. The question has arisen as to your sentencing,

and we have a lot of statistics and I am always very leery,'frankly,

of citing statistics. In hearings, we cite facts without the kind of

precision which has to go on in the courtroom. But the record that

has been presented to me shows that in 1984 you had 551—these

are criminal cases; 1985, 736 cases; 1986, 653 cases; 1987, 591

cases; 1988, 241 cases; 1989, 354 cases; 1990, 447 cases; 1991 says

"N/A," apparently meaning not applicable; 1992 to 1995, 60 to 100

cases a year, and then in 1996, 200 civil dispositions.

The total on the specific cases from 1984 to 1990—1 totaled 3,573

cases, and you have referred to more than 4,000 cases. What is

your best evaluation or approximation as to the total number of

criminal cases you have tried?

Judge MASSIAH-JACKSON. From January 1984 through December

of 1991,1 think it is about 4,000.

Senator SPECTER. Are all those waiver, that is nonjury cases?

Judge MASSIAH-JACKSON. Most of them were, yes.

Senator SPECTER. Do you sit on jury trial rooms ever?

Judge MASSIAH-JACKSON. Oh, yes; oh, yes, very—there were occasions when defendants requested jury trials and I did sit on jury

trials.

Senator SPECTER. HOW many jury trials did you sit on, if you can

quantify that?

Judge MASSIAH-JACKSON. On the criminal side, probably less

than 10; on the civil side, every week, one a week, since 1991.
1039

Senator SPECTER. Well, when you had the jury trials, were you

in a specific jury trial room?

Judge MASSIAH-JACKSON. I was in a room where a defendant

could request a jury trial, yes.

Senator SPECTER. DO they still have the procedure in Philadelphia of having waiver rooms where you may not ask for a jury

trial?

Judge MASSIAH-JACKSON. Oh, yes. During—-yes.

Senator SPECTER. And jury trial rooms where you may ask for

a jury?

Judge MASSIAH-JACKSON. Yes.

Senator SPECTER. But you don't have to ask for a jury?

Judge MASSIAH-JACKSON. That is correct, yes, Mr. Chairman.

Senator SPECTER. Now, the issue was raised as to whether you

were a lenient sentencer because people were more interested in

trying to you on a waiver. When you sat in jury trial rooms, how

frequently did the defendants ask for a jury trial, contrasted with

how frequently did they seek to waive a jury trial?

Judge MASSIAH-JACKSON. Most of the times, the defendants either waived their jury trial or they pled guilty.

Senator SPECTER. In the jury trial room?

Judge MASSIAH-JACKSON. Yes, sir.

Senator SPECTER. But you did try some jury cases?

Judge MASSIAH-JACKSON. Oh, yes; oh, yes.

Senator SPECTER. Do you have any judgment or sense as to why

they asked for jury trials in those cases?

Judge MASSIAH-JACKSON. NO, no, Mr. Chairman. There were

many judges. I think the defendants were simply trying to get their

cases moving and that was a way to do it.

Senator SPECTER. Well, why did the defendants ask for jury

trials in the cases where they asked for them?

Judge MASSIAH-JACKSON. I have no idea. I didn't explore that

with them.

Senator SPECTER. According to information provided—and this is

from your records. I have asked how many appeals were taken as

to your cases and the information you have provided says that

there were 95 appeals filed with the Superior Court of Pennsylvania and you were reversed in whole or in part 14 times. Is that

accurate?

Judge MASSIAH-JACKSON. That is correct; over 14 years, that is

correct.

Senator SPECTER. Were you ever reversed on a sentence?

Judge MASSIAH-JACKSON. Not to my knowledge. It is just the one

time, in 1995 or 1996.

Senator SPECTER. On a sentence?

Judge MASSIAH-JACKSON. On a sentence. I was not reversed. I

was afilrmed on a sentence.

Senator SPECTER. Mayor Rendell told me that you were never reversed on a sentence. Do you think he was wrong?

Judge MASSIAH-JACKSON. I was not reversed on a sentence. I was

appealed on that sentence that one time.

Senator SPECTER. OK, but the question was reversed, Judge

Jackson, not appealed.
1040

Judge MASSIAH-JACKSON. I apologize. To the best of my knowledge, I have never been reversed.

Senator SPECTER. There was one case where there was an appeal

from your sentence.

Judge MASSIAH-JACKSON. Right.

Senator SPECTER. And on that case, you were not reversed?

Judge MASSIAH-JACKSON. That is correct. I apologize.

Senator SPECTER. So Mayor Rendell is not wrong?

Judge MASSIAH-JACKSON. NO, no, he is not.

Senator SPECTER. OK. Judge Jackson, had you been informed

prior to coming here today that you would be asked questions

about any specific cases?

Judge MASSIAH-JACKSON. I had a general knowledge of some of

the cases.

Senator SPECTER. Did you know, for example, you would be

asked about the Jenkins case which involved this question about

identification suppression?

Judge MASSIAH-JACKSON. Yes.

Senator SPECTER. YOU knew you would be asked about that?

Judge MASSIAH-JACKSON. Yes.

Senator SPECTER. How did you know you would be asked about

that?

Judge MASSIAH-JACKSON. I received information from the Department of Justice.

Senator SPECTER. Did you know you would be asked about the

Burgos case?

Judge MASSIAH-JACKSON. Yes, yes.

Senator SPECTER. So you had an opportunity to prepare on that

case?

Judge MASSIAH-JACKSON. Yes, 1 did. Senator.

Senator SPECTER. YOU have been questioned about language

which you used in two cases. Judge Jackson. On the one case

which was involved with Ms. McDermott

Judge MASSIAH-JACKSON. Yes.

Senator SPECTER [continuing]. That case was taken to the Judicial Board of Inquiry and Review?

Judge MASSIAH-JACKSON. That is correct.

Senator SPECTER. And who took the case to that board?

Judge MASSIAH-JACKSON. AS far as I know, she did. I don't know.

They don't tell us who brings

Senator SPECTER. And was there a hearing on that case on the

record?

Judge MASSIAH-JACKSON. NO, simply a—just a letter submitted.

Senator SPECTER. And was any sanction imposed on you for that?

Judge MASSIAH-JACKSON. I received a letter indicating I was admonished for using intemperate language at a side bar proceeding,

just a letter.

Senator SPECTER. Have you ever used that word in open court

since?

Judge MASSIAH-JACKSON. NO, Senator.

Senator SPECTER. Have you ever used that word in any judicial

proceeding other than in open court?

Judge MASSIAH-JACKSON. NO, Senator.
1041

Senator SPECTER. Ms. Jackson, you have already apologized for

it, but I think that there may be some greater interest. And I don't

want to unduly prolong it and I have accepted your apology, as far

as I am concerned, but I think others might be interested in a little

fuller explanation.

Why did you say that? I know it is a long time ago and I read

in the record that you were perturbed and that counsel was pushing you, and lawyers do that to judges and judges do respond. But

why did you use that kind of language?

Judge MASSIAH-JACKSON. I don't have an answer. I was frustrated, Senator, and it just blurted out.

Senator SPECTER. Senator Thurmond always asks nominees for

the bench—I heard him do this for the first time when Judge—she

wasn't a judge—when Carol Mansman was up in 1982 with

Stapleton, and Senator Thurmond said, "Do you promise to be courteous?" And I thought to myself, what kind of a question is that?

What does he expect them to say? And they said, "yes."

And he said in his inimitable southern accent, "Do you promise

to be courteous?" And they said, "yes." And then he said, "Because

the more power a person has, the more courteous that person has

to be." And I have come to view those statements as very, very profound statements, and when Senator Thurmond is not here I always repeat Senator Thurmond's admonition to nominees. Many,

after the fact, have told me how they think about Senator Thurmond's admonition.

You were challenged on your language in another case, the—see,

they told you about these cases before you got here, but they didn't

tell me about the cases before I got here. Judge Jackson. And if

they had, it wouldn't have done any good; I would have waited

until I got here anyway.

The Ruiz case where you said "I don't give a blank"—why did

you use that expression?

Judge MASSIAH-JACKSON. I believe that was something I mumbled under my breath that I was just tired.

Senator SPECTER. Well, it says here she said, quote, "In a staged

whisper while motioning the court reporter to stop recording,

quote, 'I don't give a blank.'" Have you ever said that again?

Judge MASSIAH-JACKSON. NO, I have not, Senator.

Senator SPECTER. Why did you say that?

Judge MASSIAH-JACKSON. I have to say I don't specifically remember that incident and I don't know why. I guess I was

Senator SPECTER. IS the language pretty tough in the Court of

Common Pleas in Philadelphia?

Judge MASSIAH-JACKSON. It is very tough. I have learned words

that I never knew before I was a judge.

Senator SPECTER. How could that be. Judge Jackson? You grew

up in Philadelphia.

Judge MASSIAH-JACKSON. I grew up on the streets of north Philadelphia, but I was—

Senator SPECTER. I didn't know there were any words that

weren't used in Philadelphia, especially on the streets of north

Philadelphia.
1042

Judge MASSIAH-JACKSON. I was blessed with a family and strong

support and I was not—I didn't live on the streets, as many of the

defendants and the victims did.

Senator SPECTER. Judge Jackson, I want to make a part of the

record for you the memorandum which has quite a number of other

cases in it which you have not been questioned about. But before

I do, the Hicks case—why did you force the—do you recall the

Hicks case where you, in effect, forced the prosecutor to go on trial?

Judge MASSIAH-JACKSON. Yes. It was my recollection that had

been continued several times earlier by the prosecution and I made

a ruling on what we call our rule 1100, or speedy tried issue, saying

the defendant had not come to trial on time.

Senator SPECTER. Well, you could have dismissed the case based

on that.

Judge MASSIAH-JACKSON. That is what I did do. I dismissed it

based on rule 1100.

Senator SPECTER. YOU dismissed the case based on an 1100 ruling?

Judge MASSIAH-JACKSON. Yes, and that is whySenator SPECTER. DO you have your opinion in the case, because

I don't have it before me here?

Judge MASSIAH-JACKSON. I don't believe I do. I don't what

the

Senator SPECTER. I was district attorney when that rule was put

into effect. It started out being 270 days. "Then it was

Judge MASSIAH-JACKSON. NOW, it is 180.

Senator SPECTER. We did it for a brief period of time to give us

an adjustment period of 270 later. It was 180.

Why did they reverse if the 180 days had run?

Judge MASSIAH-JACKSON. It is my recollection, Senator, that the

superior court felt that there should have been one more opportunity for that defendant to go to trial.

Senator SPECTER. Well, but there is no mention here of the 180

days. Well, if this issue is to be carried further, it may be that we

will need a further statement from you. I don't know that we will.

Judge MASSIAH-JACKSON. OK.

Senator SPECTER. And I want to make available to you a memorandum which has a number of cases which you haven't been asked

about today.

Judge MASSIAH-JACKSON. OK.

Senator SPECTER. But I would like for you to review your records

and be in a position to respond on these matters if anybody wants

to know about them.

On a total number of cases of more than 4,000, and 95 appeals

and 14 reversals, there may not be an issue relating to pattern of

conduct, or somebody may raise an issue of pattern of conduct. So

I think you ought to be prepared to deal with that.

Judge MASSIAH-JACKSON. OK.

Senator SPECTER. Why do you want to be a Federal judge. Judge

Jackson?

Judge MASSIAH-JACKSON. I believe that I do have the temperament, the intellect and the ability to move from the State court to

the Federal court. I enjoy the law and I feel that the Federal bench

will give me an opportunity to deal with the complex issues that
1043

are involved in the law, rather than the rush that we go through

on the State court.

Senator SPECTER. You are tired of being rushed?

Judge MASSIAH-JACKSON. I would like to have time to reflect on

serious and complex issues.

Senator SPECTER. Your background will be different on the U.S.

District Court for the Eastern District of Pennsylvania than any

other judge there now. Do you know the judges' lunch room is at

the Federal court?

Judge MASSIAH-JACKSON. I have visited there, I believe.

Senator SPECTER. Have you had lunch there?

Judge MASSIAH-JACKSON. One time, I believe.

Senator SPECTER. Somebody said you would add a new dimension to the lunch room.

Judge MASSIAH-JACKSON. I don't know what that means.

Senator SPECTER. It means they have conversations at lunch,

they talk, and that you would bring a little different background

Judge MASSIAH-JACKSON. I eat at my desk now.

Senator SPECTER [continuing]. To the lunch room.

Judge MASSIAH-JACKSON. Well

Senator SPECTER. I have had lunch there. They could use some

differing backgrounds. They don't need any Senators, but they

could use some differing backgrounds.

Judge MASSIAH-JACKSON. Thank you, Senator.

Senator SPECTER. Also, the food is not so good.

I am going to just take a minute to talk to one of the lawyers

here.

Judge MASSIAH-JACKSON. Sure.

[Pause.]

Senator SPECTER. In the case of Commonwealth v. Jahon, the defendant, so I am told, was charged with first-degree aggravated assault, an offense that carries a mandatory sentence, and you found

him guilty of second-degree aggravated assault, a charge that does

not carry a mandatory sentence. You found the defendant used his

body as a deadly weapon in an effort to satisfy the deadly requirement of the second-degree offense. The transcript states that you

said the defendant, quote, "used his body by bumping the victim

with his stomach and then tossing him with his hands," close

quote.

Are you able to explain your reasoning in that case?

Judge MASSIAH-JACKSON. For the verdict?

Senator SPECTER. For the verdict or your statement.

Judge MASSIAH-JACKSON. It is

Senator SPECTER. Do you recollect the case?

Judge MASSIAH-JACKSON. Yes.

Senator SPECTER. OK. If you recollect the case, then I think it

is a fair question.

Judge MASSIAH-JACKSON. OK.

Senator SPECTER. GO ahead.

Judge MASSIAH-JACKSON. Oh, yes. In Pennsylvania at the time—

and I don't know if the case law has changed since those years, but

there was a real question as to whether or not one punch or one

hit is sufficient to sustain a verdict of aggravated assault of the
1044

first degree. And so I found the defendant guilty of F-2, a felony

of the second degree.

Senator SPECTER. Well, did you deliberately ignore evidence of a

greater charge to find the defendant guilty of a lesser charge to

avoid the necessity for a mandatory sentence? I think that is the

import of the committee question?

Judge MASSIAH-JACKSON. NO, no, Senator. I don't look at the sentence when I am listening to the case. I consider the facts of the

case before I impose whatever the degree of guilt is. Just as a jury

would not be considering a sentence before the trial is over, I don't

do that either.

Senator SPECTER. Excuse me?

Judge MASSIAH-JACKSON. Just as a jury would not consider a

sentence before a trial is over, as a sitting judge at a bench trial,

I don't consider the sentence.

Senator SPECTER. Judge Jackson, are you saying that in all cases

you isolate those facts and never consider whether there is a mandatory sentence to be imposed if you make a finding of guilt of a

certain category?

Judge MASSIAH-JACKSON. That is what I do. I listen to the facts

and make a decision based on the facts that are in front of me.

Senator SPECTER. All right. We are going to make these questions available to you, and we will make a part of the record the

Commonwealth's brief in the case of Commonwealth v. Patrick Jenkins,^ and the opinion of the court in Commonwealth v. Hicks,^ superior court, 1987, and a memorandum dated November 7, 1988,^

and the 5 pages which is an extract of a larger memo made for the

chairman of the committee. And it is with respect to this larger

memorandum that we are asking you to take a look at it and be

in a position to respond to questions about the balance of the cases,

if that need should arise.

Judge MASSIAH-JACKSON. OK, thank you.

[An extract of the memorandum referred to above follows:]

' Retained in Committee files.

«Seep. 1027.

' Retained in Committee flies.
1045

NominatJon of Judge Massiah-Jacluon

Committee's Review of certain case»:

Included among the numerous materials reviewed for the above-named nominee are

the following cases: Commonwealth v Willie Hannibal. Commonwealth v Donald Powell:

Commonwealth v. Patrick Jenkins and Phillip Mavberrv. Commonwealth v. Norman

Nesmith: Commonwealth v Gregory Johnson. Commonwealth v. Floyd Decker:

Commonwealth v Jerome Gray Commonwealth v Jav Hahn. Commonwealth v Edward

Baker Below is an excerpt or a summary of specific matters in each of these cases.

In Commonwealth v Willie Hannibal, during a discussion with the prosecution,' page

17 of the transcript

Ms McDermott: For the record, Your Honor —

THE COURT: That's all I want to hear from you right now.

Ms. McDermott: I request that the Court -

THE COURT: Keep your mouth shut at this point because we are trying to deal with

this defendant's right to have a trial, and that is why we are here. Just stop talking.

Ms. McDermott: Your Honor, with all due respect —

THE COURT: You won your motion. Please keep quiet, Ms. McDermott.

Ms. McDermott: Your Honor, I can't —

THE COURT; Please keep quiet, Ms McDermott.

Ms. McDermott: Will I be afforded -

THE COURT: Ms. McDermott, will you shut your fucking mouth

'In Hannibal, the defendant decided at the last minute to not plead guilty to narcotics

and assault charges, choosing instead to go to trial. After some discussion, the defense stated

that they were not ready to try the case because their witnesses were not present. The

Commonwealth argued that it was ready to proceed and the Assistant District Attorney

objected to a continuance

45-964 98-34
1046

Footnote 6 in the Commonwealth's brief in the case of Commonwealth v Donald

Powell implies that Judge Massiah-Jackson tried to peisuade the Commonwealth lo dismiss its

appeal. That note states in pertinent part: * • *

Initially, Judge Massiah-Jackson refused to give the Commonwealth a thirty-day

continuance so that the Commonwealth could decide whether to appeal her new

trial order, informing the assistant district attorney that if the Commonwealth

did appeal she would "deal with that if it comes to that There are a variety of

ways to deal with it." Those "ways" apparently included her letter to the

Commonwealth suggesting that the appeal be discontinued, her subsequent

letter to this Court, after the Commonwealth indicated it would proceed with

the appeal, demanding that the President Judge be informed if the

Commonwealth withdrew before disposition; her Opinion filed in this matter, in

which she recharacterized the legal issue in an attempt to obfuscate the plain

appealability of her order; and finally, her "recommendations"to this Court [the

appellate court] that, upon dismissing the appeal, it (I) assess costs of the

appeal against the Commonwealth; (2) order that the charges against defendant

be dismissed if, upon retrial, defendant cannot locate his missing witness (who

refused his request to appear at his preliminary hearing and who could not be

found at trial) and (3) order that the time between (the date of the

Commonwealth's response to Judge Massiah-Jackson indicating that it would

proceeds with this appeal) and defendant's new trial be counted against the

Commonwealth for Rule 1100 purposes [Pennsylvania Speedy Trial Act]."

In the Commonwealth's brief of the case of Commonwealth v Patrick Jenkins and

Phillip Mavberrv. the government appealed Judge Massiah-Jackson finding that probable cause

to arrest defendants did not exist, and her suppression of evidence and her suppression of the

victim's identification of the defendant. In arguing that the judge mistakenly found that the

officers had stopped the defendant because he was simply a black man the Commonwealth

cited the Judge's conunent that relied on popular "movies" rather than evidence before the

OOUft

Apparently, because Officer Blanche did not testify at the hearing, the court felt

free to suggest, in its findings of fact, that the officers stopped Patrick Jenkins

simply because he was a running black male in Philadelphia. As support for

this "factual finding," the court cited a movie (Opinion, Finding of Fact No

30; R 21 a). Despite this injection of racial overtones in a case where none

existed, the testimony of other officers on the scene was more than sufficient

that both officers were acting properly pursuant to Officer McLaughlin's police

radio broadcast.

Commonwealth's brief. Page 21, n. 10.
1047

In the case of Commonwealth v. Norman Nesmith. the defendant was charged with 7

criminal violations [simple assault, aggravated assault; criminal conspiracy; recklessly

endangering another person, accident involving death or personal injury - duty to stop,

identify self and render assistance, simple assault, aggravated assault] and waived jury trial.

Defendant was found guilty by Judge Massiah-Jacicson of seven of the above offenses on May

23, 1991, however, she allowed defendant to remain free and reduced his $10,000 bail bond

to "release on his own recognizance " Over the next three years, his sentencing was deferred

approximately 13 times during which time he reported to the court and paid various amounts

restitution to the victims as ordered. When defendant was fmally sentenced on July 14, 1994,

he received 2 years probation only to run concurrently for all seven convictions well below

any standard guideline range Furthermore, because defendant had a extensive prior record he

would have been eligible for a sentence in the aggravated range

The Distria Attorney's Office appealed the sentence of two years probation, but lost

on appeal because the state sentencing guidelines are discretionary only.^

Commonwealth v Gregory Johnson, defendant was charged with robbery first degree;

thefl, receiving stolen property, violation Uniform Firearm Act, possession Instrument of

crime Defendant waived jury trial and was found guilty of offenses by judge on April 26,

1990 Sentencing was deferred until June 5, 1990. Judge Massiah-Jackson found the

defendant guilty of the lesser included offense of Robbery in the Second Degree.

Commonwealth v. Flovd Decker, defendant was charged with robbery first degree, and

criminal conspiracy, and other offenses. Defendant confessed that he participated in robbery

along with two other individuals by driving get-away car from scene The other individuals

robbed the victim at gun point and forced victim to relinquish his possessions: $200 00

glasses, and sneakers. Defendant was charged with First Degree Robbery Judge MassiahJackson found the defendant guilty of misdemeanor theft, unlawful taking, and criminal

conspiracy only Defendant received 12 months of probation on each charge to nin

concurrently with one another

In the case of Commonwealth v. Jerome Gray, victim was taken to hospital for three

cracked ribs, collapsed lung, ruptured spleen [which had to be removed] as a result of being

beaten by the defendant [her live-in boyfriend of 4 years ] on December IS, 1989. Victim

was discharged from hospital on January 5, 1990 Sometime, around Febniary 27, 1990, after

her hospital release, the victim called the police to report that the defendant had threatened to

'The appeals court held that the guidelines were not intended to trump judicial

discretion and that it was not an abuse of discretion for the judge to consider defendant's

remorse [by his payment of approximately $4,000 in restitution to the victims], nor was it

unreasonable for her to consider that all prior convictions were misdemeanor offenses [simple

assault and sentenced to 11 1/2 to 23 month in county jail], or that the victim had a blood

alcohol level of .2 when she stepped In front of defendant's car and was hit.
1048

kill her, and had come over to her house An arrest warrant was issued, and, thereaftCT,

defendant turned himself in to law enforcement on March 1, 1990. Defendant denied striking

victim with his fists and stated that she was hurt as a result of a fall during an argument.

Defendant waived jury trial, and opted for bench trial on charges: Recklessly

Endangering Another Person, Terroristic Threats, Aggravated Assault First Degree; Simple

Assault. On May 14, 1991, he was found guilty of REAP, Aggravated Assault Second

Degree, and Simple Assault, and acquitted of other charges. The defendant was given a

sentence of 24 months reporting probation Later, on October 24, 1991, defendant violated

his probation and was given a sentence of between II 1/2 months and 23 months

In Commonwealth v. Jav Hahn. the defendant was accused of injuring a 78 year old

male. Defendant was parking his car in frony of victim's house, when victim requested that

he park somewhere else because he was waiting for his wife to return from the grocery store

Defendant told victim to "Go Fuck Yourself and got out of the car Defendant then threw

victim face first onto the concrete steps in front of a house. Victim had to be treated at a

hospital for a broken nose, and received stitches for other facial injuries.

Defendant was charged with Recklessly Endangering Another Person [REAP],

Misdemeanor in the Second Degree, Aggravated Assault, Second Degree, Simple Assault.

Defendant waived jury trial On February IS, 1991, he was found guilty of charges His bail

was revoked and his sentencing was deferred until April 30, 1991. He was given a sentence

of between 6 months and 23 months. Defendant was paroled that same day from his

sentence

Second Degree Aggravated Assault does not require a mandatory sentence, unlike a

charge of First Degree In order to convict a defendant of a charge of Second Degree a

deadly weapon must be used. Page 28 of the Hahn transcript shows that Judge MassiahJackson found that the defendant's body was a deadly weapon.

THE COURT: I think that the way Mr. Hahn used his body by bumping him

with his hands would either be considered a deadly weapon, the choice Mr.

Knochak [defense counsel] is yours and your client, or it was reckless conduct

under circumstances manifesting extreme indifference to the value of a 78 year

old person's life. So that's the choice.

Defendant's parole was revoked on October 13, 1992 because the defendant violated

his conditions and the remainder of his time was reinstated. On November 2, 1993, he was

again recommended for parole after having served 21 months, despite committing an

infraction [fighting while in prison] for which he received 14 days punitive segregatioiL

In Commonwealth v. Edward Baker, the defendant robbed his victim at knife point

and took $284 00. He was charged with Robbery, criminal conspiracy. Theft, Possessing

Instruments of Crime; Possessing Concealed Weapon; Recklessly Endangering Another
1049

Person, Terroristic Threats; Simple Assault. Defendant waived jury and proceeded to bench

trial. He was adjudged guilty of Criminal Conspiracy, Theft, Concealed Weapon charges, and

not guilty of Simple Assault, Terroristic Threats, REAP. Defendant had an extensive prior

criminal history including charges of statutory rape, multiple assaults, larceny, starting from

1971, [last offense charged prior to offenses in this case were in 1989] defendant sentenced to

2 1/2-5 years

Sentencing Information Received From Pennsylvania Sentencing Commission

The Pennsylvania Sentencing Conmiission data shows that Judge Massiah-Jackson's

sentencing falls most often within the standard guideline range. It is comparable to that of

other Philadelphia judges. However, the information also shows that when she has departed

from the standard guideline range she has deviated below the guidelines by over 98%, and has

deviated only 1.26% above the guidelines. This sentencing deviation is comparable to other

Philadelphia and Pennsylvania judges around the state.

According to the Philadelphia Sentencing Commission, it is mandatory that judges

report their sentencing information to the Commission. However, a comparison of the

number of criminal cases reported to the commission against the information received from

the Court of Common Pleas showing the number of criminal cases handled by Judge MassiahJackson reveals a huge discrepancy. For example, the information received from the Court

shows that she handled over 500 criminal cases for most years. In contrast, the Commission

reports total criminal cases handled as follows: 1985-56; 1986-153; 1988-54; 1989-107; 1990-

145, 1991-89. At the suggestion of the Director of the Commission, the information received

from the Commission for each of the years reported was combined in order to have enough

data to analyze.

Criminal case information received from the Court of Common Pleas shows that for

the years that Judge Massiah-Jackson served on the criminal bench [ 1984 to 1991 ] she

handled very few jury trials ~ less than 20 total — compared to the thousands of cases that

she tried non-jury.
1050

Senator SPECTER. Thank you all very much, and that concludes

our hearing.

[Whereupon, at 4:10 p.m., the committee was adjourned.]

[Submissions for the record follow:]
1061

SUBMISSIONS FOR THE RECORD

- 1.

I BIOGRAPHICAL INFORMATION (PUBLIC)

Full name: (Include any former names used.)

Willie James Ware. The name I currently use is James Ware. I also use Jim

y/art. ID the past I used W. James Ware.

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

Oflice: United States Courthouse

280 South First Street

SanJose, CA9S113

(408) S3S-S4S4

Home: Mountain View, CA 94040

3. Date and place ofbirth.

November 2, 1946; Birmingham, Alabama

4. Marital Status: (Include maiden name of wife, or husband's name ) List spouse's

occupation, employer's name and business addresses

Married; Susan Ware (nee Susan Stoll)

Deputy County Counsel

Santa Clara County Counsel's Oflice

70 W. Bedding Street, E. Wing, Ft. 9

San Jose, CA 95110

5. Education: List each college and law school you have attended, including dates

of attendance, degrees received, and dates degrees were granted.

Degree or reason

InjtitMtion Dates of Attendance for leaving

Compton College 1/65-6/66 Transferred to four-year

institution

California Lutheran

University 9/66-6/69 B.A. 1969

Stanford Law School 9/69-6^2 J.D. 1972
1052

Employment Record: List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and

orgaiuzations, nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or employee since

graduation fi'om college.

YEAR ORGANIZATION POSITION

1969 The American Lutheran Church

East Palo Alto

Guide (I led inner city

teens on backpacldng trips

through the Sierras and

counseled them on

personal development)

1969 Stanford University University Library

Worker (Work-Study

Program)

1970 O'Melvany & Myers

Law Offices

Los Angeles, California

Summer Associate

1970 United States Army

Fort Knoi, Kentucky

Active Duty Reserves

Basic Training

1971 United States Army

Fort Lewis, Washington

Active Duty Reserves

Advanced Basic Training

1971 Kadison, Phelzer, Woodard & Quinn

Law Offices

Los Angeles, California

Summer Associate

1972 United States Army

Fort Gordon, Georgia

Active Army Reserve

Military Police School

1973-81 United States Army Reserve

San Jose, California

Inactive Army Reserve

Military Police

1972-77 Blase, Valentine & Klein

Law Offices

Palo Alto, California

Associate Attorney

1973-83 Urban Coalition

Mid Peninsula Chapter

Fair Housing Program

Member

Volunteer Attorney

1977-88 Blase, Valentine & Klein

(Now Ritchey, Fisher, Whitman & Klein)

Law Offices

Palo Alto, California

Partner/Shareholder
1058

California Lutheran University

Thousand Oaks, Caliromia

Visiting' Professor

Administration of Justice

& Business Departments

1980-82 YMCA

Palo Alto Area

Law Oriices

Palo Alto, California

Member

Board of Directors

1983-88 Stanford University Member

Board ofTrustees

1984-86 Stanford University Hospital Member

Board of Trustees

1988-90 State of California

County of Santa Clara

Judge

Superior Court

1990- Martin Luther King Papers Project

present Stanford University

Member

Advisory Board

1990-

prtsent

United States Government United States District

Judge, Northern District

of California

1991-93 American Leadership Forum

SOicon Valley Chapter

Member

Board of Directors

1993-96 California Lutheran University

Thousand Oaks, California

Member

Board of Regents

199rpresent

Lincoln Law School of San Jose

San Jose, California

Member

Faculty

1996-

present

Santa Clara University

School of Law

Member

Adjunct Faculty

Santa Oara, California
1054

Military Service: Have you had any military service? Ifso, give particulars,

including the dates, branch ofservice, rank or rate, serial number and type of

discharge received

Dates: September 1972 - December 1972

Branch: United States Army

Active Duty for Training

Military Police School

Fort Gordon, Georgia

Rank: Second Lieutenant

Serial No.: 416-58-1395

Status: Graduated

Discharge: Honorable Discharge from Active Duty

Dates: 1973-1987

Branch: United States Army Reserve

Rank: Captain

Serial No.: 416-58-1395

Status: Discharged upon completion ofservice - 1987

Discharge: Honorable

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you believe would be of

interest to the Committee.

Doctor of Laws (Honorary Degree)

California Lutheran University 1997

Fulbright Fellowship for Lectures on American Legal

System in the Middle East 1996

Fellowship by the German-Marshall Fund to study at

Atlantik-Bruecke Conference in West Beriin 1987

Martindale-Hubbcl Law Directory, a.v. rating 19S7
1066

Community Service Award, Urban Coalition 1982

Award from the International Academy of Trial Lawyers for

Appellate Advocacy 1970

Graduated Most Outstanding Senior

California Lutheran University 1969

Bar Associations: List all bar associations, legal or judicial-related committees or

conferences ofwhich you are or have been a member and give the titles and dates

of any offices which you have held in such groups.

American Bar Association Member

Santa Clara County Bar Member

Association

1973-88

1973-88

Palo Alto Area Bar Association Member

Cbarles Houston Bar Association Member

Santa Oara County Bar

Association

Member Board ofTrustees

1972-88

1974-

prescnt

1981-82

Santa Clara County Bar

Association

Member Judicial Evaluation

Committee

1981-82

Palo Alto Bar Association Chairman Law for Laymen

Committee

1983-84

United States District Court for

the Northern District of

California

Member Merit Selection Panel

for recommending

individuals for

appointment to a

position as a

Magistrate Judge

1982

Administrative Oilice of the

United Sutes Courts

Chairman Chambers and

Courtroom Umbrella

Group for

Automation and

Technology

1990-97
1056

Court of Appeak Tor the Ninth

Circuit

Court of Appeals for the Ninth

Circuit

United States District Court for

the Northern District of

California

United States District Court for

the Northern District of

California

United SUtes District Court for

the Northern District of

California

United States District Court for

the Northern District of

California

Santa Qara County Superior

Court

Santa Clara County Superior

Court

Chairman Committee on Model

Jury Instructions

1995-

present

Member Task Force on Race,

Religion and Ethnic

Fairness

1995-

present

Chairman Local Rules

Committee

1994-

prescot

Member Space Committee 1994-

present

Member Court Technology

Committee

1994-

present

Member Unappropriated

Funds Committee

1997-

presenl

Member Long Range Planning

Committee

198S-89

Member Research Attorneys

Review Committee

1988-89

Santa Clara County Superior

Court

Member Computerization of

the Court Committee

1988-89
1057

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public bodies. Please list ail other organizations to which you

belong.

I am not a member of any organization that is active in lobbying before public

bodies.

I am a member of the following organizations:

California Lutheran University Alumni Association

Stanford Law School Alumni Association

Martin Luther King Papers Project Advisory Committee

American Leadership Forum Senior Fellows

Federal Judges Association

Lincoln Law School of San Jose Faculty

Santa Clara University Adjunct Faculty

Charles Houston Bar Association-Judicial Council

11. Court Admission: List all courts in which you have been admitted to practice,

with dates of admission and lapses if any such memberships lapsed Please

explain the reason for any lapse of membership. Give the same information for

administrative bodies which require special admission to practice.

United Slates Court of Appeals

For The Ninth Circuit 1972

United States District Court

Northern District of California 1972

Central District of California 1973

Eastern District of California 1975

California Supreme Court 1972
1058

12. Published Writings: List the titles, publishers, and dates ofbooks, articles,

reports, or other published material you have written or edited. Please supply one

copy of all published material not readily available to the Conunittee. Also,

please supply a copy of all speeches by you on issues involving constitutional law

or legal policy Ifthere were press reports about the speech, and they are readily

available to you, please supply them.

Books

Co-«uthor, CaiifomU Baidtntixi Landlord-Tenant ^ra^ti(;^ CEB 1986 (Excerpt

atuched as Exhibit "A-l").

Sole author, Chapter 29 "Selection ofTenants," California Residential LandlordTenant Practice. CEB 1986 (See copy attached as Exhibit "A-l").

Articles

"Adopting an Educator Habit of Mind: Modifying What It Means to 'Think Like a

Lawyer'," 45 Stanford Law Review. 1993 (See copy attached as Exhibit "A-2").

"A Oash of Sentencing Policies: Sentencing Guidelines Versus Mandatory

Minimums," State Bar of California. 1993 (See copy atUched as Exhibit "A-3'').

"An Assessment of the California Drug Diversion Program, CAJC Forum. Oct/No*

1974 (See copy attached as Exhibit "A-4'*).

"Earning the Daubert Seal of Approval for Expert Witnesses," ABTL Newsletter,

1995 (See copy atUched as Exhibit "A-S").

Speeches

I often speak to various community and legal groups regarding the adminiatrmtion

ofjustice. The speeches are extemporaneous and are not published. In all speeches, I

adhere to the Canons of Judicial Conduct Copies of formal speeches I have given arc

attached as Exhibit ''A-6"
1059

13. Halth: What is the present state ofyour health? List the date ofyour last

physical examination.

Excellent

My last physical was March 28,1997.

14. Judicial Office: State (chronologically) any judicial offices you have held,

whether such position was elected or appointed, and a description ofthe

jurisdiction of each such court.

From October 1988 until October 1990 I served as Judge of the Santa Oara County

Superior Court. The California Superior Court is the court of general jurisdiction in the

Sute of California.

In October, 1990 I was appointed by President George Bush to the position of

District Judge of the United States District Court for the Northern District of California.

The United States District Court derives its jurisdiction from Article in of the Constitution

of the United States to the extent authorized by Congress. The Congressional grant of

jurisdiction for the District Court is found in Title 28 of the United States Code Sections

1331,1332,1346,1367 and 1441. I currently serve as a District Judge.
1060

IS. 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 ofyour 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 ofthe

opinions listed were not officially reported, please provide copies ofthe opinions.

(1) The ten most significant opinions I have written are as follows. Copies of the

unpublished opinions are attached as Exhibits "B"

(«) Earie v. State Farm Fire & Casualty Company. 935 F.Supp. 1076 (N.D. Cal. 1996)

(b) Yukivo Ltd. v. Shiro Watanabe. 1996 WL 756803 (N.D. Cal. 1996) (See copy attached

as Exhibit "B-l")

(c) Wiener v. NEC Electronics. Inc.. 1995 WL 429204 (N.D. Cal. 1995) (See copy attached

as Exhibit "B-2")

(d) Bell Atlantic Business Systems Services. Inc. v. Hitachi Data Systems Corp..

1995 WL 798932 (N.D. Cal. 1995) (See copy attached as Exhibit "B-3")

1995 WL 798935 (N.D. Cal. 1995) (See copy attached as Exhibit "B-3")

(c) Bell Atlantic Business Systems Services. Inc. v. Hitachi Data Systems Corp..

1995 WL 836331 (N.D. Cal. 1995) (See copy attached as Exhibit "8-4")

(0 Enyler v. City of San Jose et al.. 1995 WL 767816 (N.D. Cat 1995) (See copy attached as

Exhibit "B-5")

(g) U.S. V. Hopkins. 1996 WL 61152 (N.D. Cal. 1996); 1996 WL 101195 (N.D. CaL 1996)

(See copy attached as Exhibit "8-6")

(h) George, et al. v. UXB International. Inc.. 1996 WL 241624 (N.D. Cal. 1996) (See copy

attached as Exhibit "B-7")

(i) Wilson V. United States. 1996 WL 297051 (N.D. Cal. 1996) (See copy attached as Exhibit

"B-S")

(j) Nordvke v. County of Santa Clara. 933 F.Supp. 903 (N.D. Cal. 1996)

10
1061

(2) A short summary of and citations for all appellate' opinions where my decisions were

reversed or where my judgment was affirmed with significant criticism ofyour substantive or

procedural rulings are as follows:

(Copies of the unpublished opinions are attached as Exhibits "C^

Unless otherwise indicated, citations are to the Federal Reporter, 3rd Series. Any

Ninth Circuit decision issued without a published opinion is identified at a "Decision

Without Published Opinion" and is attached as an Exhibit.

If the appeal was from a written order in a file which is still maintained by the

Oerk's Office, I have also included a copy of the order. Some appeals were taken from

rulings made on the record during trial or from the entire trial record which is

voluminous, or from orders which are no longer contained in the files of the Clerk of

Court Trial records not maintained are archived at the Federal Records Center. I am in

tbe process of obtaining the records archived from the Federal Records Center.

(a) YukivQ. Ltd. v. Shiro Watanabe. et al. No. 97-1 US (Fed. Cir. 1997) ( Decision Without

Published Opinion)

Yukiyo is a multi-district patent litigation action in which Plaintiff is the

assignee of a patent for the fabrication of porcelain restorations. The

inventor named in the patent is Dr. Gerald McLaughlin. Plaintiff filed

a series of lawsuits against various dental laboratories throughout the

United States alleging that the labs infringed the patent for porcelain

restorations. Phase One of the trial, the validity of the patent, was tried

before a jury. The jury returned a verdict in favor of Plaintiff, finding

that the patent was valid. On a motion for judgment as a matter of law,

or for a new trial, the Court found that the verdict was not supported

by the evidence in the case. Rather, the Court found that the undisputed

evidence at trial proved that the patent was invalid because, prior to the

filing of the patent application, articles were published in professional

journals disclosing the method claimed in the patent for fabricating

porcelain restorations. Therefore, the Court entered judgment in favor

of Defendants. On appeal, the federal circuit determined that there was

substantial evidence to support the jury findings and that the Court's

decision to grant judgment as a matter of law was improper.

(See copies of my order, as well as the Federal Circuit's order, attached as Exhibits

"C-l")

(b) United States v. Clinton Watson. 1997 WL 367384 (9th Cir. 1997)

(Published Opinion, Not Yet Available in F.3d).

Defendant was tried and convicted by a jury for cellular telephone cloning.

Prior to trial, the Court granted Defendant's motion to suppress evidence
1062

obtained by the government's seizure of a safe from Defendant's home. Tbe

Court ruled that the safe had been improperly seized and that neither the safe

nor its contents could be used at trial. However, during Defendant's opening

statement, reference was made to the illegal seizure of the safe. Based on

such statement, the Court permitted the government to question its witness about

such seizure. Although Defendant's conviction was affirmed on appeal, the

Court was criticized for permitting evidence regarding the seizure of the safe

to be introduced during the government's case-in-chief, since it found that

the door had not been opened by opening statement remarks, since such

remarks are not evidence in the case.

(See copy of the Ninth Circuit opinion attached as Exhibit "C-l")

(c) Reynolds v. Gomez. 108 F.3d 338 (9th Cir. 1997) (Decision Without Published Opinion)

Petitioner Lee Anthony Reynolds filed a habeas petition, claiming that he

was denied a fair trial because his co-defendant was shackled during various

portions of the trial. Petitioner also alleged that identification evidence was

impermissibly admitted, that details of a prior robbery conviction were

impermissibly admitted, and that an omission in the jury instructions

rendered them constitutionally inadequate. The district court denied his

petition. The Ninth Circuit vacated the district court's judgment and

remanded the case only as to whether the shackles denied Reynolds his right

to a fair trial

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits

"C-3")

(d) Moore v. Gerstein. 107 F.3d 16 (9th Cir. 1996) (Decision Without Published Opinion)

Pro se plaintiff Judy Moore sued Dr. Gerstein under Section 1983, alleging

that she had been subjected to an unconstitutional seizure and detention at a

mental treatment facility for 48 hours. The district court dismissed the claim

because Plaintiff had not alleged facts showing that Gerstein "acted with

malicious intent or was grossly negligent" in order to overcome Gerstein's

entitlement to qualified immunity. The Ninth Circuit reversed because the

trial court had applied an incorrect standard for qualified immunity, and

because the defense of qualified immunity was not established on the face of

the complaint.

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits

'X-4")

(e) Logan v. Gomez. 81 F.3d 169 (9th Cir. 1996) (Decision Without Published Opinion)

L.ogan, a California state prisoner, filed a petition for habeas corpus relief,

asserting that his due process rights were violated because he was shackled

during his trial. The trial court denied the petition. The Ninth Circuit found

12
1068

that the ihackling was prejudicial and could have tipped the balance in this

closely decided case. The Ninth Circuit vacated and remanded the matter

for the district court to conduct an evidentiary hearing on the petition.

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits

"C-S")

it) Kimes V. Stone. 84 F.3d 1121 (9th Cir. 1996)

Plaintiffs brought a Section 1983 action against a superior court judge and

several attorneys. PlaintilTs alleged that the defendants conspired against

them to "overturn" a jury verdict, thus depriving plaintiffs, without due

process of law, of property they would have otherwise received from their

father's estate. The trial court granted defendants' motion to dismiss,

relying on Cal. Civ. Code § 47(b), which immunizes parties involved in

litigation from civil liabilities for communications made in the course of that

litigation. The Ninth Circuit afTirmed the trial court's dismissal in favor of

defendant Judge Stone and reversed the dismissal in favor of the attorney

defendants. The Ninth Circuit reasoned that conduct by persons acting

under color ofstate law which is wrongful under Section 1983 cannot be

immunized by state law.

(See copy of my order attached as Exhibit "C-S")

(g) United States v. Mallory. No. 95-10352, (9th Cir. 1996) (No Published Opinion)

Defendant pled guilty to conspiracy to manufacture methamphetamine and

for carrying an altered firearm in the commission of a conspiracy to

manufacture methamphetamine. The trial court accepted the guilty plea,

but deferred deciding whether to accept the plea agreement until a later date.

Subsequently, Defendant filed a motion to withdraw his guilty plea and a

motion to dismiss the superseding indictment. The trial court denied the

motions, accepted the guilty plea, and sentenced Defendant to 288 months

imprisonment. The Ninth Circuit held that the trial court abused its

discretion in denying Defendant's motions, and accordingly reversed the

Defendant's convictions and remanded the matter to the trial court so that

Defendant could enter a new plea.

(See copies of my order, as well as the Ninth Circuit's opinion attached as Exhibits

"C-7")

(h) mM V. Zachariades et al. 70 F.3d 1278 (9th Cir. 1995) (Decision Without Publuhed

Opinion)

IBM sued Dr. Zachariades for breach of an employment agreement,

contending that he wrongfully refused to assign seven patents to IBM. On

summary judgment, the trial court held that IBM's claims were time barred

because the statute of limitations for all of IBM's claims commenced with the

Usuance of the first of the patents-in-suit in May 1986. The Ninth Circuit

13
1064

held that a separate limitations period began to run upon the issuance of

each patent to Zachariades.

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibit

"C-8")

(i) Jensen v. County of Santa Oara. 69 F.3d 544 (9th Cir. 1995) (Decision Without

Published Opinion)

Plaintiffsought damages from the County and Instar Pest Consultant for

injuries allegedly resulting from pesticide exposure in the work place. The

district court dismissed PlaintifTs eighteen personal injury claims against

Instar as time-barred by California's one-year statute of limitations for

personal injury actions, California Civil Procedure Code Section 340(3). On

appeal, the Ninth Circuit reversed, holding that PlaintifTs personal injury

claims were not time barred because her complaint was filed within one year

from the time she discovered the cause of her injury.

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits

"C-9")

(j) U.S. Fidelity & Guaranty Co. v. Riggs. 51 F.3d 284 (9th Cir. 1995) (Decision Without

Published Opinion)

Defendant Mr. Riggs was found to be negligent as an architect in this

insurance contribution action. The Ninth Circuit reversed judgment and

remanded the matter to the district court for further proceedings to allocate

responsibility between Mr. Riggs in his capacity as a homeowner and Mr.

Riggs as an architect. The matter was also remanded for a determination of

reasonable attorney's fees.

(See copies of my order, as well as the Ninth Circuit's opinion, attached as Exhibits

"C-IO")

(k) Bud Antle. Inc. v. Barbosa. 45 F.3d 1261 (9th Cir. 1994)

Bud Antle, Inc. ("Bud Antle") sued the members and executive secretary of

the California Agricultural Labor Relations Board ("ALRB"), claiming that

the National Labor Relation Act ("NLRA") ousts the ALRB ofjurisdiction to

adjudicate various unfair labor practice charges which were pending before

the state board at the time. Bud Antle sought injunctive relief to prohibit the

ALRB from continuing its proceedings. The district court concluded that the

NLRA did not preempt ALRB's jurisdiction over the charges. The district

court also held that it was required to abstain pursuant to Younger v. Harris.

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 669 (1971). The Ninth Circuit reversed,

reasoning that the "Garmon preemption," named for San Diego Building

Trades Council v. Garmon. 359 U.S. 236, 79 S.Ct. 773, 3 L.£d.2d 775 (1959),

preserved the primary jurisdiction of the NLRB by prohibiting the states

from regulating activities that arc at least arguably protected by §7 of the

14
1065

NLRA or arguably prohibited by §8 of that statute. Accordingly, the Ninth

Circuit also held that the second prong of the Younger doctrine test, that the

state proceedings implicate important state interests, was not met.

(See copy of my order attached as Exhibit "C-Il")

(I) Berg V. Leason. 32 F.3d 422 (9th Cir. 1994)

After successfully defending himself in a federal court action alleging

violations of federal securities and racketeering laws. Berg brought a

malicious prosecution action in state court. Defendant removed the action to

federal court on the basis of federal question jurisdiction. The district court

declined to remand the case. The Ninth Circuit reversed, holding that a

malicious prosecution claim did not arise under federal law simply because

one element required proof that the underiying federal action was legally

untenable.

The files of the Clerk's OfHce containing the underiying record have been

archived. Therefore, no copy of my order is attached at this time. Once the

records have been retrieved from the Federal Records Center, I will submit a

copy of this order.

(m) Kanemoto v. Reno. 41 F.3d 641 (Fed. Cir. 1994)

Kanemoto, a United States citizen of Japanese ancestry, appealed to the

district court the Office of Redress Administration's denial of her claim for

restitution. The government moved to dismiss the complaint or transfer the

case to the Court of Federal Claims, contending that because Kanemoto

sought monetary damages from the United States in excess of S10,000, the

Tucker Act, 28 U.S.C. §1491, precluded jurisdiction in the district court. In

pertinent part, the trial court denied the government's motion to transfer

reasoning that Kanemoto did not seek "monetary damages," but rather

"reparation payments" incidental to her claim for equitable relief. On

appeal, the Ninth Circuit revened, holding that a case which seeks

reparation payments falls within the jurisdiction of the Court of Federal

Claims under the Tucker Act.

(See copy of my order attached as Exhibit "C-12")

(n) United States v. Saldana. 12 F.3d 160 (9th Cir. 1993)

The Government and Saldana entered into a plea agreement providing that

Saldana would plead guilty to three charges of cocaine distribution, and in

exchange, the Government would move to dismiss the twelve remaining

charges for food stamp fraud. The plea agreement also required Saldana to

stipulate to certain facts for purposes of the sentencing guidelines. The

presentence report calculated a base offense level of twelve and a two level

reduction for Saldana's acceptance of responsibility, for a total offense level

often. The Government challenged the presentence report for disregarding

IS
1066

the twelve food stamp counts in calculating the base ofTense level. The

district court held that it had the discretion to decide whether it would take

into consideration the stipulated food stamp counts in determining the

olTense level, and it declined to do so. The Ninth Circuit vacated the district

court's decision and remanded for resentencing ofSaldana, holding that the

trial court had an obligation under the Sentencing Guidelines to consider the

stipulated facts establishing the food stamp fraud offenses in determining the

base offense level.

The files of the Clerk's Office containing the underlying record have been

archived. Therefore, no copy of my order is attached at this time. Once the

records have been retrieved from the Federal Records Center, I will submit a

copy of this order.

(o) Murphy v. T. Rowe Price Prime Reserve Fund et al. 8 F.3d 1420 (9th Cir. 1993)

Plaintiff, the executor of an account holder's estate, sued the defendant

investment company for the interest accrued on funds from an uncashed

check issued to close out the account. One of the plaintifTs theories for

recovery was that the investment company was bound by an oral agreement

to return all but 18 percent of the interest The investment company

countered that the purported agreement was unenforceable for lack of

consideration because the company had a clear statutory right to retain the

interest Without deciding whether there had in fact been an oral agreement,

the district court held that PlaintifTs claims were legally invalid and

therefore did not constitute consideration for the alleged oral agreement

The Ninth Circuit reversed, reasoning that the district court erred in

equating the potential validity of the PlaintifTs claim si ante with its own {i

OSai conclusion as to the merits of the claim. Further, the Court held that

under California law, a relinquishment of a colorable claim constitutes valid

consideration; that PlaintifTs claim was colorable; and therefore, the

agreement was not completely invalid.

(See copy of my order attached as Exhibit "C-13")

(p) United States v. S434.097.70 In U.S. Currency. 1 F.3d 1247 (9th Cir. 1993) (Decision

Without Published Opinion)

In this civil asset forfeiture proceeding, the Ninth Circuit held that the trial

court erred in its application of the doctrine of issue preclusion.

In the first forfeiture proceeding, the district court found probable cause to

forfeit the cash and an automobile seized from a drug dealer named Michael

Miroyan. The decision was appealed, and the Ninth Circuit held that the

district court had improperiy exercised in rem jurisdiction over the cash

because the cash had already been the subject ofstate forfeiture proceedings.

On the merits, the Ninth Circuit upheld the district court's finding of

probable cause for the forfeiture of the automobile. After the appeal, the

16
1067

United Stales re-flled the rorfeiture action against the cash. The district

court ruled in favor of the government's motion for summary judgment on

the grounds that Miroyan had already had a "full and fair" opportunity to

litigate the issue of probable cause in the first forfeiture action. The Ninth

Circuit reversed.

(See copy of the Ninth Circuit's opinion attached as Exhibit ''C-t4")

The files of the Clerk's Ofnce containing the underlying record have been

archived. Therefore, no copy of my order is attached at this time. Once the

records have been retrieved from the Federal Records Center, I will submit a

copy of this order.

(q) Martin bv and through Martin v. United States. 984 F.2d 1033 (9th Cir. 1993)

Jennifer Martin was abducted and raped while on an outing from a day care

center operated by the government. Her claim for negligent supervision

went to trial and she was awarded S200,000 in economic damages and

S600,000 in non-economic damages. On appeal, the government argued that

the trial court incorrectly determined that California Civil Code Section

1431.2(a), which mandates apportionment of non-economic damages, does

not apply to actions where one tortfeasor is intentional and the other is

negligent. The Ninth Circuit reversed, holding that Section 1431.2(a) applied

to any personal injury action.

(See copy of my order attached as Exhibit "C-15")

(r) Pavne v. Robert Borg. Warden. 982 F.2d 335 (9th Cir. 1992)

Petitioner Payne was found guilty in state court of first degree murder and of

a special circumstance that the murder was committed during the course of a

burglary. Payne filed a petition for writ of habeas corpus, contesting only

the validity of the special circumstance finding, which resulted in a sentence

of life imprisonment without the possibility of parole. The district court

granted habeas relief, finding that there was insufficient evidence to prove,

beyond a reasonable doubt, that Payne had the necessary intent to support

his special circumstance conviction. The Ninth Circuit reversed.

The files of the Clerk's Office containing the underiying record have been

archived. Therefore, no copy of my order is attached at this time. Once the

records have been retrieved from the Federal Records Center, I will submit a

copy of this order.

(s) Atori Corporation v. Ernest & Whinny. 981 F.2d 1025 (9th Cir. 1992)

Atari initiated a plan to acquire Federated. Atari's chief financial officer,

Greg Pratt, attempted to evaluate Federated'] finances and came to the

belief that Federated's assets were overstated. Even so, Pratt was not sure of

this fact without an audit and, therefore, he proceeded with the deal. After

17
1068

the deal was closed the results of Coopers ind Lybrand's audit were released

identifying adjustments of S43 million dollars, resulting in a reduction of

Federated's net worth by S33 million. Atari sued Federated's auditors for

violations of RICO. The district court ruled that the indemnification

provision of the parties' agreement did not provide for indemnification for

expenses arising out of an action brought by Atari, but only for

indemnification for suits brought by third parties. The Ninth Circuit

reversed.

The files of the Clerk's Office containing the underiying record have been

archived. Therefore, no copy of my order is attached at this time. Once the

records have been retrieved from the Federal Records Center, I will submit a

copy of this order.

18
1069

1S(3). Citations Tor significant opinions on federal or state constitutional issues, together with

the citation to appellate court rulings on such opinions are as follows:

(a) Nordyke v. County of Santa aari. 933 F. Supp. 903 (N.D. C«L 199«); 110 FJd 707

(1997)

(b) Wilson V. United States.et al.. 1996 WL 297051 (N.D. Cal. May 31,1996); 1995 WL

77S06 (N.D. Cal. 1995); 878 F. Supp. 1324 (N.D. Cal. 1995) (See copies of my uapabli*hcd

decisions attached as Exhibit "B-S"); 60 F.3d 1411 (9th Cir. 1995)

(c) George v. UXB International. Inc. 1996 WL 241624 (N.D. Cal. 1996) (See copy

attached as Exhibit "B-7")

(d) United Sutes v. Hopkins. 1996 WL 101195 (N.D. Cal. 1996); 1996 WL 61152 (N.D.

CaL 1996) (See copies attached as Exhibit "B-6")

(e) Engler V. City of San Jose. 1995 WL 767816 (N.D. Cal. 1995) (See copy attached as

Exhibit "B-5")

(0 Hetmet Law Defense League v. State of California. 1996 WL 297038 (N.D. Cal. 1996)

(See copy attached as Exhibit "6-9")

(g) Hunter v. Vasquez. 1995 WL 429242 (N.D. Cal. 1995) (See copy attached as Exhibit

"B-10")

(h) Choice Hotels International. Inc. v. Patd. 1994 WL 706270 (N.D. CaL 1994); 1994 WL

621668 (N.D. Cal. 1994) (See copies attached as Exhibit "B-Il")

(i) Ridgewav v. Oagstar Corp.. 1994 WL 665243 (N.D. Cal. 1994); 1994 WL 665414 (N.D.

CaL 1994); 1994 WL 665250 (N.D. Cal. 1994); 1994 WL 564571 (N.D. Cal. 1994); 1994 WL

525553 (N.D. Cal. 1994) (See copies attached as Exhibit "B-12")

0) Yin V. State of California. 1994 WL 594043, 5 NDLR P 470 (N.D. Cal. 1994) (See copy

atuched as Exhibit "B-13"); 95 F.3d 864 (1996)

(k) Nanut v. Kimberlv-aark Corp.. 1994 WL 570561 (N.D. CaL 1994) (See copy of my

unpublished decision attached as Exhibit "B-U"); 1996 WL 344607 (9th Cir. 1996) (See

copy of the Ninth Circuit opinion attached as Exhibit "6-15")

(I) Mission Oaks Mobile Home Park v. City of Hollister. 788 F. Supp. 1117 (N.D. Cal.

1992); 989 F.2d 359 (1993)

19
1070

16. Public Office: State (chronologically) any public-offices you have held, other

than judicial offices, including the terms ofservice and whether such positions

were elected or appointed. State (chronologically) any unsuccessful candidacies

for elective public office.

Other than judicial ofnce, I have held no elected public oftices. From 1983 until

1988 I was a NoUry Public of the State of California. Notary Publics arc appointed by the

Secretary of State of the State of California. I did not renew my commission after I was

appointed Judge of the Santa Clara County Superior Court

I have not been an unsuccessful candidate for elective public ollicc.

17 Legal Career:

a. Describe chronologically your law practice and experience after

graduation fi-om law school including:

1. whether you served as clerk to a judge, and ifso, the name

ofthe judge, the court, and the dates ofthe period you were

a clerk,

2. whether you practiced alone, and ifso, the addresses and

dates;

3. the dates, names and addresses oflaw firms or offices,

companies or governmental agencies with which you have

been connected, and the nature ofyour connection with

each;

After graduating from law school and fulfilling my active duty military

requirement, I became an associate attorney with the law firm of Blase, Valentine & iOeia,

• Palo Alto law firm which was founded in I96S. I joined the firm as an associate in

December 1972. I became a partner in January 1977. I remained with the firm until my

appointment to the Superior Court in November 1988. At some time after I left the firm

and after the firm's senior partner retired, the firm changed its name to Ritchey, Fisher,

Whitman & Klein. The current address of the law firm is:

Ritchey, Fisher, Whitman & Klein

A Professional Corporation

1717 Embarcadero Road

Palo Alto, California 95050

What has been the general character ofyour law

practice, dividing it into periods with dates ifits

character has changed over the years?

20
1071

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialized

My practice involved significant in-court experience in federal and state courts,

primarily in Northern California. I also handled major commercial arbitrations and

mediations, as well as other alternative methods of dispute resolution. I represented

individuals, partnerships and publicly traded and privately held corporations in a wide

variety of business litigation matters.

I gained significant experience in handling intellectual property and unfair

competition cases (representing both employers and former employees), wrongful

termination of employment cases (also representing both employen and former

employees), construction disputes, breach of warranty cases, and partnership and

corporate dissolution disputes. My legal work in technical fields included cases oflicense

termination and royalty disputes, semiconductor and computer trade secret disputes, and

the professional liability defense of architects, engineers and geologists.

During the first seven years of my practice (1973-1980), criminal defense, involving

felonies and misdemeanors, comprised approximately one-third of my caseload. Most of

the criminal cases were assigned to my office through the San Mateo County Bar

Association Private Defender Program. An illustrative case was People v. Havsbert. a

defendant convicted of possession of a large quantity of cocaine for distribution. I was sole

defense counsel. The case was tried before a jury. Judge Robert E. Carey, San Mateo

County Superior Court, presiding. Haysbert was convicted.

Although the primary nature of my practice was business litigation, I represented

plaintiffs in civil rights cases on ay7rD bono basis.

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

not at all? Ifthe frequency ofyour appearances in

court varied, describe each such variance, giving

dates.

I appeared in court on a regular basis. During the early years of my practice, it was

not uncommon for me to try several cases during any given year. During the last half of

my practice, the complexity of the cases led to fewer trials.

2. What percentage ofthese appearances was in:

(a) federal courts; 30%

(b) state courts of record; 70%

(c) other courts. 0%

3. What percentage of your litigatitflTwas:

(a) civil, 90%

(b) criminal. lt%

21
1072

4. State the number ofcases in courts of record you

tried to verdict or judgment (rather than settled),

indicating whether you were sole counsel, chief

counsel, or associate counsel.

During the course of my sixteen years of practice, I tried approximately IS cases to

verdict or judgment.

I tried 12 cases to verdict or judgment as sole counsel

I tried 1 case to verdict as chief counsel

I tried 2 cases to verdict as associate counsel

5. What percentage ofthese trials was:

(a) jury, 40%

(b) non-jury, 60%

18. Litigation: Describe the ten most significant litigated matters which you

personally handled. Give the citations, if the cases were reported, and the docket

number and date if unreported Give a capsule summary ofthe-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 ofthe case.

Also state as to each case:

(a) the date ofrepresentation;

(b) the name ofthe court and the name ofthe judge or judges before

whom the case was litigated; and

(c) The individual name, addresses, and telephone numbers of cocounsel and of principal counsel for each ofthe other parties.
1073

CASE No. I: Mary Sullivan. M.P. v. Tht Sequoia Hospital District

COURT: United States District Court for the

Northern District or California

CITATION: [Unreported, Docket No. C 87-5127 SCJ

JUDGE: Honorable Samuel Conti

450 Golden Gate Avenue

San Francisco, California 94102

(415) 522-2077

CLIENT: Anesthesiologist Croup of Sequoia Hospital

I served as lead counsel.

ASSOCIATE

COUNSEL: James Wagstaffe

Cooper, White & Cooper

201 California Street

San Francisco, California 94111

(415) 433-1900

OPPOSING

COUNSEL:

DATE:

Oyde Butts

1225 Alpine Road, Suite 204

Walnut Creek, CA 94696

(415) 943-1850

1987-88

DESCRIPTION:

I represented a group of anesthesiologists who were members of the medical staff at

Sequoia Hospital. My clients were sued by Dr. Sullivan, another anesthesiologist on the

hospital staff. Dr. Sullivan claimed that my clients and the Sequoia Hospital, which she

also sued, conspired to restrict her privileges. She claimed that the restrictions were

imposed to restrict competition by physicians who were not members of the medical group,

in violation of federal and state antitrust and civil right5.

I was a key draftsman and strategist in a motion for summary judgment to dispose

ofthe case prior to trial. The joint defense motion demonstrated that the restrictions about

which Dr. Sullivan complained were placed upon her by a Medical Review Board, which

determined that the restrictions were appropriate after two life-threatening incidents

occurred involving patients of Or. Sullivan. The case required the Court to resolve

whether physicians taking actions pursuant to medical review proceedings enjoyed a

qualified privilege against the type of claims brought by Dr. Sullivan.

Judge Conti granted judgment was entered in favor of all defendants.

23
CASE No. 2:

COURT:

CITATION:

JUDGE:

OPPOSING

COUNSEL:

1074

Ampex V. Tandon Corporation

Santa Clara County Superior Court

[Unreported - Docket No. SS7299]

Honorable Peter Anello (now deceased)

James N. Penrod

B. Thomas French

Hassard, Bonnington, Rogers & Huber

50 Fremont Street, Suite 3400

San Francisco, CA 94105

(415) 543-6444

William C. Morison-Knox

Pillsbury, Madison & Sutro

P.O. 7880

San Francisco, CA 94120

(415) 983-1000

Tandon Corporation

I served as lead counsel.

1984-86

CLIENT:

DATE:

DESCRIPTION:

This was a lawsuit by Ampex alleging that Tandon had infringed trade secrets and

proprietary information. The alleged stolen technology involved methods for placing a

thin magnetic layer on hard disks so that these disks could be used to store information for

use in computers.

I managed a team of four attorneys and three paralegab. To prepare for the case, I

was required to acquire a working knowledge of the technology for manufacturing

computer "hard disks," the metallic media used in "hard disk drives" for storage of data.

The case also involved complex legal issues with respect to whether certain skills or

information acquired by an engineer while working with one employer could be used by

the engineer while employed at a subsequent employer.

As a means of settlement, a minitrial was conducted before Judge Anello on the

issue of the ownership of the technology. A ruling by Judge Anello that a substantial

amount of the disk coating skills and information, which Ampex claimed to be proprietary,

was in the public domain led to a settlement of the case favorable to Tandon Corporation.

24
CASE No. 3:

COURT:

CITATION:

JUDGE:

CLIENT:

OPPOSING

COUNSEL:

DATE:

DESCRIPTION:

1075

Daggett Asitmblv v. Union Strett Investment Co.

San Francisco Superior Court

[Unreported - Docket No. Unavailable]

Honorable John Dearman

San Francisco Superior Court

633 Folsom Street

San Francisco, California 94107

(415) 554-5790

Daggett Assembly

I served as sole counsel

James H. Pooley

Fish & Richardson

2200 Sand Hill Road

Menio Park, California 94025

(415) 322-5070

1982-84

This was a lawsuit in which I represented a general contractor in an action against

the owner/developer of a San Francisco Victorian building for recovery of the balance

owed for construction fees. The case was factually and legally complex because, in the

course of the project, the owner decided to restore the exterior of the building so that it

would be historically accurate but wished to have an ultra-modem interior. These changes

doubled the cost of construction and, because they were made during the period of

construction, they also delayed the time of completion.

When the construction was completed, the owner refused to pay the contractor and

asserted a SI million cross-complaint, claiming that the delay had caused him to miss a

"market window" and had caused him to incur substantial interest expenses.

The case was tried to a jury, which returned a full verdict for my client, the

plaintiff. The jury awarded nothing to the defendant on the cross-complaint.

25
CASE No. 4:

COURT:

CITATION:

JUDGE:

OPPOSING

COUNSEL:

CLIENT:

1076

Servamatic Solar Svitenii v. Eleanor G«rci«

Santa Clara County Superior Court

[Unreported - Docket No. Unavailable]

(Settled before assignment to a Judge)

Richard GoiT

Heller, Ehrman, White & McAulifTe

333 Bush Street

San Francisco, CA 94104

(415) 772-6000

Eleanor Garcia, Class Representative

I served as sole counsel Tor the Class

DATE: 1982-84

DESCRIPTION:

I represented Eleanor Garcia, who had purchased a solar hot water heater ("solar

system") from Servamatic. Mrs. Garcia refused to pay for the solar system because it did

not perform as the salesman had represented. Servamatic sued her in Municipal Court to

collect. She retained me to defend her. The sales literature that she had been given stated

that she would experience energy cost savings that were grossly disproportionate to her

actual savings. These misrepresentations were apparently a standard practice iji all sales

by Servamatic

I removed the case to Superior Court and filed a cross-complaint, alleging a class

action against Servamatic for consumer fraud in the sales ofsolar systems. Servamatic

settled the case on the eve of a hearing on my motion to certify the class. The motion

contained declarations, photographs and documents demonstrating that Servamatic

systematically misrepresented that its system would supply 75% of a consumer's annual

PG&E costs on a 68-degree day. In fact, the test used by Servamatic to calculate this 7SK

savings was done in the middle of the Arizona desert on a 99-degree day.

Under the terms of the settlement, Servamatic was required to rebate to each

customer the difference between the price of the system and its fair market value.

26
CASE No. 5:

COURT:

CITATION:

JUDGE:

CLIENT:

OPPOSING

COUNSEL:

DATE:

DESCRIPTION:

1077

Jenine Perrignon et al. v. Bergtn Brunswig Corp.

United States District Court for the

Northern District of California

(1978) 77 FRD 455, Docket No. C 77-0069 CR

Honorable Charles Renfrew (Now Retired)

LcBoef, Lamb, Greene & MacKae

1 Embarcadero Center

San Francisco, California 94111

(415)951-1100

Jenine Perrignon

I served as co-counsel

Lead Counsel

Paul C. Valentine

400 Capitol Mall

Sacramento, California 9SS14

(916) 449-3948

Howard R. Lloyd, Jr.

Hoge, Fenton, Jones & Appel

60 South Market Street

San Jose, CA 95113

(408) 287-9501

Chris A. Tarkington

Tarkington, O'Connor & O'NeSI

One Market Plaza

Spear Street Tower

19th Floor

San Francisco, CA 94105

(415) 777-5501

1977-78

I represented Mrs. Perrignon and her daughter in an action for violation of their

rights to privacy and intentional infliction of emotional distress by Mrs. Perrignon's

former employer. Mrs. Perrignon's home was burglarized. She received harassing and

threatening telephone calls and her home and office telephone lines were tapped. The

lawsuit alleged that these acts were done at the direction of the defendant to discourage

Mrs. Perrignon from cooperating with U. S. Senate investigators. A subcommittee of the

Senate was investigating whether governmental oflicials responsible for awarding contracts

45-964 98-35
1078

for the administntion or Medicare and Medicaid programs were being paid kickbacks by

companies in exchange Tor contract awards. A subsidiary or Bergen Brunswig was the

target of the investigation. Mrs. Pcrrignon was employed at the Bergen Brunswig

subsidiary and saw checks for large amounts of money made out to government ofTiciais.

The case involved complex issues of federal and state privacy and agency laws. The

case was tried to a jury. However, it was settled favorably to my client, the plaintifT, before

it was submitted for decbion.

-0-

CASE No. 6: People v. Superior Court fHo>

COURT: San Mateo County Superior Court

CITATION: (1974) 11 Cal. 3d 59

JUDGE: Honorable Gerald E. Ragan

CLIENT: Lawrence Ho

I served as sole counsel.

OPPOSING

COUNSEL:

DATE:

Rodney J. Blonien

OfTice of the California Attorney GenermI

(Mr. Blonien's current business address)

Whitman, Breed, Abbott & Morgan

1121 U Street No. 507

Sacramento, California 95814

(916) 441-4242

1973-74

DESCRIPTION:

I represented Mr. Ho, a defendant charged with possession of drugs. Since this was

his first olTense, he was eligible to have his case "diverted" from the criminal justice systeai

under Penal Code Section 1000.2, a statute which went into effect on the day of Mr. Ho's

arrest. Under the program, first offenders would be placed on pre-trial probation for a

period of time. If they successfully completed the program, the charges would be expunged

and they would be treated as if no criminal charges had been brought against them.

I requested the court to admit Mr. Ho to the diversion program. The court decided

to grant my motion. However, the statute gave the prosecutor the power to veto the

judge's decision. When the prosecutor vetoed the diversion, I argued that the provisions

allowing a prosecutorial veto were unconstitutional as a violation of the separation of

powers provision of the California Constitution. The trial judge agreed with my argumeat
1079

and ordered diversion. The prosecutor appealed.

The case was appealed to the California Court of Appeal. However, because the

case involved an important issue of California constitutional law, it was taken for hearing

by the California Supreme Court. I argued the case on appeal to the California Supreme

Court The Supreme Court sustained my argument that once the prosecutor has exercised

the prosecutor's discretion to charge an offense, all proceedings with respect to disposition

of the case are judicial in nature and may not be made the subject of a prosecutorial veto.

The California Supreme Court declared unconstitutional those provisions of Section 1000.2

giving the prosecutor a veto. (The statute was subsequently amended by the California

Legislature to delete the unconstitutional provision.)

CASE No. 7: Jupiter Engineering v. Union Carbide

COURT: San Mateo County Superior Court

CITATION: [Unreported; Docket No. 1 Civ. 490451

JUDGE: Honorable G. Brooks Ice (Retired)

CXJENT: Union Carbide Corporation

I served as lead counsel.

OPPOSING

COUNSEL:

DATE:

Vincent P. Finigan

Brobeck, Phleger & Harrison

One Market Plaza Spear Street Tower

San Francisco, CA 94105

(415) 442-0900

1979-80

DESCRIPTION:

Jupiter Engineering sued Union Carbide for damages resulting from an allegedly

defective railroad carioad of defective thermoplastic resin called "polysulfone." Jupiter

used the polysulfone resin to manufacture plastic colTee-makers. Jupiter claimed that

defects in the polysulfone caused coffee makers to delaminate and fail during use. Jupiter

claimed that in one instance the delaminalion caused a short-circuit in the electrical system

in the coiTee maker, which caused it to overheat and caused an ofTice Tire.

On behalf of Union Carbide, we filed a cross-complaint for recovery of the price of

the product. By tracing the batch numbers to other customers who purchased this

particular polysulfone and through expert analysis of retained samples, we proved that the

resin was not defective. We showed that delamination of the coffee-maken was caused by

29
1080

an aeroiol spray used by Jupiter to prevent the molded parts rrom sticking to the injectioa

molding machine. Union Carbide had supplied Jupiter and its other customers with a

warning against use of this particular mold release spray. The case was tried Tor two weeks

before a jury, which returned a defense verdict

I also represented Union Carbide on an appeal by Jupiter to the 1st AppdUle

District, Division 4, No. I CIV 49045. The judgment was sustained in ail respects.

CASE No. 8: Julius and Hertha Kessler v. Las Hadas Apartments

COURT: United Stales District Court for the

Northern District of California

CITATION: [Unreported, Docket No. C 80-3716 SWJ

JUDGE: Honorable Spencer Williams

280 South First Street

San Jose, California 95113

(408) 535-5355

CLIENTS: Julius and Hertha Kessler

I served as sole counsel.

OPPOSING

COUNSEL: Branson, Branson & McKinnon

Bank of America Center

555 California Street

San Francisco, CA 94104

(415) 986-4200

DATE: 1975-76

DESCRIPTION:

The Kesslers, who are Jewish, were tenants in the Las Hadas Apartments. The

owners hired a new manager. Coincidental to the hiring of the new manager, the Kesslers

started to experience harassment. They were told that their minor great grandson could

not stay overnight in their apartment, a restriction which was not placed on other tenants.

Furthermore, their complaints about broken fixtures were ignored. One day, when they

were at the pool in the apartment complex with their great grandson, the manager ordered

the child out of the pool. When the Kesslers questioned the manager, she told them that

the hours for children in the pool had been changed to Saturdays only. When Mr. Kessler

protested the new rule, words were exchanged with the manager, who said that she wished

Mr. Kessler had been killed in a gas chamber. This caused Mr. Kessler, an immigrant

from Poland and an internee in a concentration camp, and his wife to sufTer emotional

30
1081

dittrcss.

Believing that they were being di5criniinated on the basis of their religion and

ethnicity, the Kesslers complained to a nonprofit fair housing agency. The agency sent

"testers" to the apartment, posing as potential tenants. Black, Jewish and white testers

investigated the practices at the apartment complex. The diiTerential treatment of the

testers led the agency to conclude that the complex treated white apartment-seekers

difTcrently from black and Jewish apartment-seekers. The case was referred to me as a

volunteer attorney.

On behalf of the Kesslers, I filed an action in the district court claiming a violation

ofthe 1968 Civil Rights Act by Las Hadas Apartments. Judge Williams refused to allow

the testimony of the testers on the ground that treatment of prospective apartment-seekers

was not relevant to alleged discriminatory treatment of existing tenants. The jury returned

a verdict in favor of the defendants.

I represented the Kesslers on appeal from the judgment on the ground that it was

error for the trial court to refuse to permit the fair housing testers to testify. The case was

settled by a consent decree under which Las Hadas agreed to eliminate the rules which

were the source of the conflict, and the appeal was dismissed.

CASE No. 9: Rainer Schuh v. Computer Curriculum Partnership

COURT: Santa Clara County Superior Court

CITATION: [Unreported-Docket No. unavailable]

JUDGE: Honorable Tsketsugu Takei (Retired)

CLIENT: Rainer Schuiz

I served as sole counsel.

OPPOSING

COUNSEL:

DATE:

Sherwood M. Sullivan

Hopkins & Cariey

150 Almaden Boulevard

San Jose, CA 95113

(408) 286-9800

1982-S3

DESCRIPTION:

I represented Mr. Schuiz, a member of a real estate investment partnership. The

31
1082

corporate general partner attempted to terminate his Interest under a provision of tkc

partnership agreement However, the termination notice was defective under the provisioas

of the agreement. Consequently, Mr. Schub did not receive notice of deadlines for takin{

actions to protect certain rights given to him as a partner. In addition, even if his Interest wai

properly terminated, we contended that the partnership accounting was defective and the

appraisal of his interest substantially understated. The case was estimated to require one week

to try. I made a motion to bifurcate the case in order to first have a trial on the issue of the

effectiveness ofthe notice before proceeding to a trial on the complex issues of evaluating the

worth of his interest. The second issue would not need to be reached if improper notice bad

been given. The court granted the bifurcation motion.

After one day of trial, the court ruled that the notice was ineffective to terminate Mr.

Schuiz' partnership interest. Consequently, Mr. Schub was able to retain his partnenhip

interest and the complex and time-consuming appraisal issues were rendered moot

CASE No. 10: Motorola Computer Systems v. Phoenix Leasing

COURT: Santa Clara County Superior Court

CITATION: [Unreported - Docket No. 621947]

JUDGE: Honorable Homer Thompson (deceased)

CLIENT: Motorola Computer Systems

I served as sole counsel.

OPPOSING

COUNSEL:

DATE:

John Graham

Frandzel & Share

S383 Wilshire Boulevard Suite 400

Beveriy Hills, CA 90211

(213) 852-1000

1986-87

DESCRIPTION:

Phoenix Leasing purchased computer equipment from Motorola Computer Systems,

a wholly owned subsidiary of Motorola, Inc., for lease to customers of Phoenix Leasing.

Motorola leased equipment to these same customers directly. In order to avoid confusion by

customers as to whom payment should be sent. Motorola collected all payments and remitted

to Phoenix Leasing its pro rata share. In the course of auditing the account. Motorola

determined that it had overpaid Phoenix Leasing S4.6 million beyond what was owed to it

When Phoenix Leasing was advised of the mistake and of Motorola's intention to adjust the

account between the two companies to correct the overpayment Phoenix Leasing objected and

claimed that the payment was actually owed to it Motorola advised Phoenix Leasing that no

n
1083

further payments would be made on the account until the overpayment was exhausted. In

retaliation, Phoenix Leasing notified Motorola customers to send all lease payments directly

to Phoenix Leasing.

Motorola, Inc., was an existing client of my law firm. I was retained to represent

Motorola. I filed a motion for a preliminary injunction to prevent Phoenix Leasing from

contacting or collecting from Motorola's customers. Judge Thompson granted the motion.

Because ofthe complexity ofthe case, it was referred to Retired Judge J. Barton Phelps,

as a Special Master for all discovery disputes. In the course of proceedings before the Special

Master, the parties were able to reach a settlement of the case. Retired Judge Phelps may be

contacted at:

J. Barton Phelps

1755 Embarcadero Road

Palo Alto, California 94303

(415) S58-1414

19. Legai 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 ofyour participation in this question,

please omit any information protected by the attorney-client privilege (unless the

privilege has been waived.)

1992 Association of Business Trial

Lawyers

Annual Seminar

Panel Participant

Alternative Dispute Resolution in

the Federal Courts

1992 California Continuing Education

of the Bar

Federal Practice Program

Judicial Faculty Participant

1993 American Intellectual Property

Law Association

Mid-Winter Institute

1993 ALI-ABA

Seminar

1994- Chairman

prcscnt

Panel Member

New Developments in Intellectual

Property Law

Panel Member

New Directions in Antitrust Law

Local Rules Committee

U.S. District Court

Northern District of California

1995 United States/Jordan Legal Study

Project

Judicial Participant

1994-

prcsent

Committee on Model Jury

Instructions for the Ninth Circuit

Member and current Chairman

33
1084

n FINANCIAL DATA AND CONFLICT OF INTEREST (PUBUC)

• 1. List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock,.options, uncompleted contracts and other fiiture benefits

which you expect to derive from previous business relationships, professional

services, firm memberships, former employers, clients, or customers. Please

describe the arrangements you have made to be compensated in the fiiture for any

financial or business interest.

I do not anticipate receiving any income from previous business relationships,

professional services, flrm membenhipi, former employers, clients or customers. I

currently receive income as an adjunct faculty member at Lincoln Law School of Sao Jose

and the Santa Clara University School of Law for teaching one evening class.

2. Explain how you will resolve any potential conflict ofinterest, including the

procedure you will follow In determining these areas of concern. Identify the

categories oflitigation and financial arrangements that are likely to present

potential confllcts-of-interest during your initial service in the position to which

you have been nominated.

I will follow the Judicial Code of Conduct with respect to the resolution of any

potential conflict-of-interest. I am unaware of any categories of litigation or flnancial

arrangement that are likely to present potential connicts-of-interest during my initial

service in the position of Circuit Judge.

3 Do you have any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during your service with the court?

Ifso, explain.

If permitted by the Chief Judge of the Circuit, I plan to continue to teach a dass on

Civil Procedure at the Santa Clara University School of Law in its Evening Division. The

class meets for two and one-half hours, once a week between September and May. I

receive a modest compensation for teaching.

4. List sources and amounts ofall income received during the calendar year

preceding your nomination and for the current calendar year, including all

salaries, fees, dividends, interest, gifls, rents, royalties, patents, honoraria, and

other items exceeding $500 or more (If you prefer to do so, copies ofthe financial

disclosure report, required by-the Ethics in Government Act of 1978, may be

substituted here.)

See AO-10 Report attached as Exhibit "D"
1085

i

5. Please complete the attached financial net worth statement in detail (Add schedules as

called for).

See attached Exhibit "E"

6. Have you ever held a position or played a role In a political campaign? Ifso,

please identify the particulars ofthe campaign, including the candidate, dates of

the campaign, your title and responsibilities.

In the 1968 presidential campaign, I was a regional organizer for former President

Richard M. Nixon. During 1968,1 worked as a consultant to the Minority Affairs

Committee of the Republican National Committee. At various times, I have worked as a

local campaign worker in the Congressional campaigns of Tom Kuechel, Pete McQoskey,

Tom Campbell, Don Edwards and in the Supervisorial campaign of Anna Eshoo. I have

held no official campaign position.

35
1086

lU. , GENERAL (PUBLIC)

. 1. An ethical Consideration under Canon 2 ofthe American Bar Association's Code

ofProfessional 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 fiilfill these responsibilities,

listing specific instances and the amount oftime devoted to each.

As described above, up until my judicial appointment, I was a member of the

Stanford University Board of Trustees. As a Trustee, I participated in numerous meetings

and conferences designed to improve the quality of education for disadvantaged students.

Approximately one-third of my time was devoted to Stanford or educational matters while

serving as a Trustee. This was one of the most rewarding experiences I have ever had.

I am a participant in the Santa Clara County Department of Education "Adopt A

School" Program. The goals of this program are to increase knowledge and understanding

of the fundamental principles and processes of our legal system among elementary and

high school teachers and students and to increase opportunities for students to interact

with positive adult role models. I have adopted and regulariy participate with three

schools in Santa Clara County.

From 1980 until 1982,1 was a member of the Board of Directors of the Palo Alto

Area YMCA. I am still a Sustaining Member.

I attend United Methodist Church in Los Altos, CA, led by Rev. John Dodsoo.

My interest in civil rights litigation led me to serve as a volunteer attorney in a pro

bono program to represent victims of housing discrimination. From 1973 until 1983,1

represented numerous plaintiffs in approximately 70 fair housing cases. Most of the cases

were filed in the U.S. District Court for the Northern District of California.

As a result of my work, the fair housing program in which I participated was

approved by the Board of Governors of the California State Bar as a Certified Lawyer

Reference Service.

The extensive experience in federal procedure which I gained eariy in my career,

through my participation in litigation of fair housing cases, was extremely beneficial to me

later in my career when my practice came to involve litigation of intellectual property cases

in federal court.

2. The American Bar Association's Commentary to its Code ofJudicial 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 poUcies?

If*.
1087

Ifso, list, with dates of membership. What you have done to try to change these

policies?

3. b there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? Ifso, did it recommend your nomination?

Please describe your experience in the entire judicial selection process, from

beginning to and (including the circumstances which led to your nomination and

interviews in which you participated)

I am unaware of a formal commission. In March, 1997 I received a call from Chief

Judge Procter Hug inquiring about my interest in being considered for a position as a

circuit judge. I told him of my interest Afterward, I wrote a letter to President Clinton

requesting consideration. I have been interviewed by olTicials of the Justice Department,

the OfTice of the White House Counsel, the Federal Bureau of Investigations and the

. American Bar Association.

4. Has anyone involved in the process ofselecting you as a judicial nominee

discussed with you any specific case, legal issue or question in a maimer that

could reasonably be interpreted as asking how you would rule on such case, issue,

or question? Ifso, please explain fully.

No.

S 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 ofincreasing

controversy in recent years It has become the target of both

popular and academic criticism that alleges that the judicial branch

has usurped-many ofthe prerogatives of other branches and levels

of government.

Some ofthe charaaeristics ofthis "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

&r-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
39
1089

FINANCIAL DISCLOSURE REPORT

Nomination Report

(Worm Ad of f9S9. Pub L No.

101-194. NovomborX. THff

(iU.S.C.Affi.4,S^ 191-113)

lObut, JXHZS .

t Court or OnXiMlw

O.a. OOORT OF APPEAU, 9TH CM

>.Diloo(lta«ion

07/01/1997

U.S. CtRCUXT JDDGI

•.tai>oilTyi»|c>»dtirp«l

X IMMU DM 06/J7/1997 01/01/1996

Ot/J7/l»97

MW AmM Fkiri

T. Clia><an or Olio MikMS

D.S. CCXIKTBOOSI

280 SOOTS rtmT STHnr

su JOM, California 95113

urnKTAMTMOTES: HmtmnfrntrrairtrttyHUBiminmlfUtutd. CmiMi HpiH

rMME OF ORa/«NIZA'nON / ENTITV

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• POSITION

NOW (Hoi^arwkpiaaiKa.)

1 HMiiliT Of Cov«rning Bosrd California Lutbaran Onlvaraity

•. AGREEMENTS |Rvorthgli<MgWoii«taMHk><.)7ortat<>clbo>J

DATE PARTIES AND TERMS

Q> NOW iMo imiami^m—a^

01. NON.INVESTMENT INCOME impo«vi>*«bw«>fv«w •MW WK

DATE PARTIES AND TERMS

•'

1 1996 LIHCOUf UW ScaoOL-OOMPmSATIOIf M msTROCTOR

OROSS INCOME

2 8/15/96 Onlvaralty of Santa Clara Law School-Znatmctor
1090

FINANCIAL DISCLOSURE REPORT HAU, JAMZS . 07/01/l»»7

IV. RBM8URSEMENTS and GIFTS ->

t ««"

D

SOURCE

NOME (N> mat wportiMt n*i*MwiiM» a

OESCRVTION

V. OTHER GIFTS

VI. UABIUTIES

Q' CREDITOR OESCRIPnOM

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1091

FINANCIAL DISCLOSURE REPORT WARE, JAMES .

Oa»<«fta|«at

07/01/1997

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1093

FINANCIAL DISCLOSURE REPORT •TARE, JAMES

OMolRvl

07/01/1997

VW. AOOmONAL INFORMATION OR EXPLANATIONS. (MfcaipMXiipM.)
1094

FINANCIAL STATEMENT

NET WORTH

Provide a coiiq)iele. cuntnt financial net worth staiemcDt which itemizes in detail all assets (inchiriing bank

accounts, real estate, secuhties. irasts. utvestmciits, and other financial holdings) all liabilities (including ddbn^

mongages. loans, and other financial obligations) of yourself, your spouse, and other inunediate taembcn oTvour

househokL

ASSETS LL^BILITIES 1

Cash on baixl and in tanks M,300 Notes paj^ble to banks-secured 0

Schcdulel

ISO Notes payable to banks-unsecuitd 0

Listed Securitia-Scliedulc 2 70 Notes payable to rclauvcs 0

Unlinal secunues-Schcdule 3 31.000 Notes payable to others 0

Accounts and notes receivabJes: Accotmis and bills due 0

Due from relatives and fhends 85.000 Unpaid income lax 0

Due from others 0 Other unpaid ta.\ and imcresi 0

Doubtful 0 Real estate mortgages payableSchedule 5

325.000

leal estate-Schedule 4 715,000 Chanel mongages and other liens

payable

65.000

Autos and other persona] property 55.000 Other debts-itemize

Cash value-life insurance 10.000 Consumer Credit 20.000

Other assets-itemize: Education Loans 40.000

Boat 30.000

Household Furnishings & Personal

Eflccts

200.000 Total UabiUties 450.000

Net Worth 595.520

Total Assets 1.045.520 Total liabilities and net w-onh 1.045.520

CONTINGENT LIABILITIES GENERAL INFORMATION

As endorser, comaker or guarantor None Art any assets pledged? No

On leases or contracts None Are you defendant in any suits or legal

actions^

Yes (See

Biographical

Qucstjoiiiiaire)

Legal Claims None Have you c\ er taken bankruptcy^ No

rovision for Federal Income Tax Pa>T0ll

Withholding

Other special debt None
1095

United Slates Savings Bond

Face Amount

Curreu Cash Value

SCHEDULE 1

$250.00

150.00

SCHEDULE:

Conunoa Stock General Motors

2 Shares (Appfo.\iniate Value) 70.00

Tlirifi Savings PUo

IRA Account

Dean Witter

USAA Mutual fluid

SCHEDULES

SI5,000

9.000

7.000

SCHEDULE 4

1223 Arbor Coun

Esumated Fair Market Value S700.000

R Ranch Time Share 15.000

Great Western Savings & Loan

SCHEDULES

S325.000
1096

I. BIOGRAPHICAL INTORMATION (PUBLIC)

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

Lynn S. Adelman

2. Address: List current place of residence and office.

Homa: Waterford, Nisconsin

Offica: Adelman, Adelman t Murray, S.C. law firm

308 East Juneau Avenue, Milwaukee, WI 53202

3. Date and place of birth.

October 1, 1939, Milwaukee, WI.

4. Marital Status (include maiden name of wife, or husband's

name). List spouse's occupation, employer's name and

business address(es).

Married since April 23, 1976 to Elizabeth (maiden name

Halmbachar) Adelman. She is an attorney and partner in

Adelman, Adelman £ Murray, S. C, 308 East Juneau Avenue,

Milwaulceo, WI 53202.

5. Education: List each college and law school you have

attended, including dates of attendance, degrees received,

and dates degrees were granted.

Princeton University, A.B., 1961.

Attended 1957-61, A.B. received 1961

Columbia University Law School, L.L.B., 1965.

Attended 1962-65, L.L.B. received 1965

6. Employment Record: List (by year) all business or

professional corporations, companies, firms or other enterprises,

partnerships, institutions and organizations, nonprofit or

otherwise, including firms, with which you were connected as an

officer, director, partner, proprietor, or employee since

graduation from college.

1961-1962: Sales, Kirby Distributing Company, Trenton, HJ.
1097

1962: Management trainee, Holland Laundry, Philadelphia,

PA.

Sumner, 1963: Law Cleric, Law firm of Pellettieri t

Rabstein, Trenton, NJ.

Sunmar, 1964: Law clerk to Attorney John Pratt, National

Council of Churches, New York, NY.

1965-1966: Research assistant to Professor Monrad G.

Paulsen, Columbia University Law School, New York, NY 10027.

1966: Law clerk to Attorney Richard H. Kuh, New York, NY.

1967-1968: Trial attorney. Legal Aid Society, Criminal

Courts Division, New York, NY.

1968-1972: Sole practitioner. Law Office of Lynn S.

Adalman, New York, NY.

1972-1973: Associate, Law Office of Coffey, Lernar t

Murray, Milwaukee, HI.

1973-1978: Partner, Law Office of I,erner £ Adelman,

Milwaukee, WI.

1978-1983: Sole practitioner. Law Office of Lynn Adelman,

Milwaukee, WI.

1983-1988: Partner, Law Office of Adelman £ Adelman,

Milwaukee, WI.

1986 to present: Partner, Law Firm of Adelman, Adelman £

Murray, S. C., Milwaukee, HI.

1977-Pre8ent: Wisconsin State Senator, 28th Senate

District, State Capitol, Madison, HI.

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.

Nona.
1098

Honors and Awards: List any scholarships, fellowships,

honorary degrees, and honorary society memberships that you

believe would be of interest to the Committee.

Graduated cvtm lauds from Princeton University and CUB

lauda from Columbia Law School.

Award from Legal Action of Wisconsin for outstanding

pro bono pubiico service as a dedicated attorney and public

servant (1994).

Freedom of Information Award for contribution to

freedom of the press and First Amendment rights from the

Wisconsin Society of Professional Journalists (1990).

Leadership Award for tireless efforts in setting high

ethical standards for Wisconsin state government from Comion

Cause of Wisconsin (1988).

Lifetime Achievement Award for Leadership Against Drunll

Driving from Mothers Against Drunk Driving (1995).

Sheridan-McCabe Memorial Award for service in the

consumer interest from the Wisconsin Chapter of the Consumer

Federation of America (1987).

Eunice Edgar Award for Lifetime Achievement on behalf

of civil liberties from the Wisconsin Chapter of the

American Civil Liberties Union (1994).

Award for work on behalf of people with disabilities

from Full Citizenship Initiative of Waukesha County for

(1990) .

Full of Heart Award for being a good employer from the

Wisconsin Chapter of 9 to 5, Inc. (1991).

Conservationist of the Year from the Waukesha County

Conservation Alliance (1991).

Award for contributions to community based corrections

front Wisconsin Corrections Coalition (1992) .

Clean 16 Award for work on behalf of the environment

from Wisconsin Environmental Decade (numerous tiroes between

1977-1994).
1099

9. Bar Associations: List all bar associations, legal or

judicial-related committees or conferences of which you are

or have been a member and give the titles and dates of any

offices which you have held in such groups.

Riaconsln Bar Association, 1972-present.

Wisconsin State Senate Judiciary Comnittee, 1977-present,

Chair 1979-1993; 1995-present.

Wisconsin Judicial Council, 1979-1993; 1995-present.

10. Other Memberships: List all organizations to which you

belong that are active in lobbying before public bodies.

Please list all other organizations to which you belong.

a. None.

b. Temple Emanuel-Haukesha, Wisconsin, Racine County and

Wisconsin Democratic Party, Waukesha Environmental Action

League, Greendale Historical Society, Little Muskego Lake

Association, New Berlin Prospect Lions Club and American

Jewish Comnittee.

11. Court Admission: List all courts in which you have been

admitted to practice, with dates of admission and lapses if

any such memberships lapsed. Please explain the reason for

any lapse in membership. Give the same information for

administrative bodies which require special admission to

practice.

Admitted to practice in the State of New York, 1967

(membership lapsed whan I moved to Wisconsin but has been

renewed).

Admitted to practice in United States District Court for the

Southern District of New York, 1969.

Admitted to practice in State of Wisconsin, 1972; admitted

to practice in United States District Court for the Eastern

District of Wisconsin, 1972; Court of Appeals for Seventh

Circuit, 1972; United States Supreme Court, 1992.

12. Published Writings: List the titles, publishers, and dates

of books, articles, reports or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Committee.
1100

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were

press reports about the speech, and they readily available

to you, please supply them.

Bad Lavs Maka Hard Casas: Mate Crima Lavs and tha

Suprama Court's Opinion in Wisconsin r. htitchall, 29 Gonzaga

Law Raview 1 (1994).

Oiild Abuse Reporting Legislation, Soma Legislative

History, 34 Georgo Washington Law Review 482 (1966).

Oapartures from tha Uniform Marital Property Act

Contained in the Wisconsin Marital Property Act, 68

Marquette Law Review 390 (1985).

Introduction, 69 Marquette Law Review 159 (1986).

Volume dedicated to articles on drunk driving.

Should Wisconsin Lover the Blood Alcohol Content to . 08

for Driving Under the Influence? Yes, Wisconsin Counties

Magazine (May, 1992).

Jtevrlting the Crime Lavs is a Precondition of 'truth in

sentencing', Wisconsin Lawyer (June, 1997).

Caispaign Finance Reform, Wisconsin Medical Journal

(May, 1997) .

The Presumption of Release in Bail Decisions, Wisconsin

Lawyer (July, 1989).

A Study of Janes Waldon Johnson, Journal of Hegro

History, Vol LII, p. 128 (1967).

Wisconsin Should Hot Reverse 140 Years of History by

Reinstating the Death Penalty, Wisconsin Lawyer (May, 1993) .

13. Health: What is the present state of your health? List the

date of you last physical examination.

Good. 1997.
1101

14. Judicial Office: State (chronologically) any judicial

offices you have held, whether such position was elected or

appointed, and a description of the jurisdiction of each

such court.

Nona.

15. Citations: If you are or have been a judge, provide: (1)

citations for the ten most significant opinions you have

written; (2) a short summary of and citations for all

appellate opinions where your decision were reversed or

where your judgment was affirmed with significant criticism

of your substantive or procedural rulings; and (3) citations

for significant opinions on federal or state constitutional

issues, together with the citation to appellate court

rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the

opinions.

Not applicabl*.

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 hava bean Wisconsin State Senator, 2eth Senate District

aince 1977. I was first elected in November, 1976 and ra-

•lactad in 1980, 1984, 1988, 1992 and 1996.

I ran unsuccessfully for the House of Representatives in

November 1974 in the 9th Congressional District and in the

1982 and 1984 Democratic primaries in the 4th Congressional

District.

17. Legal Career:

a. Describe chronologically your law practice and

experience after graduation from law school including:

1. whether you served as clerk of a judge, and if so,

the name of the judge, the court and the dates of

the period you were a clerk; No

2. whether your practiced alone, and if so, the

addresses and dates; See No. 3 below
1102

3. the dates, names and addresses of law firms or

offices, companies or governmental agencies with

which you have been connected, and the nature of

your connection with each;

1965-1966: Research assistant to Professor Monrad

G. Paulsen, Columbia University taw School, 435

Nest lieth Street, New York, NY 10027.

1966: Law clerk to Attorney Richard H. Kuh, now

at 555 Sth Avenue, New York, NY 10017.

1967-1968: Trial attorney, Legal Aid Society,

Criminal Courts Division, 100 Centre Street, New

York, NY 10013.

1968-1972: Law Office of Lynn S. Adelman, 401

Broadway, New York, NY 10013.

1972-1973: Law Office of Coffey, Lemer £ Murray,

152 West Wisconsin Avenue, Milwaukee, KI 53202.

1973-1978: Law Office of Larner t Adelman, 152 W.

Wisconsin Avenue, Milwaukee, HI 53202.

1978-1983: Law Office of Lynn Adelman, 411 East

Mason Street, Milwaukee, WI 53202 and 1840 North

Farwell, Milwaukee, WI 53202.

1983-1988: Law Office of Adelman t Adelman, 828

North Broadway, Milwaukee, WI 53202.

1988 to present: Law Firm of Adelman, Adelman t

Murray, S. C., 308 East Juneau Avenue, Milwaukee,

WI 53202.

1977-Present: Wisconsin State Senator, 28th

Senate District, State Capitol, Madison, RI

53702.

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?

1967-1972 practice was primarily a criminal trial

practice.
1103

1972-1997 practic* haa ba«n approximataly 75%

civil and 25% criminal.

2. Describe your typical former clients, and mention

the areas, if any, in which you have specialized.

I reprasant individuals, non-profits and small

businassas. In tha cases involving individuals I

do primarily personal injury and criminal work. I

have been involved in many cases involving

constitutional issues. I have a number of

business clients and my business practice is

primarily a litigation practice. I also do

considerable work in the area of administrative

law, particularly zoning.

1. Did you appear in court frequently, occasionally

or not at all? If the frequency of your

appearances in court varied, describe each such

variance, giving dates.

Frequently.

2. What percentage of the appearances was in:

(a) federal courts;

10%

(b) state courts of record;

80%

(c) other courts.

Local administrative agencies - 10%

3. What percentage of your litigation was:

(a) civil;

75%

(b) criminal.

25%

4. State the number of cases in courts of record you

tried to verdict or judgment (rather than

settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Ai^roximately BO cases tried to judgment in whioh

I was sole or lead counsel.
1104

5. What percentage of these trials was:

(a) jury;

12%

(b) non-jury.

88%

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 of parties whom you

represented; describe in detail the nature of your

participation in litigation and the final disposition of the

case. Also state as to each case:

(a) the date of representation;

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

judges before whom the case was litigated; and

(c) the individual name, addresses and telephone

numbers of co-counsel and of principal counsel for

each of the other parties.

1. Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993). This

case involved a challenge to the Hisconsin hate crime law.

I filed an amicus curias brief in the Wisconsin Supreme

Court arguing that the law punished thought in violation of

the First Amendment. The Wisconsin Supreme Court held that,

the law was unconstitutional and relied heavily on my brief.

I then became Todd Mitchell's lawyer and argued the case in

the United States Supreme Court on April 21, 1993. The

Supreme Court reversed the decision of the Wisconsin Supreme

Court. Co-counsel were Kenneth Casey, 161 W. Rockwell

Street, Jefferson WI 53549, (414) 674-2800; Pamela

Moorshead, 400 North Executive Drive, Brookfield, WI 53005,

(414) 821-5559; Susan Gellman, 138 South Third Street,

Columbus, OH 43215, (614) 280-1000. Opposing counsel was

Attorney General James Doyle, State Capitol, Madison, WI

53702, (608) 266-1221.

2. Citizens Utility Board, at al. v. Klausar, 194 Wia. 2d

484 (1995). As lead counsel, I represented the plaintiffs

in a challenge to the Governor's attempt to execute a

"write-in" veto. I brought the case to the Wisconsin

Supreme Court on an original jurisdiction theory, which is

used when cases raise significant public issues. The

Governor struck an appropriation amount in the budget bill
1106

of $350,000 and wrota in a different amount, $250,000. The

Supreme Court, in a 4-3 decision, upheld the write-in veto

of an appropriation amount. I argued the case in the

Wisconsin Supreme Court on April 26, 1995. Opposing counsel

was Alan Lee of the Attorney General's Office, 123 West

Washington Avenue, Madison, WI 53702, (608) 266-0020.

3. Riasar, at al. r. Klaussr, 207 Wis. 2d 177 (1997).

This case also involved a challenge to the Governor's

partial veto power and was also brought as an original

action. As lead counsel, I represented several legislators

and citizens. Here, the Governor attempted a write-in veto

of a non-appropriation amount, namely an amount of revenue

bonding authority. The Governor deleted the amount set by

the legislature and wrote in a figure $40 million dollars

lower. The Supreme Court held in a 4-3 decision that the

Governor exceeded the scopti of the write-in power authorized

in Citizans Utility Board and struck down the Governor's

attempted veto. This is an historic case for it is the

first veto case that the Supreme Court decided in favor of

the legislative branch of government. Opposing counsel were

Bruce Hams and Michael Modi of 2 East Mifflin Street,

Madison, WI 53701, (608) 257-5661. I argued the case in

the Wisconsin Supreme Court on October 29, 1996.

4. Joni B. and Richard S. v. State of Wisconsin/

MaiJBStade, at al. v. Stats of Wisconsin, 202 His. 2d 1

(1996). In this case, I represented two parents and seven

Milwaukee County trial judges, including Chief Judge Patrick

Sheedy (telephone (414) 278-5112) in a challenge to a

Wisconsin statute prohibiting courts from appointing lawyers

for parents in cases involving alleged neglect of children.

Our position was that the statute violated both the

separation of powers principle and due process of law. The

Supreme Court ruled unanimously in our favor on both

grounds. I argued this case in the Wisconsin Supreme Court

on May 3, 1996. Co-counsel were David Harth, 150 E. Gilman

Street, Madison, WI 53701, (608) 258-4210; and Paula Doyle,

121 South Hamilton Street, Madison, WI 53703, (608) 255-

6627. Opposing counsel was Michael Modi of 2 East Mifflin

Street, Madison, WI 53701, (608) 257-5661.

5. Demmlth v. Wisconsin Judicial Confaranca, 166 Wis. 2d

649 (1992). As lead counsel, I represented the plaintiff in

a challenge to the misdemeanor bail schedule used throughout

Wisconsin to set bail at night and on weekends when judges

10
1106

are unavailable. The plaintiff was held for five days in

the Milwaukee County jail on money bail for a minor traffic

case. He had no previous record and substantial ties to the

community. The plaintiff's contention was that the bail

schedule did not conform to the statutory requirement that

money bail could not be imposed except to ensure the

defendant's return to court. The Wisconsin Supreme Court

unanimously upheld the plaintiff's challenge and required

the Judicial Conference to promulgate a new bail schedule.

I argued this case in the Wisconsin Supreme Court, which had

original jurisdiction, on January 3, 1992. Co-counsel was

Evelyn Mazack, 17 South Fairchild Street, Madison, WI

53707, (608) 264-8574. Opposing counsel was Ray Taffora, 1

South Pinckney, Suite 900, Madison, WI 53703, (608) 257-

3501.

6. Visconsin Prof. Polico Assoc. v. Public Servica

Commission, 205 Wis. 2d 60 (Ct. App. 1996). As lead

counsel, I represented a number of organizations and

individuals concerned about the loss of privacy involved in

Caller I.D. telephone service. The staff of the Public

Service Commission had made recommendations adverse to my

clients. I challenged the recommendations, and the case was

tried before a hearing examiner employed by the Commission.

The three-member Commission upheld the recommendation of its

staff. The Circuit Court of Dane County (Hon. Moria

Krueger) reversed the decision of the Public Service

Commission. The Public Service Commission appealed to the

Wisconsin Court of Appeals, which reinstated the decision of

the Public Service Commission (Dyckman J.). I argued the

case in the Court of Appeals on June 25, 1996. Opposing

counsel was Steve Levine, 610 Whitney Way, Madison, WI

53707, (608) 267-2890. The Wisconsin Supreme Court denied

my petition for review.

7. Bamett r. Wisconsin Ethics Board, 817 F. Supp. 67

(E.D. Wis. 1993). This case involved a challenge to a

statute known as the "gag law" which prohibited state

employees from making requests to legislators for

appropriations for their agencies. As lead counsel, I

represented the plaintiff, a professor at the University of

Wisconsin-Milwaukee who sought a declaratory judgment that

the law violated his First and Fourteenth Amendment rights.

The United States District Court for the Eastern District of

Wisconsin (Hon. John W. Reynolds) granted declaratory relief

striking down the law. The case was decided on briefs. The

11
1107

opposing counsal was Assistant Attorney Genaral Alan Laa,

123 Wast Washington Avanua, Madison, WI 53702, (608) 266-

0020.

8. Vaitad States r. Haslvar, 299 F.Supp 1053 (1969). I

was counsel for the defendants in this federal criminal

case. The charge was that the defendants assaulted federal

narcotics agents by intervening in an altercation between

the agents and other individuals. I argued two sets of

motions in this case. First, I successfully argued for a

lengthy adjournment on the grounds that necessary witnesses

would be unavailable because of pending charges against

them. Later, I moved to dismiss the indictment because the

statute making it a crime to assault federal employees

omitted employees of the Bureau of Narcotics and Dangerous

Drugs. The Federal District Court (Hon. Dudley Bonsai)

dismissed the indictment. I argued the dispositive motion

in 1970. The Government sought a direct appeal to the

Supreme Court bypassing the 2nd Circuit Court of Appeals.

Ultimately, I persuaded the Government to drop the appeal.

The opposing counsel was Sterling Johnson now United States

District Judge in the Southern District of New York, 40

Centre Street, New York, NY (212) 791-1140.

9. Peck V. Meda-Care Ambulance, 156 Wis. 2d 662 (Ct. App.

1990). In this case. Peck, a lawyer, sued Meda-Care for

legal fees. I represented Mada-Cara which counterclaimed,

alleging negligence. Peck's alleged negligence consisted,

among other things, of violating the Code of Professional

Responsibility by being a witness in the same case in which

he served as counsel. After a jury trial in August, 1989,

the Circuit Court (McMahon, J.) set aside the verdict and

granted Mada-Care summary judgment. The Court of Appeals

(Fine, J.) reversed. The Wisconsin Supreme Court denied a

petition for review. The case raised the issue of the

relationship between the Rules of Professional

Responsibility and the standard of care in a malpractice

case against a lawyer. The case is widely discussed at

seminars for lawyers concerning ethical issues. The

opposing counsel was John DeStefanis, 1011 North Mayfair

Road, Milwaukee, WI 53226, (414) 257-1800.

10. Xrug V. Zeuske, 199 Wis. 2d 406 (Ct. App. 1996) This

ease Involved a successful challenge to five state statutes

that appropriated over $300,000 to road building

contractors. As lead counsel, I represented a number of

12
1108

legislators, taxpayers and local government officials, who

contended that the payments constituted "extra compensation"

to the contractors in violation of Article IV, Section 26,

of the Wisconsin Constitution, which prohibits the

legislature from granting "any extra compensation to a...

contractor after the services have been rendered or the

contract has been entered into." After a hearing in April

of 1995, the trial court (Northrup J.) granted sumnary

judgment for the defendants. The Court of Appeals (Eich

C.J.) reversed and held that the statutes were

unconstitutional. The case was decided on briefs. Opposing

counsel were Assistant Attorney General, Gerald S. Hilcox,

123 West Washington Avenue, Madison, WI 53707, (608) 267-

2222 and Carl Sinderbrand, 2 East Oilman Street, 1300,

Madison, WI 53701, (608) 257-5335.

In addition to the foregoing, the following individuals

are familiar with my legal abilities: Attorney General

James Doyle, State Capitol, Madison WI 53702, (608) 266-

1221; Judge James Gramling, 951 North 7th Street, Milwaukee,

WI 53233, (414) 278-3800; Chief Judge Patriclc Sheedy, 901

North Ninth Street, Milwaukee, WI 53233, (414) 278-5112;

Chief Justice Shirley Abrahamson, 231 East State Capitol,

Madison, WI 53702, (608) 266-1885; Judge Fred Kessler, 3432

North Shepard Avenue, Milwaukee, WI 53211, (414) 332-6647;

Judge Robert Landry, 2245 West Greenwood Road, Milwaukee, WI

53209, (414) 228-1914; Assistant Attorney General Alan

Lee, 123 West Washington Avenue, Madison WI 53707, (608)

266-0020; Attorney David Harth, 150 East Gilman Street,

Madison WI 53701, (608) 258-4210; Attorney Paula Doyle, 121

South Hamilton Street, Madison WI 53703, (608) 255-6627;

Attorney Ken Casey, 161 West Rockwell Street, Jefferson WI

53549, (414) 674-2800.

19. Legal Activities: Describe the most significant legal

activities you have pursued, including significant

litigation which did not progress to trial or legal matters

that did not involve litigation. Describe the nature of

your participation in this question, please omit any

information protected by the attorney-client privilege

(unless the privilege has been waived.)

Other important legal activities in which I have been

involved fall into three broad categories: building a

successful law firm, handling a variety of significant cases

other than those identified in the answer to question 18 and

13
1109

shaping Kisconsin law aa a stata senator.

Building a Law Firm.

I have been primarily responsible for the creation,

development and management of the law firm of Adelman,

Adelman C Murray. This firm has grown from two lawyers to

ten lawyers in the last thirteen years. I have had the

e]q>erience of building a small business and meeting a

payroll. This experience has given me a good sense of the

concerns of small businessmen and of ordinary people who

have legal problems. This "real world" experience will be

an asset to me as a judge.

Shaping Wisconsin Law as a State Senator.

As a state senator I have had a substantial impact on

Wisconsin law. As chair of the Senate Judiciary Committee

from 1979-1993 and again from 1996-Present, I have shaped

legislation concerning the civil and criminal justice

ayBtems. My job as chair has been to ensure that any bill

which left the committee was defensible as policy and

technically sound.

In addition, I have been the principal author of

numerous important laws. Some of these laws are listed

below under appropriate categories.

Making government more accountable to citizens.

• Ethics coda for state and local public officials. This

coda creates strict standards of conduct for public

officials and requires full disclosure of significant

economic interests.

• Lobbying law which establishes the principle that

public officials can take nothing of value from

lobbyists or principals. The law also requires full

disclosure of expenditures designed to influence

government action.

Wisconsin open records law. This law establishes the

presumption that all government records are accessible

to the public and creates an enforcement procedure.

14

45-964 98-36
n

1110

Lawa Protacting Public Safety Whila Raapactlng Individual

Rights.

a Amandimnt to Nlaconsin Constitution prohibiting further

expansion of gambling.

a Amendment to Hisconsin Constitution delineating the

rights of victims of crimes. This is a balanced

measure which promotes participation of victims in the

judicial process but protects the rights of defendants.

• Risconsin drunk driving law. This law establishes an

objective standard, defining drunk driving provides

strong penalties for violations and requires

appropriate education and treatment for all drunk

drivers.

a Antl-stalking legislation. I crafted a compromise

between antl-domestic violence and pro-life groups by

persuading both groups to agree to the model antlstalking law proposed by the National Institute of

Justice.

• A law which provides that subpoenas rather than search

warrants be used to obtain personal papers from persons

not suspected of any wrongdoing.

• Comprehensive reform of municipal court procedures.

This law streamlines procedures for prosecuting

municipal violations while protecting the rights of

defendants.

Judicial Council Bills.

The Hisconsln Judicial Council is an agency of the Supreme

Court the purpose of which is to propose improvements in

judicial procedures. I have been a member of the Council

for over 15 years. I sponsored and defended all

legislation which came out of the Council including major

changes in laws regarding venue, statutes of limitation,

guardians ad lltam, appellate practice, probate, peremptory

writs, contempt of court, judge substitution, the insanity

defense, small claims procedure, sentencing, restitution and

earnings garnishment.

15
1111

Laws Regarding Families.

• The Wisconsin marital property law establishes the

principle that marriage is an economic partnership and

recognizes the economic contribution that a non-wage

earning spouse makes to a marriage.

e A reform of police and prosecutorial procedures in

handling domestic violence cases. The law is designed

to get police to arrest and prosecutors to prosecute

cases of spousal abuse.

e Paternity law making HLA blood test admissible in

evidence thereby improving capacity to identify fathers

and collect child support.

• I<aws which establish the rights of adoptees, cut red

tape in adoption of foreign children and improve

procedures in adoption cases.

16
1112

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates of all anticipated receipts

from deferred income arrangements, stock, options,

uncompleted contracts and other future benefits which you

expect to derive from previous business relationships,

professional services, firm memberships, former employers,

clients, or customers. Please describe the arrangements you

have made to be compensated in the future for any financial

or business interest.

1. Wisconsin Deferred Con^>en8ation Plan, value of interest

is approximately $80,000, payable on separation from state

service.

2. Wisconsin Retirement System, value of interest is

approximately $175,000, payable in form of annuity after

separation from state service.

3. IRA Account at Everen Securities, approximate value of

$40,000.

4. Adelman, Adelman t Murray, S.C., accrued bonus, buy-out

of interest in law firm, value will be determined and paid

out within one year.

5. Rent from premises at 308 East Juneau Avenue,

Milwaukee, WI 53202, $45,000 per year.

6. Mortgage due from Milwaukee School of Engineering on

property at 1202 North Broadway, Milwaukee, HI 53202

payable by January, 1998. Amount due is $38,000.

Explain how you will resolve any potential conflict of

interest, including the procedure you will follow in

determining these areas of concern. Identify the categories

of litigation and financial arrangements that are likely to

present potential conflicts of interest during your initial

service in the position to which you have been nominated.

I will follow the appropriate rules, guidelines and canons

of ethics to resolve any potential conflicts of interest.

Including the Code of Judicial Conduct. I will make full

disclosure and/or recuse myself where appropriate. Because

my financial involvements are relatively limited I
1113

anticipata faw, if any, conflicts.

Do you have any plans, commitments, or agreements to pursue

outside employment, with or without compensation, during

your service with the court? If so, explain.

Ho.

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.)

Saa Financial Disclosure Report attached hereto.

5. Please complete the attached financial net worth statement

in detail (Add schedules as called for).

See attached Net Worth Statement.

Have you ever held a position or played a role in a

political campaign? If so, please identify the particulars

of the campaign, including the candidate, dates of campaign,

your title and responsibilities.

Candidate for state senate 1976, 1980, 1984, 1988, 1992 and

1996.

Candidate for Congress 1974, 1982 and 1984.
1114

FINANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAH 1996

1 rerxT- •apoitini IUM A«>C. firBi aidtflr .«.(t«l'

Adelman, Lynn S.

District Court -

Eastern District of Wisconsin 09/09/ 97

«. TiCl« lArclclc III Iwdaci »<M);c«t* «»>*< er

U.S. District Judge Nominee

J(__ W-tnAtion. Date / /

iMtticI MMSMI »»«*» IM'96 yV97

1 Chuton ar Ofr^cc M«raia

308 East Juneau Avenue

Milwaukee Wt S3202

• On the baal> af ttm 4nt«cwl>«> c«ntal>H>d la chia Maon ««

any aodittcat i<»t ^rt«tnlM chcrcto. te la tn nr platen. in OMpftancc -tth appl Ie*l"« 1«<^ »^ (v«ul*ti*fl*

«avlm>ii<« 0C14CCC Data

IMPORTAJ^T NOTES: The mtlrdcttom accoaipMyioK this form oiutt be foll(r»cd Complcic ail parti,

dicdcing ihc NOKH box for tich scau>D where you have no tcponable iaformabon Sign on Us( p^c.

I. POSITIONS. (Rcporiine individual only. &ce pp 9-1^ of tostfuctioiu.)

POSITION NAME OF ORGANIZATION/ENTITY

NONE (No tcponabtc po»itons) rz]

state Senator State of Wisconsin

Partner Adelman, Adelman t Murray S.C.

I(. AGREEMENTS. (Rcpomngiuiliv^duaronly. %ccpp |4-J7of IntniclUHU.)

DATE PARTIES AND TERMS

n KONE (Norcponiblc AgrccmcR(t)

Sum certain will be paid out within ong fll yotr.

III. NON-INVESTMENT INCOME. (Rcponin(aiilM<ltiilaiidipausc:Hc|ifi W-ZSaflaaracinds.)

DATE -

•1995

1995

SOURCE AND TYPE

NONE (No icpoTtible noo-uiwsliiicat tnoomc)

State of Wisconsin - legislative salary

Adelman. Adelman » Hurray sr - tal^ry «ni1 rent

1995

llOfi

1996

im

Spouse employed as attorney for firm of Adelman. Adelman

t Murray S.C.

State of Wisconsin - le<ilslati»e salary

Adelman. Adelman i Murray S.C. - salary and rent

Milwaukee School of Engineering (sale of building)

Spouse aiploved as attorney for finii of Adelwn. Adelnan

$ Murray S.C.

GROSS INCOW

t

s

38.000

i7<; nno

s

s iR.nnn

<! i« rmn

$(

20.OOP

jown p«Mm
1115

FIKMICXAL DISCLOSOKB REPORT Adelman, Lynn 5. 09/ 09^ 97

rV. REIMBURSEMENTS and GIFTS (ransporiaikm. lodgiog. food. cDienumnent

Osdudci iboK to spouu and dcpcadeal cluldrca: use ihe pveaChettub '(S)* Md '(DC)* to >tHlM:«ic rcporlable

reiBibuacaicatt wul gifts rc«ct«cd br ApMUC uid depciidcnl cfaUdrca. rupccti«cly See pp. 26 29of InUmdioai.)

gOtfflCE DESCRIPTION •

NONB (No snA tvponMc tciaitnnemcoti o* gifii)

Exempt „

u

OTtlER GIFTS- (Isdudet itiou to ipousc and dcpcndenl cJiiMren: use Ihc paicnikeiicab *(S)' and *(DC)' to

ifldicate olher gifu iccciviul by ipouu: and dependent childreo, rcspeaively. See pp 30-}}of InilnitliaoL)

SOURCE nESCRIPTION VALUK

HONE (No inch repmlable giflt)

f'llnpt _ . S_

S..

VI. UABILJTIES' (Indudei UuMe of spoiHC and dcpcndeol children; indicate wticfc applicable, person responsible

(or liabililjr by using the parenthetical *(S)' (or separate liability of the spouse, *(J)' for joint liability of

reporting iadividua] and spouse, and *(DC)* (or liabiluy of a depcmicol child. See pp. M.J6 of Instiudions )

CREDITOR DESCRIPTION VALUE CODE*

I X NONE (No ^portable liabililtes)

-waia. omn £lji,m •{'»»• „. !:•!?• HJ-Sf'SJ* t->w.»in«a.«» iMtM.ni.slsa.aM K-nM.tai-JS"**" I
1116

PIHMICIAL DISCLOSDRE REPORT Adelnan, Lynn S. 09/09/ 97

Vn. Plgc I INVESTMENTS and TRUSTS loco•. v.tae. ir«ii>«lion« (lactades ihM ol iponc

and depcaacfU cUdrcK Sec [>p T7 54 of loiinicliau)

:ij':Jr..£.'r.=nsS-!,J!»*!i-

(•" •.-«r»>tp by lr^»«<«« CKIlJ

rl*c* Mlf •d'r «<c>> «*>«i.

• «.J-.-

T

D

fc^rtTav TSliia'

1)1 (II

IJ-M

111

ValiM

MCflMldl

IO-»l

ft >at UDVt '***> «tKl«*.«« 1

lit Oacr 111

ij-n

l«l

iS^JHii"

HOME tm r.r***«»<>

Ex( npt

' Ancap Fund. Inc. (J) D dtv. 0 T

, Delaware Group

n riiv n T

Ltmited Term

Ijluaiiiflil-Fund (Jl..

* MFS Fund (J)

int.

c int. L T

^ Morgan SUnley fund (J)

^ Washington Hutual

Punrt (A\

B div. L

M

H

T

n

div. T

T

, Growth Fund

nf flmcrjiiii LU- -

, Tonpleton Emerging

MArkPt<. Fiinri M)

div.

B div. J T

Paul Halmbacher

FarnHv Tryst fS) KO INC IHF (see 'iin

Puerto Hko Electric

"Power Authority NO NCOflE K I

11

If

11

i«

i»

u

..

II

loir'StlS.5" KlU-K.'i.iS'!.. !:l!»t'J,!'i?n.S:{ii""' "• K:U*Sli!i5i?S.»..». S!«:8{:ia-S'~. .

ioS'St'*' 83Ea*«!:. axm— . mJtmU^^ 1
, 1117

FIHAMCXAL DISCLOSURE REPORT (cont'd) Adelman, Lynn S. 09/09/97

Vra. ADDmONAL INFORMATION OR EXPLANATIONS (iwlkat« put of Report.)

My spouse is a beneficiary of the Paul Halmbacher Family Trust. This Trust Is

presently in probate and will probably be distributed within the next sixty days.

The Trust consists primarily of stocks.

IX. CERTTFICATION.

la complujia; wiib the provisions o( J8 US C { 4S3 and of Advisory Opuuon No 57 of the Advisory Conuoillef on Judicul

Activittcs. and lo liic t^cu of my koowlcdsc ii tbf umc aficr rusoruUc inquiry. I did not perform any adjudicaiory functioa in viy Imeaiion

dunoe ibc penod covered by thti rcpon ID wtiich I. my spouK. or my minor or dependent children tud a finaiKial uuercsl. » defined in

CaoDo 3C{3Kc). m the ouicome of such litictiioo

I certify dut all information given above (including iDformaiion penaining to my spouse and irimor or dcpendeiu children, if any) ii

Kxunie. inie, and complete lo ihc best of my knowledge and belief, and thai any information not reported was withheld because it mei

applicable BUtuiory provisioos permilimg noo disclosure

I father oenify chu eanied inoorac from outside employiociu and hoooraria and die accquancx of (tfts wluch have been rcponed arc

ID conplunoe whh ibe provisioBS of 5 U S.C.A. app 4. f SOI ci leq., S U.S.C. { 73S3 and ludicial Coofertocc RCol^tiOBiSiBM... ^U,^ (JiJiJbLlYJLA/\ D« lllllfl

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR PAILS TO FILE THIS REPORT MAY BE

SUBJECT TO CrVIL AND CRIMINAL SANCTIONS (5 U S.C. App. 4. i 104.)

PnjNO INSTRUCTIONS:

f<j^lii^<iri(iaU.«l) "i liVf«»!nil Ofan b Cammne on FinaflU Oj^ckiiaR

n;i:;^--^V :...- . V- •• Si , • .Sl*P.i*l.:' ....:,:.-- ••

•iKo«itS>D«Bi«le. Siftj^'.i^ •• .

4»a"i^;T>.c;iSri;'ri'J.ii •£...,-. i. :A
' 1118

FINANCIAL STATEMENtr

NET WORTH

GENERAL INFORMATION

Are any assets pledged?

Are you a defendant in any

suits or legal actions?

Have you ever taken

bankruptcy?

Liabilities

Cash on hand and in banks 10,000

U.S. Government Securitiesadd schedule None

Listed securities-add

schedule 877,000

Unlisted securities -

add schedule None

Accounts ( notes receivable 2,000

{Shepherd Express Newspaper!

Due from relatives and

friends NoiM

Due from others NoiM

Doubtful Hone

Real estate owned -

add schedule 400,000

Real estate mortgages

receivable 38,000

Autos and other

personal property 20,000

Cash value - life insurance None

Other assets-itemized

State Pension 175,000

Deferred Compensation 80,000

IRA 40,000

Spouses beneficial interest

in Paul Halmbachet Family

Trust and Estate of Dorothy

Halmbacher, presently in

probate

Total Assets

600,000

2,242,000

Notes payable to banks-secured

Notes payable to banks-unsecured

Notes payable to relatives

Notes payable to others

Accounts & bills due

Unpaid income tax

Other unpaid tax ( interest

Real estate mortgages payableadd schedule

Chattel mortgages and other

liens payable

Other debts

Total Liabilities

NET WORTH

CONTINGENT LIABZLZTIBS

2,242,000

None TOTAL LIABILITIES C

NET WORTH

2.242,000

2,242.060
1119

SCHEDULE 1 - MUTUAL FUNDS & SECURITIES

Amcap Fund $ 140,000

Delaware Group Value Fund 116,000

Growth Fund of America 156,000

Limited Term Municipal Fund 90,000

MFS Fund 107,000

Washington Mutual Investors Fund 150,000

Templeton Emerging Markets Fund 15,000

Morgan Stanley Asian Growth Fund 71,000

Puerto Rico Electric Power Authority 30,000

TOTAL S 877,000

REAL ESTATE SCHEDULE

Residence:

Waterford, Wisconsin $200,000

Office Building:

308 East Juneau Avenue, Milwaukee, WI 53202 $200,000

Total $400,000
1120

III. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for

"every lawyer, regardless of professional prominence or

professional workload, to find some time to participate in

serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances

and the amount of time devoted to each.

I do a substantial amount of pro bono work almost all of

which is designed to serve the disadvantaged. I spend about

20% of my professional time on cases which benefit the

disadvantaged. Many of the cases discussed previously ar«

of this type. For example, the case of Demmith v. Wig.

Judicial Conference, 166 His. 2d 649 (1992) benefitted all

indigent defendants charged with minor offenses. The

purpose of my efforts was to eliminate a bail schedule which

imposed money bail on poor people even when it was

unnecessary to ensure their return to court.

Similarly, the purpose of the case of Joni B., at al. v.

State, 202 Wis. 2d 1 (1996) was to ensure that, where

appropriate, courts can appoint lawyers for parents of

children who are subject to CHIPS proceedings. Such parents

are usually poor and otherwise disadvantaged. In both thm

Dewaith and Joni B. cases my work was volunteered.

I also do pro bono work in more ordinary cases. For

example, I recently represented a young man with AIDS in a

very difficult personal injury case largely because he

needed a lawyer. Similarly, I recently represented a high

school student who was wrongly denied a college scholarship

because of the negligence of the Milwaukee School District.

In both cases the work required far exceeded the potential

compensation. I took both cases because I thought I could

help ensure that justice was done.

I also encourage all the lawyers in my firm to do pro bono

work.

I have also tried to serve the disadvantaged as a

legislator. I have worked hard on such issues as child abua*

prevention and domestic abuse prevention which are important

to disadvantaged p>ersons. I have been involved in efforts
1121

to improva state health insurance programs. I have also

supported an effective Public Defender System in Wisconsin.

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?

Ho.

Is there a selection commission in your jurisdiction to

recommend candidates for nomination to the federal courts?

If so, did it recommend your nomination? Please describe

your experience in the entire judicial selection process,

from beginning to end (including the circumstances which led

to your nomination and interviews in which you

participated).

Yes, yes. In January, 1997, I learned that there would be a

vacancy in the Eastern District of Wisconsin. I applied for

the position. I was asked to submit an application to the

Wisconsin Federal Nominating Commission established by

Senators Kohl and Feingold. This Commission was chaired by

the Dean of the Marquette Law School and consisted of two

appointees by the State Bar and four by each of the

senators. I was asked to fill out a questionnaire and was

interviewed by the Commission. I was one of five candidates

recommended by the Commission. In addition, my

qualifications and background have been reviewed by the

Department of Justice, the Federal Bureau of Investigation,

and the American Bar Association.

4. Has anyone involved in the process of selecting you as a

judicial nominee discussed with you an specific case, legal

issue or question in a manner that could reasonably be

interpreted as asking how you would rule on such case, issue

or question? If so, please explain fully.

Mo.
1122

S. Please discuss your views on the following criticism

involving "judicial activism."

The role of the Federal judiciary within the Federal

government, and within society generally, has been subject

to increasing controversy in recent years. It has become

the target of both popular and academic criticism that

alleges that the judicial branch has usurped many of the

prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have

been said to include:

a. A tendency by the judiciary toward 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 rola of the courts is to adjudicate cases between

litigants. Courts are not legislatures, and they

should not legislate. As one who has served as a

legislator, I am sensitive to the differences between

the legislative and judicial functions. Judges ought

to resist each of the above-described tendencies toward

judicial activism. Judges should scrupulously respect

the limits of judicial power. The role of a judge ia

to decide cases correctly, based on the facts.
1123

I am also sansitlva to tho different duties of the

three branches of government because, as a lawyer, I

have worked on many cases involving separation of

powers issues. It is important for judges to pay

careful attention to the separation of powers

principle. This means that judges should understand

that policy-making is the province of the legislative

and executive branches of government, not the judicial

branch.

Moreover, judges must be sensitive to such doctrines as

standing, ripeness and abstention which serve the

function of keeping courts from resolving issues which

may not be properly before them. These doctrines

reflect the inportant proposition that District Courts

are courts of limited jurisdiction.

Because of my work as a legislator and my work as a

lawyer in cases involving conflicts between branches of

government, I have a highly developed sense of the

appropriate roles of the different branches of

government and particularly of the limited role of the

judicial branch.
1124

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (include any former names used.)

Charles Roberts Breyer

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

Home: San Francisco, CA

Office: Coblentz, Cahen, McCabe & Breyer

222 Keamy Street, 7th Floor

San Franasco, CA 94108

Date and Place of Birth.

November 3,1941; San Francisco, Califomia

Marital Status (include maiden name of wife, or hustiand's name).

List spouse's occupation, employer's name and business

address(es).

Married.

Spouse: Sydney Goldstein

Executive Director

City Arts & Lectures.

1415 Green Street

San Francisco, CA 94109

Education: List each college and law school you have attended,

including dates of attendance, degrees received, and dates degrees

vrare granted.

Colleges and

Law Schools Attended From To

Harvard College 1959 1963

Boalt Hall,

University of Califomia 1963 1966

Degree

Received

A.B. cum laude

in economics

(June 1963)

L.L.B. (June 1966)

-1-
1125

Employment Record: Ust (by year) all business or professional

corporations, companies, timis, or other enterprises, partnerships,

Institutions and organizations, nonprofit or otherwise. Including

firms, wHh which you were connected as an officer, director, partner,

proprietor, or employee since graduation from collage.

Employment:

Summer 1963

Playground Director

San Francisco Unified Sciiool District

San Francisco, California

Summer 1964

L^w Cleric

Lewis & Rouda

San Francisco, California

Summer 1965

Group Leader

Experiment in intemationai Living

Putney, Vermont

August 1966-Julv 1967

Law Cieric to Judge Oliver J. Carter

Ciiief Judge

U.S. DIstnct Court for the Northern District of California

Juiv 1967-SeDteml3er 1967

U.S. Army Reserve

Fort Ord, California

October 1967-Decemt)er 1967

Juvenile iHall Project

Legal Aid Society of San Francisco

December 1967-Auaust 1973

Assistant District Attorney

San Francisco District Attorney's Office

August 1973-November 1974

Assistant Special Prosecutor

Watergate Special Prosecution Force

Departnent of Justice, Wasiiington, D.C.
1126

December 1974 to December 1979

Jacobs, Sills & Coblentz

(now Coblentz, Cahen, McCabe & Breyer)

San Francisco, California

1979

Chief Assistant District Attomey

City and County of San Francisco

1980 to Present

Coblentz, Cahen, McCabe & Breyer

San Francisco, California

Board of Directors. Non-Profit Omanizations:

1977

Travelers Aid

1979

Spring Opera

1980

Friends of the San Francisco Public Library

1983-1985

Northern California Chapter of the American Civil Liberties Union

1986-1989

Lawyers Committee for Human Rights

1996-1997

Lawyers Committee for Human Rights, Advisory Council

1995-Present

San Francisco Conservation Corps
1127

7. Military Service: Have you had any military service? If so, give

particulars, including the dates, brancli of service, rank or rate, serial

number and type of discliarge received.

1966-1972—U.S. AmiyER 19858060

1966-1969—P.F.C.

1969-1972—Captain, Judge Advocate General's Corps.

Honorable Discharge

8. Honors and Awards: Ust any scholarships, fellowships, honorary

degrees, and honorary society membersnip« that you believe would

be of interest to the Committee.

I have received citations in connection with my services as Assistant

District Attorney and Assistant Special Prosecutor. I am also a Fellow of

the American College of Trial Lawyers, a recognition confened by my

peers in the practice of trial law. I was selected as a lawyers'

representative to the Judicial Conference of the Ninth Circuit from 1989 to

1991. in my youth I was an Eagle Scout and the recipient of the Harvard

College Hansen Award.

9. Bar Associations: List all bar associations, legal or Judicial-related

committees or conferences of which you are or have been a member

and give the titles and dates of any offices which you have held In

such groups.

American Bar Association, 197S to present.

San Francisco Bar Association, 1975 to present

Chaiiperson, Ethical Considerations in the Prosecution and Defense of

Criminal Cases (American Bar Association), 1976-1982.

Member, Advisory Committee to the United States District Court, Northern

District of Califomia. This committee, established by Act of Congress,

was appointed by the judges of the District Court to serve as an advisory

committee on the implementation of the 'Speedy Trial Act' (1975).

Member, Penal Reform Committee, San Francisco Bar Association,

(1970).

San Francisco Civil Investigative Grand Jury (1975).

San Francisco Juvenile Probation Commission (1996).

Co^hair, Special Bar Committee, San Francisco Bar Association,

investigation of San Francisco District Attorney's ofRce (1976).

American College of Trial Lawyers, Federal Rules of Criminal Procedure

Committee (1997).
1128

10. other Memberships: List all organizations to which you belong that

are active In lobbying before public bodies. Please list ail other

organizations to which you belong.

(a) Lobbying:

American Bar Association

American College of Trial Lawyers

State Bar of California

San Francisco Bar Association

(b) Other

Califomia Tennis Club (Copy of By-Laws attached as Exhibit A)

11. Court Admission: List all courts in which you have been admitted to

practice, with dates of admission and lapses If any such

memberships lapsed. Please explain the reason ror any lapse of

memt>erehip. Give the same Information for administrative l>odles

which require special admission to practice.

U.S. District Court for the Northem District of Califomia, 1966

U.S. District Court for the Central District of Califomia. 1980

U.S. District Court for the Southern District of Califomia, 1982

U.S. District Court for the Eastem District of Califomia, 1985

U.S. District Court for the District of Columbia, 1973

U.S. District Court for the District of Kansas, 1987

U.S. District Court for the Northem District of Illinois, 1985

U.S. District Court for the Southem District of New Yort<, 1988

U.S. District Court for the Northem Mariana Islands, 1986

U.S. Tax Court, 1978

U.S. Supreme Court, 1974

U.S. Court of Appeals for the Ninth Circuit, 1966

Califomia Supreme Court, 1966

12. Published Writings: List the tities, publishers, and dates of boolu,

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 ail

speeches by you and on issues involving constitutional law or legal

policy. If there were press reports about the speech, and they are

readily available to you, please supply them.

Over-crowding in the San Francisco County Jail published in the San

Francisco Bar Association Journal (1970). (Unable to locate a copy.)
1129

PUBLICATION DATE TITLE

San Francisco Chronicle 5/16«2 Condemning the U.S.

Justice System (Bool<

Review)

San Francisno Chronicle 9/12/82 A Country Lawyer's Fear

of Rejection (Bool<

Review)

San Francisco Chronicle 12/18/83 Two Versions of A

Lawyer's Art (Boole

Review)

San Francisco Chronicle 19R3 Legal Vidory At Nearly

Any Cost (Bool< Review)

San Francisco Chronicle 4/1/84 Constitutional 'Niceties'

Were Just Inconvenient

(Book Review)

San Frandsco Chronide 6/2/85 Flawed Study of a

Murderer (Book Review)

San Frandsco Chronide 7/30/89 The Power of Life and

Death (Book Review)

San Frandsco Chronide 12/3/89 A Pursuit of Justice

(Book Review)

San Francisco Chronide 2/25/90 A Supremely Pragmatic

Court (Book Review)

San Frandsco Chronicle 3/13/91 Medical Testimony with a

Novel View (Book

Review)

San Francisco Chronide 5/19/91

San Frandsco Chronide 12/1/91

'Chutzpah' is His Middle

Name (Book Review)

Washington's Power

Lawyer (Book Review)

San Frandsco Civil Investkiative Grand Juro

' Grand Jury Reports

' Grand Jury Reports

Grand Jury Reports

' Grand Jury Reports

1975

1975

1975

1975

The Office of the Mayor

San Frandsco Police

Department

Sheriffs Department

Strike Report

45 964 1694
1130

Grand Jury Reports 1975 Electronic Data

Processing

Grand Jury Reports 1975 The Art Commission

Grand Jury Reports 1975 San Francisco's l.egal

Services

Grand Jury Reports 1975 Minority Report on the

Office of ttie District

Attorney

Copies of the above-referenced materials are attached as Exhibit B.

13. Health: What Is the present state of your health? List the date of

your last physical examination.

Excellent. I^ay28,1997

14. Judicial Office: State (chronologically) any Judicial offices you have

held, whether such position was elected or appointed, and a

description of the Jurisdiction of each such court

None.

15. Citations: Ifyou 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 wnere 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 opinion.

Not Applicable.

16. Public Office: State (chronologically) any public offices you iuive

held, other than Judicial offices, Including the temw of service and

whether such positions were elected or appointed. State

(chronologically) any unsuccessful candidacies for elective public

office.

in 1975 I was appointed by the Presiding Judge of the Superior Court to

serve as a member of the San Francisco Civil Investigative Grand Jury.

We issued detailed reports on local govemmental operations, including

the County jail facilities, management of the Controlter's Office, and tfie

Public Health Service. The term of service was for one year.
1131

In 1994 I was appointed by Frank Jordan, Mayor of the City and County of

San Francisco to the Board of Directors of the San Francisco

Conservation Corps. My term of service is through 1998.

In 1996 I was appointed by the Mayor of San Francisco, upon the

recommendation of the San Francisco Superior Court, to the Juvenile

Probation Commission for a four-year term. I presently serve as the

President of the Commission. This Commission sets policy for the

administration of the Juvenile Justice System. The term or service is

March 1996 through January 15, 2000.

17. Legal Career

(a) Describe chronologically your law practice and experience

after graduation from law scttool 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;

August 1966-Julv 1967

Law Clerk to Judge Oliver J. Carter

Chief Jud^e

U.S. Distnct Court for the Northern District of Caiifomia

(2) whether you practiced alone and, if so, the addresses

and dates.

I have never practiced as a sole practitioner.

(3) the dates, names and addresses of law firms or offices,

companies or governmental agencies with which you

have been connected, and the nature of your connection

with each;

October 1967-December 1967

Juvenile Hall Project

Legal Aid Society of San Francisco

1663 Mission Street

San Francisco, Caiifomia 94103

I served as counsel to indigent juveniles at the Youth

Guidance Center in proceedings before Court

commissioners and Superior Court judges.
1132

December 1967-AuQU8t 1973

Assistant District Attorney

880 Bryant Street

San Francisco District Attorney's Office

San Francisco, Caiifbmla 94103

I served as trial counsel representing the State of California

in the prosecution of criminal offenses, both misdemeanors

and felonies. These offenses ranged from traffic ofiianses to

multiple homicides, for which the death penalty was

imposed. I tried over 50 felony jury trials and was certified

as a criminal law specialist by the State Bar of California.

August 1973-November 1974

Assistant Special Prosecutor

Watergate Special Prosecution Force

Department of Justice, Washington, D.C.

I was the second chair in the prosecution of the White

House 'plumbers' for violation of ttie civil rights of Dr. Louis

Fielding. I also conducted grand jury proceedings into illegal

wiretaps and illegal campaign contributions.

December 1974 to December 1979

Jacobs, Sills & Coblentz

(now Coblentz, Cahen, McCat>e & Breyer)

222 Keamy Street, 7th Floor

San Francisco, California

I joined the finn in December 1974, and became a partner in

1975. Since that date I have specialized in civil and criminal

complex litigation.

19ZS

Chief Assistant District Attorney

City and County of San Francisco

880 Bryant Street

San Francisco, California 94103

1980-Pre8ent

Coblentz, Cahen, McCabe & Breyer

222 Keamy Street, 7th Floor

San Francisco, California 94108
1133

(b) (1) What has been the general character of your law

practice, dividing It into periods with dates If its

character has changed over the year?

And

(2) Describe your typical former clients, and mention areas.

If any, in which you have specialized.

I have a general litigation practice specializing in the trial of

cases. From 1967 to 1974 as a prosecutor, I appeared in

court on a daily basis and was certified by the State Bar of

California as a criminal law specialist. Upon entering private

practice, I have represented defendants in criminal matters,

with an emphasis on *white collar* offenses. In civil matters,

I have tried a wide variety of cases including matters relating

to construction defects, trusts and estates, securities,

entertainment law and real estate. I have no typical' client.

My clientele ranges from private individuals to publicly-held

corporations and financial institutions.

(c) (1) Did you appear In court frequently, occasionally, or not

at all? If the frequency of your appearances In court

varied, describe each such variance, ghring date.

I have appeared in court frequently throughout my practice.

As an Assistant District Attorney, I appeared in court daily.

As a private practitioner, I appear at least once a week, and

more often if I am in trial.

(2) What percentage of these appearances were in:

(a) federal courts: 60%

lb) state courts of record: 30%

(c) other courts: 10%

(3) What percentage of your litigation was:

IS civil: 50%

criminal: 50%

(4) State the number of cases in courts of record you tried

to verdict or Judgment (rather than settled), indicating

whether you were sole counsel, chief counsel, or

associate counsel.

I have tried t)etween 75 to 100 Jury trials as an Assistant

District Attorney serving as sole counsel. As a private

practitioner, t have tried numerous cases along with cocounsel.

,10.
1134

(S) What percentage of these trial were:

(a) jury: (Approximately) 75%

(b) non-jury: 25%

18. Litigation: IJescribe the ten most significant litigated matters which

you personally handled. Give the citations, if the cases were

reported, and the doclcet number and date If unreported. Ghre a

capsule summary of the sulistance 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 numbere of cocounsel and of principal counsel for each of the other parties.

United States v. John P. Ehriichman. et a!.. 546 F.2d 910 (D.C. Cir. 1977).

Judge: OPDOsinq Counsel:

Honorable Gerhard A. Geselt

(deceased)

William Snow Frates

4745 South West 76th Terrace

Miami, PL

305/666-2553

Co-Counsel:

William H. Merrill

(Address Unknown)

Henry L. Hecht

University of California

Boalt Hall, School of Law

Berkeley, CA

510/642-1787

As a Watergate Assistant Special Prosecutor. I tried high government

officials for conspiracy to violate the civil rights of Dr. Lewis FieMing

(psychiatrist to Daniel Elisberg, an author of the Pentagon PaoersV This

case, which involved the White House "Plumbers"—G. Gordon Lkidy,

Howard Hunt, David Young and Egil Krogh—and Special Assistant to the

President, Charles Colson—demonstrated that no purported "National

Security" defense excuses the violation of a citizen s nghts. The Grarxl

Jury proceedings lasted eight months and the trial lasted one month. I

was second chair. All defendants were convicted in July of 1974.

-11-
1136

There were, of course, numerous other acUvKies investigated in

connection with this matter, including the use of wiretaps on the press,

attempts to stop the publication of the Pentagon Papers, and improper

contacts by the White House with the judiciary in an effort to influence the

court. This case, in which the verdict was obtained before President

Nixon's resignation, brought to public view a multitude of govemmental

abuses of power.

People of the State of Califomia v. Sandoval. San Francisco Superior

Court Case Numbers 78058, 78331

Judge: Opposing Counsel:

Honorable Robert J. Drewes John Nash

(deceased) P.O. Box 22032

San Francisco, CA 94122

[No telephone number available]

In 1972 I prosecuted Enrique Sandoval on two counts of murder. The trial

lasted approximately four months with the jury returning verdicts of guilty

on both counts. Upon cornpletion of the penalty phase, the defendant

was sentenced to death. Tnis case was the first capital judgment

rendered by a San Francisco jury in more than 10 years. I was sole

?lovemment counsel. Subsequently, in People v. Anderson. 6 Cal. 3d 628

1972) the Califomia Supreme Court nullified all capital sentences.

Mr. Sandoval was then sentenced to life in imprisonment.

People of the State of Califomia v. Poole. San Francisco Superior Court

Case Number 82901

Judge: Opposing Counsel:

Honorable John Ertola (Ret) Joe R. McCray

433 Turk Street

San Francisco, CA 94102

415/775-3900

As an Assistant District Attorney, I prosecuted Junious Poole for the

murder of a police officer. The trial lasted approximately 2 months in

which the defense of diminished capacity was presented. After extensive

psychiatric testimony, this defense was rejected by the jury. The

defendant was sentenced to life imprisonment.

People of the State of Califomia v. Simmons. San Francisco Municipal

Court

No Judge Opposing Counsel:

Stanley J. Friedman

13255 San Pabto Avenue

San Pablo, CA 94806

510/215-7888

-12-
1136

As Chief Assistant District Attorney in 1979,1 presented evidence to tiie

Grand Jury of laundering of political contributions by tiie defendant This

investigation covered a six-month period, at which nme the Grand Jury

returned an indictment to which the defendant plead guilty. This was the

first case brought in San Francisco involving violation of the laws relating

to the reporting of political contributions.

United States v. David Weiss (N.D. Cal. 1988. Case Number CR 88

20047 WAi).

Judge: OoDOSina Counsel:

Honorable William A. Ingram Terry Lee

United States District Court Sana Clara District Attorney's Office

70 West Hedding Street

San Jose, CA 95110

408/299-7503

People of the State of California v. Wbiss (Santa Clara County Superior,

Case Number 603123).

Judge: Qpposina Counsel:

Honorable John S. Pasco William Larsen

Santa Clara Municipal Court Santa Clara District Attorney's Office

70 West Hedding Street

San Jose, CA 95110

408/299-7503

In 1988, Weiss, charged with income tax evasion, was the contractor for

the San Jose Transit Mall. He was the target of investigations conducted

by more than ten governmental agencies and had acquired an extremely

negative reputation in the community. The grand jury investiqation was

two years in duration and the trial lasted several months. Weiss was

acquitted because-, in my opinion, the jury followed the law and did not

permit the community's feelings to influence the verdict. In the companion

state cases, after lengthy motions, there was a dismissal of the principal

charges by the District Attorney.

Donna L. Whitnev. et al. v. David W. Mitchell, et al.. State of Minnesota,

County of Hennepin, Court File No. 89-15980

Judge: Opposing Counsel:

Honorable Thomas H. Carey Hert)ert Stem

Judge of the District Court David Stone

for Hennepin County Stem & Greent>erg

75 Livingston Avenue

Roseland, NJ 07068

201/535-1900

-13-
1137

Richard G. Wilson

Maslon, Edelman, Borman & Brand

3300 Nonvest Center

MInneapoiis, MN 55402

612/672-8200

This legal malpractice matter involved a claim in excess of fifty million

dollars. Pre-trial matters consumed many months, including summary

adjudication and motions. The court followed the unusual procedure of

requiring counsel to preview their opening statements before "opposing'

counsel and clients. Subsequent to this presentation, the matter settl^.

Estate of Elvis Presley v. Col. Tom Parker. Court Labor Commissioner,

State of California, Case Number 4-62.

0pp9$ing Cpun^l:

Edmund S. Schafter

1801 Century Park E., Ste. 2222

Los Angeles, CA 90067

310/522-1707

Co-Counsel:

L. Peter Parcher

Parcher, Hayes & Liebman

500 Fifth Avenue

New York, NY 10010

212/382-0200

I was retained by the Presley Estate to bring this case against the late

artist's unlicensed manager, requiring disgorgement of all fees received

during the manager's representation of the artist. The case incorporated

the doctrine set forth in Buchwald v. Katz 8 Cal.3d 493 (1972), in which I

participated on behalf of the Jefferson Airplane once the case was

remanded for trial. These cases protected the rights of artists who are

often ill-equipped to exercise control over their commercial benefits. I was

co-counsel with L Peter Parcher in these matters which ultimately settled

without a hearing.

-14-
1188

Max Sobel Wholesale Liquors v. Commissioner of Internal Revenue 630

F.2d 670 (9th Cir. 1980) C.J. Choy, Tang and D.J. Reed.

United States Court of Appeals for Opposing Counsel:

the Ninth Circuit

Edward B. Simpson

Internal Revenue Service

160 Spear Street, 9th Fl.

San Francisco, CA 94105

415/744-9208

My client included the cost of promotional merchandise (extra t>ottles of

liquor) in the cost of goods sold although the sale of this promotional

merchandise was in violation of state liquor laws. The 9tn Circuit upheld

the tax court's ruling that the Revenue Code is neutral in its application of

accounting practices. Thus, even If the sale of the promotional

merchandise was illegal, it was not for the taxing authorities to attempt

either directly or indirectly to enforce state laws whi<^ are criminal in

nature. I served as trial counsel with my tax partner in the tax court in a

two-day trial and as the advocate t>efore the 9th Circuit

United States v. Harris. (N.D. Cal. 1991, Case Number CR 90-0456 CAL).

Jgdgg: Opposing Counsel:

Honorable Charies A. Legge Scott McKay

United States District Court Department of Justice

Northem District of California 950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

202/514-2000

Co-Counsel:

Robert P. Feldman

• Wilson, Sonsini, et al.

650 Page Mill Road

Palo/Mto,CA 94304

415/493-9300

JeffChanIn

Keker & Van Nest

710 Sansome Street

San Frandsco, CA 94111-1704

415/391-5400

My client, Ronald Schultz, was accused of bribing a foreign official in an

effort to obtain a contract for telephone equipment in violation of the

-15-
1139

Foreign Corrupt Practices Act. The significance of this case lies in the

degree of preparation required in order to defend against a two-year

govemniental investigation spanning three continents. After a three-week

presentation by the Government of its case in chief, the Court directed

verdicts of acquittal as to all defendants.

People of Micronesia. Inc. et al. v. Continental Airlines. Inc.. et al. U.S.

District Court for the Northern Mariana Islands, Civil Action No. 85-0002.

Judge: Qpoosina Counsel:

Honorable Alfred Laureta Peter Donnici

Saipan, CNMI Dennis Kenivin

Donnici, Kenvin & Donnici

One Post Street, Suite 2450

San Francisco, CA 94104-5228

415/986-8881

Co-Counsel:

Donald C. Williams

Carismith, Wichman, Case, Mukal

and Ichiki

P.O. Box 241 CHRB

Saipan, CNMI 96950

671/322-3455/56

In 1985, a default was entered against Continental Airlines based upon a

complaint seeking more than fifty million dollars in damages. I was

retained for the purpose of seeking relief from the default Our motion to

set aside the default required two extensive hearings before the Court

over a six month period. Prior to the Court's ruling on our motion, the

matter was settled.

19. Legal Activities.' Describe the most significant legal activities you

have pursued, Including significant litigation which did not progress

to trial or legal mattere that did not involve litigation. Describe the

nature of your participation in this question, pTease omit any

information protected by the attorney-client privilege (unless the

privilege has been waived).

I have represented clients on numerous occasions who were under

investigation for alleged criminal activities. Many of these matters did not

result in indictment.

In addition to representing clients, I believe that my teaching is of some

significance in serving the legal community. Fifteen years ago. along with

two of my colleagues, developed a course for lawyers on the subject of

-16-
1140

trial preparation. This course, under the auspices of the California

Continuing Education of the Bar, has been given every other year since its

inception. We present our program which is entitled "Preparing a Case for

Trial in the Last One Hundred Days" throughout Northern Caliromia.

I also have participated in panel discussions under the auspices of the

Practicing Law Institute, Hastings College of Trial Advocacy, Harvard Law

School Evidence Project and the California Association of Business Trial

Lawyers. All these services were provided on a Q[0 bono basis.

-17-
1141

II FINANCIAL DATA AND CONFLICT OF INTEREST fPUBLia

1. List sources, amounts and dates of all anticipated receipts from

deferred Income arrangements, stock, options, uncompleted

contracts and other future benefits wfilcn you expect to derive from

previous business relationships, professional services, firm

memberehips, former employere, clients, or customere. Please

describe the arrangements you have made to be compensated In the

future for any financial or business interest

See attached Exhibit C.

2. Explain how you will resohre any potential conflict of interest,

including the procedure you will (oilow in determining these areas of

concern. Identify the categories of litigation and financial

arrangements that are lli(eTy to present potential conflicts-of-interest

during your Initial service in the position to which you have been

nominated.

I believe a full disclosure to litigants and their counsel of any relationship,

business or othenvise, should be made at the first available opportunity. I

would follow the procedure for resolving potential conflicts set forth in the

Canon of Ethics and applicable judicial procedures. I would not hear

matters involving my law firm.

3. Do you have any plans, commitments, or agreements to pureue

outside employment, with or without compensation, during your

service with court? if so, explain.

None.

List sources and amounts of all income received during the calendar

year preceding your nomination and for the current calendar year,

including all salaries, fees, dividends, Interest, gifts, rents, royalties,

patents, honoraria, and other items exceeding $500 or more, (if you

prefer to do so, copies of the financial disclosure report, required by

the Ethics in Government Act of 1978, may be substituted here.)

See attached Exhibit D.

Please complete the attached financial net worth statement in detail

(add schedules called for).

See attached Exhibit E.

-18-

45-964 98-37
1142

Have you ever held a position or played a role In a political

campaign? If so, please Identify the particulars of the campaign,

including the candidate, dates of the campaign, your title and

responsibilities.

No.

-19-
1143

III GENERAL fPUBLia

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." Descrll>e what you have done to hilfili these

responsibilities, listing specific instances and the amount of time

devoted to each.

I am presently on the Board of Directors of the San Francisco

Conservation Corps and provide legal services to that organization.

The San Francisco Conservation Corps is a non-profit job training and

education program serving youth ages 12-24. Program participants,

called Corpsmembers anflf Junior Corpsmembers, develop job skills,

academic and leadership abilities, and environmental awareness as they

serve the diverse communities of San Francisco through their work on a

variety of education, conservation and community service projects. These

individuals also participate in education programs which include academic

enrichment studies, leadership development, GED preparation for adults,

environmental education, and computer training.

In 1996 I was appointed by the Mayor of San Francisco, upon the

recommendation of the San Francisco Superior Court, to the Juvenile

Probation Commission for a four-year term. I presently sen/e as the

President of the Commission. This Commission sets policy for the

administration of the Juvenile Justice System, which addresses the

problems of disadvantaged youth.

2. The American Bar Association's Commentary to Its Code of Judicial

Conduct states that It Is Inappropriate for a Judge to hold

membership In any organization that Invidiously discriminates on

the basis of race, sex, or religion. Do you currently belong, or have

you belonged, to any organization which discriminates—^mrough

either formal membership reauirements or the practical

Implementation of membership policies? If so, list, wKh dates of

membership. What you have done to try to change these policies?

In 1967,1 joined a San Francisco social dub known as "The Family* as a

participant in their performing arts (singing) section. In the late 19808,1

advocated a change in the gender discrimination policy. Unfortunately,

this policy was not discontinued, and I resigned in 1990.

3. Is there a selection commission in your Jurisdiction to recommend

candidates for nomination to the federal courts? If so, did It

recommend your nomination? Please describe your experience In

the entire Judicial selection process, from beginning to end

(including the circumstances which led to your nomination and

Interviews in which you participated).

•SO-
1144

Senator Dianne Feinstein established a Judicial Selection Commission to

interview candidates for thiis position. I have been interviewed by a sut>-

committee of two members, and then by the full commission on two

separate occasions. I understand that my name was forwarded to

Senator Feinstein in 1994 and again this year for her consideration. Upon

the foHA/ardlng of my name on both occasions, I was interviewed by

Senator Feinstein. After my name was fonwarded to the President, I was

interviewed by the Department of Justice, the Federal Bureau of

Investigation, and the Standing Committee on Federal Judiciary of the

American Bar Association.

Has anyone Involved In the process of selecting you as a judicial

nominee discussed with you any specific case, legal issue or

question In the manner that could reasonably be Interpreted as

asking how you would rule on such case, issue, or question? If so,

please explain fully.

No.

Please discuss your views on the following criticisni Involving

"Judicial activism."

The role of the Federal Judiciary within the Federal government, and

within society generally, has become tiie subject ofIncreasing

controversy in recent years. It has liecome the target of both

Kopuiar and academic criticism that alleges that the Judicial branch

as usurped many of the prerogatives of other branches and levels

of government

(a) A tendency by the judiciary toward problem-solution rather

than grievance-resolution?

(b) A tendency by the judiciary to employ the individual plaintiff

as a vehicle for the imposition of rar-reaching orders

extending to broad classes of Individuals;

(c) A tendency by the Judlciaiy to Impose broad, affirmative duties

upon governments and society;

(d) A tendency by the judiciary toward loosening Jurisdicflonal

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

overeight responsibilities.

I believe that the judge's job is to apply and to uphold the law, following

the Constitution, the statutes as written by Congress, and applicable rules

and regulations—all as Interpreted by governing precedent. This latter

role is the role the Constitution foresees for a judge; It is the role that he or

she promises to play in the oath of office. A judge ^Ifllls this role by

discharging his or her judicial duties with integrity and objectivity.

-21-
1146

I also believe that a judge should Interpret statutes, apply case law, and

administer the law in individual cases, with an eye to the basic purposes

of the law—Congress's ultimate purpose in respect to statutes; and the

basic purpose of a precedent or rule or regulation as well.

-22-
1146

CALIFORNIA

TENNIS

CLUB

BY- LAWS

Founded in 1884
1147

ARTICLl I

NAME AND PURPOSE

SECI'ION 1. Name and Purpose.

The corporation shall be known as the California Tennis Club, hereinafter referred to as "the Club." The purpose of the Club is to promote

the game of Unnis by providing tennis and social facilities principally

for its Members.

SECTION 2. Non-Profit.

The Club is a non-profit corporation organized under the Non-Profit

Corporation Law of the Sute of California.

ARTICLE II

MEMBERSHIP

SECTION 1. ClassidcaUon.

Membership of the Club shall consist of the following classifications:

A. REGULAR MEMBERS. Regular Members are those men and women,

age eighteen (18) or over (excluding Junior Members), who are

admitted into Regular Membership in the Club. The total number

of Regular Members shall not exceed four hundred seventy-five

(475); however, a marginal temporary increase in said number resulting from reinstatement to Regular Membership of Non-Resident

Members a» provided in these By-laws may be allowed at the

discretion of the Board of Directors. A Regular Member shall pay

such initiation fee, dues, other charges and assessments as may be

esublished for Regular Members from time to time by the Board of

Directors.

B. REGULAR/I MEMBERS. The toul number of Regular/I Members

shall not exceed twenty-five (25). Regular/I Members are entitled

to full Membership privileges, including voting rights, except they

may play tennis at the Club only eighteen (18) times In any calen" -

dar year. Unlike Social Members, however, Regular/I Members

may play tennis without being guests of Regular Members (or other

Regular/I Members) and may bring their own guests. Dues in this

category shall be set midway between Regular Membership dues

and Social Membership dues. In addition, a Regular/I Member

shall pay such other charges and assessments as may be established for Regular/1 Members from time to time by the Board of

Directors.

A Regular Member in good standing may, at any time and for any

reason, request transfer to Regular/I Membership status by giving

a written request to the Board of Directors. Provided that there

are fewer than twenty-five (25) Regular/I Members at the time,

the Board shall immediately grant the request. A Regular Member

Bylaws
1148

making luch transfer must remain in Regular/I sutus for at least

one year. Thereafur, said Member may request the Board of

Directors to reinstate him or her to Regular Memi>ership status.

Said Member shall not be required to malce a formal reapplication

nor shall said Member be required to pay any additional initiation

fee. Provided that said Member is in good standing at the time of

requesting reinstatement, said Member shall be immediately readmitted as a Regular Member or, if there are no openings for

additional Regular Members at that time, the name of said Member

shall b« immediately placed on the list of those waiting to be

admitted as Regular Members as is provided in Subsection 2(G} of

this Article II.

C. SPECIAL SENIOR PENDING VACANCY. Individuals accepted to

Regular Membership in the Club for whom openings are not available may elect to become a Special Senior Pending Vacancy while

awaiting an opening. The total number of Special Seniors Pending

Vacancy shall not exceed twenty-five (25). Members in this category are entitled to full Social Membership privileges, including

voting rights, and to use of the courts during specific limited

hours of play as set by the Board of Directors. Members in this

category who violate the time limiutions on playing privileges shall

suffer immediate expulsion from the Club and forfeiture of their

Membership. Individuals accepting Membership in this category

shall pay one-half the initiation fee then prevailing for Regiilar

Membership and their dues shall be set midway between Regular

Membership dues and Social Membership dues. At the time the

Individual becomes a Regular Member, he or she must pay the

remaining one-half of said initiation fee. In addition. Members In

this category shall pay such other charges and assespip^pts as may

be esublished for this category from time to time by the Board c^

Directors. At the time the Individual becomes a Regular Member,

he or she must pay the remaining one-half of said initiation fee.

In addition. Members in this category^ shall pay such other charges

and assessmente as may be estebllsh^4> for this category from time

to time by the Board of Directors. When an opening in Regular

Membership occurs for a Special Senior Pending Vacancy, such

Member must become a Regular Member by piaying the balance due

of his or her initiation fee within a period of thirty (30) days

after receipt of written notice from the Club of such opening or

his or her Membership in the Club shall automatically be terminated.

0. JUNIOR MEMBERS. Junior Members are those, men and women who

have not atteined the age of twenty-five (2S>,jCiexcluding Regular

Members who elected to apply for Regular Meiiobershlp after attaining the age of eighteen (18)). No application for Junior Membership may be made after the eighteenth (18th) birthday of the

applicant and the total number of Junior Members shall not exceed

one hundred eighty-five (185). Junior Members shall pay such

initiation fee, dues, other charges and assessments as may be

estebllshed for Junior Members from time to time by the Board of

Directors. Upon atuining the age of twenty-five (25), Junior

Members shall be given the opportunity to apply to become Regular

Members as provided hereinbelow in this Subsection 1(D); proB^Laws
1149

vided, however, that any Junior Member may apply to become a

Regular Member at any time after attaining the age of eighteen

(18) and prior to reaching the age of twentyfive (25) by giving

written notice to the Meii^ership Committee. Promptly after receipt of such notice, the Membership Committee shall send to the

applicant instructions for malcing an application for Regular Membership status. Such application shall be governed by the procedures and requirements set forth below in Subsections 1(0)(2)

through 1(D)(S) of this ArUcle 11.

The procedures and requirements for a change in status from a

lunior Member to a Regular Member are as follows:

1. The Club shall send %nitten notice to each Junior Member

promptly after the twenty-fifth (2Sth) birthday of such Member. This notice shall give the Junior Member ninety (90)

days to request and complete an application for change in

status to Regular Membership. In the event that a completed

application for Regular Membership is not received by the

Meinbershi;^ Committee from such Junior Member within said

ninety (90) day period (or such longer period as the Membership Committee may approve upon a showing of good cause),

such Member's Membership In the Club and his or her eligibility to advance to Regular Membership from Junior Member

status shall automatically be terminated.

2. Upon timely filing of a completed application with the Membership Committee, the application shall be processed in the same

manner and using the same criteria as for all other applications for Regular Membership status in accordance with the

admission procedures set forth In Subsections 2(B) through

2(r) of this ArUcle II.

3. Within thirty (30) days afur notice of approval of his or her

application by the Board of Directors, the applicant shall

make payment of at least twenty percent (20\) of the difference between the then current initiation fee for Regular Members and the amount of the initiation fee paid by the applicant to become a Junior Member. If no opening is then available In the Regular Membership, the applicant will be positioned on the Regular Membership waiting list In such place

and in such order of advancement as shall be established by

resolutions duly adopted by the Board of Directors^.

4. While waiting an opening to be admitted as a Regular Member,

the applicant shall have the status of a Junior Pending Vacancy and shall pay all dues, charges and assessments chargeable to Regular Membership, and shall be entitled to all

privileges of Regular Membership except that of voting In

Club elections.

5. Upon advancement of the applicant to Regular Membership,

the balance of the required initiation fee shall be Immediately

due and payable. At the Member's request, the balance due

By-Laws
1150

may be paid in equal monthly installments over a period of up

to four (4) years; provided, however, that If the Member

elects to pay the balance due over a two (2) year period, the

total payment required shall equal one hundred twenty percent (120%) of the balance due; if the Member elects to pay

the balance due over a three (3) year period, the total payment required shall equal one hundred thirty percent (130%)

of the balance due; and If the Member elects to pay the balance due over a four (4) year period, the total payment required shall equal one hundred forty percent (14(A) of the

balance due.

SOCIAL MEMBERS. Social Members are entitled to all Membership

privileges except use of the tennis-playing facilities (which they

may use only as guests of Members who have tennis-playing privileges). A Social Member shall be a fully qualified voting Member

of the Club and entitled to election to the Board of Directors, in

accordance with these ByLaws. A Social Member shall pay such

initiation fee, dues, other charges and assessments as may be

established for Social Members from time to time by the Board of

Directors. The number of Social Members shall not exceed ninetyfive (9S) although the Board of Directors shall have authority to

Increase the limit temporarily in order to reinstate Non-Resident or

Inactive Social Members, or to accommodate Regular or Regular/I

Members desirous of changing to Social Membership Status.

A Regular Member or Regular/I Member in good standing may, at

any time and for any reason, request transfer from Regular or

Regular/I Membership to Social Membership and shall be entitled to

relnstateroent to such Member's former Membership category as

provided below in this section 1(E).

Should any Social Member, other th^n one who was a Regular v

Regular/I Member immediately before ;becoming a Social Member,

transfer to Regular Membership, the Uditional initiation fee shall

consist of the difference between the Social Member's original

initiation fee and the Regular Membership initiation fee in existence

at the time of transfer.

Any Social Member who was a Regular or Regular/I Member immediately before becoming a Social Member and who has remained in

Social Membership status for at least one year may thereafter

request reinstatement to his or her former MemberslUp category by

giving a vn-itten request for reinstatement to .the Board of Directors. Such Member shall not be required to make a formal reapplicatlon nor shall said Member be required to pay any additional

initiation fee. l>rovided that said Member is in good standing at

the time of requesting reinstatement, said Member shall be Iminediately readmitted as a Regular or Regular/I Member or, if there

are no openings for additional Regular or Regular/I Members at

ttiat time, the name of said Member shall be immediately placed on

the list of those waiting to be admitted as Regular or Regular/I

Members as is provided in Subsection 2(G) of this Article II.

By-Laws
1151

P. NON-RESIDENT MEMBERS. A Regular, Regular/I. or Social Member, whose principal residence is at least one hundred (100) miles

away from the Club, may elect to become a Non-Resident Member

by giving a written notice to the Board of Directors explaining the

reason for the requested change in Membership status. Such

Non-Resident Members shall pay dues of not less than fifty percent

(50%) of the dues in their former Membership category hnd such

other charges and assessments as may be established for NonResident Members from time to time by the Board of Directors.

Non-Resident Members shall be entitled to all privileges of their

former Membership classification with the exception of voting.

If the principal residence of a Non-Resident Member changes so

that said Non-Resident Member no longer qualifies for NonResident Membership, said Non-Resident Member shall so notify the

Board of Directors within thirty (30) days of such change. Any

Non-Resident Member falling to notify the Board of such change in

accordance with this provision shall be subject to having his or

her MembersMp in the Club revoked. Effective as of the date of

such change, 'the Non-Resident Member shall be required to pay

this full amount of the dues and other charges payable by individuals in the category of Membership to which the Non-Resident

Member will be returning.

Non-Resident Members in good standing will immediately be eligible

for reinstatement to their former Membership category upon giving

the required written notice of change of principal residence to the

Board of Directors and approval of reinstatement by the Board of

Directors. I^vided said Member is in good standing at the time

he or she makes a request for reinstatement, said Member shall be

immediately readmitted to Membership in his or her former Membership category. However, if there are no openings in such Membership category at that time and the Board of Directors does not

exercise its discretion to increase temporarily the maximum allowed

number of Members in such category under Subsections 1(A) or

1(E) of this Article, the Board shall place the Member In the

temporary status of Non-Resident Member Pending Change of

Status to Regular, Regular/I or Social Membership, and the name

of said Member shall then have priority on the waiting list over all

other applicants for the Membership category to which said Member

is returning. During any such period of temporary status, said

Member shall pay the dues, charges and assessments payable by a

Member in the Membership category to which he or she Is waiting

to return; and said Member shall have all of the privileges of a

Member in such Membership category.

G. INACTIVE MEMBERS. The Board of Directors has the discreUon

to grant Inactive Member status to any Member of the Club for any

reason deemed appropriate by the Board. If Inactive Member

status is granted, the Member so affected must remain in said

status for a minimum of six (6) months. An Inactive Member shall

have all of the privileges of such Member's former Membership

category except tennis-playing privileges. An Inactive Member

shall pay dues which shall be not less than fifty percent (S0\) of

Bylaws
1152

the dues in such Member's former category, and such other charges and assessments as nuy be established for Inactive Members

from lime to time by the Board of Directors.

Inactive Members may be reinstated to the Membership category

held tit the time of being granted Inactive Member status upon

written application to and approval by the Board of Directors, but

only as openings occur within the specified limits of the appropriate Membership category. If there is no opening at the time for

an additional Member in the Membership category to which an

Inactive Member is eligible to return, the name of said Member

shall be immediately placed on the list of those waiting to be

admitted Into such Membership category as Is provided in Subsection 2(G) of this Article. II

H. SPECIAL MEMBERS. The Board of Directors shall have authority

to grant Special Membership to outstanding amateur or professional

tennis players, high government officials, foreign diplomats, or

distinguished public figures. Except for outstanding tennis players, no Special Membership shall be available to permanent residents of the nine-county San Trancisco Bay Area.

Each Special Membership shall be granted for a period not to

exceed one year, subject to annual renewal on review and approval

by the Board of Directors. Payment of the initiation fee or a portion thereof may be waived by the Board of Directors, but the

dues of a Regular Member (and such other charges and assessments as may be established for Special Members from time to time

by the Board of Directors) shall be paid by each Special Member

throughout the term of such Membership.

I. LIFE MEMBERS. Any Member who has been^a dues-paying Member for fifty (50) years may elect to ^convert to this Membership

Status. Life Members shall not have* to pay dues, nor shall they

be subject to any Board of Directors impose^ charges or tasoM'

menu. Life Members shall be voting Members and shall have full

tennis-playing privileges.

SECTION 2. Admission Procedures.

A. Tor an applicant to receive an application form, a vnittcn request

must be made to the Membership Committee by two (2) Club Members in good standing.

B. When the application form has been issued, completed by the

applicant, and filed with the Membership Committee, the name of

the applicant shall be posted on the Club bulletin board for a

period of thirty (30) days and transmitted in writing to the Club

Membership.

C. Should the Board of Directors receive from ten (10) or more Regular, Regular/I or Social Members signed and stated obiectlons to

the application within thirty (30) days after posting, (he application will be rejected. The applicant may reapply on approval of

By^Laws
1153

the Board of Directors, provided that an Interval of at least twelve

(12) months shall have elapsed since the original rejection.

O. Afur the thirty (30) day posting period, provided that the application has not been rejected as provided in Section 2(C) above,

the Membership Committee shall review the application, interview

the applicant and submit its recommendation to the Board off Directors.

C. Should the recommendation of the Membership Committee be affirmative, the Board of Directors shall vote upon the application at lu

next regular meeting. Should two (2) or more Directors vote

negatively on the application, the application will be denied and

may not be reconsidered before an Interval of twelve (12) months.

P. Should the vote of the Board of Directors be affirmative, the name

of the applicant %iriU be placed In Its proper sequence on the

admission waiting list.

G. Regular/I Members eligible to be readmitted to Regular Membership. Social Members eligible to be readmitted to Regular or Regular/I Membership and Inactive Members eligible to be readmitted to

Regular. Regular/1 or Social Membership as provided in Section 1

of this Article II, for whom openings are not available in the appropriate Membership category when such Member becomes eligible

to be readmitted, shall be placed on the appropriate waiting list

above (and shall thereby have priority over) all Non-Member

Applicanu on said list. In addition, any Non-Resident Members

eligible to be readmitted to Sodal. Regular or Regular/I Membership shall at all times be placed or remain above and thereby have

priority over all other Members then or thereafter placed upon the

waiting list for such Member's former Membership category. As

between Sodai Members, Regular/E Members- and Inactive: klembers

whose names are placed on the waiting list for an opening in any

Membership- category, priority on the waiting list shall be given to

the Member making the. earliest request or application for reinstatement as determined by the date of recejpt thereof by the

Board of Directors. Like%nse, as between two (2) or more NonResldent Members, priority at the top of the appropriate waiting

list shall be given to the Non-Resident Member whose notification

of change of principal residence Is first received by the Board of

Directors.

SECTION 3. InitiaUon Fees.

Before becoming a Member in good standing entitled to the privileges of

the Club, the newly elected Member must pay the required initiation fee

within thirty (30) days after notice of election to Membership has been

mailed to the post office address entered on the application form.

Exception: Junior Members advancing to Regular Membership may

arrange for insullment payments as stipulated in Subsection 1(D) of

this Article II.

Bj^Laws
1154

SECTION 4. Membership Rights.

Membership in the Club shall be non-proprietary. Upon a Member's

death or other termination of Membership, all rights of such Member

and/or his or her heirs shall terminate.

SECTION S. Disciplinary AcUon.

Any Member considered guilty of unbecoming or offensive conduct, or

dishonesty, or who fails to abide by Club rules and regulations, may be

requested by the Board of Directors by means of ragistered mail to

appear before the Board for a private discussion of the conduct prompting the request. The Member shall be notified of the conduct under

consideration and that he or she has the right to present any facts or

testimony by way of defeitse, excuse or mitigation of said conduct.

The aforementioned notice to the Member shall be given not less than

fifteen (IS) days prior to said discussion. Should the conduct or

attitude of such Member be considered intransigent or unacceptable, the

Board of Directors may, by majority vote, expel or suspend such Member and such action shall be final and without recourse on the part of

such Member.

ARTICLE III

FINANCIAL MATTERS

SECTION 1. Changes in Dues, Initiation Fees, and Other Charges.

The Board of Directors shall have, at all times, the power to increase

or decrease initiation fees, dues and other charges of all classes of

Membership and within any class of Membership, provided that at least

thirty (30) days' notice in writing of any Increase or decrease shall b«

given all Members. ,

The Board of Directors may also levy assessments to meet the requirements of the Club. The Members shall not be personally liable for such

assessments but if any Member fails to pay any assessment within the

time prescribed, his or her Membership shall automatically be forfeited

without further notice.

SECTION 2. Payment.

Monthly dues of all classes of Membership shall be payable in advance,

together with any Indebtedness Incurred during the previous month. If

payment of dues, fees, charges and other indebtedness is not made in

full on or before the twenty-first (21st) day of the month for which the

dues are billed, they shall become past due and the Member shall b«

informed in writing by the Club.

SECTION 3. Delinquencies.

A. If all indebtedness to the Club, including new charges and dues,

has not been paid by the fifteenth (15th) day of the month succeeding the past due month, the amount thereof shall become

8 Bylaws
1155

delinquent, and personal notice of the same must be given by the

Manager in writing to all delinquent Members and their names

posted at the Club; and If any Member shall not make payment

within ten (10) days after the receipt of such notice, such Member

shall be barred from use of the Club. Reinstatement at any time

within three (3) months thereafter may be made by the affirmative

vote of a majority of the Board of Directors and payment in full of

the amount due plus a ten percent (10%) penalty on the delinquent

amount. If payment in full of the delinquent amount does not

occur within said three-month period, such Memtwr's Membership

will be terminated.

Personal notice shall be deemed to have been given to any Member

when mailed by certified mail to the Member's last known address.

During the period the Member is barred from the use of the Club,

the delinquent Member shall be charged with monthly dues, other

charges and assessments and the applicable penalty.

B. The Board of Directors may, upon a showing of good cause,

extend, limit or deny credit to any Member or defer termination of

Membership of a delinquent Member for such time and under such

conditions as it deems appropriate.

ARTICLE IV

OBLIGATIONS AND PRIVILEGES

SECTION 1. Resignations.

Any Member who is not indebted to the Club may resign his or her

Membership. Members wishing to resign must so notify the Board in

vn-itlng. Should such written notification be received prior to the

twentieth (20th) day of the month, the resignation will become effective

at the end of that month on condition that any outstanding charges

must be paid by the resigning Member by the twenty-first (21st) day of

the following month. Resigning Members whose accounts are not cleared

by that date shall be subject to monthly dues until their account is

cleared; however, they shall not be entitled to any of the privileges of

Membership following the effective date of their resignation.

SECTION 2. ramlly Social Privileges.

The immediate household family of any Member shall be entitled to the

social privileges of the Club, but only when accompanied by such

Member.

SECTION 3. Tennis-Playing Guests.

A. Members with tennis-playing privileges may invite guests, not

exceeding three (3) in number at any one time, to play tennis

upon paying the prescribed fee for each guest and provided that

such guests play In the company of the host Member. No Individual may be a playing guest more than eighteen (18) times in any

calendar year.

By-Laws
1156

B. Members shall register their guests by name prior to playing.

('aHure to do so will result in a penalty equivalent of three (3)

times the prescribed guest fee, and repeated occurrences of such

failure shall be considered cause for disciplinary action by the

Board.

C. Tennis-playing privileges may be granted to non-resident guests

upon writun application initiated by a Member and approval of the

Board of Directors or the Club. These privileges shall entitle the

holder to the privileges of the Club for a period of one month.

Each such guest shall pay in advance 1-1/2 limes the Regular

Iktember monthly dues for all persons twenty-five (25) and over

and 1-1/2 times the Junior monthly dues for persons under the age

of twenty five (25). Renewal, extension, or reissue of these

privileges shall be subject to the approval of the Board of Directors, and shall In no event exceed six (6) months in any given

five (5) year period.

D. Members inviting guests or applying for guest privileges shall be

responsible for all debts to the Club incurred by their guests and

for all damage done by them.

E. The Board of Directors shall have the right to make special rules

for guests involved in tournament play. It shall likewise prescribe

the rules governing the inviUng of guests to the Club for social

purposes only.

SECTION 4. Compensation of a Member, Director, or Officer.

No Member, director, or officer shall receive any salary or compensation

from the Club for services or expenses except where authorized by the

Board of Directors in writing.

SECTION 5. Address Changes. .' >

All Members roust Immediately notify the Club of any change of address,

and failure to do so shall constitute a waiver of any right to notice

provided by these By-laws and rules of the Club.

ARTICLE V

DIRE(rrORS AND OmCERS:

POWERS, DUTIES, AND MEETINGS ;,V

SLCTION 1. General.

1'he management of the affairs of the Club shall be vested in a Board of

Directors consisting of nine (9) of its resident Members one (1) of

whom may be a Social Member. Three (3) Directors are to be elected

each year serving for three (3) years each. In addition .the.Board inay

delegate the day-to-day management of the Club to a Manager who shall

be an employee of the Club. The Club year for purposes of accounts,

reports and terms of office shall be the calendar year.

10 Bylaws
1157

SECTION 2. Powers.

The Board of Directors shall have all powers not inconsistent with the

laws of the State of California and the By-laws of the Club, to esubllsh

rules for Club and court use. and to control and manage the affairs

and property of the Club, subject, however, to the following restrictions:

A. The Board of Directors shall have no authority to subject the

property of the Club to any mortgage, lien, or other encumbrance

without first obtaining the approval of a majority of the voting

Members of the Club of the proposed action.

B. Even though no encumbrance is imposed on the Club, the Board of

Directors shall have no authority to subject the Club to an indebtedness or expenditure in excess of $25,000. except for maintenance

or resurfacing of tennis courts, without prior approval of a majority of the voting Members of the Club. The debt limit of (25,000

Is intended to be exclusive of indebtedness presently existing or

any remaining portion thereof.

C. The Board of Directors shall have no authority to acquire by purchase or otherwise any real property for an amount exceeding

$25,000. or to dispose of any real property of the Club for an

amount exceeding $1,000. unless such transaction has first been

approved by a majority of the voting Members of the Club.

D. The Board of Directors shall have no authority to liquidate or

distribute the assets of the Club, or to dissolve the Club, unless

at least eighty-five percent (85%) of the voting Members of the

Club have first approved such action.

SECTION 3. Duties.

A. The President shall:

1). preside at all meetings of the Board of Directors and of the

Club, shall call such meetings as are herein provided, shall

see that these By-laws and such rules and regulations as may

be adopted by the Board of Directors are enforced, shall supervise generally the affairs of the Club, and shall make an

annual report to the general Membership.

2). sign Jointly with the Secretary or Treasurer all contracts,

' bonds and other instruments in writing which have first been

approved by the Board of Directors.

3). shall appoint chairpersons of standing committees who shall be

Members of the Board, subject to confirmation by the Board

and shall be an ex-officio Member of said committees. Chairpersons of committees shall by Tebruary 1st of each year,

submit to the Board a list of their committee Members for

approval of the Board. In particular, the Membership Committee shall consist of not less than eight (8) Members, of

whom at least two (2) shall be Directors.

By-Laws 11
1158

B. The Vice President shaii perform all Che duties of the President in

the iatter's absence or inability to serve.

C. The SecreUry shall Iceep a record o( all proceedings of the Board

of Directors and of the Club. If both the President and the

Vice-President are absent, the SecreUry shall call the meeting to

order and a temporary chairperson shall be chosen.

D. The Treasurer shall have charge of the funds of the Club, and

shall be responsible for the keeping of proper records of all rccelpu and disbursemenu of the Club funds and proper accounu of

its assets, liabilities, expenses and income.

SECTION 4. Meetings.

A. The Board of Directors shall hold at least three (3) regular meetings each quarter. Regular or special meetings may be called at

any time on order of the President or two (2) Directors. Each

Director shall be given notice of such meeting at least one (1) day

prior to the day of the meeting, either orally or in writing. The

minutes of all Directors' meetings and all meetings of the Members,

on being read and approved, shall be conclusive on the question

of service of notice. Five (5) Directors shall constitute a quorum.

No action may be taken by the Board without a quorum and •

majority vote of those present shall be required for the Board to

take any action.

B. The Annual Meeting of the Club shall be held In November on a

date to be set by the Board of Directors. Twenty-five (25) Members entitled to vote shall constitute a auprum and a maiorlty vote

of those present shall be required for uie Membership to take any

action. : ,

ARTICLE Vl' •

NOMINATING COMMITTEE

SECTION 1. Selection. %

The Nominating Committee shall consist of five (5) voting Members.

The Chairperson shall be the most recent past President of the Club

who is not a Member of the Board of Directors!:.-The election of the

four (4) remaining members of the Nominating Committee shall be conducted In accordance with the following rules:

A. Any voting Member is eligible for election, provided that no Member may at the same time serve on the Board of Directors and the

Nominating Committee.

B. Nominating Committee Members shall serve for one (1) calendar

year, and are not eligible for re-election until after the lapse of

one (t) year from the year that they served on the Committee.

12 ^Laws
1159

^ C. Ncmlnations shall be made from the floor at the Annual Meeting.

If more than four (4) Members are nominated, voting shall be bv

secret ballot of all voting Members present at the meeting. Each

, voting Member may cast four (4) votes but may not cast more than

' one (1) vote for any one (1) candidate. The four (4) candidates

' receiving the largest number of votes shall be declared elected.

* Two (2) Judges of Election shall be appointed by the President to

count the ballots and announce the results thereof.

' D. Should any Member of the Nominating Committee cease to be a

'' Member of the Club, or should a vacancy in the Committee other-

' wise occur, prior to the completion of such Committee's duties as

herein provided, such vacancy shall be filled by appointment by

the Board of Directors.

SECTION 2. Responsibilities.

t

|r The Nominating Committee, prior to the Annual Meeting, shall invlu

: voting Members of the Club to submit recommendations for candidates

[I for the Board of Directors. Such recommendations may be submitted in

writing if the Member prefers. The Nominating Committee shall then

H submit a number of nominees at least equal to the number of vacancies

t on the Board of Directors to be filled for the ensuing calendar year.

H The names selected by the Nominating Committee shall be posted on the

t bulletin board of the Club at least three (3) weeks prior to the Annual

I Meeting. These names shall be designated as nominations of the Nominating Committee.

, ARTICLE VII

, ELECTIONS

SECTION 1. Board of Directors.

A ballot containing names of candidates selected by the Nominating

Committee shall be circulated by mail to the voting Members at least

three (3) weeks prior to the Annual Meeting, with a request that the

ballots be returned at least flve (S) days prior to the Annual Meeting.

Space shall be provided on the ballot for write-in candidates.

A. Two (2) Judges of Election shall be appointed by the President.

They shall count and certify the ballots, and report the resulu of

the election to the incumbent President, who shall publish the

results.

B. In case two (2) or more candidates shall have received an equal

number of votes, and all cannot be elected, selection shall be made

by secret ballot at the Annual Meeting.

C. Directors shall not be eligible for reelection until after a lapse of

one (1) year after the expiration of their term of office, except as

provided below. Vacancies occurring on the Board of Directors

from any cause other than expiration of a Director's term sliall be

filled by vote of the Board. In the event a Director resigns, or

By-Laws 13
1160

when for any reason a substitute Director is elected by the Board,

the substitution shall be for the unexpired term of the Oireclor

replaccd, and Directors selected in this manner .may be renoninated at the expiration of their term.

SECTION 2. Officers.

At the November meeting, the Board of Directors shall elect a President

from the Members of the Board who have one or two years remaining to

serve. Also before the Annual Meeting, and following the election of

the new President the six continuing Directors, the three outgoing

Directors and the three newly elected Directors shall elect a VicePresident, Secretary and Treasurer from among the Directors who will

be serving during the forthcoming year.

ARTICLE VIII

AMENDMENTS AND APPEALS

SECTION 1. Amendments.

A. Adoption.

Power to repeal or amend any of these By-laws and to adopt new

By-laws is delegated to the Board of Directors. This power shall

not be exercised in any case except upon three (3) weeks' vo-itten

notice mailed to each voting Member of the Club at his or her last

known address. Such notice shall briefly describe the subject

matter of any By-law intended to be repealed or adopted, and If It

Is intended to amend the By-laws, a brief description of the amendment. A copy of the existing By-law^ ^hall be forthwith posted

upon the bulletin board and made avaiUt^e to any voting Member

upon reauest. With respect to amendmems, a copy of the Bv-law

as it wiU read when amended shall also be posted on the bulletin

board and delivered to any voting Member upon request.

B. Objections.

If at least twenty-five (25) voting Members, before the meeting of

the Board of Directors at which these By-laws are.to be repealed,

adopted or amended, notify the President inr -vg^itlng that they

object to the repeal, adoption or amendment, these By-laws shall

not be repealed, adopted or amended except by majority vote of

the Members who vole in a mail ballot. Within twenty (20) days

after ihe objection is filed, ballots will be mailed to all voting

Members. The ballot shall contain the text of the challenged

By-Law changes; brief statements (less than 250 words) for and

against the changes to be written, respectively, by a proponent

and an opponent selected by the President; the deadline set by

the Board for return of the ballots (which shall be at least iweniy

(20) days after the ballot is mailed to the voting Members). Only

those ballots which are marked and returned to the President at

the Club by the specified deadline will be counted as voles in the

referendum. In the absence of such objection, Ihe Board of

14 . Bj^Laws
1161

Directors shall have the power, at said meeting, to repeal, adopt

or amend any By-laws described in the notice mailed to all voting

Members in accordance with such notice.

SECTION 2. Appeals.

The decision of the Board of Directors is final with respect to all batters within its power, including the interpretation of its rules and

By-laws, sublect, however, to an appeal of voting Members which meets

the following requirements: I

I

I A. The appeal shall be considered only if at least twenty-five (25) of

the voting Members shall file a written appeal with the President

within ten (10) days after the publication of the challenged decision of the-Board of Directors. If such an appeal is filed, the

Board of Directors shall submit the challenged decision to a referendum by mail of the Membership.

B. If two-thirds (2/3) of the voting members vote to reverse the

decision of the Board of Directors, the Board shall reverse the

decision in question. If less than two-thirds (2/3) vote to reverse

the decision, the decision shall stand.

By-Laws 15
1162

[EXCERPT]

COBLENTZ, CAHEN, McCABE & BREYER, LLP

AMENDED AND RESTATED

PARTNERSHIP AGREEMENT

AS OF NOVEMBER 9, 1995

VIII.

PAYMENTS TO A TERMrNATED PARTNER

8.1 (a) A 'Terminated Partner' shall mean any partner whose

Partnership Interest has been terminated, whether by withdrawal (Including disability),

expulsion or by operation of banluuptcy under Section VII above, death or retirement

and shall include the successors In interest of a deceased partner or In the case of a

professional corporation, the sole shereholder of eny corporate partner or the

successor in interest thereto.

nMMoa.NZ
1163

(b) A Terminated Partner shall not remove from the Partnership

promisee any Partnership property and shall promptly deliver to the Partnership all of

the Partnership property in his/her possession.

8.2 The Partnership's Profits and Losses for the portion of the fiscal year

in which a Terminated Partner terminates shall be determined on an interim closing of

the bool(s method on the date.tbe Partnership year closes with respect to the

Terminated Partner. In the event a Terminating Partner's date of termination Is other

than the last day of the month, the date upon which the Partnership shall close its

books with respect to the terminated partner shall be either (i) the last day of the

month which immediately precedes the month in which such termination occurs or

(ii) the actual date upon which the Terminated Partner's partnership interest

terminates, in the sole discretion of the partnership (or, in the case of that partner's

bankruptcy, the date of the bankruptcy filing) ('Valuation Date*). All Profits and

Losses shall be allocated to the capital accounts of the partners as though such

interim closing of the books constituted the end of the Partnership's fiscal year. For

purposes of the preceding sentence, the Partnership's Profits and Losses for such

period shall reflect as operating expenses of the Partnership all items of accrued

expenses, prepaid expenses, and other i^ms required in accordance with

Section 706(d)(2) of the Internal Revenue Code of 1986, as amended. In addition,

accrued expenses shall specifically include a reasonable provision for accrual of a prorate share of typical year end expenses, and any other expenses which are not

incurred equally throughout the year, including, but not limited to, employee

a9M/406jn

\intif 13-
1164

compensation, fringe benefits and bonuses, and preparation of Partnership tax and

pension returns. The stationery and supplies on hsnd shall not be Included in prepaid

expenses. Any life insurance (specifically including insurance on the life of the

deceased partner for the purpose of calculating that partner'a interest) shall be carried

at its cash surrender value and not et Its maturity value.

8.3 Upon terminatipn of a partner, other than a partner subject to tiw

provisions of Article X, the Terminated Partner shall sell, and the continuing

Partnership shall purchase, the Terminated Partner's interest in the Partnership ss of

the Valuation Date for a purchase price equal to the sum of the following items, si

determined pursuant to Section 8.4 hereof:

(a) The Terminated Partner's capital accountas ofthe Valuation

Date;

(b) One-half (112) of the Terminated Partner's Percentage of al

accounts receivable as of the Valuation Date; and

(c) One-half (112) of the Terminated Partner's Percentage of al

contingency matters and statutory fee probate estates as of the Valuation Date, at

provided In Section 8.4(c).

(dl In the event the Partnership has either fixed or contiftgent

liabilities as of the Valuation Date In excess of $25,000 which are not included on ttw

balance sheet (other than salaries but including sny obligetion owing to any othw

Termlneted Partner), ssid purchese price shell be reduced by en emount equal to the

Terminated Partner's Percentage of such liability, provided thet seld purchase price

14.
1165

•hall not be less than the Terminated Partner's capital account as of the Valuation

Data. If such liability is contingent, the amount of such reduction, if any, shall bo

determined at such time that the liability becomes fixed and the Partnership may in its

discretion establish a reasonable reserve for such contingent liability. Rent payable

for the Partnership's offices for the three (3) months immediately following the

Valuation Date shsll be considered, as a liability of the Partnership; provided, if such

three (31 month period falls within a period when Partnership office rent is waived or

substantially reduced (a 'free rent* period), the liability for rent shall be determined as

if rent was payable during the free rent period at the rate payable immediately after

the expiration of the free rent period. Any Partnershiip furniture or equipment leases

shall be considered as a liability (but not as an asset) and valued at an amount equal

to three (3) months rent, pursuant to said lease.

8.4 (a) The "capital account* of a Terminated Partner's interest in the

Partnership shall mean the capital account determined in accordance with the

customary method of iceeping the books of account of the Partnership and after all •

allocations of Profits and Losses for the interim period of the fiscal year as determined

under Section 8.2. The determination of the partner's capital accounts shall be made

on a review basts by the accountants regularly employed by the Partnership, shall be

conclusive on ail parties thereto and the Terminated Partner shall bear his/her

Percentage of such expense.

(b) Accounts receivable, where used herein, shall mean the

amount of billed but unpaid fees for legal services (excluding client costs advanced)

»M9M0a.N2

1I/13/>B 15.
1166

rendered by the Partnership as of the Valuation Date, to the extent that such accounts

receivable are collected by the Partnership within twelve (12) months of the Valuation

Data.

(c) Contingency matters shall mean the prorated amount of any

contingency fees to the extent collected by the Partnership after the Valuation Date

with respect to written contingeoPy fas agreements in existence prior to the data of

the partner's termination. Such fees shall be prorated as follows: The total fee shall

be multiplied by a fraction, the numeretor of which is the total value of all attomay

and paralegal time expended on such matter from its commencement untH the

Valuation Date, and the denominator of which is the total value for all attorney and

paralegal time expended on such matter from its commencement until its conclusion.

Fees for statutory fee probate estates shall be prorated in the same manner, aftor

taking into account any partial payments. Payments due hereunder shall be made

within thirty (30) days after receipt by the Partnership of any payments for such

matters.

(d) Attached hereto as Exhibit B is the calculation of the

payment to a hypothetical Terminated Partner whose termination occurs in December,

1993. Each partner aci(nowledges that he or she has reviewed said Exhibit B and

understands how such payment was determined.

8.6 As used in this Article 8, a Terminated Partner's Percentage shall be

that existing at the time of termination. A Terminated Partner's Percentage shall not

9999/40a.N2

ll/IMS H-
1167

be increasad as a rasult of tha termination of any othar partner during ttie same fiscal

8.6 (a) Only a Terminated Partner WIM has been a member of tiie

Partnership for a period of forty-eioht (48) months or more prior to termination shall

be entitled to full payment under this Section 8 for the Terminated Partner's Interest

in accounts receivable and conti[tgency matters of the Partnership as of the date of

termination.

(b) With respect to a Terminated Partner who has not complatad

the aforesaid 48 month period, the following schedule of percentage vesting in

accounts receivable and contingency matters shall apply:

NUMBER OF COMPLETE MONTHS AS PARTNER VESTINQ

0-5 0%

6-12 20%

12-24 40%

24-34 60%

36-48 80%

in the event that a Terminated Partner is not entitled to full payment for the

Terminated Partner's Percentage in accounts receivable and contingency matters, then

such partner's responsibility for llabllitias, either fixed or contingent existing prior to

said Terminated Partner's entry into the Partnership shall be limited to the amount of

his/her vested percentage. However, said Terminated Partner shall be responsible for

17.
1168

any and all liabilities arising on or after said Terminated Partner's entry into ttw

Partnership until the date of such partner's termination.

8.7 The Partnership shell pay for the purchaae of the Terminated Partner's

interest (i.e., the Purchase Price) as follows:

(a) 80% of the estimated Purchase Price shall be paid In the form of

monthly installments of $7,500^.beginning at the end of the first month following

termination, including interest at the prime Interest rate as announced on the first day

of eech calendar quarter by The Wall Street Joumal on the reducing balances of the

Terrrtinated Partner's capital account, but without interest on the balance of any other

amounts owed to the Terminated Partner. The first payments made to the Terminated

Partner shall be applied toward the purchase of the Terminated Partner's capital

account.

(b) The final 20%, adjusted to reflect actual receivables and any other

appropriate updates to the calculation, shall be paid on the first anniversary of the

terminetion date.

(c) Notwithstanding anything herein to the contrary, however, in no

event shall the Partnership be obligated to pay in the aggregate under Section 8.7(a)

more than (I) $7,600 per month to Terminated Partners during such time a* the

Partnership is not maidng payments to any other Terminated Partners ^lose

termination date precedes the date of this Agreement, or (H) $10,000 per month

during such time es the Partnership is melcing payments to other Terminated Partners

whose termination date precedes the date of this Agreement. If the monthly payment

MMMOtJU

ii/ia«t 18.
1169

to Terminated Partners would exceed $7,500 or $10,000, as applicable, but for the

immediately preceding sentence, such monthly payments shall be reduced pro rata.

(d) Notwithstanding the foregoing, the Partnership may elect to pay

the Purchase Price owed to a Terminated Partner by assigning to him an interest

(which may be less than 100%) in one or more receivables not older than 60 days

from clients of the firm which authorize the transfer of any of their files to the

Terminated Partner.

8.8 For purposes of determining the Terminated Partner's interest in the

Partnership, other than as specifically provided above, no adjustment shall be made

to the book value of the fixed assets, including but not limited to art, equipment, or

tenant improvements and intangibles owned by the Partnership. In addition, the

omission of any provision in this Article 8 for valuation of Partnership goodwill and

work in progress (other than contingency matters) is deliberate. Each partner

knowingly waives the right to receive payment on termination as a partner any amount

for such partner's interest in (i) the goodwill of the Partnership, and (il) the work in

progress of the Partnership (other than as provided herein).

8.9 All payments under Section 8.3(a) above to a Terminated Partner are

httended to be payments for the Terminated Partner's interest in the Partnership

property under Section 736(b)(1) of the Internal Revenue Code of 1986 as amended.

All payments for such Partner's interest (other than such partner's capital account)

under Section 8.3(b) and 8.3(c) are intended to be income payments under

Section 736(a) of the Internal Revenue Code of 1986 as amended. The partners agree

19.
1170

not to take a position inconsistent with tills Section In relation to ttteir indivMuai

federal and state income tax returns with respect to payments under this ArUcie.

IX.

LIFE AND DISABILITY INSURANCE

9.1 The Partnership may al^jts expense carry life and disability insurance on

each partner naming the Partnership as beneficiary in any amount to reduce the

burden on the Partnership for the payments to the partner's estate and to compensate

the Partnership for the loss of the partner's services. The estate of a deceased partner

shall have no interest in such insurance proceeds. Larger amounts of insurance may

be carried by a partner at his/her discretion and at his/her expense. In addition, in the

event that the Partnership carries insurance on a partner and designates as the

beneficiary the deceased partner's estate or heirs-at-iaw, then the amount of such

payment to such beneficiary shall be deemed for purposes of this Agreement as a

credit against the Partnership's obligation to pay the purchase price of a Terminated

Partner's interest.

X.

SPECIAL PROVISIONS

10.1 Notwithstanding anything herein to the contrary, it is agreed that with

respect to Allen E. Broussard, (i) his entire compensation, including payments, if any.

upon withdrawal shall be fixed from time to time by the Compensation Committee

).N2

20.
1171

, .s;^5^"?ri?ssy^?^«?s^—ij^s-t^v.u„-

PwtiMnNp Valuation Far:

ValuKlon Data:

cn»oiK. chwMnti^ % «• of 1/1/aa:

• FM« Raoafvable «• of V*Mtlen Data:

X%OWNE

itdiwu^aift

« «f iMi kMVadon labWaa ««M* t*M ftMil

SMMth'artont

S MocKh'a E«ulpmaM Uaaa

T«UI Han BaUnc* ShMt LUblHaa:

3«e.3M

AT OWNEDSHtP PtBCtHTAOC .

MET VALUE AS OF:

»* tWa ••tknato, tMa v*w «

'» daya ^aat tfu* C74t.74ai:

'•"" •(11/31/9X

. <!•((• lo the f-iitnt that

r«lkMHMiOa!« -

M: TaUl (••• raoatvabia at l2/3t/» Itl.im sea

»«VOut««babaMrf««tfekrae«aaeMta

EXHIBIT B
1172

NooliuUoa Rqwrl ici-m.m i.miin

|iaxc4«r.«.a<.M.u»

Br*y«r, Charles R.

LOaMarOqurio**

U.S. District Court

H.D. of Callfomla 07/js/i»rj

OS Di«triot Jud9«» NoniDsa

ai/oi/i9««

IB

06/3a/lM7

232 Uamy strMt, 7th Floor

•u rranolaoo, C*. «410a

OIPOKTANTMOnS: Ihr iMnnlmm m\inyu*n *fc>*»MM« t>>Miiii>rf Owylwi ••/•».

NAME OF ORGANIZATION/DITTTY

L POSITIONS Wifo^t 'i*"^^«•»•«"IIP- WJ^immiiiiU

POSITION

I I HONE (Waiiyin^biniMiM)

' rartnor Ooblanti, Cmhan, Hecaba S Brayar (CCMtB)

Bdvard ft Dorian ooldatain Trust

Halan Bobarts Trust

n. AGREEMENTS WT"** *•*«*«'«"tr«»>p.l<-»¥'"""i'""J

DATS PAKTIES AND TERMS

D Qto Wf awiftli i|wiwiiiiJ

» ia/31/97

* Curr«nt

T»r»tnatlon Agraoaant - CO«B (no oontrol)

OCMftB - Pansion and Profit aharing Plan

m. NON-n<fVESTMENT INCOME

DATE

•'

ifmmKt^m #>gaflii < J

PAKTIES AND TERMS (XOSSINCOia

Own. •• «ei>i-«

City Arts ft Lacturas, Xno. (8)

» IWS

COMB partnarahip inooaa $ 4so,aoo.M

City Arts 4 Lacturaa (S)

CCMB partnarahip incoaa 430.ooa.oe
1173

FINANCIAL DISCLOSURE REPORT | Breyer, Charlea R 07/25/1997 I

as HlgtiMack HMMy Mrk«t fund

11/15/2000

ST tM TcMVucy ttclpa. DIM 2/1W2001

%• U> TiMMcy Stclpa. DM 5/15/2001

59 AIM Sub. (Mb. 5.0001, du«

5/01/200«

» Otttp S.500t, du« 2/15/2012

Cl r«(k Clvctco C?v«M 5.5001, du«

3/01/200*

•3 TCI fioi

•tock

inlc«tlon«, piat*(t«d

«4AXctoucA CbwHrnleatlons. nn—jii

•teek

•5 All«gl«nc* Cbcp, rn—nr atoek

IA*aclc«n Oc««tlng Oocp,

•cock

«T Aaaclt«cri Cocp, co—nn ateck

01vld>

I hrtkhCMv: A-SI.MO v IM B-SIJD0I42J00 OSZ.30|.S1J)00 D-4SMI4ISM0 I-SIMOI-CSWOO

<CW.BI.IM) P-»3OJ01^IOttJC0 O-SIOOMI-SIJOOOAW HI-SlJM10.MI-SSjOOajnO m-tSJMiMlmm

tVtiCm^m >-SnjOO«lM K-SDMI-SMJDOO L-SMUni-SloajOM M-IIO0u0O|.S23OJX» N-«23(U»l't3ea^at

|O*q.0a) O-MOOJOI-SIJOOjaoO P1-«1J0O^|.»5J0OJDOO PX3JOD^I^5JOO.OOO n-tU.MQMI'SMjOOOMa N-SMJNXUni vasn

S VM IM Cate Q-AwraU

<CM.C1)

-•^

45.964 98-38
1174

CHARLES R. BREYER FINANCIAL STATEMENT—NET VVORTH

Assets

Cash on hand and in banks $100,000

U.S. Government Securities None

Listed securities (see schedule) $286,050

Unlisted securities (see schedule) $920,000

Accounts and notes receivable:

Dues from relatives and friends None

Due from others None

Doubtful None

Real Estate Owned $3,007,500

Real estate mortgages receivable None

Autos and other personal property $75,000

Cash value-life insurance $97,500

Other assets—itemized:

Profit-sharing Sharing Plan $1,285,000

Total Assets $6,771,060
1176

CpTtfrwentUabWHtes

As endorser, comarker or guarantor

On leases or contracts

t^gal Claims

Provision for Federal Income Tax

Other special debt

No

No

No

No

No

Liabilities

Notes payable to banks—secured None

Notes payable to banks—unsecured None

Notes payable to relatives None

Notes payable to others $260,000

Accounts and bills due $10,000

Unpaid income tax None

Other unpakl tax and interest None

Real estate mortgages payable—see schedule $1,119,000

Chattel mortages and other Kens payable None

Other debts None

TOTAL LIABILITIES $1,389,000

Net Worth $4,382,050
1176

General Infonnatlon

Are any assets pledged? No, except for mortgages

Are you a defendant in any suits or legal actions? No

Have you ever taken bankniptcy? No
1177

PHARLESBREySt

MTACHMENT To RNANCIM. STATBCNr

A8OFJUNE3<I.1S07

USTE08£CURmE&

CAUFPUBUCWOWCBOOLLBQESAVMQSPROaRAM 118,000

WESTERN MVESTMair REAL ESTATE IRUST 7,600

NKE - 1,200

BAYVCWFEOERM. 11^000

RRST BANK SYSTEMS

COKE COLA

PACFIC OAB AND ELECTRIC

CMJF ST OEPT OF TRAN 8ER A

208,060

Ihillatcd' Sccurltlas >

FRESNO MOUSTRIAL PARK OeCRALPARTNERSMP 876,000

A«PORTCOU8EUM,UMrTB>PARTNER8HP HJHtt

M2FAUJ0N STREET, GENERAL PARTNER8HP 1MH

8ACHARACHRAPHAEL. GENERAL PteCaershlp IflifOO

S20M0

REAL ESTATE

PERSONAL RESOENCE. SAN FRANCnCO 1.050,000

SECOND HOME. LARKSPUR OSO.OOO

8NCABM.N0R0EN 7.500

COMMCraCAL RB<TAL FRESNO 100.000

3,007,500

REAL ESTATE LOANS

PERSONAL RESOENCE. SAN FRANCSCO. lac Natloowlda Hort(«g* 507.000

SECOND HOME, LARKSPUR Countryvlda H<nw Loans 4O7AI0

COMMERKAL RENTAL, FRESNO, Walla rargo Bank 20,000

FRESNO MOUSTRIAL PARK, aeCRALPARTNER8HP,BREYER SHARE. 188,000

RobarCa-Packar partnarahlp Inceraat

1.118,000
1178

UNITED STATES TAX COORT J,. ^^IVi

CHARLES R. BREYER and

SYDHEY GOLDSTEIN,

Docket Ho. 13834-84

Petitioners,

V.

CO»IMISSI(»(ER OF INTERNAL REVENUE,

Respondent.

ANSWER

THE RESPONDENT, in answer to the petition filed in the

above-entitled case, admits, denies and alleges as follows:

1 and 2. Admits.

3. Admits, aund alleges for clarification that the

negligence penalty is asserted pursuant to the provisions of

I.R.C. §66S3(a) of the Internal Revenue Code of 1954.

4. Denies.

5. (A) (1) Admits.

<2) Denies.

(3) Admits.

(4) Denies.

(B) (1) Denies.

6. Denies.

7. FURTHER ANSWERING the petition, respondent alleges

that the claimed charitable contribution is disallowed because

petitioners have not satisfied the provisions of either I.R.C.

i 170(f)(3)(B) (iii) or I.R.C. 8 170 (h) (4) (B) (ii) in that

petitioners have not substantiated that the building located
1179

at 2661 Clay Street, San Francisco, California is located

in a restricted historic district (as defined in I.R.C. S

48(g)(3)(B)) and is certified by the Secretary of the

Interior as being of historic significance to the district.

8. FURTHER ANSWERING the petition, the respondent

alleges that the petitioners' request for attorneys' fees

is prenature because the petitioners have not established

their status as a prevailing party as required by section

7430(a) of the Internal Revenue Code of 1954 and Rule

34(b) of the Rules of Practice and Procedure of the

United States Tax Court and that Rule 34(b) also provides

that a claim for reasonable litigation costs shall not

be included in the petition in a deficiency or liability

action.

WHEREFORE, it is prayed:

1) That the relief sought in the petition be denied;

2) That the deficiency in income tax for the taxable

year 1980, as set forth in the statutory notice, be in all

respects approved;

3) That the addition to tax for the taxable year 1980

under the provisions of I.R.C. S 6653(a), as set forth in the

statutory notice be in all respects approved.
1180

4) That the Court determine that the petitioners*

request for attorneys' fees under I.R.C. S 7430 is preMture.

FRED T. GOLDBERG, JR.

Chief Counsel

Internal Revenue Service

Dated: JUU 03 «W By

(9|Mil) Eu{«M H. annul \£?yL_

EUGENE H. CIRANNI

Assistant District Counsel

OF COUNSEL:

BENJAMIN C. SANCHEZ

Regional Counsel

THEODORE GARELIS

Attorney

Internal Revenue Service

Two Embarcadero Center, Suite 900

San Francisco, California 94111

Tel. No. (415) 556-7855

-3-
1181

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing^ paper

was served on Jeffry A. Bernstein, Esq., by mailing the same

on JU). 0 3 1984 in a postage-paid wrapper addressed to

him at Coblentz, Cahen, HbCabe k Breyer, 3Sth Floor, One -

Bnbarcadero Center, San Francisco, California 94111.

This is to further certify that the original of the

aforementioned paper was mailed to the Tax Court on >„ . , _.

Dated: JUL 0 3 1384 T!HEODORE GARELIS

Attorney
1182

ONITED STAXES TAX OOORT

Charles R. Breyer and

Sydney Goldstein,

Petitioners,

Ccaaissioner of Internal Revenue,

Respondent.

UNITED STATES 1

f

TAX COURT

n n na

OCX 2 1985

Docket No. 13834-84

PETITIOMERS' MOTION FOR COOTIWOAMCE

Petitioners Charles R. Breyer and Sydney Goldstein, pursuant to Rule 134 of the Rules of the Tax Court, request the

Court to grant a Continuance in the above-captioned case and

state the following as reasons therefori

1. This case has been calendered at the session of the

Court beginning November 12, 1985 in San Francisco, California;

2. Petitioners have met with Mr. Ken Laverty, IRS

Appellate Conferee and in response to the meeting Petitioners

have been actively obtaining various factual material to support

their position and to clarify the issues. These materials have

been submitted to the IRS, but petitioners need additional time

to obtain other supporting material.

3. This case contains complex factual Issues including

an issue regarding the valuation of property contributed to a

qualified charity. Negotiations are In progress with the IRS

2934-001

1.

•.(.moasi

GRANTED

OCX 0 4 885

(S4>nl> ARTHUR L NBI^
1188

Appellate Conferee and it would be an unnecessary utilization of

the resources of the Court and of counsel were this case to be

tried at this time rather than allowing the parties the opportunity to settle.

4. Counsel for Petitioners will not be available for

trial since he will be out of the country on a business trip

coonencing the end of October and extending through the trial

date.

5. This motion was discussed with Mr. Ken Laverty, IRS

Appellate Conferee and he has indicated no objection to this

Continuance being granted. Counsel for Respondent has indicated

that he is opposed to a Continuance being granted.

6. Petitioners have not received any prior Continuance

of the trial in this case.

7. In the event an adverse decision is proposed by the

Court, Petitioners request a telephone conference with the Court.

For the foregoing reasons. It is respectfully submitted

that the Petitioners cannot adequately prepare for trial nor adequately present Its case if this matter should remain on the

2,

2934-001
1184

Noveaber 12, 1985 trial calendar. Therefore, the Notion ahoald

be granted.

Dated: September 30, 1985

Mhy ^ BmMA

3ettty A. Bernstein, Counsel

Cor Petitioners

COBLENTZ, CAHEN, NcCABE » BSKYER

35th Floor, One Babarcadero Center

San Francisco, California 94111

(415) 391-4800

3.

2934-001
1186

CERTIFICATE OF SERVICE

This Is to certify that a copy of the foregoing

paper was served on Benjamin C. Sanchez, Esq. and Theodore

Garells, Esq., by mailing the same on September 30, 1985

In a postage-paid wrapper addressed to them at Internal

Revenue Service, 160 Spear Street, San Francisco, CA 94105.

This is to further certify that the original of

the aforementioned paper was mailed to the Tax Court on

September 30, 1985.

Jtffry A. BtrmMn

Dated: September 30, 1985 JEFFRY A. BERNSTEIN

Attorney
1186

CHARLES R. BREYER and •• )

STDMEY COLDSTEm ' )

)

FetltlODcrs. )

)

»• )

D

COMMISSIORER OF XITERHAL REVERDE,' )

. )

Ropondent. )

<?,

Docket Ho. 13834-84

X

DECISIOH

Pursuant to agreeaent of the parties in the above-entitled

case. It Is

ORDERED and DECIDED: That there Is a deficiency In lnco«e

Cax due froa the petltlonera for the taxable year 1980 In the

aaount of $4,704.00.

That there Is no addition to the tax due from the petltlonera

for the taxable year 1980, under the provlalons of section 66S3(a)

of the Internal Revenue Code of 19S4.

(Signed) SAMUa & STGRfiEU

Judge.

Entered: tiOV2 5 tgeg

It Is hereby stipulated that the Court may-enter the foregoing

decision In the above-entitled case.

It Is hereby stipulated that, effective upon the entry of

thla decision by the Court, petitioners valve the restrictions

contained In section 6213(a) of the Internal Revenue Code of

19S4 prohibiting assessaent and collection of the deficiencies

(plua statutory interest) until Che decision of the Tax Court

has becoae final.

a

FRED T. GOLDBERG. JR.

Chief Counsel

Internal Revenue Service

YERHSlrElM

^r Petitioner

Cahen, McCabc 4 Breyer

Floor, One Eabarcadero Center

ranclsco, CA 94111

No. (41S) 391-4800

By;A^^-i.. A \x^„

EUCOIE H'. CIRAKVI

As^stant Dlstric:t Counsel

Internal Revenue Service

160 Spear Street, Rooa 504

San Francisco, CA 94I0S

Tel. No. (415) 974-9271

Dated: Dated: "//iA\
1187

imiTED STATES TAX COURT

CHARLES R. BREYER and

SYDNEY GOLDSTEIN,

PeClcLoners,

COHMISSIOMER OF INTERHAL REVENUE,

Respondent.

i:^... ILAA (JOURT

1303^-di,

Docket No.

PETITION

Petitioners hereby petition for a. redeteralnatlon of the

deficiency set forth by the Commissioner of Internal Revenue In

his Notice of Deficiency (Service Symbols: 411-Fleld-90D San

Francisco), dated February 17, 1984, and as the basis for their

case allege as follows:

1. Petitioners are husband and wife with legal residence now at 2661 Clay Street, San Francisco, California 94115.

Petitioners' Social Sectirlty Numbers are as follows:

Breyer - 562-48-3508

Goldstein - 550-66-0013

Petitioners timely filed a Joint Income tax return for the

calendar year 1980 with the Office of the Internal Revenue

Service at Fresno, California.

//
1188

2. The Notice of Deficiency (a copy of which, Ineltidli^

ao auch of the steteaent and schedules accoapanylng the notice aa

la Baterlal, Is attached and marked Exhibit A), was mailed to Che

Petitioners on February 17, 1984, and was Issued by the Office of

the Internal Revenue Service at San Francisco, California.

3. The deficiencies, as determined by the Cooalssloner,

are In Income taxes for the calendar year 1980 In the amount o£

$25,793.00 plus a negligence penalty of $1,290.00, all of which

amounts are In dispute.

4. The determination of tax set forth In the said

notice of deficiency Is based upon the following errors:

(A) The Commissioner erred In determining that Che

Petitioners are not entitled to a charitable deduction of

$48,000 for a contribution of property because Petitioners

have not established Chat the property had any value.

(B) The Commissioner erred In determining that

Petitioners are subject to a penalty under Section 6653(a)

(I.R.C.) for negligence or Intentional disregard of the

rules.

5. The facts upon which Petitioners rely, as Che baala

of their case, are as follows:

(A) (1) Petitioners are the ownera of the house

("ProperCy") in which they reside and uhlch Is located at

2661 Clay Street, San Francisco, California.

//
1189

(2) The Property has been deteralned to be an

ardtltecturailly significant structure.

(3) In 1980 Petitioners contributed a

preservation easeaent Interest In the Property to the

Foundation for San Francisco's Architectural Heritage

("Foundation"), a tax-exeapt piibllc charitable organisation

and such contribution was accepted by the Foundation.

(4) The fair a«rket value of the contributed

preservation easement was determined by an Independent

appraiser, to be $48,000, vhlch amount was properly deducted

as a charitable contribution by Petitioners In their 1980

Income tax rettirn pursuant to Section 170 (I.R.C.).

(B) (1) Petitioners have not been negligent In

their actions nor have they intentionally disregarded the

rules. Accordingly, the imposition of any penalties ptirsuant

to section 6653(a) is improper.

6. Affirmative Defense.

Respondent's erroneous determination that said

contribution had no value was made without Respondent making any

effort to disctiss or meet with Petitioners or their representatives and without reviewing the supporting appraisals and

documentation. Respondent's representatives have denied

Petitioners their right to exhaust their administrative remedies,

resulting in undue prejudice and cost to Petitioners. Such

//

3.
1190

denial of Petitioners' right to exhaust their adalnlatraclve

remedies Is contrary to Respondent's rules and polices.

WHEREFORE, Petitioners pray that this Court nay try this

case and determine that there are no deficiencies in income taxes

and that no penaltirs should be imposed and to give such other

and proper relief, including costs and attorneys fees as in the

premises the Court may deem fit and proper.

/BERNSTEIN, ESQ.

CAHEN, McCABE & BREYER

One £o)batcadero Center

35th ^loor

San Francisco, California 94111

(415) 391-4800

Dated: May //^ 1984

4.
^hx rear B)ded Deficiency ftnUty - SecUon

1191

3i, 1980 S 25,793.00

411S

J,290.00 • s

s

i

i S .

t 1 $

s i «

s ! *

s i $

Chailea R. Bceyai

eycney Goldstein

2S61 Cl«r Street

San Francisoo, a J

Feraon to Qntact:

Botioes Ohit

Oantact Delcftene Mcteci

(415) 556-0294

Dear 1k:qBy«r:

He have detenained that there is a deficiency (increase) in your Inoooe tax as dxiun above

This letter is a trjnCE OF VEFiafDCl sent to yoo as required ty Uu. • Sie enclosed stateuai

Aows how we figured the deficiency.

If you Hont to contest this deficiency In court before Bakinc any jpeynent, ycu have 90 diy

Cron the above aailing date of this latter (ISO days if addressed to you outside of the Unit*

States) to file a petition with the United States Cu Court for a redetersinBtion of the def1

dency. Ibe petitlan rinild be filed with the Onlted States Tax Court, 400 Second Street HI.

IteAin^ton, D.C. 20217, and the cspj' of this letter riwold be attached to the petition. tt

tise in which you oist file a petition with the Court (90 or ISO days as the case my be) 1

fixed tv law and ^h& £auj:t mnm?V rnn<i4A»r yau£. pny if vc&ll petition l2 £il£d l£t&>. Zf thi

letter is addressed to both a husbsnd and wife, ano both want to petition the Tax Court, hot

Eust si^ the petition or each oust file a separate, signed petition.

If you niRpitp not mre than $S,000 for any one tax year, a stmllfied procedure is pet

vided by the ^C»x Court for tnali tax cases. You can obtain inforcatlcn about this {zocedure, i

veil as a petition foca you can use, by writing to the Clerk of the United States Tax Court i

400 Second Street IH., Kasbington, D.C. 20217. You should ds this pconfitly if you intend'

file a petition vitii the Tax Court.

If you decide not to file a petition with tlw Tax Court, we would appreciate it if y

would siTi and return the enclosed waiver fore This will peonit us to assess the deficien

qalcfcly and will Unit the accinulation of interest. Bie enclosed addressed envelope is t

your convenience. If you decide not to si^i and return the stataient and you do not tine

petition the Tax Court, the law requires us to assess and bill you foe the deficiency after

days frcD the alxwe •ailing date of this letter (ISO days if this letter is addressed bo y

outside the United States).

If you have any questions, please contact the person whose naoe and telejiione nsitief <

tfaown above.

Sincerely yours,

Boaooe L. Bgger, Jr.

Ccnrissioner

D«:lo«ire., ^'PfJ'iMul ^^

Oocy of this letter Hdieel Sassi nfh^

Maiver - District Wrectoc '*"

Bivelope

P. 0. Box 36040, San Ftanclaoo, California 94102 rom 5601 (Mv. 6-79)

Exhibit A
1192

'. It ia ictKcalna thet part of tie urxietpayosnt of tc= foc the taable

•^ yeai(s) shoun on Fora 5564 is due to neQllgmoe oc intentioiial dlsiesard

1 of luleo BIO reculetlons. ConscguGntly, the 5 per oentixi adaition to tiia

1 tax provided bf aactlon eS53(a) of the Intcrral Ronrenue Q:de Is

r assertod for this yaar(s).
1193

itmSZn

statement — Income Tax Changes

ContyiKitinrv^ - n^n-ff^^

lOjfO

_i3aa

i> ^f>,cfXKa.

t' 4ftxXC.CO

^ 3^,3i^,0O

ft. Wuwwmt M» w app<tciM» ltf«m 9*91—

1. Cdn«cuJtoKUiMMv0MMr*/taw Sar«y

»• Pn\it\if.\ i-^^W,f)^.:m CrgriiV

»• XfViajTTVnV -I7.» C/a.t.W

i Rf•.f.^>^<v^•n<•J^ nrvfl

b. S«tf.«mpiev«i«ni nii

ta. TaMwAMaon

*Z>,bM.0O

_3«ivt.oo

i 3').3t.-l 00

50.00

«ft-QO

/qg.oo

»» a-iow.ijo

«. nOiSOO

*. ;5W.0O

t. Z^.TUCO

l,afV).0O (•£5,113.00X5-0

F«»5278 (ta-Ma
1194

UNITED STATES TAX COURT

WASHINGTON. D.C. 20217

June 3, 1965

CaHRtJg; R. B8EISB UD SIDBEX aOLOSIEDI

fMMioncr.

COMMISSIONER OF INTERNAL REVENUE,

' Trial On: tortabar 12, 1965

Trill Al: Room 2021, Federal Biiildti«

•ad Courthowe

4S0 Golden Gele A*enue

Sen Fiudioo, Califoniia 94102

NOTICE SETTING CASE iX>R TRIAL

Tbe parties an heraby notifled (lut Ihe abow-entltM •

the dale Indicated aboK.

la aal l« trial at the Trial Seidaa btinoh^ ea

The calendai for that Seaskm will be called at 10:00 ajn. on that date and both panici aft expected to be

pieieni at that time and be pcepared to tiy the cue. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL

OF THE CASE AND ENTRY OF DECISION AGAINST YOU.

Your attention is called to the Court's requirement' that, if the case cannot be settled on a mumany satisradocy haA

the parties.before trial.must agree in writing to all facts and aU documents about which there should be no disagreemeaL

Therefore, the parties should contact each other promptly and cooperate fully so that the necessary steps can be taken to

comply with this requiremenl. YOUR FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL OF THH

CASE AND ENTRY OF DECISION AGAINST YOU.

If there an a number of cases to be tried, the Court will fix the time of each trial al the end of the calendar call. Tbi

Court makes every effort to suit the convenience of the petitioners in fixing trial tintes, but because of conflicting requests

received from petitioners, the fiiul determiiution of trial times must rest in the Court's discretion.

OTHC afike Conn. ^^^

To: Counsel for Respondent

To! J«frr>s7 ». B«niat«lii

(OOBLEITZ, CAHn, MC CUB

ARD BRETER)

One G)abarcadero Center, 35tb Floor

San rranclsco, CA 94111

JUN7 1965
1195

UNITED STATES TAX COURT

CHARLES R. BREYER and

SYDNEY GOLDSTEIN,

Petitioners,

COMMISSIONER OF INTERNAL

REVENUE

Respondent.

F

UNITEO STATES

TAX COURT

n n 173

MAY 14 1984

Docket No.l303i^-B«v

REQUEST FOR PLACE OF TRIAL

Petitioners hereby request that trial of this case be

held In San Francisco, California.^

Dated: May ({ ,1984

Jeffry A. Bernstein, Esq.

Coblentz, Cahen, McCabe & Breyer

3Sth Floor, One Embarcadero Center

San Francisco, CA 9A111

PLEASE ihNiJ OMLY OKIGINAf AND "

i •.'• : i j," PErir.'OM (RULE 34(d))

O.. LESKSNATION OF PLACE OF TRtAU

(RULE 140ib)).

as.T«ooun

GRANTED s

HAY 14 19S4

RITTVM SERVED ON l)ESFCINDnn'_

FIUNG FK ALSO ACXNOWUOGED

_ .JAY 18 1984-
1196

IV fe d&t^rrn."Tecl t>iai- the HOTIMSK cont^ibonon ctftinieei

<fa a. Oiaritabte. Gonrribu^on^ in -rhe^ amcont of s^ooo h>

.The, f^ondation fvr pan B^ncrtco'ti Arch, t^UanJ n^thuts^ n.

fiiSO fe Mof oiioiAKibie. bexAope. >> rtQi» '•'erf- A»ee/i QA>iaiyti^itecl

Ac^prdiViglvj^ youi" faxrify/Cx >/ia?/yie^ for W80 ,& j^icr-eaaqct

, Vn Hie pfncoiTT pf 4'4«jOOO.
1197

SENATE JDDICIARV COMMITTEE QUESTIONNAIRE

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full name (include any former names used)

Frank Cadmus Damrell, Jr.

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

Office: Damrell, Nelson, Schrimp, Pallios & Ladine

1601 I Street, Fifth Floor

Modesto, California 9S3S4

Hotne: Modesto, California

3. Date and place of birth.

July 6,1938, Modesto, California

4. Marital Status (include maiden name of wife, or husband's name). List spouse's

occupation, employer's name and business address(cs).

Lidwiena Josephina Dyiczeul Damreli

Housewife and volunteer at Parent Resource Center (county-wide agency which serves

families to prevent child abuse and to provide parent and family mentoring).

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

College and Law Schools Attended Dates Degree Received

University of SanU Clara* 1955-60

University of California, Berkeley 1960-61 B.A., 1961

Yale Uw School 1961-64 L.L.B., 1964

•Entered a Roman Catholic Seminary, Sacred Heart Novitiate, which was affiliated

with Santa Clara University, to study for the priesthood. I remained a student there

until leaving the seminary in I960 to complete my undergraduate studies at U.C.

Berkeley.
1198

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Pamreg Jr.

(. Employment Record: List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and organizatioas,

nonprofit or otherwise, including firms, with which you were connected as ao officer,

director, partner, proprietor, or employee since graduation from college.

1962 E. & J. Gallo Law Department, Modesto, CA (summer)

1963 Community Progress Inc. Legal Service, New Haven, CT (summer)

1964 State of California Attorney General's Office, Law Clerk

1963-66 State of California Attorney General's Office, Deputy Attorney General

1966-68 Stanislaus County District Attomey's Office, Deputy District Attorney

1968-70 Law Office of Frank C. Damrell, Jr., Sole Practitioner

1970-76 Damrell & Damrell, Partner

1976-90 Damrell, Damrell & Nelson, Partner

1990-present Damrell, Nelson, Schrimp, Pallios & Ladine, President

1992-present The Shannon Company, Managing General Partner

7. Military Service: Have you had any military service? Ifso, give particulars, iDcinding

the dates, branch ofservice, rank or rale, serial number and type ofdischarge 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

None

9. Bar Associations: List all bar associations, legal or judicial-related committees or

conferences of which you arc or have been a member and give the titles and dates of

any offices which you have held in such groups.

California Bar Association

American Bar Association - Antitrust Section and Litigation Section

Federal Bar Association

Stanislaus County Bar Association

Stanislaus County Women Lawyers' Association

State Bar Disciplinary Hearing Board

Senator Feinstein's Advisoi> Committee for the United States District Couit, Eastern Distiict

of California

ID. Other Memberships: List all organizations to which you belong that are active ia

lobbying before public bodies. Please list all other organizations to which yon belong.
1199

jy, SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. DamrelU Jr.

Aside fix>m the California Stale Bar Association, 1 am aware of no such organization that is

active in lobbying.

Other Oryani7.ations

' Sportsmen of Stanislaus, a family athletic club. A copy ofits bylaws is attached as Exhibit

"A."

II. Court Admission: List all courts in which you have been admincd 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.

196S Supreme Court of California

1965 United States District Court, Eastern District of California

1965 United Sutes District Court, Northern District of California

1965 United States Court of Appeals, Ninth Circuit

1979 United States Supreme Court

1980 United States District Court, Central District ofCalifornia

12. Published Writings: List the titles, publishers, and dates of books, articles, reports or

other published material you have written or edited. Please supply one copy of all

published material not readily available to the Committee. Also, please supply a copy

of all speeches by you on issues involving constitutional law or legal policy. If there

were press reports about the speech, and they are readily available to you, please

supply them.

Commentary on the Rules of the United States District Court for the Eastern District of

California, which is in the final editing stage for publication in 1997. The publisher is

MichieParicer Publications, P.O. Box 9040, Carlsbad, CA 92018-9040. A copy ofthe draft

is attached as Exhibit "B."

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

examination.

It is cxcellenL My last physical examination was January 23,1997.
1200

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. PanurM. Jr.

14. Judicial Office: State (chronologically) any Judicial offico you have held, whether luck

position was elected or appointed, and a description of the jnrisdictioD of each tach

court

Hmt

15. Citations: If you arc or have been a Judge, provide: (I) citations for the ten most

significant opinions you have written; (2) a short lammary of and citations for aD

appellate opinions where your decisions were reversed or where your Jadgment wa

affirmed with significant criticism of your substantive or procedural rulings; and (3)

citations for significant opinions on federal or state constitutional issues, together with

the citation to appellate court rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copies of the opinions.

Not applicable.

16. Public Office: State (chronologically) any public offices you have held, other thaa

judicial offices, including the terms ofservice and whether such positions were elected

or appointed. State (chronologically) any unsuccessful candidacies for elective public

office.

I spent several years as a member (1973-80) and as Chair (1975-80) ofthe California Siae

Consumer Advisory Council, the advisory committee to the State Department of Coitsumer

Affairs. I was appointed b>' Governors Reagan and Brown.

17. Legal Career;

a. Describe chronologically your law practice and experience after gradnatioa

from law school including:

1. whether you served as clerk to a Judge, and ifso, the name of the Judge,

the court, and the dates of the period you were a clerk;

1 did not clerk for a judge.

2. whether you practiced alone, and ifso, the addresses and daica;

Yes, from 1968 to 1970, I was a sole practitioner at 820 12th Street in

Modesto, California.
1201

SENATE JUPiaARV COMMITTEE QUESTIONNAIRE Fnnk C. D«inreH. Jr.

the dates, names and addresses of law firms or offices, companies or

governmental agencies with which you have been connected, and the

aaturc of your connection with each;

Employer

Damrell, Nelson, Schrimp

Pallios &. Ladine

16011 Street and 1625 1 Street. Modesto

Damrell, Damrell & Nelson

16251 Street and

911 13th Street, Modesto, CA

Damrell & Damrell

911 13th Street, Modesto

Law Offices of Frank C. Damrell, Jr.

820 12th Street

Stanislaus County

11001 Street, Modesto

State of California

Ofiicc ofthe Attorney General

SO Fremont St., #300, San Francisco

Eiuilifiii Ciix Dates

Presidciit Modesto, CA 199^97

Managing Partner/

President

Modesto, CA 1976-90

Managing Partner Modesto, CA 1970-76

Sole Practitioner Modesto, CA 1968-70

Deputy District

Attorney

Modesto, CA 1966^

Deputy Attorney

General

San Francisco, CA 1965-66

State of California

OfTice ofthe Attorney General

SO Fremont St. #300, San Francisco

Law Clerk San Francisco, CA 1964

What has been the general character of yonr law practice, dividing H

into periods with dates if its character has changed over the yean?

1965-19611

Upon graduation fiom law school, I spent four years as a prosecutor, first as

a Deputy Attorney General, then as a Senior Deputy District Attorney for

Stanislaus County. AsaDqxity Attorney General, I wasjust assigned to the

Criminal Appeals Division where I was responsible for approximately 50

appeals, including a number of Habeas Corpus Writs. During my last year.
1202

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. DamraD. Jr.

1 was assigned as the first Consumer Fraud Deputy for the San Francisco

office. In that capacity, I filed several injunctive actions in the San Francisco

Superior Court and conducted evidentiary hearings. As a Deputy District

Attorney, I tried numerous criminal jury trials (including three murder trials).

I also conducted a number of preliminary hearings and misdemeanor juries

as well.

I commenced my private law practice as a sole practitioner in 1968. Initially,

my practice was exclusively trial work. I tried a number ofjury and bench

trials, primarily personal injury, criminal defense, and family law matlen.

After several years, however, my litigation practice became more businessrelated. When my father retired from the Superior Court in 1970, he joined

me in the practice oflaw. Soon thereafter, Duane Nelson joined our firm out

of law school. He remains a partner to this day. In 1980, our firm grrw to

ten lawyers with a satellite office in Los Angeles to assist several important

business clients who were headquartered in the Los Angeles area.

1980-1988

By 1980 several California-based business clients had asked me to assist dieir

Washington, D.C. counsel. As a result, during this period, 1 spent

considerable time in Washington, D.C. as an attorney and lobbyist on behalf

ofCalifornia public and educational entities, agricultural associations, and the

energy and transportation industry. I appeared before both the House and

Senate Agriculture Committees and the House Interior and Senate Energy

Committees and worked with several federal agencies. On several occasions

during this time, 1 also represented corporate clients before state legislative

committees and state agencies.

I also represented corporations and institiitions relating to large capital

projects. The following are some examples of projects in California. I was

retained by the University of California regarding the possible location in

California of the Superconducting Super Collider. This involved

representation ofthe University with local citizens groups and communities

in San Joaquin County. I also represented the University in its efforts to

obtain funding for the project from the State of California, Congressional

support, and a favorable decision from the U.S. Department ofEnergy. I also

was retained by a New York-based venture 04>ital group to provide legal

cotmsel for the development of a resource recovery project, which would

incinerate California's waste tires to produce electric energy. It was the
1203

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. DamrtU. Jr.

largest facilit) of its kind in the United States. Our finn was retained under

my direction to prepare contracts, to obtain local, state and federal pemiits,

and to work with bond counsel and underwriters counsel regarding the

issuance and sale of bonds to finance the project. The project was

successfiilly completed. Our firm represented the same client regarding the

development of a resource recovery facility. This one utilized rice hulls and

straw for energy production. I also represented the builder and operator of

the Stanislaus County Waste Energy Facility, the largest of its kind in

California. This facility was constructed in Stanislaus County to bum all

solid waste from the City of Modesto and surrounding communities. Again,

I directed the preparation of contracts, obtained local and state permits and

assisted bond counsel regarding issuance and sale of bonds to finance the

project. In addition, I was engaged to represent several clients in the

development ofseveral large real estate projects.

l?88-pr«tnt

Our firm now consists of 18 attorneys ^^ith ofTices in Modesto, Sacramento,

and Oakdale, California. My law practice is multi-ftceted and covers a wide

spectrum of clients and cases. In 1988,1 decided to devote full-time energy

to my practice in California. While on occasion I represent clients in disputes

with state and federal regulatory agencies, 1 have generally confmed my

recent legal practice for the most part to major litigated matters.

For the last ten years, I have spent virtually all of my time on complex

business litigation in both federal and state courts. My clients include

publicly owned coiporations, closely held family corporations, public entities

and individuals. Such clients include wineries, fanning enterprises, trucking,

food processing, construction and manufacturing companies, distributorships,

and professional corporations.

Another significant aspect ofmy trial practice involves litigation relating to

securities fraud and antitrust law. I have been both lead counsel and co-lead

coimsel in several federal class actions. My clients in these cases include

individuals, as well as private and public entities. Such cases involve an

extensive law and motion practice, as well as comprehensive pre-trial orders

and discovery plans. Essentially, most securities/antitTust litigation is usually

resolved after pre-trial motions, hearings, and extensive discovery.

2. Describe your typical former clients, and mention tke areas, if any, in

which you have specialized.
1204

SENATE JUDICIAR'^' COMMITTEE QUESTIONNAIRE Frank C. DarnreU. Jr.

Agricultural associations - Administrative law. Congressional lobb>-ing

Agricultural production companies - Business litigation, administrative law

Construction - Construction and real estate litigation, lender liability litigation

Consumer product manufacturers - Administrative law, business litigation

Food processing - Administrative law, administrative mandamus,

environmental law '

Public entities - Antitnist litigation, state administrative proceedings.

Congressional lobbying

Resource recover)' companies • Administrative law, business litigation.

environmental law

Retail store companies - Business litigation, advertising laws, liability defense

litigation

Wineries - Business litigation, administrative law, state and federal alcoholic

beverage laws and regulations

In addition, fiom time to time, I represent or advise ntaneious individual and

business clients I have known for years, some for a lifetime, on a variety of

business-related legal problems.

Did you appear in court frequently, occasionally, or not at alt? Ifthe

frcquenc)' of your appearance in court varied, describe each sucb

variance, giving dates.

196S-1980

Initially, most of my litigation experience was in state courts and state

agencies. As a state prosecutor and as a private litigator, 1 appeared

frequently in court on law and motion matters and bench and jury trials.

From time to time throughout this period, I conducted trials in federal court

and represented clients before state ^ipeUate courts and in state

administrative hearings.

1980-1988

Through much ofthe 1980s, I spent considerable time in Washington, D.C^

on behalf of various clients. As discussed above, during this time period I

was engaged as counsel for a number of major public and private capital

projects. They included several resource recovery projects; a diqnite relating

to off-shore oil leases in the Santa Barbara Channel on behalfofa consortium

ofindependent oil companies; several public power projects undertaken by

local irrigation districts/public utilities; the purchase of Conrail by a major

transportation company; the development and funding of the
1205

SENATE JIIPICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

Superconducting Super Collider by the University of California; the

development of federal marketing orders for California table grapes; and

several large real estate developments. In addition, I also was retained to

represent several California agricultural associations and food processing and

manufacturing companies relating to a variety of legal, administrative, and

legislative issues. As a result, for a period oftime, my litigation practice was

somewhat limited. Nevertheless, I made a number of appearances on behalf

of clients in state courts and before administrative bodies and occasionally in

federal court.

1988-prestnt

I resumed a full-time business litigation practice, which has recently become

primarily focused in the federal courts of the Eastern, Northern and Central

Districts of California. However, since 1988,1 have also made frequent

appearances in state court as well.

2. What percentage of these appearances was in:

(a) Federal courts: 20%

(b) State courts of record: 65%

(c) Other courts: 15%

As noted above, my practice has increasingly involved federal court

matters.

3. What percentage of your litigation was:

(a) Civil: 90%

(b) Criminal: 10%

1965-80

In my early years ofpractice as a prosecutor, all litigated matters were

criminal. My first several years in private practice I also defended a

number of criminal matters.

1980-present

Since 1980 my practice has been virmally all civil in nature.

4. State the number of cases in courts of record you tried to verdict

or judgment (rather than settled), indicating whether you were

45-964 98-39
1206

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell^ Jr.

sole counsel, chier counsel, or associate counsel

Trials as sole counsel - approximately 100

Trials as chief counsel - approximately 15

Trials as associate counsel - approximately 15

During my years as a prosecutor, 1 conducted numerous JUT>' and

bench trials as well as approximately 40 crimiiud appeals and writs.

In private civil practice the ntimber of trials decreased as their

complexity' grew.

1980-present

Increasingly, I act as chief counsel with several attorneys assisting me

in ver\' complex matters.

S. What percentage of these trials was:

(a) Jur)-: 25%

(b) Non-jur^: 75%

18. Litigation: Describe the ten most signiflcant litigated matters which you persoaall}'

bandied. Give the citations, ifthe cases were reported, and the docket number and date

if unreported. Give a capsule summar}- of the substance of each case. Identify' the

party or parties whom you represented; describe in detail the nature of your

participation in the litigation and the final disposition of the case. Also state as to each

case:

a. the date of representation;

b. the name of the court and the name ofthejndge or judges before whom tbecaac

was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of

principal counsel for each of the other parties.

1. Bronco Wine Co. v. Bureau ofAlcohol, Tobacco and Firearms, el al.

Summary: In October 1996, the Bureau of Alcohol, Tobacco and Fireanns summarily and

without notice seized 32,000 cases of Rutherford Vineyards brand wine from our

client. I was chief counsel assisted by several law finns in Sacramento, San

M
1207

SENATE JUDICIARY COMMITTEE QUESTIONTSAIRE

Francisco, Washinglon, D.C. and New York City. The ATF claimed the label was

in violation of 27 C.F.R. 4.39(i) which provides that wine sold under brand names

incorporating the names of viticultural areas must be produced fixim the viticultural

area. AAer months of negotiations. Bronco filed an action for injunctive relief

alleging violation of due process of the Fifth Amendment and the federal APA

(Administrative Procedures Act). A hearing was held on a temporary restraining

order, and the court denied the application. An amended complaint has been filed

adding the denial ofdue process on grounds that 4.39(i) violates I5U.S.C. 1052(a)

(the Lanham Act), which implements the provisions ofthe recently enacted Uruguay

Round Agreement Act, 19 U.S.C. 3501, et seq. There has been considerable

discovery. I have conducted virtually all depositions and most hearings on behalf of

the plaintiff. The challenge to the federal wine label regulations based on U.S.

trademark law has attracted wide-spread interest throughout California's wine

industry and has been discussed in various trade journals and magazines. As a result,

the industr)' has formed a special committee to study the matter as the issue affects

literally hundreds of wine labels.

a. 1996-present

b. Counsel for PlainlifT

Court: U.S. District Court for the District of California, Eastern District, Case No.

CV-F-96-6354 REC DLB

Judge: Hon. Robert E. Coyle

c. Opposing Counsel: Daniel E. Sensing, U.S. Attorney's Office, 1130 O Street,

Fresno, CA 93721, Phone (209) 498-7272

2. Hardy Soderholm and Cheryl Soderholm v Rubbermaid. Inc.

Summary: This case was filed on behalf of Hardy and Cheryl Soderhohn against Rubbermaid,

Inc., in the United States District Court for the Northern District of California for

several hundred thousand dollars for fraud, negligent misrepresentation and punitive

damages. I was chief counsel and handled some 30 depositions in California,

Colorado, Ohio, Pennsylvania and New Jersey. I also and handled numerous motions

including a motion to dismiss, summary judgment and some 15 motions in limine.

The jury trial lasted three weeks and resulted in a verdict for the defendant.

Rubbermaid falsely represented to Mr. and Mrs. Soderholm that it supported

Plaintiffs business plan to franchise "Everything" Rubbermaid stores. Upon the

successful completion of a test program, Plaintiff intended to own a number ofsuch

stores themselves. Rubbermaid failed to disclose to Mr. and Mrs. Soderholm its

intention to go into the corporate retail business itself and to use the Soderholms'

single store as a test for its own corporate program. Rubbermaid withdrew its

11
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

support of the Soderholms' store afier they had invested their life savings in the

business plan. The case presented a challenge to this corporation's conduct is

defrauding and misleading these individual entrepreneurs to their substantial

detriment for the benefit of the corporation. Legal issues related to fraud,

promissory estoppel, breach of contract, breach ofthird party beneficiary contract,

admissibility of hearsay evidence, expert and lay opinion testimony, and character

evidence, determination of the proper measure of damages for fraud and tortious

interference with contractiud relations and economic advantage.

a. 1994-1996

b. Counsel for Plaintiffs

Ccilll: U.S. District Court for the District of California, Northern District, Case No.

C94-3583

Judge: Hon. William H. Orrick

c. Opposing Counsel: George E. Leonard, Esq., Shughart, Thomson & Kilroy, Twelve

Wyandotte Plaza, 120 W. 12th Street, Kansas City, MO 64105-1929. Phone (816)

421-3355

3. Bronco Wine Co. etal. adv. Glen Ellen, etal.

Summary: This was a cross-complaint filed in Sonoma County Superior Court on behalf ofthe

California wine distributor of Glen Ellen wines, the largest selling Chardonnay uine

in America, for wrongful termination of a distributorship, which claimed damages

for failure of plaintiffto honor bulk wine contracts. The case was widely reported

in the wine trade press since it involved important industry issues relating to wine

distributorship and long-term wine supply agreements. I was chief counsel and

conducted virtually all discover)' and motions, as well as the jury trial, on behalf of

the plaintiff The pre-trial motions included demuirers, motions for injunctix-e relief,

summary judgment, and some 25 motions in liraine. The jury trial lasted three

months and resulted in a verdict on the cross-complaint for S2.5 million, as well as

a verdict against the cross-complainant for several million dollars.

a. 1990-1993

b. Counsel for Defendant Bronco Wine Co.

Cflua: Sonoma County Superior Court, Case No. 187834

Judge: Hon. Elaine Waters

c. Opposing Counsel: Robert R. Cross, Esq., Broad, Schultz, Larson & Wmeberg, One

California Street, 14th Floor, San Francisco, CA 94111-5482, Phone (415) 9864)300

12
ii:i

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SENATE JUDICIARY COMAIITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

4. 5. Martinelli & Co. v. Department ofConservation, el al.

''^ Summan': There was a complainl for uiit of mandate and pennanent injunction against the

'^- Department of Conservation ofthe State ofCalifornia. At issue was enforcement of

*' a recently enacted Beverage Container Recycling and Litter Reduction Act (known

* as the "Bottle Bill") against a major California &uit juice manufacturer, S. Martinelli

^ & Co., without hearing or opportunity to explain its legal position that it was legally

' '• exempt from the Bottle Bill. I was chief counsel in this matter. The State contended

^'' Martinelli's product was no different than a soft drink such as Coke or Pepsi.

Martinelli was ordered to relabel over 300,000 cases of juice which had been

packaged before the enactment ofthe Bottle Bill. In addition, Martinelli was ordered

to relabel over a million bottles of its products and pay nearly $300,000 in

redemption fees. A hearing was held before Superior Court Judge Cecily Bond in

Sacramento. The case was important to the fiiiit juice industry. At the hearing I

'- established that Cahfomia's Food & Drug Law and parallel provisions ofFederal law

exempted imdiluted firuit juice from the definition of "soft driitk." As a result, the

court enjoined the enforcement of the Bottle Bill against undiluted &uit juice

products, and Martinelli in particular. 1 was chief coimsel in this matter.

is a. 1987-1991

b. Counsel for Plaintiff

CfiUIl: Sacramento Count)- Superior Court, Case No. 364946

Judge: Hon. Cecily Bond

c. Opposing Counsel: Charles Getz, Esq., Anoraey General's Office, 50 Fremont

Street, Suite 300, San Francisco, CA 94105-2239, Phone (415) 703-1308

5. C Mondavi & Sons v. The Bureau ofAlcohol, Tobacco and Firearms, el al.

Summary: InJune 1997, theBureauofAlcohol,TobaccoandFirearms(ATT)issuedaceaseand

desist order against C. Mondavi & Sons, which operates the Charles Krug Winery,

the oldest winery in the Napa Valley. C. Mondavi & Sons does business under the

name CK Mondavi. ATF claimed that CK Mondavi brand wines were labeled in

violation of 27 C.F.R. Section 4.39(k), which is part of the Federal Alcohol

Administration Act (FAA Act). Section 4.39(k) prohibits any statements or

representations on wine labels which indicate an origin other than the true place of

origin of the wine. Since 1995, CK Mondavi brand wines have been made from

grapes grown throughout the State of California, however, the labels contain

references to the "Napa Valley," the location ofthe winery. As a result ofthe ATF's

cease and desist order, the Mondavi family was prohibited from selling their CK

Mondavi brand wines in Interstate commerce and conducting any further bottling

activities at a substantial loss to the winery. Af^er several unsuccessful attempts at

13
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

resolving the maner through discussions with ATF, C. Mondavi & Sons filed an

action in the United State District Court for the Northern District of California for

injunctive relief alleging violations ofthe due process clause ofthe Fifth Amendment

and the federal Administrative Procedure Act (APA). The hearing on MoiKla>i's

application for a temporary' restraining order was held on Thursday, July 3. The

Court postponed its ruling on the TRO and continued the matter pending funbei

settlement discussions between the parties. The parties have now negotiated a

settlement of most issues and, in all likelihood, will reach a final settlement

agreement within the next month. I have conducted all ofthe settlement Degotiati<»is

with the ATF and its counsel.

a. 1997

b. Counsel for Plaintiff

Ceua: U.S. District Court for the District ofCalifornia, Northern District. Case No.

97-2375 SBA

Judge: Hon. Saundra B. Armstrong

c. Opposing Counsel: Joann Swanson, Esq., U.S. Attorney's Office, Northern District,

450 Golden Gate Avenue, San Francisco, CA 94102, Phone (415) 556-1126.

6. Cal-Lina v. Congleion

Summar\': This involves a complex serious of business transactions between Cal-Lina, Inc. and

Vem and Carol Congleton regarding the purchase of real property, a loan of

$325,000.00 by Cal-Lina to the Congletons and an agreement to develop and nuoket

a patented braking system for the trucking industry. I was chiefcotmsel in the matter.

Eventually, the Congletons filed for protection tmder the bankruptcy laws. In

addition to claims filed by Cal-Lina against the debtors, Cal-Lina sought relief fixnn

an automatic stay to pursue its rights to enforce a state court judgment for unlawful

detainer. A hearing was held first to determine whether the debtors' legal and

equitable interest in the real property was terminated tmder 11 U.S.C. 365. The

judge granted relief fiom the automatic stay, and trial was held for claims for

possession ofthe real property in question and claims against Cal-Lina for certain

monies owed to the debtors. Cal-Lina prevailed on all issues.

a. 1988

b. Counsel for Cal-Lina

Court: U.S. Bankruptcy Court for the Eastern District of California, Case No. 988-

02504. M8g-0619

Judge: Hon. J. W. Hedrick, Jr.

14
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

c. Opposing Counsel: Cliff McGhee, Esq., 1130 L Streei, Suite B. Modesto, CA

95354, Phone (209) 577-8000

7. MidCal Aluminum, Inc. v. Baxter Rice as Director ofthe Department of Alcoholic Beverage

Control ofthe Stale ofCalifornia; California Retail Liquor DealersAssociation, Intervenor

Summary: This case was a mandamus action filed by MidCal Aluminum, a subsidiary of E. &

i. Gallo Winery, challenging Califomia's Liquor Fair Trade Law as a violation ofthe

Sherman Act I was sole counsel through the slate appellate process and then ser\'ed

as co-counsel when the petition of writ of certiorari was filed in the U.S. Supreme

Court. The essence ofthe challenge was that the State of California had no vital

interest or oversight ofsetting the retail price of wine. Essentially, absent a clearly

articulated aaxc policy, the Califotnia wine retailers were engaging in price fixing io

violation of Section One ofthe Sherman Act. After filing of briefs by Petitioner, the

State ofCalifornia, and Intervenor, CaUfomia Retail Liquor Dealers Association, and

after oral argument. Justice Robert Puglia issued an alternative writ of mandate

commanding the stay of enforcement of the wine price posting provisions of the

California Alcoholic Beverage Control Act After fiuther briefing and oral argument,

the appellate court rendered a unanimous decision finding Califomia's Alcoholic

Beverage Control Law in violation of the Sherman Act and issued the peremptory

writ. (MidCal Aluminum, Inc. v. Rice (1979) 90 Cal.App.3d 979). A petition for

rehearing was denied. lnter\'enor then petitioned the California Supreme Court for

hearing. Upon issuance of a stay by the intermediate appellate court, Intervenor then

petitioned the United States Supreme Court for issuance of a writ of certiorari. The

Supreme Court issued the writ. Jack Owens ofthe law firm of Orrick Herrington

became lead counsel at this time. Mr. Owens argued the case before the Supreme

Court. In an opinion rendered by Justice Powell, the United States Supreme Court

found that California Alcoholic Beverage Act violated the Sherman Act (California

Retail Liquor Dealers Association v. MidCal Aluminum, Inc, 445 U.S. 97 (1980)).

MidCal is the landmark antitrust case defining the state action doctrine.

a. 1978

b. Co-counsel for MidCal Aluminum: Co-Counsel: Jack Owens, E. & J. Gallo Winery,

P.O. Box 1130, Modesto, CA 95353 (209) 579-3791

Court. Court ofAppeal ofthe State of California, Third Appellate District, Case No.

3 CIV 17992

Judye: Hon. Robert Puglia

c. Opposing Coimsel: Attomevs fi;)r PefCPi*'?"'' L- Stephen Porter and George J. Roth,

Anomey General's Office, 555 Capitol Mall, Suite 350, Sacramento, CA 95814,

Phone (916) 445-6221; Atinmev for Intervenor: William T. Chidlaw, Point West

15
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Dainren. Jr.

Executive Centre, 1455 Response Road, Suite 19], Sacramento, CA 95815, Phone

(916) 920-0202

8. G. W. Hume Company, Zack C. Monroe, el al. v. Merchants Refrigerating Company of

California; Jnlervenor: California Freestone Peach Assn.

Summare: My client, G. W. Hume Company, was a major cannery which had filed for

protection under Cbapia XI ofthe Bankruptcy Act after an action bad been filed in

Superior Court alleging negligence in the processing of a large quantity of peaches

for&eezing. I was sole counsel for Hume. Hume was one of California's primary

processors of catmed peaches. G. W. Hume delivered over 80,000 cases of canned

peaches to be quick frozen at Merchant Refrigerating Company for delivery to

various U.S. militar}' installations. This represented a significant portion ofthe 1970

peach crop. The peaches spoiled during the freezing process. As a result, claims

were filed by the California Freestone Peach Association against Hume for

improperly canning the peaches. After Hume filed for bankruptcy protection, Hume

filed a claim for damages negligence against Merchants for failure to properly freeze

the peaches. The matter was litigated over a period ofseveral weeks. Several food

processing experts testified, and numerous witnesses testified on both sides as to

harvesting, processing and freezing of peaches. The court found in favor of Hume

and found Merchants liable for damages caused by its negligence and breach of

implied warranty.

a. 1971-72

b. Counsel for Plaintiff

Court: Stanislaus County Superior Court, Case No. 111123 and U.S. Bankruptcy

Court Case No. 19189

iudiS^ Hon. William Zeff (Superior Covirt) and Hon. Fred Reyland (Bankruptcy

Court)

c. Opposing Counsel: Attomev for Defendant: Jerome F. Downs. Thornton. Tavlor &

Downs, 311 California Street, San Francisco, CA 94104, Phone (415) 421-8890;

Attomev for Intervenor: William J. Bush, Hanson, Bridgett, Mareus & Jenkins.

Citizens Building. One Keamy Street. San Francisco, CA 94105, Phone (415) 781 -

5500

9. Ronald Davis, el al. v. Del Puerlo Hospital, el al.

Summary: I was Plaintiffs counsel for the family of a 16-year-old girl who was found dead in

a bam on the family ranch the moming after her release fitim the hospital for injuries

sustained in an automobile accident. I was plaimifTs trial counsel. The cause of

death was determined to be trauma to the brain. The hospital's defense was that the

16
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SENATE JUDICIARY COMMITTEE QUESTIONTSAIRE Frank C. Damrell. Jr.

r

young woman died as a result of a fall in the bam or foul play. After exteiuive

discovery and a lengthy jury trial, the jury found 9 to 3 for the hospital.

a. 1978

b. Counsel for Plaintiffs

Court: Stanislaus Superior Court, Case No. 133S79

Judge: Hon. Gerald V. Underwood

c. Opposing Counsel: Mario Beltrami, McCormick, Barstow, Sheppard, Coyle &

Wayte, 400 Guarantee Savings Building, 1171 Fulton Mall, Fresno, CA 93721,

Phone(209) 442-1150

10. Sueanne Smith, el at. v. Nicanor Villanueva Munoz, el al.

Summary: The Plaintiff was a teenager who was a passenger on a motorcycle operated by one

of the defendants. 1 was plaintiffs trial counsel. Theoperator lost control ofthe

motorcycle in an effort to brake the vehicle. As a result, Sueanne Smith's right leg

was caught under the motorcycle and was extensively damaged. The use of her right

leg was permanently impaired. Defendant Munoz had limited assets and insurance;

however, during the course of discovery, it was disclosed that the motorcycle had

been repaired just prior to the accident by the Sears Roebuck Automobile Repair

Center. The trial turned on the issue of causation of the repair work on the apparent

malfunction of the motorcycle. After extensive testimony of various witnesses,

including plaintiffs expert engineers, plaintiff rested. Defendant Sears Roebuck

decided to pay Plaintiffs demand for damages ofseveral hundred thousand dollars.

a. 1975

b. Counsel for Minor PlaintifTand Mother as Guardian ad Lilem

CQUQ: Stanislaus County Superior Court, Case No. 122433

Judge: Hon. Frank Pierson

c. Opposing Counsel: For Defendant Munoz: Cruz F. Pottillo, 316 Bank of America

Building, Stockton, CA, (current address and phone niunber imknown); for

Defendant Sears. Roebuck & Co.: Kroloff, Belcher, Smart, Ford & Notris. 1044 N.

El Dorado, Stockton, CA, Phone (209) 478-2000; for Defendant J.V.I. F.nterprises.

Inc.: Mayall, Hurley, Knutsen, Smith & Green, 37 Hunter Square Plaza, Stockton,

CA, Phone (209) 477-3833; for Defendant Rodnev Blane Farrell: Bnmn & Lacey,

928 12th Street, Modesto, CA, Phone (209) 521-2133.

19. Le^al Activities: Describe the most ilgnificant legal activities you have punued,

17
1214

SENATE JUDICIARY COMMTITEE QUESTIONNAIRE Frank C. Damren. Jr.

includiiig significant litigation which did not progress to trial or legal matters that did

not involve litigation. Describe the nature of your participation in thu question, please

omit any information protected by the attorney-client pri>'ilege (unless the pmil^e

has been waived.)

1. County of Stanislaus, a public entity, and Mary Grogan, an individual, on behalfof

themselves and all entities andpersons similarly situated v. Pacific Gas & Electric

Co., et al.

This was a complaint filed in the United States District Court for the Eastern District of

California on behalf of California ratepayers against PG&E and its subsidiaries for violation

of federal and state antitrust laws, which claimed damages of nearly one billion dollars

compensatory damages in addition to treble damages. The complaint alleges that PG&E and

its subsidiaries entered into an illegal agreement in Canada with a cartel of Canadian natural

gas producers to fix the price of gas sold to California businesses and consumers and to

preclude them from purchasing alternate, lower cost Canadian gas from any other supply.

The pivotal legal issues related to the application ofthe filed rate doctrine (Keogh v. Chicago

& S.W. Railway, 260 U.S. 156 (1922)) and the state action doctrine (California Retail

Liquor Dealers Assn. v. Midcal Aluminum. Inc.. (445 U.S. 97 (1980)). The case has been

closely followed throughout the natural gas industry by industrial users of gas and the

California Public Utilities Commission since it involved significant issues relating to the

purchase and sale of natural gas. The high cost of natural gas in California is often cited as

the reason thai many businesses have either left the state or have selected other states to start

their operations. The case involved extensive briefmg and oral argument, including motions

to dismiss the original and first amended complaints, as well as subsequent appellate briefs

and oral argument. The Ninth Circuit affirmed the District Court's decision to grant a

12(b)(6) motion on the first amended complaint. Plaintiffs intend to file a petition for writ

of certiorari in the United States Supreme Coiut. The State of California intends to join as

an amicus petitioner in this matter.

2. Betty L Armoni, el al v. Gottschalks, Inc.

Gottschalks owns a chain of department stores through California. This case was a class

action filed in the United States District Court for the Eastern District on behalf of a class of

individual purchasers of Gottschalks, Inc. common stock against Gottschalks, Inc., several

of its officers and directors, Ernest and Young, the company's accotmtant, and various

underwriters ofthe company's public offerings for violations of Sections 11,12 and IS of

the Securities Act of 1933, Section I Ob ofthe Securities Exchange Act of 1934 and Rule

lOb-5, as well as various state law causes of action, which claimed several millions dollars

in compensatory and punitive damages. The case was widely reported throughout Nortben

California since the case involved serious wrongdoing on the pan ofa large, local retailer and

its individual officers and directors. Many residents throughout California lost substantial

IS
t:k

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SENATE JUDICIARY COMMITTEE QUE$T10N7<AIRE Frank C. Damrtll. Jr.

amounts ofmoney when the price of Gottschalks' stock dropped upon the announcement by

IS. the company that it had misstated the true condition of the company and made false and

m misleading statements regarding its Voluntary Employee Benefits Association Plan.

It; Criminal proceedings were initiated against various officers of the company. The pre-trial

motions included multiple hearings on motions to dismiss. The case was settled in favor of

the plaintiff class for an amount in excess of SS million.

cr

ii 3. Bronco U'ine Company / California Department ofAyriculnire / Annual Grape Crush

Report Administrative Action

z'i Each year wineries are required to furnish the California Department of Food & Agriculttire

;;. (the "department") with certain infoimation pertaining to the annual grape harvest, including

•^: tonnage and price of grapes purchased by grape growing district. The department then

iH summarizes the information and publishes it in an annual report entitled the California Grape

ai Cnish Report. The department's authority to collect such data and publish the report is set

{g; forth in the State Food & Agriculture Code. These reporting instructions were gradually

ft changed through a series of private meetings with selected industry members without

- j following formal rulemaking procedures.

,i While our client continued to report the same data it had reported for the past twent)- years,

,; it now found itself in violation of the new reporting instructions. I claimed thai the

j. department's newly adopted instructions, in effect, created a regulatory scheme without

•i following the formal rulemaking procedures and without authorization of the enabling

f statute. When the notice was given to the department that our client refiised to follow this

f illegal regulation, the department armounced that it would not enforce the instructions.

f Instead, the department initiated formal rulemaking, proposing a regulation nearly identical

I to the previous instructions. Essentially, the proposed instructions sought to change the

( character ofthe report from a statistical tool to a pricing index in direct contravention to the

j enabling statute. I challenged the original changes to the instructions at the administrative

hearing. All segments of California's wine industry participated. The Administrative Law

Judge concurred with our argimient and evidence and declared the proposed regulation

invalid.

I

4. University ofCalifornia / Superconducting Super Collider

This involved an effort by the University of California to develop a massive multi-billion

dollar scientific research facility encompassing thousands of acres to be build in San Joaquin

County, California. The fiinding ofthis project was subject to Congressional appropriations

and the selection of a site among several competing state universities, most notably Colorado

and Texas. The Univereity retained me to coordinate legal aspects ofthe project with state

and local agencies. It became necessary to conduct meetings with community groups

throughout California's Central Valley, to meet with members of California's Governor's

office and legislature regarding the extent ofstate fiinding and support, and to coordinate the

19
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SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. DamrelU Jr.

lobbying activity with various firms in Washington.

5. Coachella Vallev Table Grape Growers Association

During the 1980s, 1 was involved in several Congressional lobbying efforts on behalf of both

public and private entities, including local public utilities, a major transportation company,

and agricultural organizations. An example ofone such effort is the Coachella Valley Table

Grape Growers Association.

The Coachella Valley is located in the Pahn Spring/Indio region of Riverside County in

Southern California. Because of unique climate and soil conditions, the Coachella Valley

produces the first and largest crop ofAmerica's table grapes. It faced competition from table

grapes from Mexico w^ch did not meet the same quality standards as the American grapes.

As a result, I was retained to draft and lobby a federal marketing bill w^iich would require

Mexican table grapes to meet the same quality standards as American grapes. As a restilt.

I was engaged over a twelve-month period (1) preparing testimony, (2) meeting with

members and staff revising legislation drafts, (3) meeting with representatives of U.S.

Agriculture Department and U.S. State Department, and (4) negotiating with GovemmeiU

of Mexico and the Washington law firm of Arnold & Porter. In 1983, Congress passed the

bill which enacted the federal marketing order for Coachella Valley table grapes.

20
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^^ SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

11. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIQ

:a

1. List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits which

you expect to derive from previous business relationships, professional services, firm

''' memberships, former employers, clients, or customers. Please describe the

^* arrangements you have made to be compensated in the future for any financial or

business interest.

*' Upon tennination ofmy employment, the finn will purchase my shareholder interests in the

'^ firm pursuant to a finn shareholder agreement. There are several contingent fee class action

^' matters pending. Iffees are realized in these matters, 1 will receive a percentage ofthe fees

*' earned by our firm that will be set prior to my departure.

*^ It is my present intention to remain as a general partner in The Shannon Company. I would

<^ continue to receive income derived fi'om rents fi'om the property owned by Shannon. My

<' wife and I would continue to own an office building currently leased from which we derive

f* rental income.

P

I expect to continue as a trustee for a Oallo family trust, the beneficiaries of which are my

nieces and nephews. I receive no compensation as trustee and undertake this responsibility

solely as a family member.

I would recuse myselffix>m all matters in which the above parties or entities or interests are

involved.

2. Explain bow 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-ofinterest during your initial service in the position to which you have been nominated.

I will recuse myself fiom any matters which include any clients of my firm or members of

my firm, as well as the litigants or attorneys involved in the cases specified in Answer 1

above. I will also recuse myself from any matters involving tenants ofthe buildings I own

or have an economic interest in. In all matters, I will follow the guidelines of the Code of

Judicial Conduct.

3. Do you have any plans, commitments, or agreements to pursue outside employment,

with or without compensation, during your service with the court? Ifso, explain.

No.

21
1218

SENATE JUPiaARY COMMITTEE QUESTIONNAIRE Frank C. DamrelU Jr.

List sources and amounts of all income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items exceeding

SSOO or more (If you prefer to do so, copies ofthe financial disclosure report, required

by the Ethics in Government Act of 1978, may be substituted here.)

See attached financial disclosure report attached as Exhibit "C."

Please complete the attached financial net worth statement in detail (add schedules as

called for).

See attached net worth statement attached as Exhibit "D."

Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

Yes. From time to time I have assisted candidates by hosting events and providing informal

advice to several candidates for state and national office. 1 may have received honorary titles

such as County Chair or Co-Chair or member of a Steering Committee, but 1 had no official

role in the campaigns.

Jerry Brown for President, 1976 - Delegate to Democratic National Convention, 1976

Jimmy Carter for President, 1980 ~ Delegate to Democratic National Convention, 1980

22
1219

^ SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

,p UI. GENERAL (PUBLIC)

tx

^0 1. AD ethical consideratioo 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 fuiflli these responsibilities listing

ipecific instances and the amount of time devoted to each.

^ Pro Bono Activities

Parent Resource Center

811 Sth Street

Modesto, CA 95351

0 Day-to-day advice to volunteer county-wide agency which serves families to prevent

,1 child abuse and to provide parent and family mentoring. On many occasions 1

provided legal advice and personal assistance to the Center.

P

Sickle Cell Anemia Foundation

c/o Mel Williams

{- 704 Spencer Avenue

Modesto, CA 95351

Preparation of corporate documents; review of annual minutes (1978-92). 1 have

1 routinely provided advice to the Foundation's president from time to time.

In addition, 1 have supervised or provided pro bono legal services to the following:

Haven Women's Center of Stanislaus County

619 13th StreeU Suite I

Modesto, CA 95354

(209)524-4331

I have supervised legal services including review of pleadings filed on behalf of

clients ofthe Center.

23
1220

SENATE JUDICIARY CX)MMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.

Central Valley Village Corporation (a facilit)' for those with limited physical fiinctions)

c/o Madelyn Amaral

1030 Elm Avenue

Modesto, CA 95351

(209) 578-5780

I met with the Corporation's organizos at the inception oftheir efforts and provided

legal assistance iiKluding drafting ofincorporation documents, ^ting and permitting

ofthe facility.

St. Joseph Church

1813 Oakdale Road

Modesto, CA 95355

Provided legal counsel to parish priest from time to time and retained on pro bono

basis to advise relating to potential liabilit)' issues.

Townsend Opera Players

P.O. Box 4519

Modesto, CA 95352

Legal advice

Finally, on numerous occasions, I advise individuals or groups ofminimal or no income in

legal matters for no fee.

Throughout my professional life, I have tried to use my skills and experience for the service

ofmy community. The following are some examples. Early in my career I assisted in the

creation of a Stanislaus Count)' Consumer Complaint and Advisory position. 1 spent several

years as a member and as Chair of the California State Consumer Advisory Council

(appointed by Governors Reagan and Brown), the advisory committee to the State

Depanment of Consumer Affairs. This department licenses and regulates much of the

business and professional services from pharmacists to the automobile repair industry. The

Council reviewed complaints from consumers and regulated business regarding the operation

of the Department and made recotiuiendations to both the Department and the Governor.

In my capacity as President ofthe California Consumer Federation, I led a state volimteer

organization which reviewed all consumer- related legislation and policy for the State of

California.

I have volunteered my time to a variety of local cotimiunity endeavors. These endeavors

have ranged from the arts to education to social issues and basic human needs such as food

and shelter. 1 have regularly served and delivered food for the needy and hosted numerous

fiuid-raisers for various charities which assist the disadvantaged.

24
1221

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

The American Bar Association's Commentary to its Code of Judicial Conduct states

tliat it is inappropriate for a judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or religioD. Do you currently belong,

or have you belonged, to any organization which discriminates — through either formal

membership requirements or the practical implementation of membership policies?

If so, list, with dates of membership. What you have done to try to change these

policies?

Initially, the Sportsmen ofStanislaus was an athletic club limited to adult male membership.

There were no other restrictions on membership. Since 1985, it has been open to men,

women and families due, in part, to efforts of our law firm to expand the membership. I was

involved, as were members of our firm, in changing the bylaws to open membership to

women. I have been a member since 1968.

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to end

(including the circumstances which led to your nomination and interviews in which you

participated).

Yes, there is a selection committee.

Yes, the committee recommended me.

In December I was again asked to serve as a member of Senator Feinstein's advisory

committee for judicial appointments to the Eastern District of California. I advised the

Senator's Chief of Stafftliat I would not be able to serve as I was considering applying for

a newly vacant position myself.

I was initially interviewed by the Senator's Advisory Committee in Sacramento. I had only

met one ofthe committee members previously. 1 was advised that I was the orJy candidate

outside ofthe Sacramento area. (Modesto is some 70 miles south of Sacramento.) I believe

there were four candidates recommended out of many applicants. I was one ofthe four. I

was then interviewed by Senator Feirjstein. She asked me a number of questions, most of

which are contained in this questionnaire. When she asked why I wished to leave a

successful law practice, 1 recounted a similar question I asked my father many years ago

when he left his law practice to become a state trial judge. His answer to me was one word,

"service." According to my father, service to others was the highest form of citizenship. I

can think of no greater honor for any citizen than to serve our country as a federal judge.

Subsequently, 1 was involved in several extensive interviews by representatives of the

25
1222

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell, Jr.

Department of Justice. Initially, I u'as interviewed individually on several occasions and

then was the subject of a lengthy interview by four representatives ofthe Department. I also

had several lengthy interviews with an agent ofthe Federal Bureau ofInvestigation. These

intervieu's encompassed my entire professional life as well as my personal life, mcluding my

association with public activities and individuals, my travels and virtually every aspect of my

life since my high school years.

Most recently, I had a three-hour interview with a representative ofthe Standing Committee

on Federal Judiciary ofthe American Bar Association. I was questioned extensively about

my legal experience, my reasons for seeking judicial office and my academic, public, and

personal activities.

4. Has anyone involved in the process ofselecting you as a judicial nominee discussed wHb

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, issne, or question? IfM, please

explain fully.

No.

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

The role of the Federal judiciary within the Federal government, and within society

generall)', 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 leveb 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 thaa

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 indiWduals;

c A tendency by the judiciary to impose broad, affirmative duties apoa

governments and society;

d. A tendency by the judiciary toward loosening jurisdictioDal

requirements such as standing and ripeness; and

26
1223

SENATE JUDICIARY COMMITTEE QUESTIONNAIRE Frank C. Damrell. Jr.

A lendency by the judiciary to impose itself upon other institutions in tlie

manner of an administrator with continuing oversight responsibilities.

At the core ofArticle III jurisdiction are the notions of injury and causation.

The judge who strays ftom these strictures to solve "problems" tends to

personalize or politicize the judicial process. Not every problem is

susceptible to a judicial solution. Without abdicating the role ofthe federal

judiciary to ensure compliance with the Constitution, the court must adhere

to the notion that the business of the federal district coiut is to decide

controversies, not offer pronunciamentos for future generations. In doing so,

the district court must, whenever possible, follow the path ofprecedent in its

judgment ofsuch controversies.

A tendency to engage in judicial regulation usurps the constitutional authority

of the other branches of government and, in the long nm, undermines the

court's own authority. The more broad the order, the more difficult the

compliance and enforcement. In short, the imposition of extensive

affirmative duties on litigants and the corresponding oversight responsibilities

of a district court judge should be avoided.

Finally, the "who" and "when" ofjusticiability are central to federal court

jurisdiction. While the distinction between standing and ripeness is

sometimes blurred, clearly, federal adjudication must be predicated on

present or imminent injyay which is at hand and ready for adjudication. The

"loosening" of these basic requirements can only undermine the

Constitutional mandate of Article III jurisdiction.

27
1224

QUESTIONNAIRE FOR JUDICIAL NOMINEES

I. BIOGRAPHICAL INFORMATION (PUBLIC)

Full Name (include any former names used.)

Martin Joseph Jenkins

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

a. Residence.

Oakland, California

b. Office.

Alameda County Superior Court

Juvenile Division, Dept. 25

400 Broadway Street

Oakland, California 94607

Date and place of binli.

November 12, 1953; San Francisco, California.

Marital Status: (include maiden name of wife, or husband's name

List spouse's occupation, employer's name and business address(es)

I have never been married or divorced. I am a single and li

not have any children. I

Education: List each college and law school you have atteoda

including dates of attendance, degrees received, and the dates d^

were granted.

Colleges and

Law Schools Attended

City College of

San Francisco

Santa Clara University

University of San

Fr2u:icisco School of Law 1977

From ZQ

Degree

Received

1971 1973 A.A. (6/73)

1973 1976 B.A. HiSta

(12/96)

1977 1980 J.D. (6/80)
1225

Employment Record: List (by year) all business or professional

corporations, conq>anies, firms, or other enterprises, partnerships,

institutions and organizations, nonprofit or odierwise, including firms,

with wMch you were connected as an officer, director, partner,

proprietor, or employee since graduation from college.

a) January 1977-Januaxy 1979; San Francisco Parks and

Recreation Department, Part-time Recreation Director

b) ^ril 1977-Au9UBt 1977; Seattle Seabawks Professional

Football Team-Professional Athlete

c) Hay 1979-AuguBt 1979; Alameda County District Attorney's

Office, Student Law Clerk

d) August 19B0-July 1983; Alameda County District Attorney's

Office, Student Law Clerk and Deputy District Attorney

e) August 1983-Nay 1985; United States Department of

Justice, Civil Rights Oivlsion-Crlmlnal Section, Trial

Attorney

f) From May i98S-Deceniber 1989; Pacific Bell Coapany Legal

Department, General Litigation Department

g) Prom December 1989-Januaxy 24, 1992; Judge of the

Oakland-Piedmont-Bmeryvllle Municipal Court Judge

h) From January 24, 1992-PreBent; Judge of the Alameda

County Superior Court.

Military Service; Have you had any military service? If so, give

particulars, including dates, branch of service, rank or rate, serial

number and type of discharge received.

I have never served in the military.

Honora and Awarda: List any scholarships, fellowships, honorary

degrees, and honorary society memberships Out you believe would be

of interest to the Committee.

a) John F. Kennedy Scholarship, Oniversity of

Santa Clara (1973-1975)

b) Bronco Bench Athletic Scholarship, University

of Santa Clara (1976)
1226

c) National Collegiate Athletic Association,

Division II All American Team; Honoraible Mention 1977

d) George Helmer Scholarship Award; University

o£ San Freuicisco School of Law (1978)

e) Judge Harold J. Haley Award; 'Awaztled annually to

the Dean and Faculty of the university of

San Francisco School of Law to the meodser

of the Graduating Class evidencing Exceptional

Distinction in Scholarship, Character

and Activities" (1980)

f) United States Department of Justice Commendation

Award; In Recognition of Outstimding Service

to the Attorney General's Task Force on

Family Violence (1984)

g) Barrister's Club of Seui Francisco, Board of

Directors Award: For Bxen^lary Contributions

to the Life of the Club and to the Ideals of

Legal Justice atnd Professional Service (1988)

h) Abr2iham Lincoln High School "Hall of Fame Inductee" (May

1996)

i) Barrister's Club of S2ui Francisco, Board of

Directors Award: For Exemplary Contributions

to the Life of the Club and to the Ideals of

Legal Justice cuid Professional Service (1988) .

I have also received letters of comnendation from the

Federal Bureau of Investigation, the University ot Saa

Francisco and local high schools in San Francisco and

Oaidand.

Bar AggQciarions. List all bar associadons, legal or judicial-related

committees or conferences of which you are or have been a member

and give die titles and dates of any offices which you have held in socfa

groiq>s.

state Bar of California (1981-1990)

American Bar Association (1991-1993)

Alameda County Bar Association (1989-1994)

California Judges Association (1990-PreBent)

Association of Business Trial Lawyers (1997-Present)

3
1227

Charles Houston Bar Association (1982-Present)

San Francisco Bar Association Barristers' Club (1985-1989)

Donald R. McCullum Moot Court Board (1993-Present)

American Inns of Court, Barl Warren Inn (1996-Pre6ent)

University o£ San Francisco Law Assembly (1994-Prese&t)

National Institute for Trial Advocacy Teaching faculty (1990-

1993)

California Judicial Council's Family and Juvenile Law Advisory

Coomittee, Executive Committee Member (June 1996 to June 1997)

Teaching Faculty-California Center on Judicial Education and

Research (CJBR) (1990-Present).

California Supreme Court's Advisory Committee on Judicial

Ethics (March 1995-November 1996)

California State-Federal Judicial Council (November 1996 to

Present).

Other Memberghips: List all organizations to which you belong that are

active in lobbying before public bodies. Please list all otiier

organizations to which you belong.

Organixatioos which lobby before public bodiea:

Other than the California Judges Association and other bar

organizations, I do not belong to any organizations that lobby

before public bodies. However, from June 1996 through June

1997, I was a member of the Executive Committee of the

California Judicial Coiincil' s Family and Juvenile Law Advisory

Committee. The Executive Connittee occasionally submits

proposed legislation and apprises the legislature of the

ttapact of pending legislation on the California Juvenile

Courts.

OCber nemberaliip0:

Santa Clara University Board of Regents (1990-1995);

University of San Francisco Street Law Program, Board of

Directors (1988-PreBent);

Prescott-Joseph Center For Community Enhancement, Board of

Directors (1995-Present);
1228

Charles R. Lawrence III Scholarship Committee (1985-Present) ;

Abraham Lincoln High School Alumni Association (May 199Spresent)

Board of Directors, University of San Francisco Para-Legal

Studies Program (JXily 1990-June 1995) ;

Northern California Football Officiating Association (1985-

1997);

Collegiate Officials Association (1992-1997)

11. rourt Admission: List all couits in which you have been admiftrd to

practice, with dates of admission and lapses if any such memberships

lapsed. Please explain the reason for any lapse of membership. Give

die same information for administrative bodies which require special

admission to practice.

California Supreme Court and Intermediate Appellate courts

(May 1981) ;

California Trial Courts (May 1981);

lAiited States District Court, Northern District of California

(May 1981);

United States District Court, Eastern District of Wisconsic

(May 1984).

12. Published Writings: List the titles, publishers, and dates of books,

articles, reports or other published material you have written or edited

Please supply one copy of all published material not readily available

to the Committee. Also, please supply a copy of all speedies by yon

on issues involving constitutional law or legal policy. If there were

press reports about the speech, and they are readily available to yoo,

please supply them.

a) California Code of Judicial Bthiea and CommentarY. (April

15, 1996);

b) Controlling your Courtroom: Voir Dire and Trial

Management Workshop, "Statutes Related to Voir Dir«'

(September 29, 1992).
1229

The final draft of the California Code of Judicial Bthice was

a collaborative effort with Bthics Commi ttee Meaibers and Staff

Attorneys from the California Administrative Office of the

Courts involved in editing the Code. I have also attached an

overview of California Statutes relating to the conduct of

Voir Dire that I routinely give to all participants in my Voir

Dire Horlcshops. A copy of the materials referenced above are

attached hereto as Exhibit A.

3. Hialtb: What is die present state of your health? List the date of your

last irtiysical.

The present status of iny health is good. My last physical

examination was in April 1997.

4. Judicial Office: State (chronologically) any judicial offices you have

held, whettier such position was elected or appointed, and a description

of the jurisdiction of each such court.

In January 1992, I was appointed by Governor Pete Wilson to

, the Alameda County Superior Court and took my oath of office

on January 25, 1992. The Superior Court is the California's

trial court of general jurisdiction where civil cases,

irrespective of amount in controversy, and criminal felony

charges aire litigated. There are no limitations on the

' jurisdictional reach of the California Superior Courts save

and except those matters heard in inferior courts (i.e.,

municipal anA justice courts) and those matters specifically

venued in the Federal Court. I was re-elected to my Superior

Court Office in an uncontested election and begam my new six

year term on Jemuary 1, 1993. In November of 1989, I was

appointed by then Governor George Dukemejian as a Judge of the

OeOdand-Piedmont-Emeryville Municipal Court and took my oath

of office on December 26, 1989. California Municipal Courts

are courts of limited jurisdiction ani, as such, only civil

cases where the amount in controversy is less them $25,000.00,

misdemeanor criminal trials and felony preliminary hearings

are heard there. I held my Municipal Court Office until

January 24, 1992, when I was elevated to the Alameda County

Superior Court.
1230

IS. Citarions: If you are or have been a judge, provide: (1) Citations fo

the ten most significant opinions you have wxittea; (2) a short sammar

of and citations for all appellate opinions where our decisions wn

reversed or where your judgment was afBnned with significu

criticism of your substantive or procedural rulings; and (3) cttatiom fii

significant opinions on federal or state constitutional issues, togetix

widi the citation to appellate court rulings on such opinions. If any o

the opinions listed were not officially reported, please proyide copie

of the opinions.

1. Ten moat significant written opiniqos:

As a Judge of the Superior Court I have not typical!

issued written rulings and/or opinions. However, I w

assigned by Malcolm Lucas, Chief Justice of tli

California Supreme Court, to sit as a Justice Pro-Tea •

the California Court of Appeal, First District-Divisia

Tliree from May 1994 through September 1994. I ha*

selected ten opinions I wrote during my tenure on cli

Court of ;^peal for your review. A copy of ti

unpublished opinions referenced below are attached heret

as Exhibit B.

a) Pamela R. DeWitt-Carter et al . v. .Sharon JBiarp As Direcai

etc.. et al., California Court of Appeal, Fin

Appellate District-Division Three, Case Vo.

A063985;

b) People V. Stone, California Court of ;^peal, Firs

^^pellate District-Division Three Case Ho.

A0ei456. This decision is ptiblished and may b

found in the decisions of the California Courts tt

Appeal, 27 Cal. App. 3rd 187 (1994);

c) Robert Bashong v. Frank .S. Znlin. as Dirfff^fpr eti

California Court of Appeal, First District-Divigio

Three, Case No.: A063372;

d) Farrell v. Wolf. California Court of Appeal. Fin'

District-Division Three, Case No.: A061337

e) Samuel Ro.sario v. Diamond .Shamrock Corp. CalifoxnU

Court of J^peal, First Appellate District-Oivisui

Three, Case No.: A059644;
1231

f) People V. Edward Sanders. California Court of Appeal,

First Appellate District-Division Three, Case No.:

A060819;

g) Felzer v. Foxinders Title Company. California Court of

;4>peal, First Appellate District-Division Three,

Case Mo.: A0629e9;

h) In re Jason Cecil Bell. California Court of J^peal,

First Appellate District-Division Three, Case No.:

A065285;

i) People V. Jason Bell. California Court of Appeal, First

Appellate District-Division Three, Case No.:

A060970;

j) Roger C. Qn. v. Raymond Choy et al-, California court

of Appeal, First Appellate District-Division Three,

Case No.: A063285;

SvBBuary of reversals or affirmance with significant

criticism:

People V. Duong L.. California Court of Appeal, First

Appellate District, Division Four, Case No.: A074976.

The minor, Pirnn*? L •, and several other minors were

charged with First Degree Robbery. After hearing the

evidence, I found the allegations true and committed the

minor to our County juvenile csui^. At the sentencing

hearing I also increased the minor's maximum custody time

from six to eight years because he acted "In Concert"

with several other minors in the commission of the

Robbery. The appellate court reversed only that part of

my decision which subjected the minor to an increase in

maximum custody time. The court held that the increase

in the minor's potential custody time violated his right

to notice under the Due Process Clause inasmuch as the

petition (cooiplaint) failed to specifically allege the

"In Concert Allegation." A copy of the appellate opinion

in the QUIDS case is attached hereto as Exhibit C.

Citations for significant opinions on federal or state

oaaatitutlanal rulings:

1) People V. Stone, case Ho.: A061456

First Appellate District, Division Three, Case No.:

A061456. This decision is published and may be

found in the decisions of the California Courts of

Appeal, 27 Cal. i^E>P- 3»1 ^67 (1994).

8
1232

16. Public Office: State (chronologically any public offices you have bdd

other than judicial offices, including the terms of service and vrtidhB

such positions were elected or appointed. State (chronologically) u;

unsuccessful candidacies for elective public office.

None.

17. Legal Career:

a. Describe dironologically your law practice and e^>erience ifie

graduation from law school including:

1. Kiiether you served as a clerk to a judge, and if so, tb

name of the judge, die court, and the dates of the perin

you were a clerk;

I have never clerked for a judge.

2. whedier you practiced alone, and if so, the addresses an

dates;

I have never praticed as a sole practitioner.

3. the dates, names and addresses of law firms or officei

conq>ames or governmental agencies widi v^ch you ban

been connected, and the nature of your connection widi;

August 19B0-June 1983

Alameda County District Attorney's Office, 1225 Pallo

Street-9th Floor, Oa]aand CA., 94612. I was enploye!

initially as a student legal intern and promoted to cbi

position of Deputy District Attorney. As a DepuC]

District Attorney, I was assigned a docket of crinls*^

misdemeanor and felony cases for prosecution.

Ampiat 1983-May 19BS

United States Department of Justice, Civil JLiejbti

Division-Criminal Section, 950 Peiuisylvaiiia Avenue MOWashington D.C. 20530. I was hired as a Trial Attone;

and prosecuted criminal civil rights cases.
1233

May igBS-TW^nhoT- Tono

Pacific Bell Coaapany Legal Department, 140 New Montgomery

Street, lOth Floor, San Framcisco, California 94105. I

was assigned to the General Litigation Department and

represented Pacific Bell in civil litigation matters.

n»i-«nh«T- iqp«»-T»^ii^»iry 1992

Judge of the OaJdand-Piedmont-Bmeryville Municipal Court,

661 Washington Street, San Francisco, California 94607.

As a Judge of the Oakland Municipal court, I presided

over misdemeanor criminal matters, felony preliminary

hearings and civil cases where the amount in controversy

was less than $25,000.00.

•TamiaTy 1992 to Present

Judge of the Alameda County Superior Court, 1225 Fallon

Street, 2nd Floor, Oalcland, California 94612. As a judge

assigned to California's trial court of general

jurisdiction, I preside over felony criminal matters and

a wide variety of civil matters.

1. What has been the general duracter of your law practice,

dividing it into periods with dates if its character has

changed over the years?

Prooi May 1985 through December 1989, I was an

attorney in the General Litigation Division of

Pacific Bell's Corporate Legal Department. As an

attorney with Pacific Bell, I represented Pacific

Telesis and other Telesis subsidiaries including,-

Pacific Bell, Pac-Tel Mobile Access and Pacific

Bell Directory on a wide variety of legal matters.

My practice involved litigation in the following

areas: contracts, wrongful termination, personal

injury/product liability claims, real property,

insurance coverage, emd some debtor claims in

banScruptcy court.

In addition, I was routinely called upon to provide

advice and counsel to Telesis subsidiaries in the

following areas: federal amd state court ordered

wiretaps, axxi telephone fraud investigations

conducted by Pacific Bell, Sprint, MCI and AT&T.

From August 1983 through April 1985, I was en^loyed

as a Trial Attorney with the United States

Department of Justice, Civil Rights Division,

Criminal Section in Washington D.C. The Criminal

Section is responsible for the investigation and

prosecution of federal criminal civil rights

10
1234

violations in the following areas: use of excessive

force under color of state law, denial of equal

access to public accoomodations on the basis of

race, and interference with housing rights on

grounds of race or religious affiliation. As a

trial attorney with the Criminal Section, I

directed the investigation auid prosecution of

criminal civil rights from grand jury presentation

through pre-trial motions and trial. I also

represented the Goverxment in nm^«<i Btatas vMcMwrille et. al. wherein the Justice Department

successfully prosecuted several defendants for

conspiring to deprive an interracial couple of

their statutory right, pursucuit to 42 U.S.C. 3631,

to rent and occupy their home. The HODXllle case

was the Justice Department's first successful jury

prosecution of federal statute, IS n.S.C. 241,

where the underlying violation involved a statutory

right to housing. 42 U.S.C. 3631.

During my enqployment with the Department of

Justice, I was selected by Assistant Attorney

General Lois Haight Herrington to serve as a staff

member of 'Tbe Cnited States Attorney General's

Task Force on Family Violence." The "Task Force"

was commissioned by Attorney General William French

Smith to investigate and recoomend more effective

methods and procedures to reduce the gxrowing

incidence of spousal abuse, incest, child abuse and

elder abuse in the United States. I worked with

prosecutorial and other public agencies to identify

and prepare victims of "family violence" to give

oral testimony at public hearings in New York and

several other States. The Task Force's Report was

published in 1984, however I did not participate in

writing or editing the Report.

Prom Hay 1981 through July 1963, I was a Deputy

District Attorney in the Alaneda District

Attorney's Office. I prosecuted numerous felony

cases involving allegations of rape, robbery,

murder, theft and narcotic offenses. I personally

tried to verdict approximately 50 misdemeanor and

felony jury and bench trials during my eo^loyment

with the District Attorney's Office. I also

clerked for the Alameda County District Attorney

during and after my graduation from law school.

11
1235

2. Describe your typical fonner clients, and mention the

areas, if any, in which you have specialized?

In ray capacity as em attorney with the Dnited

States Department of Justice atnd the Alameda

District Attorney's Office, I represented local and

federal law enforcement agencies.

In my capacity as a litigation attorney with

Pacific Bell, I represented a private investor

owned regional telephone conpany. Pacific Bell was

subject to regulation by the California Public

ntllities Commission and the Federal Coniminlcation

Commission.

1. Did you appear in court frequently, occasionally, or not at

all? If the frequency of your appearances in court varied,

describe each such variance, giving date.

In all of my professional endeavors as a lawyer, I

have regularly appeared in court. As a Deputy

District Attorney in Alameda County, I appeared in

court every day. As a Trial Attorney with the

Department of Justice, I appeared in court during

jury trials <uid on all motions related to trial.

As an attorney with Pacific Bell, I appeared in

court at least once a week and more often when I

was in trial.

2. What percentage of these ^ipearances were in federal

and/or state courts of record:

a; Pacific Bell (1985-1989);

federal courts: 20%

state superior courts: 70%

state municipal courts: 10%

b) aaited states Department of Justice (1983-

1985)!

federal courts: 100%

C) Alameda County District Attorney's Office

(1980-1983)

federal courts: 0%

state superior courts: 50%

state municipal courts: 50%

12
1286

3. What percentage of your litigatioa was:

civil: 60%

criminal: 40%

4. State the number of cases in courts of record you tried to

verdict orjudgment (rather than settled), indicating wbeiba

you were sole counsel, chief counsel, or associate counsel.

I have personally tried in excess of 50 cases to

verdict in state and federal courts of record. I

have served as sole counsel in the majority of my

jury trials; however while employed with the

Department of Justice, I was routinely assigned cocounsel to assist in the preparation and trial of

cases.

5. What percentage of these trials were:

(a) jury: approximately 70%

(b) non-jury: 30%

18. Litigation: Describe the ten most significant litigated matters idiicft

you personally handled. Give the citations, if the cases were reported,

and the docket number and date ifunreported. Give a capsule sonamaiy

of the substance of each case. Identify the party or parties whom yon

represented; describe the detail the nature of your participation in the

litigation and the final disposition of the case. Also state as to each

case:

a. die date of representation;

b. thenameof 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 cocounsel and of principal counsel for each of die odier parties.

13
1237

Significant Caaea:

1) HALEM V PACTPir BRl.I, DIRECTORY

San Francisco Superior Court, Case NO.: 8fi5-2S0

Type of Litigation: Civil Jury, Breach of Contract

Trial Dates: May 5 tbrougb Hay IS, 1989

Judge: Honorable Ralph Flageollet-Civil

Attorneys:

For Pacific Bell: Martin Jenldns.

For Plantlff: Michael Sorgen, Attorney at Law

22 2nd Street-Suite 500, San Francisco California

94105 (415) 543-5805.

DB8CRIFTI(»I OF CA8B: Plaintiff contracted with Pacific

Bell Yellow Pages Directory for a half page advertisement

in the 1985 San Francisco Directory under the business

name "Orient Express Rug Conpany." When the directory

was published in September 1985, Plaintiff's business

address and telephone ntmber were Incorrectly listed.

Plaintiff alleged that it suffered losses in excess of

$500,000.00, as a result of the erroneous listing.

During the trial of this matter, Plaintiff called several

economists and marketing experts to substantiate its

damages claim. I was able to demonstrate that any change

in plaintiff's gross profit was due to the relocation of

Plaintiff'8 store (which coincided with the release of

the directory). After a two weeic trial, during which my

client admitted liability, the jury returned a verdict in

Plaintiff's favor in the 2unount of $5000.00.

2) PAGE AKIIIJAN A HARKINS v. PACfPIC BELL

San Francisco Superior Court; Case No.: 863-466

Type of Litigation: Breach of Contract

unfair Trade Practices and Injunctive Relief

Judge: Ira Brown

Period of Litigation: Septe^ser 2, 1986-Septenber 8,

1987

Attorneys:

For Pacific Bell Directory: Martin Jenkins

For Defendants: Marshall Krause, Krause & Baskin,

1120 Nye Street-Suite 300, San Rafael, California

94901, (415) 456-2500.

DBSCRIPTION OF CASB: Plaintiffs sought to advertise in

the 1986 Contra Costa Yellow Pages Directory utilizing

the logo "Divorce for Men Only". Pacific Bell Directory

refused to print Plaintiffs' advertisement on the grounds

that It was discriminatory in nature and therefore

proscribed under the California Civil Rights Law-The

unruh Act. Further, as a publisher, ny client asserted

14

45-964 98-40
1238

its First Amendment right to regulate the content of the

advertisements appearing in its Yellow Pages Directories.

Plaintiffs sued Pacific Bell seeking injunctive relief to

con^pel Pacific to print their advertisement as requested.

After presentation of legal memoranda and extensive oral

argument, Plaintiffs' request for injunctive relief was

denied. Subsequent to Judge Brown's ruling, Plaintiff

dismissed the lawsuit.

3) riMA INVESTMENTS v. PACIFIC BELL DIRECTORY

Sonora County Superior Court; Case No.:24594

Type of Litigation: Coomercial LitigationBreach of Contract, Fraud azid Negligence

Period of Litigation: January 1986-DeceBaber 1986

Judge: Honorable Joseph Hardin

Attorneys:

For Pacific Bell: Martin J. JenJcins.

For Cina investnentB: Richard Matranga of

Angezmillerand Matranga, 270 S. Baretta Street iA,

Sonora. California 95730, (209) 533-4955.

DBSCRIPTIOH OF CASB: Plaintiff, Clma Investments, owner

of the Twaine Heart Motel contracted for advertising in

the 1985 Pacific Bell Tuolumne Yellow Pages Directory

("Directory") . When the 1985 "Directory" was published,

Plaintiff's advertisement was omitted. Plaintiff sued my

client for general damages and lost profits in the amount

of $100,000.00. I filed a motion for sumnary judgment

seeking a ruling on the enforcecd}lllty of a limitation of

liaJsillty clause contained in Pacific Bell's contract

with Clma Investments. The limiting clause capped

Plaintiff's damages, in case of a breach, to the amount

Plaintiff paid for the advertisement. This case was of

particular significance to my client Inasmuch as there

had been no previous judicial ruling on the validity of

the limiting clause. Judge Hardin ruled that the

limiting clause was valid emd enforceable and entered

judgment against my client for $750.00, the cost of

Plaintiff's advertisement.

15
1239

4) UNITED CTATRS v HF-NRY MONVn.TR BT AL..

OnlCed states District Court, Eastern

District o£ Hiscoosin. Case No.: e4-CR-70

IVpe of Litigation: criminal Federal Civil Rigbts

Prosecution.

Cliarges: 18 DSC Sec. 241; 42 TJ8C Sec. 3631

Judge: Honorable John Reynolds.

Trial Date(s): Septenber 4, 1984 to Septeoiber 15, 1984.

Attorneys:

For united States of America: Martin J. Jenkins

and the Honorable Patricia Gorrence (foimerly Asst.

U.S. Attorney), United States Court House, 517 Bast

Nlsconsln Avenue-Rm 264, Milwaukee, NI, 53202 (414)

297-4165.

For Defendants:

Nilliam Burke, 850 Honey Creek Parkway, Watwautosa

WI, 53213, (414) 276-1717;

Martin Ijove, 6525 West Blue Mound Road, Milwaukee

WI, 53213 (414) 258-5989;

Robert Dvorak, 823 North Case Street, Milwauicee WI,

53202 (414) 273-0373.

DBSCRIPTION OF CASH: In June 1983, Mr. John SmlUi, a

member of the United States Peace Corps, purchased a home

In rural Crlvltz, Wisconsin, and moved there with his

wife and infant son. Mr. Smith, a white male, and his

wife, a black citizen of Liberia, Introduced themselves

to their new neighbors after moving to Crlvltz. Shortly

after they moved into their new home, the Smiths began to

receive threatening phone call8--includlng one from an

anonymous caller who suggested that Mr. Smith "tetke his

bride back to Africa." On the evening of July 10, 1983,

the Defendants drove to the Smiths' residence where they

burned a five-foot cross on the Smiths' front lawn.

The prosecution of this matter was particularly difficult

as there were no percipient witnesses to the cross

burning. Agents of the Federal Bureau of Investigation

were unable to lift any latent finger prints from the

cross found at the victims home. Several neighborhood

children observed the defendants' build a cross on the

day of the offense. However, when called to testify at

trial, these minors completely recanted their grand jury

testimony after being pressured to do so by their parents

and friends of the defendants. After a three-week trial,

during which over 30 witnesses were called, the

defendants were convicted of all charges. All defendfmts

were sentenced to terms of incarceration in federal

prison.

16
1240

5) JACOBS V. PACrPIC BRI.I- ET AL..

Oblted States District Court-Nortliem District of

California; Case No.: C68-7169 BFL

lype of Litigation: Civil-Personal Injury

Period of Litigation: January-October 1987

Judge: Hcmorable Bugene Lynch

Attorneys:

For Pacific Bell: Martin J. Jenkins

For Plaintiff: Stewart I. MacKenzie, 3900 New Park

Mall Road, Newark CA 94560 (510) 791-8113.

DBSCRIPTION OF CASB: This case involved the service of

a search warrant by United States Customs Agents. The

agents, in seeking to execute the warrant authorizing the

seizure of illegal drugs, relied upon residence

information obtained from my client's non-published data

base. Plaintiff, a resident at the location where the

warrant was served, was home when the agents arrived.

Plaintiff's cotnplaint alleged that the Agents stormed her

house euid illegally detained her and her minor son during

the course of their search. Plaintiff's con^>laint

further alleged that Pacific Bell negligently provided

the "Agents with incorrect address information-which led

to the service of the warrant." On behalf of Pacific

Bell, I moved to dismiss Plaintiff's complaint for lack

of subject matter jurisdiction based upon Plaintiff's

failure to allege that my client's action violated any

Federal Constitutional Right or federal statute. After

extensive presentation of legal authorities, the court

granted my client • s motion to dismiss.

6) CREATIVE LEISURE v. PACIFir, BRIJ. ET AI.

San Francisco Superior Court; Case No.: 829-499

Type of Litigation: Civil-Negligence-Failure to

adequately protect telephone facilities

Judge: Honorable Lucy HcCabe

Period of Litigation: February 1985 to May 22, 1987

Attorneys:

For Pacific Bell: Martin J. Jenkins

For Plaintiff: Robert Links of Berger, Nadel t

Vanelli, 1 California Street-Suite 2750, San

Francisco, California 94111, (415) 362-1940

DESCRIPTION OF CASB: Plaintiff, a wholesale marketer of

Hawaiiaui and Mexicem vacation pac]cages, conducted its

business with retail travel agents throughout the country

by telephone. Plaintiff subscribed to telephone service

with Pacific Bell. Plaintiff alleged that on several

occasions between September 23, 1982 and April 13, 1982,

Pacific Bell's underground ceO^les were struck by

17
1241

contractors causing interruptions in Plaintiff's

telephone service and a corresponding loss of profit.

Plaintiff further alleged that my client was responsible

for its loss of profits because "Pacific Bell failed to

roarlc, when requested, the location of its underground

cjibles." After extensive discovery, I moved for sunsnary

judgment on the ground that n^ client's liability, if

any, was governed by California Public Utilities Tariffs

which limited Pacific Bell's liability for errors in the

provision of telephone service to the cost of the service

during the period of interruption. After extensive

briefing and oral argument, the Court granted my motion

for summary adjudication of issues and the matter

ultimately settled on terms favorable to my client.

7) PEOPLE V. DANE E. WOODWARD

Alameda County Superior Court; Case Ho.: H-2520

Judge: Honorable Jacqueline Taber

Type of Litigation: Criminal Mental Health Re-comnitinent

Trial Date(s): May 20-Hay 27, 1983

Attorneys:

Deputy District Attorney: Martin JenJcins;

For Defendant: Albert Wax, 2004 Cedar Street,

Bsrkeley, California 94709, (510) 546-9800

Description of Case: in 1981, Mr. Woodward allegedly

assaulted and tried to rape thirteen year old Patricia

Maes. Mr. Woodward was charged with felony assault with

intent to commit rape. The coaplaint also alleged that

Mr. Woodward had sustained a previous conviction for

molesting a two year old girl. At trial several experts

opined that Mr. Woodward suffered from Organic Brain

Syndrome, a condition that precluded him from controlling

his sexual and aggressive desires. After several days of

testimony, the jury found Mr. Woodward not guilty by

reason of Insemlty and he was committed to Atascadero

State Hospital. In January 1983, just two years after

his commitment to Atascadero, Defendamt filed a petition

in the Alameda Superior Court see)cing his release on the

ground that his sanity had been restored under Penal Code

Section 1026.2. It was at this juncture that the case

was assigned to me for trial. After a review of the case

file and psychological reports, I concluded that Mr.

Woodward was still a demger to the community 2uid objected

to his release. As such, Mr. Woodward's petition was set

for jury trial. Several psychiatrists, psychologist, and

members of the defendant' s family testified at the trial.

The jury concluded that Mr. Woodward was "presently a

danger to himself and others" and he was re-committed to

Atascadero.

18
1242

8) PEOPLE V. BET.LARn

Oakland-Piedmont-Bmeryvllle Municipal Court; Case Ho.:

177434

Type of Litigation: Criminal Prosecution.

Pharge: Penal Code Section 245 a- Assault

Trial date(s): JUly 19B1

Judge: Honorable Roderick Duncan

Attorneys:

Deputy District Attorney: Martin J. Jenkins

For Defendant: Scott Sugarman, Sugarman t Cannon, 1

Kaiser Plaza, Suite 1750, Oakland, California 94612

(510) 465-1932.

Description of Case: The victim was allegedly shot by

defendant, Charles Bellard, after a heated argument on a

North Oakland Street. The defendant shot the victim

because the victim had informed law enforcement

authorities that the defendant was responsible for a rash

of burglaries in the City of Oakland. The victim was

rushed to the hospital after the shooting and doctors

determined that the bullet could not be removed because

of its proximity to the victim's spinal cord. There were

no independent witnesses to the shooting. After a trial

of approximately two weeks, during which the defendant

presented an alibi defense, the jury found the defendant

guilty as charged in July 1981.

9) PORRIS JELAVICH v. PACmC BELL

San Francisco Superior Court; Case Mo.: 813673

Type of Litigation: Civil Litigation-Products

Liability

Judge: Honorable Stuart Pollack for Motions

Period of Litigation: Septeolber 1983 to Septenber 1989

Attorneys:

For Pacific Telephone and Telegn^i:

Martin J. Jenkins

For Plaintiff: William Antonioli, 4410 Bl Camino

Real, Suite lOS, Los Altos, California 94022, (415)

941-5100.

Description of Case: Plaintiff Dorris Jelavich allegedly

sustained a hearing loss while using a cordless telephone

manufactured by Uniden Corporation. Ms. Jelavich

coitplalned of hearing a loud piercing noise just as she

placed the receiver to her ear. Plaintiff's counsel

opined that the noise she experienced was caused by the

repair of Pacific Bell's switching equipment which

occurred coterminous to her use of the cordless phone.

Plaintiff's medical records established that she bad

19
1243

sustained a "sensory-neural hearing loss" over speech

frequency rauige 1000 hertz to 4000 hertz as a result of

this incident. Investigation of this matter revealed

that while several of my client's customers experienced

distracting noises during the repair of my client's

switching equipment, the sounds emitted over my client's

network were not of sufficient amplitude to cause

Plaintiff's Injury. As a result of my investigation this

case settled favorably for my client.

10) RAKPR RT AL.. v. PACIFIC BELL ET AL..

Alameda County Superior Court, Cauie Ho.: H125327

Type of Litigation: Civil-Personal Injury

Period of Litigation: June 1987-September 1989

Attorneys:

For Pacific Bell: Martin J. Jenldns

For Plaintiffs: R. Lewis Van Blois, 1 Kaiser

Plaza, Suite 2245, Oakland CA 94612, (510) 444-

1906.

DBSCRIPTION OF CASB: This wrongful death action was

brought by the parents of Donald Baker, Sue Cox and Guy

BnoB (hereinafter "minors"). The conplaint in this

matter alleged "that the minors were killed when a 1965

Ford Mustcuig, in which they were passengers, struck a

telephone pole owned and negligently placed on a public

thoroughfare by my client." I engaged in a course of

discovery which established that my client did not own

nor have amy equipment on the pole in question at the

time of the accident. At the conclusion of discovery.

Plaintiffs' counsel dismissed my client from the action.

20
1244

19. Legal Activities: Describe the most significaiu 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 informatioii

protected by the attorney-client privilege (unless the privilege has beea

waived.)

Leffal Activities;

As a lavfyer, I participated in use bono activities discussed

below in response to Question 1 of Part III., of this

Questionnaire. As a judge, I have taught in tnciny programs

sponsored by a wide range of organizations. During my tenure

on the Oakland Municipal Court, I was asked by the American

Judicature Society (AJS) to serve as a panelist on its

National Pre-Bench Seminar held in March 1991. The purpose of

the seminar was to orient new judges to ethical issues, (i.e.

ex-parte contacts and rude and insolent behavior by attorneys

and litigants) and to discuss appropriate ways to resolv*

them. The seminar was taped by (AJS) and the tape has been

made availeible to new judges across the country. I have also

been a member of the teaching faculty for the California

Center on Judicial Education and Research (CJER), Teaching

Faculty from 1990 to the present. I have taught on several

programs sponsored by CJBR including, but not limited to:

a) Controlling your Courtroom: Voir Dire and Trial

Management Workshop, (September 29-October 2, 1992)

b) Domestic Violence Seminar: Effective ways of Handling

Domestic Violence Cases, (October, 1992)

c) Wheeler; Race and Gender Bias in the Exercise of

Peren?)tory Challenges: California Judges Assn., Mid year

Conference, (May 2-4, 1993)

d) Criminal Law auid Procedure: Continuing Judicial Studies

Program (CJSP), Pall 1995

e) New Judges Orientation: Ethics and Fairness, California

Judges Education and Research (CJER), 1993-Present.

21
1245

I was also a member of the California Supreme Court's Advisory

Committee on Judicial Bthics. The Ethics Advisory Committee,

Chaired by Justice Charles S. Vogel of the Second J^pellate

District, was asked by the California Supreme Court to assist

the Court in the development and promulgation of the

p»Hf»i-n4» Code Of Judir!la3 m-h<n« The Ethics Advisory

Coomittee submitted its recommendations to the Supreme Court

in January 1996, and the Court approved the publication of the

Conmlttee's proposed Code on April 15, 1996. In November

1996, I was appointed to the California State-Federal Judicial

Council by the Justice Ronald George, Chief Justice of the

California Supreme Court. The Judicial Council is comprised

of sitting judges from the state and federal courts and

provides a vehicle for direct emd personal communication

between judges in these courts regarding matters of mutual

interest and concern.

22
1246

n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBUC)

List sources, amounts and dates of all anticipated receiiitsfrom deferred

income arrangements, stock, options, uncompleted contracts and o(ha

future benefits whidi you expect to derive from previous busioea

relationships, professional services, firm memberships, fonner

employers, clients, or customers. Please describe die arrangements yoo

have made to be compensated in the future for any financial or businets

interest?

I have no financial arrangement (s) or previous business

relationships from which I expect to be conf>en8ated in tin

future. I make monthly contributions to the California Judges

Retirement System (CJRS) and if confirmed, I will be entitled

Co reimbursement of all contributions made to the Judgei

Retirement Program. I also make monthly contributions to i

Savings Plus Program which is a deferred compensation progra

administered by the State of California.

E]q>lain how you will resolve any potential conflict of intereit,

including the procedure you will follow in determining areas of

concern. Identify the categories oflitigationand financial arrangemeots

that are likely to present potential conflicts-of-interest during yooi

initial service in the position to whidi you have been nominated?

If a potential conflict-of-interest arose, I would tint

determine whether the conflict necessitated recusal. If ti»

potential conflict did not mandate per se recusal, I wouli!

disclose the potential conflict euid decide, after hearing tin

parties concerns, whether it was appropriate for me to

continue hearing the matter. In order to avoid conflict(s) of

interest, I would list all of my prior major clients ud

engage all parties in discussions that would be reasonably

likely to uncover any information that could lead to i

conflict of interest and reassignment of the case.

Do you have any plans, commitments, or agreements to purse outside

employment, with or without compensation, during your service widi

the court? If so, explain.

No.

23
1247

List sources and amounts of all income received during die calendar

year preceding your nomination and for the current calendar year,

including salaries, fees, dividends, interest, gifts, rents, rojralties,

patmts, honoraria, and odier items exceeding $500.00 or more (If your

prefer to do so copies of the financial disclosure rqmrt required by the

Ethics in Government Act of 1978, may be substituted here.)

See Financial Disclosure Report attached hereto as Exhibit D.

I also officiate high school and small college football games.

I receive $45.00 per game for high school games and $75.00 per

game for small college games. I earn approximately $800.00

annually for officiating football games.

Please conq>lete the attached financial net wordi statement in detail.

(Add schedules called for)

See Attached Exhibit B.

Have you ever held a position or played a role in a political canqiaign?

If so, please identify the particulars of the campaign, including the

candidate, dates of the canq>aign, your title and responsibilities?

I have never held a position or played a role in a political

campaign.

24
1248

ni. GENERAL (PUBLIC)

An etbical consideration under Canon 2 of die American Bar

Association's Code of Professional Responsibility calls for 'every

lawyer, regardless of professional prominence or professioml

workload, to find some time to participate in serving the

disadvantaged*. Describe what you have done to fulfill diete

responsibilities, listing specific instances and the amount of time

devoted to each.

For approximately five years (1985-1969), as an attorney with

Pacific Bell, I was a committee member and ultimately co-chair

Qf the San Francisco Barristers' Club "Can I Do It Without a

Lawyer Program." Through this program, the San Francisco Bar

Association provides free legal advice to indigent individuals

in the San Francisco Bay Area in the areas of landlord-tenant

law, consumer law, family law and also presented role plays on

the roost effective meams of presenting small claims cases. Is

addition, from 1961-1989, as a member of the Charles Houston

Bar Association, I participated in law day programs, euid fre«

legal advice clinics annually. I am currently on the Board of

Directors of the "Prescott-Joseph Center for Coonunity

Enhancement. The Prescott Joseph Center is a non-profit

entity that provides a myriad of programs for seniors and

youth in the West Oakland Community, including but not limited

to tutorial programs for youth and senior citizen wellness

programs. I also serve as a mentor for young adults at St.

Patrick's Church.

The American Bar Association's Commentary to its Code of Judicial

Conduct states that it is inappropriate for a Judge to hold a membership

in any organization that invidiously discriminates on the basis of race,

sex or religion. Do you currently belong, or have you belonged, to any

organization which discriminates—through either formal membership

requirements or the practical implementation of membership policies?

If so, list, with the dates of membership. What you have done to try

to change these policies?

I do not belong, nor have I ever belonged, to any organisation

that invidiously discriminates on the basis of race, sex or

religion.

25
1249

3. Is tbere a selection commission in your jurisdiction to recommend

candidates for nomination to the federal courts? If so, did it

recommend your nomination? Please describe your experience in the

entire judicial selection process, from beginning to end (including the

circumstances which led to your nomination and interviews in which

you participated).

I received a letter from Senator Boxer's office soliciting

applications from all persons interested in serving as a

federal district court judge. I submitted an application in

February 1997. Thereafter, I was interviewed by the Senator's

judicial nominations committee. The Committee selected me as

a finalist for the position. I was then interviewed by the

Senator's Office. After my interview, I was informed that

Senator Boxer was going to recommend me to President Clinton

for nomination to the Federal District Court. After my name

was forwarded to the President, I was interviewed by the

Department of Justice, the American Bar Association and

Federal Bureau of Investigation.

4. Has anyone involved in die process of selecting you as a judicial

nominee discussed with you any specific case, legal issue or question

in a manner that could reasonably be interpreted as asking you how you

would rule on such a case, issue or question.

No.

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

activism.'

Some of the characteristics of this 'judicial activism* have been said to

include:

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

grievance-resolution.

b. A tendency by the judiciary to employ the individual plaintiff as

vdiicle for die inq)osition of for-reaching orders extending to broad

classes of individuals;

c. A tendency by the judiciary to impose broad, affirmative duties

iqion governments and society;

26
1250

JUDICIAL CONFERENCE OF THE UNITED STATES

COMMITTEE ON FINANCIAL DISCLOSURE

Judte Frank Migill, Chait

Judge Robert R Bcczer Judge Ronald R-Ugueiix One CoJuobos C«c4e. NE

Judge Ganelt E Brown. Jr Judge Alan D Lourie Waihington, D C 30544

Judge Albert J Engel Judge Richard Mills Telepbone (202) 27)-4«^

Judge Marvin J Gariiu Judge Manuel L Real Faeiimile (202)273-ltM

Judge Ridiard W. Goldberg Judge Dale E- SaJTcU

Judge Marvin Katz Judge Frederick J ScuUin, Jr.

Judge Robca B. Knipansky Judge William J. ZIoch

August 11. 1997

Honorable Martin J. Jenkins

Alameda County Superior Court

Juvenile Division, Department 25

400 Broadway

Oakland, CA 94607

Re: Nomination Financial Disclosure Filing

Dear Judge Jenkins:

Thank you for submitting your Financial Disclosure Report in connection with your

appointment as a United States District Judge in the Northern District of California. I have

reviewed your nomination Report and wish to provide you with the following comments on Parts

III and VI.

In Part III, you must report compensation, other than from the United States Government,

in excess of $5,000 in any ofthe two calendar years prior to the calendar year during which you

file your first report. In addition, you must include the identity of each source ofsuch

compensation and a brief description of the nature of the duties performed or services rendered

by the reporting person for each source. Please inform the Committee if you had any reportable

compensation during the calendar year 1995. You may wish to refer to page 60 ofthe

Instructions.

In Part VI, line 3, you reported an automobile loan with "Patelco Credit Union." For your

future reference, you are not required to report any loan that has been secured by a personal

motor vehicle. Please refer to page 35 of the Instructions.

Please provide our Committee with three copies of your response to the second paragraph

within thirty days. If you should have any questions about this letter, please contact the Oflice of

the Committee on Financial Disclosure at (202) 273-4626. Thank you for your cooperation.

Sincerely,

•^ Frank Magill

Chair
1251

August 19, 1997

HOnoreible Frank Maglll

Chair, Committee on Financial Disclosure

I Judicial Conference of the United States

I One Columbus Circle, N.B.

I Washington D.C., 20544

Ke: Nomination Financial Disclosxire Filing

Dear Judge Magi11:

As requested in your letter of August 11, 1997, by this letter

I hereby inform the Committee on Financial Disclosure that I

did earn income in calendar year 1995, which I inadvertently

failed to disclose in Part III of my 1996-97 Financial

Disclosure Filing. My income for calendar year 1995 is set

forth below:

SOURCE AND TYPE GROSS INCOME

State of California

Superior Court Judge Salary $99,011.00

If you have any further comnnents regarding my Financial

Disclosure Filing, I can be reached at (510) 268-7384. Thank

you for your cooperation and assistance in this matter.

Martin J. Jenkins

mj/mjj
1252

d. A tendency by the judiciary toward loosening jurisdictional

requirements such as standing and ripeness; and,

e. A tendency by the judiciary to impose itself iq>on other institutions

in the manner of an administrator with continuing oversl^

responsibilities.

It hae always been my philosophy to decide cases on am

individual basis and issue rulings in accord with the facts

and legal principles that govern each case. Strict adherence

to Constitutional principles such as standing and ripeness is

important to ensure that the court decides cases when, and

only when, appropriate, and emy remedial relief prayed for is

granted only to aggrieved parties. The notion that judges may

use decisions in individual cases to inpose broad aind

continuing affirmative duties upon governments and agencies

strikes at the very heart of our system of democracy and the

bedrock Constitutional principle: "Separation of Powers."

Often, the solution to societal ills may lie beyond the

purview of the particular statutes or Constitutional

provisions in^acted by the legal issues before the court.

When judges reach beyond the applicable statutes and governing

law of their jurisdiction to decide cases, they are apt to run

afoul of and tip the delicate "Balance of Powers" which is

central to our Constitutional democracy.
1253

MARTIN J. JENKINS NET WORTH FINANCIAL STATEMENT

SCHEDULE D: "ACCOUNTS AND BILLS DUE/OTHER DEBTS"

11. Accounts and bills due/other debts:

a. Chase Manhattan Visa Account Balance: $1300.00

b. Bouik of America

' Mastercard Account Balance: $3500.00

Bank of America

Visa Account Balance: $4000.00

d. Americem Express

' Delta Sky Miles Balance: $1,600.00

e. Patelco Credit Union Account* Balance: $18,500.00

' *This debt is shared by my brother Darrell Jenkins, and my

' sister, Monica Jenkins and arises from the purchase of a new

automobile for my father's birthday on October 16, 1995. Our

f respective co-pay is $248.00 per month, on a monthly payment

I of 743.00.

Total accounts and bills due: $28,900.00
1254

MARTIN J. JENKINS NET WORTH FINANCIAL STATEMBIT

SCHEDULE E: "REAL ESTATE MORTGAGES PAYABLE'

1. Real estate mortgages payable:

a. 1347 Bates Road

Oakland, CA 94610

First mortgage holder: Glendale Federal Mortgage

Corporation

Balance: $282,000.00

Monthly Payment: $2117.00

Second mortgage holder: First United Services Credit

Onion

Balance: $22,000.00

Monthly payment: $419.00.

Total monthly mortgage paid: $2536.00

b. 7 Richards Circle*

San Francisco, CA 94124

First mortgage holder:

Second mortgage holder:

Home Savings and Loan Coinpany

Balance: $169,000.00

Monthly payment: $0.00*

Sain Francisco En^loyees Credit

Union

Balance: $24,000.00

Monthly payment: 0.00*

* I own this property with Mr. Jininie Gilyard. Mr.

Gilyard m2Uces all mortgage payments on this property. I

do not receive cuiy rental income from this property and

I do not take any income teix deduction(s) for this

property.

Total monthly mortgage paid: $0.00

Mortgage liability for all real esute owned: $497,000.00

Toul monthly mortgage paid**: $2536.00

• *I only pay the first and second mortgage on my primary

residence at 1347 Bates Road in Oakland.
1255

m. GENERAL (PUBLIC)

1. An ethical consideration under Canon 2 of the American Bar

Association's Code of Professional Responsibility calls for 'every

lawyer, regardless of professional prominence or professional

workload, to find some time to participate in serving die

disadvantaged*. Describe what you have done to fulfill these

responsibilities, listing specific instances and the amount of time

devoted to each.

For approximately five years (1985-1989), ae an attorney with

Pacific Bell, I was a committee member and ultimately co-chair

of the San Francisco Barristers' Club "Can I Do It without a

Lawyer Program." Through this program, the San Francisco Bar

Association provides free legal advice to indigent individuals

in the San Francisco Bay Area in the areas of l2mdlord-tenant

law, consumer law, feunily law aiu\ also presented role plays on

the most effective means of presenting small claims cases. In

addition, from 1981-1989, as a member of the Charles Houston

Bar Association, I participated in law day programs, and free

legal advice clinics annually. I am currently on the Board of

Directors of the "Prescott-Joseph Center for Community

Enhancement. The Prescott Joseph Center is a non-profit

entity that provides a myriad of programs for seniors and

youth in the West Oakland Community, including but not limited

to tutorial programs for youth and senior citizen wellness

programs. I also serve as a mentor for young adults at St.

Patrick's Church.

2. The American Bar Association's Commentary to its Code of Judicial

Conduct states that it is inappropriate for a Judge to hold a membership

in any organization that invidiously discriminates on die basis of race,

sex or religion. Do you currently belong, or have you belonged, to any

organization which discriminates—through eidier formal membership

requirements or the practical implementation of membership policies?

If so, list, with die dates of membership. What you have done to try

to change diese policies?

I do not belong, nor have I ever belonged, to any organization

that invidiously discriminates on the basis of race, sex or

religion.

25
1256

3. Is diere a selection commission in your jurisdiction to reconmead

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 vrbich led to your nomination and interviews in wtaidi

you participated).

I received a letter from Senator Boxer's office solicitiag

applications from all persons interested in serving as a

federal district court judge. I submitted an application in

February 1997. Thereafter, I was interviewed by the Senator'i

judicial nominations coamittee. The Coamittee selected me u

a finalist for the position. I was then Interviewed by tbe

Senator's Office. After n^ interview, I was Informed that

Senator Boxer was going to recommend me to President Cllntot

for nomination to the Federal District Court. After my naae

was forwarded to the President, I was interviewed by the

Department of Justice, the American Bar Association and

Federal Bureau of Investigation.

4. Has anyone involved in ttie process of selecting you as a jndictil

nominee discussed with you any specific case, legal issue or qoestioo

in a manner that could reasonably be interpreted as asking yea how yoo

would rule on such a case, issue or question.

Mo.

5. Please discuss your views on the following criticism involving 'judicial

activism."

Some of the characteristics ofthis 'judicial activism' have been said to

include:

a. A tendency by die judiciary toward problem-solution rattier than

grievance-resolution.

b. A teitdency by the judiciary to enqiloy the individual plaintiff u

vdiicle for the inqrasition of £u-reacldng orders extending to broad

classes of individuals;

c. A tendency by the judiciary to impose broad, affirmative duties

upon governments and society;

26
1257

d. A tendracy by the judiciary toward loosening jurisdictional

requirements such as standing and ripeness; and.

e. A tendency by the judiciary to inqiose itself upon other institutions

in the manner of an administrator with continuing oversi^

responsibilities.

It has always been m/ philosophy to decide cases on an

Individual basis and. issue rulings in accord with the facts

and legal principles that govern each case. Strict adherence

to Constitutional principles such as standing and ripeness is

important to ensure that the court decides cases when, and

only when, appropriate, and any remedial relief prayed for is

granted only to aggrieved parties. The notion that judges may

use decisions in individual cases to impose broad and

continuing affirmative duties upon governments and agencies

strikes at the very heart of our system of democracy and the

bedrock Constitutional principle: 'Separation of Powers."

Often, the solution to societal ills may lie beyond the

purview of the particular statutes or Constitutional

provisions iopacted by the legal issues before the court.

Mhen judges reach beyond the applicsible statutes and governing

law of their jurisdiction to decide cases, they are apt to run

afoul of and tip the delicate "Balance of Powers" which is

central to our Constitutional democracy.

27
1258

MARTIN J. JENKINS NET WORTH FINANCIAL STATEMBTT

SCHEDULE D: "ACCOUNTS AND BILLS DUE/OTHER DEBTS'

1. Accounts and bills due/other debts:

a. Chase Mcinhattan Visa Account

b. Bank of America

Mastercard Account

c. Bank of America

Visa Account

d. Americem Express

Delta Sky Miles

Balance: $1300.00

Balance: $3500.00

Balemce: $4000.00

Balance: $1,600.00

e. Patelco Credit Union Accoiint* Balance: $18,500.00

•This debt is shared by toy brother Darrell Jenkins, euid my

sister, Monica Jenkins and arises from the purchase of a new

automobile for my father's birthday on October 16, 1995. Our

respective co-pay is $248.00 per month, on a monthly payment

of 743.00.

Total accounts and bills due: $28,900.00
1259

EXHIBIT D: SENATE QUESTIONNAIRE FOR JUDICIAL

NOMINEES, PART II, QUESTION #4 "1996 FINANCIAL

DISCLOSURE REPORT"

1) 1996 Nomination Flneuicial Disclosure Filing.
1260

IHMICIAL DISCI.0SI7RE REPORT Jenkins, Martin J.

Oat.« ef I

07 /27 /97

I. Page 1 INVESTMENTS and TRUSTS-income, value, trinsjctioos (Includes those ofspotoe

•nd dependent children. See pp. 37-54 of Inslrudions.)

A

Oetcrlpcion o( Aaaata

Itncludlng truat ••§«£•!

iBdieatB whara applicabla. owner ot

ClM aaaac by ualng ttia paranchacical

iaq Indlviauai and apouaa, • (8TP*'Jor

riaca 'JIi* afcar each aaaac

•iiiTt craa priot diaclomn.

B. CCroaa valua

at and ot

D

Tr.nMccia<u duclne icpoRLng period

(11 (3)

rent or

lot.)

HI

ValtM

(3)

V«lua buy,.ITtall.

tiotjT

If iwc CMttivc fr«" tftadoMcr* |

131

Day

(II

Valual

?3n,

t41 ISt

HONK IHo raporcabl*

IncoBC. asacta. or

^^__ cranaacclenai

CAlifomla

Savings Flue Program A DIV j T EXEMPT

California

Judges Retirement System D DIV L T EXEMPT

Bank of America

Savings Account A IHT J T EXEMPT

United Services Credit

Union Savings Account A INT J T EXEMPT

Hone Savings and Loan

Mortgage on Co-ovned Prop. None M V EXEMPT

Loan of $5000.UU

Co Hr. Sidney Hughes* None J W EXEMPT

1

cool. ii.tHi F-ist.ooi-iioo.ooo o.iiio.ooi-ii.000.000 ici.ii.ooa.ooi-is.eoo.Mo lia-n.ooo.Joi «r •««

3 Val Ctfa< J.flS.OOO or laaa K.tlS.OOl-SSO.OOO L-StO.OOl-llSO.OOS M>tlO0,Oai>13S:,eM lt-S3S0.eoi-|»M 0«« lOBl. ci.Mi o-iJ96.ooi-ii.9oo.oog Pi.ii.ooo.ooi-ss.ooo.ooo ps.si.ioo.ooi-sH.ooo.oio

PJ.S2S.000.001-JJ0.000.900 N.is.6. 000. 001 or not*

icol. C3I O-Seeh vaiwa \ 3;K,- ' W*S«Ciaacad

•^^••wimn I
1261

'DOkMCZAL DZSCLOSURK REPORT (cont'd)

Jenkins, Martin J.

Dat« or Report

07/27/97

m. ADDITIONAL INFORMATION OR EXPLANATIONS Ondkatc put of Report.)

art II. AGREQfENTS - The balance In my California Judges Retirement Plan la approxluiaCcly

$60,000.00. I expect that the State of California will reimburse nc for

•irt VI,

a friend of mine. I do not receive any Income nor do I take any tax

Ao^^frinn f nr- f-h<c prnparry Th H a prnpprty ^a 1nraf<»rf flf 7 mrharrfg riy

San Francisco, California 9412A. Home Savings and Loan hqlds the first

mnrrgag* anA San Franr^«rn Fniplny^i* r.rfHff llntnn hnlrin M w^rnnH mnrfgai

on the Richarda Circle property.

** This debt Is shared by my brother. Darrell Jenkins and my sister,

""«<-* i«nHng lli.la debt ar^spw frmn rhff piirrhaitf nf a new

automobile for my father, James Jenkins, on October 16, 1995. Our

rgfjpgrrfua /-n-pay par mnnfh < g %7LR.Ci(\.

*«rt VII. INVESTMENTS AND TRUSTS - *Thls refers to a loan I made in 1994 to Sidney Hughes, a

friend of mine who was starting a nev business venture

that time. There is no written agreement to verify

the loan, however If do have the cancelled check, this

is an Interest free loan and to date I have not received

piiymiini ui wriuiu or iii part.

X. CERTIFICATION.

In compliance with the provisions of 28 U.S.C. f 453 ind of Advisory Opinion No. S7 of the Advisory Commiitce on Judicial

xtiviiiex, and to the best of my knowledge ai tbe time after reasonable inquiry, I did not perform any adjudicaiory function in any litigation

ortng die period covered by this repon in whicb I. tny ipousc, or my minor or depeodeni children bad a finaiKial interest, as defmcd in

'aooo 3C(3Xc). in the outcome of such titigaiioo.

I certify thai all toformation given above (iocludtng informalitMi pertaining lo my spouse and minor or depetid^nt children, if any) is

ccurate, true, and complete to the best of my knowledge and belief, and thai any information not reponed was withheld because it met

ppUcabte statutory provisions pennining non-disctosure.

I furrier certify that earaed income from ouuide employment and boooraria tod ttw acceptance of pta whicb have bca rqxHrted are

1 compliaace with tbe provisions of S U.S.C.A. app. 4, § 501 et. teq.. 5 U.S.C. S73S3 and Judicial Conference reguiaiiou.

Date July 27, 1997

JOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE

:UBJECT TO CIVIL AND CRIMINAL SANCTIONS (3 U.S.C. App. 4, ( 104.)

FIUNO INSTRUCTIONS:

I4ail finned origioal and 3 additionaJ copies lo: Cocninince on Ftnancial Disclosure

Adnunistraiive Office of tbe

United States Courts

Suite 2-301

One Columbus Circle. N.E..

Washinguui. D.C. 20M4
1296

FINANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAR 1996

1. Jifisn ll*p«nin| <!«•: r.,»—. !tiit. xlMl* L3t:u:i

HcCusk«y. Michael P.

U. S. Diitrlct Court --

Central District of Illinois 08 6i hi

Nominee for M. S. District Court Judge

1 R*vontA« r«rlM

U/1/96. 7 ,1 j97

1. O-^'-Mr* or e!(t:* Addiaii

In cMvIianca -itl> appIUabla i«-« *.-J tar*;**laSi.^^

IMPORTANT NOTES: Th£ tastructiou kccompuiyioc ihii form miut be foUowcil. Complete ail parti,

cbeckiag the NONE box for each lectioo where you have BO reporiabJe iaforaiaciotL SifB on lut pa^. .

POSITIONS. (Reportiog individual ooty; see pp. 9-13 of lottnictiotu.)

D KOKE (No rcportible positiom)

Dlr«ctQr

nirtctflr

NAME OF ORGANIZATIOM/EMTITY

Illlnol» St«te OnlT«r«lty Alu»nl A««ocl«tlon

Illlnola St«tt Untv«rstt> V«r»lty "I" Club

II. AGREEMENTS. (ReponiosiadJvUtulonly; leepp. 14-17orinstn>ctioiu.)

EMS PARTIES AND TERMS

I NONX (No rtponible *grcei&eau)

V«st«d Member Illinois Judicial Rctlronant Systtm

IIL NON-INVESTMENT INCOME. (Rcpcftiiigindiv>dii>liiidipottw;ie<pp. U-lSodunaioai.)

DATE SOURCE AND TYPE

n NONB (No reporttble Doo-iavestmeot tacome)

19» State of minole — Judicial Salary

_m4_ State of llllnolB — Judicial Salary

My ulfe la a homemaker. She waa not eiiipl<i»»H Hnrlne

1995 and 1996.

•<109.750.90,

$

$

s
1263

XtSCZii, DISCLOSURE REPORT

lUfM at Pvrson Raportln9

Jenkins, Martin J.

B*f at Kvport

07 /27/97

REIMBURSEMENTS and GIFTS -- transportation, lodging, food, cDlcrtainment.

([nctudes those to spouse and dependeDt children: use the pArcothelicils '(S)' and *(DC)* to indicate reportable

reimbursemeots and gifts received by spouse and depcodeoi childreo, respectively. See pp. 2fr-29 of Instructions.)

SOORCE DESCRIPTION

J

NONE (No such repoitaWe retmbursemeots or gifts)

3

OTHER GIFTS. (lodudes those to spouse and dcpeodeni childreo; use the pa/eotheticals '(S)' and *(DC)' to

iadicate other gifts received by spouse and dependent children, respectively. Sec pp. 30-33 of Instructions.)

SODRCE DESCRIPTION VALUE

NONE (No such reportable gifts)

EXEMPT S

s

$

Z]

LIABILITIES. (locludes those of spouse and dependent children: indicate where applicable, person responsible

for liability by using the parentheticai *(S)' for separate liability of the spouse, *(J)' for joint liability of

reporting individual and spouse, and '(DC)* t(x liability of a dependent child. See pp. 34-36 of lostnictions.)

CREDITOR DESCRIPTION VALUE CODE*

NONE (No reportable liat»litics)

Mortgage on residential property

Home Savings and toan Corp: I Co-ovn with a friend. H*

San Francisco Employees Federal C):»dlt Union gnd Mortgagt* on home listed above K*

Patclco Credit Union Auto loan on vehicle purchased for mv dad (L*!

J-flS.OOO or Iras R-IIS.OOI-ISO.OOO L-lta.OOl-SlOD.OOO M:>10< O>IS00,601-Sl.000.3OI) Pl-Sl. 003,001-54, OOO. 000 »-*> M'$3s.aco.oei-ise.ooe.ooo M-ise.ooo.ooi or wor*
1298

INAMUIJUi DISCLOSmtS REPORT

McCuskcy, Michael 7. oa/oi /97

I. Page 1 INVESTMENTS >nd TRUSTS - iiKoinc, viluc, iruudiou Oi>du<iuilK»c of ipa<jK

ind depeodcnl childrea. See pp. 37-S4 of losuuctions.)

OwacriMlon'aC V.*tca llneluiint <«»« MMti)

I«dlea» (Aara apaUeab:*, Bwiiar et «!U aaaai by aalhf tha 9«r«v.he:iul ;S':jt;a:ii"^iier!.'2,st!T;;

Vlasc -Ul' altar Mch aa«*c

•aai^t Ireo pitvr Clvclor^a.

111

m,

111 131

O-w)

(11

5:111. (1>Valwal

W1,

Ml

NONE IKS r«»«T-.Aai<

CXE>I PT

!

First National Bank ot

H^con IL A Int j T

^flzar, Inc. Comnon

Stnrk fSl A Dlv K T

Salth Barney Mutual Fund

C Dlv L T

Videlltv Fund IRA E Dlv H T

American Centurv Funds IRA B Dlv J T

,Fidelity Puritan Fund

D Dlv K T

Illinois Judicial

KatlrtaanC Svstam Fut ir€ P4 T

t

»

to

It

1)

11

i«

IS

i<

11

!•

Wr'»^«f^'f:«i'Jl.n.ir!.. !:f!»?'5;i!»Sn=S:SSi'"" •" blWHii'MMl..,,.. .BiHrKJ-Ufi?-.

U!!5?"" 8:»J'iHi. .3-5,.... „.«,-i,, . . tgasa '-<=W«»«--
1299

FXKAHCIAL DZSCLOSORB RSPORT (cont'd)

cast of rnt*«n B«peitl.*.|

McCutkey, MlchMl P. 08/01/97"

VTIL ADDITIONAL INFORMATION OR EXPLANATIONS (Indic.tt |»rt of Report.)

y

JX. CERTinCATION.

In compUiDcc wUh the ptovUiooi of 2S U.S.C. { 4SS tod of Advisory Opinion No. 57 of ibe Advisory CotsmiOM on Judicial

Acdviiks, snd to die best of my loxwledgc u dw hme tAcr reasoaable irxpury, I did ooi perfona aay xi^udjcjioiy f^iocboa In any liti|iiioo

duriof ibe period covered by ihii report in which I. my tpouse, or my minor or depeodem chUdren bad a finincu] interest, u defined in

Canon 3C(3Xc)i in the ouicome of tDch lldjation,

I certify duQ tU bfomution pven above (iacludlnf information penalnlng to my tpouse and minor or depeodeat childrea. if any) is

acconte, tnx, and contplete to die beii of nty knowled^ and bcllof, and that any inforoudon DOC reported was withheld because it met

^ipUcable ttaoitory provlsiooi pennining non-disdonire.

I fuiiber certify tbar earned incooie txom outside emplt^meiu and honoraria and ibc scceptaoce of gtfti «^ch have been reported are

in compliance widi the proviiiooi of S U.S.C.A. app. 4. {501 CL seq,, 3 U-S.C. 9 7333 and Judicial Conference reguladoDS.

Sipumre

Mlc«««l P. KcCuskiey L.^

Din Augu»t 1, 1997

NOTE; ANY INDIVIDUAL WHO KNOWIHOLWAND WILFULLY FALSIFIES OR PAILS TO RLE THIS REPORT MAY BE

SUBJECT TO Crvn. AND CRIMINAL SANCTIWS (5 U.S.C. App. 4, J IW )

•'••'; PTUKOKSTRUCTIONSi.V ;' •' ' ".

Mill si£j^ anjpnal iDd 3 tddmonal copies lo:

=3S#.~-.-r:.- -:-v--ra=fii-

• • CommJiuc M Financial Disclosuic,- ;

-Admimjti»liv« Office of the l.v;..:,--

;V Umled Suiri'Couns -.- r^C^^^ii^-

..-Suiie2-'30l ' ~''"
1800

NST WORTH

Piovidt I compleie, cunenc flniAclil net wonh tuicmtni which licnUiei In deus

lU uwu (Incluitoj kifll leeounu. r«l ciU(C. lewridei, triiu, inve.cmenu. tnd OUIM ftntntiii

hol(Jinj|i) tU UabUlDct (liKludlrj ifcbu, moft|«|ci, louu. ud oihtr flnin«Ul obUttiioai) of

your«ir, yow jpouie. ind oiher Imnwdiits membtn of y«ut houttholA

Attftt LUinjim 1

Cuk u Und urf to buifa 21329 KM« rv<Mc to Uib-Hcurat 1

Mi»M( Kiki rqnUi to luta -wtcxU 2OO0)

LIrted M<w1«a-«M xMatt 73932 Nski ;ijrtUi to rtluir«

VnSlM K«u«ki-»M Kludilt N>lti pijnili to •Aui

AcMMIUttOIldM

DM &vffl Mlidni inrf fr{«A4i IM^iMtauMlu

DIM bvm odtm (Mil u^lu iM jqUnat

6000 fall iiUk mon(i|u MfVt-tM

•dirfrft First of America 52001

152000 auUnMttmmttamantt4f.

530

«Ml <iuit nMliiiu iKriiiU* Oilwfcbtt-iiuiilu.-

A»toi IA4 «ft« fcn.oj f„f^ 30000 —

Ak<« utw.lknlui —

statf nf nilnain Mnrlii .

_il£l«:::iee_AtCached Schedule

_mm.

164301

»

D.f«rred Conpematlon—s.. 126448 TMIMMH

KrtVM

7730

3670

TMtlAlau 614010 Tanl Iitdjlu in) Ma,«« —

co.«rnNOEKr lUBiunu OENXWt INTOMUTION

Asutcui, umAa t, p,„„to,

•0 Ho

Oa buti u emkicli 0 A« yea M*<w V. •«; HIB « k|>|

ntwt No "~

L>t>ia>ii« 0 Km }w lYK tttia Wifaviuyt

ft»»M«. fe, r«i,^ h„„ j„ 0

-SB—

OlJ"/ IPMW <<||| 0

~2i
1301

ATTACHMENT TO FINANCIAL STATEMENT

OF

MICHAEL P. KCCUSKEY AND BRENDA H. McCUSKEY

Lteted Securities

Pfizer, Inc. Common Stock 18,688

Smith Barney Mutual Fund 55,244

Real Estate Owned

Personal Residence 135,000

Hashburn IL

1/3 Interest In Condominium 17,000

St. Petersburg FL

Individual Retirement Accounts

Fidelity Investments 154,090

American Gentry Investments 10,211

Deferred Compensation

With State of Illinois as 22,513

Employer—Invested In

Vanguard Inst. Index Fund

State of Illinois

Judicial Retirement System 93,259

Illinois Municipal Retirement Fund 10,676

^^.OAd OS A-l
1302

BIOGRAPHICAL INFORMATION (PUBUC)

Full name (include any former names used.) —'

George Patrick Murphy

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

Office: G. Patricl< Murphy, Attorney at Law

104 W. Calvert, P.O. Box 907

Marion, IL 62959

Home: Marion, IL 62959

Date and place of birth.

12/1/48

Carbondale, Illinois

Marital Status (include maiden name of wife, or husband's name). List

spouse's occupation, employer's name and business address(cs).

Married to Gall Diane (Sanders) Murphy

Spouse's occupation: Student

Education: List each college and law school you have attended, including datM

of attendance, degrees received, and dates degrees were granted.

John A. Logan Junior College, 1969 -1970

Southern Illinois University, 1970 -1975

Bachelor of Science - May 17,1975

Southern Illinois University School of Law, 1975 -1977

Juris Doctorate, Dec. 17,1977

Employment Record: List (by year) all business or professional corporations,

companies, firms, or other enterprises, partnerships, institutions and

organizations, nonprofit or otherwise, including firms, with which you were

connected as an officer, director, partner, proprietor, or employee since

graduation from college.

(1) James W. Sanders & Associates 1978 - 1982
1303

(2) Garrison & Garrison 1982-IS

Associt

(3) Winters, Brewster, Murphy, 1983-19

Crosby & Patchett Partn

(4) G. Patrick Murphy, Attorney at Law 1994 - Press

Self-employi

Sole practltion

7. Military Sfrvirp: Have you had any miliuiy service? If so, give particulars,

including the dates, branch of service, rank or rate, serial number and type of

discharge received.

Yes.

June 30,1966 / April 18,1969

Marines - Viet Nam -K Co 3d Bn 1st Marines

Rank: E4

Serial Number: 2286652

Honorably discharged

8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and

honorary society membership that you believe would be of interest to the

Committee.

Fellow - American College of Trial Lawyers

- Member - National Board of Trial Advocacy

9. Bar Associaiion.s: List all bar associations, legal or judicial-related committees

or conferences of which you are or have been a member and give the titles and

dates of any offices which you have held in such groups.

Fellow, American College of Trial Lawyers

(Illinois Downstate Committee)

National Board of Trial Advocacy, Member, Civil Section

Illinois State Bar Association, Member

American Bar Association, Member

(Forum on Construction Law,

Tori & Insurance Practice Section, Litigation Section)

Illinois Trial Lawyers Association, Member

The Association of Trial Lawyers of America, Member
1304

10. fJthfr Mrmhfrthlpt List all nrfpniMtiont to which you belong thai arr acltve

in lobb)-lng brforf public bodies. Please list all other organl?tifioiis to which

yuii belong I am a member of the following organlzatloiu and each one is

acUvc In lobbying before public bodicij

Vatarans of Foralgn War*

American College of Trial Lawycn

Illlnoli Sute Bar Association

American Bar Association

Illinois Trial Lawyers Association

Association of Trial Lawyers of America

Marine Corp League

11 Court Admlcsinn: List all courts in which yoii have been admitted lu practlcr,

with dates of admKsion and lap.ses if any such memberships lapsed PIrjii.c

explain the reason for any lapse of mrTTtbershlp. Give the same inforn\aiioii tur

administrative bodies which recjuirc special admls.^lon to practice.

Illlnola Suprama Court, llllnola Appallata Court, and llllnola trial courta.

May 19,1978

Unltad StaUa Olatrlcl Court for the Southam Olatrlct of llllnolc. 1980

United Stataa Court of Appaala for tha Savanlh Circuit, May 19,1Q8S

12 Publlshrfl 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 Committpp

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 ihry are readily available to you, please supply them.

I have not apokan on laauaa of cenctltutional law or lagsl policy.

Beutharn lillneis tintvarslty Law Joumai Velum* ZO, •ummar 10M

Survay of llllnott Law: Evidanc*

Beutlwm Illinois Unlvarslty Law Journal Vohima 1S. Spring 1 tn

CMI ProoMtur*

BImltar Oecurraneas April 10. IMt

I8BA Law Ed Sarlai

Bloomlngton, IL

DItcovary In a Products Case April 10,1BS2

From the Plalnim's ParspacUv*

•3-
1305

Comparative Negligenca April 28,1984

ITLA

Pretrial Discovery - Tips 8i Tactics April 8,1S88

Hot Tips November 1,1993

Slip, Trip & Fall Mishaps

Plaintiff Perspective

Anatomy of a Trial April 11,1994

Civil Practice & Procedure

Pretrial Preparation

ISBA l^w Ed Series

Anatomy of a Trial November 17,1994

Part II: Recurring Evidentiary Issues

ISBA Law Ed Series

Bloomington, IL

Current Topics in Injury Victim Advocacy April 8,1995

Evidence of Previous Injuries

St Louis, MO

The Future of Health Care: October 22,1996

Doing More With Less

The Legal Aspects of Managed Care

& Medicare-Medicaid Fraud and Abuse

Collinsville, IL

How to Make Money, Keep Money, and Sleep February 12,1997

at Night in Handling Plaintiff Litigation

Settlement Offers and Liens

ISBA Law Ed Series

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

physical examination.

Good. Last Exam: June 19,1997

14. ludicial Office: State chronologically any judicial offices you have held,

whether such position was eleaed 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
1806

your judgment was affirmed with sigiuficant criticism of your substantive or

procedural rulings; and (3) citations for sigiuficant opinions on federal or state

constitutional issues, together with the citation to appellate court rulings on

such opinions. If any of the opinions listed were not officially reported, please

provide copies of the opinions.

Not applicable.

16. Public Office: State chronologically any public offices you have held, other

than judicial offices, including the terms of service and whether such p>osiuons

were elected or appointed. State (chronologically) any unsuccessful

candidacies for eleaive 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 lume of the

judge, the court, and the dates of the period you were a clerk;

No.

2. whether you praaiced alone, and if so, the addresses and dates:

I currently practice alone and have done so since January 1,

1994.

3. the dates, names and addresses of law firms or offices, comparues or

governmental agencies with which you have been connected, and

the nature of your connection with each;

(1) James W. Sanders & Associates 1978-1982

Associate

(2) Garrison & Garrison 1982-1983

Associate
1.

1307

(3) WIntars, Brewster, Murphy, 1983-1993

Crosby & PatchaU Partnar

(4) O. Patrick Murphy. Attornay at Law 1994 • Praaant

8alf-amployad

Sola practltlonar

What lias been ihe general character of your law practice, dividing

it into periods with dates If Us charaaer hai changed over tlie years?

I hava baan a trial lawyer alnoo I atartad pracUcIng law. Initially,

I defendad municipal bodlaa and school boards In amploymant

and civil rights lltlBation. Whila I was amployed at Oarrlson &

Garrison, 1 handled personal Injury cases on behalf of Insurers

and their Insureds. While I was a partner at Winters. Brewstsr.

Murphy, Crosby & Patohett, I divided my practice between

Insurance coverage litigation for the insured, construction

litigation, and ptalntlfTs personal Injury litigation. Since I heve

been a solo practitioner, 1 hava primarily handled plalntlfTa

personel lr\Jury ceses with a sprinkling of Insurance dafanaa

work as wall as commercial and construction litigation.

Describe your typical former clients, and mention the areas, if any,

in which you have sjieclallzed.

Generally, I represent individuals who hava baan injured and are

seeking damages. I also represent banks and businesses In

litigated matters. I have specialized In civil lltlgeUon.

Did you appear in court frequently, occasionally, or not at all? If the

frequency of your appearances In coun varied, describe each .•such

variance, giving dates.

I appear In court on a regular basis; I am In court on a dally

basis.

What percentage of these appearances was in:

(a) federal courts: 20%

(b) state couns of record; 80%

(c) other courts.
1308

3. What percentage of your litigation was:

(a) civil; 95%

(b) criminal. 9K

4. Sute the number of cases in courts of record you tried to verdict or

judgment (rather than settled), indicating whether you were sole

counsel, chief counsel, or associate counsel.

Approximately 250 tried to verdict or Judgment as sole counsel.

5. What percentage of these trials was:

(a) jury; 35%

(b) non-jury. 65%

18. Litigation: Describe the ten most significant litigated matters which you

personally handled. Give the citations, if the cases were repotted, and the docket

number and date if imreponed. 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 partidpation in the litigation and the final disposition of the cax.

Also state as to each case:

(a) the date of representation

(b) the name of the court and the name of the judge or judges before whom

the case was litigated; and

(c) The individual name, addresses, and telephone numbers of co<ounsel and

of principal counsel for each of the other parties.

1. Mid-America Banl< & Trust v Commercial Union,

587 NE2d 81, 224 III App 3d 1083 (1992)

Summary: A complicated insurance coverage case. The insurer.

Commercial Union, refused to accept a reasonable settlement

demand until the eve of trial, which resulted in a verdict many

times the amount of the coverage. The plaintiff In the underlying

case obtained an assignment from the insured and his lawyer

referred the coverage case to me. The insurer refused to settle

the coverage case and It was tried to a jury. My client, a severely

injured minor, received the entire amount of his original verdict

along with his attorneys' fees.
1309

Represented:

Detail participation:

Court

Judge:

Opposing Counsel:

Mid-America Banit & Trust Company, Administrator

of the Estate of David Struempf, a Disabled Adult

Sole counsel

Circuit Court, Madison County

Tiie Honorable Gordon Maag

MichaelJ. Pitzer

Rabbitt, Pitzer & Snodgrass, P.C.

One Boatmen's Plaza, Suite 2300

800 Market Street

St Louis, MO 63101-2608

Phone: 314-421-5545

People vBebout

Circuit

(1984) 84-CF-190. Williamson County. First Judicial

Summary: A murder case where I represented a young handyman charged

wKh killing an elderly woman with a garrote. The defendant was

found not-guilty of all charges.

-Represented:

Detail Participation:

Data of Trial:

Court:

Judge:

Co-Counsel:

Donald Bebout

Lead counsel

1984

Circuit Court, Williamson County

The Honorable Rot>ert H. Howerton

Brocton Lockwood

Attorney at Law

802 N. Court, P.O. Box 1208

Marion, IL 62959

Phone: 618-997-3202

Opposing Counsel: Brian D. Lewis

(then Asst Wmsn. Co. States Attorney)

Attorney at Law

503 W.Jackson

Marion, IL 62959

Phone:618-997-6211

SwInkvKLLM

90-4094, So. Diet, of IL (1990)

Summary: A catastrophic injury case that was tried to verdict In federal

district court for the Southern District of Illinois. Mr. Swink was

struck by a truck while assisting a stranded motorist on the

shoulder of the highway. Although he was severely injured,

there was no offer before trial. The jury's verdict for the plaintiff

resulted in a $13,350,000 judgment that was completely

satisfied by the defendant's insurer.
1310

Represented:

Detail Participation:

Date of Trial:

Court

Judge:

Co-Counsel:

Dennis Swink

Lead counsel

1990

U.S. District Court, So. District of Illinois •

The Honorable James L. Foreman

Ronald E. Osman

Ronald E. Osman & Associates

1602 West Kimmel, P.O. Box 939

Marion, IL 62959

Phone: 618-997-5151

• Benton

Opposing Counsel:

Jerome E. McDonald

Campbell, Black, Carnine & Hedin, P.C.

108 S. 9th Street

P.O. Drawer C

Mt. Vernon, IL 62864

Phone: 618-242-3310

Richard Record

Cralg & Craig

1807 Broadway Ave.

P.O. Box 689

Mattoon,IL 61938

Phone:217-234-6481

4. County ofMassac v United States Fidelity and Guaranty Co.

446 NE2d 584,113 III App 3d 35 (1983)

Summary: An insurance coverage case. The plaintiff In the underlying

case, Mark Kruger, was injured when his car struck a partially

completed bridge being constructed over a creek. He sued the

construction company and my client, the County of Massac, for

negligently failing to provide adequate warning signs,

barricades, or lighting to alert motorists that the bridge was

under construction. The county's insurer, USF&G, refused to

defend the county on the grounds the applicable policy did not

provide coverage. Later, USF&G took the position that it did not

provide a defense to the county because this would have

created a conflict of interest. The Appellate Court held that

USF&G was estopped from asserting a coverage defense as it

wrongfully refused to defend the county. Moreover, the court

found that there was no conflict of interest

Represented:

Detail Participation:

Date of Trial:

Court

Judge:

The County of Massac

Sole Counsel

1983

Circuit Court, Massac County

The Honorable James R. Williamson

-9-
1311

Opposing Counsel: J. C. Mitchell

Mitchell & Mitchell

404 N. Monroe

Marion, IL 62959

Phone:618-993-2134

5. People V ComilU

484NE2d301, 136UIApp3d 1011 (1983)

Summaiy: A criminal case where a sheriff was charged with official

misconduct. He was collecting fines and depositing them in his

personal account. He could not account for all of the fines he

collected nor could he account for what he had expended. I

represented the sheriff and presented a defense consistent with

his assertion that he was using the money to pay informants.

He was found guilty on two of four counts. The guilty

judgments were affirmed on appeal.

Represented: Sheriff Cornille

Detail Participation: Sole counsel

Date of Trial: 1983

Court: Massac County, III

Judge: The Honorable William A. Lewis

Opposing Counsel: Special Prosecutor now Associate Judge

The IHonorable Rodney A. Clutts

Union County Courthouse

309 W. Mar)(et Street

Jonesboro, IL 62952

Phone:618-833-8114

6. Landmark Structures, Inc. vF.E. Holmes & Son Const Co.

552 NE2d 1336,195 III App 3d 1036 (1990)

Summary: A commercial case where my client, a general contractor, was

sued by a siding manufacturer because of his failure to pay for

siding. The siding was used on several sets of apartment

buildings and ultimately buckled and had to be replaced. My

client counter-claimed and was completely successful in the

trial court. The trial court was affirmed on appeal.

Represented: F.E. Holmes & Son Construction Co.

Detail Participation: Sole counsel

-10-
1812

Date of Trial:

Court

Judge:

Opposing Counsel:

1990

Circuit Court, Johnson Counfy

The Honorable James R. Williamson

Ronaid E. Fuhr

Parlter, Seimer, Austin & Reach

P.O. Box 697

307 North Third Street

EfTingham, IL 62401

Phone:217-342-9291

7. KIgIn V Woodmen ofthe World Ins.

541 NE2d 735,185 III App 3d 400 (1989)

Summary: A young giri who was a guest at a Woodmen of the Worid

summer camp was sexuaiiy assaulted by an intoxicated

counselor. The trial court dismissed the case on the pleadings

as there was no allegation that the defendant was aware of the

counselor's intoxication or propensity to take advantage of

young girls. The Appellate Court reversed and remanded the

case for a trial on the merits. The case ultimately settled.

Represented:

Detail participation:

Date of Trial:

Court:

Judge:

Opposing Counsel:

Darlene Kigin, Next Friend of Misfy Mitchell, a mlrmr

Sole counsel

1989

Circuit Court, Williamson County

The Honorable Robert H. Howerton

James B. Bieyer

Bieyer & Bieyer

601 W. Jacltson, P. O. Box 487

Marion, IL 62959

Phone:616-997-1331

8. Salo V SInghurse

537 NE2d 339,181 III App 3d 641 (1989)

Summary: A personal injury case arising out of an intersection collision.

My client, Mike Saio, was assessed a percentage of comparative

negligence, a finding from which I prosecuted an appeal. The

case was remanded for a new trial on the issue of liability and

ultimately settled for the entire amount of the damages awarded

in the first trial without reduction for comparative fault.

Represented:

Detail participation:

Date of Trial:

Mike Saio

Sole counsel

1989

-11-
1313

Court

Judge:

Opposing Counsel:

Circuit Court, Franlclin County

The Honorabie Loren Lewis

Michael J. Pitzer

Rabbitt, Pitzer & Snodgrass, P.C.

One Boatmen's Plaza, Suite 2300

800 Market Street

St. Louis, MO 63101-2608

Phone: 314-421-5545

9. Carlisle v Harp

558 NE2d 318, 200 III App 3d 908 (1990)

Summary: A personal injury case arising out of an intersection collision. I

represented the plaintiff, Dorothy Carlisle, who was traveling

west into an intersection. The defendant was traveling north into

the intersection. It was an open intersection and t>oth parties'

visibility was hampered by vegetation. The defendant. Harp,

was carrying out his duties as a mail carrier when the collision

occurred. He admitted driving into the intersection without

knowing what was coming from his right. Shortly before trial,

defense counsel sought to have the plaintiff examined by his

retained expert. This request was denied on the grounds It was

untimely. After trial started, he attempted to assert the defense

of plaintifPs contributory negligence. The court denied his

request to amend his answer and assert this defense. The

plaintiff recovered a verdict in the amount of $40,000 for a back

injury and this verdict was affirmed on appeal.

Represented:

Detail participation:

Date of Trial:

CourtJudge:

Opposing Counsel:

Dorothy Carlisle

Sole counsel

1990

Circuit Court, Franklin County

The Honorable Terrence Hopkins

Paul Giamanco

Attorney at Law

1008 Jordan, P.O. Box 882

MtVernon, IL 62864

Phone: 618-244-5737

10. Murphy v Inter-CltyProducts

93-CV-526, So. District of Illinois

Summary: Raymond Murphy, no relation to Attorney Murphy, was assaulted

by an employee of an outside security agency at a factory

-12-
1314

auction. Mr. Murphy was not physically injured. The security

company and the factory owner took the position ttiat since

there was no physical injury, Mr. Murphy was not entitl«d to

damages. The jury returned a verdict for $20,000.

Represented: Ray Murphy

Detail participation: Sole counsel

Date of Trial: October 12-14,1994

Court: U.S. District Court, So. District of Illinois -

E. St Louis

Judge: The Honorable Clifford Proud

Opposing Counsel: Stephen C. Mudge

Reed, Armstrong, et al.

101 N. Main, P.O. Box 368

Edwardsville. IL 62025

Phone: 618-656-0257

19. Legal Artivitips? Describe the most significant legal aaivities you have pursued,

including significant litigation which did not progress to trial or legal matters that

did not involve litigation. Describe the nature of your participation in this

question, please omit any information protected by the attorney-client privilege

(unless the privilege has been waived.)

Davis V Showa Denko, MDL-865, So. Oist of IL, (1994) settled before trial. My

client, like thousands of other middle-aged American women sufTiered

rheumatoid type symptoms as a result of using an over-the-counter food

supplement, L-Tryptophan. L-Tryptophan is an amino acid that is essential for

a healthy diet The Japanese defendant, Showa Denko, devised a method of

synthetically producing L-Tryptophan which was sold to Anterican

distributors through a wholly owned subsidiary, Showa Denko of America,

Inc. Unfortunately the product was not wholesome and thousands of

consumers were injured as a result This case is significant because the

liability aspect of the case was consolidated and the lawyers for the victims,

working together, put together a solid case that resulted in all of the cases

being settled except for one in California. The case involved multiJurisdictional discovery (Germany, Japan, and England) as well as cutting

edge medical science. The case settled on terms very satisfactory to my

client

The most significant non-litigated matter I have been involved in is acting in

the capacity as Guardian for a disabled minor. I believe my ward, in years to

come, will enjoy a quality of life that she would not have otherwise

experienced but for my efforts.

-13-
1316

II. FINANCIAL DATA AND CONFUCT OF INTEREST (PUBLIC)

I. 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

flnancial or business interest.

I intend to refer all of my open files to other lawyers. I do not expect to

receive any remuneration for legal services that are unpaid as of the date I

am sworn in as a Federal District Judge. I will either rent or sell the building

where my law practice is presently situated. Otherwise, I do not anticipate

receipt of any deferred income, stock options, uncompleted contracts, and

other future benefits.

2. Explain how you will resolve any potential conflict of interest, including the

procedure you will follow in determining these areas of concern. Identify the

categories of litigation and financial arrangements that are likely to present

potential conflicts-of-interest during your initial service in the position to which

you have been nominated.

I will follow the guidelines of the Code of Judicial Conduct.

3. . Do you have any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during your service with the court?

If so, explain.

No.

4. List sources and amounts of all income received during the calendar year

preceding your nomination and for the current calendar year, including all sales,

fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding $500 or more (If you prefer to do so, copies of the flnancial disclosure

report, required by the Ethics in Government Aa of 1978, may be substituted

here.)

See attached Financial Disclosure Report.

-14-
1816

S. Please complete the attached financial net worth statement in detail (Ad

schedules as called for).

See attached net worth statement

6 . Have you ever held a position or played a role in a political campaign? If so,

please identify the particulars of the campaign, including the candidate, dates

of the campaign, your title and resporuibilities.

I was treasurer for the judicial campaigns of Robert Howerton for

Appellate Court Judge (1991), Terrenes Hopltins for Appellate Court

Judge (1994) and Ronald Eckiss for Circuit Court Judge (1994).

-IS-
1817

HI. GENERAL (PUBUC)

1. An ethical consideration under Canon 2 of the American Bar Association's

Code of Professional Responsibility calls for "every lawyer, regardless of

professional prominence or professional workload, to find some time to

participate in serving the disadvantaged." Describe what you have done to

fulfill these responsibilities, listing specific instances and the amount of time

devoted to each.

I devote approximately 20 percent of my time to pro-bono work. For

instance, I am the court appointed guardian for Amanda MIssine, a

disabled minor. I have served In this capacity since 1990.1 have not taken

a fee for my services since 1990.1 manage her estate and approve all

expenditures. Each week, I make decisions as to what services she needs

and what she should pay for those services. I regularly provide services to

members of the Veterans of Foreign wars and their spouses without fee.

Typically, this includes the preparation of a will and a durable power of

attorney. My staff, from time to time, is required to make visits to the V.A.

hospital. To my knowledge, we have never charged a veteran or his

spouse for these services. I am an active member of the VFW Post 1301

Ritual Team and as such I participate in approximately 25 funerals a year

for veterans. Also, I regularly assist Indigent or disadvantaged persons In

obtaining divorces without charge. I recently tried a tort case for a young

indigent black man who was sued for property damage arising out of a two

car vehicular accident. This case was prosecuted as an Insurance

subrogation matter, my client, Jason Isaacs, was uninsured. I tried the

' case to verdict without any fee. He was completely exonerated. I have

never tried to keep a record of the pro bono work that I do because I

provide It on an as-needed basis.

2. The American Bar Association's Commentary to its Code of Judicial Conduct

states that it is inappropriate for a judge to hold membership in any

organization that invidiously discriminates on the basis of race, sex, or religion.

Do you currently belong, or have you belonged, to any organization which

discriminates - through either formal membership requirements or the

practical implementation of membership policies? If so, list, with dates of

membership. What you have done to try to change these policies?

No.

-16-
1818

3. Is there a selection conunission in your jurisdiction to recommend r-aTtHirfati-i

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 \\Mch you participated).

I was recommended by a selection committee. I completed a substantial

application and was interviewed by the entire committee. I was

Interviewed by Senators Moseley-Braun and Durbin and recommended by

them. I also completed lengthy questionnaires and was interviewed by

representatives of the ABA, Department of Justice and FBI.

4. Has anyone involved in the process of selecting you as a judicial 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 subjea 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 charaaeristics 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 vchide

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;

-17-
1319

A tendency by the judiciary toward loosening jurisdictional requirements

such as standing and ripeness; and

A tendency by the judiciary to impose itself upon other institutioru in the

ntatmer of an administrator with continuing oversight respoiuibilities.

The federal courts are courts of limited Jurisdiction. A federal court

should not acceptJurisdiction of a case unless the requirements ofthe

particular statute or the Constitution are clearly met. The function of

a trial Judge Is to adjudicate actual disputes between real parties In

accordance with the law and the evidence. It is not the function of a

Judge to attemptto solve larger social problems when deciding a case.

It Is not proper for courts to function as legislators or administrators.

A districtJudge Is bound t>y precedent It Is not the function of a district

Judge to attempt to establish precedent In an area where there Is

applicable precedent

-18-
1320

FINANCIAL DISCLOSURE REPORT

NomJiiadaa Report

Murphy, George P.

LConwO

U.S. OiltCtSo. Di»l.oflL 08^)2/1907

,ml« —I. ..ilaiXiu

j^_ tlijiimtiii. Oat 07/31/1997

J.S. Oistilct Judge Nominee

01/01/1996

06«yi997

1. a> tti ta*•(a> WktMla

104 W. Catveit

^.O. Box 907

Marion. IL 62959

POSITIONS (»v««<f i««»i*i* •*. m/r '•" *»i»n«*»«i

POSITION

X NOMI (No npomfak paUoia.)

NAME OF ORGANIZATION / EmTTY

L AGREEMENTS aupcnlH li«rt nl«»»; j.«n>.<«.<7<fl»inpl»»j

DATE PARTIES AND TERMS

3 NONE (HonponiU*

n. NON-INVESTMENT INCOME aitpcMt, l^x^ii i^jpcat: mrr 1^23 <^t<maimi.)

DATE PARTIES AND TERMS

Z]'

GROSS INCOME

> 1997 Law practice i 159.697 3S

> 1996 l.aw Practice * 199.099 30

> 1994-97 G. Patridt Murphy, Attorney (S)

• 1995 l.aw practice » 284.73C0C

s
1321

lANCIAL DISCLOSURE REFOBT Murphy, George P. 0aA)2/1897

I RBIMBUBSEMENTS aod GIFTS - •

D' SOURCE DESCRIPTION

t (Itoa

exempt

. OTHER GIFTS

(^tedtaM»9>o»f airfd^pairitadUttvR,- •wjto^iillhrtirfl 'B'arf *#>0'<»tlrflfWW<*<rrtbfwcilwrfiyytw»arfil^Mi*i< ilWilw.

D

SOURCE DESCRIPTION

HONI (No wH niionillk iM)

!. UABOITIES

u

CREDITOR DESdUmON VALUE CODE*

NONS (No nponaUe Inliilibet)

Benk of Herrln, Herrin, IL OfBce BuWdinn Mortgage

• VALCODeSfJ-SIS.Omoiksi X-SIS.OOl'SSO.OOO L-UO.OOIIaSIOO.000 M-SIOO.0O|.t2W.0OO N-CW.OOISSOO.OOO

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1822

INANCUL MSCLOSUU REPOBT Hurphy, Oeorg« P.

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1323

NANOAL mSCLOSlfRE REPORT Nurphy. Qaorge P.

H Par 2 INVESTMENTS and TRUSTS i,«rf«du*«. s»m S7~u^bunakmi

Oe/02/1997

(Col Dl. I>«) F-SS0,00I-S100.000 HI-S1.000.001-ss.ooo.ooo

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1324

MANCUL DISCLOSUKE KEPORT

Nim of hnM Hpontas

Mufphy. Qeofge P. 0»/02/l»»7

X. CERTinCATION

In con^liince with the provitions of 28 U.S.C. 4SS ind of Advisory Opinion No. 57 of the Adviaoty Coonniiiec on

idiciAl Activities, uid to the best of my knowledge at the time ifter reasonable inquiry, I did not perform any adjudJcMory

inctioo in any litigation during the period covered by this repon in «4uch I. my spouse, or my minor or depcndca daldteB

id a noaiicial interest, as defined in Canon 3C(3Xc). in the outcome of such litigation.

I certify that all the information given above (including information pertaining to my qxmse and minor or depesxkat

lildren. if any) a accurate, true, and cofi^>lete to the best of my knowledge and belief, and that any informatioo out nponi

as withheld because it met applicable statutory provisions permitting non-disclosure.

I further certify that earoed inctxne Ai»n ouuide employment and honoraria and the •rrm^nt^ of gifts which fane bca

:portedare incompliance with the provisions of S U.SC. app. 4. section 501 et. seq.. 5 U.S.C. 7353 aixl Judicial

Signature ro^Bu^Cc Due olr/^^

Any individual who knowingly and wilfully faUiHea or fails to file this repoit may be nibjea to c

aQd crimiotl aanctioia (S U.S.C. App. 4, Section 104).

FIUNC INSTRUCTIONS

Mail original and lhrt« additional copies to:

Committee on Rnanclal DlKloture

AdmlnlMrallvc OfDce of the United Stales Conrta

One ColumlMi Circle, N.E.

gaile 1-301

Waililniton, D.C. 10544
1325

nrwoKiH

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hoUUni.) tU lUbOIte Oaetodim drttt. »R|KM. toui. „d ete BModd^SidSJIrrf

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1326

G. Patrick Murphy

REAL ESTATE OWNED

Real Estate Addr— Valu*

Law office of G. Patrick Murphy 104 W. Calvert $215,000.00

Marion, IL 62959

Personal Residence 3006 W. Woodlawn Place $140,000.00

Marion, IL 62959

Undeveloped real estate (4 1/2 acres) 6936 MarWey Lane $15,000.00

Marion, IL 62959

$370,000.00

LISTED SECURITIES

Name of Security Sharea Owned Prtee Per Share Valu«

Heartland Bancshares

Charter Financial Inc.

Kemper High Yield Fund

Kemper High Return Fund

VanKamp, An Aggressive Growth Fund

Aim Value Class Mutual Fund

SIT Mutual Fund

700 $16.75 $11,375.00

11249 $21.50 $241,853.00

3984 $8.45 $33,665 00

15 $31.90 $478 00

989 $11.00 $10.879 00

310 $35.93 $11.138 00

971 $13.43 $13,046.00

$322,434.00

Property Mortgage:

Law Office of G. Patrick Murphy

104 W. Calvert Street

Marion. IL 62959

Bank of Herrin Note # 57032

101 S. Park Avenue Amount: $130,006.00

Herrin, IL 62948

August 1. 1997
1327

L BIOGRAPHICAL INFORMATION (PUBUC)

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

Flredcrica A. Masiah-Jackson

(Frederica A. Massiah)

2. Address: List cuirent place of residence and ofTice address(es).

Ofnce: 506 City HaU

PhUadelphia, PA 19107

Home: Philadelphia, PA

3. Date and Place of biith.

NoTcmber 10, 1950

Fhiladeiphla, PennsylTania

4. Marital Status (include maiden name of wife. Or husband's name). List spouse's

occupation, employer's name and business addresses).

Spouse: Thomas H. Jackson, in

Project Assistant

Philadelphia Housing Authority

2021 Chestnut Street

Philadelphia, PA

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were grained.

Chestnut HIU College

Philadelphia, PA

1967-1971

A.B., Political Sdence

Univenity of Pcnnsylvaiiia

ScboolorLaw

PUladelpUa, PA

1971-1974

J.D.

8/»7
1328

6. Emplovinenl Record: List (by year) all business or professional corporations,

companies, finns, or other enterprises, partnerships, institutions and organizations,

nonpront or otherwise, including firms, with which you were connected as an officei

director, partner, proprietor, or etnployee suxx graduation from college.

Hon. Robert N.C. Nix, Jr.

Supreme Court of Pennsylvania

Philadelphia, PA 19107

Judicial Law Clerk

1974-1976

Blank Rome Comisky & McCauley

Four Penn Center Plaza

Philadelphia, PA 19103

Associate Attorney

1976-1979; 1981-1984

Senate of Pennsylvania

Hon. Freeman Hankins (deceased)

Main Capitol Building

Hanisburg, PA

Chief Counsel

Senate Insurance and Business Committee; and

Special Senate Committee to Investigate

Significant Business Closings

1979-1981

Court of Common Pleas

First Judicial District

Philadelphia, PA 19107

Trial Judge

1984 to present

Wharton School

University of Pennsylvania

Philadelphia, PA 19104

Lecturer

1992-1995

7. Military Service: Have you had any military service? If so, give particulars,

including the dates, branch of service, rank or rate, serial number and type of

discharge received.

None
1329

Honors and Awards: List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe would be of interest to the Committee.

Gateway Black History Recognition, 1997

Pundiey's Community Service Award

WaUdng tlie Extra Mile, 1996

Alpha Kappa Alpha, Iota Tau Omega Community Service, 1995

Sadie T.M. Alexander Award, University of Pennsylvania

Law School, 1995

Alpha Kappa Alptia Sorority, Women in Leadersliip, 1993

National Catholic Educational Association,

Presidential Award, 1990

Naval Base of Philadelphia

Martin Luther King Humanitarian Service Award, 1989

We The People, Freedom Medal, 1988

498 Hardworking Women,

A Directory for Pennsylvania, 1987

compiled by Kathryn Larson

Woman of the Year, 1987, ZeU Phi Beta Sorority, Inc.

School District of Philadelphia, 1986-1987

Law-Related Educational Program,

"Impact of Law on Minorities and Females"

School District of Philadelphia

Women in Education Award, 1986

WlUing Workers Association of Southwest Philadelphia, 1986

Nicetown Boys and Girls Club, Community Service Award, 19HS

Julia Reynolds Masterman School, Distinguished Alumna

of 1985

Rafters Charities, Inc., Appreciation Award, 1984

3
18S0

Italian-American Press Award, 1984

Philadelphia Jaycees, Outstanding Young Leader of

Philadelphia, 1983

American Federation of Government Employees,

Local 1793, V.A.M.C., Community Service Award, 1983

One of the 81 People to Watch in 1981,

Phlladelohia Magazine

Downingtown Industrial and Agricultural School,

Distinguished Service Award, 1979

Leadership, Inc., Class of 1979-1980

(formerly Community Leadership Seminars)

Philadelphia Jaycees, Finalist,

Outstanding Young Leader, 1978

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.

Conference of Pennsylvania State Trial Judges

Legislative Committee, 1986; 1993-present

Court of Common Pleas, Philadelphia, Pennsylvania

Elected, Secretary of the Board of Judges, 1995-present

Chair, Corporate Sureties and Fiduciaries Committee,

1995 - present

Judicial Study Committee, 1989-present

SUfTmg Committee, 1991

Joint Bench/Bar Planning Committee, 1991-1992

District Attorney Screcnbig Committee, 1991

American Bar Association

Special Committee on Youth Education for Citizenship,

1988-1991
1331

Philadelphia Bar Association

Chair, ndelity Award, 1994

Board of Governors, 1980-1983

Executive Committee,

Young Lawyers Division, 1978-1980

Barristers Association of Philadelphia,

affiliate of the National Bar Association

FIrrt Vice-President, 1977-1978

Supreme Court of Pennsylvania

Hearing Committee, Disciplinary Board, 1979-1982

Judicial Council, 1982

Minor Court Civil Procedure Rules Committee,

1978-1980

American Inns of Court

Master of the Bench, 1993-1996

University of Pennsylvania Law School

Board of Managers, 1982-1985

Chair, Nominating Committee, 1991, 1992

Temple University Law School

Law-Related Education Advisory Board

(LEAP) 1988-present

American Arbitration Association

Philadelphia Personal Ii\]ury

Advisory Board, 1992-present

Lawyers Club of PhiladeipUa, 197S-198S

Continuing Legal Education Facuitv:

How to Avoid Legal Malpractice, December, 1996

Trial Advocacy, September, 1996

Fee Dispute Resolution, December, 1995

Advocacy for Women Litigators, April, 1995

Court of Common Pleas, Mediation Training, January,

February, 1995
1332

Litigation Medical Malpractice Claims, ALI-ABA, October,

1994

Civil Bencli Bar Conference, September, 1994

A View From The Bench/Opening and Closing Statements,

September, 1994

Effective Advocacy, July, 1994

Alternative Dispute Resolution/Judicial Settlement

Conferences, June, 1994

Trial Techniques: Guide to Civil Trial Advocacy, April, 1994

Fee Disputes, Ethical Considerations, December, 1993

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public bodies. Please list all other organizations to which you

belong.

I do not participate in organizations which are active in lobbying before pubUc

bodies.

Other organizations to which I currently belong are:

Friends of The University of Natal Durbin, South Africa,

1995 - present

Jack and Jill, Inc. -1981 - present

Links, Inc.

Chair, International Trends, 1985-1995

Corresponding Secretary, 1995 -

National Catholic Educational Association

Board of Directors, 1987-1990, 1994-1997

Vice Chair, Board, 1994 - 1997

Convener, 1995 Presidential Search

Philadelphia Heart Institute of Presbyterian Hospital

Foundation Board, 1991 - present

Scribe Video Center

Board of Directors, 1987 - present
1333

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 lequire special admission to practice.

United States District Court for the Eastern District of

Pennsylvania. Admitted 1974.

United Sutes District Court for the Middle District of

Pennsylvania. Admitted 1976 to 1979, for one case.

Supreme Court of Pennsylvania. Admitted 1974.

12. Published Writings: List the titles, publishers and dates of books, articles, reports or

other published material you have written or edited. Please supply one copy of all

published material not readily available to the Committee. Also, please supply a copy

of all speeches by you on issues involving constimtional law or legal policy. If there

were press reports about the speech, and they are readily available to you, please

supply them.

a. "Education and Delinquency, a Judge's Four-Point Plan for At-Risk

Kids." Update on Law-Related Education, American Bar Association

Spring, 1989

b. "In Search of FuU Vision"

Momentum

September, 1990

OTHER PROFESSIONAL REPRESENTATIONS

"AMcan Americans and Civil Rights: A Reappraisal"

Black History Month Committee of the U.S. Dept. of Labor

and U.S. Dept. of Health and Human Services, February, 1997.

"The Economic Impact of Justice"

Jobs With Income Simmiit, January, 1997

"Sisterhood Across America"

Panel Discussion, Themes & Books, October, 1996

North Philadelphia Spiritual Center

Gcsu Church, 1996

A^ OA^ OQ A1
1334

"Women in Judging: Transforming Tlie Image of Justice"

University of Pennsylvania Law School, March, 1995

"Race, Justice and Peace"

Presenter Pennsylvania Legislative Black Caucus Summit,

1995, 1994

"Legal Concerns of Senior Citizens"

Southwest Community Center, April, 1993

Alumna Spealcer; Black Law Student Association

University of Pennsylvania, March, 1993

"North Philadelphia, Then and Now"

A.M.E. Union Church, February, 1993

"Womwi Celebrating Women"

St. Charles Borromeo Church, October, 1992

"We Have Come This Far By Faith - Women's Strengths"

St. Ignatius Church, June, 1992

Alumna Speaker; African American Awareness Society

Chestnut Hill CoUege, March, 1992

"Victim's Rights" Keynote, VictimAVitness Advocacy Program

Tri-County Prosecutor's office, Gloucester County, New Jersey,

AprU, 1991

"Black Youth, We are The Future, Reaching for Our Dream"

Luncheon - Keynote, Church of the Gesu, February, 1991

Dinner Speaker, Conclave

Twigs, Inc., Wilmington, Delaware, June, 1990

"Women-God's Gift of the Universe"

Union Baptist Church, June, 1990

"Women and the Constitution"

Mt. Sinai Tabernacle Church, 1990

Black History Celebration, LaMott Community

Cheltenham Township, February, 1990; February, 1989
1335

Martin Luther King Observance; Pliiladelphia Naval Base;

Keynote Address, January, 1989

"Women at the Crossroads-From the Kitchen to the Pulpit"

Holy Cross Lutheran Church, May, 1989

"Equal Opportunities for Women and Minorities,'* EEO Luncheon

Speaker, Naval Aviation Engineering Service Unit,

March, 1988

"The Role of Paralegals in the Office"

American Institute for Paralegal Studies, May, 1988

Conference for Women

West Chester University, October, 1988

National Law-Related Education, Leadership Seminar/Keynote

Address - American Bar Association, November, 1988

"Continuing the Dream," Message, Martin Luther King Service

Cardinal's Commission on Human Relations and Urban

Ministry, January, 1987

Naturalization Proceedings, United States Courthouse,

March, 1987

"Women in the Law - 200 Years After the Constitution,"

Women's Law Caucus/Student-Alumnae Diner, Temple Law

School, April, 1987

"Women Going Forward," Olivet Baptist Church, May, 1987

"Women-Your Rights in the Workplace," Katherine Gibbs

School, June, 1987

"Salute to the Young, Gifted and Black," Miller Memorial

Baptist Church, June, 1987

"How to Become a Judge," League of Women Voters and NBA

Women Lawyers, January, 1986

"Sugar and Spice," Black Business and Professional Women,

April, 1986
1336

"Women in Education," Keynote Speaker, School District of

PhUadelpliia, April, 1986

"Challenges to our Youth," Boys and Girls Qubs of

Metropolitan Philadelphia, Nicetown Branch, Annual

Meeting, 1985

"Developing Character in a Technical Age: A Challenge to

Education," American Association of University Women,

May, 1985

"We, Women of the 80's," with Hon. Lisa Richette, National

Women's Political Caucus, Community College of

Philadelphia Forum, October, 1985

"The Right Women for the Job," Black Women Education

Alliance, School District of Philadelphia, October, 1984

In addition to the above, I have participated in numerous panel

discussions, conferences, seminars, symposia, with formal and informal

presentations on behalf of the Pennsylvania Bar Association, the Philadelphia Bv

Association (including but not limited to several Bench-Bar Conferences), the

Barristers Association and Penn Law Student programs, over the past 20 yeanFinally, I have participated as a "judge" in many moot court competitions and

mock trial programs over the years.

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

examination.

Excellent

March, 1997

14. Judicial Office: State (chronologically) any judicial ofTices you have held, whether

such position was elected or appointed, and a description of the jurisdiction of eacli

such court.

I was elected to the Court of Common Pleas in November, 1983, for a 10-yeir

term. In November, 1993,1 won a retention election for my second 10-year

term.

The Court of Common Pleas is Pennsylvania's trial court, with unlimited

Jurisdiction. I sat for 8 years in our Criminal Division, hearing M^jor Feloajf

cases. Since 1991, I have presided hi our Civil Division, hearing medical

malpractice, products liability and commercial cases.

10
1337

15. Cilations: If you are or have been a judge, provide: (1) citations for the ten most

significant opinions you have vtritten; (2) a short summary of and citations for all

appellate opinions where your decisions were reversed or where your judgment was

affirmed with significant criticism of your substantive or procedural rulings; and

(3) citations for significant opinions on federal or state constitutional issues; together

with the citation to appellate court rulings on such opinions. If any of the opinions

listed were not officially reported, please provide copies of the opinions.

PART 1

1. Clark V. Philadelphia College of Osteopathic

Medicine

June Term, 1990, No. 5674

2. Maerten v. Philadelphia Marine Services. Inc.

32 Phila. 174 (1995)

3. Meehan T. Volvo White GMC

30 Phila. 225 (1995)

4. Conyreyation Ner Zedek Ezrath-Israel and Church

Mutual Insurance Co. v. Union Roofing and Sheet

Meul Contractors

29 Phila. 209 (1994)

5. Pavoni. et al. v. Magee. M.D,

29 Phila. 28 (1994)

6. Shaw, et al. v. Kirschbaum. P.O.

27 PhiU. 595 (1993)

7. Wniiams v. Supermarkets General Corp.

27 Phila. 518 (1994)

8. Frve v. Kanner. D.P.M.. Balderston. M.D. and

EUkJdJL

27 Phila. 170 (1993)

11
1338

rimwtitmHmmmUtt » IMIIMWI

18 PbUa. 418 (1988)

AfTd, 566 AJa 1197 (Soperlor Ct. 1M9)

Li.

14 PUla. 636 (1986)

PAST a

since January, 1984,1 bare pmided OTCT t^natm^Af of Jnry and nao-Jaxr

trials in criminal and drU matten, gaiXtj plaai, nalo-oantcndcn plcai, pr»4rial

nipprtwlon motions, Bule 1100 Cip—dy triaO modoas, and cMI motfoBS fl.e..

summary Jvdfmnt).

According to Court Administration Criminal DiTision records, I disposed

of 551 cases In 1984; 736 casH in 1985,- 653 cases in 1986; S91 CMM In 1987; 241

cases In 1988; 354 cases in 1989; and 447 cases In 1990. In 1991,1 spca dclK

moathi in the Crtninal Dlrisian and four months In the Clril Dtrislon. In 1992,

1993,1994 and 1995,1 disposed of 60 to 100 drU cases per yosr (arcrachig more

than 1 trial per week)- In 1996, as a CITU Team Leader, my records indicate 2O0

Oril dispositions. ClTil dispositians bidade trials to Tcrdlct, settlssMOts bafan

or during trial, and/or dlsposMvc rulings.

According to my records, from January, 1984, to March, 1997, 95 appeak

were died with the Superior Court of PennsyWasla. Of theae, the Superior

Court rrreraed. In whole or In part, 14 times.

To the best of my knowledge, 4 Superior Court OpinioBS, whIA rtrerssd

In whole or In part, bare been published. These were all cMI cases. Two

Superior Court cases which afOnned the Trial Court (1 drO and 1 crinlnnl) bare

been published. Thus, all other Superior Court dedslons, apprailmataiy 89, for

aRbmanoe or rerersal or remand, ware non-puhlisbed Memoranda. Tlie

Memorandum Oplntons are sent to the parlies and the Trial Court. By Superior

Court Rule, they may not be referred to or reUed on in any other litigation as

precedent.

1. flmiiii ITtlttll Ti BflMt

January Term, 1986, No. 0144

Defendant vpealed aUaglag tauffeetlTc trial coonasl. FMJ

Motions. Superior Court afdrmed trial, remandad for new

18
1339

2. Commonwealth T. Victor Colon

June Term, 1986, No. 2585

Defendant appealed sufficiency of evidence. FMJ denied Motions.

Superior Court reversed rape charges, holding that expert witness should

not have testified about child sexual abuse. New trial ordered.

3. Commonwealth v. Robert Hicks

October Term, 1986

FMJ discharged defendant and Commonwealth appealed. Superior Court

ordered a trial.

4. Commonwealth v. Mavb*iTv anri Jenkliw

January Term, 1987, No. 1792

FMJ granted Suppression Motion; Commonwealth appealed. Superior

Court reversed and ordered a trial.

5. Commonwealth v. Dwavne Garman

January Term, 1987, No. 0397

FMJ held Rule 1100 (speedy trial Rule) violated. Superior Court reversed

and ordered trial.

6. Commonwealth v. Larrv Crew

February Term, 1988, No. 5148

FMJ held that Commonwealth failed to sustain prima facie burden to hold

defendant for trial. Superior Court reversed.

7. Commonwealth v. Martin Mallov

February Term, 1988, No. 1974

FMJ granted Suppression Motion - reversed on appeal.

8. Commonwealth v. Willie Wvche

December Term, 1988, No. 3709

FMJ held that this juvenile defendant required an expanded certification

hearing. Superior Court held it was premature for Trial Court to

consider the issue.

13
1340

9. CommonweaHh T. Wesley Smith

October Term, 1990, No. 3502

FMJ granted certain pre-trial Motions precluding evidence. Reversed on

appeal. Defendant subsequently found not guilty.

10. Commonwealth v. Linda Scott

Details unlaiown. My records indicate only that defendant appealed in

1990. Superior Court reversed in October 1991.

11. HalDJn and Courtney v. LaSalle Unlversltv

May Term, 1990, No. 1109

Two college professors challenged employment termination due to age.

FMJ sustained their allegations. Superior Court held there was no

contract to permit the challenge.

12. Shaw y. KIrschbaum. P.O.

27 Phila. 597 (1993)

Pa. Superior Ct. , 653 A.2d 12 (1994)

Superior Court vacated the Judgment holding tliat referral physidan could

not be liable under theory of informed consent.

13. Clark v. Philadelphia College of Osteonathic Medicine

June Term, 1990, No. 5674

Pa. Superior Ct. , 693 A.2d 202 (1997)

The Superior Court afTirmed the Trial Court's evidentiary rulings, then

vacated the Judgment after holding that the plaintifTs Joint tortfeasor

settlement with certain defendants "capped" the recovery. Appellate

Opbiion, dated March 12, 1997, wiU be published. Both sides have

petitioned for re-argument.

14. Rorentino v. Raoaport. et al.

March Term, 1989, No. 4395

Pa. Superior a. , 693 A.2d 208 (1997)

FMJ was not the trial court, but sat as post-trial court gUaiis for a trial

Judge pro tem. Superior Court reversed non-suit determination,

remanding for new trial.

14
1341

PART 3

None at this time.

16. Public Office: State (cliroix>logica!Iy) any public offices you liave held, other tl.'an

judicial offices, including tlie terms of service and whether such positions were

elected or appointed. State (chronologically) any unsuccessful candidacies for e:'Xtive

public office.

I served as an elected committee person for the 22nd Ward Democratic

Executive Committee for approximately 8 years prior to 1983.

I was appointed to serve as a Delegate to the 1980 Democratic National

Convention in New York.

In the Spring of 1981,1 was an wisuccessful candidate for the Court of

Common Pleas.

17. Ugal Carwr:

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 coun, and the dates of the period you were a cleric;

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

3. the dates, names aixl addresses of law firms or offices, companies or

governmental agencies with which you have been coiuiected, and the

nature of your cotuiection with each;

I have never practiced alone.

1974 to 1976 Judicial Law Oerfc

Hon. Robert N.C. Nbt, Jr.

Pennsylvania Supreme Court

(Retired as Chief Justice in 1996)

6640 Lincoln Drive

PhUadeiphia, PA 19119

IS
1342

1976 to 1979 Associate Attorney

Blank Rome Comisky & McCauIey

Four Penn Center Plaza

16'* and J.F.K. Boulevard

PhUadelphia, PA 19103

1979 to 1981 Senate of Pennsylvania

Hon. Freeman Hankins (deceased)

Senate Insurance and Business Committee; and

Special Senate Committee to Investigate

"* Significant Business Closings

1981 to 1984 Associate Attorney

Blank Rome Comisky & McCauIey

Four Penn Center Plaza

Philadelphia, PA 19103

1984 to present Judge, Court of Common Pleas

First Judicial District

506 City Hall

PhUadelphia, PA 19107

1992 to 1995 Lecturer, Wharton School

University of Pennsylvania

Legal Studies 101

(Business Law to undergraduate

college students)

b. I. What has been the general character of your law practice, dividing it

into periods with dates if its character lias changed over the years?

In the years before I was elected to the Court of Common Pleas, the

general character of my practice was corporate and commercial litigation.

During 1976 through 1979, I worked as an associate attorney in the area of

antitrust, securities and multi-district litigation. As a young attorney, my

responsibilities required me to work with others in the representation of clients in

dvil and criminal matters involving the United States Attorney's Office, as well

as private, treble damage litigation. I handled discovery Issues at all stages of

pre-trial, trial and settlement proceedings in Federal Court.

I was engaged in general civil and commercial litigation for three years,

1981 through 1984. Additionally, during 1981 and 1982,1 represented a taxi

company before the Public Utility Commission Hearings as we transferred

ownership to individual driver/owners of taxis.

16
1343

From 1979 through 1980, while on a leave of absence from the firm, I

used my legal talents much differently. While working with our State Senate, I

was the chief administrator charged with interviewing literally hundreds of

people to attempt to learn why three m^'or supermarket chains closed within a

six-month time period, leaving more than 10,000 people out of work in

Pennsylvania. Our Special Senate Committee had subpoena power and I was

invited to serve as Counsel because of my antitrust experience. I was responsible

for scheduling public hearings in Philadelphia, Harrisburg and Pittsburgh.

Subsequently, I prepared a report and recommendation from our bipartisan

committee to the full Senate.

Later, from 1980 through 1981, as Counsel to the Senate Insurance

Committee, I was responsible to lead our Senator's staff in drafting legislation

and reports for the fkiU Senate Committee.

My work as a judicial law clerk, from 1974 to 1976, provided me with the

significant learning experience of viewing cases from the appellate perspective of

our Commonwealth's highest court. I honed my skills in legal research, analysis

and writing. Much of this early perspective, I use today as a trial judge.

2. Describe your typical former clients, and mention the areas, if any, in

which you have specialized.

The typical clients at Blank Rome Comisky & McCauley were medium

and large corporations. During my first "stint" at the firm, my projects involved

ms^or, multi-district private antitrust and anti-dumping litigation. Class action

litigation was developing in the early 1970's, as well as complex commercial

matters. The clients were companies selling products in the United States and

abroad. As plaintiffs, we sued a group of Japanese electronic product

manufacturers. As defendants, we represented individuals and the companies

accused of price fixing. I coordinated the defense of a multi-district class action

which was consolidated in the Middle District Couri of Pennsylvania.

When I returned to the law Arm in 1981, the Litigation Department was

no longer subdivided. I worked on state and federal court matters in more

general commercial litigation, as well as Public Utility Commission administrative

hearings.

c. 1. Did you appear in court frequently, occasionally, or not at all? If the

frequency of your appearances in court varied, describe each such

variance, giving dates.

I appeared in court occasionally.

17
1344

2. What percentage of these appearances was in:

(a) federal courts;

(b) state courts of record;

(c) other courts.

Approximately 80%-85% was in federal courts; other appearances wen

before state courts or private dispute resolution.

3. What percentage of your litigation was:

(a) civil;

(b) criminal.

One hundred percent of my experience was in civil litigation.

4. State the numi>er of cases in courts of record you tried to verdict or

judgment (rather than settled), indicating whettier you were sole

counsel, chief counsel, or associate counsel.

As an associate attorney at a 200-person law firm, I worked with other,

more senior, attorneys. To the best of my knowledge, all of the cases I worked

on eventually settled.

5. What percentage of these trials was:

(a) jury;

(b) non-jury.

Eighty-five percent jury; 15% non-jury.

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reponed, and the docket immber and

date if uiveported. Give a capsule summary of the substaiKe 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 cotmsel for each of the other parties.

18
1345

The following are litigation matters tiiat I personally liandled:

(a) Ruli Corporation v. The School District of Philadelpliia

October Term, 1981, No. 3362, Court of Common Pleas

Ashboume Transportation Co. v. The School District of

WiiiadelDhia

October Term, 1981, No. 3363, Court of Common Pleas

Ronald H. Surkin, Esquire

25 W. Second Street

P.O. Box 900

Media, PA 19063

(610) 565-4600

I was co-counsel

for Plaintiff

Martin Horowitz, Esquire

923 E. Darby Road

Havertown, PA 19083

(610) 449-2088

Defendant

(b) Rov Jackson v. Miridt Pearson Batcheler Henrv

American Arbitration Association; private ADR

Sheldon All>ert, Esquire

3300 Two Commerce Square

Philadelphia, PA 19103

(215) 963-0600

I was co-counsel

for Plaintiff

Bruce Lombardo, Esquire

11 Peon Center

1835 Market Street

Philadelphia, PA 19103

(215) 563-4470

Defendant

(c) Pizzeria Trio. Inc. v. CSMI. Inc.

Civil Action No. 81-4312, Eastern District of Pennsylvania

Jeffrey Less, Esquire

1515 Market Street

PhUadelphia, PA 19102

(215) 568-1155

Plaintiff

Ronald H. Surkin, Esquire

25 W. Second Street

P.O. Box 900

Media, PA 19063

(610) 565-4600

I was co-counsel

for Defendant

19
1346

(d) TMimters Local 169 and Northern Shipping CO.

HOP Raslev Discharge

Case No. 1-30-0230-82H

American Arbitration Association

Charies Mullen, Arbitrator

Richard Sigmond, Esquire Sheldon Albert, Esquire

11th Floor 3300 Two Commerce Square

Public Ledger Building Philadelphia, PA 19102

Independence Square (215) 963-0600

Philadelphia, PA 19106 I was co^ounsd

(215) 351-0609 for Defendants

Plaintiff

(e) Bethlehem Furniture Co. v- Richard 1. Rubin. Inc.

Eastern District Court of Pennsylvania

(f) Maver Pollock Steel Corporation v. Arredl Steel Co.

Eastern District Court of Pennsylvania

As co-counsel to plaintiff, the issue was a dispute over the price of a large

shipment of Italian steel. My supervising attorney was Morris Dean,

Esquire, Blank Rome Comisky & McCauley, Four Penn Center Plaza,

Philadelphia, PA 19103, (215) 569-5500.

(g) In re: Metro Transportation Companv

Honorable Charles Hoffman

Administrative Law Judge

Pennsylvania Public Utility Commission

Lawrence Beaser, Esquire Jay Bomze, Esquire

Kathleen Herzog Larkin, Esquire 1401 Arch Street

Blank Rome Comisky & McCauley Philadelphia, PA 19102

Four Penn Center Plaza (215) 569-0110

Philadelphia, PA 19103 Buyers

(215) 569-5500

I was co-counsel for Sellers

20
1347

(h) In re Anthrarlti- Coal Antitrust LiUeation

79 F.R.D. 707 (1978)

Honorable Malcolm Muir (M.D. Pa.)

This multi-district, class action was consolidated in the Middle District of

Pennsylvania from 1976 through 1978. I served as one of the lead defense

attorneys in coordinating document productions, discovery, notice to the

class, and preparation of settlement details in the price fixing litigation.

Counsel for plaintiffs included Arnold Levin, Esquire, Levin, Flshbetai,

Sedran and Berman, 320 Walnut Street, Philadelphia, PA, (215) 592-1500;

H. Laddie Montague. Berger & Montague, P.C, 1622 Locust Street,

Philadelphia, PA (215) 875-3010.

Counsel for defendants bicluded co-counsel Richard McElroy, Esquire,

Blank Rome Comisky & McCauley, Four Penn Center Plaza,

PhUadelphia, PA, (215) 569-5500; Edward F. Mannino, Esquire, Wolf

Block Schorr & Solis-Coben, 15th and Chestnut StreeU, Philadelphia, PA,

(215) 977-2492.

(0 Zenith Radio Corp. v. Matsushita Electric

Industrial Cg.i Ui; tt »1,

481 U.S. 1029 (1987); 807 F.2d 44 (3rd Cir. 1986);

423 F.2d 238, 723 F.2d 319 (3rd Cir. 1983);

513 F.Supp. 1100 (E.D. Pa. 1981);

494 F.Supp. 1190 (E.D. Pa. 1980)

The Japanese Electronic Products Antitrust Litigation was a m^jor lawsuit

involving allegations of international price fixing, dumping, economic

cartels and trade violations. After many years of pre-trial discovery,

commencing in the early 1970's, summary judgment was granted in favor

of all defendants in the 1980's and affirmed by the United States Supreme

Court. Several Judges in the Eastern District Court of Pennsylvania,

including the Honorables A. Leon Higgenbotham and Edward R. Becker,

presided at different periods. My role as one of several co-counsel for

plaintiffs involved document reviews (in Japanese and English), research

and writing of discovery related motions and memoranda between 1976

through 1978.

Counsel for plaintiffs were Edwin P. Rome, Esquire (deceased), Richard

McEhoy, Esquire, and William H. Roberts, Esquire, of Blank Rome

Comisky & McCauley, Four Penn Center Plaza, Philadelphia, PA 19103,

(215) 569-5500.

21
1348

Local defense counsel induded: Patrick T. Ryan, Esquire, Drinker,

Biddle & Reath, 1345 Chestnut Street, PhUadelphia, PA, (215) 98S-2M5;

Raymond T. CuUen, Esquire, Morgan, Lewis & Bockius, 2000 One Vogan

Square, Philadelphia, PA, (215) 963-5650; Harry A. Short, Jr., Esquire,

Marshall, Dennehey, Warner, Coleman & Gog^, 1845 Walnut Street,

PhiladelphU, PA, (215) 575-2690; Walter R. MUboume, Esquire, Saul,

Ewing, Remick & Saul, 3800 Centre Square, Philadelphia, PA, (215)

972-1975; Henry T. Reath, Esquire, Duane, Morris & Heckscber, One

Uberty Place, Philadelphia, PA, (215) 979-1340.

Because the cases I have located are so old, I do not believe that these

adequately reflect my qualifications, experience, temperament, character or

integrity as a trial court Judge. I will provide the names of members of the legal

community who have had recent contact with me in my service as a judge:

1. Edward F. Chacker, Esquire

Gay and Chacker, P.C.

1731 Spring Garden Street

Philadelphia, PA 19130

(215) 567-7955

2. Charles A. Cunningham, Esquirc

First Assistant Defender

Defender Association of Philadelphia

Public Defender's Office

70 North 17th Street

PhUadelphia, PA

(215) 568-3190

3. Eileen Giordano Katz, Esquire

Southeastern Pennsylvania Transportation Authority

Office of the General Counsel

1234 Market Street

Philadelphia, PA

(215) 580-7445

4. John Koncliak, Esquire

Defender Association of Philadelphia

Public Defender's Office

70 North 17th Street

Philadelphia, PA

(215) 568-3190

22
1349

5. Donald F. Ladd, Esquire

WtaUe and WiUiams

One Uberty Place, Suite 1800

Pliiladelptiia, PA 19103

(215) 864-7118

6. Sayde Joy Ladov, Esquire

One Penn Center, Suite 640

PhUadelpliia, PA 19103

(215)564-0600

7. Dante Mattioni, Esquire

Mattioni, Mattioni, Mattioni, Ltd.

399 Markrt Street

Philadelphia, PA 19106

(215) 629-1600

8. Robert Pasquale, Esquire

Doroshow, Pasquaie and Linarducd

1202 Kingwood Highway

Wiknington, DE 19805

(302) 998-0100

9. William H. Roberts, Esquire

Bianli Rome Comislcy & McCauley

Four Penn Center Plaza

Philadelphia, PA 19103

(215) 569-5632

10. Alan Schwartz, Esquire

Anapoi, Schwartz, Weiss & Schwartz

1900 Delancey Place

Philadelphia, PA 19103

(215) 735-0330

11. Carol Sweeney, Esquire

District Attorney's OfHce

1421 Arch Street

PhUadelphia, PA 19102

(215) 686-8700

23
18G0

12. WUUam F. Sutton, Esquire

Post & Schell, P.C.

1800 J.F.K. Boulevard

Philadelphia, PA 19103

(215) 587-1059

13. Rhonda HiU Wilson, Esquire

1500 Market Street

East Tower, 12th Floor

PhUadelpbia, PA 19102

(215) 972-0400

14. Charles G. Young, m. Esquire

Litvin, Blumberg, Matusow & Young

1339 Chestnut Street, 18^ Floor

Philadelphia, PA 19107

(215) 557-3304

19. Legal Activities: Describe the most significanl 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 anomey-client privilege (unless the

privilege has been waived).

I have found that participating as a "faculty" member making

presentations for Continuing Legal Education Programs, as well as attending

professional enrichment programs, has helped me in my work as a trial Judge.

Much of my day-to-day activity is goal oriented; that is, dispose of a motion,

complete a trial, settle a case. The course participation, whether as a presenter

or as a student, enables me to exchange ideas and leam new concepts in a

broader context.

Continuing Legal Education Faculty;

How to Avoid Legal Malpractice, December, 1996

Trial Advocacy, September, 1996

Fee Dispute Resolution, December, 1995

Advocacy for Women Litigators, April, 1995

Court of Common Pleas, Mediation Training, January,

February, 1995

Litigation Medical Malpractice Claims, ALI-ABA, October,

1994

Civil Bench Bar Conference, September, 1994

24
1851

A View From The Bench/Opening and Closing Statements,

September, 1994

EfTective Advocacy, July, 1994

Alternative Dispute Resolution/Judicial Settlement

Conferences, June, 1994

Trial Techniques: Guide to Civil Trial Advocacy, April, 1994

Fee Disputes, CtUcal Considerations, December, 1993

Continuing Legal Education Courses Attended:

Toxic Torts/Chemical Sensitivity Litigation, February, 1997

Pulse of Justice

National Center for State Courts, April, 1995

Effective Legal Negotiations and Settlement, Penn Law

School, November, 1994

Products Liability Law Series

Philadelphia Civil Trial Judges, Fall, 1994

Managing Trials Effectively

National Judicial College, February, 1992

Toxic Torts for Trial Judges

National Judicial College, November, 1990
1352

n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBUQ

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, fimi

memberships, fonner employers, clients or customers. Please describe the

arrangements you have made to be compensated in the future for any fmaocial or

business interest.

Pennsylvania State Employees Retirement System Pension.

2. Explain how you will resolve any potential conflict of interest, including the

procedure you will follow in determining these areas of concern. Identify ibe

categories of litigation and financial arrangements that are likely to present potential

conflicts-of-interest during your initial service in the position to which you have been

nominated.

I will follow the guidelines of the Code of Judicial Conduct.

3. Do you have any plans, commitments or agreements to pursue outside employment,

with or without compensation, during your service with the court?

No.

4. List sources and amounts of all income received during the calendar year preceding

your ix>mination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items

exceeding SSOO or more Of you prefer to do so, copies of the financial disclosure

report, required by the Ethics in Government Act of 1978, may be substituted here.).

Financial Disclosure Report is attached.

5. Please complete the attached financial net worth statement in detail (add schedules as

called for).

Net worth statement attached.

6. Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

26
1353

m. GENERAL (PUBLIC)

An ethical consideration under Canon 2 of the American Bar Association's Code of

Professional Responsibility calls for "every lawyer, regardless of professional

prominence or professional workload, to find some time to participate in serving the

disadvantaged.' Describe what you have done to fulfill these responsibilities, listing

speciflc instances and the amount of time devoted to each.

My interest in community service is reflected in time spent as a classroom

speaker and resource person. Over the years, I have visited many of

Philadelphia's public and parochial schools. When schedules permit, I have

invited classes to visit my courtroom for discussion.

Additionally, as my interest and knowledge in Law-Related Education has

expanded, I frequently work with law students who teach in school classes.

Through Temple Law School's LR£ program, I was introduced to the American

Bar Association's Special Committee on Youth, Education and Citizenship, when

I served from 1988-1991.

I fully accept my responsibility to work with young people, to share my

courtroom experiences, to provide guidance in citizenship, review the Bill of

Rights, and as a role model and native Philadelphian.

Although my time varies from month-to-month or year-to-year, a sample

of the schools where I have been a presenter are as follows:

1984 • GiUespie Middle School; John L. Kinsey Elementary

School; Strawberry Mansion Elementary and Middle

School; Shoemaker Jr. High School.

1985 - Kennedy-Crossen Elementary School; Julia R.

Masterman School; St. Vincent's Elementary

School; Rboads Elementary School; Franklin

Learning Center; Lankenau-Saul High School.

1986 - Rhoads Elementary School; Kennedy-Crossen

Elementary School; West Philadelphia High School;

Germantown High School.

1987 - Grover Cleveland Elementary School; Friends

Select School; Hall Stanton Public School; Mary

McCloud Bethune Elementary School;

Kennedy-Crossen School; James Rhoads School.

27
1354

1988 - Bok High School; Bartram High School; Steel

Middle School; Y.M.C.A. classes in Chester, PA.

1989 - Ludiow Elementary School; West Catholic Girts

High School.

1992 - Cheyney University; Friends Select School; Powelton

Elementary School, where in March, 19S>2, after much

planning and coordination with teachers and parents,

two classes visited my courtroom. The teachers

prepared their lesson plans based on my cases and tbe

students spent two days.

1993 - Wagner Middle School; Abington Friends School;

Temple LEAP/Penn's Discovery Moot Court for

Junior High.

1994 - Gesu School; Philadelphia Inquirer High School

Workshop; Philadelphia High School for Girls;

Fitler Academic Plus Elementary; Mary McLeod

Bethune Elementary School; Springside School;

City-Wide Summer Non-Violence Mock Trial.

1995 - Prince Hall Elementary School; Jay Cooke Middle

School.

1996 - Philadelphia High School for Girls visited the

courtroom for Mock Trial presented by real lawyers,

followed by extensive discussions and questions about

an actual case.

1997 - Greene Street Friends School; Elverson Middle School.

The American Bar Association's Commentaiy 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 lo

try to change these policies?

No, 1 do not belong to organizations which discriminate through

membership.
1355

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to

end (including the circumstances which led to your nomination and interviews in

which you participated).

Yes, there have been three selection committees in the Eastern District of

Pennsylvania which have recommended my nomination to the Federal Court in

1993. 1996 and 1997.

In 1993, former U.S. Senator Harris Wofford named a 15 person

committee chaired by Dr. Mary Patterson McPherson, President of Bryn Mawr

College, to conduct a search for nominees for one vacancy on the Third Circuit

Court of Appeals and one vacancy on the Eastern District Court of Pennsylvania.

Over 90 candidates submitted completed questionnaires which were similar to the

ABA'S Personal Data Questionnaire.

Panels of the committee met with about 25 of the candidates. The ftiU

committee met and interviewed a smaller group of semi-finalists. I was one of 4

or 5 individuals who met with Senator Wofford for consideration for l>oth of the

vacancies. Although I was not appointed to the federal bench at that time, I

remain very interested in the opportunity.

In the Spring of 1996, Senator Arlen Specter, the Senior Senator in

Pennsylvania, convened a new judicial nomination committee. Again, after going

through the process of interviews, I was strongly recommended. No nominations

were made that year.

In July, 1996, Congressman Thomas M. Foglietta submitted my

credentials to the Honorable William J. Clinton for consideration. I have

support for my goals from educational leaders, elected ofHcials, clergy, union

leaders and leaders of the bench and bar in Philadelphia. Many of these

individuals did submit letters of support to Senator Wofford, to Congressman

Foglietta and to former White House counsel Peter C. Erickson, Esquire.

In June, 1997, after two interviews, I was recommended by a Judicial

nomination committee convened by Senators Specter and Santonmi. I have l>een

investigated and interviewed by the American Bar Association, the Federal

Bureau of Investigation and the Department of Justice.

29
1356

4. Has anyone involved in the process of selecting you as a judicial nominee discussal

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 iiKlude:

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 iixlividuals;

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 inqwse itself upon other institutions in

the manner of an administrator with continuing oversight

responsibilities.

The legislature makes the laws, the executive carries out the laws, and the

courts apply the laws.

This is the first lesson in my class on separation of powers. The courts at

an integral part of our system of democracy. Our constitutional government bai

remained strong for 200 years l>ecause we have adhered to the formula of the

framers.

30
1357

Courts have a spedal role, a well defined role, not to re-write laws, nor tc

Initiate processes where the legislatures have not ventured, but rather to

determine whether existing laws are fair, just and constitutional.

The Federal judiciary is not a place for judicial creativity. It is an arena

for scholarly and objective consideration. It Is up to a judge to know the

precedent, to be learned of the legislative intent where necessary, and then to

decide each case based on the facts presented. The judge is not on a soapbox,

nor Is she a policy maker. Judicial responsibility is a stabilizing force of

restraint.

31

NOMINATIONS OF BARRY G. SILVERMAN (U.S.

CIRCUIT JUDGE); CARLOS R MORENO AND

RICHARD W. STORY (U.S. DISTRICT

JUDGES); AND CHRISTINE O.C. MILLER,

JUDGE OF THE U.S. COURT OF FEDERAL

CLAIMS

WEDNESDAY, NOVEMBER 12, 1997

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 2:13 p.m., in room

SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Grassley and Feinstein.

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

ON THE JUDICIARY

The CHAIRMAN. I apologize for being a little bit late. I apologize

particularly to my colleagues as well as the nominees. I got held

up with the media, please forgive me.

Today we have four excellent nominees for various courts: Bariy

G. Silverman, of Arizona, to be U.S. circuit judge for the Ninth Circuit Court of Appeals; Carlos R. Moreno, of California, to be U.S.

district judge for the Central District of California; Richard W.

Story, of Georgia, to be U.S. district judge for the Northern District

of Georgia; and Christine O.C. Miller, of the District of Columbia,

to be a judge of the U.S. Court of Federal Claims.

We are happy to have all of you here. We are happy to welcome

you here, and we are pleased that we have Senator Cleland here

to introduce Judge Story. We have Senator Feinstein, but shall we

start with our colleague first?

Why don't we turn the time over to you and allow you to introduce your nominee here today. Before you do, though, I would put

a statement of Senator Kyi in the record at this time.

[The prepared statement of Senator Kyi follows:]

PREPARED STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF

ARIZONA

Mr. Chairman, fellow members of the Judiciary Committee, I wish to express my

enthusiastic support for the nomination of Magistrate Judge Barrv G. Silverman to

the Ninth Circuit Court of Appeals. I regret that I cannot aeliver these remarks per-

(1359)
1360

sonally, but I would like to take this opportunity to briefly comment on Judge

Silverman's qualifications.

I have had the pleasure of meeting with Judge Silverman, and I have discussed

his nomination and background with other judges, lawyers, and professionals who

have worked with Judge Silverman over the years. By all accounts, he is a man of

honor, intelligence, and integrity—and good humor. For example, fellow Arizona

Judge Ronald Reinstein has commented on Judge Silverman's "professionalism and

total commitment to the litigants who appear before him."

Judge Silverman brings a proven judicial track record to today's hearing. For the

past two-and-a-half years, he has served as a Magistrate Judge on the United

States District Court for the District of Arizona, my home state. For over 10 years

prior to that, he was a Superior Court Judge in Maricopa County, Arizona. While

on the Superior Court bench. Judge Silverman rendered superior service in all aspects of his civil, criminal, juvenile, and domestic relations assignments. In addition

to his time on the bench. Judge Silverman spent five years as Court Commissionafor the Superior Court of Arizona, Maricopa County.

Throughout his distinguished judicial career. Judge Silverman has earned the respect and admiration of fellow judges and the advocates appearing in his courtroom.

For example, in 1991 Judge Silverman received the "Henry Stevens Award," which

is given annuallv by the Maricopa County Bar Association to the current or former

Arizona trial juage "who reflects the finest qualities of the judiciary." Similarly, in

1994, the Maricopa County Committee on Judicial Performance indicated thai

Judge Silverman received the highest percentage of superior ratings from lawyers,

litigant, witnesses, and court staff in all categories of performance reviewred. Also

in 1994, Judge Silverman's court division was honored as the "Judicial Division of

the Year" by the Maricopa County Superior Court Recognition Committee.

In addition to his regular judicial duties. Judge Silverman has advanced the legal

profession through service on the Supreme Court of Arizona Judicial Ethics and Advisory Committee; the Committee on Judicial Education and Training; and the Committee on Professionalism. He also chaired the Committee to Study the Criminal

Justice System in the Arizona Superior Court in 1993, and the Governor's Committee on Child Support Guidelines.

Judge Silverman has shown his commitment to the United States Constitution

and the rule of law by co-founding the Sandra Day O'Connor Prize for Excellence

in Constitutional Law at the Arizona State University College of Law.

Judge Silverman's academic credentials are equally impressive. He graduated

summa cum laude from the Arizona State University College of Law in 1976, and

was subsequently honored by his alma mater twice: once in 1994, when the College

of Law presented him with its "Outstanding Alumnus Award," and again in 199'i.

when he received the prestipous "Dean's Award."

In short, I believe Judge Silverman meets the high standards required of our federal judges. Indeed, his legal knowledge and judicial temperament show him to be

an exemplary nominee.

I urge a swift and resounding vote in Judge Silverman's favor, so that he may

be considered by the fiill Senate as soon as possible.

STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM

THE STATE OF GEORGIA

Senator CLELAND. Thank you very much, Mr. Chairman, members of the committee. I would just like to say I am pleased to appear before you today to introduce Richard Wayne Story, the President's nominee to fill the vacancy on the U.S. District Court for the

Northern District of Georgia.

As a country boy from a small town in Georgia, I feel particularly

pleased to introduce Judge Story because he is also from a small

town, having been raised in Harlem, GA. Indeed, as much as my

small-town upbringing has been so much a part of my life, being

a small-town guy has meant a lot to Rick and has shaped hina into

the determined, principled man that he is today.

Mr. Chairman, I can confidently say that, as you review his

qualifications, I am sure that you will come to agree, as I have,

that he is a very qualified trial judge and attorney who will make

an excellent district court judge.
1361

' This nominee comes to us having been a trial judge in the GeorI gia superior courts for almost 11 years. It has been said that Judge

Story has a special way of handling his courtroom such that p)eople

get a different, unique feeling after having appeared in front of

him. Now, this special feeling has nothing to do with the substantive outcome of the case; rather, it has everything to do with

how Judge Story handles people. Whether or not the person has

been successful, time and again they report feeling that they have

been treated with courtesy, respect, with fairness, and a good dose

of common sense.

Judge Story believes that litigants feel good about being in his

courtroom because of his ways that he learned growing up in Harlem, GA. Harlem is indeed a small country town. For those of you

unfamiliar with these types of town, you can kind of think of

Mayberry, R.F.D., the classic setting of "The Andy Griffith Show."

Rick likes to say that he grew up in Mayberry. From this smalltown community and from his parents. Rick learned the value of

hard work. His father. Buck Story, a native of Columbia County,

was living in Augusta, GA, when he met and married Earline

Helmey, a native of Richmond County. They settled in Harlem to

raise a family. Buck ran his own service station while Earline was

a florist, and together they raised their three children, Bob, Rick,

and Angela. Rick worked in his father's gas station while growing

up, and working in a gas station, he constantly interacted with the

people of Harlem and the surrounding small towns.

He attended LaGrange College in LaGrange, GA, from 1971 to

1975, gaining a bachelor of arts degree in 1975. At LaGrange, he

was named the outstanding male freshman and was an officer in

the Student Government Association. Additionally, Rick was the

president of both his fraternity, Delta Tau Delta, and the college's

Inter-Fraternity Council. Though he was active. Rick still maintained a stellar academic record, making the dean's list and Who's

Who for College Students.

Our nominee moved directly to the University of Georgia Law

School, earning his J.D. in 1978. While in law school, he remained

active as a member of the Student Bar Association and the International Moot Court Team, while also working throughout his second and third years.

Our nominee has had an exceptional professional career, most of

all, that could be considered good training to be a trial judge. Two

years into his private practice, private litigation practice in 1980,

Rick was appointed a special assistant attorney general representing the State of Georgia in child support and custody cases. He

moved on to become a Hall County juvenile court judge in 1985 and

^vas appointed a judge of the Superior Court for the Northeastern

Judicial Circuit of Georgia in 1986. He has been the chief judge for

the northeastern circuit since May 1993 and has been a ninth district administrative judge since 1996. In addition. Judge Story completed the general jurisdiction school of the National Judicial College in 1987.

Judge Story is extremely active in the legal community and his

community as a whole. His affiliations and activities are too numerous to list, but as a small-town boy, I would just like to note
1362

that he has chaired and co-chaired more councils and commissions

than you could shake a stick at, as we say in my State.

Indeed, he has given of his time to many activities within the

legal community at all levels, the Methodist Church, and the

Gainesville-Hall County area. More importantly, our nominee is a

Sunday school teacher who always manages to find time for his

lovely wife, Nancy, and their three children: Laura, who is 17; Eli2-

abeth, 13, and Will, 7.

Mr. Chairman and colleagues, I would like to wrap up and say

that I am confident that you could search the end of the earth ajad

the end of this country, and you would not find a man more devoted to the ideals of family and community or more dedicated to

the professional pursuit of human decency and justice than Judge

Rick Story.

I am very proud to know him and call him a friend. I am genuinely elated at the opportunity as part of my job to recommend this

good old country boy for this judgeship. I know of no finer candidate for this bench than the President's nominee, Richard Wayne

Story.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Well, thank you. Senator. I tell you. Judge, I

have heard a lot of these introductions of judges. I do not know

that I have ever heard a better one than that. He is a great colleague of ours, and we appreciate you, and that is high praise, indeed. So we are honored that you would come. Senator Cleland.

I think I will turn to Senator Feinstein to introduce her judge at

this time. Are there any other Senators here or Members of Congress who want to testify? OK. We will go to Senator Feinstein.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you, Mr. Chairman. I am happy to introduce to you Judge Moreno and his family. He is accompanied by

his wife Chris, his daughter Keiko, and his son Nicholas. They are

sitting right in the first row on your left.

Judge Moreno obtained his B.A. from Yale in 1970 and his J.D.

from Stanford in 1975. He served on the Yale Alumni Board of

Governors for 3 years, from 1991 to 1994, the Stanford Law School

Board of Visitors, and he was honored as outstanding alumnus of

the Chicano Alumni of Yale in 1991. He began his legal career in

the city attorney's office in Los Angeles. He worked there from

1975 to 1979, prosecuting jury trials, misdemeanor prosecutions,

and criminal and civil consumer protection cases.

From 1979 to 1986, he worked as a litigation attorney for the law

firm of Kelley, Dryer & Warren. He handled commercial litigation

in State and Federal courts. His caseload included bankruptcy,

wrongful termination, banking, real estate, and antitrust litigation.

In 1986, he was appointed by then-California Governor George

Deukmejian to be a municipal court judge, where he served for 7

years. As a municipEd court judge, Carlos Moreno handled 40 civil

jury trials in addition to a regular criminal trial workload.

In 1993, Governor Wilson elevated Carlos Moreno to the California Superior Court, where he has served for the past 4 years. He

has averaged approximately two dozen jury trials a year, at least
1363

a third of which have been homicides. The remainder have consisted of a broad range of felonies. At the same time, Judge Moreno

•^ has presided over a dozen bench trials per year.

- This year, he was elected the Superior Court Judge of the Year

"^ by the criminal law section of the Los Angeles County Bar Associa-

• tion. Upon receiving this award. Judge Moreno was described as

' someone who "earns praise from both prosecutors and defense att^omeys for his fair, even-tempered handling of a high volume calendar of criminal cases. The large number of court trials he han-

; dies in which both sides waive jury and try the case before him is

; an indicator of the trust that counsel places in him."

Governor Deukmejisin wrote in a letter sent to you Ijist month,

Mr. Chairman, that I ask be made part of the record

The CHAIRMAN. Without objection.

[The letter follows:]

GEORGE DEUKMEJIAN,

Los Angeles, CA, October 6, 1997.

Hon. ORRIN HATCH,

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

Re: Judge Carlos R. Moreno

DEAR SENATOR HATCH: It has come to my attention that Judge Carlos Moreno has

been nominated for an appointment to the U.S. District Court, Central District of

California.

In 1986, it was my pleasure to appoint him to the Compton Municipal Court and

in 1993 he was appointed by Governor Pete Wilson to the Los Angeles Superior

Court.

It is my understanding that he has performed in an exemplary manner as a Municipal and Superior Court Judge and has a clear perception of the importance of

maintaining a judicial system that insures fairness and social order.

Judge Moreno is well suited for this position. I am confident that he has the appropriate judicial skills and in light of his qualifications, I hope you will give him

every consideration for appointment to the U.S. District Court.

Most cordially,

GEORGE DEUKMEJIAN,

35th Governor ofCalifornia.

Senator FEINSTEIN. Governor Deukmejian wrote:

It is my understanding that Judge Moreno has performed in an exemplary manner as a Municipal and Superior Court Judge and has a clear perception of the importance of maintaining a judicial system that ensures fairness and social order.

Judge Moreno is well suited for this position. I am confident that he has the appropriate judicial skills, and in light of his qualifications, I hope you will give him every

consideration for appointment to the U.S. District Court.

It is a great pleasure for me, Mr. Chairman, to have recommended him to the President, and I might say that he was the

No. 1 person proposed by the screening panel of attorneys and others who work on these nominations for me, and he was the No. 1

choice of the California Narcotics Officers Association.

The CHAIRMAN. Well, thank you, Senator. I think we had two

very good statements by Senators for their respective nominees,

and I think, Judge Moreno, that is very high praise indeed. I happen to have a high regard for both of these Senators, and Senator

Feinstein in particular serves very well on this committee. So I

think it is wonderful that she could be here today with you when

so many Senators are out of town. We are happy to have you here.

Are there any other Members of Congress to testify? If not, then

if the four of you will come to the dais, I think I will have all four
1364

of you come up at once. If you will just stand and take the oath,

I think we can get you all sworn at once.

Do you swear the testimony you shall give in this hearing shall

be the truth, the whole truth, and nothing but the truth, so help

you God?

Judge SiLVERMAN. I do.

Judge MORENO. I do.

Judge STORY. I do.

Judge MILLER. I do.

The CHAIRMAN. Thank you very much.

Let's start with you first, Mr. Silverman. What I would like you

to do is introduce your family, friends, anybody else you would care

to introduce. We are honored to have members of the family here,

and then if you would care to make emy statement, we would love

to have that at this time as well.

TESTIMONY OF BARRY G. SILVERMAN, OF ARIZONA, TO BE UA

CIRCUIT JUDGE FOR THE NINTH CIRCUIT

Judge SILVERMAN. Good afternoon, Mr. Chairman, Senator Feinstein. My name is Barry Silverman. I am presently a magistrate

judge in the U.S. District Court in Arizona. I regret that my family

isn't able to be with me today here in person, but my wife Georgia

and my parents, Rita and Sol Silverman, from Phoenix, are with

me here in spirit. I am very grateful to be here today.

The CHAIRMAN. Glad to have you here.

We will go to you. Judge Moreno.

TESTIMONY OF CARLOS R. MORENO, OF CALIFORNIA, TO BE

U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CAUFORNIA

Judge MORENO. Mr. Chairman, my wife Christine, my daughter

Keiko, and my son Nicholas. It is a pleasure for all of us to be nere.

The CHAIRMAN. We are glad to have you all here. What a nice

family. We are pleased to have you here.

Judge Story.

TESTIMONY OF RICHARD W. STORY, OF GEORGIA, TO BE VJS.

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA

Judge STORY. Thank you. Senator. It is a pleasure for me to be

here and thank you for the opportunity for this hearing. I guess following the theme of Senator Cleland, we brought a lot of folks from

the country, I guess, a chance to come to Washington. We have a

number of folks here, and I have my wife Nancy, my daughters

Laura and Elizabeth, and my son Will.

The CHAIRMAN. Great.

Judge STORY. Also, my father. Buck Story, and my sister, Angela

Brown, and brother. Bob Story, her children, Justin and Victoria.

It just keeps going. My secretary, Joyce Carruth; my law clerk,

Wylencia Hood Monroe; and some friends from Richmond, who had

moved to Richmond and were able to drive up today: Judy Powell,

as well as her daughters, Susannah and Lydia.

Thank you.

The CHAIRMAN. We better treat you pretty well with all these

people. [Laughter.]
1365

What a nice family. It is wonderful to have all of you here. We

welcome you.

Judge Miller.

TESTIMONY OF CHRISTINE O.C. MILLER, OF THE DISTRICT OF

COLUMBIA, TO BE A JUDGE OF THE U.S. COURT OF FEDERAL

CLAIMS

Judge MILLER. It is a pleasure to be here and an honor, indeed,

Mr. Chairman. Regrettably, my husband Dennis is in Bangkok,

and I really miss him today.

The CHAIRMAN. We understand.

Judge MILLER. But I am here with my loyal staff and friends, my

former law partner and some clerks.

Thank you.

The CHAIRMAN. Thank you.

QUESTIONING BY CHAIRMAN HATCH

The CHAIRMAN. Does anyone care to make any additional statement? All right. Then I think what we will do is ask some questions, and we will go from there. We will just come across, and each

of you can answer these questions.

Are you committed to following Supreme Court precedent and

the rulings of the Federal Circuit Court of Appeals for your district

faithfully and giving them full force and effect even if you personally disagree with such precedents or rulings?

Judge MORENO. Yes, and I don't think the personal predilections

of a judge should have any bearing on how they apply and interpret the law, and I would faithfully do so.

The CHAIRMAN. OK

Judge SiLVERMAN. Yes.

Judge MILLER. Yes.

Judge STORY. Yes, I would.

The CHAIRMAN. All right. What would you do if you believed the

Supreme Court or the court of appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision or

your own best judgment of the merits? You could take, for example,

the Supreme Court's recent decision in the Adarand case involving

affirmative action since that seems to be on everybody's mind.

Judge MORENO. I think I would be obligated to follow the controlling law in my circuit, unless there was some intervening U.S. Supreme Court case that shed some further light on that issue. But,

otherwise, I believe I would be bound by stare decisis in the Ninth

Circuit in my case.

The CHAIRMAN. OK.

Judge SiLVERMAN. I am clearly bound by the Supreme Court decisions and would follow them, of course.

The CHAIRMAN. All right.

Judge MILLER. We don't have actions like Adarand in our court,

but I would always follow Supreme Court precedent.

The CHAIRMAN. Whatever does apply to your court.

Judge MILLER. Yes.

Judge STORY. And I also would follow those precedents and not

attempt to substitute my view for that of the appellate courts.

45-964 98-44
1366

The CHAIRMAN. Under what circumstances do you believe it

would be appropriate to declare an act of Congress unconstitutional? Maybe I will shift this around. Let's start with you. Judge

Story.

Judge STORY. It was going well there. [Laughter.]

The CHAIRMAN. YOU like being last? All you have to say is me,

too.

Judge STORY. I believe, obviously, it would require reviewing the

legislation and reviewing it in light of the Constitution. You would

have to look at the document, look at the specific language of the

Constitution, and consider that along with any Supreme Court pronouncements interpreting the Constitution that may be applicable

to make that decision. It would be something that you would have

to weigh very heavily because there would be a presumption of validity for any legislation that may have been passed by the Congress, and so you would have to look at it from that perspective.

The CHAIRMAN. OK. Judge Miller.

Judge MILLER. In the cases that have come before me involving

challenges to statutes on constitutional grounds, the first thing Td

do is try to determine if I can decide the case on another basis. If

that cannot be the case, then I proceed to examine the statute, giving due regard to its presumption of validity and consulting Supreme Court precedents.

The CHAIRMAN. OK. Judge Silverman.

Judge SILVERMAN. I likewise would indulge the presumption of

constitutionality whenever possible. Then I would look to wnatever

Supreme Court precedent there may be. If there's no binding Supreme Court precedent, I would try to find analogous precedent. I

would look to the legislative history, even though that is not definitive or the be-all and end-all, but it may be of some help in resolving it.

The CHAIRMAN. OK. Judge Moreno.

Judge MORENO. I would simply incorporate the remarks of the

other nominees. I would add, however, that I would grant appropriate deference to the legislative branch, and any ruling that I did

ultimately make I think would have to be very narrowly tailored

and decide the issue as narrowly as I possibly could. I think this

type of situation calls for very incremental movement.

The CHAIRMAN. OK. Now, you have stated that as a circuit or

district court judge, respectively, or as a judge on the Court of Federal Claims, that you would be bound by Supreme Court precedent

and the rulings of the Federed circuit court of appeals for your district. There may be times, of course, when you are faced with cases

of first impression.

Now, what principles will guide you and what methods will you

employ in deciding cases of first impression? Let's start with you,

Judge Silverman.

Judge SILVERMAN. Well, again, first, the presumption of constitutionality. Then when it comes time to try to interpret, to try to go

from there, we would look first to the intent of the Framers of the

Constitution. If there are not binding cases on point, I would look

to see if there are analogous cases that may be of some help. And

then when all is said and done, as I would look back on a proposed

decision that I would make, I would ask myself if it makes conunon
1367

sense and is it fair. But the starting point is the presumption of

constitutionality and the intent of the Framers as the point of departure in an analysis of constitutionality.

The CHAIRMAN. Judge Moreno.

Judge MORENO. I think I would do the same thing. I'd also look

for analogous statutes that might shed some light on a particular

statute in question.

The CHAIRMAN. Judge Miller.

Judge MILLER. Well, almost every base has been covered, but

there is one more. Even though the/re just persuasive, they're

often helpful. If there were no other source, I would also look at

the work of my colleagues to see if the same factual situation had

arisen and the same law had been applied and see if the approach

offered was a reasonable one.

The CHAIRMAN. Judge Story.

Judge STORY. I would adopt the same approach as stated by the

other nominees.

The CHAIRMAN. Let me direct some questions to you, Judge Silverman. Please state in detail your best independent legal judgment, irrespective of existing judicial precedent, on the lawfulness

under the equal protection clause of the 14th amendment and Federal civil rights laws of the use of race-, gender-, or national originbased preferences in such areas as emplojrment decisions as hiring,

promotion, or layoffs, college admissions and scholarship awards,

, and the awarding of government contracts.

Judge SiLVERMAN. In my opinion, race-based classifications are

', inherently suspect. They are subject to the strictest scrutiny, and

[ I agree with Adarand that even when they are—when they pass

constitutional muster, they must be carefully, narrowly tailored to

redress the compelling interest at issue.

The CHAIRMAN. What would it take to pass constitutional muster?

Judge SiLVERMAN. Careful tailoring is the first thing that comes

to mind; compelling interest is another. Off the top, I cannot—I

can't think of a circumstance right now that I could cite to you as

one that would pass muster.

The CHAIRMAN. So it's extremely rare for things to pass muster?

Judge SiLVERMAN. Yes; it's not impossible, but it's very rare.

The CHAIRMAN. Judge Miller, under the takings clause of the

fifth amendment, private property may not be taken by the government for public use without the payment of just compensation to

the owner. Could you give us in detail your best independent legal

judgment, irrespective of existing judicial precedent, on whether a

property owner is entitled to just compensation under the takings

clause when the government—I can't help but ask this—through a

national monument or wetlands designation or through other landuse or environmental regulations prohibits or substantially limits

an owner's otherwise lawful use or development of his or her private property, or the otherwise lawful development or use of public

land by the individual or company pursuant to government contract or permit?

Judge MILLER. My own view, apart from Supreme Court precedents, is that a land owner's use of his property is paramount and

one of the sacred rights that is guaranteed under the Constitution.
1368

A keystone of this court's jurisdiction is our being able to awanl i

compensation for uncompensated takings of property.

At present, there is a permitting process, and if the permit is denied or its issuance is unreasonably delayed, that is a basis for redress by monetary compensation in our court, and it's a jurisdiction

that we treat most gravely.

The CHAIRMAN. Thank you. My time is up.

Senator Feinstein.

QUESTIONING BY SENATOR FEINSTEIN

Senator FEINSTEIN. Thank you, Mr. Chairman.

In the last Congress, the number of Federsd death penalty acts

were increased from about a half a dozen to more than 50. I would

like to ask each one of you how you would handle death i>enalty i

cases and what your view on the death penalty is. Mr. Story, do

you want to begin? I

Judge STORY. I would handle them very seriously. As a trial

judge in a State which has a death penalty, I have had six cases '

that involved the death penalty in my court. Two of those actually

went to trial, and in one case the death penalty was imposed. So

it is a very serious matter. I would handle it with utmost care and

would follow the law, as I have done in the cases before me as a

superior court judge and would continue to follow and would have

no difficulty in following the law.

Senator FEINSTEIN. And do you believe the Constitution permits

the imposition of a death penalty sentence?

Judge STORY. Yes; I do.

Senator FEINSTEIN. MS. Miller.

Judge MILLER. Our court does not have criminal jurisdictioa

However, as an officer of the United States, I would apply the laws ;

of the Congress, and the death penalty has been declared constitutional, and that comports with my own belief.

Judge SiLVERMAN. I agree. The Supreme Court has ruled that it's

constitutional. I agree that it is constitutional, and I would affirm

death penalty cases in the appropriate case.

Judge MORENO. I have no reservation about being able to apply

the death penalty in an appropriate case. I believe it is constitutional.

Senator FEINSTEIN. I notice that many of you are judges, and one

of the things that I have found in talking with some of the people

that have gone from either a superior bench or another bench to

the Federal district court is that very often the docket they encounter is very heavy. I would Uke to ask this question: How would you

handle your docket?

Judge Moreno.

Judge MORENO. Well, I think it is very important, first of all, to ,

know your docket, to be able to sort out the cases that you think

can be expedited, to give those cases special attention, to seek early

disposition, that is, early settlements. It's also important that

courts set firm trial dates. In my experience doing both criminal

and jury trials and civil jury trials for the last 11 years, there is

nothing—no greater incentive for a settlement than an open trial

court. So I think offering the parties, if a matter does not settle,

a firm trial date is one way to expedite cases.
1369

Senator FEINSTEIN. Judge Silverman.

Judge SILVERMAN. Well, I'm from Maricopa County, AZ, the

home of civil delay reduction, and I can tell you what we've done,

and I think it's been successful. The key is, first, early case management by the judge, which includes, as Judge Moreno says, setting deadlines, setting next events in the case, and sticking to it;

firm trial dates and holding counsel to the trial dates and not

granting continuances unless there's really genuine, genuine good

cause.

Second, implementation as soon as possible of alternative dispute

resolution mechanisms; either settlement conferences or diverting

cases out for arbitration or mediation has also been helpful.

And, finally, when push comes to shove and the case gets tried,

the judge has a duty to decide the case promptly and move on to

the next one.

Senator FEINSTEIN. Judge Miller.

Judge MILLER. For 15 years, I managed a civil trial docket, and

we don't have juries, so we do all the managing. And I think case

management was certainly the seam of the 1980's and has been

part of the 1990's, but it's a two-pronged approach, both the willingness of the judge to work with the litigants to fashion the best

way to handle their case speedily and economically, and that includes alternative dispute resolution, if appropriate, but also the

corresponding obligation of the judge to make sure that the judge

renders decisions promptly and in a manner that's clear and fully

informs the parties of their rights so they can determine what the

next step should be.

Senator FEINSTEIN. Thank you.

Judge Story.

Judge STORY. I'm on a very active triad court that handles all

types of cases, both civil and criminal. It is the general jurisdiction

court in our State, and I would agree with all of the things that

have been stated.

I might add that in terms of making decisions, I think it's important for judges to make decisions early in the process as well, when

discovery disputes arise to help the litigants get those matters resolved so that they can move on with their litigation.

ADR has been particularly helpful in our circuit. We established

one of the first ADR programs in the State, beginning in domestic

relations cases, and it has expeinded. We even do mediation in

criminal cases, and it's been very successful in resolving some of

those cases.

So there are a number of things that we do in the State court

that I think translate over very well.

Senator FEINSTEIN. Thank you very much.

Thanks, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Feinstein.

Senator Grassley.

QUESTIONING BY SENATOR GRASSLEY

Senator GRASSLEY. Congratulations to all of you. I wasn't here

when you were sworn in and when you gave your opening statement, but congratulations, anyway. I just have a few questions.
1370

Judge Moreno, what is your experience or what has it been with

CaHfomia's "three strike" law? Have you ever dealt with it in any

of your cases? What are your fellow judges saying about it? Are

there any problems with it?

Judge MORENO. Yes; I have been dealing with it. Four months

after being appointed to the superior court in March 1994 is when

"three strikes" was enacted, first by the legislature, by the way,

and then that November by the people by way of initiative.

There were dire predictions that we were going to be inundated

in cases. I was part of a superior court committee that devised fasttrack rules for the handling of these cases. I'm happy to report that

the backlog that we initially experienced is there no longer. We

treat "three strike" cases—they do go to trial a little bit more often.

But they haven't posed the problem that most people thought they

would initially.

I have handled—I'd say 30 percent of my cases are "third-strike"

cases. Some of them are serious felonies, and some of them are—

the instant case is not a serious felony, but they're all deserving

of great consideration.

Senator GRASSLEY. So you have really had a lot of experience

with it. What about some other people that are on the bench with

you and deal with it? Do they seem to express problems with it,

if you can speak for other people?

Judge MORENO. I don't know if I can speak for others, but as I

said, I think most of us on the California Superior Court are handling the problem quite well. We were given discretion last year,

1996, judges were given further discretion to have some input into

the ultimate sentence, but I don't think that it's the problem that

it was initially thought it was going to be.

Senator GRASSLEY. I am going to ask all of you—^well, let me

ask—I think except for Judge Miller. I don't know whether you

would be involved with this issue or not, but for the others of you

that will be on the district court or courts of appeal—by the way,

first of all, let me tell you I have got very much an interest in the

judicial process and prosecuting process that is called qui tam. It

is when an individual can go into court when the U.S. attorneys

don't or where the U.S. attorneys use some of their information,

qui tam. And I was involved with that legislation, so I kind of—

and I probably wouldn't ask this except just last week, after about

three courts of appeals and I think several district courts had always upheld the constitutionality of it, there was a district court

judge in Texas that ruled that these statutes were unconstitutional.

Do any of you have views as to the constitutionality or unconstitutionality of the statute?

Judge MORENO. I have no particular views, one way or the other.

I am just vaguely familiar with the notion of the

Senator GRASSLEY. IS there anything about the process that you

find obnoxious?

Judge MORENO. NO; not at all.

Senator GRASSLEY. Judge Silverman.

Judge SILVERMAN. NO.

Senator GRASSLEY. Judge Story.

Judge STORY. NO, sir.
1371

Senator GRASSLEY. OK. And I think I am right. You will not be

dealing

Judge MILLER. We do have the suits insofar as sometimes the individual involved

Senator GRASSLEY. Oh, you will—^well, give me your opinion,

then.

Judge MILLER. My opinion is the law does not pose constitutional

difficulty.

Senator GRASSLEY. OK Well, thank you.

We will move onto another question. I would like to have Judge

Silvermjin and Judge Moreno think about this. I think you have

both agreed in your discussion with Senator Hatch that laws

passed by Congress must be given deference in the presumption

that they are valid Eind constitutional. What about citizen initiatives?

We have this situation. I suppose you could cite several from

California and the ninth circuit, but the one that in Jones v. Bates

-where the three-judge panel has set up a dual standard as a result

of that case, should citizen initiatives be given a presumption that

they are constitutional?

Judge MORENO. Go ahead.

Judge SiLVERMAN. Yes. Yes; of course.

We in Arizona have an initiative, a referendum procedure. They

are presumptively constitutional. They are the grassroots will of

the electorate, and the electorate ought to be presumed to have

known what it has done, and are entitled to great deference just

as any other law would be.

Senator GRASSLEY. Judge Moreno.

Judge MORENO. I am in favor of initiatives. I have—I believe

they are also entitled to the same presumption of constitutional validity and in deference by any reviewing court.

I am proud of the fact that California has the initiative process.

Sometimes the people simply have to speak when the legislature is

not able to.

Senator GRASSLEY. Could I ask each of you, then, if you disagree

Avith the decision in the Jones case?

Judge MORENO. I have read a s3Tiopsis of it. The only part that

concerns me is a reference to the electorate being the electorate,

being ignorant, and the court somehow substituting its will of what

an overwhelming amount of voters decided should be the law.

Senator GRASSLEY. Judge Silverman?

Judge SILVERMAN. I disagree with the decision and agree with

the dissent.

Senator GRASSLEY. Judge Silverman, many people believe that

the ninth circuit is just too big and unwieldy to function effectively.

Do you believe that courts can get too big, and, specifically, do you

believe that the ninth circuit is too big or at least should not get

any bigger?

Judge SILVERMAN. Well, there are pros and cons to dividing the

circuit up. I do not think it would be advantageous to have the circuit get any bigger. There are economies of scale. In some respects,

having large circuits, there is less administration and that sort of

thing. We have less divisions amongst circuits, the fewer circuits

there are, but, by the same token, sometimes the circuit can get so
1372

big that it gets out of touch with the districts that comprise it. So

there is something to be said for both sides of that. I am not really

sure how I would resolve it.

Senator GRASSLEY. OK. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

I have a lot of other questions, but I am satisfied, listening to the

four of you, that you are excellent nominees.

As you know, I am death on judicial activism. Five years ago

Senator GRASSLEY. Oh.

The CHAIRMAN. You did not know that?

Senator FEINSTEIN. No kidding.

The CHAIRMAN. DO not tell me none of you knew that.

But, you know, 5 years ago, people did not really understand

what that was. I think everybody understands today. It is important.

Let me just make this case. As people can esisily see around here,

if they really know what is going on, I have worked very hard to

fill these judgeships. The Ninth Circuit Court of Appeals, in particular, has been very, very difficult to fill, and one of the reasons

is—and you are going on that. Judge Moreno—one of the reeisons

it is so difficult is because of the activism of that court, and these

judges think that they are standing up for liberal principles when,

in tact, they are undermining the juaiciary across the board, and

even members of the judiciary from the left to the right are very

critical of what they are doing.

If you go on that court and you become one of those, you are

doing the judiciary a great deal of harm. It is very difiicult knowing

that that court is the most reversed circuit court in the country. It

is very difficult to get the nominees through the committee, and it

is a tribute to you that you are going to go through the committee

and hopefully onto the court as quickly as possible.

Now, just so everybody knows, I intend to have Margaret

McKeown—I want my colleagues to know this—who will also come

up for the Ninth Circuit Court of Appeals and Susan Mollway from

Hawaii on the next hearing. She is for the district court, but Margaret McKeown will be for the ninth circuit, but I am counting on

you when you get there to just be a great judge.

I do not really care if you are liberal or conservative. Naturally,

I think I would prefer you to be conservative, but the fact is, it is

not that important if you observe the rule of judging. Judges are

not—they are the closest thing to God in this world, but the fact

of the matter is, they are—^you are nominated and confirmed for

life for these positions, to interpret the laws, not make them.

Now, sure, you have cases of first impression where you have got

to decide what the law really is. Sure, you have to split the baby

sometimes, so to speak, to decide any particular—some of these

particular cases, but I think you know what I am talking about

when I talk about judicial activism, and I do not mean to lecture

you, but I am telling you that it is a big problem to us on the Judiciary Committee and it should be because some of the judges in

this country really are activists who just substitute their own policy preferences for what the clear law is, and that is not right.

You said today that if the death penalty came before you, you

would have no problems at all with sustaining it because that is
1373

the law of the land. There are three judges in the Ninth Circuit

Court of Appeals who have never voted in their whole tenure on

that bench to sustain a death penalty.

Now, I have to admit, I do not like the death penalty personally,

but it is the law, and I believe it is something that needs to be the

law because I do believe that it is a deterrent, if only for those who

have committed murder so they do not do it again in prison or elsewhere. And we have plenty of illustrations to show that they do.

So it is very important for you to set examples as members of

the Federal judiciary. I love the Federal judiciary. I fight for you.

I fought for the pay increase. I wanted it separated for more pay.

I got that through the Senate, could not hold it in conference. I

thmk the judiciary is the reason this country is great. I think it

is the reason the Constitution is observed in this country, but if

judges start doing whatever they want to rather than observing

what the law is and following it the way it is, then it will not take

long until the judicial system will undermine this very country that

you now are sustaining.

So this is very important. I think all four of you are excellent

nominees. I commend the President for sending you here, and we

are going to do everything we can to get you through.

I believe they will be on tomorrow's markup. We are going to put

you on the markup tomorrow. Now, whether we can get you

through in this timeframe or not, we only have tomorrow, I think.

It will be probably the last day. I am not sure, but do not worry.

It will carry over, and we will do the best we can.

I also do not think it is fair to have you standing in limbo when

you have to—and each of your cases, it is not so bad because you

are already either a magistrate or judges, but where a person is

practicing law and has to wind down that practice, it is a big problem, and I would like to have more cooperation in resolving some

of these very serious problems.

I, for one, do believe that the President, whoever the President

may be, is the President, and that President has a constitutional

right to make these nominations. We have a constitutional obligation that unless there are really significant reasons for rejecting a

judicijd nominee, to confirm, not with a blank check, but to confirm

those that the President has nominated.

So understand that you can help others by your actions when

you get there. It is really important. In fact, I get it mixed up. It

is you, Mr. Silverman, that is going on the ninth circuit, but that

you are going to be within the ninth circuit.

Judge SILVERMAN. I thought you knew something I did not know.

The CHAIRMAN. You would not want to be on there with the type

ofjudges they have there right now. We are counting on

Senator Feinstein. Oh, oh.

The CHAIRMAN. I am just kidding. I thought I would just throw

a little here—^we are kind of counting on you. Judge Silverman, to

make a difference.

Judge SILVERMAN. Mr. Chairman, I commit to you that I will do

that.

The CHAIRMAN. Well, I commit to you that I will be watching.
1374

Senator FEINSTEIN. Mr. Chairman, I think Judge Silverman

i)robably wins an award for the quickest processed nominee, at

east since I have been on this committee.

The CHAIRMAN. YOU know, when you put up the nominees,

we

Senator FEINSTEIN. I have been trying to figure out what your

magic is.

Judge SILVERMAN. Well, I am a magician.

The CHAIRMAN. Do not tell us that.

Let me just say this, that when we get good nominees, we try

to put them through. Now, I have to admit, I wish we could do better. The committee is not totally without some fault, too, but we

have worked hard, and we have tried to move nominations as

quickly as we can.

We have 35 confirmed judges this year, 8 are pending, 4 today.

That would be 12 more. If we can, that would be 47 total possible

judges. That is far better than our colleagues on the other side did

during a number of years during the Bush and Reagan administrations, when there were actually more vacancies.

By the way, we have about 40 vacancies that have not gotten any

nominees, and as hard as I try, I have never quite been able to get

nominees confirmed who are not nominated. So, you know, I get a

little tired of all the screaming and shouting, but the point I am

making is each of you can make a difference for people who follow

you here before the committee by being good judges and observing

the Constitution and doing what really is expected of you, and if

you will do that, you will help the Federal judiciary immensely, regardless of who the chairman is or who is in charge of this committee. I think you will find that all of us will work harder to make

sure that these positions are filled, and we will do our very best

for you.

I will do my very best to get you through before the end of this

session, which means probably tomorrow, but that means that we

will put you on the markup for tomorrow, and, hopefully, all four

of you will pass that, but, if something happens that you do not get

through this session, we will do our very best to get you through

as soon as we come back after the 20th ofJanuary.

Judge SILVERMAN. Thank you very much.

The CHAIRMAN. I want to thank each of you. I want to thank

your families for being with you, and your friends. I think it is a

real tribute to all of you to have all of these folks with you, and

we wish you the very best, and I hope you will not forget us on the

Judiciary Committee.

We believe once you get there, you can observe things that this

committee needs to do, and we would love to receive corresprandence. I know there is a fine line, but we would love to receive correspondence from you. We would love to have your suggestions. We

would love to be able to do a better job here.

And believe it or not, with all of the wide diversity of beliefs on

this committee, we do get a lot done, and I think you find that

there are many times when we get together as Democrats and Republicans and do what is right for this country, as well as some of

the fiascos that occasionally occur as well.
1375

We want to thank each of you for being here, and with that, we

•will recess until further notice.

[Whereupon, at 2:56 p.m., the committee was adjourned.]

[Submissions for the record follows:]
1376

SUBMISSIONS FOR THE RECORD

SgMATB JUDICIAKY COHmTm OUSSTIONHMRg FOR JODICIAI. MOMIKgBS

X. BIOOKAFHICXI. ZNTOKMATION (PUBLIC)

1. mli* niB" (Includ* any fomar naaas uaad.)

Bajrry G. Silveman

2. Addr«8B! Liat oiirranC plaea of raaldence and office

addraes(as).

Place of rasidence

Phoenix, AZ

Offica iddrass

U.S. Courthouse

230 N. I3t Ave., Rm. soil

Phoenix, AZ 85025

602-514-7022

3. Data and placa of birth:

October 11, 1951, New York, NY

4. Marital Statue (Includa naldan nama of wlfa, or huoband'a

name). List apoTiae'a occupation, oaployar'a name and

buaiaaaa addraca(aa).

Married to George-Aan Silvernan (naiden name: Middletoa):

self-employed court reporter, works from home

5. Education; Iiiat each college and law achool you have

attended. Including dataa of attendance, degree* received,

and dates degrees were granted.

Phoenix College, summer, 1969 (itmediatelir after high

school gradiiaeioa in June, 1969, X aCeended Phoenix

Collage in the sunnner to earn credits for transfer CO

Arizona State CThiversity in fall, 19691

Arizona State University, August, 1969-

January, 1973. Degree: B.A. summa cum laude

Arizona State University College of Law,

August, 1973-Hay, 1976. Degree: J.D.

6. *^lTYa*°t Record! List (by year) all bualneaa or

profassional corporatlona, co^panlea, fixaiB, or other
1877

•nt«zpris««, p«rtaceahip«, ln«tlttttlaoaa and organisKtlena,

nonprofit or otharwlsa, lacltidlng flxaa, witb which you war*

coxmcctad •• aa offioar. director, partaar, propriator, or

aaployaa alnca gradiuttlon frOB collaga.

Aftar collaaa graduation and dujrina lav school (Jan.. 1973-

1973: KXIV Radio (no longer in existence), Phoenix, AZ.

Part-time jab telling advertising and as board opemtor

1974: Jones, Hunter & Lerch (firm no longer in exietence),

Phoenix, AZ. L»v clerk

1975-76: Streich, Lang, WeekM Cardan t French, (now Streieh

Lang) 2 N. Central, Phoenix, AZ 8S004, 602-229-5200) . Law

clerk/svimier associate

1975-76: Treon, Wamicke, Dann 6 Rousb (now Treon Strick

Lucia i Aguire PA) 2700 S. Central Ave., Phoenix, AZ 85004,

602-285-4400. Law clerk

After lav school

10/25/76 - 11/30/77: Phoenix City Prosecutor's Office.

455 N. S=* St, Suite 400, PhoeniX, AZ 85004. 602-262-6461:

Assistant City Prosecutor.

12/1/77 - 12/7/79: Maricopa County Attorney's Office, 301 ft.

Jefferson, Phoenix, AZ 85003, 602-506-3411: Deputy County

Attorney

12/7/79 - 9/4/84: Superior Court of Arizona for Maricopa

County, 201 ». Jefferson, Phoenix, AZ 85003, 602-506-3204:

Superior Court Caanissioner

9/4/84 - 1/25/95: Superior Court of Arizona. 201 W. Jefferson,

Phoenix, AZ 85003, 602-506-3204: Judge of Superior Court

1/25/95 - present: U.S. District Court for the District of

Arizona, 230 N. 1" Ave., Phoenix, AZ 95025, 602-514-7022:

U.S. Magistrate Judge

7 . ' Military Sarvlee: Have you had any military sarviea? If so,

give particulars, including tha dates, branch of service,

rank or rate, serial number and type of discharge received.
1378

JNb

8. """ffrn and fiWllf^lf Ust any acholsrshlpa. fallowahlpa,

honorary dagraaa, and honorary soclaty natabarahlpa chat you

ballcve would b« of intareat to tha Cooaltta*.

^OutBtanding Aiumnus Award,' Arizona Scace University

College of Law Alumni AaaociaClon, 199S

'Judicial Division of the Year,' Superior Court Baployee

RecogniciOB Coranlttee, May, 1994

Family I>aw Conmittee of the Maricopa County Bar

Associaeion Award for ''Bxcmllence as a Jurist,' 1994

'1991 Henry Stevens Award' by the Maricopa County Bar

Association to a sitting or former trial judge 'who

reflects the flijest qrualities of the judiciary'

Highest scorer among all Haricopa County Superior Court

judges in Che 1994 Arizona Judicial Performance Review

survey; highest scorer among all Haricopa County Superior

Court judges in the 1992 Arizona Judicial Evaluacion

Poll; highest or second-to-the-bighese scorer in the

1990. 19BB, and 1986 Arizona Judicial Evaluation Polls.

'1992 First Place Excel Award for an Editorial or Column

(Category: Magazlae-Ad Revenues of $100,000 or Less)'

from the Society of National Association Publicatioaa for

my article, 'A Judge's Mailbox,' that appeared in

Litigation. Fall, 1991, published by the American Bar

Association

Nominated for a 1992 'Maggie Award' given by a magazine

industry group for 'Best Regularly Featured Department,

Section or Column in a Trade Publication' for a series of

columns I wrote for Arizona Attorney in 1991, published

by the State Bar of Arizona

Member, Arizona State Law Journal. 1974-75 .

Bar AaaociatlooB: Llat all bar aasociatioaa, la^al or

judlelal-ralated ooi^ttaaa or eonfarancaa o£ lAich yeu mxe

or have been a aaabar and give the tltlaa and dataa of any

officas wfaloh you have held In auch groupa.

State Bar of Arizona (1976-present)

American Bar Association (1976-present)

Haricopa County Bar Association (1976-present)

Federal Bar Association (1995-present)
1379

Aiaerioan Aasociition of Xtaw Libraries (1989-1994)

Winch Circuit HistoricaJ Society (1996-1997)

Faderal Magistrate Judges Asaociation (199S-pTeBent)

Arizona judges Association (1979- 1995; secretary 1993

94)

Law Society of Arizona State University (1995-present)

10. 9yti«y MBah*""°''^rt' List all orgaxLlsations to which you

belong that ara active In lobbying before public bodies.

Please list all other organisations to nrftieh you belong.

A. No organizations that are active in lobbying

B. Other organizations:

International Brotherhood of Magicians (1986-present)

Society of American Magicians (1992-present)

Psychic Entertainers Association (1989-present) — The PEA

is an organization of magicians with an interest in magic

tric)cs that create an illusion of mind-reading.

B'nai Britb (197S-present)

Ten^le Solel (1996-present)

Temple Beth Israel (1978-1996)

11. Court >'*"<iBfli9n: List all courts in which you have been

admitted to practice, with dates of admission and lapses if

any such meBberships lapsed. Please explain the reason for

any lapse of membership. Give the same information for

administrative bodies which require special admission to

practice.

Arizona Supreme Court, October 23, 1976

U.S. District Court (D.Ariz.), November 1. 1976

U.S. Court of J^peals (9" dr.), November 4, 1976

U.S. Supreme Court, July 14, 1980

12. Published Writings! List the titles, publishers, and dates

, of books, articles, reports, or other published material you

have written or edited. Please supply one copy of all

published material not readily available to the Cosmdttee.

Also, please supply a copy of all speeches by you on issues

involving constitutional law or legal policy. If there were
1380

praaa raports about tbm apaaoh, and tliay ara readily

available to you, plaaaa aupply than.

Copies of the folloving writing* are aupplied ac Tab A of tb*

accompanying supporting docxments:

Author. 'A JUdgre's Mailbox^ * 18 Litigation 43 (Fall,

1991). It was reprinted in lova Lawyer, January, 1993,

and ia The Federal Lawyer, March/April, 1997 and first

appeared in Arizona Attorney "Out of Order" series.

Author, "Out of Order, " a series of eight monthly

humor coluans in Arizona Attorney, Che monthly

magazine of the State Bar of Arizona, April -

December, 1991. Three of the columns ware

reprinted in The Phoenix Gazette (August 31, 1991,

January 14, 1992 and March 3. 1992.)

Author. Boo)c Review. CfiA£i ef a 'Jawieh Amerieaj

Princess." Arizona Attorney, October, 1988.

Principal author, "A System in Crisis: The Report of the

Committee to Study the Criminal Justice System in the

Arizona Superior Court. " Supreme Court of Arizona. July

20. 1993.

Copies of the following speeches and notes of speeches are

supplied at Tab B:

1. Convocation Address, Arizona State University College

of Law. May IS, 1997.

2. "Annual Dinner Pays Witty Tribute to Departing Dean. '

reprint of remarlts published in the Arizona State

University Law Forum. Spring, 1990.

3. notes of speech given to Society of Boutiques (May 7,

1996). Arizona State University Law School Aluaai

Association (January 10, 1996), and Scottsdale BarAssociation (April 9, 1996) .

4. Notes of speech to entering law students at

Orientation. College of Law. Arizona State University.

August IB, 1994.

5. Notes of speech to new members of the Discricc Court

bar, 1996. exact date unknown.

6. Notes of speech at Maricopa County Bar Association

seminar on "Juvenile Dependency Cases in a iVutshell, *

December 3. 1990.
1381

7. Sotea of ramarJcs at the dinner in honor of the

retirement of Cfajris C. TountMS from Superior Court, Hay

11, 1990.

8. notes of speech to Focus Pboenix, June 9, 1987.

I 9. Notes of speech Co Young Lawyers Section of Maricopa

I County Bar Association, Ifay 21, 1987.

(

10. Notes of speech at the Arizona Judicial Conference.

December 9, 1986.

11. Notes of speech to the Scottsdale Bar Association,

January 8, 19BS.

12. Notes of speech on a juvenile law topic, audience

and date unknown.

13. Notes of speech at State Bar of Arizona seminar

called 'Collecting Child Support Judgments Without

Contempt, ' March 27, April 3, April 10, and April 24,

1987.

14. Noces of speech on a domestic relations topic,

audience and date unknown.

15. Notes of speech on a domestic relations topic,

audience and date unknown.

IS. Notes of speech on "observations from the bench' to

a group of summer lav clerks, date unknown.

17. Notes of speech at Maricopa County Bar Association

seminar called 'D.R. Bench on Trial,' estimated date:

1987.

13 . Health; What !• Che present atata of your bealtb? Llat tlia

date of your laat physical examination.

Excellent. May 7, 1997

14. Judicial Office: State (chronologically) any judicial

officaa you have held, vhether such position waa elected or

appointed, and a description of the jurisdiction of each such

court.

Current -iudicial office (since January 21. 199S)

U.S. Magistrate Judge, U.S. District Court for the

District of Arizona. I was appointed by the judges of
1382

the Districe Court in accordance with the scacucory

merit-Bmlaccioa process. The District Court is an Article

III court of limited Jurisdiction.

January 21. 1995-September 4. 1984

Judge, Superior Court of Arizona for Maricopa County.

I was appointed by Gov. Bruce Babbitt in accordance with

the Arizona judicial merit selection process and retained

in office by vote of the people in the 1986, 1990 and

1994 retention elections. The Superior Court is the

court of general jurisdiction in Arizona.

September 4. 1984 - December 10. 1373

Superior Court Coaaissioner/Judge Pro Tem. Superior Court

of Arizona for Haricopa County. I was appointed by thenPresiding Superior Court Judge Robert C. Broomfield in

accordance with a merit-selection process analogous to

the Arizona judicial merit selection procedure. A

Superior Court Commissioner is a judicial officer similar

to a U.S. Magistrate Judge.

IS. Clt«tloii«: If you are or hava been a judge, provide:

(1) citations for tba ten most significant opinions you

have written; (2) a short susanary 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 procediiral rulings; and (3)

citations for significant opinions on federal or state

constitutional issues, together with the citation to

appellate court rulings on such opinions. If any of the

opinions listed were not officially reported, please provide

copies of the opinions.

(1) OPINIONS I HAVE WRITTEN (Copies of the following opinions

are supplied at Tab C.)

1. Avals V. Olaiz. 161 Ariz. 129, 776 P.2d 807 (App.)

review denied (1989) .

2. In the Matter of Ashley (confidential surname; • Maricopa County Superior Court Wo. JD-6113 (1991)

3. Marriage of McGivem. Maricopa County Superior Court

No. DR 92-13343 (1994)

* 4. In the Matter of Babv Girl fnames copf idgntiai).

Maricopa County Superior Court No. JS-8287 (1990)

S. Suvapol V. Loonev. United States District Court for

the District of Arizona No. CIV 97-1489 PMX RCB
1383

(BGS) (1997)

6. Wol£e V. McDouaall. et »1.. Oaited States District

Court for the District of Arizona Wo. CTV 95-2246 PHX PGR

(BGS) (1996)

7. ZiOBB First National BanJc v. Johnson. Onited Statee

District Court for the District of Arizona So.CTV 94-2032

PHX ROS (BGS) (1997)

a. Casey v. Lewis. United States District Court for the

District of Arizona No. CIV 90-0054 PHX RGS (BGS) (1997)

9. United states v. Homer. United States District Court

for the District of Arizona No. CR 90-464 PHX RCB

(BGS) (1996)

10. Price V. Aroaio. United States District Court for the

District of Arizona No. CIV 94-1596 PHX BGS (1996)

(B) SUMMARY OF REVERSALS S, AFFIRMANCES-WITH-CRITICISM

Published opinions

1. In the Hatter of Maricooa County Juvenile Action No.

JD-05401. 173 Ariz. 634, 845 P.2d 1129 (App.1993). Court

of Appeals held that juvenile court cannot award longterm custody of a minor to grandparents without a finding

that the child is "dependent."

2. State V. Buaas. 167 Ariz. 333. 806 P.2d 1381

(App.1990) . Affirmed, Court of Appeals holding that

erroneous self-defense jury instruction was harmless

error.

3. Romlev v. Superior Court. 163 Ariz. 278. 767 P.2d

1074 (App.1989) . Court of Appeals held that the juvenile

court psychologist's report is not hearsay and is

admissible in evidence without foundation -even if the

psychologist does not testify.

4. State V. Bouchier. 159 Ariz. 346. 767 P.2d 233

(App. 1989) . The Court of Appeals affirmed the conviction

but modified the term of probation to comport with

statutory maximum probation term.

5. Mardian Construction Co. v. Superior Court. 157 Ariz.

103, 7S4 P.2d 1378 (App.1988). Court of Appeals held that

WorJcer's Compensation statutes Isarred not only wor)cer's

personal injury claims bat his spouse's loss of

consortium claim as well.

8
1384

S. Ziatrv'e Opportunities. Inc. v. I-IO Industrial Pax*

Develapara. 152 Arii. 104. 730 P.2d 281 (App.l9B61.

Court of Appeals held that ia post-eminent domain

proceedingB, evidence did not estMblish aii the requisite

elements of adverse possession.

7. Waiter O. Boewell Memorial HoBoita.1 v. YsvatMJ County.

14B Axis. 3BS, 71* P.2d B7B (*pp.l986). Court of Appeals

affirmed in part and reversed in part. Court affirmed

method of calculating reimbursement of indigent medical

care, but remanded for a determination of the proper

reinbursemane amount based on medicaid rates in effect at

relevant time.

B. Brvant v. Silverman. 146 Ariz. 41, 703 P.2d 1190

(1985) . Supreme Court held that in airline crash case,

law of the forum state, Arizona, rather than law of the

situs of the crash, Colorado, should be applied because

Arizona had the greatest Interest in Che determination of

tha wrongful death action.

9. Mervyn'B v. Superior Court. 144 Ariz. 297, 697 P.2d

690 (1985) . Arizona Supreme Court held that in

garnishment proceedings that are in rem or quasi in rem.

service by publication is not an unconstitutional

deprivation of due process. [Sote: Less than a month

after this decision was rendered, in an unrelated case,

the Arizona garnishment statutes were declared

unconstitutional by the federal court in Neely v. Century

Finance Co. of Ariz., 606 F.Supp. 1453 (D.Ariz. 1985)}

10. State V. Goodwin. 160 Ariz. 366, 773 P.2d 471 (App.)

review denied (1989) . Court of Appeals held that

previous case requiring a written waiver of the

preservation of a second breath sample does not apply if

defendemt is actually furnished the sample. Written

receipt for sample is not required.

Unpublished decisions (Copies of the following unpublished

decisions are supplied at Tab D.)

1. Czerwinaki v. Sonenbera, 1 CA-CR 92-0354 (1994).

Affirmed on appeal, reversed and remanded on crossappeal. Court of Appeals reversed portion of case

dealing with child support award due to lacJc of

sufficient findings to deviate from child support

guidelines. Case remanded for additional findings and

l«gal description of property.

2. Frost v. Frost. 1 CA-CV 93-0040A (1993). Reversed in
1385

£ part; afflraad ia part. Court oC Appeals reversed order

; raczoactiveiy granting Co vi/e a portion of hutbaad'B

t military retirement. Held, change in law after original

r divorce was not prospective and did not apply to this

case.

j 3. State V. GonzaleB. 1 CA-CR IIBOO (19BB) . Court of

{ Appeals renmnded for resenteacing because aggravated

sentence called for in plea agreement was imposed without

the court stating aggravating factors on the record.

I 4. Marriage of Khamre. 1 CA-CIV 9073 (1987). Court of

Appeals found that appellee's failure to file an

answering brief was a confession of error when appellant

raises a debatable issue.

5. Sutherland v. Arizona Indoor Soccer. Inc.. 1 CA-CIV

8S23 (1986) . Cross-motions for suOTMry judgment. Court

of Appeals held that grant of sumnuury Judgment against

corporation and sole shareholder in breach of employment

contract case was error. Held, facts did not warrant

piercing corporate veil and disputed facts existed

requiring parol evidence to resolve.

6. Ricrex Development. Inc. v. Tash. 1 CA-CIV 8686

(1986) . Court of Appeals held summary judgment was

erroneous in an action for breach of an option in a

contract. J^pellant's withdrawal of money from an escrow

accoEint did not constitute rescission as a matter of law.

7. Whitton V. Vanderwev. 1 CA-CIV 8198, (1986) . Court

of Appeals reversed summary judgment in favor of the

seller in case arising out of a sale of a residence.

Acceptance of late payments constitutes waiver of right

to invoJce acceleration provision of note.

a. State V. wolkoff. 1 CA-CR 88-237 (1988). Affirmed in

part, reversed in part. Imposition of $100 statutory

assessment when prolsation was revolted in 1988 was

erroneous because assessment was not in effect in 1983

when crime was conimitted.

<C) OPINIONS ON CONSTITUTIONAL ISSUES (The first three of the

following citations are to appellate opinions on

constitutional rulings I made as a trial judge. The fourth

citation is to an appellate opinion in which I joined, as an

appellate judge pro tern, concerning a constitutional issue.)

1. Dept. of Revenue v. Arthur. 153 Ariz. 1. 734 P.2d 98

(App. 1986) .

10
1S86

2. N^lbandiBB v. superior Court. 163 Ariz. 126, 786 P.2d

977 (App. 1989), reconsideration denied (1990), cere,

denied. 489 O.S. 997 (1990).

3. Merwn'B v. Superior Court. 144 Ariz. 297, 697 P.2d

690 11985).

4. Olson V. WaJJcer. 162 Ariz. 174, 781 P.2d lOlS (App.).

review denied (1989), 12 A.L.R. Sell 1020.

16. Public Offlee: St«t« (ahronologically) any public offices

you bave bald, otbar than judicial offices, Including tb«

taraa of aervica and «diathar snch poaltians were elecfced or

appointed. State (chronologically) any unsueceasful

candidacies for alaetive public offica.

Atone

17. Legal Career!

a. Describe ehranologleally your law practice

experience after graduation fron law school

Including:

1. irtietbar you served as clerk to a judge,

and if so, the naoa of the judge, the

court, and the dates of the period you

ware a clerk;

JfoC applicable

2. whether you practiced alone, and If so,

the addresses and datesj

Not applicable

3. the dates, names and addresses of law

flzas or offices, coapanles or

govemnental agencies with lAlch you have

been connected, and the nature of your

connection with each;

Ai^fr If"* grtggJ

10/2S/76 - 11/30/77: Phoenix City Prosecutor's Offica.

* 455 V. S'^ St, Suite 400. Phoenix. AZ 85004, 602-262-6461:

Assistant City Prosecutor.

12/1/77 - 12/7/79: Haricopa County Attorney's Offica, 301 w.

Jefferson, Phoenix. AZ 85003, 602-506-3411: Deputy County

U
1387

Attorney

13/7/79 - 9/</BA: Superior Court of Arizona for M»ricopa

County, 201 W. Jefferaon, Pboeaix, AZ 85003. 602-506-3204:

Superior Court CoamiBBioner

9/4/84 - 1/25/95: Superior Court of Arizona, 201 W. Jefferaoa.

Phoenix, AZ 85003, 602-506-3204: Judge o£ Superior Court

1989 - present: BAR/BRI Bar Review, 20 E. University, Tempe,

AZ 85281, 602-929-0190: Lecturer, Arixona Contnunity

Property, and since 1997 Idaho and Nevada Contnunity Property

1/25/95 - present: U.S. District Court for the District of

Arizona, 230 H. 1" Ave., Phoenix, AZ 8S02S, 602-514-7022:

U.S. Magistrate Judge

b. 1. Nhat has be«n the ganeral character of your

law practice, dividing it into period* with

dates if Its character hae changed over the

years ?

1976-1979: Crimizial prosecution — 1 year of misdemeanors,

2 years of felonies

1979-present: Judicial — As a Superior Court judge, I

served rotations in the Civil, Domestic Relations,

Criminal, Juvenile, and Special Assignment departments of

the court. As a Superior Court Conuaissioner, I served in

those departments and also in the Probate/Mental Health

departmen t.

As a U.S. Magistrate Judge since 1995, my workload is

half civil, half criminal. It includes civil trials by

consent, settlement conferences, pretrial motions,

petitions for writs of habeas corpus, issuance of search

and arrest varrajits. and various hearings and other

proceedings in criminal caaee including -misdemeanor

trials by consent.

2. Describe your typical former clients, and

mention the areas, if any, in which you have

specialized.

X have a special interest in domestic

relations, juvenile and criminal law.

1. Did you appear in court frequently,

occasionally, or not at all? If the frequency

U
1888

of your appaaraaeaa in court varied, d«aori^«

each such variance, giving dates.

Freqaently

Mhat percentage of these appearances wmc In:

(a) federal courtsi

0*

(b) state courts of record;

57*

(c) other courts.

33t (Phoenix City Court)

3. Nhat percentage of your litigation NSSS

(a) civil;

1*

(b) criminal.

99*

4. State the nuznber of cases in courts of record

you tried to verdict or judgment (rather rhan

settled), indicating whether you were sole

counsel, chief cotinsel, or associate counaal.

In courts of record, I tried 5 cases as sole counsel and

2 as cbie£ counsel. In the Phoenix City Court, which is

classified as a -court BQ the record' but not a "court s£.

record, ' I tried over 2S jury trials and several hundred

bench trials.

5. Nhat percentage of these trials was:

(a) Jury;

loot

> (b) non-jury.

0*

18. Litigation! Describe the ten aost significant litigated

13
1389

aattera lAicb you personally handled. Qlve the oitationa, if

tbe ea««a ^fmrm raportad, and the docket number and date if

unreported. Qlve a capvola aunnary of the aubatance of each

case. Identify the party or partiea %riioin you represented;

describe In detail the nature of your participation in the

litigation and the final dispoaltlon of the case. Also state

as to each case:

(a) the date of repreeentatlon;

(b) the name of the court and the neme 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.

PLEASE NOTE: Three, rather than 10, cases are recounted here

because although I have been a lawyer for 21 years, the last

18 of those years I have held judicial office. I have

presided over thousands of jury trials, bench trials, hearings

and other proceedings, but my experience as a trial lawyer is

limited to my first three years of practice (1976-79) . A list

of recent contacts I have had with members of the legal

community follows the case descriptions.

State V. Paul O. Valenzuela

Maricopa County Superior Court, Ho. CR 99701

Judge: Hon. Sandra Day O'Connor, 202-479-3000

Opposing counsel: Trial: Lionel C. Estrada, 602-254-6661;

Appeal: Paul Prato, 602-506-8219 i John Rood 602-506-7965

Trial: May, 1978

Appeal: kff'd in part, rev'd in part by Memorandum

Decision of the Court of Appeals, 1 CA-CR 3570, 1 CA-CP.

3731 (consolidated) September 18. 1979

Prosecution for first-degree rape and sodomy with prior

conviccions. The victim's name and phone number had been

furnished Co the defendant by a dating service of which

both the victim and the defendant were members. On their

date, the defendant drove the victim to a remote location

in Che desert and sexually assaulted her. Consent was

the defense. The jury found the defendant guilty of all

counts; he was sentenced by then-Judge (now Justice)

O'Connor to 30-50 years imprisonment. In post-trial

proceedings. Judge O'Connor vacated the conviction and

granted a new trial because of some irregularities chat

occurred at the trial including attempted jury tampering

by ehe defendant's mother. The prosecution appealed the

grant of the new trial; the defendant cross-appealed che

underlying conviction. The Arizona Court of Appeals

affirmed the conviction and reversed the granting of a

new trial.

14
1390

-?^'Tnjlfifffl"r»" fli Conviction obtainad daspice a coasenc

defense in the dacinsr context; (2) the order for a new

trial vas reversed on appeal even though new trial

motions are usually left Co the discretion of the trial

judge. I tried the case and handled the appeal.

State V. John A. Trebil

Maricopa County Superior Court, No. CR 10S919

Judge: Hon. William P. French, 602-212-8516 (now in

private practice)

Opposing counsel: Ron Kent Hooper, €02-953-5267

Trial: May. 1979

Appeal: Rev'd by Memorandum Decision of the Arizona Court

of Appeals. January 29. 1981. No. 1 CA-CR 4234

Prosecution for vehicular homicide. The defendant was

parked at the pick-up window of a drive-thru restaurant

chatting with the waitress. Upon overhearing codefendant Martin apeak obscenities over the order-talcing

intercom. Defendant gave chase of Martin. Both were

driving in excess of 80 MPH. Martin crashed bis car into

a home killing an elderly couple asleep in bed. Martin

pled guilty. I prosecuted defendant Trebil for vehicular

homicide even though bis vehicle did not collide with

anything. The jury found the defendant guilty. The case

was reversed on appeal due to an error in the judge's

answer to a juror's note during the deliberations.

SianJficfmcf-• This was the first vehicular homicide

prosecution in Arizona of a person who caused a fatal

collision but was not in the collision himself. I tried

the case.

State V. James McNett and Jesus Rodriguez

Phoenix City Court, case number unavailable (records

destroyed after 7 years)

Judge: Hon. John T. Zastrow. 602-514-7356 (now a U.S.

Immigration Judge)

Opposing counsel: Charles I. Robson (whereabouts unknown.

believed deceased)

Trial: May. 1977

Appeal: Aff'd on appeal to Superior Court Judge Marilyn

Riddel (retired). case number unavailable (Superior Court

"Lower Court Appeal" cases are not indexed by name of

defendant prior to 1986.)

Prosecution for soliciting prostitution. Two undercover

police narcotics agents from a neighboring town, while on

duty, solicited acts of prostitution from a woman who,

15
1391

unbeknownst Co them, was an undercover Phoenix police

detective. Their defense was that they were atCffinptiny to

develop narcotics infamation and practicing their street

rap. The prosecution had evidence to rebut those

contentions. After a week long Jury trial, both

defendants were found guiity and fined $120.00. The

convictions were affizmed on a]^peaX to the Superior

Court.

Significance: The case was front-page news in Phoenix for

a week and attracted national amdia attention. The

Phoenix Police Department viewed the case as a make-itor-break-it test of its undercover vice enforcement

program. I tried the case and received a formal

commendation from the Chief of the Phoenix Police

Department.

The following is a list of members of the legal community

with whom I have had recent contact:

Mark I. Harrison

Bryan Cave

2800 N. Central Ave.

Phoenix, AZ 8S004

602-280-8405

Janet Napolitano

U.S. Attorney for Arizona

230 N. 1" Ave.

Phoenix, AZ 85025

602-514-7583

Jon M. Sands

Federal Public Defender

222 N. Central Ave., Suite 810

Phoenix, AZ 85004

502-379-3290

Irwin Harris

111 W. Monroe. Suite 1107

Phoenix, AZ 85003

602-258-6904

Richard J. Morgan, Dean

Boyd School of Law

University of Nevada at Las Vegas

4505 Maryland Parkway

Las Vegas, HV 89154

702-895-3*71

16
1392

Hon. Frederick J. Martone

Arizona Supreme Court

1501 W. WaBhington

Phoenix. AZ 85007

602-542-4535

Ann B. Harwood

Assistant 17.5. Attorney

230 N. 1" Ave

Phoenix, AZ 85025

602-514-7737

Jane E. Reddia

Lewis i Roca

40 N. Central Ave.

Phoenix, AZ 85004

602-262-5311

Michael L. Gallagher

Gallagher & Kennedy

2600 N. Central Ave.

Phoenix. AZ 85004

602-530-8000

William M. Demlong

Bess & Dysart PC

7210 N. IE'" St.

Phoenix. AZ 85020-5201

602-331-4600

Robert K. Jones

Streich Lang PA

Two N. Central Ave.

Phoenix, AZ 85004-2391

602-229-5496

19. Legal Activitiaa; Dascrlb* th« moat algnlficaot l»g»l

activities you hava pursued, iaoltidlng significast lltigatloo

iriiich did not progxesa to trial or legal aattara chat did not

involve litigation. Deacribe the nature of your

participation in this ipiestion, plaaaa omit any laformatlon

protected by the attorney-client privilege (unleaa tli«

privilege haa been waived.)

i. AB a U.S. Magistrate Judge in 1995. I issued about a

dozen search warrants concerning the Oklahoma City

boaibing case. In addition, I was called upon to consider

motions to unseal the warrants brought on behalf of the

17
1393

newe media.

2. In July, 1996, I presided over the week-long

detention hearing of the "Arizona vipers, " twelve

defendants who were alleged to be members of an antigovemment militia group suspected of planning Co blow up

federal buildings in Phoenix. The arrest of the Vipers

and their detention hearings were che biggest local news

stories of the year. The news media covered the

detention hearings intensely. At the conclusion of the

hearings, I ruled that six of the twelve defendants would

be released pending trial, but that the other six would

be held without bond as dangers to the community. The

assigned District Judge and the Ninth Circuit Court of

Appeals affirmed all of the detention orders. The U.S.

Attorney did not appeal the release orders. The

defendants who were released appeared for all their court

appearances and fully complied with all other pretrial

release conditions.

U
1894

Supplemant co

Senate JMdiclarv Committee QiiggMnnnnlra of

Barl-v a. snvBrman

Part I, Qaaatlon 12i

Add the following to origjrm? annvnr:

On March 21, 1996, I testified at tbe Arizona Houme of

Repreaexitativas Goveramant Operations Canmictae in favor of a

pay raise for state judges. Ko record of testimoay availaJbie.

Aj()v/- vjjj^'\n

OAT* BAMMX a. SZLVZRKUr
1395

II. PINAMCXAL DATA AND CONFLICT OP IMTIRaST (PUBLIC)

Llat aourcaa, unonTit» and datea of all antlclpatad racalpta

frcm daferred Income azxangenenta, atock, optiona. uncoapletad

contracta and other future benefits «rtilch you expect to derive

from previous buslnaas relationahipa, profesalonal services,

firm meinberships, former ei^loyers, clients, or customara.

Pleaae deacrlbe the arrangestenta you have made to be

cranpenaated in the future for any financial or businesa

interest.

I receive a $25.00 per year payout from the City of

Phoenix Deferred Conpenaation Plan. The payout ie

received In Pebrximry of each year and started in 19B0.

In 2001, I will begin receiving benefits from the Arizona

Elected Officials Retirement Plan in the approximate

amount of $2,000 per month.

In 2002, I will begin receiving a payout from the State

of Arizona Deferred Compensation Plan in the approximate

cuaount of $357 per month.

la 2009, I will begin receiving a payout from the

Haricopa County Deferred Compensation Plan in the

approximate amount of $1,575 per month.

2. Explain how you will resolve any potential conflict of

Interest, including the procedure you will follow in

determining these areas of concern. Identify the categories

of litigation and financial arrangements that are likely to

present potential confllcts-of-interest during your initial

service in the position to which you have been nominated.

I will resolve all potential conflicts in accordance with

the Code of Conduct for United States Judges and all

applicable statutes. Specifically, I will recuse myself

in any matCejr in which my wife and I have a financial

interest. I will maintain a list of companies in which

I own stock (presently, we own only one stock) and I will

recuse myself in cases involving those conpanies.

- I will recuse myself in any matter in which I may have

been the prosecutor or judge in state court. I will

instruct my staff to screen for my possible involvement

all criminal cases that originated in Arizona state court

between 1976 end 1995.

19
1396

Ky wife is a court rcporcer. Her clients are lawyszs.

I will miintain a current list of har clients aad recuse

myself in any caae ia which one bar clianes is appearln?.

Do you hav« any plans, eoiBmitsianta, or agracmsots to pursiu

outside SBployBant, with or without coaqpansation, during your

sarvlea with tha court7 If so, explain.

To the extent permitted by, and in full eoa^liance with,

the Sthics Reform Act, I plan to continue giving, for

coapensation, my cammunity property bar review lectursc

for BAR/BRI Bar Review, 20 B. Ohivarsity Dr., Taape, AZ

65281. 602-929-0190. The lecture is about three hours

long. I give it three times a year in Arizona, and once

a year in Idaho and Nevada. BAR/BRI is owned by Karcourt

Srace Le^al and Professional Publications, Inc., Chicago,

IL.

List sources and anounts of all incama racaivad during the

calendar year preceding your nomination and for the currant

calendar year, Inelriding all salaries, fees, dividends,

interest, gifts, rents, royalties, patents, honoraria, and

other items exceeding $500 or mora (If you prefer to do so,

copies of tha financial disclosure report, required by tha

Bthies in Government Act of 1978, may be subatituted here.)

1597.- a.S. Government salary: $122,912

BAR/BRI Bar Review: $S,2S0

1996: U.S. Government salary: $122,912

BAR/BRI Bar Review: $2,2S0

My Financial Disclosure Report is supplied at Tmb S.

5. Please conplete the attached financial net worth stataaMot ia

detail (Add schedules as called for).

My ttet Worth Statement is supplied at Tab F.

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

campaign? If so, please identify the particulars of the

campaign, including tha candidate, datea of the ear^aigm, your

, title and responsibilities.

As a high school student in 196a, I volunteered for the

Hubert Huo^jhrey for President campaign in Arizona and was

a page for the Arizona Delegation to the 1968 Oemocratic

Sational Convention in Chicago.

20
1397

FINANCIAL DISCLOSUIiE REPORT toixt^iM«,«.»<„

•.AmaUAWwr

Silvexvan, Barry O.

cnb Mi«liV>4«t

Noalnaa for J\idg«

D.S. Courthoiu*

230 M. 1st Ave.

RxMOix. AZ »S02S

OS Court of Appaala, 9ch Cir

X MaaianiaL IM 11/0»/1»97

11/09/1997

OOmXtM-WIXt' IV (••• illlM •ii»^«|]<»| JM»JI»»»»r>«Jbllpii»t Oi^toK/vB.

L KMinONS II m^ m,^ m<li«»*1

NOIS Obll

1 U.S. Magiacrace JUdg«

2 Lacturvr

NAMK OF OKCANIZATION / ENTTTV

D.S. Diatrict Court, District of Ariz.

BAR/BRl Bar R«view

n. AGBEEMENTS

DAIX PABmS AND TERMS

n WNa (Mo TifMaMi aim

1 1976

2 19S«

City of niocilix Deferred Caa^enaation Plan

Ariz. Elected Officlala Retireoenc Plan

I 1984 Haricopa Cotinty Deferred Condensation Plan

DL NOK-INVESTMENT INCOME

DATC

•'

PASTIES AND TEKMS GROSS IhfCOME

199fi

S 199S

S«lf-cn^loyad court reporcer (3)

BAR/BRI Bar Reviav (lecture fees)

City o£ Phoenix DvCvrred Coti^enaatlon Plan

n.S. Qovcmment (magistrate judge salary)

U.S. Oovemment {magistrate judge salary)

s J.jso 00

t 3S 00

1 123,912 00

$ 119,S44 .00

45-964 98-45
raUNCIAL DISCLOSIIBE BETOKT

1398

Sllvttnun, Barry G.

IV. REIMBURSEMENTS and GIFTS

•

SOUBCE

NONt (Ni iMk npcMOUa M

V. OTHER GIFTS

. Sttpp JO-JJq

••

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riNANCIAL llMnoaUM REPOKT SilTaiaan, B«rry G. 11/09/1M7I

vm. ADDITIONAL INFORMATION OB EZPLANATma.

••

SECTIOH I — POSITIONS

UR/BRI Bar R«vi«w Is owned by SB Lwgal ( rrofvaalonal Ptjbllcatloaa, Inc., Chicago, IL.

SECTION II ~ AGREEMENTS

Th« liatttd agr^wnf ars •iq>loy«« b«n«<lc pl«n« of£«rad by ay pr*viou« mmploytr*. Ths

yeazB indlcatsd «r« tha yaacs that I atarcad in tha plana. Hy contrlbutiona to cba*« plans

raiuin on dapoait In tha plans. As raquirad by law* I hava nada arrangaaanta to bagla

racalving payskents fron the plans at v«rlo\u claaa in the future. I have tha right CO chooaa

froa anonq several InvaatBant options offered to all participanta in tha State of Arl^rooa and

Narlcopa County plans* but ocherwiae have no control over any of tha plana.
1403

rawKUL DociosuitB moKt 11/0S/1JS7

SBCnONHEAMNG. aik»r«.>iv«.l

sacncai 2. MtumiHa (cone-a. 1

1^, MC* Paxtlas and Tmxam

Stmt* of Arls. Deferred rcwyenaatlon PlAn

•KTXOV 3. IKH--UIVUiMUir IVDCHB (oooit'd.)

Li. Date Peztiea and Tezva

t 1195 Sclf-aoployed ocnixt reporter (8)

7 199S Herlcope Cooncy/scace of ArlBoaa (judicial aalary)

• IMS aU/BKI Bar Review (lecture teeal

> l»S City of Phoenix Deferred Coapenaatioo Plan

10 1994 8elf-enploy«d court reporter (S)

11 1994 Haricopa County/State of Arisooa (judicial ealazy)

11 1994 UUl/lBI Bar Kevlev (lecture feaa)

13 1994 City of Phoenix Deferred Co^enoation Plan

0.00

4.U3.00

3,250.00

31.00

0.00

•7.360.00

2,390.00

3S.00
1404

Il/Oi/IMI

DL CEBTDICATION

In unpUaoce wkfa ihe provMons of U U.S.C. 4S5 an) of Advtooqr OpinkiD No. STofdie Advnory

Judicial Actnifks, and to die best of my knowledge at the tfane after teasonable inquiry, I did ooi perform aixy

ftncdOD in any liilgaiion Aato^ the period covered by this rtpott in wtiid) I, my ipouse, or my mti»r or

hftd a financial interest, as defliied in Caixn 3C<3Xc), in the ooicxme of tucfa Uilgttioo,

I calify diat all die information given above (Inrlnttint Inftimiarinn pettaininf to my ipouio and minoi oc <T

cfaildrcn. If any) is accurate, true, aod complete to tfae best of tny knowledge and belief, aikd that any infonandoB aoc

wu wiilibeld becuisc li DM appUcable aiatuiory pioviiiuua pennitting non-diiclamra.

[ Auiher ceRify that earned incoine from onnode employinefit and bonorada and the acccpcance of gifts wliich bv

rtponed are in mnyliancr with die provisiam of S U.S.C. app. 4, nciiaa SOI at aaq., i U.S.C. 73S3 and hMdal (

Signature. li^^J^y^ ^ ul^lcj-i

Hole: Any individual who knowingly and wiUkiUy blalflas or tails lo die dds npon loay be tubJKa i

and oimlnl aaoctiiiaa (S U.S.C. App. 4, Saajoo 104).

nuNC iNsntucnoNS

MaU orlfioal and ikrae addWoaal eoptai a

Cowalnat oa Flaaadal DIadasntT

AdeiUWnMv* Oflla of tkt UaUad Saa

OM ColBinlMf Cfrcia, rt-E.

Salta 2-JOl

WuklqliM. 0.C 1«S44
1405

NETWORTB

inutenOiKli«lTn|bank»eeoniia.ieritia«e,ifCTirit<w, Bntgjnvnminin, ladott^

lioUjop) in HihilTrin (?nrhiiihig debs, moRgifei. lous, m^ other finitiriil obll|iiioas) of

jropnelf, yan qnois, tsd other'"—«'''«'» """t^-^ of your hnrnrhnM.
1406

1^" "tWtATE Barry 0 & Oeorga-Ann Sllverman

• 9/97

NET WORTH REPORT

S O M M A R Y

ASSETS

Cash in bank accouncs 47,976

Certificates of deposit 11,792

Securities and conunoditiea 709,805

Real estate 140,263

Receivables 11,728

Vehicles 39,754

Personal property 27,982

Life insurance 10,376

Other assets 271,270

TOTAL ASSETS: 1,270,946

LIABILITIES

Installment debts 4.000

TOTAL LIABILITIES; 4,000

NET WORTH

Total assets 1.270,946

Total liabilities 4,000

KET WORTH: 1,266.946

NET WORTH REPORT

DETAIL

ASSETS

Cash in bank accounts

Wells Fargo Bai^

Bank of America

Wei14 Fargo Bank

First Fed Crdt Un

First Fed Crdt Un

First Fed Crdt On

.otal cash in bank accounts:

6.824

4.453

10,563

-4 27

-4 A 26,100

-4 9 9

S: 47,976
1407

f^ificatea of deposit

Bank of America 11,7S2

90 days

Total certificates of daposit: 11,793

Securities and commoditiee

$10,000 US Savings Bond E,4SS

Issued 9/92

1 units • 6.456.000 ea

$10,000 US Savings Bond 6,456

9/92

1 units • 6,456.000 ea

1987 US Savings Bonds 1,579

$100 face value

18 units • 87.740 ea

1988 US Savings Bonds 1,985

SlOO face value

24 units • 82.700 ea

1989 US Savings Bonds 1,871

$100 face value

24 units • 77.940 ea

1990 US Savings Bonds 1,764

SlOO face value

24 units • 73.4B0 ea

1991 US Savings Bonds 1,662

$100 face value

24 units • 69.260 ea

1992 US Savings Bonds 1.552

$100 face value

24 units • 64.660 ea

1993 US Savings Bonds 1.433

$100 face value

24 units • 59.700 ea

1994 US Savings Bonds 897

$100 face value

16 units • 56 .060 ea

1994 US Savings Bonds 1,121

5200 face value

10 units • 112.120 ea
1408

1995 US Savings Bonds 1,590

SSOO faca value

6 unlCS • 2SS.a00 ea

1995 US Savings Bonds 331

$200 Cace value

3 units • 109.170 ea

1996 US Savings Bonds 3,070

$500 faca value

12 units • 255.800 ea

1997 US Savings Bonds 2,250

$500 face value

9 units • 350.000 ea

Fid Asset Manager OAS SEP IRA 23,«1S

1.23S units • IS.960 ea

Fid Equity Income II BOS IRA 15.374

540 units • 28.470 ea

Fid Equity Income II GAS IRA 15.374

540 units • 28.470 ea

Fid Equity Income II Keogh MP 141,581

4,973 units • 28-470 ea

Israel Bond due 10/1/OS 1,000

7th Development Iss

1 units • 1.000.000 ea

Israel Bond due 10/1/2003 1,000

7th Development Iss

1 units • 1,000.000 ea

Israel Bond due 10/1/2008 1,000

7th Development Iss

1 units • 1,000.000 ea

Israel Bond due 10/1/99 1,000

6th Development Iss

1 un].ts • 1,000.000 ea

Israel Bond due 11/1/04 1.000

7th Development Iss

1 units • 1,000.000 ea

Israel Bond due 3/1/04 SOO

7th Development Iss

1 units • 500.000 ea
1409

Israel Bond due 5/1/2011 500

7th Oevelopmenc Iss

1 uniCa • 500.000 ea

Israel Bond dua 9/1/00 1,000

7ch Development Isa

1 units • 1,000.000 ea

Israel Bond due 9/1/01 1.000

7Ch Davelopmenc las

1 units 9 1,000.000 ea

Israel Bond due 9/1/02 1,000

7th Development Isa

1 units • 1.000.000 ea

Israel Bond due 9/1/98 500

eth Development lasu

1 units • 500.000 ea

Israel ZCB due 10/31/2003 £,000

1 units • £,000.000 ea

Israel ZCE due 10/31/2003 £.000

1 units C £.000.000 ea

Israel ZCB P-4 due 03/31/2000 «,000

1 units • £,000.000 ea

Israel ZCB P-7 due 03/31/2000 £.000

1 units • 6,000.000 ea

Israel ZCB P-D due 12/31/2001 £,000

1 units • £,000.000 ea

Israel ZCB P-E due 12/31/2001 £.000

1 units • fi,000.000 ea

Israel Zero Cpn Bnd 01/31/20O£ £.000

1 units • £.000.000 ea

Nuveen Flgshp A2 Mun A shares 779

69 units • 11.290 ea

Nuveen Flgshp AZ Muni Bond Fn^ 9,£7£

Class R shares

857 units • 11.290 ea

P2ma*i8ion (PVI) 4.250

200 units • 21.250 ea

Tax-Free Trust of AZ (A2TFX) 60.£65
1410

5,638 unics • 10.7C0 ta

US Traaaury Bill due 03/05/98

1 unica • £5,000.000 ea

US Treaaury Bill due 01/02/98

1 unita • 10,000.000 aa

OS Treasury Bill due 01/08/98

1 units • 20,000.000 ea

US Treaaury Bill due 02/05/98

1 unica • 10.000.000 aa

as Treaaury Bill due 03/12/98

1 units • 20,000.000 ea

US Treaaury Bill due 04/09/98

1 units • 25,000.000 ea

US Treaaury Bill due 04/30/98

1 unita • 15,000.000 ea

OS Treasury Bill due 11/20/97

1 unita • 20,000.000 ea

OS Treasury Bill due 12/04/97

1 units • SS.OCO.OOO aa

OS Treasury Bill due 12/11/97

1 units • 10,000.000 ea

Vangrd 500 Portfolio Indx Trac

GAS IRA (VFIKX)

562 units • 89.330 ea

Vangrd 500 Portfolio Indx Tret 52,973

BGS ISA (VFINX)

593 unita • 89.330 ea

65 .000

10 000

20 000

10 000

20 000

25 000

15 000

20 000

55 000

10 000

50 203

Total aecurlCles k commodities: 709,805

Real estate

Residence, Phoenix AZ 140,000

Lease on storage locker 263

Phoenix, AZ

Total real estate: 140.263

H^c^lvables
1411

Geor^a-Aoii Silvaman Ct Rptr

Receivables

Total receivables:

Vehicles

96 Oldamobile Cutlass Supreme

97 Toyota Camry «-DR IE Sedan

Total vehicles:

Personal property

Business equipment

Total personal property;

Life insurance (cash value)

Horace Mann

BGS

Minn Mutual

BOS

11,72«

11,728

Prudential

GAS

Total life insurance:

Other assets

City of Phoenix Deferred

Comp Plan

Elected Officials Retirement

Plan

Fed Employes Retirement System

Karicopa County Deferred

Comp Plan (Nationwide Fixed)

State of iV2 Deferred Comp

Plan (PGA & SPI)

US (36vt Thrift Savings Plan

19,,390

20,,364

39.,754

27, 962

27,, 9B2

5,573

1,337

3,4£e

10,376

6,066

54,178

2.731

123,421

50,550

34,324

Total other assets: 271,270

6
1412

TTKL ASSETS: 1,270,S46

LIABILITIES

Inscallment debts

Bank of America Visa 4,000

Total installment debtsi «,aoo

TOTAL LIABILITIES: 4,000

NETWORTH

Total assets 1,2'70,946

Total liabilities 4,000

NETWORTH; 1,266,946
1413

III. mniTBtL (PUBLIC)

An athieal eonaidaratlon undar Canon 2 oC tha Amariean Bar

AssoeiatloD'a Coda of Profeaalonal Raaponalbllity calls for

•••ary lawyer, ragardlaaa of profaaaional proiBinanca or

profaaalonal workload, to find aona tiaa Co partlaipata in

sarving tlia dlaadvantagad.' Daaeriba idiat you liava done to

fulfill theaa reaponalbllltles, listing specific iastaacas and

tlia aaoumt of tiaa devoted to each.

Canon 4 (G) of the Arizona Code of Judicial Conduct

prchibizs judges fron practicing law on a pro bono basis

or otherwise. I have attempted to fulfil my

responaibilitiee to the disadvaataged in other ways:

First, I actively recruited minority lawyers to apply for

judicial positions and brought together a group of

lawyers and judges for this purpose. I have assisted and

mentored minority lawyers through the state judicial

merit selection process and after they became judges.

Second, as a judge, I have had a special interest in the

enforcement of child support obligations. The

disadvantaged are particularly harmed by the inability to

collect child support. I chaired a committee to revise

the Arizona child Support Guidelines. In addition,

several years ago, I donated my time to organize and put

on a seminar oa how to collect past due child support.

The seminar was offered in four locations around the

state.

Third, my wife and I contribute financially to

sciiolarsiiip funds for minority law students and donate

food to a local food bank.

The American Bar Aaaociation's Commentary to its Code of

Judicial Conduct states that it is Inappropriate for a judge

to hold meabarship 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

trtiich discriminates -- through either formal membership

requirements or the practical laqilementation of membership

policies? If so, list, with dates of membership. What you

have done to try to change these policies?

X do not belong to any such organization and never have.

Is there a selection conmission in your jurlsdiotion to

21
1414

racoBB«nd caadidatas for BOWlTiiitlop to tb* fadcral coarea? If

•o, did It rcooanand your noailnatlan? Plmms* daacrib* your

•39«rlanea la the aatlr* judloial ••Xactlom proo«sa< £raa

bagianlng to and (laeludlag tha eircuBstancaa triilch lad to

your nomination and interviaws ia irfilch you participatad) .

Oa June 28, 1997, I met Senator Kyi ac hit office In

Pboaaix where he informed me that I bad been suggested

for the Ninth Circuit by several members of the local

legal community. In September, 1997, 1 received a CMII

from Jon Yarowsky, of the Office of Counsel to the

President, advising me that I was under considerazioaCn Occooer 3, l:f97. I was interviewed in Washington oy

Mr. Yaiowsky and three other representatives of the

Administration. At their request, I completed an ABA

Personal Data Questionnaire and an FBI Bnckground

Investigation form. About 10 days later, I was

interviewed by the FBI, and on October 23, 1997, I was

interviewed by Charles B. Renfrew, a member of the ABA

Committee on the Federal Judiciary.

4. Ras anyone involved in the process of selecting you as a

judicial noainaa discussed with you any specific caaa, legal

iaaua or question in a aanner that could raasoxiably 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 fellowlDg critlclsa iavolving

•judicial activism.•

The role of the Federal judiciary within the Federal

government, and within aoeiety generally, has baecaLe the

subject of increasing controversy in recent years. Xt has

became the target of both popular and academic criticism that

alleges that the judicial branch has ustixped aany of the

prerogatives of ether 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-aolution '

rather than gxiaxrance-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 t^pon govenimants and society;

22
1415

A tmdanoy by tb« jodloiary towmrd looaaalng

juriadlotional r«qulraBaata such aa atanding and

ripanaaai and

A tandanoy by tha judiciary to lapoaa itaalf upon

othar InatiCutioaa la tha naaaar of an

•dalnlatrator with ooatlnuiag ovaraight

raapooaibllltlaa.

X believa that same of the criticism involving judicial

activiam is justified. The pover of the federal

judiciary is not unlimited. The consCiCutionai doctrines

of the separation o£ powers, respect for state

sovereignty, standing, ripeness and the requirement of a

case or controversary all are designed to act as

constraints on the judicial branch of government. There

are at least three aspects of judicial activism that are

of special concern to me.

First, I have noticed the tendency of some appellate

courts to engage in 'appellate fact finding.' In my

experience, this phenomenon usually occurs when a

reviewing court disagrees with a particular result in a

given case. In my viev, appellate courts should defer

to the factual findings of the trial judge -- the "judge

an the scene' -- unless those findings are clearly

erroneous or unsupported. Althougrh it is obviously

appropriate for appellate courts to review questions of

law on a de novo basis, a healthy respect for the

doctrine of judicial restraint requires appellate

deference to lower courts' factual and discretionary

calls whenever possible.

In my view, some trial judges have been guilty of the

same thing -- substituting their opinions and

discretionary Judgments for those of, for exaaple, prison

officials and school administrators. Although the

federal courts have an indisputably vital role to play in

assuring compliance with the constitution. I think that

some judges have unwisely, sometimes unwittingly,

appointed themselves the de facto Director of the

Department of Corrections or Superintendent of Schools.

Judges do not have the time or expertise, much less the

authority, to micro-manage schools and prisons. When

they do, it damages the public's confidence in the

judiciary, an unfortunate result of which is that such

judges are not taken seriously when genuine

constitutional issues come along that truly require

judicial intervention.

Third, until the recant passage of tha Prison Litigation

as
1416

Reform Acc, several appeliaCe decisions made it

unnecessarily difficult to quickly get rid of frivoloum

iicisratriou, difficulties well beyond what the Rules of

Civil Procedure require. For example, case lav in scrnte

circuits probihited federal trial Judges from disnuasXn?,

sua aponte, civil complaints that fail to state a claim.

In addition, although frivolous litigation could be

dismissed on the court's ovn motion, some appeilace

courts have construed 'frivolous' so narrowly as Co be of

little help.

I try never to forget that being a judge is not the

equivalent of being the king, and that in a

conscitutionai democracy it is the judge's job to fairly,

ij^artially, and intelligently follow the law whethejr h*

or abe agrees with ic or not.

34
••e^Beswrrr1417

CARLOS ROBERTO MORENO

RESPONSES TO SENATE JUDICIARY COMMITTEE

QUESTIONNAIRE FOR JUDICIAL NOMINEES

I. BIOGRAPHICAL INFORMATION (PUBLIC)

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

Carlos Roberto Moreno

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

Residence: Office:

210 West Temple Street

Los Angeles, California 90041 Department 131

Los Angeles, California 90012

3. Date and place ofbirth.

November 4,1948; Los Angeles, California

4. Marital Status (include maiden name ofwife, or husband's name.) List spouse's

occupation, employer's name and business address(es).

Christine (Donahue) Moreno, Artist/ Teacher .

East Los Angeles City College California State University

1301 Avenida Cesar Chavez S151 State University Drive

Monterey Park, California 91754-6099 Los Angeles, California 90032

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

Colleges &. Law School Dates Attended negrce A Date

California State University

at Los Angeles 02/66-06/66 None

Yale College 09/66-06/70 Bachelor of/\rts, 6/70

Harvard Business School 09/70-10/70 None

Stanford Law School 09/72-06/75 Juris Doctorate, 06/75
1418

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 oflRcer,

director, partner, proprietor, or employee since graduation from college.

Year Employer Pnsilinn

10/93-present Los Angeles Superior Court Judge

11/86-10/93 Compton Municipal Court, Judge

02/92-05/92 California State University

at Dominguez Hills

Adjunct Instructor

02/90-05/90 California State University

at Dominguez Hills

Adjunct Instructor

05/79-11/86 Kelley Drye & Warren, Los Angeles

(formerly Mori & Ota)

Associate

09/75-05/79 Los Angeles City Attorney Deputy City Attorrtey

11/70-06/72 Los Angeles County Personnel

Department of Public Social Ser%ice Representative

In addition, since March 1997 to the present. 1 have served as an unpaid board

member ofthe Arroyo Vista Family Health Center, a non-profit community health

center established pursuant to Section 330 ofthe Public Health Service Act.

From 1976 through 1978,1 also served on the boards oftwo additional non-profit

organizations, the Narcotics Prevention Project ( a drug rehabilitation program in the

Boyle Heights section of Los Angeles) and the Public Inebriate Program (an alcohol

rehabilitation program in the skid row section ofLos Angeles).

Military Service: Have you had any military service? Ifso, give particulars, including

the dates, branch ofservice, rank or rate, serial number and type ofdischarge received.

None.

8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe woukl be of interest to the Commmee.

1997 Criminal Justice Award, Superior Court Judge ofthe Year, Criminal Law

Sectnn, Los Angeles County Bar Association
1419

9. Bar Associations: List all bar associations, legal orjudicial-related committees or

conferences ofwhich you are or have been a member and give the titles and dates of

any offices which you have held in such groups.

California Judges Association (Criminal Law and Procedure Committee)

Los Angeles Superior Court (bail, investigators, trial delay reduction, new judge

orientation, and jury committees) (1993-1997)

Municipal Court Judges Association (Legislative and Bail Committees) (1987-1992)

Presiding Judges Association (Municipal Court) (1989-1990)

Mexican-American Bar Association (President) (1981)

Los Angeles County Bar Association (1979-1986) Immigration and Business Law

Sections

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public bodies. Please list all other organizations to which you belong.

a. Lobbying:

California Judges Association

Los Angeles Superior Court

Anoyo Vista Family Health Center

b. Non-lobbying:

Yale Club ofSouthern California

Yale Chicano Alumni Association

Stanford Alumni Association

Stanford Chicano/Latino Association ofLos Angeles County
1420

11. Court Admissions: List all courts in which you have been admitted to practice, with

dates of admission and lapses ifany 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 Central and Northern Districts ofCalifomia.

admitted 1979. (Membership inactive due to appointment to the bench in 1986).

Califomia Supreme Court and all state courts ofCalifomia. admitted in December

1975. (Membership inactive due to appointment to the bench in 1986).

12. Published Writings: List the titles, publishers, and dates ofbooks, articles, reports, or

other published material \ou 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 )'0u on issues invoKing constitutional law or legal policy. If there

were press reports about the speech, and they are readily available to you. please

supply them.

Over the years I have spoken to various school classes, service organizations, and

senior citizen groups concerning my job as a judge. None ofthese talks invoKed

constitutional issues or legal policy and none wereteported by the press. I ha\e not

retained any notes used in connection with these speeches, nor have 1 written any

published articles or speeches.

13. Health: What is the present state ofyour health? List the date ofyour last physical

examination.

Excellent, May 22, 1997

14. Judicial Office: State (chronologically) any judicial offices you have heU, whether such

position was elected or appointed, and a description ofthe jurisdiction of each such

court.

Judge ofthe Superior Court, Los Angeles Superior Court, October 1993 to present,

with general civil and criminal jurisdiction throughout the County ofLos Angeles:

presently assigned to a direct calendar criminal department, handling arraignments,

pretrial conferences, trials, sentencings, and probation violations; appointed October

1993 by Governor Pete Wilson, elected without oppositk>n June 1994.
1421

Judge ofthe Municipal Court, Compton Municipal Court, November 1986 to

October 1993, with jurisdiction over criminal misdemeanor cases, felony

preliminary hearings, and civil disputes not exceeding $25,000 in controversy;

appointed October 1986 by Governor George Deukmejian, elected without opposition

June 1988.

15. Citations: Ifyou are or have been a judge, provide: (1) citations for the ten most

significant opinions you have written; (2) a short summary ofand citations for all

appellate opinions where your decisions were reversed or where your judgment was

affirmed with signi6cant criticism ofyour substantive or procedural rulings; and (3)

constitutional issues, together with the citation to appellate court rulings on such

opinions. If any ofthe opinions listed were not officially reported, please provide

copies ofthe opinions.

(1) Municipal and Superior Coun trial judges generally to do not issue written

opinions, and, ifwritten, none are published. I have not written any published or

unpublished opinions in my career as a trial court judge

(2) The Appellate Department ofthe Los Angeles Superior Court hasjurisdiction over

appeals from the Municipal Coints ofthe County ofLos Angeles. Their opinions

are generally unpublished. I have attached the only opinions ofthe Appellate

Department, ofwhich I have personal knowledge, whk:h reversed convictions in

trials I handled as a Municipal Coun judge.

In the first case. People v. Crespin, (Superior Court No. CRA27965, Compton

Mimicipal Court No. 88M03642), a school teacher convicted of multiple counts

ofannoying female students, had his judgment reversed for prosecutorial error due

to improper ctosing argument.

In the second case. People v. Crescentini, (Superior Court No. BR28452,

Compton Municipal Court No. 89M00J12), the defendant's conviction for resisting

arrest was reversed for prosecutorial misconduct in improperly cross-examining a

character witness for the defendant.

As a Superior Court judge I have not had any ofmy decisions reversed on appeal

or criticized significantly.

(3) No claim ofconstitutional error was made in the two Municipal Court cases in

which the judgment was reversed.
1422

16. Public Office: State (chronologically) any public offices you have held, other than

judicial offices, including the terms ofservice and whether such positions were elected

or appointed. State (chronologically) any unsuccessfiil candidacies for elective public

office.

None.

17. Legal Career

Describe chrorwlogically your law practice and experience after graduation

firom law school including:

1. whether you served as a clerk to a judge, and ifso. the name ofthe

judge, the court, and the dates ofthe period you were a clerk:

1 have newr served as a law clerk to a judge.

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

I have never practiced law as a solo practitioner.

3. the dates, names and addresses of law lirms or offices, companies

or governmental agencies with which you have been connected, and

the nature of your connection with each:

(September 1975 - April 1979)

Los Angeles City Attorney's Office

200 North Main Street

Los Angeles, California 90012

Deputy City Attorney - Criminal Diviswn

(May 1979 - October 1986)

Kelley Drye & Warren

(formerly Mori & Ota)

515 South Ftower Street, #1100

Los Angeles, California 90071

Litigation Associate
1423

(November 1986 - October 1993)

Compton Municipal Court

200 West Compton Boulevard

Compton, California 90220

Judge ofthe Municipal Court

(November 1993 - present)

Los Angeles Superior Court

210 West Temple Street

Los Angeles, California 90012

Judge ofthe Superior Court

What has been the general character of your law practice, dividing

it into periods with dates if its character has changed over the

years?

September 1975 to April 1979 - Deputy City Attorney handling

misdemeanor prosecutions for Los Angeles City Attorney's Office,

downtown criminal trial courts: handled all phases of criminal

prosecution, special assignments to public disorder prosecution

team and Special Counsel to City Attorney; civil consumer

protection prosecutions for unlawftil business trials practice.

May 1979 to October 1986 - Litigation attorney with the Los

Angeles oflRce of Kelley Drye & Warren, a national. New Yorkbased law firm, handling commercial litigation in slate and federal

courts, including bankruptcy, employment (wrongfiil termination,

EEO, and labor negotiations for management), banking, real estate

and antitrust litigation for predominantly corporate clients.

November 1986 to October 1993 - Judge ofthe Municipal Court,

Compton Municipal Court, handling fek>ny preliminary hearings,

misdemeanor trials and ci^'il trials.

November 1993 to Present - Judge ofthe Superior Court, Los

Angeles Superior Court, presiding over a direct calendar court,

handling felony trials, including special circumstance homickies and

a broad array ofvk>Ient fekinies in addition to daily pretrial

conferences, sentencii^gs, case settlements and probatfon violations.
1424

Describe your typical former clients, and mention the areas, ifany.

in which you have specialized.

As a prosecutor with the Los Angeles City Attome\''s Office. I

represented the People of the State ofCalifornia in both crimirul

and ci\il prosecutions. T)pical witnesses consisted of police

officers employed by the Los Angeles Police Department or other

local law enforcement auencies, as well as members ofthe public

who were victiins of crime.

Typical clients with the law firm of Kelley Drye & Warren (Los

Angeles office), and its predecessor, Mori & Ota. consisted of

multinaiional corporations with a heavy concentration of

corporations which were subsidiaries ofJapanese corporations.

Many ofthese firms were the local distribution arm ot llie pareitt

corporation (e.g. Yamaha Motor Corporation.)

Did you appear in court frequemly. occasionally, or not at all? Ifthe

frequency of your appearances in court varied, describe each such

of your appearances in court varied, describe each such tariance.

gi\ing dates.

As a Deputy City Attorney I appeared in trial courts exery day. As

a civil litigator I appeared weekly with an emphasis on law and

nution practice.

What percentage ofthese appearances was in:

(a) federal courts: 10%

(b) state courts: 70% (All prosecutions were in Slate

Court)

(c) bankruptcy couns: 20%

What percentage of your litigation was:

(a) civil 100% (Kelley Drye & Wanen)

20% (L.A. Chy Attorney's Office)

(b) criminal: 0% (Kelley Drye & Warren)

80% (L.A. City Attorney's Office)
1425

Slate the number of cases in couns of record you tried to verdict or

judgment (rather than settled), indicating whether you were sole

counsel, chiefcounsel, or associate counsel.

Approximately 75 trials (70 criminal 5 civil); I was sole counsel on

all criminal trials and sole or chief counsel on all civil trials.

What percentage ofthese trials was:

(a) jury: 95%

(b) non-jury 5%

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reported, and the docket number and

date if unreported. Give a capsule summary ofthe substance of each case. Identify

the party or parties whom you represented; describe in detail the nature ofyour

participation in the litigation and the 6nal disposition ofthe case. Also state as to each

case:

(a) the date of representation;

(b) the name of the court and the name ofthe 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 ofthe other parties.

(1) Mines v. Siimitomo Bank. Orange County Superior Court, Case No. 405225

(1985)

In this action, I defended a bank client alleged to have committed firaiid in

obtaining third-party owned collateral to secure several loans to the principal

borrower, who was also a family relative ofthe guarantors. The case involved

numerous parties, including the loan ofRcers who arranged the loans. The

priiKipal issues involved the validity ofthe loan guarantees and the alleged false

representations ofthe loan officers in obtaining the collateral securing the

guarantees. I prepared all the motions and took most ofthe depositions and wouM

have been second chair to Paul Bressan of Kelley Drye & Warren had the case

proceeded to trial The case was settled on the eve oftrial, iudge: Orange County

Superior Court; no judge assigned; Co-Counsel, Paul Bressan, 515 South Flower

Street, #1100, Los Angeles, California 90071, (213) 689-1300; Opposing Cminsfl:

Steven Weston, 444 South Ftower Street, 43rd FU>or, Los Angeles, California

90071;(213) 623-2322.
1426

(2) JSP, Inc V. Siimiinmo Bank. Siskiyou County Superior Court, Case No.35883

(1985)

In this action. I defended a bank client alleged to have committed fraud in

extending construction loan financing to a developer who alleged that the bank

failed to release collateral as promised. The principal issues in\olved the

application ofthe parol evidence rule and the statute offrauds and whether any

alleged verbal representations by the loan officer were admissible. I was chief

counsel for the bank and took all depositions and wrote all motions, including a

successful partial summary judgment motion. Ultimately, the case was resohwl

through a settlement agreement, iudlje: Siskiyou County Superior Court, handled

by variousjudges through granting ofdefendant's summary judgment motion.

Opposing Counsel: Peter Racobs, 6670 Alessandro Boulevard, UB, Riverside.

California 92506: (909)789-8100

(3) Yasutake v. Real Estate Securities Ser\ice. Orange County SuperiorCoun. Case

No. 380266(1985)

In this case. I represented a husband and wife who owned an apartment four-plex

and who sought to set aside a wrongful foreclosure sale by a creditor. The

foreclosure sale was set aside aticr a contested two-day court trial. TIte principal

issue involved the nature of the alleged breach and the adequacy ofthe notice of

default, iudgc: Leonard H. McBride, Orange County Superior Court. Opposing

Cminsel: Robert Lewin, 105 Crescent Bay. Uf, Laguna Beach. CA. 92651:(7I4)

497-8897

(4) Pehota v. Sanyo F, & R Corporation. U.S. District Court for the Southern District

of California, Case No. 85-0907-JLI(IEG); San Diego Superior Coun.

Case No. N25608( 1984)

In this litigation, I defended a major manufacturer of electronic components being

sued by a forttier employee and union member who alleged wrongfiji termination

and employer harassment After successfrilly demurring to the complaint in the

Superior Court on federal preemption grounds, the case was removed to federal

court where the case was dismissed for failure to exhaust administrative remedies.

I was chief counsel and prepared all motions and handled all court appearances,

illdse: J. Lawrence Irving, United States District Court for Southern District of

California. Opposing Counsel: Diane Tufls, 969 Vale Terrace, #10, Vista,

California 92084; no telephone listing.
1427

(5) San Jose Cash Regiagr v. Tgc America Inc., Santa Clara County Superior Court,

Case No. 453646(1984)

In this case, I defended a major franchisor charged with unfair trade practices and

interference with prospective business advantage by a former franchisee. The

nature ofthe dispute involved the validity ofterritorial restrictions and

infringement by adjoining franchisees and the duty ofthe franchisor to ensure that

only one franchisee operated in a particular territory. In an eight-day jury trial. I

was chieftrial counsel and handled all pretrial motions and depositions. A

substantial money judgment entered against our client was reversed on appeal on

account of erroneous jury instructions on damages, hldgt: David W. Leahy,

deceased, Santa Clara County Superior Court; Co-Counsel David Maurer; 9130

West 25th Street, Los Angeles, California 90034-1904; (310) 839-1524 Opposing

Counsel: Anthony Trepel, 50 West San Fernando Street, San Jose. California

95113; (408) 275-0501.

(6) Thnmell v Cnleman Los Angeles Superior Court, Case No. C280523 (1983

In this case, I successfiilly defended a company executive charged with civil

negligence during a weekend excursion for allegedly providing excessive amounts

ofalcoholic beverages to the plaintiff, who subsequently injured herself by falling

offa resort balcony. This four-day jury trial involved disputed issues offact and

the liability ofindividual hosts who furnish alcoholic beverages to an injured party.

I was sole trial counsel for all aspects ofthis case, iildee: Anhur Baldonado.

retired, Los Angeles Superior Court. Opposing Counsel: Ed Barker (per State

Bar, deceased July 30, 1991); Eugene Bennett, 17592 17th Street, 3rd Fkxjr,

Tustin, California 92680, (714) 544-7200. )

(7) Sumitomo Bank v. Rscnhar, U.S. Bankruptcy Court for the Central District of

California. Case No. BK-SB8203164 (WH); Adv. No. SB-821541 (1982)

In this case, I obtained automatic stay relieffor a bank client to foreclose on a

fiuni-mall shopping center. The half-day trial centered on conflicting expert

testimony on the \^ue ofthe property and the nature ofthe defauh in state

foreck>sure proceedings. Judge: William Hyer, United States Bankruptcy Court

for the Central District ofCalifornia. Opposing Counsel: William Baker, SSO

North GoUen Circle Drive, Santa Ana, California 92705; (714) 558-9432.
1428

(8) Nagan v rnminiiniiy Redevelopmeni Agency, Los Angeles Superior Comt, Case

No. C323I38(I981)

In this case, 1 represented on a pro bono basis low-income, long-term commercial

tenants in the Little Tokyo section of Los Angeles. The clients were defending

against eviction actions initiated by the city redevelopment agency, which wanted

to construct a new parking garage on the site of our clients' auto mechanic and

body shop repair businesses. The principal issues involved the adequac>' of notice

and the duty ofthe agency to provide rebcation assistance to displaced businesses.

I was chief counsel for all court appearances and coordinated the work ofjunior

associates. Ultimately, after a year of delaying the eviction action, we obtained a

fiivorable settlement on behalfofour clients. Judge: No judge assigned.

Cn-Counsel. David Maurer, 9130 West 25th Street, Los Angeles, California

90034-1904; (310) 839-1524 Opposini; Couasel: James O. Foster. 4929 Wilshire

Boulevard, #915. Los Angeles, California 90010: (213) 936-2110.

(9) People V John Doe. Los Angeles Municipal Court, Case No. unknown. (1978)

As a Deputy City Attorney. I prosecuted a union member charged with assault

with a deadly weapon for throwing a brick through the window of a delivery truck

crossing a Teamsters strike picket line. After an eight-day jury trial with numerous

witnesses, evidentiar)' Issues, and substantial injuries, the defendant was acquitted,

ludge: Marion Obera, retired. Los Angeles Municipal Court. Opposing Counsel:

Jewell Jones, retired. Superior Court Commissioner, 7281 East Quill A\-enue,

Downey, California 90242: (310) 940-8846.

(10) People V. Cristobal Behran, Los Angeles Municipal Court, Case No. 31107463

(1978)

As a Deputy City Attorney, I prosecuted a Hispanic defendant charged with

assault with a deadly weapon (knife) against several black victims where defense

counsel attempted to exclude all blacks from the jury panel during jury selectun.

The principal issue involved restrictions on the defense exercise of peiemptoiy

challenges in a discriminatory manner, a prohibition thought to apply to the

prosecution only at that time. A writ of mandate was obtained staying the trial and

discharging the panel. The defendant was later convicted by a new jury. Judge:

James Nelson, retired, Los Angeles Municipal Court; Opposing Counsel: Ray

Tabet, 5900 Indian School, N.E., Albuquerque, New Mexico, 87110;

(505)265-3451.
1429

ADDITIONAL REFERENCES:

(1) Honorable Richard Paez

United States District Court

255 East Temple Street

Los Angeles, California 90012

(213)894-0764

(2) Honorable Edward Ferns

Los Angeles Superior Court

210 West Temple Street

Los Angeles, California 90012

(213)974-5781

(3) Michael VUlalobos

Office ofthe District Attorney

210 West Temple Street

Los Angeles, California 90012

(213)974-3611

(4) James Dabney

Office ofthe District Attorney

210 West Temple Street

Los Angeles, California 90012

(213)974-3611

(5) George Castello

• Office ofthe District Attorney

210 West Temple Street

Los Angeles, California 90012

(213)974-3611

(6) Pat Dixon

Office ofthe District Attorney

210 West Temple Street

Los Angeles. California 90012

(213)974-3611

AK €UiA OQ . AK
1430

(7) Michael Miller

Alternate Public Defender

320 West Temple Street

Los Angeles. California 90012

(213)974-8163

(8) Steve Urias

Alternate Public Defender

320 West Temple Street

Los Angeles, California 90012

(213)974-8163

(9) Leonard Levine

1901 Avenue ofthe Stars »1708

Los Angeles. Calitbmia 90067

(310)553-6510

(10) Joel Isaacson

8484 Wilshire Boulevard. .'^850

Beverly Hills. California 90211

(213)782-7722

19. Legal Aclixities: Describe the most significant legal activities you ha%e pursued,

including significant litigation which did not progress to trial ur legal matters that

did not invoUe litigation. Describe the nature ofyour participation in this

question, please omit any information protected by the attorney-client prixilege

(unless the privilege has been waived.)

Member, Los Angeles Superior Court Trial Delay Reduction Committee (1996);

established and enforced court policies which successfully reduced trial backlogs

due to Third Strike cases; policies were implemented county-wide and drastically

reduced the number of aged cases; fewer criminal cases are now tried by civil

courts, and, in fact, the crinunal couns have accepted civil cases for trial for the

first time in several years.

I have also taught Business Law (Spring 1990) and Administrati\« Law (Spring

1992) to undergraduates at California State University at Dominguez Hills.
1431

CARLOS ROBERTO MORENO

RESPONSES TO SENATE JUDICIARY COMMITTEE QUESTIONNAIRE

PART II FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)

List sources, amounts and dates ofall anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits

which you expect to derive from previous business relationships, professional

services, firm memberships, former employers, clients, or customers. Please

describe the arrangements you have made to be compensated in the future for any

financial or business interest.

a.) California Judges Retirement Systems

Current Amoum: approximately $79,000

(monthly contributions)

Upon leaving office this fund will be withdrawn and placed in an annuity or

other retirement instrument.

b.) County ofLos Angeles 40I(K) Savings Plan

Current Anvjunt: approximately $85,000

(monthly contributions)

I plan to leave this sum in its mutual fund market account or place it in

another retirement instrument.

c.) • Kelley Drye & Warren Restated Retirement Plan

Current Amount: $412 monthly, commencing in the year 2013 (Annuity)

I have no control over this plan and cannot withdraw my vested interest

prior to attaining the age of 60 in the year 2008. I intend to disqualify

myselffrom any case involving my former firm.

Explain how you will resolve any potential conflict ofinterest, including the

procedure you will follow in determining these areas or concern. Identify the

categories oflitigation and financial arrangements that are likely to present

potential conflicts-of-interest during your initial ser\'ice in the position to which

you have been nominated.

I foresee no categories of cases or issues that are likely to present a conflict of

interest for me. In the event of a potential conflict ofinterest, I would abide by the

Code ofJudicial Conduct for federal judges.
1432

Do you ha\e any plans, commitments, or agreements to pursue outside

employment, with or without compensation, during )Our service with the court? If

so. explain.

No.

List sources and ainounts ofall income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gilts, rents, royalties, patents, honoraria, and other items

exceeding $500 or more (Ifyou 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 Rcpon l;\0-IO).

Please complete the attached financial net worth statement in detail (Add

schedules as called for).

See attached Financial Statement.

Have you ever held a position or played a role in a political campaign'.' Ifso.

please identify the particulars ofthe campaign, including the candidate, dates ofthe

campaign, your title and responsibilities.

No.
1433

i *^'u^ I HNANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAR 1996

«*Ior- Act at :i»*. »ii&. L !<•

• -'14dl« ta»ti«;i

>K>REMO, CARLOS R.

U.S. District Courc Judpe

LOS Angeles Superior Court

210 West Temple Street, Dpt. ^131

Los Angeles California 90012

2. CBwrt or cr«MUc«tkoa

District Court

Central District of California

t

07/Jl /97 I

l'l'96-7 OK 97

ckcd«stlitNO.NEbo.facc»iioai<n.i«,t).w.h«M.cp<»ublemform.U<»>. SicoonlMlarr

I. POSITIONS. (Rcponinjuidr.idu.loolr.i4. pp. W3 or loilniclio»)

• '^^'"•°'^' NAME OF <;!;GANT2A7;fjy/ENTT-ry

KOire (Naicponiblepouteu}

Board Member

Arroyo vista Family Health Center

IL AGREEMENTS. (R.portin,iadmdMlooiy;«,pp.l4.17ofl<iMr«iioo.)

•^ PARTIES Aun Tirpn-;

j I """» ("oVeporuWenrtoMnu)

•'«^'y Prye i u.rren Betlrement Plan fNo ControU

— County Of Los Aneelo, tni r„) Retirement Pl.-,n. fMutu.l ^„^H^

m^ON-INVESTMENT INCOME. (Rep»^i.d..id.......po..^.«„,^„^,..„«^,

D HOHl (No leporuble noo-mwwuM iocooie}

-1S26 Los Anceles SnpeTJ^r Cmift

I??7f7 mPnths) Los An^'ele- •;,n|.rtnr f^„,jj

-1^24 Tlrlo Mo.... fjino,,...)

osazs n3.-i-,o.

gaat l.p-i flniielcs cirv cniLgp fsrrinr)
1484

FDOmcn^ XWCLOSOSS OSVOVT

IV. R£IMBimSEMENTSa»d GIFTS -

•lo

t M4 (PCI fWBiva vy

SOUBCB .

07' 31^97

H

CAKLOS R. H0RE30

•(Sri»<-(DC)-|o«

(No« b)

'adkau afctr pfti rn*ri»j by IJIBIIM md iV iwilm cMdig^ fmp«aiwty. Set pp. 30-3)a<lAilr«cuaM.)

•on (NoMckxporubbiiai)

^auE

VL LIABILTIIES. (ladudcs [bow of ipnm aad rWpjMVil ckiUrea; ndicMc wtert ippfacibta. pcnos idpoMAic

Igi i«t4r fer<^<^ pvoiknctf-(sr fa Kpnn Uidqr c< >te •P°M»'(J)"'or jciK luMlr of

ayenia|Wi<MMla^ippM.a4'(I>Crl«liAiiQ<<«<epBl<leAdaU. SM pp. M-36diMlranini)

ran (Noitponibbhbilite)

(J) ;<BWA rlca

(J) Leonard & Doloren Fenton

«

(J) Citibank

>A<r

Credit Line

Familv

Credit C.ird

mmiS&-9..^ rai^'Sig;-:""" itir»»4rw:M^>m..mM...ar-j
1435

raUNCIAL DISCLOSUKI RKPOXT CARLOS R. MORENO

Z*i» at iawn

07 /31 /97

VII. Pat« ILNVESTMENTS and TRUSTS-.HcooMc-ahie.

«ad depcadcat dnldran. See pp. 37.}4 of latltoowos.)

^muctiodt (InchHlmhotEofipousc

riarr 'lit* aftar «Mtt aaMt

555;

0.

UP 171 Ul

ITJi

V.1M

•rSr

i; AM aicOTM tr^ AiselvNn |

(11

Sir"

i.i

Ill #ri*a«,« ttatMctiM)

* CJ) L.A. County 401 (K) c Dlv ,_ T

, PUn

* (J) California Judaes 1(?Iie I T

^ Retirement Plan

' (J) Kellev Drve & Uarrei Sone ^ T

^ Retirenent Plan

'

a

f

i«

u

u

11

i«

11

I*

if

u

i.ir"S'!.f- KIU'»>?!.Jr!.. tI!4ni!"i!'!.S-!5."' » •" ft'-UnSi'lSi'SI...... S:i}:!!i:U; S'>»

'^•-- Sili'lslil'lh-js.... R!ILny!!;!!:.i:|s••-'••••" R:i!%sj;a!Si!%';5!"—»»•••

i.a;3f"- tSE'sni. {gg.,.-...,.,. «„ KKHSSS '•'"-'•>"•«
1436

miMicxAK. DZscLosimz nvovr (cont'd)

CARLOS R. MORENO

B*te of »

07/31/97

VOL ADDtnONAL etFORMATION OR EXPLANATIONS

Part VII

(bflmtpwiorRafwU

L.A. County ^Ol(K) Savings Plan Is invested In Pacific Mutual Investaent fund pursuant

to a guaranteed Investment contract with the County of Los Angeles.

Upon leaving the State Court Systen, I have a right to withdraw only ny contributions

to the California Judges retirement fund and roll them over Into an alternate

retirement Instrument. I have no right to withdraw or control any vested Interest in

the Kellev Drve I Warren retlreaenc plan until the year 2008, vhen I attain the age

•itf 60.

IX CERTinCATION.

la coBpUaaee with the provisioai of 29 U.S C. | 45S tod of Advbory Opinloa No 37 of tbc Advtwr> ConmifiR ga JjOtdal

Acfitvion, aod 10 tbc bnl of ny kxawMff u tbc itaM iftw reaioaable laqoify. 1 did DM perAjrm ipy adjudcjiary fuocuoo in any tidpeoa

Asiot (b« period covtitd by this lepon a which t. my ipMse, or my obaor or depvndud cbtldrca had • noucul uanoi. u ^xGsmi m

Caaoo KOXc), m te outoou of such htifsuoo.

I ccnify ihu aQ iafbrmMioa pvcn ^ovc (lacludtag mfonuooB p*nauua( to ny ipoux nd moor or depr«teo( chJdmL if i3y> d

iccvnii. tnw, lod eoatpleu to ibe bra of my kaowlcdta aod belief, ud ihu toy infwraatioo oof RpDnied wu withheld became n sat

iW**^*^ lUcntory provulooi pennitQaf ooa-dlictocure.

1 fWtbcx c«nify tfa« tifiNd incoaM fram aau«di raployoMJit and booortns aod ibc leccpuac* of gift) wblct bavv bnii nponad an

a wiih te praviwOQi of 3 U.S.C.A. ^p 4, |901 ei. ifq, 3 U.S.C. f 73S3 ad Judicial Confrfcoo* ftguluww.

(^^^jji^ /Z V'U^i.,^^ PMC July il. 1997

HOTS: ANY INDIVIOUAI. WHO KNOWIM>LY AND WILFULLY FALSlrlES OK FAILS TO FILE mU REFORT MAY U

SUBIECT TOCrva. AND CRIMINAL SANCTIONS (9 U.S.C. A|V. <. I 104.)

FIUNO INSTRUCnONSi

A4afldMnu*« OOtec ofite

UoilBd Stm Cows

Sdtl-Ml

Oat OilMilM CkcK. N e..

Wuteina. D.C. ZW4
1437

FINANCIAL STATEMENT

NET WORTH

Fiovjde t eoa^kte, cnneot flaiodil net wonh meaaent wfaidi itemlxa in detul

lU uwtt QiKludini bink leeenim, lol esate, ucundct, tram, faTesmenti, ind other fliua^

holdinp) lU UafaOUa Qiidadlnf cSebu, mongtiei. louu. ud otfaer finudal ofaUpiioiu) of

yoanttf. your ^oine,nd other ImmwIlitBiiiembegcf year hooiehold.

CARLOS R. AMD CHRISTim MORENO (MAY 23,1997)

4HR1

HiliiilMmMii illiitiMi

000

MBlMWrtlil>«

_J

T>ii NM nMm Mi lli^

>(lat i 2nd Trust Dee 31. '22^ iSSL

P«r»OMl Reeldence t50,300

25 Credit Lines

Revolving Credit

Auto Loans 20, )00

Pcraonel PropertT _2SL m. School Loans

«01 (K) Savings Plan 85, DOO

Judges Retlreaent Pund 79 JSS. 1.66,

IhlV 205,

,300

r»lMTMMMT lltMtanW eocoLU.mrteMUZOH

BtaiKaawtateri

AMfea^ tls«qrnlM«lsf«l

lto»«>»««»Mla»>»afaTiairt

lat Trust Deed Sumitomo Bank $i72,000

2nd Trust Deed Small Business

Adniiilstratlon U8,000
1438

CARLOS ROBERTO MORENO

RESPONSES TO SENATE JUDICIARY COMMITTEE QUESTIONNAIRE

PART III GENERAL (PUBLIC)

An ethical consideration under Canon 2 ofthe American Bar Association's Code of

Professional Responsibility calls for "everj" 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 oftime devoted to each.

Since March of 1997 to the present. I have served as a Board Member for the

Arroyo Vista Family Health Center, a non-profit community health center that

contracts with the County of Los Angeles to provide a wide array of free and lowcost heakh care to the medically under-ser\'ed population of Northeast Los

Angeles. Although I wasjust recently asked to scr\e on the Board by its executive

director (a high school friend). I ha\e come to learn about its extensive community

outreach program in our area. The Board's mandate is to insure that the Center

provides high-quality health care at affordable prices to its patients.

(Approximately 4 hours a month.)

Previously, between 1976 and 1978.1 sened as a Board Member for the Narcotics

Prevention Project ( a drug rehabilitation prograin in Boyle Heights) and the Public

Inebriate Program (an alcohol rehabilitation program) for alcoholics living on skid

row in downtown Los Angeles. (Approximately 4 hours a month.)

In 1981, as a litigator with Mori & Ota (the predecessor firm of Kelley Dr\-e A

Warren), I provided pro bono legal services to two elderly businessmen (an auto

body repairman and auto mechanic) in Little Tokyo who w-ere being evicted by the

City ofLos Angeles afler more than twenty years in business on the same site. 1

managed the entire litigation in various courts and uhimately reached a very

satisfactory settlement for our clients, who were able to continue in business.

(Approximately 200 hours.)

Sometime later, I was responsible for coordinating the eviction of numerous

tenants fiom two adjoining residential hotels in the same area. I believe 1 w^

especially sensitive to the needs ofthese mostly elderly and long-term tenants and

persuaded the firm's client to provide relocation assistance despite havong no

obligation to do so under California law.
1439

Finally, my work with the Yale Club's Alumni Schools Committee (Central Los

Angeles) for over twenty years, exposes me to talented, but often under-privileged,

youth who have applied for admission to Yale College. I meet with these students

and their parents and give them guidance and encouragement in pursuing college

opportunities. I have later memored a number ofstudents who I have met in the

course ofthese alumni interviews. (Approximately four hours a month.)

The American Bar Association's Commentary to its Code ofJudicial Conduct

states that it is inappropriate for a judge to hold membership in any organization

that invidiously discriminates on the basis ofrace, sex, or religion. Do you

currently belong, or have you belonged, to any organization which discriminates —

through either formal membership requirements or the practical implementation of

membership policies? Ifso, list, with dates of membership. What you have dpne

to try to change these policies?

No; I have supported efforts by the California Judges Association and the Los

Angeles County Bar Association to discourage memberships in such orgsinizations.

3. Is there a selection commission in your Jurisdiction to recommend candidates for

nomination to the federal courts? Ifso, did it recommend your nomination?

Please describe your experience in the entire judicial selection process, from

beginning to end (including the circumstances which led to your nomination and

interviews in which you participated).

On January 31, 1997 I submitted my Personal Data Questiormaire (Judicial

Appolntmeitts) to the Oflfice of Senator Dianne Feinstein. A few weeks later, I

was one often candidates interviewed by a Selection Committee appointed by

Senator Feinstein. I do not know the number of candidates who were prescreened and not interviewed. The Selection Committee consisted often

distinguished attorneys aixl judges from Southern California who represented a

wide diversity of views and experiences. Three finalists were selected by the

Conjmittee, all ofwhom were interviewed personally by Senator Feinstein on May

10, 1997. A day after my interview, I was advised by Senator Feinstein that she

was recommending my appointment to the federal district court by President

Clinton.
1440

Subsequently, I completed several questbnnaires and forms which were sent to me

by the White House. After completing these documents, on June 2, 1997,1 met

with representatives ofthe Office of Policy Development at the Department of

Justice. Following this meeting, I was investigated by the Federal Bureau of

Investigation and evaluated by the American Bar Association. I met personally

with a special agent ofthe FBI and later with a representative ofthe ABA's

Standing Committee on the Federal Judiciary. On July 31, 1997,1 was advised by

a White House representative that I had been nominated that day by President

Clinton for an appointment to the federal district court.

4. Has anyone involved in the process ofselecting 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? Ifso, please explain fully.

No.

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

The role ofthe Federal judiciary within the Federal government, and within society

generally, has become the subject ofincreasing controversy in recent years. It has

become the target of both popular and academic criticism that alleges that the

judicial branch has usurped many ofthe prerogatives of other branches and levels

of government.

Some-ofthe characteristics ofthis "judicial activism" have been said to include:

a. A tendency by the judiciary toward problem-solution rather than griex-anceresolution;

b. A tendency by the judiciary to employ the individual plaintiff as a vehicle

for the imposition offer-reaching orders extending to broad classes of

individuals;

c. A tendency by the judiciary to impose broad, aflirmative duties upon

governments and society;

d. A tendency by the judiciary toward loosening jurisdictional requirements

such as standing and ripeness; and
1441

A tendency by the judiciary to impose itselfupon other institutions in the

manner of an administrator with continuing oversight responsibilities.

One ofthe principal strengths of our form ofgovernment is found in the

doctrine ofseparation ofpowers. Each branch has been structured by the

Constitution so that it may function relatively independently ofthe other

branches, yet appropriate restraints are imposed on the work ofeach

branch by the Constitution.

At the risk ofover-simplification, it goes without saying that the legislative

branch is best equipped and structured to enact and create law on behalfof

the people, while the executive branch has a separate independent mandate

to implement and enforce the law.

The judk;ial branch, in the first instance, must exercise restraint with

respect to intruding into the work ofthe other branches. The acts ofthese

branches carry a presumption ofConstitutional validity and therefore are

entitled to a degree of deference. The judicial branch is ill-equipped to

perform anythmg more than its Constitutional mandate to apply the law.

The courts, and individual judges, must also exercise restraint to insure that

they decide only the issues in controversy which have been tendered in a

specific case and that decisions are based solely upon the record created by

the parties. A court should not go beyond the established record or issue

in controversy to resolve what is perceived by the court to be a broader

social issue in need ofresolution by society.

At all times, whether deciding an issue offact or an issue oflaw, a judge

should be guided solely by sound principles oflaw and not individual

predilection. Findings offeet should be based on common sense and the

trial record, while findings oflaw should be based upon established case

precedent and sound statutory interpretation.

Of course, there will be a few instances where novel issues will be

presented which may implicate significant Constitutional principles with

ramifications across broad sections ofsociety, or which question the acts of

a particular branch of government. In all matters, but especially in these,

the judicial branch must proceed cautiously and incrementally, search for

precedent in analogous situations, and be guided by principles ofjudicial

restraint. Ultimately, however, the decision ofthe court must be based

upon obgective and established principles oflaw, unswayed by sympathy,

prejudice, or public opinton, and impelled by the courage to do what isjust

and fair in light ofall the circumstances.
1442

SENATE JUDICIARY COMMrTTEE QUESTIONNAIRE

RICHARD W. STORY

FOR )UDGE OF UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

I. BIOGRAPHICAL INTORM\TION (PUBLIC)

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

Richard Wayne Story

In 1977,1 legally changed my first name from Ricky to Richard.

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

Residence address: Gainesville, Georgia 30506

Office addresses: Mailing:

P. O. Box 1778

Gainesville, Georgia 30503

Street:

116 Spring Street

Gainesville, Georgia 30501

3. Date and place of birth.

Date of birth: May 3, 1953

Place of birth: Augusta, Georgia

4. Marital Status (include maiden name of wife, or husband's name). List spouse's

occupation, employer's name and business 3ddress(es).

Married to Nancy Gail Duffey Story. She is employed bj' the Hall County Board of

Education as a teacher at North Hall High School, 488J Mount Vemon Road.

Gainesville, Georgia 30505.
1448

5. Education: List each college and law school you have attended, including dates of

attendance, degrees received, and dates degrees were granted.

LaGiange College, LaGiange, Georgia

Attended: 1971 -1975

Degree: Bachelor of Arts with a major in English in March, 197S

University of Georgia, School of Law, Athens, Georgia

Attended: 1975 - 1978

Degree: Juris Doctor in June, 1978

6. Employment Record: (by year) all business or professional corporations, companies,

firms, or other enterprises, partnerships, institutions and organizations, nonprofit or

otherwise, including firms, with which you were connected as an officer, director,

partner, proprietor, or employee since graduation from college.

a) Georgia Department of Labor

Contingency Clerk

LaGrange, Georgia - March, 1975 - June, 1975

Atheru, Georgia - September, 1975 - January, 1977

b) Diversified Wood Product^ Inc.

Harlem, Georgia

Sawmill Laborer

June, 1976-August, 1976

c) University of Georgia Law Library

Athens, Georgia

Student Assistant

September, 1976 - December, 1976

d) Stanley R. Durden, Attorney

Athens, Georgia

Law Clerk

January, 1977 - June, 1978
1444

c) Kenyon, Hulsey & Olivet

(Now: Hulsey, Oliver & Mahar)

Gainesville, Georgia

Partner

July, 1978-July, 1986

f) Gainesville Jaycees (nonprofit)

Gainesville, Georgia

Director / Officer. 1978 -1984; President, 1982-8?

g) State of Georgia

Gainesville, Georgia

Special Assistant Attorney (General, 1980 -1985

h) Gainesville-Hall County Girls Club (nonprofit)

Gainesville, Georgia

Director, 1981-88; President, 1985

i) Gainesville-Hall County Chamber of Commerce (nonprofit)

Gainesville, Georgia

Associate Director, 1984

j) Hall County United \\'ay (nonprofit)

Gainesville, Georgia

Director, 1985-88,1994-96

k) Northeast Georgia Alcohol and Drug Abuse Council (nonprofit)

Gainesville, Georgia

Director, 1985-88

1) Hall County Juvenile Court

Hall County Courthouse

Gainesville, Georgia

Judge of Juvenile Court

January, 1985 - July, 1986

m) State of Georgia

Hall County Courthouse

Gainesville, Georgia

Judge of Superior Court

July, 1986 - Present
1446

n) North Georgia College

Dahlonega, Georgia

Taught Business Law course at Gainesville College Campus

March, 1995 • June. 1995

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.

Named one of Five Outstanding Young Georgians by the Georgia |aycees in 1987;

Gainesville-Hall County Young Man of the Year in 1985; Silver Shovel Award in

1984 for service to Gainesville-Hall County Chamber of Commerce; Honorary

Lifetime Member of Gainesville faycees; T. Malone Sharpe Award for 1982-83

(given to top 12 local |aycee presidents in the state); Outstanding State (aycee

Chairman of the Year 1985-84; ARCH Award from University of Georgia Alumni

Society for service to the community in 1986; Leadership Hall County, Class of

1983; Leadership Georgia, Class of 1992.

Bar Associations: List all bar associations, legal or judicial-related committees or

conferences of which you arc or have been a member and give the titles and dates of

any offices which you have held in such groups.

judicial Council of Georgia: 1996- Present;

Georgia Courts Automation Commission: 1995 - Present;

Council of Superior Court Judges: Ninth District Administrative fudge and member

of Executive Committee, 1996- Present; Benchbook Committee, Chair, 1991-96;

Automation Committee, 1995 • Present; Legislative Committee, Chair, 1996 •

Present;

Council of Juvenile Court Judges: 1985 - 1994; Served on Permanency Planning

Committee, Legislative Committee, Purchase of Services Committee, DFACS

Liaison Committee, and committee which drafted permanency planning legislation

in 1989.
1446

National Council of |uvenile and Family Court |udges: 1985 - 1994;

American Bai Association: 1991 - Ptesent;

State Bai of Georgia: Member of Intrastate Moot Court Competition Committee of

Younger Lawyers Section, 1980-81;

Gainesville-Northeastern Bar Association: Law Day Chairman, 1980;

Pro Bono Committee, 1983-84;

Court Liaison Committee, 1990 - Present, Chair, 1990-91;

Alternative Dispute Resolution Committee, Co-Chair, 1991-92.

10. Other Memberships: List all organizations to which you belong that are active in

lobbying before public bodies. Please list all other organizations to which you belong.

Lobbying:

I am a member of the Georgia Council of Superior Court Judges which lobbies the

Georgia Legislature on issues of importance to the Superior Courts.

Other:

I am a member of the Gainesville Rotary Club, Gridiron (a University of Georgia

fraternal organization) and Delta Tau Delta (a national fraternity). A copy of the

Gainesville Rotary Club bylaws is attached as Attachment "V."

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.

Superior Courts of Georgia, admitted July 10, 1978; '

Court of Appeals of Georgia, admitted September 12, 1978;

Supreme Court of Georgia, admitted October 2, 1978;

United States District Court, Northern District of Georgia, admitted October 2,

1978;
1447

United States District Court, Middle District of Georgia, admitted February 20,

1985;

United States Court of Appeals, 11th Circuit, admitted October 7,1982.

12. Published Writings: List the titles, publishers, and dates of books, articles, reports, or

other published material you have written or edited. Please supply one copy of all

published material not readily available to the Committee. Also, please supply a copy

o( all speeches by you on issues involving constitutional law or legal policy. If there

were press reports about the speech, and they are readily available to you, please supply

them.

I served as the editor of the Georgia Superior Court Benchbook published in 199S. I

also wrote the sections on Alternative Dispute Resolution and Trial Procedures. A

copy of these sections is attached as Attachments "A" and "B", respectively.

"Ethics and the Moral High Road in the World of Litigation", Verdict. Winter,

1996. This article is a speech which I delivered at a seminar and a copy is attached as

Attachment "C".

I do not have copies of any speeches on constitutional law or legal policy.

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

examination.

My health is excellent. My last physical examination was May, 1996.

14. ludicial Office: State (chronologically) any judicial offices you have held, whether such

position was elected or appointed, and a description of the jurisdiction of each such

court.

I am presently |udge of Superior Courts for the Northeastern Circuit, consisting of

Dawson and Hall Counties. I was initially appointed by Governor Joe Frank Harris

and began my first term on July 8,1986. I was elected to four year terms in 1988,

1992, and 1996. The Superior Court is the trial court of general jurisdiction in the

State of Georgia.

In 1985,1 was appointed Judge of the Juvenile Court of Hall County by Chief

Superior Court Judge A. Richard Kenyon. I served from Janiury 1,1985, until July 7,

1986, when I resigned to become Superior Court judge. The juvenile court's

jurisdiction is limited to delinquency, abuse, neglect, and unruly cases.
1448

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 and procedural rulings; and (3)

citations for significant opinions on federal or state constitutional issues, together with

the citation to appellate court rulings on such opinions. If any of the opinions listed

were not officially reported, please provide copes of the opinions.

(1) Willie V. Harwell. Ir. vs. The Continental Insurance Company. Civil Action

Number 86-CV-I079-B, Superior Court of Hall County.

Copy of opinion is attached as Attachment "D".

State of Georgia vs. Rudi Lee Bromley. Case Number 87-CR-l?9?-B. Superior

Court of Hall County.

Copy of opinion dated May 24, 1988, regarding motions to suppress e\'idence

seized pursuant to nine search warrants is attached as Attachment "E".

State of Georgia vs. Rudi Lee Bromlev. Case Number 87-CR-139VB, Superior

Court of Hall County.

Copy of opinion dated May 25, 1988, regarding a motion to suppress evidence

seized in a warrantless search of the defendant's trash is attached as

Attachment "F".

State of Georgia vs. Crawford L. Gober. Case Number 90-CR-S87-A, Superioi

Court of Hall County.

Copy of opinion is attached as Attachment "G".

Hardy G. Baglev. et al.. vs. Sidney William Shortt. et al.. Case Number

88-CV-5648-B, Superior Court of \Miitc County.

Copy of opinion is attached as Attachment "H".

State of Georgia vs. Stephen A. Mobley. Case Number 91-CR-245-A, Superior

Court of Hall County.

Copy of opinion dated |anuary 11,1994, denying the defendant's motion for

a continuance and for funds to conduct genetic testing of the defendant is

attached as Attachment "1".

State of Georgia vs. Stephen A. Moblev. Case Number 91-CR-245-A, Superioi

Court of Hall County.

Copy of opinion dated January 14, 1994, denying a challenge to the

composition of the grand jury is attached as Attachment ")".
1449

State of Georgia vs. Fiank Allen Kessler. Case Number 95-CR-448-B, Superior

Court of Hall County.

Copy of opinion is attached as Attachment "K".

' Mrs. limmv H. Smith vs. The Winder News and Robert W. Adamson. Case

' Number 9J-CV-823-M, Superior Court of Barrow County.

Copy of opinion is attached as Attachment "L".

< George Wangemann. et al. vs. lovce W. Shubert. Case Number

96-CV.2925-B, Superior Court of Hall County.

Copy of opinion is attached as Attachment "M".

(2) Thompson vs. State. 218 Ga. App. 444 (1995).

The defendant entered a plea of guilty and sentencing was deferred. He

waived his right to withdraw his plea. Prior to sentencing, the defendant filed

a motion to withdraw the plea, and the motion was denied. The Court of

Appeals reversed, holding that a defendant has an unqualified right to

withdraw a plea at any time before judgment is pronounced.

American Transport. Inc. vs. Thompson. 218 Ga. App. 54 (1995).

Plaintiff filed suit against American Transport, Inc., a Michigan corporation.

After the statute of limitations had run. Plaintiff learned that she had made a

mistake and should have sued American Transport, Inc., a Pennsylvania

corporation. Plaintiff amended her complaint to add the Pennsylvania

corporation as a party. The corporation moved to dismiss and the motion was

denied. The Court of Appeals held that all the requirements for relation back

of the amendment had not been met and reversed based on the statute of

limitations. The trial court opinion is attached as Attachment "N"".

Baglev vs. Shortt. 261 Ga. 762 (1991).

In this wrongful death action. Plaintiff was awarded $14,000,000.00 in

punitive darrugcs. Pursuant to a motion filed by defendants, the trial court

upheld the punitive damage cap in the Tort Reform Act and reduced punitive

damages to $1,000,000.00, $250,000.00 for each plaintiff against each

defendant. The Supreme Court affirmed the constitutional ruling but held

that the cap was $250,000.00 per plaintiff regardless of the number of

defendants and reduced the punitive damages to $5OO,O(X).0O. The trial court

opinion is attached as Attachment "H".
1450

Hackel vs. Bartell. 207 Ga. App. 563 (199?).

Defendant's motion for summan- judgment in this personal injury case was

denied. The Court of Appeals reversed, holding that the intervening

negligence of the plaintiff was the sole proximate cause of her injury. The

trial court opinion is attached as Attachment "O".

Kinsev vs. EIrod. 206 Ga. App. 375 (1992).

Summary fudgment was granted to the defendant in this personal Injury case

based on a release plaintiff had signed releasing another driver involved in the

collision. The Court of Appeals held that the defendant had not proven the

release was intended to cover her and re\ersed the decision. The trial court

opinion is attached as attachment "P".

Addlev vs. Beizer. 205 Ga. App. 714 (1992).

In a case of first impression, the Court of Appeals held that the attorney for a

corporation does not, by virtue of that fact, serve as attorney for the officers of

the corporation in their individual capacities. The jury verdict for the

plaintiff was reversed.

State vs. Watson. 205 Ga. App. 313 (1992).

The Court of Appeals reversed a decision granting the defendant's motion to

suppress. The Court held that under the "totality of the circumstances," there

was a sufficient basis for a stop of the defendant. The trial court's opinion is

attached as Attachment "Q".

Papp vs. Hall County. 262 Ga. 72 (1992).

Summary judgment was granted to the defendant based on sovereign

immunity under a 1991 Amendment to the Georgia Constitution. The

Supreme Court held that the 1991 Amendment was not to be retroacti\el)

applied and reversed. The trial court's opinion is attached as Attachment "R".

Babb vs. Cook. 203 Ga. App. 437 (1992).

Plaintiffs filed an action for loss of consortium and personal injuries. The

trial court granted a summary judgment based on the statute of limitations.

The Court of Appeals affirmed as to the personal injury claim (2 year statute

of limitations) but reversed as to the loss of consortium (4 year statute of

limitations). TTic trial court's opinion is attached as Attachment "S".

Williams vs. State. 261 Ga. 640 (1991).

The defendant's conviction for possession of cocaine with intent to distribute

was reversed based on the improper admission of evidence of a similar
1451

transaction. Evidence was admitted at trial by introduction of a certified

copy of a previous conviction of defendant. The Court established three

affimutive showings required of the State before such evidence should be

admitted.

Titan Indemnity Company vs. Hall County. 202 Ga. App. 38 (1991).

The Court of .Appeals affirmed the denial of the plaintiffs motion for

summary judgment. However, the Court held that the trial court ened in its

interpretation of the insurance contract and reversed the summary judgment

of defendant. The trial court opinion is attached as Attachment "T".

Womack Industries. Inc. vs. B & A Equipment Company. 199 Ga. App 660

(1991).

The Court of Appeals reversed a jury verdict finding the plaintiffs lien valid.

The Court held that the facts demanded a contrary conclusion and that a

verdict should have been directed in favor of defendant.

Buffington vs. Siglcr. 259 Ga. 478 (1989).

The Supreme Court reversed a jury verdict which had required specific

performance of a sale of property. The Court held that the plaintiff failed to

comply with the terms of the sale and was not entitled to specific

performance.

Georgia Real Estate Commission vs. Svfan. 192 Ga. App. 3 (1989).

This case went to the Superior Court on appeal from the Georgia Real Estate

Commission which had revoked Syfan's license for including false

information on his license application. However, Syfan had provided the

conect information to the Staff of the Commission but pursuant to their

direction did not include it on his application. The Superior Court reversed

the Commission's decision to revoke the license. The Court of Appeals

reversed the Superior Court holding that the Commission had the discretion

to revoke the license even in light of the mitigating circumstances. The trial

court's opinion is attached as Attachment "IT.

Van Huvnh vs. State. 258 Ga. 663 (1988).

A motion for new trial was granted to defendant after he was convicted of

malice murder and other offenses. At the new trial, the defendant was again

convicted of malice murder and other offenses. However, he was also

convicted of felony murder. Because the defendant had not been convicted of

felony murder in his first trial, the Supreme Court reversed the conviction on

that charge. The malice murder and other convictions were affirmed.

10
1452

(?) State vs. Bromley. Case Number 87-CR-n93.B, Superior Court of Hall

County. A copy of opinion is attached as Attachment "F".

Appellate decision: Bromley vs. State. 259 Ga. ?77 (1989).

Bagley vs. Shortt. Case Number 88-CV-5648-B, Superior Court of White

County. A copy of opinion is attached as Attachment "H".

Appellate decision: Bagley vs. Shortt. 261 Ga. 762 (1991).

16. Public Office: State (chronologically) any public offices you have held, other than

judicial offices, including the terms of service and whether such positions were elected

or appomted. State (chronologicall)) any unsuccessful candidacies for elective public

office.

In 1980, Attorney General Arthur K. Bolton appointed me as a Special Assistant

Attorney General for the State of Georgia. I also served under Mr. Bolton's

successor, Michael ]. Bowers, until December M, 1984. 1 have never been an

unsuccessful candidate for elective public office.

17 Legal Career:

Describe chronologically your law practice and experience after

graduation from law school including:

1. whether you served as clerk to a judge, and if so, the name of the

judge, the court, and the dates of the period you were a clerk;

No.

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

Na

?. the dates, names, and addresses of law firms or offices,

companies or governmental agencies with which you have been

connected, and the nature of your connection with each;

After graduation from law school, I became a partner in the law

firm of Kenyon, Hulsey and Oliver in )uly, 1978.

II
1453

The present name of the firm is Hulsey, Oliver & Mahar and

the address is 200 E.E. Butler Parkway, Gainesville, Georgia

30501.

I remained with the firm until I went on the Superior Court

bench in July, 1986. In 1980,1 was appointed a special

assistant attorney general for the State of Georgia, but

remained a member of the law firm. I handled child support

enforcement cases and abuse and neglect cases. Effective

January 1, 1985,1 was appointed luvenile Court |udge of Hall

County, Hall County Courthouse, Gainesville, Georgia. This

was a part-time position. Effective July 8, 1986,1

was appointed Judge of Superior Court for the Northeastern

Circuit. I have served in this position full-time since then.

What has been the general character of your law practice,

dividing it into periods with dates if its character has changed

over the years?

Our firm had a general civil practice which included insurance

defense, business law, governmental law, and a limited

plaintiffs practice. I worked primarily in litigation,

concentrating on insurance defense, zoning, and civil rights. In

1980,1 was appointed a Special Assistant Attorney General for

the State of Georgia representing offices of the Department of

Family and Children Services in Northeast Georgia. I also

handled child support enforcement cases for the state. I

resigned my position as a Special Assistant Attorney General at

the end of 1984 before becoming a part-time juvenile court

judge, January 1, 198S. I remained a member of the law firm

until I went on the Superior Court bench in July, 1986.

Describe your typical former clients, and mention the areas, if

any. in «hich 50U have specialized.

My typical former clients included insurance companies, small

businesses. Hall County government, and the State of Georgia.

12

-^
1454

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.

Occasiorully.

What percentage of these appearances was in:

(a) federal courts - 20%

(b) state courts of record - 70%

(c) other courts - 10%

What percentage of your litigation was:

(a) civil - 95%

(b) criminal - 5%

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.

9$ - 80 as sole counsel, IS as associate.

What percentage of these trials was:

(a) jur) - 10%

(b) non-jury - 90%

18. Litigation: Describe the ten most significant litigated matters which you personally

handled. Give the citations, if the cases were reported, and the docket number and

date if unreported. Give a capsule summary of the substance of each case. Identify

the party or parties whom you represented; describe in detail the nature of \our

participation in the litigation and the final disposition of the case. Also state as to

each case:

(a) the date of representation;

(b) the name of the court and the name of the judge or judges before whom

the case was litigated; and

(c) the individual name, addresses, and telephone numbers of co-counsel

and of principal counsel for each of the other parties.

13
1455

•1-

Rex Armour, et al. vs. E.L. England, et al.. Civil Action CV-79-32-C,

(1979) U.S.D.C.. N.D. Ga., Judge William C. O'Kelley presiding.

Voluntaiy dismissal by plaintiffs was filed Januaiy 5,1981.

Plaintiffs counsel: Michael A. Mogill, 150 South College Street,

Carlisle, Pennsylvania. 1701J, (717) 240-528? and Eric G. Kocher, 161

Spring Street. S.W., Atlanta, Georgia 30303, (404) 681-0680

Defendants' counsel: I represented the defendants along with Julius

M. Hulsey, 200 E.E. Butler Parkway, Gainesville, GA 30S01, (770)

532-6312

Inmates at the Hall County Jail brought a class action suit against the

sheriff and jailer. We represented all of the defendants. The suit

complained about conditions which existed in the Hall County Jail.

Specifically, the plaintiffs alleged that the jail was unsafe and

unsanitaiy, that inmates were denied recreation, access to legal

materials, and access to medical care, and that innutes were subjected

to arbitrary discipline. I engaged in lengthy negotiations to settle all

of the issues in the case. The settlement included the development of

operating rules for the jail, construction of an exercise yard and

creation of a law library for inmates. The case was voluntarily

dismissed by the plaintiffs.

John Alfred Davis vs. INA. Edward L. England, et al.. Civil Action

Number C80-1796A and C81-01G, (1980), U.S.D.C. N.D. Ga., Judge

William C. O'Kelley, presiding. The trial began November 2, 1981.

Plaintiffs counsel: Richard A. Gordon, Suite 520,400 Interstate North

Parkway, Atlanta, Georgia 30339, (770) 952-2900

Defendants' counsel: I represented the individual defendants along

with Julius M. Hulsey, 200 E.E. Butler Parkway, Gainesville, Georgia

30501, (770) 532-6312 and the insurance company was represented by

Sewell K. Loggins, 5605 Glenridge Drive N.E., Suite 900, Atlanta,

Georgia 30342, (404) 256-0700.

14
1456

Plaintiff sought damages foi injuries which he alleged he received

during an arrest by defendants. After he was stopped by- two sherifTs

deputies, the plaintiff fled. He alleged that when the deputies caught

him, they committed an assault and battery upon him and inflicted

injuries, including a ruptured bladder. In a jury trial, a verdict *-as

rendered in favor of the defendants.

-3-

American Booksellers Association. Inc.. et al. vs. Hinson Mc.Auliffe. et

aL Civil Action Number C81-1193A, (1981). US.D.C, N.D. Ga^

Judge Horace T. Ward, presiding. The motion for sumnur) judgment

was granted October 23, 1981.

Plaintiffs' counsel: ]. Kirk Quillian and William N. Withrow, Jr.

Nationsbank Plaza, Suite 5200, 600 Peachtrec Street, N.E., Atlanta,

Georgia 30308, (404) 885-3204; Michael A. Bamberger, 425 Park

Avenue, New York, New York 10022, (212) 371-5900.

Defendants' counsel: I represented the Sheriff and Solicitor of Hall

County along with Julius M. Hulsey, 2(X) E.E. Butler Parkway,

Gainesville, Georgia 30501, (770) 532-6312; other defendants were

represented by Roy Mays, 170 Mitchell Street, S.W., Atlanta, Georgia

30303, (404) 614-4570, Gail C. Rake, 556 North McDonough Street.

Room 504, Decatur, Georgia 30030, (404) 371-2909; ThomaU J l>av-is.

Suite 201, 545 North McDonough Street, Decatur, Georgia 30030.

(404) 378-3633; Roy E. Barnes, 166 Anderson Street, Suite 225,

Marietta, Georgia 30060, (770) 424-1500; John H. Smith, 301 Green

Street, Suite 200, Gainesville, Georgia 30501, (770) 536-3381; Paul C.

McCommon, 111, P. O. Box U, Macon, Georgia 31202, (912) 752-

3511; Tony L. Axam, 1280 West Peachtree Street, Suite 310. Atlanta.

Georgia 30309. (404) 524-2233; Jerry Gentry. 100 Cherokee Street.

Suite 595, Marietta, Georgia 30090, (770) 528-4000; James A.

Henderson, P. O. Box 223, Lawrenceville, Georgia 30246, (770) 822-

8609.

A suit to declare Act 785, Ga. Code Ch. 26-35 unconstitutional and to

enjoin its enforcement was brought by a number of publishers and

booksellers. The act sought to restrict distribution or display to minon

of materials containing descriptions or depictioru of "illicit sex or

15
1457

sexual immorality." Along with (ulius Hulsey, I represented the

Sheriff and Solicitor of Hall County. The Court enjoined the

enforcement of the act and ultimately declared it uncorutitutional.

Clyde Adams vs. Danny Bishop, et al.. Civil Action Number C8I144G, (1981), U.S.D.C, N.D. Ga., Judge William C. O'Kelley,

presiding. Summary judgment was granted to two defendants on

December 6, 1982. A judgment was entered on a jury verdict in fav'or

of the remaining defendant on April 4,1983.

Plaintiffscounsel: fane Kent-Plaginos, 111 Dahlonega Street,

Gumming, Georgia 30130, (770) 887-2321.

Defendants' counsel: I represented the two sheriffs deputies along

with Julius M. Hulsey, 200 E.E. Butler Parkway, Gainesville, Georgia

30501, (770) 532-6312 and Edward L. Hartness. 620 Spring Street,

Gainesville, Georgia 30501, (770) 535-7000; the District Attorney was

represented by Dar)'l A. Robinson, 132 State Judicial Building,

Atlanta, Georgia 30334, (404) 651-6194.

The Plaintiff filed this action alleging that his motorcycle had been

unlawfully seized by the defendants. The motorcycle was seized by

Hall County Sheriffs deputies during a routine traffic stop of a truck

which had the motorcycle in the cargo area. The identification

numbers on the motorcycle had been altered. The motorcycle was

seized and subsequently released to a third party who submitted proof

of ownership to the district attorney. Summary judgment was granted

to the defendants on all claims except one against Deputy Bishop who

was the officer who released the motorcyle to the third party. That

claim went to trial before a jury which found in favor of Deputy

Bishop.

Hall County vs. Agri-Bio Corporation. 249 Ga. 112 (1982). Judge

James E. Palmour, III, presiding trial judge. The case was decided by

the trial court on July 17,1981 and by the Supreme Court on March 2,

1982.

16
1458

Plaintiffs counsel: I lepresented Hall County along with Julius M.

Hulsev, 200 E. E. Butler Parkway, Gainesville, Georgia 50501. (770)

532-6il2.

Defendant's counsel: Frank W. Armstrong, III, 200 Main Street. S.W.

6th Floor, Hunt Tower, Gaincs>ille, Georgia 30501, (770) 556-0101.

Agri-Bio sought to rezone a tract of land to planned industrial

development. The tract was located in the center of a residential

subdivision. The Board of Commissioners denied the rezoning

application. However, the trial court held that the zoning of the

propert)' was unconstitutional and directed the count) commissioners

to rezone the property. On appeal, the County contended that the

applicant had failed to properly raise the issue of constitutionality

before the county commissioners and that the evidence did not

support the findings of the trial court. The Supreme Court reversed

the trial court holding that the applicant had failed to make a proper

constitutional challenge before the commissioners.

Eddie Howington vs. Hall County Planning Commission. Civil Actim

Number K-81-23,885, (1981), Superior Court of Hall County. Judge A

R. Kenyon, presiding. The case was heard on April 12,1982, and

decided on August 26,1982.

Plaintiffs counsel: |ames M. Walters, 311 Green Street, N.W^

Gainesville, Georgia 30501, (770) 536-3264.

Defendant's counsel: 1 represented the defendant.

The plaintiff appealed a ruling by the Planning Commission which

had denied his request to locate a go-cart track on a parcel of laiKi.

The Court affirmed the Planning Commission decision holding that

the plaintiff had not properly raised constitutional questions before

the Commission and that the Commission did not abuse its

discretion.

17
1459

-7-

Williani G. Harden vs. E. L. England, et al.. Civil Action Number

C82-25G, (1982), U.S.D.C, N.D. Ga., Judge William C. O'Kelley,

presiding. A partial summary judgment was granted to the defendants

on February 7, 1983. The bench trial was held May 26, 1983. The

plaintiffs application to the Eleventh Circuit for leave to appeal in

forma pauperis was denied by the Eleventh Circuit on December 7,

1983.

Plaintiffs counsel: F. Robert Raley, 743 Walnut Street, Macon,

Georgia 31208, (912) 745-1174

Defendants' counsel: I represented the sheriff, the jailer and the

county commissioners.

Plaintiff brought suit against the Hall County Sheriff and others

complaining about conditions at the Hall County |ail. Plaintiff

contended that he had been placed in solitary confinement by jailers

without the benefit of a disciplinary proceeding. He contended that

the cell in which he was placed was unheated, had no natural light, and

was infested with roaches. The plaintiff further contended that when

he was moved from solitary to the general jail population, that he was

subjected to violence from other inmates and that jail personnel were

not complying with the jail's operating rules. Motions to dismiss and

for summary judgment were granted to some defendants. The case was

tried before the Court without a jury and a judgment was rendered in

favor of the remaining defendants.

lem' Smallwtwd vs. Billy Moonev, et al.. Civil Action Number C82-

59G, (1982) U.S.D.C, N.D. Ga., Judge William C. O'Kelley,

presiding. Judgment was entered for the defendants on a directed

verdict on April 5, 1983.

Plaintiffs counsel: Charies W. Smith, Jr., 210 Washington Street,

N.W., Gainesville, Georgia 30501, (770) 532-7888.

18
1460

Defendants' counsel: I represented the individual defendants along

with lulius M. Hulsey, 200 E.E. Butler Parkway, Gainesville. Georgia

30501, (770) 532-6312; the insurance carrier was represented bj- lames

A. Duiilap,405 Washington Street, N.E., Gainesville, Georgia 30501,

(770)532-7211.

Plaintiff filed suit seeking damages for injuries which he alleged he

sustained when a Hall County jailer intentionally closed a cell door on

his hand. The plaintiff asserted causes of action under 42 USC $1983

and under a state law claim of battery. Plaintiff sought to recover

against the jailer who injured him as well as against supervisory

personnel, including the sheriff. The federal claims agairut the

supervisory personnel were dismissed on pretrial motions. The

plaintiff then sought to voluntarily dismiss his state court claims

against those defendants so that he could refile his case in state court.

We opposed the motion and the motion was denied. The case went to

trial and the defendants »erc granted a directed verdict in their fa\or.

lasper lohnson vs. Richard Mecum. et al.. Civil Action Number C84-

030G, (1984) U.S.D.C, N.D. Ga., Judge William C. O'Kelley,

presiding. The case was tried before a jury beginning March 14, 1985.

Plaintiffs counsel: Robert Remar, 2600 The Grand, 75 Fourteenth

Street, Atlanta, Georgia 30309, (404) 873-8000.

Defendants' counsel: I represented all of the defendants along with

Julius M. Hulsey, 200 E.E. Butler Park-way, Gainesville, Georgia

30501, (770) 532-6312.

Plaintiff brought this action alleging that he had been subjected to

cruel treatment by the staff of the Hall County Jail when he was

stripped and placed in restraints in a padded cell. The case was tried

before a jury and verdicts were rendered against each of the defendants

in the amount of $1.00 each.

19
1461

-10-

Randall Long vs. Richard V. Mecum. et al- Civil Action Number

MD84-n885, (1984), Hall County Superioi Court, Judge Robert L.

Scoggin, presiding. The case was heard on September 8,1984 and

decided November 16,1984. An application for discretionary appeal

was denied by the Georgia Court of Appeals on January 9, 1985.

Plaintiffs counsel: Edward L. Hartness, 620 Spring Street, Gainesville,

Georgia 30501, (770) 535-7000.

Defendants' counsel: I represented the defendants who were the sheriff

and members of the civil service board and county commissioners.

The case came to Superior Court on a writ of certiorari issued fo the

Hall County Civil Service Board. The plaintiff was discharged from

the sheriffs department for engaging in sexual relations with a young

woman who was a member of the department's Explorer Post. He

challenged his discharge on constitutional and procedural grounds.

The decision of the civil service board was affirmed. The plaintiffs

application to the Court of Appeals for a discretiotury appeal was

denied.

Because all of the foregoing cases are more than ten years old, I am

providing the following list of attorneys who have had more recent

contact with me in my capacity as a judge:

William M. Brownell, Jr. R. Thomas Janard

410 Bradford Street, N.W. 410 Bradford Street, N. W.

Gainesville, Georgia 30501 Gainesville, Georgia 30501

(770) 534-7700 (770) 534-7700

J. David Bunoughs James E. Mahar, Jr.

P. O. Box 324 200 E. E. Butler Parkway

Gainesville, Georgia 30503 Gainesville, Georgia 30501

(770) 531-0446 (770) 532-6312

20
1462

John A. Dickeison

P. O. Drawer 1408

Toccoa, Georgia J0577

(706) 886-3178

Mr. David A. Fox

210 Washington Street, N. W.

Gainesville, Georgia 30501

(770) 534-7386

Steven P. Gilliam

301 Green Street. N. \V.

Gainesville, Georgia 30501

(770) 536-3381

Henry D. Green, Jr.

1 Midto«Ti Plaza, Suite 800

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 870-8000

Kelly Miles

301 Green Street, N.W.

Gainesville, Georgia 30501

(770) 536-3381

Bonnie Oliver

220 E. E. Butler ParU-ay

Gainesville, Georgia 30501

(770) 532-6300

Charles W. Stephens

210 Washington Street, N.W.

Gainesville, Georgia 30501

(770) 536-7619

]. Douglas Stewart

Hunt Tower

Gainesville, Georgia 30501

(770) 536-0101

19. Legal Activilies: Describe the niost significant legal activities )0U 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 an) information protected by the attorney-client privilege (unless the

privilege has been waived).

My experience on the Superior Court bench has given me the opportunity to play i

role in several innovations in the administration of justice in our circuit. I am

particularly proud of the following programs for which I had primary responsibility.

in 1991, in conjunction with the local bar, we designed a mediation program for

domestic relatioiu cases in the superior courts of our circuit. Because of the success

of the program, we obtained a grant which allowed us to expand the program to other

cases in other courts in our circuit. This program has now expanded to the entire

Ninth Judicial District.

Prior to |uly, 1992, our circuit consisted of four counties, three of which were lunl

and had small caseloads. Because of the limited caseloads in the smaller counties,

the judges of the circuit did not hold court in those counties very often. We learned

21
1463

that this situation was causing delays in appointing counsel for indigent defendants.

I developed a plan which requited that persons booked into custody be interviewed

for counsel at booking and that these applications be immediately forwarded to a

judge. This system assured early appointment of counsel to eligible persons.

The increase in criminal cases over the past few years caused our criminal docket to

fall behind. In an effort to expedite the entry of pleas as well as to operate more

efficiently for lawyers, litigants, and the courts, I developed a new calendaring system

that assured a timely opportunity for entry of pleas and ended the necessity of the

lawyer and defendant in every criminal case having to come to every week of court.

22
1464

II. HNANCIAL DATA AND CONFUCT OF INTEREST (PUBUC)

1. List sources, amounts and dates of all anticipated receipts from deferred income

arrangements, stock, options, uncompleted contracts and other future benefits which

you expect to derive from previous business relationships, professional services, firm

memberships, former employers, clients, or customers. Please describe the

arrangements you have made to be compensated in the future for any financial or

business interest.

I am a member of the Superior Court fudges Retirement System and will be eligible

to begin receiving benefib when I reach the age of sixty years.

2. Explain how you will resolve any potential conflict of interest, including the procedure

you will follow in determining these areas of concern. Identify the categones of

litigation and financial arrangements that are likely to present potential conflict$-ofinterest during your initial ser\ice in the position to which you have been nominated

I am unaware of any financial or business relationships which will cause a conflict of

interest. Should any future conflicts develop, I would lecuse myself in any case

involving a conflict of interest in accordance with the Code of Conduct for United

States Judges.

3. Do you have any plans, commitments, or agreements to pursue outside employment,

with or without compensation, during your service with the court? If so, explain.

No.

4. List sources and amounts of all income received during the calendar year preceding

your nomination and for the current calendar year, including all salaries, fees,

dividends, interest, gifts, rents, royalties, patents, honoraria, and other items exceeding

$500 or more (If you prefer to do so, copies of the financial disclosure report, required

by the Ethics in Government Act of 1978, may be substituted here.)

See attached financial disclosure report. Attachment "W".

5. Please complete the attached financial net worth statement in detail (Add schedules as

called for).

See attached financial worth statement. Attachment "X".

23
1465

Have you ever held a position or played a role in a political campaign? If so, please

identify the particulars of the campaign, including the candidate, dates of the

campaign, your title and responsibilities.

While I was in high school and college, I worked on several campaigns for my father,

Lawrence Fan Stoiy, for county commissioner in Columbia County, Georgia. I

canvassed neighborhoods, attended political functions, and passed out literature in

shopping centers and at approaches to polling places. His campaigns were in 1%8,

1972, and 1976.

In 1976,1 worked as a volunteer in the presidential campaign of Jimmy Carter by

distributing campaign literature in Atheru, Georgia.

In 1982,1 served as Hall County coordinator for the campaign of Max Cleland for

Secretary of State for the State of Georgia. I hosted a fund raiser, helped distribute

campaign information in the communiiy, and directly solicited votes.

24
1466

FINANCIAL DISCLOSURE REPORT

FOR CALENDAR YEAR 1996

RclafK Ace at Iffl. ^lik I. •».

191-lft, N0w*c=«r )•. 1411 (S u.s.c. *;»- «. iei-1121

1 P«ra«n ••porcin« (Uc a»t, l»rii, uddla initial)

Story, Richard U.

1. Cwrc er Oifafiiuclar.

U.S. District Court

1 c#t« «; i«T»?^

9/18/97

1. ttcla lArclcla ti: j.isci tndtcac* «e£iv« o:

lull- or ftz:-.i-it '^

U.S. District Jucs* - Active Status

%- ll«;er-. Typ* leiMcii apptoptrlait cyp*)

X Sosinatloei. Oaca 9/15 9?

Initial Amual rir^l

( B#fsrtir-^ My tea

1/1/96- 8/2997

7 Ch««^ra or 0!Clc« I4trai<

Hall County Courthouse

116 Spring Street

Gainesville, Georgia 30501

>. On t>.« fcaal* «t th* Lnforsatisr centaL.-w4 L= C.".** t^ron. «sd

any codificacior^ pcnamirc t!ia;«ta. It la, l.\ cr cgtaaer..

aavle*la* CSflear la;*

IMPORTANT NOTES: The iiuiructions iccompinying this torm must be foIlouTd. Complete all parts,

checking tbs NONB box Tor each section where you biv-e no reportabie iaformacjoo. Sign oo laU page.

I. POSITION'S. (?^:poriing individual only; sec pp. 9-13 of Instructions.)

FPg;"iQN NAME OF QRG.-:^IZATI0N/E.V7ITY

NONE (No reportabie positions)

Extcutor Erline H. Storv Estate

Green Street Club

United Way of Hall County

11. AGREEMEtNTS. (Reporting individual onh- sec pp 14-17 ol Instructions.)

i2&I£ PAP.TIES AND TERiYS

D NONE (No reporuble agreements)

1996-97 Superior Court Judges Retlrenent Plan (no control)

in. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-22 of Insuuctions)

I2AI£ SQVT^CE m> TYPE t@?.S^. tSSS^

n NONE (No reportabie ooo-iovestmeiit income)

1996-97

1996-97

State of Georgia

Hall County

Dawson County

Hall County Board of Education fS)
1467

FIKAMCIAL DISCLOSURE REPORT

Richard W. Story 9/18/97

)V. REIMBURSEMENTS and GIFTS - iruuponaiion, lodging, (cxxl, cnitnalniiicM

(Includes (hose to spouse and dependent cfaildf en; use the paj-catheticals '(S)~ and '(DC)* to indicate reponable

leimbursements and gi/ts receKed by spouse and dependent children, respccli^ely. See pp. 26-29 of Instructions)

SOURCE DESCRIPTION

Q NONE (No sucfa rcpoflable reimbancniems or gifu)

Q

OTHER GIFTS. (Includes iboss to spouic ind depcndsnt children; use the pwcniheiicaU *(S)' and '(DC)' lo

indicate other g]fts rece)%xd bv spouse and dcpcndcni cluldrcn, respcciivcK. See pp. 30-33 or Instruaiotu.)

SOURCE DESCRIPTION

NONE (No such teporlabic gifu)

M. LIABILITIES. (Includes those of spouse and dcpcndcni children; indicate where applicable. pers«i responsible

(or liability by using the parentheticaJ '(S)' for separate liability of the spouse. *(J)' Tor joint liability of

reportii^ tndivSdual and ^>0use, and '(DC)* for liability of a dependent child. See pp. 3^36 of Instructions.)

£E£S1I2E DESCRIPTION VALUE CODE- n NONE (No reponable Babilitia)

Cainesvill* Bank k Tnist (J) Pertona^ Lo«o

•V«li«« Co*«» -••JlS.OOO « l«flt ll-ll4.801-li:.C30 c>ti3a,e9t-si.ec&,s:9 ri>ii.eoo,oci-:s.o9C.fieo »i-s».fl6o.qot-sse.;jq.ccB r*«isc.ooc.cai af •of

I.>:SO.C31-S10B,M9 !.001-1100.0C3
1468

FINANCIAL DISCLOSURE REPORT Richard U. Story

^t* of I

9/18/^7

\1I. Page I JWXSTMENTS and TRUSTS "income, \-3luc. transactions {Inclodcs those of spouse

and dcpcndcni children. See pp. 37-54 of Irutructicmv)

(lncIuSiB9 Crji-. ••••Lil

Indlcat.* ***;• tfj'..ett:9. owr:«r o!

•IJl- (or lairis o-r.»rih»p o( rtpori-

•naraca owr.inr.:; £•- tfcvs*. 'lOCl*

(or ownariMp ftv Ka^inKnc child.

Placa 'ixi* a;:*^ aach aaaat

Aitiso

reporting

pt;io<]

Croat valu*

at ard o!

r«?ort»n9 '•-

•r.aact>.ema duri-.c rapi i:.r^ p«rici 1 III lai [-.1

valj«:

III

Valu«

III

bur- i«ll.

If net asr-fs rr«- eii=ln^T« 1

i>l

Cay

111

Valual

Ccdf

iJ-f)

U)

Ca:r^

Cci«

iX-i

(it fr.vita

NONE (tio raportabli 1

.Residence - Herlem, Columbt

Knnm t u None

.CoBsnon - Gainesville

A Div. J w

1

Conrnon - Wal-Xarc Score None Konc J w None i

'Common-ReEions Financial Co A Dlv j w None 1

Rental Proo.-Desn Street D R«nt n w None 1

Rental Prou.-Richardson St. D Rent It w None i

Note - Barnes D Int L T

Account-Edvard D. Jones t; Int K T Kone

» 1

to

11

13

1]

t«

-.s

II

n

ti

1 Ere/Cair. C3*. A>l;.:CC ac !••• ••S).37;-I

iCol. >l.S4l F>tJ0.0C-.-113O.00O G'SiaC.OOl "eJo.flsl-ii.oM.sej MUi:lii:Ui «*-«r.

I v*l Cia J.IH.O'.; ot laii K>ltS.3Ci

0C1-I1.C9S.S3:

'.-s;e!.:ci pj.is,e:'-,c:;-s:i.:i-n-j:*! «:i-3is: s«

icii'j;-" •:;si:'i:t:. !«!;/••

1 ilt.ci cnl^> T.raBf/-jr-»!

If
1469

PIHANCZAI. DISCLOSOUE REPORT (cont'd)

MB* O( paiton K>portin«

Richard V. Story

0«i« a( li*;9tt

9 /)8/97

Vni. ADDITIONAL INFORMATION OR EXPLANATIONS andicatc pan of Report.)

Part VII, 2-8 are all held In the ntn* of thg Grten Screec Club, an lr.vgst:;frt club of vni^v

I was a member during the reporting period, but from which I am withdrawing^

IX. CERTinCATIO.V

In conpIi2--.ce «-ith th; pro\iskffl! cf 28 US C I <?3 v^ of Advifon- Opinion No. 57 of 0» Ad**DTv Connnities on JudJctil

Activiiiei, ind lo (he besi of ::> iaMftle:|! at ihc time after reaionbie inquL->.! did noi perform arj »djudicaiof>- funciion in any luigtxz

dunni the period co\-ered by LVS repon m which I, my JFOuse, o: ny minor or dependent children had a fi3i::c:aJ ictereii. as dsfioed u

Canon 3C(3}(c). in the outcome of such liiigition.

I cenify that ill ir.formz'.ioti gi%-en ibove (including informaiion penainng to my spouse and minor or dependent children, if any) is

accuraic. tnie. and compteie lo the best of my knowledge and belief, and that any ioformiDon cot reported wu wiihheid bcciuie it nv.

applicable stanitory provistcns perminuig non-disclosure.

I fttnher cenif>' thai ear^:d income from ouuide emplcv-ment and honorana and (he acceptance of gifts wticb have been reponed are

bicoa^iliaace with the provisions of 5 U.S.C.A. app. 4, {SOIci. scq.. 5 U.S.C. ( 73S3 and Judicial Con/ercoce rcgulaiiotis.

ZS^^t^

lel/T AND

Sfiuturc f^/r/f^

NOTE: ANY INDFVIDLAL WHO KNOWINelYAND 4(1LRILLY FAUfflES OR FAILS TO FILE THIS REPORT MAY BE

SUBJECT TO CTVIL AND CRIMINAL SANCTIONS (5 U.S.C. App. 4. { IM.)

FIUNC INSTRUCTIONS:

Mill sipwl oriiiinl tat 3 tddiuaaal copes n: Cotnnuiiet on Fintocis] Disclosure

•. United States Couns

Suite 2-301

Otie Columbus Ciick. N.E..

Washmiion. DC. 205*1
1470

HNANCIAL STATEMENT

RICHARD W. STORY

NET WORTH

June 1, 1997

Provide i complete, current financial net wonh statement which itentics in i4-»ig

all iiicis (including bank accounts, real esute, securides, trusts, invesaneats, and oi-.er finar^

holdings) all liabilides Oncluding debts, mongages, loans, and other financial obligatioBi) of

yoursel'. your spouse, and other immediate members of your household.

ASSETS UABIUTTES

Cuh o: hjj>i ir.i ir btcis 4 000 00 Nous pyibk u hiiiH ttrrmi { 1 : .

0

Sou piyibk u hinln-iniit-zti

e 903 r

0 NMB piyille 10 RluiTa { 1

lilUuui uaziiei-i^ ftcht^e 0 Sotd F«>-ihlc u otbei 1 1

Acsausu tnj eciu ncctvtblc: 0 Accoustt L-ld billiduc 1 1

DIM tna RIASVU utd fricxls 0 Unpiid iKsoi lu 1

Dva fcwra cc.sn 0 Oihc; u^iAid ux tad ir'xrut 1

DocbAl 0

265 2D '.-

Rctl €1W£ ovr^-t^ idle^U

300 000 DO •bk 12 10 b

Red auu r.cr5«sti rtssiva^le 1 1 ' Oihtf tfehi-itfmtrr | |

Autti ir^ oC-.c ytnzzal prep«rTy 75 poo 30 Credit cards - consiaier 18 bic r

Cub vtJuc-U^ i.^r,:rv.ce 1 .1 1

Otf<r tij«u-i'.fri;r: 1 !

Green St. Club-investment club 6 133 00 1 ' ^

(Balance sheet attached)

Tool Ulnliliu 304 97C ':;^

NttWonh 81 263 i^_

Tout ASICU 386 233 30 Tool liibuihct ind nd wenh 386 233 ;;^

COfm<GZS-[ UABUjnES NONE GENERAL INFORMATION l_

Ai cailona, oomiirr- or ittinator — An ur liMIl (i«l(«I7 CAMKJMi.

Yes 1

OD luMf or Qcsncti - An yoa delcsdaiu is njr loiix v Uttl

•C&0IU7 No i

LciilOiimi KtTc >«i ever lalcxa baslnpieyT Ito

Proviiion lor Fadenl locomc Tax ~ 1 1

OlhCT ipuuJ lUbl - L. iJ^

Attachment "X"
1471

GREEN STREET CLUB

BALANCE SHEET

AT FAJR MARKET VALUE

MARCH 31. 1997

BalarKe at

March 31 1997

ASSETS

WnleUp Fair MarKet Value

at March 31 1997

Currant Attals:

Edward D Jones S 38.031.63 . 36.03163

Gainesville Bank i Trust 2,263.27 . 2.263.27

Stock - Gainesville Bank A Tmsl 2.000.00 2.500 00 4,500.00

Stock - Wal-Mart Stores 3,195 70 (29670) 2,900 00

Slock - Regions Financial Co. 2,168 95 2.277.05 4,446 00

Total Currant Asatta 45.65955 4,48135 50.140 90

Property & Equipm*nb

Dean Street Land

Dean Street House

Dean Street Equipment

Richardson Street Land

Richardson Street House

Accumulated Depreciation

Total Rental Property

Other Assets:

N/R - Chicopee House

Total Other Aaaeta

TOTAL ASSETS

5,000.00 - 5.000 00

24,836 50 . 24.836.50

560 00 . 560 00

2,000 00 . 2.000 00

36,36600 - 36.366.00

(19.079 15) 19.079.15

49.68335 19,079.15 68,762.50

59.857 43 59.857,43

59,857 43 59,857 43

155,200 33 23,560 50 178,760 83

LIABILITIES:

Deferred Gain on Sale of Home

N/P - Gainesvlle Bank i Trust

. Total Liabilltlea

PARTNERS- EQUITY:

Partners' Capital

TOTAL LIABILITIES & PARTNERS' EQUITY

EACH PARTNER'S 1/8 SHARE OF CAPITAL

21,719.39

85,553 50

107.272 89

155.200 33 4.564.00

21.719.39

8S.SS3S0

107.27289

159.764.33

6.561.43

•(% OF EACH PARTNER'S 1/8 SHARE OF CAPITAL 6.23336
1472

REAL ESTATE SCHEDULE

Residence in Hall County, Georgia

REAL ESTATE MORTGAGE SCHEDULE

SunTmst Bank $ 178,329.00 Balance

SunTrust Bank $67,991.00 Balance

Gainesville Bank & Trust $ 19,000.00 Balance

PLEDGED ASSETS SCHEDULE

Residence - Hal! County, GA

1995 Ford Windstar
147S

III. GENERAL (PUBUC)

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 ser\ing the

disadvantaged." Describe what you have done to fulfill these responsibilities, listing

specific instances and the amount of time devoted to each.

While practicing law, I was a volunteer attorney for the Hall County Pro Bono

Program and sened on the Pro Bono Committee for the local bar. I also did

volunteer legal work for various local civic organizations including the Girls Club,

Pro Musica and (aycees. I have participated in numerous community service projects

through the Jaycees and United Way. I helped lead the efforts which resulted in the

acquisition of a new facility for the Gainesville-Hall County Girls Club. This work

included a substantial capital fund drive and design and renovation of the New

Holland Recreation Center for the club. I have been an active member of

Gainesville First United Methodist church since 1978 and have worked in the various

programs and ministries of the church. Since 1990,1 have coached youth girls'

basketball. The last two years I have also coached boys' clinic basketball and T-ball.

The American Bar Association's Commentary to its Code of Judicial Conduct states

that it is inappropriate for a judge to hold membership in an) organization that

invidiously 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 am a member of Delta Tau Delta and Gridiron which are social fraternal

organizations at LaGrange College and the University of Georgia, respectively. 1 was

a member of the )aycecs from 1978 until 1988. In 1985, when serving as state legal

counsel for the Georgia |aycees, I drafted and proposed amendments to the bylaws of

that organization which opened membership to women. Those bylaw amendments

were adopted and women were admitted to the organization. I am a member of the

Gainesville Rotary Club. I was first invited to join the club in the Iatel980's. At that

time, the club admitted only men into its membership, and I declined the invitation

because of this policy. Less than a year later, the club amended its bylaws and

admitted women. Shortly thereafter, I was invited to join Rotary and accepted the

invitation.

35
1474

Is there a selection commission in your jurisdiction to recommend candidates for

nomination to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to end

(including the circumstances which led to your nomination and interviews in which

you participated).

Yes. Yes. Senator Max Cleland named a fourteen member committee to re>-ieir

applicants for this position and to recommend up to five qualified applicants to him.

I submitted an application and writing sample to that committee. I appeared before

the committee for a personal interview and was one of five persons recommended by

the committee to Senator Cleland. I had a personal inter\'iew with Senator Cleland

and was selected by him for recommendation to the President. Since the

recommendation, I have been interviewed by attorneys with the Justice Department.

Agent Wayne Martin of the Federal Bureau of Investigation and Sylvia Walbolt of

the American Bar Association's Standing Committee on Federal ludiciary.

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 reasonabK 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 judici^

branch has usurped many of the prerogatives of other branches and levels of

government.

Some of the characteristics of this "judicial activism" have been said to include:

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

grievance-resolution;

b. A tendency by the judiciary to employ the individual plaintiff as a

vehicle for the imposition of far-reaching orders extending to broad

classes of individuals:

26
1475

c. A tendency by the judiciary to impose broad affirmative duties upon

government 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 lole of the judiciary is to resolve the disputes of litigants properly

befoie the Court. A judge must make decisions based on the facts as

they are proved and the applicable law. Judges are bound by judicial

precedent and legislative enactments controlling the issues before

them. The separation of powers doctrine contemplates separate and

distinct roles for each branch of government.

27
1476

UNITED STATES SENATE

QlXESTIONNAUtE FOR JUDICIAL NOMINEES

I. BIOGRAFBICAL INFORMATION (PUBUQ

1. Full nMmc (include any former name* used):

Chriidne Odell Cook Miller; Christine Cook Nettcsheim; Chriitine Odell Cook.

2. Addreii- Li(i current place of residence and office address.

Washington, DC 20007; U.S. Court of Federal

Claims, 717 Madison Place, N.W.. Washington. DC 2000S.

3. D«te and place of birth: August 26, 1944; Oakland. CA.

4. Marital .St«tii« (include maiden name of wife, or husband's name). List spouse'*

occupation, employer's name and business addresses).

Married. Dennis F. Miller, self-employed. President, Science and Technology

International, Inc.. 1S3S 2gth Street. N.W., Washington, DC 20007; U. Col..

U.S. Army Reserves.

5. Frtiiratinn- ijst each College and law school you have attended, including dates

of attendance, degrees received, and dates degrees were granted.

Undergraduate: Stanford University. Stanford, California

1962-1966; B.A. PoUtical Science, June 12, 1966;

Law Scho<d: University of Utah College of Law. Salt Lake City, Utah, 1966-

1969; J.D, June 6, 1969.

6. Frnplftymgnt Kecofd; List (by year) all business or professional coiporalions,

companies, firms, or other enterprises, partnerships, institutions and

organizations, nonprofit or otherwise, including firms, wiA which you were

connected as an officer, director, or, proprietor, or employee since graduation

from college.
1477

1) Summer 1967 - Uw Clerk to Uo M. Cook, Esq. (father)

P.O. Box 418

UUah. CA 95482

2) June 1969-June 1970 - Clerk to Honorable David T. Lewil

Gater Chief Judge)

United SUtes Court of Appeals for the Tenth Circuit

4201 Fedeial Building

Salt Lake City. UT84U1

3) August 1970-May 1971 - Trial Attorney

U.S. Department of Justice

Foreign Litigation Unit

Civil Division

10th &. Constitution Ave., N.W.

Washington. DC 20530

4) May 1971-April 1972 - Trial Attorney

U.S. Department of Justice

Court of Claims Section

Civil Division

10th Sc Constitution Ave.. N.W.

Washington, DC 20530

5) April 1972-February 1974 -- Trial Attorney

Federal Trade Commission

Bureau of Consumer Protection

Division of National Advertising

6th & Pennsylvania Ave., N.W.

Washington, DC 20580

6) February 1974-March 1976 - Associate. Litigation

Hogan SL Hartson

555 13th St., N.W.

Washington, DC 20005

7) March 1976-November 1978 - Special Counsel

Pension Benefit Guaranty Corp.

1200 K St., N.W.

Washington, DC 20005
1478

8) November 1978-March 1980 - Assistant Oenenl Counsel

U.S. Railway Association

9SS L'Enfant Plaza Noith. S.W.

Washington, DC 2QS93

9) March 1980-Januaiy 1983 - Associate (Partner Jan. 1983)

Shack &. KimbaU, P.C.

1129 20lhSt.,N.W.

Washington, IX: 20036 (firm dissolved; current address)

Thomas G. Shack. Jr.. P.C.

I ISO Connecticut Ave.. N.W., Suite 900

Washington, DC 20036

' 10) January 1983-present — Judge

United States Court of Federal Claims

717 Madison Place. N.W.

Washington. DC 20005

11) March 1996-Present - Board of Governors

March 1997-Present - Assistant Secretary

University Club of Washington, DC

1135 16th Stieet. N.W.

Washington, DC 20036

7. Military Servirg- Have you had any military service? if so, give particulars,

including the dales, branch of service, rank or rate, serial number and type of

discharge received.

1 have never had any military service.

8. Honcir« »nd Award.t- List any scholarships, fellowships, honorary degrees, and

honorary society memberships that you believe would be of interest to the

Committee.

Comment Editor and member of the Board of Editors of the lltnh I JW Review

Order of the Coif; Reginald Heber Smith Fellowship (fijil scholarship 1968 and

1969); Co-founder and Vice-president, George Washington American Inn of

Court.
1479

9. B»r A«tnri»tirnn- List aU bar associations, legal or judicial-related commitlees

or conferences of which you are or have been a member and give the titles and

dates of any offices which you have held in such groups.

I am currently a member of the California State Bar Association and the Bar

Association of the District of Columbia. I was a member of the Utah State Bar

Association and the American Bar Association. I have been a member of the

ABA'S International and Litigation Sections and participated in symposia for the

International Section in connection with the Iranian rqiresentation.

10. Other MginhpFthip«- List all organizatioiu to which you belong dtat are active

in lobbying before public bodies. Please list all other organizations to which you

belong.

I do not belong to any organizations that lobby. I belong to the University Club

of Washington, DC.

11. rpiirt Arimi«iinn- List all courts in which you have been admitted to practice,

with dates of admission and lapses if any such memberships lapsed. Please

explain die reason for any lapse of membership. Give the same information for

administrative bodies which require special admission to practice.

Supreme Court of the State of California, June 10, 1982;

District of Columbia Court of Appeals, Apr. 17, 1972;

Utah Supreme Court, Sept. 30, 1969;

United States Supreme Court, Aug. 8, 1980;

United States Court of Claims, May 6, 1971;

United Sutes Court of Appeals for the Third Circuit, Feb. 16, 1982;

United Sutes Court of Appeals for the Fifth Circuit, Oct. 1, 1981;

United States Court of Appeals for the Tenth Circuit, Dec. 8, 1969;

United States Court of Appeals for the Eleventh Circuit, Oct. 1. 1981;

United States Court of Appeals for the District of Columbia Circuit, Dec. 12,

1980.

I have also been admitted to other federal courts of appeal and various federal

district courts throughout the United States, the records of which I do not have

leadily available.
1480

12. PiiMUhM Writinp- List the titles, publishers, and dates, of books, articles,

repeats, 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 Ihem.

Note, 'Warrant Procedure Applicable to Municipal Code-Enforcement

Inspeaions ofPrivate Dwellings and Commercial Structures, 1967 UTAH L.

REV. 589. I have no copies ofspeeches. Please see attached list of i

13. HMIHI- What is the present state of your health? List the date of your last

physical examination.

My health is excellent. I had a physical examination on October 13, 1997.

14. TiiHirinl nffirr-.- State (chronologically) any judicial offices you have held.

whether such position was elected or appointed, and a description of the

jurisdiction of each such court.

I am currently a judge on the United Sutes Court of Federal Claims. The

court's jurisdiction encompasses Fifth Amendment takings, patent and copyright

claims, government contracts, suits for tax refunds, National Qiildhood Vaccine

Injury Act appeals, Native American claims, and military and civilian pay cases.

15. Citations: If you arc or have been a judge, provide: (1) citations for the ten

most significant opinions you have written, (2) a short summary of and citations

for all appellate opinions where your decisions were reversed or where your

judgment was affirmed with significant criticism of your substantive or

procedural rulings; and (3) citations for significant opinions on federal or stale

constitutional issues, together with the citation to appellate court rulings on such

opinions. If any of the opinions listed were not officially reported, please

provide copies of the opinions.

(1) Citations for ten mn-jt •iifnifirjnt npininntIntemational Business Machines Coiy. v. Uniied Sales. 1997 WL 456656 (Fed.

Cl., Aug. 8, 1997);

Intlaw Inr v, United Statey 1997 WL 433804 (Fed. Cl., July 31. 1997);

nraphicDatii, l-I^ V l]nited States, 37 Fed. Cl. 771 (1997);
1481

Tvferr,m.«t Co , Ine v United Stiite!i, 31 Fed. CI. 177 (1994);

ITT Cnrp v United 5Stjte« 17 CI. Ct. 199 (1989);

Univenri Ufe Church Inc v. United Stiite.t. 13 CI. Ct. 567 (1987);

Neptnnr Mi.t A«'n Ltd v United States, 13 CI. Ct. 309 (1987);

Johns-Manville Corp v. United Statev 13 CI. Ct. 72 (1987);

White Mnuntnin Ap«che Tribe v United States, II CI. Ct. 614 (1987);

Migsouri Pacific Tniek TJnes. Inc v United States. 3 CI. Ct. 14 (1983);

(2) Rever.<als and rritiri.nn

Bakery United Slate., No. 96-5134. 1997 WL 632044 (Fed. Cir. Oct. 15.

1997). Air Force lieutenant colonels claimed that their selection for retirement by

Selective Early Retirement Board violated their constitutional right to equal protection

because the charge to the board amounted to a racial classification favoring women and

minorities. The United Stales Court of Federal Claims ruled that the charge used was

not a racial classification. The Federal Circuit vacated the judgment because the Air

Force affiant, who had averred that an offensive charge was not used, recanted his

affidavit while the matter was on appeal.

Preseaultv United States, 100F.3d 1525 (Fed. Cir 1996) Owners of property,

subject to the Rails-to-Trails Act, sought compensation from the United States under the

Fifth Amendment for alleged taking of &eir land, based on conversion of railroad rightof-way into public recreational trail. The Court of Federal Claims found in favor ofthe

Govemment and held that plaintiffs' reversionary interest in former railroad right-of-way

did not constitute a compcnsable property interest, precluding relief on their claim that

tfie Govemment took their property without just compensation. On rehearing en banc,

the Federal Circuit reversed and remanded, holding. Inter alia, that the Govemment

engaged in a taking of owners' property by approving Che state's lease of fomier railroad

easement to a city for conversion to nail.

Lake Pleasant Group v. United States 79 F 3d 1166 (Fed. Cir. 1996) (Table).

Lake Pleasant Group (LPG) sought compensation for an alleged taking of its property in

violation ofthe Takings Clause ofthe Fifth Amendment. The Bureau of Reclamation

denied LPG's application for a right-of-way to coimect its land-locked parcel to the public

road. LPG then brought suit in &e Court of Federal Claims, daimiirg that the Bureau's

action deprived it of its property withoutjust compensation. The Court of Federal Claims

granted summary judgment for the United States, after concluding on three separate

grounds that LPG's claim to an easement failed to assert a compensable property interest

Each ground was based on the factual issue of whether adequate compensation under the

New Meiuco-Arizona EnabUng Act was paid for LPG's easement property interest. The
1482

Federal Circuit held that LPO mxist be given the opportunity to prove at trial that it

possessed a common law easement by necessity and dut it was not adequately paid for

the easement property interest

Branch v United States 69 F.3d 1571 (Fed. Cir. 1995) Chapter 7 oustce of

debtor-bank holding company, on behalf of one ofthe holding company's banks, hrougbl

suit against the Government asserting that Ae cross-guaranty assessment provisions ofthe

Financial Institutions Reform, Recovery and Enforcement Act (FLRREA) had resulted in

a taking without just compensation in violation of Fifth Amendment. The Court of

Federal Claims denied cross-motions for summary judgment, but ruled for plainlifr on

liability to the effect that the cross-guaranty provision of FIRREA could constitute a

taking. The Federal Circuit held that the application ofthe cross-guaranty provision of

FIRREA did not result in a prohibited taking of property under Fifth Amendment, even

though the assessment resulted in tfie bank's insolvency and seizure by the Govemnient.

Creppel v Umted States. 41 F 3d 627 (Fed. Cu 1994). The Federal Circuit

reversed that portion ofthe Court of Federal Claim's grant of summary judgment in a

Fiflh Amendment takings claim, which barred plaintiffs' permanent takings claim. Tlte

gravamen ofthe appellate decision was that the trial court had erred in its interpretation

of certain factual events fixing the date on which the permanent takings claim accrued

Appleyate v United States. 25 F.3d 1579 (Fed. Ctr. 1994). The Federal OrcuiT

held that a decision dismissing plaintiffs' FiAh Amendment takings claim because the

statute oflimitations had expired was erroneous In cases of alleged taking by continuous

process. Ac statute oflimitations is tolled until the owner can ascertain the extent of

damage. In the instant litigation, the Government's promise of a sand transfer to prevent

beach erosion caused sufBcient uncertainty to toll the statute oflimitations.

Wilner v United States. 24 F.3d 1397 (Fed. Cir. 1994) {en banc). The Federal

Circuit vacated the Court of Federal Claim's opinion awarding damages on a government

contractor's claim for govetnment-indBced delay compensation brought pursuant to the

Contract Disputes Act. It was reversible error for die trial court to have accepted the

contracting o£5cer's adoption at trial of his reasons in his decision letter, rather than

reviewing &e contracting officer's factual findings de mrvo, as mandated by the Contract

Disputes Act

Tr«nsameric« Ins Cnrp v United States. 973 F.2d 1572 (Fed. Cir 1992). The

Federal Circuit reversed a decision dismissing a government contractor's complaint for

lack ofsubject matter jurisdiction. The trial court had stated in a bench ruling that the

contractor's alleged claim was insufficient because no request had been made for a final

decision by the contracting officer, 'as required by the Contract Disputes Act In the
1483

alternative, the trial court ruled that the alleged claim was iinproperly certified. In its de

novo review, the appellate court found that while the contractor had not requested

explicitly a final decision, it had submitted sufficient matenal to indicate that it was

seeking implicitly a final decision. Additionally, the appellate court ruled dut, even

though the certification may not have complied precisely with the Contract Dispute Act's

requiieuicnts, it complied substantially.

Sawvcjv United States 930 F.2d 1577 (Fed Cir. 1991). The Federal Circuit

reversed a grant ofsummary judgment awarding plaintiff disability benefits and

conecting his militaiy records to indicate a medical discharge. This decision was based

on a determination that the Uiuted States Claims Court had restricted the authority ofthe

civilian correction board (o reweigh the evidence before a disability panel.

Craft Machine Works Inc v. United States. 926 F.2d 1110 (Fed Cir. 1991), In a

de novo review of the Claims Court's interpretation of a contract preference clause, the

Federal Circuit determined that the tiial court had misinterpreted the meaning of the word

"supplies."

Johns-Manville Cnrp v United States 893 F.2d 324 (Fed. Cir 1989). The ClaJms

Court ruled iHiat it bad the authority to award costs in a case that had been dismissed for

lack of subject mattei' jurisdiction. The Federal Circuit reversed on the ground that the

Claims Court was not included in a statute authorizing certain other courts to award costs

in cases dismissed for lack of subject matter jurisdiction. Consequently, the common law

rule — prohibiting an award of costs in cases dismissed for lack of subject matter

jurisdiction ~ applied.

Neptune Mut. Ass'n. Ltd v. United States. 862 F.2d 1546 (Fed. Cir. 1988). Tte

Federal Circuit affirmed the majority ofthe Claims Court's opinion gi'anting summary

judgment where the court construed overlapping portions ofthe Internal Revenue Code

and held that a foreign insurer was Uable for federal excise tax. The appellate court

vacated that portion ofthe opinion holding that certain government claims weix barred by

the statute of limitations.

Voge v tJnited States. 844 F.2d 776 (Fed. Cir. 1988). In an opinion affiiming that

portion of an order awarding a military doctor addibonal pay based on a confession of

judgment and vacating that portion denying plaintifTs claim to amend her military

records, the Federal Circuit ruled that the trial court had exceeded its jurisdiction to

consider the latter. The appellate court held that the Claims Court may only review the

military's administrative decisions for potential procedural violations, which had

occurred.
1484

Watstein v United States 837 F.2d 1096 (Fed. Cir. 1987) (unpub.). Plaindfr

applied for reUef to a civilian correction board, claiming that he was cominisMoncd as a

second lieutenant aAer attending officer's training school, but was thereafter unlawfully

decommissioned. After ttie board denied relief, plaintiffsought review ofthat

administrative decision in the Claims Court, five and one-half years after he was

dischatged and approximately six and one-halfyears after he became aware ofthe iiacts

which were the basis for his claim. On cross-motions for summary judgment, the Claims

Court rejected the Govenmient's defense oflaches because die affidavits supporting it

were submitted with defendant's reply bhef, but held that the board had not eired. The

Federal Circuit determined that, regardless ofthe merits ofthe case, the Claims Court

misapplied the initial defense oflaches, because a delay of six or more years is

presumptively injurious and therefore prejudicial. The Federal Circuit remanded die case

to reconsider die defense of laches.

Haberv. United States 831 F.2d 1051 (Fed. Cir. 1987). The Claims Court

dismissed a foreign taxpayer's suit seeking a refund baiscd on having paid already certain

foreign taxes. The Federal Circuit held that the taxpayer could have reasonably believed

in a statement by an IRS agent orally withdrawing a notice of disallowance.

Consequently, the subsequent issuance of a notice of disallowance five years later served

to set the date upon which the two-year statute oflimitations began to run. The case was

remanded.

Hilo Const Processing Co v United States. 816 F.2d 629 (Fed. Cir. 1987).

Hawaiian sugar processors and their cooperative refining and marketing association

challenged the Department of Agriculture (DOA) denial of coverage to part oftheir 1977

sugar crop under a price support payment program. On cross-motions for summary

judgment, the Qaims Court held that DOA's refusal to amend regulations providiBg for

price support payments to growers of cane and beet sugar was rational. The Federal

Circuit reversed and remanded for appropriate instructions to the Secretary of DOA,

holding: (1) internal transfer of raw sugar to refinery operations constituted "marketing,*

so that plaintiffs were eligible for the payment program, and (2) plaintiffs had bees

singled out for special and seemingly unfair treatment

Kirehdorferv United States 795 F 2d 1010 (Fed. Cir 1986) (Table). Contractor

brought action on contract to maintain Air Force family housing units. The Claims Court

held for defendant on cross-motions for partial summary judgment. The Federal Circuit

summarily reversed, finding that defendant had not disputed plaintiffs factual issues, and

remanded for determination of amotmt of damages.

White Mountain Apache Tribe v. United States. 776 F.2d 1063 (Fed. Cir. 1985)

(Table). Indian tnbe brought action against the Government alleging claims for
1485

I misminigemenl of water Tcsourcet, snzmg land, and tunber. The Claims Court held that

(1) tribe's action was subject to dismissal with prejudice due to its disobedience of court's

orders, and (2) nevertheless, judgment would be entered in tribe's favor for S) 0 million,

which was ^proximately three fourths ofthe amount originally offered by tfie

Covcniment in settlement After die tribe agreed to comply with Ae trial court's order,

die Federal Circuit summarily vacated and remanded.

City nf Almmdri. v 1 Initpd States 737 F.2d 1022 (Fed Cir. 1984). In a breach

of contract action, die appellate court reversed die Claims Court's decision holdmg that a

statute anthoiizing die Government to enter into land sale deals for die disposal of surplus

land with a state or subdivision of a state was either facially unconstitutioiial or

unconstitutional as applied because Congress' prior approval before the agency made its

decision violated the separation of powers doctrine. Having found the statute at issue

constitutional, the appellate court held diat no implied-in-fact contract existed and that

the Govcnunent was not estopped firom raising the defense of nonexistence of contract

(3) Casen on mpiificant cnnstinitionul issues:

Inslaw Inc v United .States 1997 WL 433804 (Fed. CI, Jul 31, 1997),

Pleasant Country Ltd v United States. 37 Fed. Cl. 321 (1997);

J & E Salvage Co v Umted States. 36 Fed. Cl. 192 (1996);

Seldovia Native A<i.<-n Tnc v United States 35 Fed. Q. 761 (1996);

Bakery United States. 35 Fed. Cl. 749 (1996);

Applegatev United States. 35 Fed. Cl. 406 (1996);

Davis v United States. 35 Fed. CI. 392 (1996);

Avenal v. United States. 33 Fed. Cl. 778 (1995), afU. 100 F.3d 933 (Fed. Cir.

1996).

Creppelv United States 33 Fed. Cl 590 (1995);

Scogin v. United States 33 Fed. Cl. 568 (1995);

Scogin V United States. 33 Fed. Cl. 285 (1995);

City Nat Bark nf Miami v United States 33 Fed. Q. 224 (1995);

Lake Pleasant C»roup v United States. 32 Fed. Cl. 429 (1994);

Branch on Behalf of Maine Nat Bank v United States. 31 Fed. Cl 626 (1994),

rev'd. 69F.3d 1571 (Fed. Cir. 1996);

Creppel v United States. 30 Fed. Cl. 323. afTd in BBH Hid rcv'll in PMt. 41 F.3d

627 (Fed. Cir. 1994);

Uintah Ute Indians of Utah v United States. 28 Fed. Cl 768 (1993);

Applegate v United States. 28 Fed. Cl. 554 (1993), a3ll± 25 F.3d 1579 (Fed. Cir.

1994);

Perry v United States 28 Fed. Cl. 82 (1993);

Aide. S A. V United States. 28 Fed. Cl. 26 (1993);

10
1486

Riehmond Fredericksbiirg and Pntnmac R R To v United Sftes 27 Fed CI. 275

(1992), afiCd. 75 F.3d 648 (Fed Cir. 1996);

PresMult V United Sbiteit 27 Fed. Cl. 69 (1992), lold. 100 F.3d 1523 (Fed Cir

1996);

Commonwealtli of Kentucky Natural Resmireen and Environmental Protection

Cabinet V United States 27 Fed. CI. 173 (1992);

Tabb Lake. Inc v United Srateii- 26 CI. Ct 1334 (1992). afiU. 10 F.3d 796 (Fed

Cir. 1993);

Mamro Land A Imp A«'n Ltd v Unitrd States 26 CI. O. 193 (1992);

Preseault V United Statet 24 Cl Ct g|g (1992);

Scope Enterprise. Ltd v United States 18 a. Ct S75 (1989);

nr Corp. V. United State., 17 Cl. Ct. 199 (1989);

Keene Corp v United State}, 17 Cl. Ct. 146 (1989). afTd sub nom ITNR Indu»-

Inc V Unitpd .State. 962 F.2d 1013 (Fed. Cir. 1992), cert panted sub nom

Keene Corp v. United States 506 U.S. 939 (1992), alEd, 508 U.S 200 (1993);

Mmrav v timted States. 15 Cl. Ct. 17. iffji 864 F.2d 148 (Fed. Cir 1988).

QConnellv United State. 14 Cl Ct 309(1988);

Keene Corp v United State. 12 Cl. Ct. 197 (198T> aflTd sub nom lohn«-

Manville Corp v. United State. 855 F 2d 1556 (Fed. Cir. 1988);

Johns-ManviUe Coqi v United State. 12 Cl. Ct. 1 (1987).

Dwverv United State. 7 Cl. Ct 565 (1985);

Anderson v United States. 7 O. Ct 341 (1985);

Jarboe-Lackev Feedlnt. hic v United States. 7 Cl Ct 329 (1985);

Anyua. Towing Co Inc v United States. 5 Cl. Ct 160 (1984);

Bettini V United States 4 CI. Ct 755 (1984);

Morton Thiokol Inc v United States. 4 Cl. Ct 625 (1984); and

City of Alexandria v. United States. 3 Q. Ct 667 (1983). nyli 737 F.2d 1022

(Fed Cir. 1984).

16. Public Office: State (chronologically) any public offices you have held,

other than judicial offices, including the terms of service and whether

such positions were elected or appointed. State (chronologically) any

unsuccessful candidacies for elective public office.

I have not held any public office, nor run for elective public office.

17. Leyal Career:

a. Describe chronologically your law practice and

experience after graduation from law school including:

II
1487

1. whether you served as clerk to < judge, and if so, the

name of the judge, the court, and the dates of the period you

were a clerk;

June 1969-June 1970 - Clerk to Honorable David T. Lewis (later Chief

Judge), United States Court of Appeals for the Tenth Circuit, 4201

Federal BuUding, Salt Lake City, UT 84111.

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

I have not practiced alone.

3. the dates, names and addresses of law firms or offices,

companies or governmental agencies with which you have

been connected, and the nature of your connection with

each;

August 1970-May 1971 - Trial Attorney

U.S. I3epartment of Justice

Foreign Litigation Unit

Civil Division

10th SL Constitution Ave., N.W.

Washington. DC 20S30

Worked under Unit Chief processing requests for international judicial

assistance.

May 1971-April 1972 - Trial Attorney

U.S. Department of Justice

Court of Claims Section

Civil Division

10th & Constitution Ave.. N.W.

Washington. DC 20S30

Wortoed alone.

Primary respoi»ibitity for defending at trial and on appeal 17 cases in the Court

of Claims Section of the Civil Division. These cases were military and civilian

procurement building and service contracts disputes; federal back-pay claims;

and Congressional reference cases.

Argued successfully all appeals before that ftill Court of Claims.

12
1488

Won Congressional referenoe trial that produced the most significant

federal laches law in decades.

Won summary judgment on S2S M back-pay case involving Immigration and

Naturalization Service. Representation extended to preparation for trial,

including depositions and discovery of records relating to 160 plaintiffs over nx

years, who were located in various jurisdictions.

April 1972-Febniary J974 -- Trial Attorney

Federal Trade Commission

Bureau of Consumer Protection

Division of National Advertising

6th &. Pennsylvania Ave., N.W.

Washington. DC 2QS80

Worked as second in command or supervised up to two other attorneys.

Primary responsibility for investigating, briefing and trying only case brought

during my tenure that the Commission prevailed on at the appellate level This

was also the first case brought under the "ad substantiation program,* whereby

advertisers were required to maintain documented substantiation for their claims.

Primary responsibility for the Commission's investigation into cosmetics

advertising, which involved close liaison with dermatologists, other physicians,

medical schools, and the Federal Drug Administration.

Primary responsibility for settling the Hawaiian Punch case. The settlement

resulted in llie first so-called 'corrective advertising" agreed to by a respondent.

Secondary responsibility for investigating, briefing and trying the Commission's

analgesics case against Sterling Laboratories (Bayer, Cope, Midol & Vanquish).

I also prepared for trial and assisted in settling the case against Sterling involving

claims for Lysol. Both cases required development of expert witness testimony

in medicine, biochemistry, microbiology, hospital science, psychology and

psychiatry.

Primary responsibility for bringing case to halt children's vitamin advertising,

which resulted, before discovery, in advertisers' voluntary withdrawal of all

advertising.

February 1974-March 1976 — Associate, Litigation

Hogan &. Hartson

555 13th St., N.W.

Washington. DC 20003

Worked under partners or alone.

13
1489

Primary responsibility for prosecuting stockholders' derivative suit that involved

many M.D. investors in Washington Medical Center, Inc., which held parcels of

valuable commercial real estate in downtown, D.C. I drafted complaint;

arranged for service of all process; drafted all pleadings relating to discovery,

including interrogatories arxl answers; conducted depositions of Price

Waterhouse partner and other accountants; chaired all plaintiffs' documentary

examination; drafted a successful opposition to motion to dismiss; argued

motions in federal district court; and wotlced on settlement favorable to

plaintiffs.

Primary and secondary responsibility for defense work of New York Insurance

Co., Home Insurance Co., and Prudential Iruurance Co.. including all phases of

trial work and post-trial relief. I assisted in defending a jury trial brought by a

plaintiff claiming injury due to bilA control pills; I drafted a motion for new

trial after the firm was retained to upset an $8 M verdict (at the time, the largest

persona] injury verdict); I drafted and argued summary judgment motions in

coverage cases.

Secondary responsibility for bringing partnership dissolutions.

Primary responsibility for supervising private auditors conducting audits of

AMTRAK.

Secondary rcspoiuibility for motions practice generated by Chrysler

Corporation.

March 1976-Novembcr 1978 — Special Counsel

Pension Benefit Guaranty Corp.

1200 K Street, N.W.

Washington. DC 20005

Supervised up to seven other allomeys at any one time.

Initial responsibility for establishing litigation capability at the then new PBGC.

Directed defense of all cases (after I joined) brought against the agency in

federal district courts throughout the United States. Initially, these cases

involved the constitutionality of PBGC's enabling legislation, the Employee

Retirement Income Security Act of 1974. I drafted and argued motions and

briefs at the federal trial and appellate levels.

Responsibility for bringing and defending cases in district and bankruptcy courts

involving the PBGC's plan termination insurance coverage. I drafted or

reviewed all papers filed in the 12-IS cases I hardled at any given time. I

appeared in federal district courts in support or defense of complaints and

discovery requeste, as well as pretrials and trials. I argued a case in lower court

and briefed a case before the Seventh Circuit that resulted in the first trial and

appellate decisions favorable to the PBGC.

14
1490

Kepretented the PBGC in all EEO claims brought against the agency.

November 1978-March 1980 - Assisunt General Counsel

U.S. Railway Association

9SS L'Enfant Plaza North. S.W.

Washington, DC 2QS9S

Supervised up to five other attorneys and up to ten paralegals at any one time.

Primary responsibility for defending $450 M claims brought by four bankrupt

railroads (the Reading, Lchigh Valley, North Pennsylvania, and Peoria A

Eastern) under the Regional Rail Reorganization Act of 1979. The cases were

tried before the Special Court (Friendly, Wisdom, Thomsen, J.J.). created by

the Act. The cases were companions to seven others, including Penn Central,

aggregating over S8 B in claims.

The Special Court has adopted rules patterned on the Rules for Multi-district

litigation, because the cases together constituted the largest civil suit in the

United States, designation of nine depositories was required to implement

documentary discovery, and the litigation spans the Northeast. The U.S.R.A.

alone had SOO.CXX) documents computerized on LEXIS and maintained in its

depository a much greater number of documents.

The rules provided for trial by written testimony of the value of claimants'

properties for continued rail use. My team completed discovery and crossexamination of over 20 expert and other witnesses proffered on behalf of thoae

claimants against which we defended. We also prepared and submitted expert

rebuttal testimony.

March 1980-January 1983 - Associate (Partner Jan. 1983)

Shack & Kimball. PC.

1129 20th Street, N.W.

Washington, DC. 20036 (firm dissolved; current address)

Thomas G. Shack, Jr., P.C.

IISO Connecticut Ave.. N.W.. Suite 900

Washington. DC 20036

Supervised up to three attorneys and paralegals in office and 20 local counsel

throughout the United States.

Primary responsibility for two plaintiffs' cases in federal court in the District of

Columbia seeking recovery ofIranian financial assets and real property.

Primary responsibility under Thomas G. Shack, Jr., for defending the

Government of Iran in litigation involving Iranian assets in all jurisdictions other

15
1491

than New York and Massachusetts. Over 40 cases were pending in the District

of Columbia alone, which required oral argument at least once a week for over a

year.

Responsibility for coordinating defenses in my jurisdictions. I drafted pleadings

for litigation throughout the U.S. in district courts involving sovereign immunity

and other defenses under the Foreign Sovereign Immunities Act. I argued these

matters—predominantly in the District of Columbia.

Responsibility for monitoring over 200 cases. I acted as liaison with U.S.

Government representatives.

1. What has been the general character of your law practice, dividing it

into periods with dates if its character has changed over the years?

The general character of my law practice was civil litigation since May

1971, when I began working as a trial attorney in the Court of Claims

section of the Civil Division of the Department of Justice.

2. Describe your typical former clients, and mention the areas, if any. in

which you have specialized.

While I worked for the U.S. Government and its agencies, my clients

were the U.S. Government and its agencies. In private practice with

Hogan & Hartson, I worked for major corporations, as well as private

individuals. While practicing with Shack & Kimball, my principal client

was the Islamic Republic of Iran and its governmental entities. I did not

specialize within the general area of civil litigation.

1. Did you ajipcar 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 before becoming a judge.

2. What percentage of these appearances was in:

(a) federal courts - 85%

(b) state courts of record - S %

(c) other courts - 10%

3. What percentage of your litigation was:

(a) civil - 99%

(b) criminal • 1 %

16
1492

4. State the number of cues in courts of record you tried to verdict or

judgment (rather than settled), indicating whether you were sole counsel,

chief coi)nsel, or associate counsel.

Before becoming a judge, I did not try any case to judgment. However,

this is not indicative of my trial experience, as I have tried many cases up

to the point ofjudgment and accomplished highly fevorablc settlements in

the trial process. Moreover, T handled a number of appellate matters (not

having been involved in the trial phase) and participated through judgment

in many cases not tried, but, rather, determined on dispositive motions.

5. What percentage of these trials was:

(a) jury - 0%

(b) non-jury - 1(X)%

18. l-it^ptinT Describe the ten most significant litigation matters which you

personally handled. Give the citations, if the cases were reported, and the docket

number and date if unreported. Give a capsule summary of the substance of each i

Identify the party or parties whom you represented; describe in detail the nature of your

participation in the litigation and the final disposition of the case. Also state as to each

case:

(a) the date of representation;

(b) the name of the court and the name of the judge or judges before whom the case

was litigated; and

(c) the individual name, addresses, and telephone numbers of co-counsel and of

principal counsel for each of the other parties.

In listing the ten cases, I did not have some of the particulars called for, because they

arc not available to me at this time. 1 held litigation positions with five other offices

and have not been able to remove case files I worked on In these successive positions.

The following arc listed in reverse chronological order:

1) Tom Aeuna « .1 v Uniterf SutM Nos. 259-70; 292-70; 349-70; 458-70 (Ct.

Cl.), 202 Ct. Cl. 206, 479 F.2d 1356 (1973), £crL denied. 416 U.S. 905 (1974).

This was the major case I handled alone in the Court of Claims Section of the Civil

Division of the Department of Justice, which was a S2S M suit for back-pay under

various federal statutes involving the Immigration and Naturalization Service and the

United Sutes Customs Service, principally, 19 U.S.C. g 9267. The significance of

this case is tfiat it was a unique back-pay case, not decided under the usual statutes and

regulations for federal employees, and required a legal and factual analysis of first

impression as to whether the work of INS inspectors began on Sundays and whether

17
1493

they were, therefore, entitled to double pay for that work. I developed the theory of

the case, conducted pre-trial, and left the Department after drafting the dispositive

motion, which was eventually decided in the United States' favor.

a) 1971-1972;

b) United States Court of Claims;

c) RobertC. Baxley. Esq., 10S9-10th Ave., San Diego, CA 92101, 714/236-1144.

2) McOiiown V. United St«te«, Cong. Ref. Case No. 2-70 (1972).

This was a Congressional reference back-pay case which was significant insofar as it

established a new standard of laches claimed by the U.S. Government. I tried the

case alone and won a defense verdict.

a) 1971-2 days;

b) Trial Judge David Schwartz;

c) Thuraian Bishop, Esq., Mays & Richey, 212 Oak Ave., Greenwood. SC 29646,

803/223-8S11.

3) In the Maner of Fedde» Corp. v. FTC. FTC Docket No. 9932; 529 F.2d 1398

(2d Cir.), sea. denied. 429 U.S. 818 (1976).

This was a case noteworthy in that it was the first case brought against a U.S.

corporation to test the 'ad substantiation program* of the FTC. As chief counsel, I

bandied the case development from investigation through trial. Although the

Commission's decision on remedy was modified on review, liability was upheld.

a) 1972-2 days;

b) No record of name ofjudge;

c) Sydney B. Wertheim, Esq., Weisman. Cellcr, Spett, Modlin & Wenheim, ISO

East 58th St., New York, NY 10155. 212/371-1492.

4) In rr- .Siffrliny Annlgeiie^. FTC Docket No. 8919.

This was the major analgesics investigation concerning Bayer, Cope, Midol, and

Vanquish, commenced against Sterling Drug Company. The matter was litigated, but

I did not participate in the trial, which postdated my employment with the

Commission. I list the case because the matter represents a massive amount of

investigative work in which I participated as associate counsel. I was involved in this

investigation from approximately late 1972 through February 1974, when I left the

18

45-964 98-48
1494

Commission. With respect to other litigation involving Sterling Drug Compaoy, and

its product Lysol, I developed expert testimony with many medical witnesses in

preparation for trial. This case was ultimately settled very favorably to the

Commission, and advertisii^ of Lysot was radically altered as a result of seideineal.

a) 1972-1974;

b) Not before judge in investigative phase; name ofjudge in trial phase in 1973-1974

unknown;

c) General counsel for Steriing Drug Company; no lecord of name.

Another matter which did not go beyond the development of expert testimony was the

children's Vitamin T.V. Advertising case, which I was hired to try in 1972. This

involvement was significant, because the Commission put great emphasis on this case.

After my team presented its initial evidence, the manufacturers of children's vitamins

voluntarily withdrew their advertising from television because of the FTC's novel

theory of unfairness, Lfi.. T.V. advertising unfair to an audience because of its

particular susceptibility.

•) eariy 1972;

b) no judge assigned;

c) opposing counsel: no record of name.

5) In re Hiiw»ii»fi Piinrh FTC Docket No. unknown.

As of the date of this settlement and for sometime thereafter, this was the only

successful corrective advertising case brought on behalf of the Federal Trade

Commission. The case had been prepared for trial by other attorneys, and it was

assigned to me for sole trial responsibility. After negotiation, a settlement highly

favorable to the Commission was obtained and approved.

a) 1973;

b) no record of name ofjudge;

c) Eugene I. Lambert, Esq., Covington & Burling, 1201 Pennsylvania Ave., N.W.,

Washington, DC 20004, 202/622-5518.

6) J«tn« W Rrmh.rrf et Hi v W««hinprnn Madical Center. Tne er «l Civ. Act.

No. 74-440 (D.D.C.).

I had primary trial responsibility under a Hogan &. Hartson partner for a complex

stockholders' derivative lawsuit brought by doctors/investors of Washington Medical

Center (which owned Doctor's Hospital and 1801 K Street, among other properties)

against WMC. Although the case was ultimately settled favorably to plaintiffs, this

19
-. 3 jrjr1495

r^wesented one ofthe most intense discovery and trial development cases in my

practice.

a) 1974;

b) Hon. June L. Greene;

c) George H. Clark, Esq., Clark &. Constable. 1300 19th St., N.W.. Washington,

DC 20036,202/466-7171.

7) Nachman Corp v Pension Benefit nuaranry Corp . 436 F. Supp. 1334 (N.D. 111.)

(1977). rev'd, 592 F.2d 947 (7th Cir. 1979), afCd, 446 U.S. 359 (1980).

This is the first case upholding the validity of the Employment Retirement Income

Security Act of 1974. insoftr as it created the PBGC and authorized the PBGC to

assess employer liability for deficiencies in certain terminating plans. I left the PBGC

when the matter was pending before the Seventh Circuit, having participated in

writing the brief. I had sole trial responsibility for defending the PBGC. This is one

of the few cases that 1 have lost at the trial level, and I mention it because I was

informed through a law clerk to the Supreme Court Justice who authored the opinion

that most persuasive to the Supreme Court were the arguments in the motion to

dismiss the complaint which 1 had authored several years previously.

a) 1976-1 day;

b) Hon. Abraham Marovitz;

c) Robert W. Gettleman. Esq., D'Ancona. Pflavm, Wyatt Sc Riskind, 30 N. LaSalle

St.. Chicago. D, 60602. 312/580-2000.

8) In the Matter of the Valuation Proceedinys Under S.S 303fc> and Regional Rail

ReorganiTatinn Art of 1973. Misc. No. 79- (special Court).

I had fill] trial and supervisory responsibility for three major rail estates—the Reading

Railroad, the Lehigh Valley Railroad, and the Peoria & Eastern Railroad. The

aggregate value of the claims against these railroads was over $450 M. I was hired to

uy these cases beginning in November 1978, after previous attorneys worked for over

two years on trial preparation. Therefore, this litigation represents my "quickest

study.* The case was tried entirely on deposition and involved almost all expert

vHtnesses. with only several lay witnesses. Complex accounting, financial, economic,

and valuation analysis was required, not only for defending against the claims of rail

estates, but also with respect to development of expert and lay testimony in rebuttal to

the estates' cases.

») Dee. 1979 - Mar. 1980 - fiUl trial;

b) Special Court (Wisdom, Friendly. Thomscn. J.J.);

20
1496

c) Howard H. Lewis, Esq., Obermayer. Rebmann, Maxwell & Hippel, 14th Floor,

Packard Building, PKiladelphia. PA 19102, 21S/66S-3000 (Reading). David C.

Toomey, Esq., Duane, Morris &. Heckscher, One Franklin Plaza, Philadelphia

PA 19102, 215/854-6300 (Lehigh Valley); no record of counsel for Peoria &

Eastern.

9) Dames & Moore v. Regan, 453 U.S. 654 (1981).

This wu the case brought to lest the authority of the President of the United Sutes to

settle claims of U.S. nationals against the Government of Iran under the Algiers

Declarations. The case was not tried. However, according to U.S. Supreme Court

personnel, it was one of the ftstest cases briefed, argued, and decided by the U.S.

Supreme Court in history. I was responsible for the brief before the Supreme Court

filed on behalf of the Government of Iran. My senior partner argued the case, and I

was responsible for assisting him. The Supreme Court's decision is the leading case

on issues of international and domestic law concerning the enforceability of treaties

and executive agreements as of the date of decision. ,

a) June-July 1981;

b) Supreme Court;

c) C. Stephen Howard, Esq., Tuttle & Taylor, 609 S. Grand Avc., Los Angeles. CA

90017,213/683-0600.

10) Islamic Wepiihlie of Iran et al v Cynn An«iirv Civ Act. No. 81-1817

(D.D.C.).

I list this case because I had trial responsibility for problems unique in bringing a

claim by a foreign government against a U.S. citizen in courts of the United Stales.

These problems related to difficulties of proof, client communication, and proof of

foreign law and records. Iran sued for return of SS M entrusted to its former

international investment advisor in 1975, who, in turn, counterclaimed for

approximately $21 M, representing various contract and other claims. The case

underwent aggressive discovery and dispositive motions, and I settled it favorably.

a) Aug. 1981 to Jan. 1983;

b) Hon. Harold H. Greene;

c) Paul Martin Wolff, Esq., F. Whitten Peters. Esq.. Williams & Connolly, 939 17di

St., N.W., Washington. DC 20006. 202/331-5000.

19. ' ^r«l /><-Hvit^ffi- Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did

not involve litigation. Describe the nature of your participation in this question. Please

21
1497

I omit til information protected by the attorney-client privilege (unless the privilege has

( been waived.)

I

I The most signiiicant legal activities that I pursued prior to serving as a judge are listed

in response to question 18. Also, in response to question 17, 1 listed significajit cases

or matters in connection with my employment prior to being appointed to the Umted

Slates Claims Court (now the Court of Federal Claims). As a sitting trial judge, I

consider managing and deciding my cases as significant legal activities.

22
1498

n. FINANCIAL DATA AND CONFUCT OF INIXRESTCFUBUC)

1. List source, amounts and dates of all anticipated receipts ^m deferred

income airangements, 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 finandal or business interest.

This question is not applicable, as I have been a sitting judge for IS years.

2. Explain bow you will resolve any potential conflict of interest, includins

Ac 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 have never faced a conflict ofinterest in IS years. In the past I have tried to

anticipate such matters and present counsel with the option of my transfisrring a

Ttransfer has never been requested.

}. 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 $S00 or more. (If you prefer to do so, copies of

the financial disclosure report, required by the Ethics in Government Act of

1978, may be substituted here.)

Please see attached copy of Financial Disclosure Report for calendar year 1996. The

sources and amounts of income and other information are the same for 1997 to date.

i. Please complete the attached financial net worth statement in detail. (Add

schedules as called for.)

23
1499

Flcaie tee attached copy with statement from Smith Barney dated September 26,

1997, and list of assets for Dennis F. Miller.

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,

datea of the campaign, your title and responsibilities.

24
1500

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vm. ADDinONAL INFORMATION OR EXPLANATIONS.

|x I mm 01"

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1607

nNAMOAL mscxooRE WXrOKT nlXlmr. Chrlsfcta* o.c. 11/07/1997

IX. GOITIFICATION

IB compliiiica wMi tfas provuions of 21 U.S.C. 4SS ind of Advltory Opinioo Ho. 57 of dw Adviiory Commjawoa

Indicial Acdvilwt. lod lo the best of oiy kDOwIedjt u tfa« tinu tficr nufooablc inquiry, I did not pcrfbnn any •djudicBtory

IbactioB • ny IhigMim during tbe period covered by diu rapori in which I, my spoua«, or my minor or dcpcndcot childiio

iMd a fiaoclal imowc. u d«fln«l in Canon K!(3Xc). in die outcoow of wch liiifiatioa.

1 cwiUy tut all ih« iBfbnBKioa giwan abev« (iacludlng Informatkni pertaining to ay ^KMM and minor or dapoodatt

•chOdraa, V My) b accimCK, tiue, and oomplaca to ihc best of my knowtadg* and belief, and that my hrfiimuKion not reported

wwhhheU bacaou k met ippltcabtc statutory provlgiou permlning non-dUdoeure.

I farter catafy thai eamad income from outiide caploymeot and hoDoraria and the aLcaptance of gifts which hav« been

nfonai are k conpliaace with the proviiiont of 5 U.S.C. app. 4. MOIOD SOI el. Mq., S U.S.C. 7353 andludicial

CdBfcraaoa ragijaripna.

SigaiBire Wt&6m" S. ^. '^l^ D«. H#t±!^7t^ ijffAay Individual wfao knowingly ind wijftjlly faJslfiu or faili lo filt dtis rtpoft may be lubjed to civil

and criffliMl UKtiou (5 U.S.C. App. 4, Sioiaa IM).

FIUNC D«5TKUCnONS

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CamnltteK ee Flaaaclal DUcleaurc

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1508

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III
1522

m. GENERAL (FUBUC)

1. An ethical considention 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 fiilfill these responsibilities, listing

specific instances and the amount of time devoted to each.

Since becoming a judge in 1983,1 worked as a volunteer gemologist for 4 hours per

week at the Christ Child Society Opportunity Shop from Sept. 1986-Aug. 1994. I

also worked as a volunteer for 3 hours per week at the Information Desk at the

Columbia Hospital for Women during calendar year 1990-1991. Before becoming a

judge, I worked on a variety of pro bono assignments, but have no records of these

matters as of this date.

2. The American Bar Association's Commentary to its Code of Judicial Conduct

states that it is inappropriate for a judge to hold membership in any organization that

invidiously discriminates on the basis of race, sex, or religion. Do you 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?

1 have never belonged to such an organization.

3. Is there a selection commission in your jurisdiction to recommend candidates for

nominabon to the federal courts? If so, did it recommend your nomination? Please

describe your experience in the entire judicial selection process, from beginning to

end (including the circumstances which led to your nomination and interviews in

which you participated).

There is no judicial selection commission in my jurisdiction. I sought rcappointment

to the United States Court of Federal Claims by writing the President. Theicafler, the

White House and the Department of Justice processed my request for reappointmenL

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, er

question? If so, please explain fiilly.

No one has discussed these matters with me.

2S
1523

S. Pleaie discus* your views on the following ciiticism involving 'judicUl

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 grievanceresolution;

b. A tendency by the judiciary to employ the individual plaintifT as a vehicle for

imposition of ^-teaching 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 die

maimer of an administrator with continuing oversight responsibilities.

As a trial judge, I am mindful that my responsibility is to find the facts in dispute

between the parties and apply the law to thase facts If 1 encounter difficulty in

applying a federal law, I explain the problem in an opinion so that Congress can

consider remedying it. 1 uphold the principles of stare decisis and separation of

powers and regard their importance as paramount.

26

o
ISBN 0-16-056254-6

60'562549

90000